WICKENBY & WICKENBY
[2012] FamCA 1074
•19 December 2012
FAMILY COURT OF AUSTRALIA
| WICKENBY & WICKENBY | [2012] FamCA 1074 |
| FAMILY LAW – PROCEDURE – After a trial and while judgment in principal proceedings reserved mother applied for stay of judgment pending the hearing of a newly filed contravention application – Decision made to proceed to judgment in the principal proceedings in relation to mother’s application for relocation of child’s residence and in relation to parental responsibility and to stay the judgment in relation to all other parenting matters pending outcome of the mother’s contravention application FAMILY LAW – CHILDREN – BEST INTERESTS – RELOCATION – Competing parenting orders sought by father and mother – Mother sought to relocate child’s residence to Western Australia – Father lives near Brisbane – Mother’s partner lives in Western Australia – Mother and partner propose to marry December 2012 – Meaningful relationship – Whether need to protect child from harm – Parental responsibility – Order made for equal shared parental responsibility for the major long-term issues – No proposal for equal time – Whether substantial and significant time in child’s best interests and reasonably practicable – Order made that mother may relocate child’s residence to Western Australia – All other matters in the principal proceedings in particular the time the child should spend with the father and communicate with the father stayed pending further trial directions FAMILY LAW – CHILDREN – INTERIM ORDERS – Interim orders made pending disposal of mother’s new applications |
| Family Law Act 1975 (Cth) ss 60CC, 61DA(1), 65DAA(1), (2) and (5) |
| AMS v AIF (1999) 199 CLR 160 Carlyle & Muldoon [2011] FamCA 51 Collu & Rinaldo [2010] FamCAFC 53 D v SV (2003) FLC 93-137 G & C [2006] FamCA 994 Hall & Hall (1979) FLC 90-713 Hanrahan & Silver [2010] FamCAFC 257 Hepburn & Noble (2010) FLC 93-438 Mazorski & Albright [2007] 37 FamLR 518 McCall & Clark (2009) FLC 93-405 MRR v GR (2010) 240 CLR 461 Muldoon & Carlyle [2012] FamCAFC 135 Sealey & Archer [2008] FamCAFC 142 Starr & Duggan [2009] FamCAFC 115 Taylor v Barker (2007) FLC 93-345 |
| APPLICANT: | Mr Wickenby |
| RESPONDENT: | Ms Wickenby |
| FILE NUMBER: | (P)BRC | 20 | of | 2009 |
| DATE DELIVERED: | 19 December 2012 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | O'Reilly J |
| HEARING DATE: | 3, 4, 5 and 8 October 2012, 27 November 2012 |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Laws |
| SOLICITOR FOR THE RESPONDENT: | Ms Gagliardi Odyssey Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms McArdle |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Davies Legal Aid Queensland |
Orders
IT IS ORDERED
Child’s living arrangements (orders made 27 November 2012)
The child B born … July 2002 (the child) live with the mother.
The mother may relocate the child’s residence to C Town Western Australia on or after 18 December 2012.
AND IT IS FURTHER ORDERED
Parental responsibility
The parties have equal shared parental responsibility for the child for decisions in relation to the major long-term issues concerning her education both current and future, religious and cultural upbringing, health, name and any changes to her living arrangements that may make it significantly more difficult for her to spend time with the parties or either of them.
In the exercise of their equal shared parental responsibility concerning the child in relation to decisions concerning those major long-term issues the parties are to consult each other and make genuine effort to come to joint decisions.
In relation to such consultations:
a.the parent wishing to make a proposal make it in writing to the other parent, setting out the advantages of the proposal perceived by that parent and reasoning supporting it
b.the other parent respond in writing to the proposal by either agreeing with it or making a different proposal, setting out the advantages of any different proposal and reasoning supporting it
c.if after such consultation a joint decision is not able to be made the parties are to consult a family law dispute resolution practitioner to assist them to resolve the issue.
The parties each be responsible for the child’s day to day care while the child is with each of them.
In relation to religion the parties may each take and permit the child to participate in religious activities, occasions, special days and special day observances according to that party’s choice while the child is with that party.
AND IT IS FURTHER ORDERED UNTIL FURTHER ORDER
Interim arrangements for child to spend time with and communicate with father
UPON THE UNDERTAKING OF THE FATHER FILED 16 NOVEMBER 2011
The child spend time with and communicate with the father as may be agreed between the parties but failing agreement:
a.by telephone and/or Skype on each Tuesday, Thursday and Sunday between 6pm and 7pm Western Australia time, the mother to ensure that the child initiates the communication with the father
b.by text as may be initiated by the child or the father
c.commencing Easter 2013, 10 days in South East Queensland in each of the child’s Easter, June/July and September/October school holiday periods (or equivalent according to the child’s Western Australia school holiday periods) and 3 weeks of the child’s Christmas school holiday period
d.4 days in approximately mid term during each of the child’s school terms in Western Australia, such to occur from 10am on a Friday to 4pm on the following Monday, with changeover for these mid term occasions to occur in Perth.
The parties share equally the travel costs for the child in relation to order 8 c and d.
When the child spends with the father he permit her to make such reasonable communication with the mother as the child may wish to initiate, and permit the child to receive communications from the mother on each Tuesday, Thursday and Sunday on which the child is spending time with him, between 6pm and 7pm Queensland time when the child is in Queensland and between 6pm and 7pm Western Australia time if the child and the father should be in Western Australia.
Each party must afford the child privacy during all communication time.
Otherwise, interim orders 4, 5, 7, 8, 10 and 11 made 16 November 2011 remain in force; and interim order 3 made 31 January 2012 remains in force.
AND IT IS FURTHER ORDERED
Procedural
Judgment in the principal proceedings otherwise is stayed pending further trial directions.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Wickenby & Wickenby 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: (P)BRC 20 of 2009
| Mr Wickenby |
Applicant
And
| Ms Wickenby |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings concern the child B born in July 2002 (the child).
The child’s parents Mr Wickenby (the father) and Ms Wickenby (the mother) have competing applications concerning parenting orders for the child.
The proceedings were commenced by the father on 17 October 2011, and progressed through the familiar procedural path to the allocation of trial dates on 3, 4 and 5 October 2012. As events transpired, the matter concluded the following Monday, 8 October 2012, and on that date judgment was reserved.
Mother’s application for stay of judgment filed 23 November 2012
On 23 November 2012, while judgment was reserved, the mother filed 2 applications.
The first was a contravention application against the father concerning new evidence of an alleged incident occurring after the trial had concluded, with the mother seeking that the contravention application be set down for a directions hearing before a Registrar. The subject matter of the alleged contravention is that the father without reasonable excuse breached one of the undertakings prefacing interim orders made on 16 November 2011, by on 17 October 2012, at the doorway dividing the bathroom from the living/lounge area of the father’s home he:
… put himself in a position where the child [B] born … July 2002 was naked in his presence. He “jimmied”, forced or otherwise took steps to open the bathroom door after [the child] had locked it behind herself in order to shower to place himself in a position where he was able to and did watch the [child] naked while she showered.
The relevant undertaking by the father prefacing the interim orders made on 16 November 2011 was that he would:
… not allow the child to be naked in his presence.
Prior to 27 November 2012, the mother’s contravention application was listed for directions by the docket Registrar, as sought by the mother, the notified listing date being 21 February 2013.
The second was an application in a case seeking that judgment in the principal proceedings be stayed pending determination of the mother’s contravention application.
At my direction, this application was listed before me on 27 November 2012.
On that date I stated to the parties and the to independent children’s lawyer that the subject matter of the mother’s contravention application, whether proved or disproved as a contravention, had no bearing on my decision, which already firmly I had made, that the child should live with the mother, to permit the mother’s application in the principal proceedings to relocate the child’s residence to C Town Western Australia and for that to occur on or after 18 December 2012, although as yet I had not finalised my reasons for judgment.
I said that such decision had been made solely on the basis of the trial material and submissions, such that, subject to hearing the parties and the independent children’s lawyer, I was minded to make a final order in respect of those matters, subsequently to give my reasons for judgment in respect of those matters and otherwise to stay the judgment in the principal proceedings.
Subsequently, on the same date, I said to the parties and to the independent children’s lawyer that I would also make a determination and give my reasons for judgment in relation to parental responsibility as similarly that issue could be determined by me without reference to the mother’s new material.
In effect thus I refused the mother’s application for a stay in respect of those matters, and emphasised that the mother’s new material could have no bearing on those matters, but that judgment in respect of all other matters, in particular the time the child should spend with the father appropriately should be stayed pending the hearing and determination of the mother’s contravention application and any new trial directions which might ensue as sought by the mother in her application in a case.
I would refer to the transcript 27 November 2012, in particular T3/5-40; T 4/25 - T5/14; T6/3 - T7/14; and also to the orders which I made on that day, and the notations to those orders:
IT IS ORDERED
1.the child [B] born … July 2002 (the child) live with the mother.
2.The mother may relocate the child’s residence to [C Town] Western Australia on or after 18 December 2012.
AND IT IS FURTHER ORDERED UNTIL FURTHER ORDER
3.The judgment in the principal proceedings, save for the giving of reasons for judgment in relation to orders 1 and 2, and a determination and reasons for judgment in relation to parental responsibility, is stayed.
AND IT IS FURTHER ORDERED
4.The time for appeal in relation to orders 1 and 2 not commence to run until the reasons for judgment in relation to orders 1 and 2 are given.
AND IT IS FURTHER ORDERED
5.The mother’s application in a case filed 23 November 2012 be further listed as the parties or the independent children’s lawyer request or as a Registrar may direct.
…
NOTATIONS
1.In relation to order 3, see the mother’s application in a case filed 23 November 2012.
2.The mother’s contravention application also filed 23 November 2012 is listed before a Registrar on 21 February 2013 for directions.
Transcript error
The transcript 27 November 2012 contains an error at T3/33-37, which reads:
… The state of the matter at the trial was that the mother was satisfied that the child was not at risk of any physical harm by the father. Mr Laws advice and argument of emotional harm, and I challenge that [Ms D] is a social worker, was not with all due respect to her, a greatly respected family report writer, that she was not a psychologist and could not give any opinion of psychological or emotional harm.
The intention was to convey that whilst [Ms D], as a social worker, is a greatly respected family report writer, she is not a psychologist qualified to give any opinion as such.
Steps have been taken for this passage in the transcript to be repunctuated and reissued to ensure that the intended meaning was as I have said.
The limit of these reasons for judgment
Accordingly, I will limit these reasons for judgment as indicated, save for the matter of interim orders concerning the time that the child should spend with the father pending the next listing of the matter, which I will address separately below.
The parties’ and the independent children’s lawyer’s proposals
It is not necessary to refer to the proposals other than as they relate to the child’s living arrangements and parental responsibility.
Many other issues were visited in the parties’ and the independent children’s lawyer’s various proposals.
As these matters however are the subject of the stay it is neither necessary nor desirable presently to set them out.
Father
The father proposed (amended initiating application filed 9 March 2012) that:
· the child live with him
· he have sole parental responsibility for the major long-term issues
· while the mother lives in or near Brisbane the child spend time and communicate with the mother during school terms on alternate weekends from after school Friday until before school Monday, in the alternate week from after school Thursday until before school Friday, half school holiday periods, and by telephone on alternate days, with provision also for special days
· if the mother should move to Western Australia the child spend half of the school holidays with the mother, with telephone communication on each alternate day.
In a “revised version” included in the father’s written submissions filed 8 October 2012 he proposed:
· the child live with him
· there be equal shared parental responsibility for the child (as proposed by the independent children’s lawyer) but with some specific matters to be included concerning religion:
a.the child not be baptised until the age of 16 years
b.the mother not advise the child’s school that the child does not celebrate birthdays, Easter and Christmas
c.the mother not advise the child that it is wrong to celebrate birthdays, Easter or Christmas
d.the father not denigrate the mother’s religion
· if the mother should remain in South East Queensland the child spend time with the mother in alternate weeks from Thursdays after school until the following Wednesday before school (5 nights per fortnight), half school holidays, there be telephone communication with the mother once during the period the child is living with the father being the third night between 7pm and 8pm with the child being able to telephone the mother at other times at her instigation, and communication with the mother further by text at the child’s instigation, with the mother to initiate the text, if she wishes, on each second day, with provision also for special days
· if the mother (that is the mother, but not the child) should move to Western Australia the child spend time with the mother in Western Australia for the whole of the term 1 holidays, half of the term 2 holidays, the whole of the term 3 holidays and 4 weeks of the term 4 Christmas holidays, with further time for a weekend once each school term from after school Thursday until 5pm the following Monday, and a weekly Skype call on Monday nights to be initiated by the mother between 7pm and 8pm Queensland time.
On 27 November 2012, after I announced to the parties and the independent children’s lawyer that I would order that the child live with the mother and that the mother may relocate the child’s residence to C Town Western Australia, the father said that he adopted the independent children’s lawyer’s proposal of equal shared parental responsibility. I did not understand the father to abandon the specific orders sought by him in relation to religion (set out above). However, it seems to me that as these 4 matters are in the nature of restraints, rather than aspects of parental responsibility, accordingly they are part of the stayed judgment.
Mother
The mother proposed (amended response filed 29 March 2012) that:
· the child live with her
· she be permitted to relocate the child’s residence to C Town Western Australia
· she have sole parental responsibility for the child
· if she be permitted to relocate the child’s residence to C Town Western Australia the child spend time and communicate with the father at all times as may be agreed but failing agreement for half of the school holidays, during school terms on “long weekends” in Western Australia upon notice, and by telephone and/or Skype on 3 occasions each week, namely each Tuesday, Thursday and Sunday
· if the she not be permitted to relocate the child’s residence to Western Australia the child live with her, she have sole parental responsibility for the child, the child spend time with and communicate with the father as agreed between the parties but failing agreement during school terms from after school Friday until before school Monday, half school holidays, and telephone and/or Skype communication 3 times per week namely each Tuesday, Thursday and Sunday.
In her oral evidence however the mother said that if I permit the relocation she would not resist the child spending the following time with the father:
· 1 week of the child’s Easter school holidays, but not to include the evening of her religious service
· 10 days of the June/July school holidays
· 10 days of the September/October school holidays and
· 3 weeks of the 6 weeks Christmas school holidays
all of which the child could spend with the father in Queensland, and further
· if the father should wish, 4 days mid term in Western Australia (canvassed to be more likely to be Perth than C Town) from a Friday morning until a Monday afternoon, such to be on notice.
Importantly, the mother made clear in her oral evidence that if there be a “geographical” order that the child live in or near Brisbane she would not move to C Town, even though her partner, soon to be husband (to whom I will refer in more detail below), necessarily lives and will continue to live in C Town.
Independent children’s lawyer
The independent children’s lawyer proposed (by way of draft orders attached to written submissions filed 8 October 2012):
· the parties have equal shared parental responsibility for the child
· the child live with the mother
· the mother not be permitted to relocate the child’s residence “from South East Queensland”
· the child spend time with and communicate with the father at all times as agreed between the parties but failing agreement during school terms in alternate weeks from after school Friday until before school Wednesday (5 nights per fortnight), half of each school holiday period and on special days, with telephone communication on each Monday evening and at such other times as the child expresses a wish to speak to the father or send a text to him or otherwise communicate with him, such to be initiated by the child and facilitated by the mother, with the child to communicate by telephone or Skype with the mother when the child is with the father on each Monday evening and at such other times as the child expresses a wish to communicate with the mother by telephone, text or otherwise, such to be initiated by the child and facilitated by the father.
During interactive submissions on 8 October 2012, when I questioned Ms McArdle as to the independent children’s lawyer’s proposal that the child live with the mother, but the mother not be permitted to relocate the child’s residence “from South East Queensland”, as to any proposed time limitation on that, Ms McArdle submitted that the intention of the proposal was that there be “no relocation until the child finishes the whole of her secondary schooling”.
When questioned by me as to whether such is a realistic proposal, given that there is no reason for me to doubt the evidence of the mother and her partner Mr E (to which I will refer in due course), that they intend to marry in December 2012, and that usually husband and wife live together, as is desirable, ought I not consider the independent children’s lawyer’s proposal that the child live with the mother, but that she not be permitted to relocate the child’s residence to Western Australia until she finishes her secondary schooling as unrealistic, Ms McArdle responded to the effect that if the mother and Mr E marry, such would amount to a “significant change of circumstances”, but, somewhat surprisingly in light of the firm evidence by both the mother and Mr E that they intend to marry in December 2012, Ms McArdle submitted that at this stage such a marriage was only “speculative”, but if indeed the mother and Mr E married this would amount to such a “significant change of circumstances” to warrant re-opening of the matter and potentially a new trial.
Such surprised me, in that, according to s 60CC(l) I am required to consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
I will however deal with this in due course.
Despite this exchange, the independent children’s lawyer’s proposal remained as it stood, reflecting, I should say, the view of Ms D, family consultant and the family report writer, whose report dated 26 April 2012 seemed to reflect the position that Mr E at that stage was only the mother’s “boyfriend”, and that, somewhat unfairly I think, that the mother had caused “a predicament of her making” because of her relationship with Mr E: family report, par 100.
The proposals generally
As will be seen below, whilst the proposals of the father and the mother were somewhat predictable, having regard to the exigencies of their own positions, the independent children’s lawyer’s proposal accepted the recommendations of Ms D, whose family report predated the trial dates by some 5½ months. Ms D, at the trial, was in the very difficult position of adhering to her expressed views, that is, as expressed in April 2012, but without the advantage which I had, as the trial judge, of hearing all of the evidence and observing the parties for the whole trial period.
Notice of Child Abuse or Family Violence
On 14 November 2011, the mother filed a notice of child abuse or family violence.
The parts relating to actual alleged abuse were blank, as were the parts as to alleged family violence or alleged risk of family violence. The part relating however to alleged risk of abuse (Part F) referred to annexure A which, for importance when I come to deal with the s 60CC factors, in particular the second of the primary considerations, I will set out in full:
1. On 25 July 2011, [B] refused to take a shower and made the following disclosures to the Respondent Mother:
a. That she was “sooky” and needed to be held;
b. That her Father, [Mr Wickenby] had showered with her and that he had no underpants on;
c. That she had only looked at her Father from the waist up.
2. Since [B] making the disclosure to the Respondent Mother on 25 July 2011, the Respondent Mother has noticed the following changes in [B]’s behaviour:
a. [B] continually kisses her Mother and cuddles her and tells her Mother that she loves her;
b. [B] wants her Mother to hold her constantly;
c. [B] continually has a sore tummy;
d. [B] refuses to shower and change into her pyjamas;
e. [B] was touching her vagina.
3. On 28 July 2011, [B] again refused to have a shower and refused to change her underwear. [B] told the Respondent Mother that Mum and Dad were allowed to touch her “private part”.
4. On 8 August 2011, whilst getting ready for bed, [B] informed the Respondent Mother that her Father, [Mr Wickenby] jumps in the shower straight after her.
5. On 27 September 2011, [B] attended an appointment with MAD (Making a Difference Organisation) and made the following disclosures:
a. That her Father, [Mr Wickenby] gets angry at her;
b. That she is constantly trying to pretend to be happy and do things that her Father, [Mr Wickenby] wants so he does not get angry at her;
c. That she does not want to go to her Father, [Mr Wickenby]’s house over the holidays and that she gets a ‘funny’ feeling in her tummy before and during her time with him;
d. That her Father, [Mr Wickenby], had showered naked with her;
e. That her Father, [Mr Wickenby], was making her sleep in his bed with him.
6. On 3 October 2011, [B] made the further following disclosures:
a. That her Father, [Mr Wickenby] had lied naked on the mattress next to her bed;
b. That her Father, [Mr Wickenby]’s penis was only a hand width away from her in the shower;
c. That she feels uncomfortable wearing her bonds tops and pyjamas at her Father, [Mr Wickenby]’s house; and
d. That [B] kept scratching at the crouch of her pants.
Allegation of unacceptable risk
Initially Mr Laws of Counsel, for the mother, submitted that he sought findings of unacceptable risk of sexual and/or other abuse of the child by the father.
By the conclusion of the trial however Mr Laws narrowed his submission, on the mother’s instructions, to make plain that the mother was “not running any case of actual sexual abuse”, or of “unacceptable risk of sexual abuse”, but was running the case of “risk of emotional abuse”.
As will be seen, however, when dealing with the s 60CC matters, I have determined on the basis of the trial material and submissions, and Ms D’s opinion of “double enmeshment”, which I accept, that there is no greater risk of emotional abuse of the child if she should live with either the father or the mother.
Relevant background facts
The father is 42 years. He lives at Suburb F, a short distance South West of Brisbane. He is a works at Suburb G in Brisbane “in charge of a group of business development managers”. He has a female friend, Ms H, whom he described as a “girlfriend”, but made clear that they do not live together and that he has not “repartnered” with Ms H.
The mother is 39 years. She has training in administration. At the time of the trial the mother and the child lived in or near Brisbane.
The mother has a partner Mr E, 45 years, who lives in C Town Western Australia, and for good reason described by him, proposes to continue to live there. In short, Mr E deposed that he is employed by E Pty Ltd, a family owned and operated business located in C Town with turnover of some $50-60 million per year, Mr E having worked in the family business, with his brothers Mr I and Mr J, for 20 years. Mr E explained that his employment in C Town is family based such that it is not viable for him to move to Queensland.
Mr E said that he and his brothers supported the mother having employment in the family business in administration.
Mr E has a son, K, also 10 years, who lives with his mother in Perth. K spends time with Mr E in C Town each second weekend from after school Friday to before school Monday and half school holidays, these arrangements having been in place since October 2009.
Mr E said that he and his former wife, K’s mother, were divorced in February 2010, that there are no outstanding family law proceedings, no domestic violence or family protection orders regarding his former wife or K, he has never been involved in any domestically violent relationship, he is healthy, takes no medication, has never had any problem with drug or alcohol abuse and has never been convicted of a criminal offence.
Mr E said that he and the mother had planned to marry in January 2012, had postponed their plans until there could be a final outcome of these proceedings, but that regardless of the outcome he and the mother will marry.
At the time of the trial Mr E and the mother proposed to marry in December 2012.
Both the mother and Mr E practise and will marry in the mother’s faith.
The mother and the father met in 1998, started dating in 1999, married in 2001 and had only one child, B. The mother and the father separated in November 2007 and were divorced on 19 March 2009.
The child has attended the L School in Queensland. She enjoys her pony club, ballet and other extra curricular activities, as well as companionship with her close girlfriends. Photographs of the child, annexure P to father’s affidavit filed 1 May 2012, show her with her horse, father, father’s extended family, friends and girlfriends.
However, there is much evidence, to which I will refer later, that the child more recently has enjoyed similar activities in C Town, having been there with the mother 4 times: 10 days of the school holiday period July 2011; 3 weeks of the Christmas school holiday period December 2011; 1 week Easter 2012; 1 week June/July 2012.
Post separation arrangements for the child
I would refer to the interim orders made by Principal Registrar Filippello on 16 November 2011 and 31 January 2012, and to ex 10, as to post separation arrangements concerning the child.
Principles relevant to parenting orders
Children’s best interests paramount
Pursuant to s 60CA of the Family Law Act 1975 (Cth) (the Act), in determining whether and if so what parenting orders in relation to a child should be made, the Court must regard the best interests of the child as the paramount consideration.
Objects and principles underlying objects
Section 60B of the Act provides that the objects of Part VII of the Act, which relates to children, are to ensure that the best interests of children are met by:
· ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
· protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
· ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
· ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children;
· and that the principles underlying the objects are that, unless it would be contrary to a child’s interests:
· children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
· children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
· parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
· parents should agree about the future parenting of their children; and
· children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Determining what is in a child’s best interests
Section 60CC of the Act provides that the Court must consider the matters set out in s 60CC(2) and (3), described as the “primary considerations” and the “additional considerations”.
The primary considerations are:
· the benefit to the child of having a meaningful relationship with both of the child’s parents; and
· the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The additional considerations are too numerous to set out. However, I will make specific reference to them below, to the extent that each may be relevant.
Parental responsibility
Under s 61C of the Act, subject to any orders of the Court, each of the child’s parents has parental responsibility for that child.
Under s 61DA of the Act, the Court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility for the child unless there are reasonable grounds to believe that a parent of the child or a person who lives with that parent has engaged in abuse of the child or another child who, at the time, was a member of that parent’s family or that other person’s family, or family violence.
Equal time/substantial and significant time
Under s 65DAA of the Act, if a parenting order provides or is to provide that a child’s parents are to have equal shared parental responsibility for the child:
· the Court must consider whether the child spending equal time with each of the parents would be in the child’s best interests and is reasonably practicable and if it is consider making an order to provide for the child to spend equal time with each of the parents; and
· if an equal time order is not made or to be made the Court must consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and is reasonably practicable and if it is consider making such an order.
Section 65DAA(3) and (4) of the Act provide that a child will be taken to spend substantial and significant time with a parent only if the time the child spends with the parent includes both:
· days that fall on weekends and holidays; and
· days that do not fall on weekends and holidays;
and:
· allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child; and
· allows the child to be involved in occasions and events that are of special significance to the parent,
although regard may be had to other matters.
Section 65DAA(5) of the Act provides matters to which the Court must have regard in determining whether it is reasonably practicable for a child to spend equal time or substantial and significant time with each of the child’s parents including:
· how far apart the parents live from each other; and
· 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
· the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
· the impact that an arrangement of that kind would have on the child; and
· such other matters as the Court considers relevant.
Prior parenting plans
Section 65DAB of the Act provides that the Court is to have regard to the terms of the most recent parenting plan (if any) that has been entered into between the child’s parents if doing so would be in the child’s best interests.
Other provisions
The Act provides several other provisions which may apply in a particular case and to which reference will be made if applicable in this particular case.
Weight
Matters affecting weight are primarily for the trial Judge to attribute in the exercise of his or her discretion, subject to any error of law in that exercise.
Principles relevant to relocation proposals
High Court
In AMS v AIF (1999) 199 CLR 160 Hayne J made clear that an important probably essential step in the inquiry as to which parent should have custody of a child (to be read now as to with which parent a child should live) is to identify where the custodial parent intends to live, that being a decision for the parent not the Court; and that the question is not whether a parent has shown a good enough reason for wanting to move, which focuses attention on the parent, but which is better for the child, which focuses on the child, that question requiring attention to what benefits the child would have and what detriments the child would suffer from living with one parent in place A compared with the other parent in place B:
216. An important, probably essential, step in the inquiry into who should have custody of, and access to, the child is to identify where the custodial parent intends to live, for that will determine where the child lives and affect what contact the non-custodial parent can be expected to maintain with the child. But that is not to say that it is for the Court to decide where the custodial parent may live: that decision is to be made by the parent.
…
218. To translate the question into this form – has the mother shown a good, or good enough, reason for wanting to move – focuses attention upon the reasons and motives of the mother. But that is not the proper focus of the inquiry. The proper focus is which is better for the child – to be in the custody of the father (in Perth) or to be in the custody of the mother (in Darwin). That, of course, requires attention to what benefits will the child have, and what detriments will the child suffer, from being in the mother’s custody in Darwin… (emphasis added)
In the same case, Kirby J set out nine “general propositions” [141] or “general principles” [151] which he derived from the authorities [141] – [151], the third of which he discussed as follows:
144. Thirdly, 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. If it were otherwise, a universal rule would be established whereby the custodial or residence parent (usually the mother) would virtually always be obliged to reside in close proximity to the other parent (usually the father) so as to facilitate contact between the latter and the child. There is no such universal rule. (footnotes omitted, emphasis added)
In MRR v GR (2010) 240 CLR 461, the High Court said, in relation to s65DAA(1):
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in Mount Isa, Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.
…
19. The evidence before his Honour did not permit an affirmative answer to the question in s 65DAA(1)(b). It follows that there was no power to make the orders for equal time parenting. It was necessary for his Honour to proceed to consider whether substantial and significant time spent by the child with each parent was in the child's best interests (given that equal time was not possible) and whether that was reasonably practicable. That would require consideration of the mother being resident in Sydney. But without a finding as to practicability no conclusion could be reached. At the rehearing of this matter afresh, the necessary determinations will be made on the evidence as to the practicability of such orders, given the circumstances pertaining to the parties as they then stand. (bold emphasis and italics added)
Full Court
A relocation proposal needs to be considered and evaluated, so far as possible, in the context of the making of the necessary findings in relation to the s60CC matters and also in the context of s65DAA: Taylor v Barker (2007) FLC 93-345 at [60]. In McCall & Clark (2009) FLC 93-405 at [57]-[62] the Full Court referred to this necessity at [59]; and to the following analysis in Sealey & Archer [2008] FamCAFC 142 at [60]:
66. Again as was recognised in Taylor & Barker (supra, see in particular paragraphs 58 and 77-83), in a case which involves a proposal that there be a significant change in the place where a child lives, it is appropriate for a court in its application of s 65DAA, and particularly s 65DAA(5), to canvass the advantages and disadvantages of a proposal “to re-locate” the child. We would also expect that the court would have addressed the matters arising under s 65DAA(5) in the context of its consideration of relevant s 60CC matters.
67. In making the latter observation, we should say that we do not see anything said in Taylor & Barker as suggesting that a trial judge would ignore the relocation proposal when making the necessary s 60CC findings. On the contrary, the majority in Taylor & Barker said (emphasis added):
60. …It should be implicit in our conclusion in relation to this ground, that a relocation proposal should continue to be considered and evaluated, so far as possible, in the context of the making of the necessary findings in relation to the relevant s 60CC matters; however, as we will shortly explain, such a proposal now also needs to be considered in the context of s 65DAA…
62. … [G]iven that the concept of the child’s best interests is the determinative factor in the application of so many of the provisions of Part VII, and given that s 60CC(1) provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsection (2) (“primary consideration”) and subsection (3) (“additional considerations”) of that section, it would seem only logical that the Court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child’s best interests. (original emphasis)
Their Honours continued, in McCall & Clark (above):
61. No doubt frequently, as in the instant case, the non relocating parent’s proposal will be for an equal shared care arrangement, facilitating the consideration of matters under s 65DAA as one of the proposals, and not as an abstract exercise.
62. In our view, it is inevitable, given the provisions of the legislation, that the exercise to be undertaken will, on its face, involve dual consideration of some matters. For example, consideration of matters under s 60CC(3)(d) (the likely effect of any change in the child’s circumstances) and matters in s 65DAA(5)(a) and (b) and s 60CC(3)(e) (practical difficulty and expense of a child spending time with a parent) and s 65DAA(5)(a), (b) and (c) involve examination of similar criteria.
In Starr & Duggan [2009] FamCAFC 115 the Full Court at [33] –[37] referred to the “interplay” between the paramountcy principle and the “framework” of the legislation emphasising that inevitably there will be dual consideration of some matters in particular because the consideration of the s 60CC factors “does not take place in a vacuum” but in the context of the competing proposals. The Full Court said further, despite Taylor & Barker at [81]-[83], which seemed to set out a formulaic approach, that such is not intended, as not mandated, such that:
38. …[I]t is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:
· first make findings concerning the relevant s 60CC factors;
· then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
· then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.
39. Section 65DAA will provide a useful framework to consider the advantages and disadvantages, not only of the equal time and substantial and significant time scenarios, but also other outcomes which may be in the child’s best interests, including the proposal to relocate.
In Hepburn & Noble (2010) FLC 93-438 at [100] and [103] the Full Court re-affirmed these matters.
In Collu & Rinaldo [2010] FamCAFC 53, the Full Court at [374]-[382] emphasised the need, in relation to reasonable practicability, to undertake an analysis of the reasonable practicability of each of the proposals of the parties: [376], giving close attention to the matters in s65DAA(5).
The circumstance that the father’s primary case is that the child live with him in or near Brisbane, and the mother’s evidence that if there should be an order that the child live in or near Brisbane she would not move to C Town, makes pertinent also the following in Collu, in particular in relation to the sentence “The Mother would follow the child”:
378. In this case, the trial Judge also made orders that provided for the possibility that the Mother would not remain in Dubai and would return to Sydney. In our view, it was clear that the Mother would return to Sydney if an order was made that the child reside in Sydney as proposed by the Father. The Mother would follow the child. Thus, there also had to be consideration of the circumstances of the Mother living in Sydney. This, in turn, would have required analysis of a number of matters which we have already touched upon, such as the Mother’s opportunities for paid employment, accommodation and daily assistance with the care of the child. Again, we are reminded of what was submitted on behalf of the Father about the necessity for the Mother to engage in paid employment. In our view, her Honour did not undertake this analysis. (emphasis added)
Earlier, in D v SV (2003) FLC 93-137, the Full Court made clear that an applicant for relocation is not required to “justify” a proposed relocation [64]; and that it is essential that a trial judge give consideration to how the best interests of the children could be advanced in a particular case which, whilst not confined to competing proposals of the parties, nonetheless cannot be “manufactured” in the absence of relevant evidence, in the sense that due account must be taken of the fact that proceedings in the Family Court are conducted in the framework of an adversarial procedure familiar to the common law [pars 17-21].
I would add that the “less adversarial trial” concerning parenting proceedings, or “less adversarial process” concerning parenting proceedings, relates to procedure, not substance, and indeed recognises that parenting proceedings nonetheless in substance essentially are adversarial.
It is clear, further, that all of the relevant statutory matters must be considered in relation to all of the proposals of the parties.
The evidence
The father relied on his trial affidavit filed 1 May 2012; his updated trial affidavit filed 25 September 2012; and the affidavits of Ms M, his mother; Mr N, his father; Ms O (married to his brother Mr P); Mr Q, a friend; and Mr R, medical practitioner. He relied also upon a case information document filed 1 May 2012, and an undertaking filed by him on 16 November 2011 which, largely, reiterated his existing undertakings in relation to the interim parenting orders made on 16 November 2011. He relied also upon exs 1 and 2, being respectively a notice to admit facts 12 April 2012 and response 25 April 2012. The father’s trial affidavit filed 1 May 2012 referred to an annexure O, which was omitted from the affidavit, but became ex 8.
The mother relied on her trial affidavit filed 2 May 2012; her updated trial affidavit filed 3 October 2012; and the affidavits of Mr E, her partner; Ms S, her mother; Ms T, a friend; Ms U, her sister; Ms V, a friend; and Ms W, a friend. She relied also upon a case information document filed 2 May 2012.
The independent children’s lawyer relied on the affidavit of Ms D filed 18 January 2012, annexing her Child and Parents Issues Assessment 17 January 2012; and Ms D’s family report dated 26 April 2012 not annexed to any affidavit but which became ex 3; a case information document filed 1 May 2012; and to various Court orders namely those made on 16 November 2011, 31 January 2012, 23 February 2012, 3 May 2012 and 4 May 2012.
In addition, the parties relied on documentary evidence, exs 1-10.
It is not necessary to refer to all of the evidence. If in these reasons I should not refer to the evidence of a particular witness or parts of the evidence of any witness it ought not be inferred that it has been overlooked. All of the evidence has been considered carefully.
The statutory matters
The child’s best interests
I turn now to the statutory matters concerning the child’s best interests.
Section 60CC(2) – the primary considerations
Section 60CC(2)(a) – the benefit to the children of having a meaningful relationship with both of the child’s parents
The concept of “meaningful relationship” was examined by the Full Court in McCall & Clark (2009) FLC 93-405 at [108]-[122]. At [119] the Full Court concluded in favour of “the prospective approach”, accepting at [121] as appropriate the interpretation of “meaningful relationship” set out by Brown J in Mazorski & Albright [2007] 37 FamLR 518 and Bennett J in G & C [2006] FamCA 994. Thus, the Full Court concluded at [122] that the legislation requires a court to focus on the benefit to a child of a meaningful or significant relationship.
Section 60B of the Act provides that the objects of Part VII are to ensure the best interests of children are met by (amongst other things) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with their best interests and protecting children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. Plainly, one of these objects may impact upon the other.
There is present and prospective benefit to the child of having a meaningful relationship with both of her parents.
Ms D said that whilst the child sees the mother as her primary carer, she also has a strong bond and meaningful relationship with the father, who has involved himself with many aspects of her life, including pony club and other extracurricular activities.
Ms D said that if I should permit the child to relocate with the mother to C Town, it would be “increasingly difficult” for the child to maintain a meaningful relationship with the father, because of less frequent time which they would be able to spend together: family report, par 98.
Even so, Ms D said that the child has a “strong bond” with the father, which is a component of a meaningful relationship, and there is no indication that the strong bond would be diminished by the child living in Western Australia and spending time with the father during school holidays and mid term.
Section 60CC(2)(b) – the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse neglect or family violence
Ms D reported on the circumstance that the child, as the “only” child of each of her parents, is the “apple of their eye”: par 86; and that in the circumstance of there being an only child, “children in such cases can become the significant focus of their respective parents”: par 87; such that the parents “inadvertently seek the fulfilment of all their aspirations and needs upon the present and future outcomes of the child”: par 87; and (also at par 87):
… in doing so can create an enmeshed relationship with the child, whereby it is unclear where the parent ends and the child begins.
In her oral evidence, Ms D accepted the expression “double enmeshment” as accurately describing her assessment of each of the parent’s relationship with the child: family report pars 86 – 88; 91 – 93; 105.
The father expressed concern that if the child should continue to live with the mother, whether in Queensland or Western Australia, the mother’s attitude to him may be likely to interfere with the development of his paternal relationship with the child, by the continuance of “unsubstantiated” allegations of his causing her harm, as a result of which, in his view, the child has suffered and will continue to suffer emotional harm from parental conflict “caused” by the mother.
The mother initially, as I have mentioned, mounted a case in terms of her notice of risk of abuse. During the trial however, the mother altered her position, after hearing an audio recording of an interview with the child on 7 February 2012 by Police Officer X (ex 5); see also the transcript of the audio interview (also ex 5); and after examining other evidence, eg ex 6, bundle 9, pp 50 – 65, being Department of Community Services records; and a letter from the Department’s Child Safety Officer to the father 28 March 2012 advising the father (father’s trial affidavit, annexure N):
… I am writing to advise that the investigation and assessment has now been completed and the outcome has been recorded as Unsubstantiated Child Not In Need of Protection. This means that there was limited evidence to indicate that the child has suffered harm at a detrimental or significant nature, as defined by the Child Protection Act 1999. It is assessed that the child is not at an unacceptable risk of future harm. …;
The mother’s altered case, as I have mentioned, was that she was “not running any case of actual sexual abuse” or of “unacceptable risk of sexual abuse”, but that she maintained her case of “risk of emotional abuse”.
In her oral evidence, the mother described this abuse as “emotional, mental, inappropriateness and physical”, the “emotional and mental” abuse being “mind games” played upon the child by the father, such that the child would say to her after seeing the father “my head feels weird”; and in relation to “inappropriateness and physical”, described as including an occasion when (allegedly) the father “pushed the child’s hands to the ground and into the dirt”, with the child subsequently reporting to the mother “fear and nightmares” concerning the father.
The mother’s description of the alleged risk of emotional abuse included, in her oral evidence, that the father does not understand proper “boundaries” between himself and the child, in relation to his “questioning her constantly”, according to the child’s reports to the mother, and that when the child asks the father to stop he is “not stopping when she asks him to stop things she doesn’t like which will cause her to not speak up again if she is not heard”. The mother said further that the child has reported to her that the father has “long talks/questioning” and “mind games” which he plays with the child of “ignoring the child” which the child calls “the look of disapproval”. The mother said further that the child “doesn’t feel like she is a little girl anymore”, relating this to “the things he has done to her exceeding modesty boundaries”, reporting in her oral evidence that the child said that even after the Queensland Police Service investigation (ex 5) “it stopped then it started again”.
The mother summarised her concerns in her oral evidence of the risk to the child in the “father’s household”, that is, if the child should live with the father, that he would continue such emotional abuse of the child, and added further “if I have the child for longer periods, I can then support her mentally and emotionally and in all ways to be strong” adding “so as to minimise the risk”, in her belief, of the father’s emotional abuse of the child.
During the trial, I had the opportunity fully to hear the audio recording of Police Officer X’s interview with the child, and I am satisfied, as I think I observed at the time, that there seems to be innocent explanation for all matters the subject of prior concern as to whether there had been actual sexual abuse or current or ongoing potential risk of sexual abuse.
There is one matter however on which I will make observation. That is the father’s rubbing of the child’s “chest”, when sore, possibly in relation to the commencement of the child’s breast development, when the father and the child were together alone on a sofa. I note however that the father said, which I accept, that his “fingers” did not touch the child’s developing breasts because he caused the massage for her “soreness” to be conducted “through a pillow”.
There is however here a question of boundaries, as raised by the mother as a concern. In my view it is utterly inappropriate for a father to touch or massage a young female child at or near her breast development area, even through a “pillow”; and that the only proper course would have been for the father to recommend to the child, in relation to her developing breasts, that she discuss this and any relevant soreness with the mother.
However, I am satisfied, on the present evidence, that none of the complained of events amounted to sexual abuse by the father of the child, rather than his misunderstanding “boundaries”, in relation to her pre-pubescence, not only in relation to her breast area but also in relation to the child’s expressed concerns of the father showering with her, detailed in the notice of risk of abuse, the interview of Police Officer X and other evidence.
Leaving aside the physical aspects of the father’s lack of understanding of necessary physical boundaries between himself and his young daughter, the mother spoke also of the father having played “mind games” with her (that is, the mother) and, as I have mentioned, expressed concern of the father subjecting the child to similar “mind games”.
It seems to me however, having carefully considered all of the evidence at the trial (and I would reiterate with no regard to the mother’s new allegation the subject of her contravention application) that there seems no reason to conclude that the child needs protection from physical or psychological harm from being subjected to or exposed to abuse by the father, in respect of the matters canvassed; although, plainly, the father needs to learn and understand the necessity for physical boundaries between himself and his young daughter.
I turn now to a more important matter concerning the child, which relates to mention by her of potential suicide.
In this regard I refer to the father’s affidavit filed 25 September 2012, par 15, of the child reporting to him “I would rather be dead”; and of the affidavit of Ms W that the child threatened to her that she wished to “jump off” a wall “because she feels like she has nothing to live for”.
However, at the time of the trial there did not appear to be any current threat by the child, or presentation by her, of such a drastic result of the parents’ conflict about her.
Hopefully, the parents will be able to address their respective issues, which I will soon mention, so that the child should no longer contemplate an end to her life, as the only solution for her caused by the dramatic parental conflict described by Ms D, in her family report, which I will come to in due course.
Ms D reported that the child is conflicted, which is not at all surprising by the parents’ conflict between themselves. Ms D reported (family report, par 96):
96 . Like most matters of this nature, there appears to be no grounds on which the parents are prepared to compromise nor does it appear that either parent has suitably endeavoured to consider and appropriately explore an alternative proposal to their own to ensure that there is a balance between the child’s interests and their needs and aspirations. It would appear that the child is made to ‘pay the price’, to use a cliché, for her parents’ unwillingness to forfeit their own needs. (emphasis added)
Ms D then said, even more importantly:
103. I appreciate that from [Mr Wickenby’s] perspective he views [Ms Wickenby’s] behaviour, in terms of the constant allegations, as being less than desirable means to support her agenda to relocate, and thus not a conducive environment to parent a child. If accepted as true, I am of the view that this behaviour is likely to subside once the Court has made a determination as there will no longer be an agenda to push, and as such no concerns about the home environment. It is likely that there will be a return to pre July 2011 parenting.
As to the mutual allegations of “emotional abuse”, or “emotional harm”, it is my view that such is caused by both parents insisting that the child live with him/her, caused by their own conflicted relationship, aided, as described by Ms D, by the circumstance that the child is “much adored” by each of her parents and “the apple of their eye”: family report, par 86; and that (family report, par 87, partly extracted above):
Children in such cases can become the singular focus of their respective parents and much emphasis can be placed upon their being. Parents inadvertently seek the fulfilment of all of their aspirations and needs upon the present and future outcomes of the child, and in doing so can create an enmeshed relationship with the child, whereby it is unclear where the parent ends and the child begins.
In my view, it is a responsibility of both of the child’s parents to address their relationship with her, as parents, and to cease to “fight” about her.
I would conclude, overall, that by each parent’s enmeshment with the child, identified by Ms D, there is no greater risk of emotional abuse or emotional harm if the child should live with either the father or the mother, but that each, most importantly, must be mindful and vigilant that each of them currently, and since their separation, has caused, as assessed by Ms D, the child being made to “pay the price” for her parents’ unwillingness to forfeit their own needs.
On any view, this is an appalling circumstance for the child.
Section 60CC(3) – the additional considerations
Any views expressed by the child
Ms D said (family report, par 88), that at the time of the Child and Parents Issues Assessment, she commented on the possibility of both parents having an enmeshed relationship with the child, and that she was “still of this view”. She assessed further that whilst such is “not necessarily abusive in itself, it has implications for the development of the child” and “can become increasingly dysfunctional” when parents are in dispute as it creates “competition” for the child and her affection, “to ensure the parents have their own personal needs met at the detriment of the child”.
Ms D continued (par 89):
89. If an accurate observation, it is the context in which the child and her views and wishes need to be appraised within. They can not be viewed as being genuinely her own but rather symptomatic of this aforementioned dynamic. Such a dynamic can place enormous responsibility or pressure upon a child as there can be expectations, self driven or parentally enforced, about ones behaviour, level of achievement, and nature of relationship with parents. Consequently, this can create a need to please and a subsequent fear of disappointment if the latter is not achieved. It is thus my view that little weight should be placed on the assertions of the child with respect to the future parenting arrangements. (emphasis added)
Ms D’s evaluation, at pars 88 and 89, was set against the background of her family report at pars 56 – 85, tending to demonstrate, I think, that as at 18 April 2012 (the date of interview) the child predominately expressed that she wanted to live with the mother in Western Australia, but that there were several aspects of this which the child had not considered. This however is to be expected of a child then 9 years (now 10 years).
The child’s expressed views to Ms D are important to read and consider. However, to some extent they gain force when considered also in light of what the child expressed to Police Officer X in the interview on 7 February 2012.
It is instructive I think not just to extract, but to set out the relevant parts of the transcript of that interview (ex 5), T 53/15 – 59/1. This is important because at the trial the mother acknowledged that when speaking with either the mother or the father the child made “mirror statements” of wanting to live with each, that is, saying to the mother that she favours the mother and saying to the father that she favours the father, whereas Police Officer X, like Ms D, was a “neutral” person for the child.
THE CHILD: Yes. Not really.
PO X: Okay. That’s okay. That’s fine. That’s all right. Okay. So what do you want to happen out of this? Like in terms of this stuff with your dad, what do you want to happen? You tell me.
THE CHILD: I just want it to stop.
PO X: Okay. So you would like me to talk to dad? No?
THE CHILD: Well, I don’t - - -
PO X: How do you think it’s going to stop if we don’t talk to him about it?
THE CHILD: I don’t know. Just don’t tell my dad, though.
PO X: Yes, but obviously for this to stop, and you’re obviously uncomfortable with it.
THE CHILD: Yes.
PO X: Okay. Maybe dad doesn’t know you’re uncomfortable with it, so how is he supposed to know to stop unless we tell him?
THE CHILD: I don’t know.
PO X: Do you know what I mean?
THE CHILD: Yes.
PO X: So I think we probably have to bring it up with dad.
THE CHILD: Mm.
PO X: And have a bit of a chat with him.
THE CHILD: Can you do it in a way that he doesn’t get grumpy?
PO X: That’s exactly right. So then it can stop for you so that you’re not uncomfortable.
THE CHILD: Okay.
PO X: Because you said that that’s pretty much – that’s the things that make you uncomfortable.
THE CHILD: Yes.
PO X: Do you like being at dad’s? Like, apart from this stuff that makes you uncomfortable, do you like being there?
THE CHILD: Yes. I like seeing my dad, yes.
PO X: Yes?
THE CHILD: But I would like to live at my mum’s when we move to Perth.
PO X: Sorry, hun? Your mum is - - -
THE CHILD: My mum is moving to Perth.
PO X: Really? When is that happening?
THE CHILD: I don’t know.
PO X: Okay.
THE CHILD: I’m not sure, but I want to – I want to go with her.
PO X: Yes.
THE CHILD: But I’m not sure. I don’t really want to – I’m still building up the courage to tell my dad.
PO X: Okay. Well, it’s probably not your job to tell dad. That’s probably mum’s job more, don’t you reckon?
THE CHILD: But then he thinks mum’s telling .....
PO X: Okay. That’s probably one of those things as well that’s probably more for mum and dad to deal with themselves. I think that’s probably a little bit unfair if they put that on you.
THE CHILD: Okay.
PO X: Because you’re only nine, so that has got to be their stuff and they can’t make you feel bad about that because that’s really unfair. That’s their stuff for them to work out.
THE CHILD: Okay.
PO X: Yes. Okay. So mum is moving to Perth. You don’t know when. Why is she moving to Perth?
THE CHILD: Because she has got a boyfriend that lives there.
PO X: Has she?
THE CHILD: Yes.
PO X: Okay. All right. So she’s moving to Perth. You want to go with mum.
THE CHILD: Mm.
PO X: Dad doesn’t know she’s moving to Perth yet.
THE CHILD: I don’t know if I’m allowed to go with her. Dad knows, I think, but I don’t know if I’m going. I don’t know if I’m allowed to, so yes.
PO X: Okay. So when you say you don’t know if you’re allowed to, who is the person who lets you go?
THE CHILD: Well, I have to get my dad to let me go there.
PO X: Okay. All right.
THE CHILD: Yes.
PO X: Okay. So going back to being at dad’s, and let’s take Perth out of the equation at the moment.
THE CHILD: Yes, please. Not at the moment; the whole time.
PO X: Yes. Okay. So you like your dad?
THE CHILD: Yes. I like seeing my dad, yes.
PO X: You said you liked seeing your dad, and apart from this stuff that makes you uncomfortable - - -
THE CHILD: Yes.
PO X: - - - do you like being at his house?
THE CHILD: Yes, it’s fine.
PO X: Okay. What’s the best thing about dad? What’s your favourite thing about dad?
THE CHILD: I don’t know.
PO X: You don’t know? That’s okay. That can sometimes be a bit of a hard question.
THE CHILD: I don’t have anything.
PO X: Yes. You don’t have one thing that’s a favourite thing?
THE CHILD: No.
PO X: Okay. What kind of stuff do you do with dad?
THE CHILD: The hobby we have is riding horses, going to the club.
PO X: Yes. Okay.
THE CHILD: That’s the hobby we have.
PO X: Yes. That’s a great one too. Okay. So when do you do that?
THE CHILD: Whenever gymkhanas, pony club, anything is on.
PO X: Yes. Okay. And what kind of stuff do you do with mum?
THE CHILD: My hobby with mum is dancing.
PO X: Okay. All right.
THE CHILD: That’s probably the most hobby I have at mum’s.
PO X: Yes. Okay. So what’s your favourite thing about mum, or is that a hard question too?
THE CHILD: I’ve got a lot of things for mum, so.
PO X: Okay. Tell me about those.
THE CHILD: How we watch movies and we dance and we do crazy stuff.
PO X: Yes.
THE CHILD: We go out shopping.
PO X: Yes.
THE CHILD: And go look at shoes in Harbour Town and stuff.
PO X: Yes. I like Harbour Town too. It’s good, isn’t it?
THE CHILD: Yes.
PO X: You do lots of shopping there and get lots of stuff?
THE CHILD: Mm.
PO X: Yes.
THE CHILD: Lot expensive, though. I was going to go – I was going to go there and get a dance bag, but it was expensive.
PO X: Okay. So let me see, so you like your dad.
THE CHILD: Mm.
PO X: You like your mum.
THE CHILD: Mm.
PO X: You can’t think of a favourite thing about dad.
THE CHILD: No.
PO X: But you can think of lots of favourite things about mum.
THE CHILD: Yes.
PO X: And you like going to dad’s, yes, and you like being at mum’s?
THE CHILD: I love being at mum’s.
PO X: You love being at mum’s. Okay. Is there anything else that you can think of that you would like to tell me or that you want to talk about that you can’t talk about maybe with mum or with dad? Anything that you’re worried about or stuff like that? No? Is everything else good? Yes? Okay. All right.
THE CHILD: Are you going to tell mum this?
PO X: Mum – I mean, obviously, mum knows some stuff because you’ve told mum some stuff.
THE CHILD: Yes.
PO X: Yes. Okay. The other stuff about – and I’m not going to talk about anything like we’ve just talked about, about, you know, what you like and stuff like that and about the whole Perth thing about that. I’m not going to tell mum any of that stuff because that’s stuff that we talked about.
THE CHILD: Yes.
PO X: That’s our own stuff.
THE CHILD: Yes.
PO X: Okay. Mum doesn’t - - -
THE CHILD: And are you going to talk about, like, that mum doesn’t know? Are you going to tell - - -
PO X: Well, I don’t think you’ve told me – that other stuff with dad, I don’t think you’ve told me anything that mum doesn’t already know.
THE CHILD: No.
PO X: Yes.
THE CHILD: Just, yes.
PO X: So like the other stuff that we’ve talked about, like this kind of stuff that we’ve just talked about, I’m not going to tell mum because there’s no reason for mum to know that you feel pressure about Perth and all that kind of stuff with dad.
THE CHILD: Yes.
PO X: You said you feel with dad trying - - -
THE CHILD: Yes. I’m scared of - - -
PO X: Yes.
THE CHILD: - - - telling him.
PO X: You’re scared of telling him, yes. (emphasis added)
It seems to me that, in summary, it is a fair assessment that the child expressed that she likes to see the father and to spend time with him at his home; but was unable to express anything positive about being at his home. What struck me, when listening to the audio tape, was the child’s statement “I’m still building up the courage to tell my dad” that she wanted to move to Perth to live with the mother; and that she was “scared” of telling him that. What struck me also was that the child said that whilst she “likes” to see the father, she “loves” being at mum’s. The child’s tone of voice on the audio tape at various parts persuaded me that the parts highlighted are likely to be the genuine wishes and views of the child.
However, the child’s age, and the state of conflict between the parents, has effect I think that I should accept Ms D’s opinion that little weight should be given to her views as to her future parenting arrangements.
Further, I appreciate that in the transcript of the child’s interview with Police Officer X, she seemed to regard that the mother’s move to Perth as a “fait accompli” (see also family report, par 83) such that perhaps the child was of the view that if she also could not move to Perth she could not live with the mother.
“Little weight” however does not mean “no weight”. The child’s views thus are not to be ignored, and some weight must be given to them, as may be appropriate, along with all of the other relevant s 60CC matters.
I note that in ex 6, p 18, there is a school “informal discussion” between the father and a staff member, 16 May 2012, including:
… the child has been continuously talking to him about how she does not want to go to Western Australia with [Ms Wickenby] and instead wished to stay with him and visit [Ms Wickenby] in Western Australia when possible.
…
However this was information to the staff member apparently by the child’s father, such being consistent with Ms D’s observations of the child expressing differing opinions to each parent, to please each, or not to disappoint each.
The nature of the child’s relationships
I have canvassed sufficiently the nature of the child’s relationship with each of her parents.
It appears on the evidence that the child already has developed a fond relationship with Mr E, and his child K.
At the L School, the child has developed very close relationships, but she said candidly to Ms D that if she went to Western Australia she would “probably miss them all but not so much that I will be crying so much”: family report, par 69.
On the child’s 4 visits to C Town, it appears that already she has made friends, and, given her age, there is no reason to think she would not settle into similar age group relationships as with her current friends at the L School.
Willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent
Whilst both parents profess willingness and ability to facilitate and encourage a close and continuing relationship between the child and the other parent, their own conflict, and the enmeshment of each with the child, seems self focused: family report, par 87.
The mother’s proposal that the child live with her in Western Australia, it seems to me, is not promoted by any “agenda” to deprive a close and continuing relationship between the child and the father. Rather, having conducted the trial and heard all of the evidence, I am convinced that the mother’s motivation is genuine, as is her intention to marry Mr E in December 2012.
Ms D said in her report that the mother’s relationship with Mr E was “a predicament of her own making”: family report, par 100. In my view, as I indicated earlier, this is a bit harsh. As is made plain in the authorities, each party is entitled to get on with his and her own life. Ms D’s assessment, it must be noted, was made in April 2012, wherein at that stage Mr E was regarded by Ms D as the mother’s “boyfriend”. However, Mr E said, which I accept, that already by January 2012 he and the mother had decided to marry.
It is impossible for me to conclude that the mother “concocted” any deliberate “agenda” concerning her relationship with Mr E as ingenuous, so as to deprive a close and continuing relationship between the child and the father. Indeed, in her various proposals, it seems to me that the mother has “bent over backwards” to ensure that if she is permitted to relocate the child’s residence to C Town in Western Australia, there be as much time as possible spent between the child and the father, including physical time and meaningful communication, such that she has the willingness and ability to facilitate and encourage a close and continuing relationship between the child and the father.
Equally, I am satisfied on all of the evidence that the father has the willingness and ability to facilitate and encourage a close and continuing relationship between the child and the mother, if the child should live with him, or if the mother, according to his case, should move to C Town Western Australia without the child. However, this last matter is academic, as the mother made clear at the trial that unless she is permitted to relocate the child to C Town Western Australia, then she, the mother, will remain in South East Queensland.
The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of the parents or any other child or person (including any grandparent or other relative of the child) with whom he or she has been living
Ms D said:
94. Ideally, the optimal parenting arrangement for the child is one that facilitates her relationship with both parents by allowing unimpeded access to each of them. For this to occur, this would mean the parents living within a close range of each other. In this matter, it would appear that until recently the child was the subject of such a parenting regime and her relationship with both parents was supported and fostered without obstruction by the other. Recent events have seen this be called into question and the proposal of [Ms Wickenby] goes to further unhinge it.
95. [Ms Wickenby’s] proposal to relocate with the child to [C Town] is not conducive to the ideal and has, inherent in it, elements (e.g. long distance and long periods of separation) that risk the child maintaining a meaningful relationship with both parents. It places her in a ‘no win’ situation whereby she will likely experience the loss of one of her parents; which one, will be dependant upon where it is eventually decided that the child resides.
Then however Ms D said:
99. the child has an established life in South East Queensland; she is part of a school community, extended paternal and maternal family, and a wide network of friends via her participation in dancing and pony club. [Mr Wickenby] fosters these connections as he shares them with her when spending time together. Relocating will remove the child from all of this, and although it is possible that the child can establish similar connections in [C Town], it will be at the expense of the relationship with her father whose involvement in her life will contribute to her growing sense of self and worth.
Plainly, a change for the child to live in C Town Western Australia would be a significant change in her “geographical” location, a long distance from South East Queensland; a change of school; and a change from her familiar pony club, ballet activities and school peers.
However, the mother placed in evidence that, in relation to the child’s change of school, there is an available seemingly excellent school for her in C Town: ex 9; opportunity for her to join a new pony club (as to which there was evidence at the trial); and of course the child would experience a change of school peers. I have mentioned already that the child has stayed with the mother in C Town on 4 occasions, so that already she has been introduced to that locality and, according to the mother, has very much enjoyed her time there, engaging in similar activities to those familiar to her in South East Queensland.
Plainly, if I permitted the child’s relocation to C Town, the child would see much less of the father, but nonetheless would have the opportunity to spend time with him in South East Queensland in her Western Australia school holiday periods, and at least mid term in Western Australia, if not more frequently; and telephone and Skype opportunity, in order to maintain the strong meaningful relationship which they already have.
In this regard, I reject Ms D’s view that a move of the child to C Town, Western Australia would have a detrimental effect on the child’s meaningful relationship with the father. In particular, already a “strong bond” is indicated, on the evidence, including Ms D’s evidence, and there is no reason to think that the “strong bond” would break by the child spending less time with the father than presently, or if the child should not remain living in South East Queensland.
Practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
Plainly, if I should permit the child to relocate with the mother to C Town Western Australia there would be practical difficulty and expense of the child spending time with the father.
Basically, the parties at the trial seemed to be in agreement to share the costs of flights for the child between Perth/Brisbane return for the child to spend time with the father, if I should permit the relocation.
It was stated from the Bar table, without demur, that Brisbane/Perth is a 5 hour flight, and that Perth/C Town is an 8 hour drive or a 1½ hour flight.
As I understood the evidence at the trial, the mother offered to meet all expenses for the child to move from C Town to Perth in order to fly Perth/Brisbane and similarly to meet the child’s expenses on return, from Perth to C Town, whether that be by flight or motor vehicle.
Overall, it appears to me that the matter of practical difficulty and expense, if the child should live with the mother in C Town, is a matter which the parties are able to absorb.
The parties’ capacities to provide for the child’s needs, including emotional and intellectual needs
I have dealt already with the parties’ capacities to deal with the child’s emotional needs.
Both can provide parenting for her schooling and extra curricular needs and activities.
As a young female child, pre-pubescent, she has shown sensitivity to the subject matter of “bras” with her father: family report, par 85.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant
The child is academically bright and described as a very intelligent girl mature for her years.
In other evidence however there was reference to her being “sooky”.
She enjoys ballet, pony club and other extra curricular activities and has close relations with her girlfriends.
She is caught in her parents’ “double enmeshment” concerning her.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Both parents love the child. Both wish actively to parent her and to assume the responsibilities of parenthood.
In relation to the mother, it is notable that she made clear that if the child’s residence not be relocated to C Town, then even though she proposes to marry Mr E, she would continue to live in or near Brisbane so as to parent the child. On any view this demonstrates a very high level of parent commitment to a child.
Family violence involving the child or a member of the child’s family or family violence order
There do not appear to be indication of violence or family violence orders.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
If I should order that the child live with the mother, but not permit the mother to relocate the child’s residence to C Town, such that presently the mother would continue to live in South East Queensland with the child, such would create the circumstance, at least as postulated by the independent children’s lawyer, that after the marriage in December 2012 (or whenever it may occur) there would be constituted a significant change in circumstances which potentially could warrant a new trial.
There is no reason to doubt the evidence of the mother and Mr E at the trial that they proposed their marriage to take place in December 2012.
It seems to me, in all of the circumstances, that an order that the child live with the mother, but the mother not be permitted to relocate child’s residence to C Town, very much is an order likely to lead to the institution of further proceedings in relation to the child, after the marriage.
Conversely, if I should order that the child live with the mother in C Town, such would not be likely, on present indications, to lead to further proceedings.
If I should order that the child live with the father in South East Queensland, the mother may be likely to continue to mount fresh allegations against the father in relation to her concerns, which I accept to be genuine, rather than an “agenda”, as to his “mind games” with the child and lack of proper boundaries concerning her.
Discussion and conclusions
Parental responsibility
It is proper to commence with this subject matter, because of the presumption in s 61DA(1) that it is in a child’s best interests for the child’s parents to have equal shared parental responsibility for the child, and if such an order is made or to be made, the necessity to consider whether an equal time order is in the child’s best interest and reasonably practicable, and if it is not, whether a substantial and significant time order is in the child’s best interests and reasonably practicable: s 65DAA(1) and (2).
The presumption in this case is not ousted by any of the matters in s 61DA(2), and there are no evidentiary matters to rebut the presumption under s 65DA(4).
Thus, the presumption applies.
At the trial, the mother initially proposed that she have sole parental responsibility. However, on 8 October 2012 the independent children’s lawyer provided proposed draft orders including by pars 1 – 5 that the parties have equal shared parental responsibility for the child in relation to the major long-term issues. Mr Laws of Counsel said on that date that the mother had no challenge to orders 1 – 5 as proposed by the independent children’s lawyer.
The father in his written submissions made clear that he also adopted the draft orders proposed by the independent children’s lawyer in relation to equal shared parental responsibility (but wished also that there be the “additions” a – d referred to above which are more akin to restraint orders than parental responsibility orders).
Despite the mother’s stated position on 8 October 2012, on 27 November 2012 Mr Laws stated that the mother sought an order for sole parental responsibility and indeed wrongly stated that the mother had maintained that position throughout the trial: Transcript 27 November 2012, T4/25 – 5/15. As said, on 8 October 2012 Mr Laws expressly stated that the mother had no challenge to the independent children’s lawyer’s proposed orders 1 – 5 relating to equal shared parental responsibility.
I assume this to have been a genuine error, rather than an opportunistic change on 27 November 2012 for the mother to again seek sole parental responsibility because I had said that I would make final orders that the child live with her and that she may relocate the child’s residence to C Town.
Leaving that aside however, the presumption applies.
Further, even leaving aside the presumption there is no reason in this case to deprive the child of the benefit of each of her parent’s views and wishes in relation to the major long-term issues concerning her and accordingly even if open to me I would reject that an order for sole parental responsibility would be in the child’s best interests.
I will order thus in the terms proposed by the independent children’s lawyer.
Is an equal time order in the child’s best interests
The circumstance that I will order equal shared parental responsibility has effect that I must consider whether an equal time order is in the child’s best interests.
However, as neither party, nor the independent children’s lawyer, nor the family report writer proposed an equal time order, it is not necessary that I further consider whether such would be in the child’s best interests, even if both the mother and the father lived in or near Brisbane.
Reasonable practicability
In these circumstances, it is not necessary to consider whether an equal time order is or would be reasonably practicable.
Is a substantial and significant time order in the child’s best interests
Substantial and significant time is defined in s65DAA(3) and (4), as applying “only if” the time a child spends with a parent includes both days that fall on weekends and holidays and days that do not fall on weekends and holidays and allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child and allows the child to be involved in occasions and events that are of particular significance to the parent although regard may be had to other matters.
This is the crux of the matter, given that the father’s revised proposal, the mother’s alternative proposal and the independent children’s lawyer’s proposal all amount to the child living with one parent and having substantial and significant time with the other parent.
Ms D’s recommendation, somewhat unusually, was put in the context of whether the child’s best interests would be met by a “geographical” order, rather than whether the child’s best interests would be met by living with the mother or the father having regard to their own particular circumstances. Thus, Ms D said (par 99):
99. the child has an established life in South East Queensland; she is part of a school community, extended paternal and maternal family, and a wide network of friends via her participation in dancing and pony club. [Mr Wickenby] fosters these connections as he shares them with her when spending time together. Relocating will remove the child from all of this, and although it is possible that the child can establish similar connections in [C Town], it will be at the expense of her relationship with her father whose involvement in her life will contribute to her growing sense of self and worth.;
and in that context recommended that (par 107):
107. … the child “remains in South East Queensland” with her mother …
and spend time with the father.
However, in the High Court authorities to which I have referred:
· It is not for the Court to decide where the custodial parent may live: that decision is to be made by the parent: AMS [216]
· The proper focus (where parents live or wish to live in separate places) is – which is better for the child – giving attention to what benefits the child will have and what detriments the child will suffer, either way: AMS [218]
· A statutory instruction to treat the best interests of the child as the paramount consideration does not oblige the court making the decision to ignore the legitimate interests and desires of the parents: AMS [144]
· 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: AMS [144]
· If it were otherwise a universal rule would be established whereby the custodial or residence parent … would virtually always be obliged to reside in close proximity to the other parent … so as to facilitate contact between the latter and the child … There is no such universal rule: AMS [144]
· Section 65DAA(1) (and inferentially s 65DAA(2)) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be [substantial and significant time] spent by the child with each parent: MRR [15]
· There must be a practical assessment of what is feasible: MRR [15]
· Regard must be had to the circumstances of the parties as they then stand: MRR [15]; [19].
As they stand, the practical reality is that the mother and Mr E, according to the evidence, will be married in December 2012.
Usually, married couples live together.
In this case, the mother said that if the relocation she seeks for the child is not permitted, she will not live with her husband in C Town, but will stay in South East Queensland, which makes pertinent the “The Mother would follow the child” passage in Collu [378].
However, the High Court in MRR made clear that it is “the” circumstances of “the” parties which is required to be considered.
If I should conclude that the child should live with the father and, according to the mother’s “Collu” statement that in that event she would not move to C Town there would be no difficulty in the child spending substantial and significant time with the mother as proposed by the father.
But if I should conclude that the child should live with the mother, as recommended by Ms D, and urged by the mother and the independent children’s lawyer, then the question would become not one of whether it is desirable that the child spend substantial and significant time with the father but whether it is feasible having regard to “the” circumstances of “the” parties, that is, the mother and the father; and then, having assessed the child’s best interests in that context, the next question would become whether the spending of substantial and significant time with the father would be reasonably practicable.
Thus, as I did in Carlyle & Muldoon [2011] FamCA 51 at [265] ff (upheld by the Full Court: Muldoon & Carlyle [2012] FamCAFC 135), I first will consider the child’s best interests in respect of with which parent the child should live; and if that parent be the mother, whether the child’s best interests will be met by living with the mother in C Town or in South East Queensland.
Having regard to all of the statutory matters I am required to consider, the evidence, the submissions and the views of the family report writer, I have concluded firmly that the mother is the parent with whom the child should live, primarily because according to Ms D the child sees the mother as her primary carer. Further, as a young female child, pre-pubescent, she has certain “sensitivities”, as mentioned, in relation to discussing female matters with the father. There are also the “boundaries” issues which I have discussed. Further, although as I have mentioned the circumstances of the case are such that little weight should be given to the child’s expressed views, they are not such as to be ignored, particularly as expressed to Police Officer X.
Accordingly I am satisfied that the child’s best interests will be met by living with the mother.
As to whether the child should live with the mother in C Town or South East Queensland, I need to consider the reality that her proposed new husband lives there, and for reasons which I accept he is unable to move to South East Queensland, but in the context also of her willingness to remain in South East Queensland if I should not permit her to relocate the child’s residence to Western Australia.
If the mother did not move to C Town she would be in the unreasonable position of not being able to live with her proposed new husband. The High Court in MRR emphasised that the Court should have regard to “the” circumstances of “the” parties. Further in AMS at [144] Kirby J emphasised that a statutory instruction to treat the best interests of the child as the paramount consideration does not oblige the court making the decision to ignore the legitimate interests of parents.
If the child should live with the mother in South East Queensland, such would not be practical or realistic having regard to the mother’s circumstances as she would be required to not live with her new husband, and thus would not be able to get on with her planned life.
Analysis of benefits and detriments of the child living with the mother in C Town or South East Queensland
If the child should live with the mother in C Town she would become part of a family unit comprising the mother, Mr E, and K when he visits. There is also the extended E family, to which I have referred. There is no reason, on the evidence, to think that the child readily would not, in C Town, engage in pony club and ballet.
Ms D said that if the child should live with the mother in C Town such would be detrimental to the child’s relationship with the father. However, I have rejected this, because the child and the father have a strong bond; and the mother’s proposal for holiday time and mid term time as set out earlier in these reasons is sensible.
If the child should live in South East Queensland, the child would see more of the father. However, the conflicted situation of the mother and the father, both living in South East Queensland, with the child living with the mother and spending time with the father would be the same as before the trial, with nothing advanced, nothing solved and the likelihood of the parent’s intense conflict continuing to impact upon the child. Indeed, in relation to par 105 of her family report, Ms D clarified that by “change of residency” she meant not from Queensland to Western Australia but from the mother to the father, and her oral evidence agreed that if the child should live in South East Queensland, because a change of residence from the mother to the father in Queensland would not change the conflict between the parties, there would be no benefit to the child of moving residence from the mother to the father. Thus, if the child and the mother should live in South East Queensland, as I have said, nothing would be advanced, nothing solved.
I have concluded therefore not only that it is in the child’s best interests to live with the mother, but that the relocation of the child to C Town should be permitted, as being in the child’s best interests, even though that will have the effect that the child will not be able to spend substantial and significant time with the father, as in that event, by the distance the parties will live from each other such could not be reasonably practicable. Further, as to reasonable practicability, there is no evidence to suggest that the parties have any current or future capacity to implement an arrangement for the child to spend substantial and significant time with the father while the mother and the child are living in Western Australia; nor of the impact of any such arrangement on the child: s 65DAA(5).
In this regard however it is salient to again observe, as the Full Court held in MRR at [15] s 65DAA(1) (and inferentially s 65DAA(2)) are not concerned whether it is desirable that there be [substantial and significant time] spent by the child with each parent, but that those provisions are concerned with “the reality of the situation of the parents and the child”.
I have been greatly assisted by many of Ms D’s observations. However, in relation to her ultimate recommendation, as is often observed, there is “no magic in a family report” and in this particular case I have had the advantage of hearing all of the evidence in the trial conducted in October. It has never been the case that the recommendation of a family report writer should replace judicial determination according to the legislative pathway: Hall & Hall (1979) FLC 90-713; Hanrahan & Silver [2010] FamCAFC 257 at [136]. I have endeavoured to explain my reasons for concluding differently from Ms D’s recommendation.
Interim orders
On 27 November 2012, after discussion as to whether the existing interim orders would stay in place until the matter is next in Court I was reminded that the existing interim orders for the child’s time with the father during school term could not take effect: T3/28; T5/15 – 30.
Accordingly, I invited the parties to bring in consent interim orders in particular concerning the child’s school terms.
While preparing these reasons for judgment however it seemed to me that to shorten matters I could order, as I propose to do, that the child spend all such time with the father as may be agreed during school terms, but failing agreement, 4 days at approximately mid term, with changeover at Perth, as canvassed during the trial and as seemingly at this stage a viable order on the interim basis.
I will include in the interim orders holiday time as discussed at the trial as being suitable in the event that I should order the child live with the mother at C Town. However, as in this current Christmas school period the child will need to settle at C Town before commencing her new school year, the interim orders I will make include that the holiday time commence at Easter 2013.
If the parties come to some different agreement, that can be accommodated within the interim orders which I will make, all of which are prefaced with the words “as may be agreed”.
I certify that the preceding one hundred and ninety-nine (199) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly J delivered on 18 December 2012.
Associate:
Date: 19 December 2012
0
9
1