Wilson & Wilson

FAMILY COURT OF AUSTRALIA

WILSON & WILSON

[2007] FamCA 131

FAMILY LAW – CHILDREN - Time spent with – evidence about overnight accommodation for child unsatisfactory – future unaccompanied international travel by child now aged 7 years – orders for future assessment of child’s development to assist in determining capacity for international travel – Presumption of equal shared parental responsibility – need for evidence to be clear relating to family violence - rebuttal of presumption under s.61DA(4).

Family Law Act 1975: ss.60B, 60CA, 60CC, 60CC(2)(a), 60CC(4), 60CC(4A), 61DA, 61DA(2), 61DA(4), 64B(2), 64B(3).

APPLICANT:

Mr Wilson

RESPONDENT:

Mrs Wilson

FILE NUMBER:

(P)BRF

1482

2005

DATE DELIVERED:

23 February 2007

PLACE DELIVERED:

MELBOURNE

JUDGMENT OF:

Cronin J

HEARING DATE:

9 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Rogers

SOLICITOR FOR THE APPLICANT:

Rod Madsen Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Carmody

SOLICITOR FOR THE RESPONDENT:

Hynes Harding Lawyers

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Selfridge

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Legal Aid Queensland

Orders

That of paragraph 1 of the orders made 23 November 2005, the following paragraphs of the minutes referred to therein are suspended until after the husband’s return (if at all) from the United States of America beyond or after April 2007; viz: paragraphs 4 and 5 thereof.
That to the extent that it is necessary to say so, the suspension referred to in paragraph 1 shall be lifted upon the husband returning to live permanently in Australia and requesting of the wife in writing, a resumption of the orders otherwise now suspended.
That until the husband goes to live in the United States of America, the husband spend time with the child G born in July 1999 on each Saturday from 10.00 a.m. until 7.30 p.m. commencing 17 February 2007 and each Sunday from 10.00 a.m. until 4.00 p.m. commencing 18 February 2007.
That for the purposes of paragraph 3 of these orders, the husband collect the child from the wife at Hungry Jacks’ Restaurant at L at the commencement of each period and return the child to the wife at the said restaurant at the conclusion of the period.
That until the husband goes to live in the United States of America, the husband communicate with the child by telephone each Tuesday at 6.00 p.m. precisely and, to give effect to this order:
(a)the wife facilitate the communication and ensuring that the child is aware of the potential telephone call, is available at the appropriate time and is encouraged to speak with the husband;
(b)the wife be restrained from being present in the immediate area of the telephone discussion between the husband and the child; and
(c)the husband telephone the wife’s number at the appointed time.
That when the husband moves to the United States of America to live, the husband communicate with the child by telephone:
(i)each Tuesday at 6.00 p.m. (Queensland time) or such other time as may be agreed having regard to the distance between the parties;
(ii)on 18 November each year at 6.00 p.m. (Queensland time);
(iii)on 28 January each year at 6.00 p.m. (Queensland time);
(iv)on Fathers’ Day each year at 6.00 p.m. (Queensland time);
(v)on Easter Sunday each year at 6.00 p.m. (Queensland time);
(vi)on any other special day which is agreed by the parties in writing; and
(vii)on any other day generally which is agreed by the parties in writing,
and, to give effect to this order:
(b)the wife facilitate the communication ensuring that the child is aware of the potential call, is available at the appropriate time and is encouraged to speak with the husband;
(c)the wife be restrained from being present in the immediate area of the telephone discussion between the husband and the child; and
(d)the husband telephone the wife’s number at the appointed time.
That the husband communicate with the child by email, letter and gifts at all reasonable times and the wife do all things necessary to facilitate the child receiving such communications.
That to give effect to paragraphs 5 and 6 hereof, the wife at all times keep the husband informed of her telephone contact number.
That each party keep the other informed of:
(a) their respective telephone contact number; and
(b) their residential address.
That the wife immediately advise the husband of:
(a) any serious accident, serious illness or medical treatment of the child;
(b) any proposed medical treatment of the child;
(c)any psychological or psychiatric counselling being undertaken by the child including the name and address of such health professional; and
(d)any educational or welfare issue raised by any staff of the school attended by the child.
That the wife forthwith direct the principal of the school attended by the child to provide to the husband, at his expense, any information or document to which a parent of a child would be entitled and upon the child changing any school, the wife provide such authority immediately after any change.
That pursuant to Section 65L of the Family Law Act, for a period of 12 months from this date:
(a)paragraphs 3, 5, 6 and 7 and the implementation of paragraph 14 hereof shall be supervised by a family consultant nominated by the Registry Manager of the Brisbane Registry of the Family Court of Australia; and
(b)the appointed Family Consultant give either the husband or the wife or each of them, such assistance as is reasonably requested by either or both parties in relation to compliance with and the carrying out of the said orders.
That for the purposes of paragraph 12 hereof and pursuant to Section 62G(2), the following shall apply:
(a)all communications, statements and discussions with any party shall be reportable and consequently admissible in evidence subject to the direction of any Trial Judge to the contrary;
(b)unless the court orders otherwise, a report shall not be prepared unless an application is made by either party after March 2008.
That the parties attend upon Dr H but not before 31 March 2008 for the purposes of discussing the question of the future travel by the child after that date to the United States of America.
That the costs of the attendance upon, and any report by, Dr H, be paid by the husband and in the event that there is no agreement about the said travel, if an application is ultimately made to the court, the issue of the responsibility for the payment of those expenses be a matter for the Trial Judge.
That a copy of this order and the Reasons for Judgment of Justice Cronin be sent by the independent children’s lawyer to Dr H.
That in the event that the parties do not agree upon the future travel arrangements of the child after consulting Dr H and receiving his report, no application to the court about travel shall be made until the parties (either personally or by telephone) have attended upon a Family Relationships Centre to make an attempt to resolve the issue.
That the independent children’s lawyer is forthwith discharged.
That the wife have the sole responsibility for making the decisions in relation to the major long term issues concerning the child.
That the husband’s Form 1 application filed 5 December 2006 and the wife’s Form 1A Response filed 5 January 2007 are otherwise dismissed and all proceedings are removed from the list of cases awaiting a hearing.
That all material produced under subpoena shall be forthwith returned to the provider of that material.
That pursuant to sections 65DA(2) and 62B the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

IT IS CERTIFIED

That pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel.

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: BRF 1482 of 2005

Mr Wilson

Applicant

And

Mrs Wilson

Respondent

REASONS FOR JUDGMENT

I am making parenting orders in this case concerning the parties’ daughter who was born in July 1999 and who is therefore seven years of age.
Although the parties had filed various applications seeking a variety of parenting orders, the dispute ultimately came down to two issues. They were:
a)when the father goes to live in the United States of America in or about April 2007, what (if any) arrangements should be made for the child to travel to the United States of America to spend time with her father; and
b)when the father goes to the United States of America, what time and under what circumstances should the child spend time with him.
Sadly, although all of the material suggested that the parties have a strong, loving and protective attitude towards the child, they were unable to agree about the two issues above. Their relationship is currently poor and there is little trust. That makes the determination between them of future arrangements concerning the child extremely difficult because of the distance between Australia and the United States of America.

Background

The father is aged 46 years and is currently not working. He is a security operative by profession and currently living on limited income.
The mother is aged 37 years and although she works part time in a shop outlet, she is otherwise engaged in home duties and dependent upon pension benefits.
Throughout this judgment, I shall refer to the parties as father and mother notwithstanding that their relationship has not only come to an end and they have been divorced.
The parties commenced their relationship by living together in October 1996 and they married in August 1997. Each of them had been involved in a previous relationship the details of which are not relevant for the purposes of this determination.
The child was born in July 1999.
The relationship came to an end in January 2005 and the father commenced proceedings on 26 May 2005.
On 14 June 2005, orders were made by the Court to which both parties consented. They were interim orders. Under those orders, the child was to live with her mother and spend time with her father on each alternate week from Wednesday through to Sunday. Various other orders were also made about the sharing of holidays and telephone communication.
On 23 November 2005, the parties were again before the Court by which time, an independent children’s lawyer had been appointed. Again, interim orders were made. Under those orders which have prevailed until now, the child was to live with the mother and spend time with the father in each alternate week from Wednesday until Monday. In other words, the orders that had been made in June 2005 were extended from the Sunday through to the Monday morning. The only other order of significance that was made on 23 November 2005 was the requirement that each party undertake a psychiatric assessment.

The material

Each party filed an affidavit of evidence-in-chief and pursuant to an order at the pre-trial conference, a financial statement. Whilst I have read the financial statements, they do not make a significant different to my determination.
Whilst each party only filed an affidavit of their own evidence, the independent children’s lawyer relied upon the affidavit of a social worker, Ms C, who is employed in that capacity by Legal Aid Queensland, an affidavit by the Principal of the child’s school, and thirdly, an affidavit by Dr H, a psychiatrist.
The only witness who gave evidence in the proceedings by agreement between the parties was Dr H. He gave evidence by telephone and was cross examined by each of the three legal representatives. Although Dr H was called as a witness by the independent children's lawyer, I treated him as the witness of the Court.

The evidence

Having regard to the agreement between the parties as to the two issues to which I have referred, much of the evidence placed before the Court was either unhelpful or did not make a lot of difference to my ultimate determination.
The father set out, that for a period of approximately 17 months after the child’s birth, the parties lived with his parents. He said that during that period of time, he was actively involved in caring for the child. He said that he relied on an affidavit of Ms M, sworn 29 May 2005, and filed on 2 June 2005, but his legal representative did not indicate to me during the hearing that that was an affidavit to be read into evidence. In any event, the father said that when he was employed during this relevant period, he worked mainly shift work, which meant that he had many opportunities to spend time with the child during the day. During those times, he assisted with her hygiene needs, bathing her, changing her nappy, dressing her and feeding her. He pointed out that it was he who supervised and played with her, particularly looking after the child on the occasions when the mother went shopping or spent time with her friends.
In 2003, the father commenced a full time computer course, and that occurred three days per week enabling him to assist the mother in caring for the child.
Thereafter, the father complained that the mother refused his assistance to be involved in the child’s life. He said that he had been in touch with the school, a fact which was corroborated by the affidavit material from the school principal.
In his affidavit, the father pointed out that he had been informed that the child has a learning difficulty and he went on in his affidavit to set out all of his concerns about her educational development.
Of some concern in the affidavit of the school principal, was the suggestion that she needed optometric assistance, from which I inferred that the school felt that the learning difficulties arose out of her visual perceptual skills.

Dr H, the psychiatrist to whom I shall refer, expressed concern that much more was needed for the child’s future.
The father’s complaint about the mother was that she would not discuss arrangements for the child’s future. Some examples of concern to me, indicating the level of parenting capacity, were that, both in respect of Christmas Day and the summer holidays just past, the father, for reasons which I do not understand, misunderstood what his obligations and time entitlements were with the child. When he made contact with the mother, her response was to say that, as he had not fulfilled the times to which he was entitled under the Order, he simply missed out. I expressed during the hearing, my concern at the peremptory dismissal of the father’s involvement in the child’s life, indicating a concern for the potential future negotiations between the parties about the child’s relationship with the father.
Another issue which raised similar concern was that when ultimately telephone dialogue between the father and the child was working successfully, the father deposes to the fact that the child asked to see him. He reported that, as he did not have a motor car, the mother should deliver the child to him. One must bear in mind, at this point in time, the Order dated 23 November 2005, has this provision:
“Should contact changeover be scheduled to take place in or around school hours, then such contact changeover shall take place at the child’s school. When this is not possible, then the father shall collect the child from and deliver the child to the mother’s residence for the purpose of contact changeover, and the mother shall stay at the front door of her residence, and the father in the car, at all time.”
Whilst similar to the holiday issue, the father may be criticized for not implementing the Order to which he consented, he then went further and said:
“[The child] was still asking to come over, so I asked her to tell Mum if she doesn’t want to come to the house, then she can drop you off at the Police Beat at [B] Shopping Centre, so long as she tells me what time to pick you up.”
As I pointed out to the parties, handing over a child at a Police Station does not auger well for the future. The father then went on to say that he heard the mother indicate that she was not prepared to drop the child off at the Police Station, so he tried to explain to the child that he really did want to see her but couldn’t come and pick her up.
If, what the father then said is correct (bearing in mind that there was no challenge to any of this evidence) it leaves a disturbing picture of the future for the potential communication about the child between the parties. The father said:
“Shortly after my call to [the child], I received a text message from [the mother] at 20:22:27 that read ‘we had to rely on public transport 4 over a year – now its ur turn.’”
I raise this subject as an indication of the level of inflexibility of the mother as much as the laxity of the father in relation to the implementation of orders.
A similar incident reported by the father occurred as late as 16 January 2007 in which he spoke of having “had enough of [the mother] not facilitating [the child’s] calls” to the extent that he made the telephone call himself and spoke to the child and that the childwas distressed and crying when he said that he had to hang up. The father then reported (and again it was unchallenged) that the mother sent him a text message at 20:12:55 that said “Thanx a lot. She’s in tears now.” In his evidence, the father asserted that the mother would not discuss arrangements about the child and that becomes obvious from the passage above.
The father set out in his affidavit his desire for the child to spend time with him at his home, where he boards. He said he had lived there for six months. The house had four bedrooms and he had his own room and there was a room available for the child. On the face of that, one would be comforted and conclude that the father was living in a settled environment and the child would be safe there. However, the father went on to say that the owner of the property had other boarders previously and as they did not pay rent, they were subsequently evicted. He pointed out that at the time that the social worker

Ms C, who prepared the report for Queensland Legal Aid, had interviewed him, there were a number of people living in the home and there was no room for the child. He asserted however, that that had changed. Of the two main issues that I had to determine throughout the proceedings, the father maintained that there was no reason why the child could not stay with him overnight, in the house described above. As I have pointed out, the father asserted that the mother refused to discuss any arrangements with him.
The mother swore her affidavit of evidence in chief on 5 January 2007, just over one month prior to the commencement of the hearing. In that affidavit, she expressed concern about the father’s current living arrangements, particularly as there had been about five to seven adults sharing the same home. She said that she “understood” that the number of people living in the house changed often and “old people leave and new people come regularly”. She made the observation that the child had previously spent time with the father when he was living at his own parents’ property, but there had been a falling out between the father and his parents, as a result of which he was no longer welcome in the home.
Mr Selfridge of Counsel, for the independent children's lawyer expressed concern, similar to the mother, about who would be living in the property in the future. The evidence of the housing situation was less than satisfactory. The father in his affidavit said that the owner of the property had informed the mother that the other boarders had been evicted but that is where it stopped.

I shall turn to the domestic violence issue in a moment, but to suggest that the mother should go to the property and examine the circumstances under which the father was living, was equally unrealistic.
Because the father is moving to the United States of America in eight weeks or so time, I suggested that it was important that he maximise the time with the child between now and then to form a basis for the ongoing relationship during which future time, he would see very little of her. Ms Rogers for the father said that her client’s accommodation was appropriate and he had his own room. Ms Rogers however, told me that her instructions were that her client was unable to carry out the four out of fourteen days per fortnight and wanted to vary the existing arrangement until he went to the United States of America. She said that he just wanted weekends. Her instructions were to seek from Friday after school until Sunday morning. The reasoning behind the alteration was that the father did not have a car, and therefore his suggestion was that he would collect the child from school and he wanted the mother to collect her on Sunday morning at the conclusion of the period of time. Rather than have the mother come to his home, he suggested the local police station.
Ms Carmody for the mother, was concerned that the father was not able to scrutinise what happened in the boarding house, particularly if the child was in a separate room. On an interim basis, the mother was prepared to initially agree to three out of four weeks during Saturday or Sunday, but that later changed to each Saturday and each Sunday until the father goes to the United States of America. Although I have criticised the mother for her attitude towards facilitating the relationship between the child and the father earlier in these reasons, I thought that her ultimate approach, necessarily prompted by me, was very sensible and child-focussed.
The father reported in his affidavit that the difficulty he had had in developing his relationship with and communicating with the child, had in part been caused by a Temporary Protection Order on 25 September 2006. This order apparently was made ex-parte. The father said that as a consequence of the order being made, the mother would not allow the child to spend time with him or even communicate with him. The father expressed concern that if he telephoned the child, the mother could allege that the call was not about the child, and as a consequence, he would have committed an act of domestic violence. He said:
“I did not want to take the change of being wrongly accused.”

Domestic Violence

The Domestic Violence Hearing took place on 30 November 2006, two months after an interim order had been made. From what little information I have, it appears that the mother had originally sought the order on the basis that the father had “threatened” her with a baton. The Magistrate dismissed the mother’s application.
The mother’s version was even more vague than that of the father. She said simply that she had applied for an order and that at the hearing, the “Registrar” found that there was domestic violence, however the Registrar “found” that the mother was not able to prove that domestic violence was likely to happen again, as she and the father had separated. No documentation was presented to me in evidence, and neither party was cross examined about the issue. I am left with a statement by the mother that the “Registrar” found that there was domestic violence, but refused to make an order against the father’s version that the Court dismiss the application. I am unable to make any finding that there was family violence. I do not propose to take into account the Temporary Protection Order, having regard to the circumstances under which it was made, its duration and its ultimate dismissal. This has some relevance to the outcome of these proceedings.
Notwithstanding what I have just said, I want to make it clear that family violence is not necessarily confined to physical violence. As between the parties, the father set out in some detail various incidents which he drew from the affidavit of his mother. As I have already mention, I was concerned about relying upon that document, but in any event, the father asserted that the mother verbally abused him during the marriage as well as subsequent to separation. That evidence was not tested, but I do not feel that I can take it into account in the issues relating to the rebuttal of the equal shared parental responsibility presumption, having regard to the fact that neither party elaborated upon it or gave me any details which would make me feel comfortable in making findings of fact about the impact of those particular accusations.
More importantly however, each party made accusations against the other which were not tested in the hearing about the other party’s violence and abuse towards the child.
The mother set out in paragraphs 38 to 42 of her affidavit various assertions, the essence of which were that the child “does not like to go to her Father” and that “he yells at her”.
Two out of the five paragraphs to which I have just referred are based upon the mother’s “belief”. The evidence is so unsatisfactory that I am uncertain about what it means and in the circumstances, I am not prepared to make any finding of fact relating to the matters to which I shall turn under s.60CC.
A similar problem arose with respect to the father’s affidavit material. At paragraph 100 of his affidavit, the father said that there was “a possibility that Caroline may try to hurt [the child]”. A series of accusations are set out in the paragraph and they were unchallenged. However, even if I was to find that they were true, I am left with the position where the father is travelling to the United States of America and has consistently left the child in the care of the mother.
The father referred to the mother’s relationship with the child and accused her of “smothering” the child, which in his view, led to the child experiencing separation anxiety from her mother. He then quite inappropriately referred to an incident which involved the Child Safety Service, which he had found in material produced under subpoena. The context in which that incident occurred were not led in evidence nor was it put to me in submissions on behalf of the father that I should be concerned. No application was made to join the Child Safety Service as a party nor were any witnesses called from that organisation. I am not sure what the purpose of that evidence was having regard to the fact that the father was intending to live in the United States of America.

Travel to the United States of America

In relation to the second issue of the travel to the United States of America, the father set out that he and the mother had lived there for eleven months where he had worked in the State of Washington. The father asserted that the mother “knows” that he had always wanted to live in the United States of America and that she had also wanted to relocate there but had later changed her mind.
Attached to his affidavit was a letter from an American company date-stamped 14 November 2006, in which the following curious phrase appears:
“I the District Recruiter for [A] Security Services, will be able to hire you on the pretence (sic) of that (sic) you are able to securer (sic) a H1B visa.”
I pointed out to the parties the less than satisfactory nature of the evidence. Apart from trying to interpret exactly what the letter means, it was not presented in any way that I could accept as admissible. The solicitor for the mother later said that there was another letter about employment but that was not presented as it did not assist much further. Accordingly, I was left with the unsatisfactory situation of not knowing exactly what the father’s future employment situation was to be in America. Whilst that may not necessarily be the most relevant matter in a parenting issue, it led on to the following statement in paragraph 75 of the father’s affidavit:
“It is my intention to secure a green card enabling me to work in America at any time. However, to be eligible for a Green Card, I must work for a continuous period of at least 4 years in America. I cannot leave America, not even for one day during this time, otherwise I will not qualify for a Green Card.”
Whilst the father asserted that the mother knew about this, my understanding was that it was not accepted that the father could not return to Australia to have some time with the child, let alone flying to Australia and collecting her to return to America. This latter issue did not really take on much prominence because ultimately, the question was about the child’s capacity to travel to America accompanied or otherwise. The father’s position therefore was that the child had to travel to America unaccompanied.
I suggested that one option was that the mother could take the child to America at the father’s expense. That did not meet with favour with either party on the basis that the mother said that she had no funds to accommodate herself in America and she would otherwise have to travel back to Australia immediately upon arrival. The father seemed reluctant to consider the matter on the basis that he felt that he could not afford that anyway. The mother’s position in her evidence was that the father had always wanted to live in the United States of America but her view was that from “past history” there was no certainty that the father would relocate permanently.
The mother’s position was that it was inappropriate for the child to travel on a long international flight by herself because of the stress and distress it would cause. The mother asserted that the child suffered from separation anxieties and that a long flight by herself would “greatly exacerbate her condition” as would her separation from the mother during the visit. She felt that the father did not appreciate the position. On this issue, I had the assistance of Dr H who is a psychiatrist. Dr H has been a medical practitioner since 1988 and received his Medical Board Specialist Registration in 2000. No party challenged his qualifications. Dr H saw all parties and the child in August 2006. He set out the comprehensive background of the parties, but ultimately, his assistance was directed to the question of the two issues which I am obliged to determine.
In his Report, Dr H quoted the father as saying:
(a)He had a plan to pay for [the child] and her mother to fly over to the the United States of America;
(b)[The child] was old enough to travel on the airlines by herself;
(c)[The child] had been living with him for four days per fortnight, mainly at his parents place, as he was living in a house with “another guy” and that it was not appropriate for [the child] to stay overnight, although it would be in the future.”
It must be remembered that this discussion between the father and Dr H occurred only in August 2006 and it starkly contrasted with his affidavit position sworn 25 January 2007 and the submissions made to me on his behalf by his legal practitioner. I found it very difficult to understand how the father had a pragmatic approach to the problem of the two issues in August but somehow reverted to an uncompromising position at the hearing.
Dr H made a number of observations about the mother but they do not have any bearing on my determination. Whilst indicating that the mother had a marked lack of psychological insight into her own emotional functioning, he found that she had an intellectual understanding of her child’s basic needs and a strong emotional bond with her. Importantly, he said that she was able to state, in intellectual terms, that she saw the child’s need to have a relationship with her father. The position that the mother adopted with Dr H seemed inconsistent with the matters to which I have earlier referred about her approach to continuing the relationship with the father. In the end, I have decided that the only logical explanation for the behaviour of each of the parties in this case is that they do not like one another and refuse to communicate with each other. Whilst that is not uncommon, it is particularly difficult in a case where there is no immediate trust which would enable the relationship to be significantly built upon now just prior to the father going to The United States of America where he will have little personal contact with his own child. I can only say that I hope Dr H is right.
Notwithstanding the straightforward evidence in Dr H’s Report, the legal practitioner for the father indicated that he was to be cross-examined.

Dr H gave evidence by telephone. He said that he stood by his Report and said that his observations of the child’s anxiety and distress were certainly problematic. He said that the child should not go unaccompanied to America. Most importantly, Dr H said that he found it extremely difficult to assess when it would be appropriate for the child to so attend unaccompanied because she was an anxious child who had mild scholastic abilities which would affect her ability to travel.
Dr H said that he would be able to do an assessment in future but that it was too early at the moment. He had only seen the child in August 2006 and he felt that he needed to allow a twelve year gap to assess developmental changes. He pointed out that in addition to development changes, he also would need to look at environmental changes. In response to a question I asked, he said that the absence of the father from the child’s personal contact would make it difficult, but that he felt it important that the child be prepared for the assessment if it was to focus on her capacity to travel to the United States of America. He said that it was possible to frame the child’s understanding about anxiety by speaking to her about a plan of action and emphasising safety. He said that he would encourage the parents to understand those anxieties and the importance of teaching the child to confront the anxiety to overcome it. He felt that March 2008 was an appropriate time for a reassessment.
In respect of the time that the child was to spend with her father between now and when the father travels to America, Dr H expressed concern if there was to be no control over the situation and particularly if it was unsupervised. This was a direct reference to the fact that the child would be sleeping in her own room in a strange house. Like me, Dr H was puzzled as to what difference there was between day time and night time but he acknowledged that there was some slight difference. He made the trite statement that contact in general should be maximised if the relationship was going to be ongoing in the long term.
I accept the evidence of Dr H. I have found him very helpful in my determination and I have relied on his evidence. No one challenged

Dr H’s evidence as to what the parties had told him which heightened my concern about the inconsistency of the position that the father was adopting.
I have set out above my concerns about the accusations by each party against the other in respect of the potential harm that each might do physically and psychologically to the child. There was nothing in Dr H’s Report and certainly no cross examination of him in relation to concerns about the care by either parent. In the circumstances, I do not feel that I can give any weight to the assertions I have earlier referred to by either party.
Whilst the father acknowledged, in the end, that the assessment process in relation to unaccompanied travel would be of importance, the parties then embarked upon a debate as to who should pay for it. The mother works

part-time in a shop and is otherwise dependent upon a pension. The father pays $21.00 child support per month. Whilst that may change if he obtains employment in the United States of America, there was nothing in his material to indicate what his proposal is nor was there any suggestion made by him in court as to what his future contributions would be towards the support of the child if he obtained the job that he was contemplating in America. In his affidavit, he talked about being offered a position with a salary of US$25.00 per hour and a company car. I did not receive much comfort from paragraph 85 of the father’s affidavit wherein he says:
“As [the mother] receives the single parenting pension I don’t think its unreasonable for her to spend some money on buying [the child] some seasonally appropriate clothing for her visit to America.
If [the mother] provides me with [the child’s] clothes size before she arrives in America, I can purchase some clothing for [the child].”
Dr H was asked about the estimated cost of his assessment and he estimated between $2,500.00 and $3,000.00. The Registrar at the pre-trial conference in this case ordered that each party file a financial statement. I have read those. However, they are only a snap shot in time of the current position. I have little evidence as to what the mother’s future possibilities of employment are and the prospects of her saving sufficient funds to travel with or providing any support for, the cost of travelling to the United States of America. I have little or no evidence of what the father’s proposal is about child support and only have his estimate of what he might earn if he gets employment in the United States of America and the fact that he proposed to save to buy the ticket for the child to travel to that country. It seems to me on the balance of probabilities that it is and will be, the father who has the stronger financial position. However it seemed by inference, that the father was intending that the child travel to America immediately and as that will not happen for at least 18 months, he should have sufficient time to not only make a contribution towards the child’s weekly support, but also towards the cost of Dr H undertaking an assessment. As all parties agreed that Dr H was the appropriate person to undertake that developmental assessment, it seems to me a very strong incentive for the father to save what he can towards that assessment. However, if there is a recommendation by Dr H that the child can travel and there is still a dispute between the parties at that point in time, I expect that they will return to court, and accordingly what I propose to do is order that the father pay the costs of Dr H initially but their ultimate payment be determined by any trial judge.
Thus in relation to the two issues, I find that it is not appropriate for the child to stay overnight with the father, having regard to the uncertainties of the situation and because of the evidence of Dr H, I am not in a position where I could make any significant finding of fact about what is an appropriate order in the future for the child after the father moves to America.

Legal Issues

These are applications by each party for parenting orders under the Family Law Act 1975. I have already set out what each parent seeks.
Section 64B(2) provides that a parenting order may deal with one or more of the following:
a)the person or persons with whom a child is to live;
b)the time a child is to spend with another person or other persons;
c)the allocation of parental responsibility for a child;
d)if 2 or more persons are to share parental responsibility for a child – the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;
e)the communication a child is to have with another person or other persons;
f)maintenance of a child;
g)the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:
i)a child to whom the order relates; or
ii)the parties to the proceedings in which the order is made;
h)the process to be used for resolving disputes about the terms or operation of the order;
i)any other aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.

Section 64B(3) provides:
that a parenting order may deal with the allocation of responsibility for making decisions about major long-term issues in relation to the child.
The objects and principles from which the provisions of Part VII are to be applied are set out in s.60B, which provides:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a) 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
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)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
(b) 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
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60B also makes provision for an Aboriginal child or Torrens Strait Islander child being able to enjoy their culture but in this case, that provision does not apply.
Fundamental to my decision in this case is the provision of s.60CA which says:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
In determining what is in a child’s best interests, s.60CC provides that the Court must consider the following matters in determining what is in the child’s best interests:

Primary considerations

(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Additional considerations

(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) 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;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l)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;
(m) any other fact or circumstance that the court thinks is relevant.

Section 60CC(4) provides:
Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and

(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long-term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

Section 60CC(4A) provides:
If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

Before turning to those particular provisions, because this is a parenting order that I propose to make, s.61DA requires that I apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 61DA provides:

Presumption of equal shared parental responsibility when making parenting orders

(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.

On the basis of my findings above, I am not prepared to rebut the presumption based upon family violence or abuse as provided in s.61DA(2).
Section 61DA(4) however, says that the presumption may also be rebutted by evidence that satisfies the court that it may not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. This, in my view, can only be examined in the light of the matters set out in s.60CC. Whilst that particular provision requires that a court take into account each of the factors set out, the over-riding provision is still that the court must make a decision which is in the best interests of the child.
I propose to examine each of the s.60CC factors, but before doing so, and relying upon what I shall set out, I find that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for her. In a general way, and in addition to what I shall say in respect of s.60CC, I find that the communication levels between the parties are poor and do not appear to be likely to change in the foreseeable future. The parties cannot seem to agree on issues such as travel. Whether those issues are related to the cost or the understanding that either or both of the parents have about the child’s capacity to travel. It is not just the travel to America that causes me concern because the father also seemed reluctant to be involved in the totality of the travel over the ensuing weeks prior to his move. Major long term issues such as education, health, welfare and religion in relation to the child do not seem to be matters about which the parties can communicate, let alone agree. That problem will be compounded by the fact that the father is going to be a long way away in America and until any trust returns, I would have little confidence that the parties would communicate, let alone negotiate. The tyranny of distance in the case compounds the problem and for that reason I find that it is not in the best interests of the child that the presumption applies. Accordingly,

I propose to make an order that the mother have sole responsibility for the major long term issues relating to the child.
In relation to the matters under s.60CC, I have already found that I am not satisfied on the evidence that the child is exposed to physical or psychological harm, nor to family violence. I do however say that in respect of the unaccompanied travel to the United States of America and also staying overnight with the father in his current accommodation would cause anxiety and distress for the child and in those circumstances, psychological harm.

I have based my orders on that premise.
Section 60CC(2)(a) requires that, as a primary consideration, the court consider the benefit of the child having a meaningful relationship with both parents. The use of the word “consider” is not to be treated as a simple cursory glance.

I have thought seriously about the importance of the child having a meaningful relationship with her father. I have already set out the evidence of Dr H about the importance of the child building a relationship with the father prior to travelling to America and I find that it is likely that that relationship can be developed in the periods of time I propose under the orders. There is no legislative definition of “meaningful”. However, in this particular case, the father will have an opportunity to do all of the things that parents in a functioning family would do. He will have leisure time to play with the child, quiet time to tell her about his proposed future in the United States of America, time to show her the things that he enjoys in life, as well as participate in the things that are important to her. He will have time to explain how he intends to communicate with her in the future by telephone, letter or email, and reassure her that he wants to be very much a part of her life. If it be the case, he can show her his domestic skills, rather than simply treating her to takeaway food, and he can learn about her educational difficulties and try to assist in overcoming them. It seems to me that all of those things are matters that go to a meaningful relationship. Fundamentally however, s.60CC(2)(a) requires the court to look at what benefit the child will receive from that meaningful relationship. It is clear on the evidence that the child does want to have a relationship with her father, but does not have the confidence to do the things that the father wants to do. Having regard to the importance of the child benefiting from the relationship, it seems to me that if the father fulfils the obligations set out in the orders and pursues some of the concepts to which

I have just referred in relation to what is meaningful, then the child will benefit from that relationship. Whilst they are matters that the court is obliged to take into account, in this case, it is very much in the hands of the father and the mother as to whether the child will so benefit.
In respect of the additional considerations, I say that the child is too young to really understand the basis behind the dispute but on the evidence, I am quite satisfied that she is suffering from separation anxiety and to that extent, I rely on Dr H’s evidence. It is clear therefore that her views cannot carry much weight and they do not need to in this case.
In respect of the nature of the relationship between the child and each parent,

I am satisfied that each is a loving and caring parent. I have some concerns that the mother may be overprotective and not supportive of a relationship between the child and her father but my orders, if carried out, will set the boundaries to ensure that the loving and caring relationship continues into the future.
In relation to the willingness and ability of each parent to facilitate the relationship between the child and the other, I have expressed concerns about the approach taken by each party and sadly find that the child has been caught in the middle. The inconsistency of each parent’s evidence troubles me and for that reason, I have crafted orders which will hopefully be a basis for clarity in the future. Because of the development problems for the child at her age, it is not possible to determine what sort of a relationship she will have with her father in the United States of America in the future. Under the orders that

I propose however, the parents will not be permitted to come back to the court again until they have endeavoured to resolve the matters by attendance at a Family Relationships Centre. That does not necessarily mean a personal attendance. I do not intend that my order in relation to their attendance be simply for the purposes of obtaining a certificate to enable them to commence litigation. I intend it to be very clear that they are to make a genuine effort to work out their relationship with the child before litigating.
I am obliged to take into account the effect of any changes upon the child having regard to the separation from, in this case, the father. The child will continue to live with her mother but after April 2007, have a very limited time with her father. Whilst I am uncomfortable about the father’s statement that he cannot come back to Australia for four years, I see no reason why, if he is dedicated to the task of continuing the relationship by electronic and other means, he would enable the child to understand who he is and what sort of role he used to play in her life. As I have already pointed out above, that also depends very much upon what part he plays in building that relationship over the next eight weeks.
I have taken into account the practical difficulty of the child maintaining a personal relationship with the father, and again express concern about the father’s statement of his inability to travel from the United States of America but if it is his choice to live there, he must take some responsibility for the depth of the relationship into the future with the child. Even if she was to travel to the United States of America in the foreseeable future, I acknowledge that the relationship between the father and the child will be different to what it has been in the past. Regardless of that, it is still in the best interests of the child that the relationship be fostered through means other than face to face contact.
I have set out my concerns about each of the parties and their respective capacities to provide for the needs of the child and in particular, her emotional and intellectual needs. Dr H expressed some concerns about the mother’s capacity, but otherwise said that she was focussed on the child’s best interests and understood her basic needs. It seems that the mother is following professional advice in addressing the apparent disability that the child has scholastically and developmentally. In the orders that I propose, I shall require the mother to keep the father informed of all of those developments and of all appointments that the child undertakes, permitting the father to have access to those professionals, subject to any view of the professional to the contrary. It is certainly my intention that the father be very much involved. In my reasons above, I have set out my reservations about the father’s capacity to provide for the psychological needs of the child, but in recent months, he has had a very limited role in her life. That limited role will continue once he goes to America but I would hope that he would facilitate his own relationship with the child prior to that by fulfilling what I have suggested over the ensuing weeks. If he does not, then the orders that I propose once he goes to that country will be pointless.
I have taken into account the attitude that the parties have adopted in relation to the child and their responsibilities towards parenthood. Each has their faults. Each appears unwilling to put aside their negativity towards each other and focus on the best interests of the child. Each appears to have a rather selfish attitude about how to foster the relationship with the other and the child. My orders hopefully will overcome those difficulties but I would also hope that what I have set out above is an objective view about what each parent must do in the future both before and after the father goes to the United States of America to ensure that the child is safe and secure in the knowledge that each parent loves her.
I have already dealt with the issue of family violence and family violence orders and repeat that the evidence is very unsatisfactory. Whilst I accept that the parties do not like each other, I do not feel comfortable in saying that family violence in this case has had a significant effect upon parenting.
I was originally urged to make orders beyond the immediate period of time so that the parties could have some certainty about what time each is to spend with the child in the future. That is particularly relevant in the case of the father who is going to America. However, having particularly heard the evidence of

Dr H I am quite satisfied that it would be inappropriate to make orders of a significant nature affecting the child when the professional view of

Dr H, is that the child is not only currently not ready for those orders, but also that her developmental problems would affect any order as well. In those circumstances, I say that whilst it would be appropriate normally to make final orders, I do not propose to guess at what the future will hold for the child. By the same token, I am not prepared to make interim orders because that will give the parties just another opportunity to litigate. It is for that reason, as I have already averted to, I have decided to insist that the parties not return to court until such time as they have attended a family relationship centre to endeavour to resolve the matter without the spectre of litigation.
Section 60CC(4) requires the court to consider the extent to which each parent has fulfilled their responsibilities, or failed to fulfil them, and in particular whether they have failed to participate in decision making, spending time with or communicating with the child, or facilitating the other in so doing.
I think I have set out clearly what my views have been about what has occurred in the latter part of the marriage and the period subsequent to separation.

I have taken into account the events that have happened since separation but in the end, they do not make much difference to my determination.

I have been critical of the mother for her inept handling of the father’s incompetence in failing to fulfil his obligations under the order, but equally, the father who had consented to very significant orders, chose to blame both the mother and his own legal practitioner for his lack of understanding of those orders. I do not accept that either party has made a serious effort to develop the relationship of the other with the child and for that reason, I have made the orders that I have, bearing in mind the restrictions because of what the father is doing in the future.
Section 60CC(4) also requires that I consider how parties have maintained the child. Whilst I have had some reservations about the father’s financial contribution, I am satisfied having read his financial statement, that his circumstances are very restricted but I am concerned that he has no particular proposal for the future if he is successful in obtaining employment in the United States of America. That issue however, does not effect my determination. I do however indicate to the parties that if the matter does return to the court in the future on such issues as the travel to the United States of America, financial issues will be very relevant and in particular, what efforts each party has made to financially contribute towards the development of the relationship between the father and the child.
In all the circumstances, I say that the orders I am about to make are in the best interests of the child.

I certify that the preceding eighty seven (87) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin.

Associate:

Date: 23 February 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as WILSON & WILSON

[2007] FamCA 131

23 February 2007

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