WL and MSC
[2002] FMCAfam 62
•18 March 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WL & MSC | [2002] FMCAfam 62 |
| FAMILY LAW – Children – relocation – application of principles in A & A: Relocation Approach [2000] FLC 93-035. |
| Applicant: | WL |
| Respondent: | MSC |
| File No: | ZM 5624 of 2001 |
| Delivered on: | 18 March 2002 |
| Delivered at: | Melbourne |
| Hearing Date: | 13 – 14 February 2002 |
| Judgment of: | Walters FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Pinner |
| Solicitors for the Applicant: | Keith E. Hoban |
| Counsel for the Respondent: | Mr Fooks |
| Solicitors for the Respondent: | Sharkeys |
| Counsel for the Child Representative: | Mr Hoult |
| Solicitors for the Child Representative: | Donald S. Lampe |
ORDERS
(1)Counsel will be heard in relation to the orders sought in paragraphs 124 to 127 of these Reasons.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
ZM 5624 of 2001
| WL |
Applicant
And
| MSC |
Respondent
REASONS FOR JUDGMENT
Introduction
Before the Court is the mother’s application for orders that are intended to enable her to move from the State of Victoria with the parties’ child, C (who is not yet three years of age), and reside in Northern Ireland. The mother has specified the orders that she seeks in the event of her application being successful, and in the event of it being unsuccessful.
The father seeks that the mother be restrained from removing C from Australia — and that he have certain defined contact with C.
As was made clear during the course of the trial, the child representative fully supports the mother’s proposals designed to enable her to relocate to Northern Ireland with C.[1]
[1] See, in particular, the written submissions prepared on behalf of the child representative and handed up on the final day of trial (14 February 2002).
Documents Relied Upon
The mother relied upon the following documents:
a)her amended application filed 8 February 2002;
b)her affidavit sworn 28 November 2001;
c)her affidavit sworn 7 February 2002; and
d)the affidavit of her father, Mr W, sworn 7 June 2001.
The father relied upon the following documents:
a)his response filed 6 August 2001;
b)his affidavit sworn 25 January 2002;
c)the affidavit of his mother, Ms K, sworn 25 January 2002;
d)the handwritten report of Dr S. Rope dated 4 February 2002; and
e)the reports of Dr Patricia Miach (Clinical Psychologist) dated 28 February 2000 and 11 February 2002.
The mother filed an Outline of Case Document. It was filed on 4 December 2001.
Neither the father nor the child representative filed a formal Outline of Case Document.
Neither the mother nor the child representative raised any objection to the introduction into evidence of the reports from Dr Rope and Dr Miach. Similarly, neither the father nor the child representative raised any objection to the introduction into evidence of the documents attached to the mother’s affidavit sworn 28 November 2001. The trial proceeded on the basis that the court should give such weight as it considers appropriate to this material.
Apart from documents tendered during the course of the proceedings, neither party relied upon any further filed material.
Background
The parties to the proceedings are the mother and father of the child C, born 22 April 1999. She is their only child.
Both the mother and the father were aged 19 years at the time of the trial. The mother has since turned 20. She was born on 26 February 1982. The father was born on 13 July 1982.
The parties are not and never have been married.
The mother was just 17 when she gave birth to C. The father was then 16.
Apart from a period of approximately 3 weeks in or about September or October 1999 (when C was approximately 5 months old), the parties have never lived together.
C has always lived with the mother. For reasons to which I shall refer later in this Judgment, the father has not had contact with C since approximately September 2000. It was acknowledged by the father that C presently has no relationship with him.
The mother’s parents are Irish. They have two daughters — the mother being the younger.
The family migrated to Australia in 1990.
The mother’s sister, R, returned to Ireland in or about January 2001. R’s daughter (then aged approximately 18 months) travelled with her.
According to Mr W, a possible return to Ireland had always been in his mind. Midway through 2001 he and his wife resolved to leave Australia and return to Ireland, and started to give effect to that intention. Mr W gave up his employment (after accepting an appropriate “package” from his employers) and is presently unemployed. He and his wife will be travelling back to Ireland shortly after 1 March 2002.
Mr and Mrs W are aged 47 and 46 respectively, and they have decided that it is in their best interests to return to Ireland. They have arranged temporary accommodation (for themselves and, if necessary, the mother and C) at the home of the mother’s grandmother — where they will remain until they have purchased a home of their own. They propose to acquire a house close to Mrs W’s family, and near where Mr W grew up.
Mr and Mrs W’s return to Ireland will lead to a reunification with their daughter R and her child (their granddaughter).
Mr W swore an affidavit in these proceedings on 7 June 2001. He gave oral evidence at the trial and was cross-examined. At no time was it suggested that his or the family’s motivation for the decision to return to live in Ireland was other than a genuinely held view that it would be in the best interests of the family to live in Ireland for financial reasons and because of the proximity to other family members. I find that the family’s reasons for wishing to return to their country of origin are both reasonable and understandable, and are not reflective of a decision or desire on the part of either Mr or Mrs W — or any member of their family (including the mother) — to terminate (or alternatively, minimise) contact between the father and C.
Further, having seen and heard both the mother and Mr W give evidence, I am satisfied that Mr and Mrs W will indeed return to Ireland (permanently) at some time shortly after 1 March 2002 — irrespective of the result of these proceedings.
The mother has resided with her parents all or her life (apart from the short period during which she resided with the father).[2] I find — on the basis of the evidence before me — that she has a close, loving and supportive relationship with her parents.
[2] See paragraph 14 above
The thrust of the mother’s case is that she wants to return to Ireland and to continue living with her parents. Clearly, she wants to take C with her. She wants to be near her sister (and her niece) and other family members. She does not want to be compelled to remain in the Melbourne area, without the security, support and comfort that her family clearly both offer and provide.
The father lives in a caravan park, in a bayside suburb not far from Melbourne. He is not engaged in paid employment, and is in receipt of a Disability Pension. The basis upon which he is eligible for the Disability Pension is less than clear. In his affidavit sworn 25 January 2002, the father says that he has “always had a psychiatric condition”.[3] During the course of his oral evidence he was unable to clearly name or give details of his psychiatric condition. He eventually described himself as having “severe anxiety disorder”.
[3] See paragraph 5 of the affidavit
The father’s evidence was to the effect that his mother (Ms K) has handled the paper work associated with his application for the Disability Pension. Her evidence was that the father suffers from a personality or mood disorder as well as anxiety and depression.
In her report dated 28 February 2000[4], Dr Miach wrote:
(the father) appears to have had a moderately severe conduct disorder from the age of five with physical aggression towards others, serious violations of rules leading to frequent suspensions and expulsion from two schools, early forensic problems related in part to a need for risk taking and excitement, and apparent hyper-activity. There may also have been an attention deficit/hyper-activity disorder. Poor frustration tolerance, irritability, temper outbursts and early onset of smoking and use of marijuana were also associated features. His work history also indicates significant problems in work adjustment related to conduct disorder.
His self-esteem appears low although he has projected an image of ‘toughness’ in his male peer group. He appears sensitive to any implied criticism, and irritability and temper outbursts appear to occur most frequently in this context.
[4] See page 9 of the report
The father described his relationship with the mother as “volatile”[5], and I find — on the evidence before me — that such a description is appropriate.
[5] See paragraph 3 of the father’s affidavit sworn 25 January 2002
In paragraphs 3 and 5 of his affidavit sworn 25 January 2002, the father said, in effect, that the parties’ relationship deteriorated due to the fact that they were both “abusing alcohol and illicit drugs”, which exacerbated the father’s “psychiatric condition”. During the course of his cross-examination, however, the father retreated from this statement and conceded, for example, that he did not know whether or not the mother used illicit drugs after C’s birth. He said that he had been told by someone else that she was using drugs. For her part, the mother denied that she used illicit drugs at any time after C was born, and I accept her evidence in that regard. The mother conceded that she would have a “social drink” after C was born and I accept her evidence in that regard as well. To the extent that it may be relevant to the matters at issue in these proceedings, I find that the father’s assertion to the effect that the mother abused alcohol and used or abused illicit drugs after C’s birth are untrue.
The father presently lives with a young woman named E. During the course of his oral evidence the father said that he has been in a relationship with E for one and a half years. E is presently 16 years of age. It is not part of the father’s proposals in these proceedings that C be brought into contact with E. According to the father, E is “not mature enough” to have contact with C.
According to the father, he has been addicted to Valium. He asserts that he has taken steps to deal with his addiction and that he has reduced his intake of the drug. I note that the father made no mention of this addiction in his affidavit sworn 25 January 2002. His only reference to his use of Valium is in paragraph 19, which reads as follows:
I was sentenced to be detained in a Youth Training Centre on 10 October 2001 and went to Malmsbury. I was released on parole for three months on 7 January 2002. Whilst at Malmsbury I was seen by a psychiatrist, and am presently on a very low dose of Valium.
The letter from Dr Rope dated 4 February 2002 is as follows (leaving aside its purely formal elements):
(the father) is a regular patient of mine since 18 May 2001. Initially he was on large doses of Valium and suffered from severe withdrawal anxiety at that time. Since then, his Valium has been reduced to 2mg twice daily with the intention of eventual complete withdrawal.
(the father) is currently the best and calmest I have seen him. He has matured considerably over the last eight months, and I feel that his past behaviour is unlikely to be repeated.
The father gave evidence on 13 and 14 February 2002. He was being cross-examined when the proceedings were adjourned on the afternoon of 13 February, and his cross-examination continued on the following morning. During the course of his evidence on 14 February, he said that he was then “heavily medicated”. He confirmed that his prescribed dosage of Valium is 2mg in the morning and 2mg at night – but that he had taken 4mg (ie 2 tablets[6]) on the morning of 14 February. During the course of her evidence, however, the father’s mother said that she was responsible for the father’s medication during the course of the trial. She gave her evidence on 14 February 2002. According to her, the father was “ordinarily on six a day” — being 6 tablets (ie 12mg of Valium) per day. She then stated that the father had taken 4 tablets (ie 8mg) that morning because “he wasn’t feeling calm”.
[6] It became clear at a later stage that the Valium is in tablet form — each tablet containing 2mg of the drug
During the course of his evidence, the father said that he had been “on Valium” for three to five years. Notwithstanding this assertion, Dr Miach makes no reference to the father’s use of Valium in her report dated 28 February 2000. On page 2 of her report, however, she wrote:
(the father) stated that he had had no problems with being unable to control fits of anger since October 1999. He attributed this to being taken off his medication Zoloft, an antidepressant, and placed on Tegretol, which his mother reported is prescribed as a mood stabiliser, by his local doctor, Dr Croaker.
In her report dated 11 February 2002[7], Dr Miach wrote the following:
(The father) also has had a change in general practitioners as a result of moving to Mornington. He reports a good relationship with his current local doctor, Dr Rope, whom he sees about once a month. He is currently weaning (the father) off Valium which had been prescribed by a doctor at Brunswick Community Forensic Services, but to which (the father) had become addicted.
[7] See page 4 of the report
The father currently has a parole officer, a drug and alcohol counsellor, a support worker and a social worker — although (according to Dr Miach) the father’s contacts with everyone other than the parole officer have not yet commenced.
In addition to his ingestion of Valium, the father also uses cannabis. Dr Miach records (in her report dated 11 February 2002) that the father told her that —
He has not returned to his heavy cannabis use that ended about two and a half years ago. He now uses about half a gram a week which he finds calms him down and slows down his thoughts. He denies quite adamantly any other illicit drug use.
During the course of his cross-examination, the father said that he spends approximately $80.00 per fortnight on the purchase of cannabis.
Having seen and heard the father whilst he gave evidence in these proceedings, and having regard to the evidence to which I have referred above and to further matters to which I shall refer during the course of these Reasons, I find that I cannot agree with Dr Rope’s opinion that the father’s “past behaviour is unlikely to be repeated”. I do not know to what “past behaviour” Dr Rope intended to refer, but if it was the misuse or abuse of prescription and/or illicit drugs, and to poor frustration tolerance, irritability, temper outbursts and aggression leading to violence, then I do not agree. Similarly, I do not agree with Dr Miach’s conclusion that the father’s behaviour is likely to be more settled and controlled with the current structure and support available to him — with or without belief on his part that his request for contact to C (whether or not is it supervised) has some chance of being resolved. I find that the father has little insight into the behavioural disorder from which he suffers (if, indeed, he can be regarded as suffering from a behavioural disorder). Further, I strongly agree with the following passage from Dr Miach’s report dated 28 February 2000[8]:
The (father’s) very hostile attitude towards psychiatry based on his usually negative experiences over a 10 year period make it highly unlikely that he would cooperate or benefit from any such treatment if recommended at this point in time. He is not acknowledging any current difficulties of a psychological/emotional nature, and both he and his mother appear to perceive medication as a more acceptable and less threatening treatment than any therapy that relies on self-examination.
[8] See page 10 of the report
Notwithstanding Dr Miach’s suggestion, contained in her report dated 28 February 2000, that the father might benefit from a structured time limited anger management course, the father has refused to attend such a course.
The father’s mother is very supportive of him. I have read the Department of Human Services reports dated 20 December 1999 and 6 June 2000. As indicated above, no objection was taken to the introduction of these reports into evidence in these proceedings. I do not place a great deal of weight on the historical or factual matters set out in the reports (although they are largely consistent with matters contained in Dr Miach’s report and with certain of the evidence given by the father and his mother during the course of the proceedings), but I find myself in agreement with certain of the conclusions contained in the reports. I certainly agree with the following observations:
(a)Ms K is supportive of and influential to (the father), and defends and offers his viewpoint. Ms K reports that she wants (the father) to get better however considers that he will remain ill permanently
(b)Ms K does not believe (the father) would benefit from counselling as he has received counselling since he was a young child, and it has not aided him in dealing with his psychological issues. Ms K agreed that counselling would be of benefit to (the father) if he chose to attend counselling, rather than this being imposed upon him.
During the course of her evidence before me, Ms K expressed the view that psychiatrists often ask her son “inappropriate questions”. She holds this view notwithstanding that she has no qualifications in psychology or psychiatry. As well, during the course of her evidence she said that she did not think that the father would benefit from courses such as a parenting course or an anger management course.
Dr Miach’s reports reveal that, although the father was ‘generally cooperative’ with the interview process, he refused to discuss certain subjects. In her report dated 28 February 2000, Dr Miach refers to the father refusing to discuss his early childhood, stating that he had ‘chosen not to speak or think about it’, and did not want to dig up ‘bad things’. In her report dated 11 February 2002, Dr Miach wrote that the father refused to discuss ‘the personal history of his current girlfriend and the full circumstances of his mother’s separation from his stepfather (ie Mr K), which he stated were not relevant to the current interview’. It is apparent from both reports that Ms K was present at the relevant interviews with Dr Miach and that she was supportive of the father in his reluctance to discuss these issues.
To the extent that it is relevant to the matters in issue in these proceedings (and having regard to the child representative’s submissions, to which I shall refer in more detail later in these Reasons) I find that — to put the matter colloquially — Ms K is part of the father’s problems, and regrettably not part of the solution to those problems (if, indeed, such a solution can be found).
History of the Proceedings
I do not propose to dwell upon the history of the proceedings. They commenced with the filing of the mother’s application on 12 June 2001 (in which the mother sought, inter alia, an order that she “…be permitted to relocate the residence of (C) to Ireland.”). The father filed a response on 6 August 2001. The final orders sought by the father in his response are as follows:
(1) That the…mother be restrained from removing (C) from the Commonwealth of Australia and that the Federal Police be requested to give effect to this order.
(2) That in the event of the…mother removing herself to Ireland that the…father have residence of (C).
(3) That the…father have alternate weekend contact commencing Friday 5.00 p.m. until Sunday 5.00 p.m.
Various procedural orders were made, including an order for the appointment of a child representative (which order was made on 6 August 2001). On 5 December 2001, and after the court had been advised that the father was in custody at Malmsbury, procedural orders were made requiring personal service of relevant documents on the father. The proceedings were adjourned to 12 December 2001, and a Gaol Order was prepared to enable the father to be available in person if he wished to attend court on that day.
The mother and the father were present, and all parties were represented, when the proceedings came on for hearing on 12 December 2001. Various ‘programming’ orders were made on that day, and the date for trial was fixed.
Overview
In Hardy and Herlihy (2001) FamCA 1472 (unreported), Kay J said (at paragraphs 51 and 52):
Relocation cases are agonising for all persons involved in them. They almost inevitably involve two claims of right. There is the right of the residence parent to get on with…life as he or she sees fit and, at the same time, there is the right of the children to maintain a meaningful relationship with the non-residence parent, if at all practicable. From the non-resident parent’s point of view, a breakdown in the frequency of contact is no doubt a very painful experience.
Decisions are often made by parties in these proceedings without thinking through the entirety of the consequences. This observation applies to both decisions to move and decisions to oppose any move.
I agree with the sentiments expressed by Kay J in the paragraph referred to above. In the present case, however, it is important to bear in mind that the father has not had contact with C since approximately September 2000 (in other words, for approximately half of C’s short life). Further, it was acknowledged by the father that she presently has no relationship with him and that she does not know who he is (or, alternatively, in all likelihood she does not know who he is).
The father seeks to prevent C being removed from Australia so that he can establish some form of relationship with her. As for the long term, the father said that he wants to “be there” for C — to see her, touch her and comfort her.
As understandable as the father’s sentiments (as set out in the preceding paragraph) may be, I am of the view that the father has opposed the mother’s proposals “without thinking through the entirety of the consequences” — to use Justice Kay’s expression. Indeed, during the course of his evidence the father said:
They (meaning the mother and C) can go — but I want to see C once per fortnight.
It was only after this statement had been probed to some extent that the father acknowledged that such an approach was impracticable and could only mean that C would have to remain in Australia.
I am satisfied that the mother has indeed thought through ‘the entirety of the consequences’ of the proposals that she has put before the court. In my view, she demonstrated considerable maturity, tolerance and insight during the course of her evidence.
The Law
The Full Court has determined that certain guidelines should apply to the determination of a parenting case that involves a proposal to relocate the residence of a child. The guidelines are summarised in paragraph 108 of A & A: Relocation Approach (2000) FLC 93-035, and restated in paragraph 77 of H & L (2000) FLC 93-036. The guidelines are as follows:
108.It is convenient to bring together in a summary form the most significant points we have made above. Courts of first instance faced with cases involving a proposal to relocate the residence of a child should adopt the following guidance and should be able to expect that cases are presented in a way which addresses the following matters to the extent that they arise:
In determining a parenting case that involves a proposal to relocate the residence of a child either within Australia or overseas:
·The welfare or best interests of the child, as the case may be under the relevant legislation remains the paramount consideration but it is not the sole consideration.
· A court cannot require the applicant for the child’s relocation to demonstrate “compelling reasons” for the relocation of a child’s residence contrary to the proposition that the welfare of the child would be better promoted by maintenance of the existing circumstances:
·It is necessary for a court to evaluate each of the proposals advanced by the parties.
·A court cannot proceed to determine the issues in a way which separates the issue of relocation from that of residence and the best interests of the child. There can be no dissection of the case into discrete issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be 'permitted'."
·The evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child's best interests.
·It is necessary to follow the legislative directions espoused in s.60B and s.68F of the Family Law Act (Cth) 1975. The wording of s.68F(2) makes clear that the Court must consider the various matters set out in (a) – (l) of that subsection.
·The object and principles of s60B provide guidance to a court's obligation to consider the matters in s68F(2) that arise in the context of the particular case.
·It is to be expected that reasons for decision will display three stages of analysis and:
(1) A court will identify the relevant competing proposals;
(2)For each relevant s68F(2) factor, a court will set out attention to how each proposal is said to have advantages and/or disadvantages for that factor and make findings on each factor as the Court thinks fit having regard to s60B;
· As one, but only one, of the matters considered under s68F(2), the reasons for the proposed relocation as they bear upon the child's best interests will be weighed with the other matters that are raised in the case, rather than treated as a separate issue. Paragraph 9.63 of B and B: Family Law Reform Act 1995 is no longer an accurate statement of the law.
· The ultimate issue is the best interests of the children and to the extent that the freedom of a parent to move impinges upon those interests then it must give way.
· Even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child's contact with, and access to, the other parent.
(3)On the basis of the prior steps of analysis, a court will determine and explain why one of the proposals is to be preferred, having regard to the principle that the child’s best interests are the paramount but not sole consideration.
· The process of evaluating the proposals must have regard to the following issues:
(a) None of the parties bears an onus:
· In determining a parenting case that involves a proposal to relocate the residence of a child, neither the applicant nor the respondent bear the onus to establish that a proposed change to an existing situation or continuation of an existing situation will best promote the best interests of the child. That decision must be made having regard to the whole of the evidence relevant to the best interests of the child.
(b) The importance of a party's right to freedom of movement:
·In determining a parenting case that involves a proposal to relocate the residence of a child, care must be taken by a court to ensure that where applicable, it frames orders which in both form and substance are congruent with a party's rights under s92 of the Constitution, where applicable.
·In determining a parenting case that involves a proposal to relocate the residence of a child and in deciding what is in the best interests of the child, the court must consider the arrangements that each parent proposes for the child to maintain contact with the other and, if necessary, devise a regime which would adequately fulfil the child’s rights to regular contact with a parent no longer living permanently in close physical proximity. If the Court is not satisfied that suitable arrangements have been made for the child to have contact with the other parent, it may be necessary for the Court to order a regime which would best meet the right of the child to know and have physical contact with both its parents.
(c) Matters of weight should be explained:
·In determining a parenting case that involves a proposal to relocate the residence of a child, a court must consider all the relevant matters referred to in ss60B and 68F(2) and then indicate to which of those matters it has attached greater significance and how those relevant matters balance out.
· In a parenting case that involves a proposal to relocate the residence of a child, no single factor should determine the issue of which proposal is preferred by a court.
Although I have quoted the Full Court’s ‘guidelines’ as they appear in paragraph 108 of A & A, I confirm that I have read carefully the whole of the Full Court’s decisions in both A & A and H & L. Further, I have read and am familiar with the decisions referred to in the two cases — including AMF v AIF (1999) FLC 92-852, Paskandy v Paskandy (1999) FLC 92-878 and B v B: Family Law Reform Act (1997) FLC 92-755.
Discussion
Before proceeding further with these Reasons, I refer to and revisit paragraph 74 of the Full Court’s decision in A v A:
In our view, the use of a structured series of analytical steps is an aid to the decision-making transparency and minimises the risks of a court falling into appellable error of the kind discussed in AMS v AIF. In weighing the advantages and disadvantages of the proposal, we agree with the recent observations made by a differently constituted Full Court in Findlay and Boniface [2000] FamCA 676 (unreported). In dismissing a ground of appeal that challenged the adequacy and clarity of the steps taken by a trial Judge in reaching her decision in a parenting order case, the Full Court said…:
Her Honour’s obligation was not to laboriously and exhaustively set out each and every advantage and disadvantage which she saw in each proposal put forward by the parties for the residence of/contact with their child. Her obligation was to deduce, from the evidence, and from her assessment of the parties and their witnesses, the essence of their competing proposals, and to decide, having considered the relevant matters referred to in s 68F(2) … which of those proposals would be more likely to advance the child’s best interests, which she was required to regard as the paramount consideration. Her further obligation was to give adequate reasons to enable the parties, and any appellate court called upon to review her decision, to understand how she arrived at her decision and to demonstrate that in arriving at it she did indeed regard the child’s best interests as paramount and did consider the relevant matters arising under s 68F(2).
The guidelines contained in A & A are relatively complex (and, with the greatest of respect to their Honours comprising the Full Court, rather awkwardly expressed). I take into account the sentiment expressed in Findlay and Boniface, however, and now remind myself that it is important not to lose sight of the wood for the trees, as it were.
I am conscious of all the following matters:
a)The welfare or best interests of C remains the paramount consideration in this case — but it is not the sole consideration (and my reference to Findlay and Boniface should not be interpreted as suggesting that I have misunderstood the significance of the welfare or best interests of a child in cases of this nature).
b)The mother has not been required to demonstrate ‘compelling reasons’ for relocating C’s residence to Ireland. That said, her reasons for wishing to relocate C’s residence to Ireland are valid and understandable. At no stage was it put to the mother during cross-examination that her reasons for wishing to return to Ireland with C were other than valid and reasonable.
c)I understand that it is necessary to evaluate each of the proposals advanced by the parties, and I have and will do so — directly or indirectly — in these Reasons.
d)I understand that the Court cannot proceed to determine the issues in these proceedings in a way that separates the issue of relocation from that of residence in the best interests of C. The case has not been and will not be dissected into discrete issues — relevantly, a primary issue is to who should have residence of C, and a further and separate issue as to whether the relocation should be ‘permitted’. Still, it is important to note that the father has not sought residence of C in this case. He seeks limited (and, in the initial stages at least, supervised) contact only.
e)I understand that the evaluation of the parties’ competing proposals must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for C’s best interests. I have performed that evaluation — directly or indirectly — in these Reasons.
f)I understand that it is necessary to follow the legislative directions set out in section 60B and section 68F of the Family Law Act, and that I must consider the various matters set out in section 68F(2).
g)Further, I understand and appreciate that the object and principles of section 60B provide guidance to a court’s obligation to consider the matters in section 68F(2) that may have arisen in the context of this case.
h)I recognise that none of the parties to these proceedings bears an onus to establish that a proposed change to an existing situation, or a continuation of an existing situation, will best promote C’s interests. I shall take into account the whole of the evidence relevant to C’s best interests.
i)I am well aware of the importance of both parties’ (and, in particular in this case, the mother’s) right to freedom of movement. I am aware that in paragraph 102 of the decision in A & A, the Full Court underlined the significant weight that must be attached to the right of freedom of movement. I am aware, as well, of the other matters set out in paragraph 102 of A & A.
Relevant Competing Proposals
The mother’s proposal is to relocate to Northern Ireland with C. She proposes to move there to be with her parents, her sister, her niece and most of her extended family. She proposes to live with her parents for the immediate, foreseeable future. Her proposal includes an arrangement for telephone and other contact — as set out in paragraphs 3 and 4 of her amended application filed 8 February 2002.
The mother has set out an alternative arrangement in paragraph 5 of her amended application. Clearly, this arrangement is not in any real sense a discrete ‘proposal’ on the part of the mother. It is (correctly, it seems to me) prefaced in the mother’s amended application with the words ‘Orders Sought in the Event of an Unsuccessful Application’. To treat paragraph 5 of the mother’s amended application as a true alternative to the proposal described above risks reintroducing the concept of ‘permission to relocate’ into the analytical process. Given that the father does not seek residence of C as part of his proposal, it is clear that paragraph 5 of the mother’s amended application comprises no more than a reluctant response, which can only become relevant in the event of the court concluding — in a broad sense — that the father’s proposals are to be preferred to those of the mother. These proceedings do not comprise an inquiry as to whether the mother should be permitted to move. Such an inquiry may well distract the court’s attention from the real issues (such as how best to promote C's welfare, in the context of recognising the legitimate rights of the mother, the father and C).
The father’s proposal is that the mother and C both reside in Australia — sufficiently close to his residence to enable contact to occur on an alternate weekend basis. Although paragraph 2 of Part B of the father’s response filed 6 August 2001 suggests that the father may be seeking residence of C, the reality is that such a proposal was never ventilated during the course of the trial. In any event, it would appear to be triggered only in the event of the mother deciding to relocate to Ireland without C. The mother made it clear that she will live in Australia with C (albeit reluctantly) if the court prefers the father’s proposals over hers.
Given that the father has not had contact with C for some 14 months, his proposal incorporates an attempt to recommence contact (on a supervised basis to start with). The father’s proposals for contact with C after the initial, transitional stage, are less than clear. Ultimately, he wishes to have alternate weekend contact from Friday at 5.00 p.m. until Sunday at 5.00 p.m.
The father’s affidavit sworn 25 January 2002 and the affidavit of his mother sworn the same day are the only affidavits relied upon by the father and do not deal with the father’s proposal in any meaningful sense. They indicate no more than the father wishes to have contact with C and that he is willing to have supervised contact if that is considered appropriate.
The father’s affidavit of 25 January 2002 concludes as follows:
I ask that this Honourable Court stay any relocation until I can establish regular contact with my child.
That is the thrust of the father’s case. It is clear to me that the father has not thought through ‘the entirety of the consequences’ of his application.[9] He wishes to be a significant part of his daughter’s life but has done no more than — in effect — leave it in the hands of the court as to how that may be achieved. During the course of his evidence he said that he would like to see as much of C as possible before she goes and that he was “not genuinely saying that C shouldn’t go”.
[9] See Hardy and Herlihy (supra)
The lack of focus and detail in the father’s proposal was apparent, notwithstanding that he had a solicitor acting for him and that he was represented by capable and experienced counsel. The father seemed incapable of seeing beyond his own desire to establish a relationship with C.
Section 68F(2) Factors
I turn now to consider the section 68F(2) factors.
Clearly, C’s wishes are not relevant in these proceedings.
It was not in dispute that C has a close, loving and appropriate relationship with the mother. The father conceded that he presently has no relationship with C.
It is clear that the father’s mother has no relationship with C.
I am satisfied that the mother’s parents have a close and loving relationship with C. She has lived with them for almost all her life. In paragraph 5 of her affidavit of 28 November 2001, the mother said: “I have been very happy residing with my parents who are C’s immediate extended family”. Having seen and heard the mother and Mr W give evidence, I am satisfied that they have a close relationship, and that Mr and Mrs W are supportive of the mother. I find that the mother is indeed happy and content residing with her parents.
In paragraph 10 of the father’s affidavit sworn 25 January 2002 the father said:
...I have a very supportive family....My child has never spent much time with them. I have a supportive mother and step-father. I have a half sister and I have other extended family who could assist the applicant mother and myself to raise the child.
The evidence before me reveals that the father’s mother and her husband (Mr K) have separated. Dr Miach’s report dated 11 February 2002 records that the father refused to discuss the full circumstances of his mother’s separation from Mr K. Mr K did not give evidence in the proceedings. If C does not have a relationship with the father and his mother, then it is most unlikely that she would presently have a relationship with the father’s half sister and other members of his extended family. The comment in the father’s affidavit to the effect that the father’s half sister (who may well have problems of her own[10]) could assist “the applicant mother and myself to raise the child” is unhelpful and demonstrates, at best, a lack of insight into the current relationship between the mother and the father.
[10] The Department of Human Services reports reveal that the father’s half sister, S, is approximately 9 years old and has cerebral palsy.
The father’s present partner, E, is very young. The father’s evidence is that she is not mature enough to come into contact with C. Clearly, she presently has no relationship with C.
In Dr Miach’s report dated 11 February, she reports that Mrs K separated from her husband “about 15 months ago”. According to Dr Miach, the father “...continues to see his step father, but not frequently, and has experienced separation as another loss of a father”.
The mother’s proposal in these proceedings (which I shall refer to as ‘the Go proposal’) will promote the close relationship between C and other members of the mother’s immediate family. It will have no impact on the present relationship between the father and C (given that such a relationship does not presently exist). There is no doubt that the Go proposal will mean that it will become significantly more difficult for the father to establish a meaningful relationship with C.
The father’s proposal in these proceedings (which I shall refer to as ‘the Stay proposal’) will not alter the nature of the relationship between C and the mother (given that the mother will remain in Australia with C). It will mean, however, that C will have considerably less contact with the mother’s parents and with R and her daughter. Having regard to the history of this matter, and to the father’s character and personality (whether or not he has a definable psychiatric/psychological condition), I am left in considerable doubt as to whether or not C’s relationship with the father will ever be as close or rewarding (for either of them) as the father would wish for. In my opinion, a significant advantage of the Go proposal is that it retains and reinforces the relationship that C presently has with the mother and the mother’s family. There is no certainty at all that C will ever have a meaningful relationship with the father, his mother and her family — even if the Stay proposal is adopted.
As C is a very young child, there is unlikely to be any adverse effect upon her resulting from a change in her physical location. The Go proposal is advantageous to her in that she will not have to be separated from Mr and Mrs W — with whom she has lived for most of her life. The child representative has submitted, and I accept, that the Go proposal will not affect C’s existing relationship with the father — because the fact of the matter is that she does not have a relationship with him at the current time.
One of the advantages of the Stay proposal is that it provides C with the possibility of commencing, developing and ultimately enjoying a relationship with the father and members of his family. I have already concluded, however, that the likelihood of such a development actually occurring is not great.
When regard is had to section 68F(2)(d), there can be no doubt that the Stay proposal has significant advantages over the Go proposal — in that the practical difficulty and expense of C having contact with the father are much less if both parties reside in relatively close proximity to each other than they would be if the mother resides in Ireland and the father resides in Australia. Obviously, the difficulty and expense associated with contact in the event of the Go proposal being preferred must substantially affect C’s right to retain personal relations and direct contact with the father on a regular basis.
In an endeavour to at least partially dilute the significance of the consideration referred to in section 68F(2)(d), the mother has set out certain proposed contact arrangements in paragraphs 3 and 4 of her amended application. The mother deals with this subject in paragraph 13 of her affidavit sworn 28 November 2001 and in paragraph 19 of her affidavit sworn 7 February 2002. The mother’s proposals to maintain contact between C and the father in the event of the Go proposal being preferred were not challenged to any significant extent at trial.
The father appeared to have given little thought to the formulation of an appropriate contact arrangement in the event of the Go proposal being preferred. During the course of his oral evidence, he said that he hopes to be in a better financial position in 3 to 6 months, and that he believes that he can save money. He has taken steps to obtain training with a view to securing employment at some in the future. He agreed with cross-examining counsel that it would be wrong to say that he could never save money and could never travel to Ireland to see C. As far as the father is concerned, all things are possible.
It became apparent during the course of the father’s cross-examination that he is spending approximately $80.00 per fortnight on the purchase of cannabis for himself. He conceded that if he were to save these monies (amounting to approximately $2,000.00 per annum), then — taking into account other aspects of his financial position — he would probably be able to afford the cost of a return fare enabling him to travel to Ireland to visit C.
I find that there is a possibility that each of the parties will be able to save or otherwise obtain sufficient monies to enable him/her to travel from Australia to Ireland or Ireland to Australia as the case may be on an irregular basis — perhaps once every two years. In other words, there is a possibility that, at best, C will have face to face contact with the father (if the Go proposal is preferred) once per year. Realistically, C is likely to have contact with the father no more than once every eighteen months or two years at best. The duration of such contact is unlikely to be longer than one or two weeks — because of the likely costs involved to each of the parties.
Diminution in contact is an almost inevitable consequence in any parenting case that involves a proposal to relocate the residence of a child either within Australia or overseas (assuming, of course, the relocation is proceeded with). If that were the sole or overriding consideration, then a party’s right to freedom to movement would mean little and cases involving the proposed relocation of a child would be entirely predictable. But that, of course, is not the law. I remind myself, though of the provisions of section 60B of the Family Law Act, the terms of which are as follows:
60B Object of Part and principles underlying it
(1) The object of this Part is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure 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 of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
(c) parents 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.
Section 68F(2)(e) requires the court to consider the capacity of each parent, or of any other person, to provide for the needs of the child, including emotional and intellectual needs. Once again, the father does not seek a residence order in relation to C. His case is that he should have certain limited, defined contact with C, and that C should continue to live with the mother.
Although the father raised certain concerns regarding the mother’s actions and attitude to him in his affidavit material, the mother joined issue with him in her affidavit sworn 7 February 2002 — and she was not cross-examined on the subject. It was not suggested at trial that the mother does not have the capacity to provide for all aspects of C’s needs. Nor was it suggested that, in providing for those needs, she would not have the support of her extended family. I find, on the basis of the evidence before me, that the mother has such a capacity and that she will receive whatever support she requires (including financial support) from her extended family whilst she resides with them, or in the general vicinity of their place of residence in Ireland.
Whilst there is evidence that the father genuinely wishes to develop a relationship with C, there is very little evidence that he has the capacity to provide for her needs (including emotional and intellectual needs). Again, the reality is that C does not know the father at the present time. Further, and as counsel for the child representative submitted, the father has a history of psychiatric and/or psychological problems, anger management issues and drug abuse.
Section 68F(2)(f) is not relevant in the present proceedings.
Section 65F(2)(g), (i) and (j) can be considered together.
It was the child representative’s submission that “the father has directly or indirectly exposed the child to abuse, ill treatment and violence”. With this submission I concur.
During 1999 and 2000, the Department of Human Services became concerned about C’s welfare. It received a notification in relation to the family in October 1999. A protection application was filed in late October 1999. The history of the application is dealt with in the Department of Human Services reports dated 17 December 1999 and 7 June 2000. The matter came before the Melbourne Children’s Court at various times in late 1999 and the first half of 2000. Interim accommodation orders were made in the mother’s favour. The interim accommodation orders included arrangements for the father to have supervised contact with C — subject to certain conditions.
In March 2000, the interim accommodation order was extended to June 2000 on the following conditions:
1.Parents must accept visits from and cooperate with DHS.
2.Parents must accept support services as directed by DHS.
3.Mother must go to family violence counselling as directed by DHS and must allow reports about attendance to be given to DHS.
4.Father must go to a course on anger management as directed by DHS and must allow reports about attendance to be given to DHS.
5.Father must go to a psychologist and/or psychiatrist as directed by DHS for assessment and must allow reports to be given to DHS.
6.Parents must not expose the child to physical or verbal violence.
7.Father and paternal grandparents may have access with the child for a minimum of twice per week at times and places as agreed between the parties. DHS or its nominee will supervise access unless DHS assesses that supervision is not necessary.
8.Mother to reside at maternal grandmother’s home.
9.Mother not to have contact to the father when the child is present.
The circumstances leading to the protection application (according to DHS) are set out on pages 4 to 6 of the DHS report dated 17 December 1999.
The DHS report dated 6 June 2000 contains the following comments:
(a)(the father) has indicated to the Department via his mother, Ms K, that he is not willing to participate in any support services, including counselling, anger management sessions or parenting skills development. This is despite (the father) stating at a earlier meeting, on 2 May 2000, that he would like to engage in relationship counselling jointly with (the mother) to assist in addressing conflict issues within their relationship.
To his credit, (the father) attended a one-off assessment with Dr Patricia Miach (psychologist) on 25 February 2000...(report page 3).
(b) (the father) has not been prepared to attend meetings at the Department or with support services, therefore his current intentions or concerns are unclear at this time (report page 3).
(c) There has not been significant progress made on behalf of (the father) to address his anger management concerns, or the protective concerns in relation to C.
(the father) has not demonstrated a commitment to consistently attend access to C in order for a thorough risk assessment to be completed...
(the father) has stated to the Department that he is not prepared to accept any support services or assistance in regards to addressing his personal issues or the protective concerns for C...(report page 5).
On 24 July 2000, DHS wrote to the mother stating that it had completed its protective investigation in relation to concerns that had been expressed to the Department about the care of C, and that protective services would not continue to be involved with the family. The letter records that the mother and Ms K gave a 12 month Common Law Undertaking at the Melbourne Children’s Court on 20 July 2000. The conditions contained in the undertaking were as follows:
·The mother and paternal grandmother are not to allow the father to have unsupervised access with the child until the father has been assessed by his treating psychiatrist as able to have unsupervised access with the child.
·The mother is to continue to access a domestic violence outreach worker as agreed between the mother and the domestic violence worker.
·The mother is to ensure that C is not exposed to any physical or verbal violence.
·The mother is not to reside with the father.
It appears that that the father may have had certain limited, supervised contact with C after that time, but he has not had contact with her since approximately September 2000.
There was little or no contact between the mother and the father from mid 2000 until approximately March or April 2001. For part of that period the father was in Warrnambool.
In April 2001 the father made contact with the mother in an attempt to arrange contact with C on her birthday. That attempt was unsuccessful, and on or about 21 April 2001 (C’s birthday was on 22 April 2001) the father’s partner, E, attended at the home of the mother’s parents (where the mother and C were residing) and placed torn photographs of C, and a threatening letter, on the front door step of the home. A collage consisting of two trimmed photographs was also left at the home. The collage shows the father holding C in one photograph, with a photograph of E placed beside them. The collage is clearly intended to emphasise that E had taken the mother’s place in the father’s (and perhaps C's) life. The torn photographs of C, the letter and the collage were all tendered in evidence.
The father conceded that E attended at Mr and Mrs W’s home with his knowledge and consent. The father was the person who tore up the photographs. E created the collage with the knowledge and consent of the father. The torn photographs of C are disturbing, as are the contents of the letter (which comprises a collage of words cut from a newspaper or other publication, together with a photograph of the mother).
I digress in these Reasons to observe that — extraordinarily — the father said in paragraph 9 of his affidavit sworn 25 January 2002 (in the context of an assertion that the mother has refused to allow him to have contact with C): “I do not even have a photo of my child”. The stark reality is, however, that the father did not have photographs of C on 25 January 2002 because he had torn up the photographs in his possession in April 2001.
As a result of the incident described above, the mother applied for and obtained an intervention order. The intervention order was made on 4 May 2001 and comprises annexure LW1 to the affidavit of the mother sworn 28 November 2001. The order is expressed to last until further order.
In October 2001 the father was sentenced to be detained at a Youth Training Centre. He was sent to Malmsbury. He was released on parole on 7 January 2001.
On the first day of trial (13 February 2002), an incident occurred in the foyer outside the courtroom in which the trial was to proceed. Having seen and heard the mother, the father and Ms K give evidence, I am satisfied that the mother is a witness of truth and I accept her description of the relevant events on that day in preference to that of father and his mother.
The mother was with a female friend. They were either on their way to or returning from the toilets and were laughing at something that had nothing to do with the father, his mother or these proceedings. They were near Ms K and the father. Ms K then said words to the following effect: “Stop smiling at us, you little bitch”.
The father then intervened and said words to the following effect: “If you don’t stop smiling at me, I’m going to smash your teeth back into your mouth”.
The father did not deny that he said the above words, but endeavoured to place them in a slightly different context. As indicated above, I prefer the mother’s evidence in relation to this incident.
In her report dated 11 February 2002, Dr Miach wrote:
(The father) reported that he had been placed on a restraining order by (the mother) following an incident following C’s second birthday when the windows of her parents' house had been smashed. He denied smashing the windows, and attributed this to his girlfriend, E, who had responded to his anger at not being able to see C. He was convicted of stalking and two assault charges, the details of which he stated he could not recall because he had been drinking at the time. He was sentenced for these convictions and re-sentenced for previous convictions of car thefts, possession of weapons, assault and intent to destroy and damage, for which he had previously received an intense community based order, but with which he had been considered not fit to comply. He reported that he received a six months sentence and has been on parol since 7 January 2002 after serving three months.
Dr Miach’s reports were tendered by counsel for the father, as part of the father’s case.
On page 4 of her report dated 28 February 2000, Dr Miach wrote:
(The father) does not believe his anger would have affected C since she was less than six months old when he and (the mother) were living together, but he acknowledges that his angry outbursts could have damaged C as she became older. He reported that he agrees that his loss of temper control necessitated DHS becoming involved…
During the course of his evidence (and in his affidavit material) the father appeared to blame the mother for his behaviour towards her. Her mere presence appeared — in his eyes — to be a form of provocation to him.
On page 5 of her report dated 11 February 2002, Dr Miach wrote:
There is a continued well-communicated tenderness when talking about C, and (the father) describes a strong sense of attachment, responsibility and nurturing attitudes toward her. This appears related to his own sense of loss with his father, although he appears able to separate C’s needs from his own. He has not made the significant changes in his life that he appeared to be attempting in the last assessment, with a history over the past two years of repeated unlawful behaviours and aggressiveness, as indicated by repeated physical fights and assaults. However, during this time he has also experienced considerable stress which he has experienced as provocative disappointments and loss. He has had no contact with C for 18 months, and both he and his mother reported many broken verbal agreements to see C during this time. His mother’s separation from his step-father with whom he has had a close relationship since the age of five years has also been experienced as a major loss. These stresses and experiences of what he perceives as constant frustration of his very strong wish to have contact with C will have contributed to his poorly controlled anger and aggressiveness. (emphasis added)
I have little confidence that the father’s behaviour is likely to become ‘more settled and controlled’ (see Dr Miach’s report dated 11 February 2002, at page 6) at any time in the foreseeable future. To date, the father has been resistant to the counselling process — preferring drug therapy where possible. It seems to me that both the father and his mother seek and expect “a quick fix” to his emotional and psychological problems. Having carefully read Dr Miach’s reports, and all the other material relied upon during the course of the proceedings, I find that — at the very least — a lengthy process of counselling will be necessary before the father will be prepared to address and, hopefully, overcome the emotional/psychological problems that he now faces. It appears unlikely — on the basis of the evidence before me — that he suffers from a psychiatric illness.
Until such time as the father has accepted the need for, has embarked upon and progressed to a significant extent through the counselling process that will enable him to deal with the problems to which I have referred, I conclude that there remains a need to protect C from the father’s behaviour and that the factors described in section 68F(2)(g), (i) and (j) strongly favour the Go proposal (as opposed to the Stay proposal). From the mother’s point of view, there are significant advantages to the Go proposal in this context. She need not fear the father and his behaviour, and there will be no possibility of an attempted rekindling of their previous destructive relationship.
Section 68F(2)(h) requires the Court to consider the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents. Much of the evidence dealing with this factor overlaps with the evidence to which reference has already been made in these Reasons. Suffice it to say that I am satisfied that the mother has a proper, mature and sensible attitude to C and to the responsibilities of parenthood. She is prepared to put C’s needs before her own, and I regard her “offer” to remain in this country with C (if the Stay proposal were to be considered the appropriate one) as demonstrating that fact. I find that she can be relied upon to continue to place C’s needs before her own and that, whether she lives in Ireland or in Australia, she will always make proper arrangements for C’s welfare.
The father has had a much more limited opportunity to demonstrate his attitude to C and to the responsibilities of parenthood. I have already referred to the father’s sentiments in so far as this matter is concerned.[11] They are eloquently expressed in the following passage from Dr Miach’s report dated 11 February 2002[12]:
(The father) states that he wants C to know who her father is and that he is there for her. He emphasises that he wants to be a proper father. He knows what it is like not to have a father, his parents separating when he was about two years old, and his father spending much of his life in and out of prison. He believes that his relationship with C brings out anything good in him, “a different part of me” which he cannot explain well in words, but he feels it is like “ripping my heart out” not to be able to see C. When he and (the mother) were living together, he would not argue with her while C was awake in the same room. He waited for her to go to sleep because he was able to consider her welfare.
[11] See paragraph 51 above.
[12] At page 2 of the report.
As touching as the above sentiment may be (although the incongruity of the last two sentences has not escaped me), the sad reality is that the father has done little to demonstrate that “he wants to be a proper father”. It seems to me that — given his own family history and the involvement of DHS in his and C’s lives — the father should understand by now that he is unlikely to be able to achieve his aims until such time as he recognises, confronts and deals with his own problems. I have already observed that both the father and his mother appear to seek a ‘quick fix’ for the father’s emotional, behavioural and/or psychological problems. No such ‘quick fix’ exists, it would appear, and it seems to me that a mature and responsible attitude to both C and the responsibilities of parenthood on the part of the father would dictate that he should avail himself of the resources now available to him, and embark in good faith upon what is likely to be a long and difficult course of counselling. Good parenting must always involve more than just love and good intentions.
In his written submissions, counsel for the Child Representative directs the Court’s attention to a further matter to be considered in relation to this factor — and that is the father’s ‘attitude to child support’. Given that the father is on a Disability Pension and does not have paid employment, he cannot be criticised for paying a very modest amount of child support. He is presently paying approximately $21.00 per month. What is of concern, however, is the fact that the father is paying approximately eight times this amount for the cannabis that he uses. Even if the father were only paying twice as much for his cannabis as he is paying for child support, it would reflect an unfortunate and inappropriate attitude to one of the responsibilities of parenthood (namely, the obligation to maintain C and to place an appropriate priority upon that obligation).
An advantage of the Stay proposal is that C will be able to live in reasonable proximity to the father and that the father may ultimately be able to be “a proper parent” (to use the father’s words) to her. I find, however, that the father has not yet demonstrated that he is capable of being “a proper parent” to C (if, by that expression, the father means a parent who is without the difficulties and shortcomings to which I have referred above) — wherever she may live. In any event, he does not cease to be C’s parent if the Go proposal is preferred. There is no reason why he cannot strive to be “a proper parent” whilst he remains in Australia and C resides in Ireland. Indeed, the fact that the mother will be residing in Ireland may assist the father in this regard, as the mother would appear to be an irritant to him.
Section 68F(2)(k) requires the court 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. This is a somewhat obscure provision, but in the circumstances of the present case, I find that the Go proposal is least likely to lead to the institution of further proceedings regarding C. That is so because the distance placed between the parties is likely to result in a lessening of the friction that has previously existed between them. As discussed above, the father tends to regard the mother as an irritant, and as a convenient trigger or provocation for his outbursts directed to her.
There are no other facts or circumstances that appear relevant to these proceedings. During the course of his closing submission, counsel for the father submitted that there was no evidence that the mother would be emotionally devastated or deprived if she were to be compelled to stay in this country. In my opinion, there is no need for the mother to demonstrate that she “cannot cope” if compelled to remain in a particular environment. In any event, I find that the mother would be extremely unhappy if she were compelled to remain in Australia (by virtue of the fact that she is restrained from removing C from the country). I find that the mother has made her application in these proceedings on a bona fide basis and that she has a genuine desire to travel to Ireland to be with her parents. In my view, to require the mother to remain in Australia in the circumstances of the present case would be highly likely to subject her to such an unreasonable strain as to seriously impair her parenting capacity and thus, ultimately, seriously affect C’s welfare. Apart from the few weeks during which she resided with the father, the mother has never lived apart from her parents, and C has lived with her mother since her birth. I have already described the close bond between the mother and her family. The mother is still young, and her relationship with the father and the father’s mother is less than satisfactory. I find it hard to believe that C’s welfare could possibly be advanced by compelling the mother to remain here without the direct support of her family.
I have borne firmly in mind, throughout my consideration of the parties’ competing applications, the various factors and considerations referred to in the guidelines in A & A (and the other matters to which I have referred) I have evaluated both the positive and negative aspects of the Stay proposal and the Go proposal. I am firmly of the view that the Go proposal would be more likely to advance C’s best interests for the various reasons I have already expressed. Although some of the factors that I have discussed favour the Stay proposal, I give greater weight to those which favour the Go proposal — reinforced as it is by my recognition of the mother’s right to freedom of movement. I am aware that C has the right to know and be cared for by both of her parents, and the other rights set out in section 60B of the Family Law Act (including the right of contact, on a regular basis, with both her parents). But I am firmly of the view that, in the circumstances of the present case, it is the mother’s case that must prevail.
In the present case, I am aware that the father currently has no relationship with C and that the relocation is likely to retard or defeat the establishment of such a relationship. In all the circumstances, however and for the reasons that I have already given, it seems to me that the mother’s proposals must be preferred
The orders that I propose to make will be those sought in paragraphs 1, 2, 3 and 4 of the mother’s amended application filed 8 February 2002. I note, however, that it is not strictly necessary for an order in terms of paragraph 1 of the amended application to be made.
The father’s response filed 6 August 2001 will be dismissed.
Given that the question of residence was not in issue, and having regard to the findings made and matters discussed in this Judgment, I propose to make the following additional orders:
a)The mother have sole responsibility for C’s day to day and long term care, welfare and development; and
b)C live with the mother.
I shall now hear counsel as to any submissions that they may be minded to make regarding contact between C and the father between now and the date upon which C leaves for Ireland.
I certify that the preceding one hundred and twenty seven (127) paragraphs are a true copy of the reasons for judgment of Walters FM
Associate:
Date: 18 March 2002
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