Woods and Sellers

[2013] FCCA 1856

FEDERAL CIRCUIT COURT OF AUSTRALIA

WOODS & SELLERS [2013] FCCA 1856

Catchwords:
FAMILY LAW – Mother seeks to relocate with child from (omitted) to (omitted) – mother primary attachment figure – father opposes relocation – move to improve the mother’s prospects of becoming gainfully employed – child aged two years – child’s age and developmental issues requires closer and frequent contact with father – poor communication between parties – child’s best interests promoted by remaining in (omitted) for further 12 months – child to spend frequent and shorter periods of time with father – relocation permitted at expiration of 12 months. 

Legislation:

Family Law Act 1975 (Cth), s.60CC

Applicant: MR WOODS

Respondent: MS SELLERS

File Number: MLC 3542 of 2013

Judgment of: Judge Hartnett

Hearing date: 11 November 2013

Orders made: 12 November 2013

Delivered at: Melbourne

Delivered on: 20 November 2013

REPRESENTATION

Counsel for the Applicant: Ms Dunlop

Solicitors for the Applicant: Saines Lucas Solicitors

Counsel for the Respondent: Ms O'Connell

Solicitors for the Respondent: O'Brien Lawyers

THE COURT ORDERS THAT:

1. All previous orders are discharged.

THE COURT ORDERS BY CONSENT THAT:

1. The mother and the father have equal shared parental responsibility for the child X born (omitted) 2011 (‘the child’).

2. The child live with the mother.

THE COURT ORDERS THAT:

1. The child spend time and communicate with the father as follows:-

   (a)each Tuesday and Thursday from 4.00pm until 7.00pm, with the father to provide dinner for the child;

   (b)each Saturday from 12 noon until Sunday 12 noon; and

   (c)otherwise as agreed in writing between the parties.

2. For the purposes of time spent with as provided for in order 4 herein:-

   (a)the father collect the child from and return him to the mother's residence or as otherwise agreed between them;

   (b)for two periods of one week each in the period between now and 1 December 2014 the mother be at liberty to suspend the child's time with the father and upon giving the father at least 21 days written notice of her intention to do so, in the event she wishes to spend some time with the child outside the (omitted) area. .

3. Each of the mother and father is hereby restrained from denigrating the other and each shall ensure, so far as they are able, that no other persons do so.

4. The mother and father forthwith attend upon a counsellor together to address the issue of their poor communication generally and specifically with regard to the child's care. The mother to make the necessary arrangements with a counsellor in (omitted) and inform the father, and the mother and father to share equally in any costs associated with same.

5. The child remain living with the mother in (omitted) until 1 December 2014. Thereafter and from 1 December 2014 the mother is at liberty to relocate the residence of the child to (omitted) and upon such relocation orders 4 and 5 herein are discharged and the father spend time with the child each alternate weekend from 5.00pm Friday until 5.00pm Sunday together with such other and further times as agreed in writing between the parties.  In respect of change-over the father shall collect the child at the commencement from the mother's residence in (omitted) and the mother shall collect the child at the conclusion from the father's residence in (omitted).

6. The parties use a communication book to convey information to each other about the welfare of the child.

7. The mother and father shall:-

   (a)advise the other immediately in the event that the child suffers any serious illness or injury; and

   (b)authorise any medical practitioner upon whom the child may attend from time to time, to communicate with the other in respect to the child's medical condition and/or requirements.

8. Otherwise all extant applications are dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Woods & Sellers is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 3542 of 2013

MR WOODS

Applicant

And

MS SELLERS

Respondent

REASONS FOR JUDGMENT

1. These proceedings commenced by the father filing an Initiating Application in the Magistrates’ Court of Victoria at (omitted) on 25 March 2013.  The mother responded to that application by Response filed 2 April 2013.  In that early application the father sought, as did the mother (as set out in the Response filed 2 April 2013 by her) that the parties have equal shared parental responsibility of their son X born 17 August 2011 (‘X’).  That is an order that the Court makes by consent, the parties’ position in respect to it having not changed throughout the proceedings.

2. In the Initiating Application filed 25 March 2013 the father sought that X live with him, and spend time with the mother as agreed from time to time.  On the final hearing of the matter, and as set out in the Outline of Case filed on behalf of the father on 8 November 2013, the father sought that X live with his mother. That also was an order to which the parties both agreed.  The real issue before the Court was whether X would be permitted to relocate with his mother to the nearby provincial town of (omitted) in the State of Victoria, or whether he was required to remain residing in (omitted), in closer proximity to his father, to enable more frequent periods of time to be spent between father and son.

3. The father brought his Initiating Application in response to hearing that the mother was proposing to relocate the residence of the parties’ son to (omitted), another nearby provincial town in the State of Victoria, but one which is some 30 minutes further driving distance away from (omitted) than is (omitted).  The matter first proceeded in the Magistrates’ Court of Victoria at Horsham on 27 March 2013 before Magistrate Vandersteen.  On that day, it was ordered by consent that the further hearing of the application be adjourned to 3 April 2013 upon the mother’s undertaking not to change the address of the child X without her first obtaining the father’s consent in writing, or by a court order.  When the matter returned to the Magistrates’ Court on 3 April 2013, the Court made essentially the same order, but not by consent, adjourning the further hearing of the matter to 10 April 2013.  On 10 April 2013, that same restraining order was made by the Magistrates’ Court, with the matter adjourned over to 1 May 2013.

4. When the matter came before Magistrate Vandersteen on 1 May 2013 the Court ordered, by consent, that the parties have equal shared parental responsibility of X; that he live with his mother; and that he spend time with his father in a regime as set out in order 1(c) of those orders. That pattern of time spent with has continued on to the present time. The orders in particular provided that X spend time with his father in week one from 5.00pm until 8.00pm each Monday and Wednesday, and in week two from 5.00pm until 8.00pm on Wednesday, and from 5.00pm Friday until 5.00pm Sunday.  Other special occasion days were provided for in the orders.  The orders also provided, by consent, and in order 2, the following:-

   “Upon the undertaking of the respondent not to change the residential address of the child, the further hearing of the within application and response be transferred to the Federal Circuit Court of Australia at Melbourne, and be allocated to the Relocation List.”

5. The mother sought in her Response filed 2 April 2013 that she be permitted to relocate the child’s primary place of residence to the (omitted) area.  She proposed that the father spend time and communicate with X each alternate weekend from 5.30 Friday until 5.00pm on Sunday, and for other special occasion times, along with other orders as set out in that Response document.  When the matter proceeded at final hearing the mother sought to relocate the residence of the child to (omitted), and not (omitted).

6. The documents relied upon by the father in the proceedings were the Affidavits sworn by him on 22 March 2013, 24 April 2013 and 4 November 2013.  The mother relied upon Affidavits sworn by her on 2 April 2013, and 8 November 2013.  There was, in addition, introduced into evidence before the Court a Family Report, dated 7 October 2013 (‘the Family Report’), prepared by Dr M, Regulation 7 Family Consultant.  Each of the parties was cross-examined by counsel for the other, and Dr M was cross-examined by both parties as to the contents of the Family Report.

Background

1. Each of the parties were born on (omitted) 1991. Thus both the mother and father are 22 years of age.  The father resides at (omitted) in the State of Victoria, in the home of his parents.  He left school at the end of Year 10, and save for the period of time in which he cohabitated with the mother, he has resided in his parents’ home.  He is currently unemployed. The mother completed Year 12 at school in 2009. The parties commenced their relationship on 11 January 2009 in (omitted).  Although the father was born in (omitted), and his family all reside there, the mother was not born in (omitted) and first commenced to live there when she was approximately 15 years of age.  In the latter part of 2010, the mother commenced a (omitted) course in (omitted).  At that time she was residing with the father, and they had moved to (omitted) so that she could commence that course.  The parties resided in (omitted) together between September 2010 and February 2011.  They returned to (omitted) from (omitted), the father being unable to be gainfully employed in (omitted). The mother implied in her evidence that he made insufficient effort to find employment.

2. X was born on (omitted) 2011, and the parties separated on 10 March 2012 when he was nearly seven months old.  X remained living with his mother, although the parties initially, and for a short period following separation, shared his care fairly equally.  The mother became concerned about X’ response to that regime and X commenced to live predominantly with her, spending time with his father on a weekly basis, which, for a period of time, was reduced by the mother to a fortnightly basis, and then, throughout the currency of this year, back to a regime of regular and frequent time spent with between the father and child.

3. The mother has re-partnered and is in a de facto relationship with Mr A.  Mr A and the mother have recently had a daughter, Y, born on (omitted) 2013. 

The Family Report

1. Dr M recommended that X continue to reside with his mother, that each of the parents have equal shared parental responsibility for him, and that he spend time with his father for two short visits in each week of about two to three hours, and an overnight visit once a fortnight for one night, to be extended to two nights by the age of three.  Dr M further recommended that X remain living in (omitted), and that both parties attend counselling to assist in their communication.  She suggested the matter be reviewed after a period once the parties had attended counselling.

2. When cross-examined in the witness box on the hearing of the matter, Dr M continued to express concern for the welfare of the child should the mother relocate immediately from (omitted) to (omitted).  Her evidence was that X should remain in (omitted) for the next year or so to further develop his relationship with his father, and to reach an age where she considered it appropriate that he could cope with spending extended overnight periods away from his mother, whom she observed to be his primary attachment figure.

3. Dr M was aware that X is currently spending two nights a fortnight, being consecutive nights, in the care of his father.  Given his age, she considered this too lengthy a period to promote his best interests.  She considered that for a two year old child, in the primary care of his mother, that a single overnight period promoted his best interests, and that otherwise the child should spend time with his father in short visitations.  She was aware that the father was seeking time with X from Friday until Sunday evenings, but considered that excessive for the child.

4. Dr M expressed her concern in respect of the mother’s relocation proposal on three fronts:-

   (a)that the parents’ communication was currently strained, and the logistics of managing that distance given their poor relationship, would in all likelihood result in X seeing less of his father because of his parents’ inability to make the necessary arrangements;

   (b)the travel time between (omitted) and (omitted) was an extended time and difficult for a young child; and

   (c)that X’s age and developmental issues required a closer and more frequent contact with his father at the present time, which in 12 months hence would not be so necessary, and would be a time when X could cope with spending two consecutive nights away from his mother.  She did not support the current arrangement between the parties where X spends two consecutive overnight periods in his father’s care, and away from his mother.

5. Dr M said in evidence that from the age of three the ideal regime for X spending time with his father would be two consecutive nights in a fortnight, with an additional night in the interim week.  That could be achieved if the father was prepared to either himself relocate to (omitted) or travel to (omitted) in the interim week for the purposes of spending time with his son. 

6. Dr M was very mindful of the impact upon the mother of her being restrained for a further period from relocating from (omitted) to (omitted).  She was very mindful of the dynamic between the mother and, in particular, the father’s mother in the small town which is (omitted).  However, engaging in a balancing act as to the child’s best interests, and the impact upon the mother of being restrained for a further 12 month period, she determined that the child’s interest should prevail because the mother was in a new relationship, had a newborn child, appeared happy and possessed of a sense of self-worth, and was no longer harassed by the father as she had been in the period immediately following separation. The mother was also in a very supportive relationship with her current de facto partner. 

7. Dr M noted that the father’s hostile attitude toward the mother, which was not appropriate, was recognised by the father, but only to some extent.  The father was not deeply remorseful as to his attitude and past behaviours toward the mother.  Her evidence was that the father’s attitude toward the mother needed to be worked upon, but that the distress it had caused the mother had subsided, as the paternal grandmother had had no contact with the mother in these proceedings since September 2012, and the father’s harassment of, and criticism of, the mother had, to some extent, lessened.

8. Dr M was hopeful that counselling would produce a better understanding by each of the parents of each other, and a more accommodating view by the father of the mother’s proposed relocation.  She acknowledged that the relocation had a lot of merit for the mother, and her new family unit’s life together, but it was her opinion that in X’s best interests, a move needed to be delayed.  She rejected the suggestion by the father that if the mother was permitted to relocate to (omitted), X should spend three nights in each week with him.  In Dr M’s view, that was not in the best interests of X, and far too extensive a period to spend away from his primary attachment figure at this stage of his development. 

Consideration

1. The mother is seeking to move to (omitted) to complete her (omitted) course.  She initially had proposed moving to (omitted) where her father and siblings were also proposing to move.  Currently, because of her father’s ill health they have remained residing in (omitted), but it was her evidence that it is still their intention to relocate to (omitted).  The evidence discloses uncertainty as to that family’s future place of residence. Since the mother’s commencement of the (omitted) course, she has had two children, and seeks to now be in a position to complete the course on a part-time basis over one and a half years, so as to enable her to financially support herself and her children.  Her de facto partner is a (omitted) who was gainfully employed in (omitted) for a period of six years by the same employer, before the business closed down recently. He is, as a consequence, unemployed. The mother is confident that her de facto partner would be able to obtain future employment in (omitted), and their family see (omitted) as a means of starting a new and prosperous life together. 

2. The mother also gave evidence that she wished to relocate out of the town of (omitted) due to the pressures of living in a small town, which she claimed were exacerbated by the paternal grandmother’s behaviour and attitude toward her.  She gave evidence that the paternal grandmother had spread malicious gossip about her and her de facto partner, which included demeaning comments about her parenting capacity.  That allegation was denied by the father. 

3. The paternal grandmother herself was not on affidavit to deny any of the allegations.  Whether they are true or not, it is clear that the relationship between the mother and paternal grandmother has broken down, and that the mother had a period of time where she felt talked about and partially isolated in the town in which she was living.  Those feelings have been ameliorated by the strength of her current de facto relationship and the birth of her newborn baby. 

4. The mother, in her evidence, focused on her desire to be self-employed in the future and to be in a position to further educate herself in a course which was not available to her in (omitted).  The mother gave evidence that the social benefits as perceived by her of being in a larger town, together with better access to tertiary education and as she saw it, potential job prospects, made (omitted) a place that could advance her family’s economic and social stability. 

5. Dr M noted that the mother appeared, when interviewed by her, not overly concerned with the distance X would travel in a return trip to spend time with his father in (omitted).  Dr M also noted that the mother did not appear concerned about the impact on the child of not spending as regular a time with his father as he has historically.

6. The father presented to Dr M as an engaging person, who appeared to have difficulties with his cognitive skills, particular in exploring issues in detail.  That was also evident in the witness box when he was attempting to answer questions asked of him.  Since leaving school in year 10, he has worked in a variety of jobs including being a (omitted) and a (omitted) in (omitted) in (omitted).  He has also spent, not inconsiderable periods being unemployed, and his current unemployment period is approximately six months. 

7. The Court could not find on the balance of probabilities that the father will obtain ongoing employment in the near future in (omitted).  It is now some years since he left school, and his employment record is poor.  He has no intention of relocating away from (omitted) to (omitted) or (omitted), in the event the mother relocated to either of those nearby larger provincial towns, because his family and friends reside in (omitted) and he does not wish to leave them.  The fact that there is limited employment opportunity available to him there has not dissuaded him from this view.  There is nothing else that ties the father to (omitted), save his family ties – which are nonetheless very important to him. And important to X.

8. If X were to live in (omitted) with his mother, the father gave very clear evidence that he did not intend to also reside in that town.  He would remain living in (omitted) and see his son as he could.  In the witness box, the father gave evidence as to the problematic nature of travel as it presented itself to him.  He considered the distance between (omitted) and (omitted) being a drive of some two and a quarter hours each way, to be almost insurmountable on a regular basis, given the petrol cost and the logistics of extended travel.  It was not something he desired to do and not something he would necessarily do on a regular basis, even if it were to see his son.  As the hearing progressed, he indicated that he would be prepared to make that trip one-way each fortnight, in contrast to his earlier evidence where he required the mother to perform all travel.

1. Whilst the father in the witness box denied that he had intimidated the mother, harassed her, or been violent or abusive to her in any way, his responses were not persuasive and his denials not convincing.  I accept the mother’s evidence as to those matters as set out in her affidavit and as briefly elaborated upon in the witness box.  In the history of the parties’ relationship, the father has at times been intimidating toward the mother and abusive toward her, but hopefully that is not a feature of their relationship which will continue into the future.  

2. The parties do not communicate effectively about parenting decisions and Dr M considered it necessary to attempt to improve their communication before any relocation occurred.  That was so as to ensure that the father would not be marginalised from his son’s life.  She noted that X had an identity with the father currently, and that his stepfather was not substituted by the mother or by the child as his father.  Nevertheless, the child needed to further strengthen his bond with his father over the next 12 months to firmly prioritise that relationship. This was in X’s best interests.

3. Dr M observed the mother and child to appear to have a close bond.  She noted that X was very excited to be reunited with his mother and ran to her upon seeing her.  He enjoyed playing with her and was at ease in exploring the room.  He was also very excited to see his father and grandfather and ran to greet them.  He separated with ease from his mother to spend time playing with his father.  He was very comfortable with his father.

4. There has been historically a level of immaturity by each of the parties exhibited toward the other in their relationship with each other, and their level of insight into the impact of their behaviours on their child.  Both however presented as loving parents.  The father appeared to lack insight into the impact of the paternal grandmother’s behaviour and the distress that she had caused the mother.  In addition, he lacked insight into the impact of his own behaviour toward the mother since separation.  The mother appeared to have limited insight into the impact of her decision to relocate to (omitted), although she was prepared to adopt the recommendation of Dr M in the proceedings and gave evidence that if she was allowed to move in a year or so, she would stay in (omitted) until everything was sorted out.  She appeared to accept the advice given by the expert in terms of the promotion of X’s best interests, and although she has already waited for the greater part of this year to relocate out of (omitted), she was prepared to wait a further year so that X and his father could further establish and develop their relationship. 

5. The mother accepted in her evidence that she should have informed the father of her proposed move from (omitted) to (omitted) well prior to the time at which he discovered that she was contemplating such a move.  Her evidence was that she was not aware that he could stop her moving from one town to another, but in hindsight she conceded that, in a ‘moral’ sense she should have informed the father of her plans and discussed them with him, as the consequence of her plans was that X would spend less time with his father.  I accept the mother’s evidence that she has never denied the father time with X and accept that she has found the conflict presented by the father’s opposition to her and criticism of her at times difficult and has thus sought to avoid such conflict by not communicating with the father as to parenting matters when she should have. 

6. The mother alleged that the father and members of his family, in particular his mother, denigrated her in public, and that in a small town this has caused her great distress.  It is appropriate in these circumstances and for X’s best interests that each of the parties be restrained from denigrating the other so that X does not exist in a community where his parents are known to criticise each other. 

7. I propose to make an order for time spent with which concludes at 7pm given the mother’s evidence that 8pm has been unsettling for X.  That is his usual bedtime, and it has been delayed by an hour in order for the mother to accommodate the father’s present time spent with X.  I accept the evidence of Dr M that two consecutive nights for a child of X’s age is too great a time spent with his father and will make an order that it be for no longer than one night, but that such overnight time spent with occur weekly. 

8. Given the presumption is not rebutted and the parties agree that they each have shared parental responsibility of the child, then the Court is required to consider X spending equal time with each of his parents or significant and substantial time with his father.  X did not cope with a considerable period of time being spent with his father which approached equal time immediately following separation, and that is not surprising given he was eight months of age with a primary attachment to his mother.  The parties set up a more amenable and favourable regime of time spent with his father for X, which was ultimately reduced to a fortnightly regime, before by agreement and court order, becoming the more frequent and shorter intervals of time it currently is, save for the two-night period, which I accept on the evidence does not promote X’s best interests at this time.  The orders that will exist for the next 12 months will afford the father and X substantial and significant time spent with each other. 

9. The mother’s relocation has been considered in the context of all the matters which go to a promotion of the child’s best interests. The Court has considered those matters as set out in s.60CC of the Family Law Act 1975 (Cth) as it is required to. Should the mother reside in (omitted) it is not practicable for X to spend substantial and significant time with his father unless his father himself relocates from (omitted) to (omitted), or unless his father travels more frequently to (omitted). Both those things are possible. There is no work or relationship which compels the father to reside in (omitted) at the present time. He does have his parents, extended family and friends whom he does not wish to leave. That is understandable, but residing in (omitted) is an option for him, and may enable him to be gainfully employed and so contribute to the financial support of X in far greater measure than he does currently out of his Centrelink benefits. The mother seeks the relocation of X to enable her to complete a course which is not available to her in any practical way in (omitted). The move to (omitted) represents an opportunity for her to be gainfully employed into the future and provide the financial support necessary for the support of her children. It also provides greater job opportunities, as said by the mother, in her being offered placements as a student in the course and in the number of (omitted) businesses that operate in (omitted) by comparison with (omitted). The mother also desires a move to a larger town but in proximity to the father where she feels personally she will thrive and thereby so will X.

10. Whilst each of the parties have exhibited an appropriate attitude to the responsibilities of parenthood, it is the mother who on the evidence has done so to a greater extent as she has likewise to a greater extent provided for the emotional and intellectual needs of X.  The father acknowledges the child’s primary attachment to his mother in his consent to the child living with his mother.  The mother did in fact reside in (omitted). She commenced the course which she wishes to complete in 2010. She has been unable to complete it in 2013, and will be unable to do so in 2014.  To further prevent the mother from undertaking the course of her choice for an indefinite period of time may lead to further proceedings between the parties as to the care of X.

11. Whilst there is clearly a practical difficulty and expense associated with X spending time with his father where his father continues to reside in (omitted), and X takes up residence in (omitted), that practical difficulty and expense is not insurmountable in that weekly time spent between father and child could still occur if the father was prepared to travel once each fortnight to (omitted), in addition to the shared travel that will occur every second weekend.  The father, having lived in (omitted) previously, could also consider a return to that city to actively pursue employment opportunities.

12. X’s best interests are promoted by him remaining residing in (omitted) for a further 12 month period, and spending frequent but shorter periods of time with his father.  As he progresses beyond three years of age he can cope with longer periods of time with his father, which an alternate weekend can provide. 

13. I shall accede to the application of the mother.  I shall also order the parties to attend counselling forthwith, in line with the recommendation made by Dr M, to improve their parental relationship such that they can better deal with the logistics of travel between (omitted) and (omitted) in the years to come.  That counselling is an essential precursor to the move to (omitted) by the mother and child in late 2014.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date:  20 November 2013