Y and F
[2006] FCWA 95
•21 SEPTEMBER 2006
JURISDICTION:
FAMILY COURT OF WESTERN AUSTRALIA
| ACT: | FAMILY COURT ACT 1997 |
| LOCATION: | PERTH |
| CITATION: | Y and F [2006] FCWA 95 |
| CORAM: | THACKRAY J |
| HEARD: | 12 MAY 2006 |
| DELIVERED: | 21 SEPTEMBER 2006 |
| FILE NO/S: | PT 1729 of 2003 |
| BETWEEN: | Y |
Applicant/Mother
AND
F
Respondent/Father
Catchwords:
Children - residence - impact of legislative amendments - father permitted to move child to [the north of the state] - importance of Aboriginal child enjoying his culture.
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Legislation:
Family Court Act 1997, s 66A, s 66C, s 89AA
Family Legislation Amendment Act 2006
Category: Not Reportable
Representation:
Counsel:
| Applicant: | Mr S Jones |
| Respondent: | Mr S McDonald |
Solicitors:
| Applicant: | Calverley Johnston |
| Respondent: | Aboriginal Legal Service |
Case(s) referred to in judgment(s):
Nil
(Page 3)
1 ZY-F is nearly four years old. His parents, CY and AF, both want Z to live with them.
Orders sought
2 Ms Y proposes that Z live with her in Perth. She wants his father’s time with Z to be reduced to each alternate weekend and half the school holidays.
3 Mr F wants to take Z to [the north]. He proposes that Z come back to Perth to live with Ms Y for two weeks every two months until he commences kindergarten. Thereafter he suggests Ms Y should have Z for half the school holidays.
4 As a fallback position, each party would like to continue the current shared-care arrangement.
Brief background
5 Ms Y is 22 years of age. She has no qualifications and has not worked since Z was born.
6 Mr F is 27 years of age. He has completed a bricklaying course but he too has not worked since Z’s birth.
7 Mr F is a [tribal group] man. Both his parents are Aboriginal. He grew up in [the north], where his mother, grandmother and many other relatives still live. Ms Y is white, but has some Aboriginal relatives and many Aboriginal friends. She grew up in Perth.
8 Ms Y and Mr F met in Perth when Mr F came to the city to visit his mother in hospital. They started living together in 2001. There was only one child of the relationship, Z Y-F, born in October 2002. Ms Y and Mr F separated in January 2003, soon after Z’s birth.
9 Mr F wanted to return to [the north] after the separation, but was not prepared to leave Z. He slowly increased the amount of time he was caring for Z until the parties had a shared-care arrangement. In the middle of last year, Mr F decided to try to persuade Ms Y to modify that arrangement. He proposed a month- and-month-about regime, so he could return to [the north]. Ms Y was not agreeable and successfully applied for a recovery order when Mr F tried to implement his plan. Mr F had to bring Z back from [the north] and the shared-care arrangement resumed.
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Brief history of proceedings
10 Mr F commenced proceedings for residence of Z in March 2003. At the time, he was being permitted very little contact with the baby.
11 The parties were able to reach a number of agreements by which Mr F commenced having regular and increasingly lengthy periods of contact. Initially, orders were made to allow contact for three periods of four hours each week. This then increased to one full day midweek and a 48-hour period every weekend. Further consent orders were made in July 2003, allowing contact every week from 9.00 am Friday to 5.00 pm Sunday. Mr F was also permitted to take Z to [the north] three times over the next nine months, for a minimum of two weeks each time. The proceedings were then adjourned.
12 Mr F reactivated the proceedings in September 2003, after Ms Y failed to comply with parts of the consent orders. In June 2004, they reached a further agreement, pursuant to which Z was to live with Mr F from 9.00 am Monday to 9.00 am Thursday each week. Mr F was given permission to take Z to [the north] on four occasions each year, for two weeks at a time.
13 The current round of proceedings commenced in August 2005, when Ms Y applied for the recovery order already mentioned. Ms Y also sought discharge of the existing parenting orders. She presumed Mr F would be staying in [the north], so she proposed he have contact with Z for one week in every eight. Mr F cross-applied, seeking residence and proposing that Ms Y have contact with Z for two weeks every two months.
Applicable law
14 The trial took place in May 2006. Although this was two months prior to the commencement of the Family Legislation Amendment Act 2006, I am obliged to apply the substantive provisions of that Act in making my decision. Neither party sought to make any further submissions arising out of the amendments.
15 The proceedings therefore fall for determination under Part 5 of the Family Court Act 1997 in its amended form. I will accordingly be guided by the objects of that Part and the principles underlying them. Section 66 identifies these objects as promoting the best interests of children:
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| • | ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; | |||||
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| 16 | In deciding whether to make a particular order, s 66A directs the Court to regard the best interests of the child as the paramount consideration. Accordingly, it is a consideration of Z’s best interests that will be the final determinant. Section 66C sets out the matters I must take into account in determining what is in Z’s best interests. | |||||
| 17 | Section 66C(2) details what are described as the “primary considerations” and s 66C(3) details “additional considerations” to be taken into account. This dichotomy in the relevant factors has been introduced by the recent amendments. There is, as yet, no guidance from superior courts as to the way in which respect is to be paid to the intention of Parliament in specifying some factors, amongst many, as being the “primary” considerations. | |||||
| 18 | In reaching my own view on the effect of the amendments, I have had the benefit of reading a paper by the Honourable Richard Chisholm, following his recent retirement from judicial office. The paper, which dealt with identical amendments made to the Commonwealth Family Law Act 1975, was delivered at a recent conference of Judges in Adelaide. I do not propose to set out here the learned author’s compelling analysis of the appropriate treatment of the division between the “primary” and “additional” considerations. I respectfully adopt his summary of the significance of the characterisation of some of the s 60CC factors as being “primary”. |
“Those matters should be considered first among relevant considerations, and should be treated as being of particular importance in assessing what orders are likely to promote the best interests of the child.
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… [t]he primary considerations should not be regarded as necessarily outweighing or “trumping” other considerations, nor is it appropriate to attempt a mathematical or quantitative approach. The primary considerations, especially paragraph (a), cannot in fact be determined without reference to the additional considerations. A holistic approach is not only desirable, but logically necessary.
If all this is correct, the legislation will have been followed, in spirit and in the letter, if the court treats the primary considerations in subsection (2) as the first matters to be considered, and as matters of particular importance, as it engages in the task of determining, on the basis of the evidence and the provisions of Part [5], what orders are most likely to serve the best interests of the children who are the subject of the proceedings.”
The primary considerations
19 For the reasons discussed above, the first matters to be considered are the two primary considerations.
The benefit to the child of having a meaningful relationship with both of the child’s parents
20 I do not propose to refer to all of the research, judicial pronouncements and Parliamentary speeches highlighting the importance of children having meaningful relationships with both their parents. However, it is important to recognise, as Professor Chisholm pointed out in his paper, that the Act in its amended form does not say that maintaining the relationship between parent and child is “an end in itself”. The emphasis is on the benefit to the child. The benefit to the child of having a meaningful relationship with both parents therefore has to be weighed up against other advantages and disadvantages associated with the competing proposals.
21 I accept that when a child as young as Z moves a long way from one parent, it becomes much more difficult for them to enjoy a meaningful relationship. However, if I accede to Mr F’s proposal, there is nothing to prevent Ms Y from moving to live in [the north] and continuing to have regular contact with Z. I recognise she has accommodation, family and friends in the city and would much prefer to stay living here – but she has no work in Perth, no other children and there are no restrictions on her movement. Mr F has very similar reasons for preferring to live in
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[the north], including more stable accommodation and the
proximity to his mother, grandmother and many relatives.22 Looked at from this perspective, the outcome of the proceedings theoretically could have minimal impact on the relationship between Ms Y and Z, since it would not be the decision of the Court that would keep them apart, but rather Ms Y’s decision not to move to the [the north]. Nevertheless, even if Ms Y decides to remain in Perth, she can still have an ongoing relationship with Z by spending longer periods of time with him, albeit much less frequently. She will also be able to have regular telephone contact, which will become more meaningful as Z matures and his language skills develop.
23 Even if I were to continue the shared-care arrangement, there is no guarantee that Z would continue to spend significant amounts of time with each parent. I say this because I have some doubts whether Mr F will remain in Perth if he is not successful in his application. Mr F is becoming increasingly homesick for the [the north] and his kinfolk. I have no doubt he would have returned to live there long ago, were it not for Z.
24 It is readily apparent that Mr F is absolutely torn between his desire to return to his people and his country and his desire to be near his son. At some stage, the urge to return to the [the north] could become so strong that Mr F might go home, even if it meant having much less contact with Z. This might particularly occur in the event Mr F’s mother’s health deteriorates. This is a possibility, since she has had open-heart surgery and suffers from diabetes. Mr F has shown a willingness already to go home to care for family, as he did last year when his grandmother was ill and his mother had to leave town for a couple of weeks.
25 Accordingly, whilst this “primary consideration” is of great significance, it cannot in any way be seen as being determinative of the outcome.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
26 Thus far, there is no evidence to show that Z has come to any serious physical or psychological harm. Nevertheless, there are aspects of Z’s upbringing and of the personal qualities of his parents which lead me to feel it is very important that close attention be paid to ensure he does not come to harm in the future.
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| 27 | I have somewhat greater confidence in Mr F’s ability to be vigilant in ensuring Z is not subjected to or exposed to abuse, neglect or family violence. Importantly, I have no doubt that Mr F’s mother would do her utmost to protect Z if he commences living in her home. As Mrs F said in her evidence, she “wraps Z up in cotton wool” when he is staying with her. |
| 28 | Ms Y currently lives primarily with her father. Whilst I gained the impression that Mr Y is a moderating influence, he appears to allow Ms Y a fairly free rein. I do not see him taking the same role in protecting Z as I consider Mrs F would perform. In any event, I gained the impression that if Ms Y ever has a serious disagreement with her father, she packs up and goes to live with her mother or others. I doubt there is the same tension in the relationship between Mr F and his mother. I also suspect Mrs F would be much more adroit in ensuring Mr F complies with her wishes in relation to the quality of care to be provided to Z. |
| 29 | I am concerned about many aspects of Ms Y’s lifestyle, especially her use of alcohol and drugs and the fact that almost everyone with whom she associates uses drugs. Long experience in this jurisdiction satisfies me that children who are caught up in the drug culture are frequently exposed to physical and psychological harm. |
| 30 | I am satisfied Mr F no longer uses marijuana and I was not satisfied he has used other illicit drugs. Nor was I persuaded that Mr F’s consumption of alcohol is likely to be at such a level as to pose any threat to Z. On the contrary, the evidence suggests that Ms Y now has more of a problem with alcohol than Mr F does. |
| 31 | I am also concerned that Ms Y is prone to making life choices that are less than optimal. Her life experience and personality are such that she is likely to find herself involved with men who would provide a poor role model for Z. She was apparently not involved in a relationship at the time of trial; however, she had recently been seriously injured by a male with whom she was developing a romantic interest. She sought to explain one of the occasions she was caught driving whilst under suspension by saying she was “coming out of a relationship” and someone was threatening her. She also acknowledged that her mother took Z into her care at the time of separation because her mother did not like the person with whom she had started associating. I suspect her mother’s concern was more than because she was “going out with another Aboriginal”. |
| (Page 9) | |
| 32 | It is true that Mr F’s mother was also assaulted by her partner in relatively recent times. The assault was nowhere as near as serious as Ms Y had originally believed. Furthermore, Mrs F took prompt and very effective action to ensure that she was not exposed to further harm. The man in question is no longer a part of her life. She did not give me the impression of being the sort of woman who would enter into another relationship lightly, let alone with any person who might expose her or her grandson to any risk of harm. |
| 33 | This second “primary consideration” in my view strongly favours Mr F’s case. |
| 34 | I turn now to discuss the “additional considerations” I am required to take into account. |
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
35 Z is not yet four years of age. He is too young to express any meaningful views.
The nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other the child).
36 The hearing was quite truncated and there was no independent evidence which would allow me to arrive at any conclusive finding concerning the nature and quality of the relationship between Z and his parents and the members of his extended family. The only witnesses, besides the parties themselves, were Mr Y and Mrs F.
37 It would be reasonable to presume that Z has a close attachment to both his parents, as he has spent significant periods of his life being cared for by each of them. Mr F was not able to have anywhere near as much involvement in the care of Z as he wanted following the separation. He was stopped from taking Z home to [the north] and then was only able to visit the baby at the home of Ms Y’s mother for some weeks. This was during the period when Ms Y’s mother would not allow either parent to care for the baby. When Ms Y resumed care of Z, Mr F was still unable
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to have as much time with the baby as he wanted because it was hard to find out where Ms Y was living. When he was unable to obtain satisfactory contact, he promptly commenced legal proceedings and thereafter pursued the proceedings with some vigour. As a consequence, after these initial difficulties, he has been exercising extremely regular contact with Z.
38 Although Z spent more of the very early part of his life living with Ms Y than with Mr F, I am not convinced this resulted in him having any greater attachment to her. I have reservations about the quality of parenting Ms Y is likely to have provided Z. Those reservations relate not only to the fact that Ms Y appears to have suffered from more than mild post-natal depression but also because her lifestyle appears to have been fairly erratic. Any deficits in her parenting in these early times may have had some impact on the quality of the attachment between mother and baby. Ms Y acknowledged that Z loves Mr F.
39 I consider it likely that Z has good relationships with both of Ms Y’s parents. Ms Y’s parents separated when she was young. She has been primarily living with her father for some time; however, she is usually on good terms with her mother and seems to enjoy spending short periods of time staying with her. Z has therefore spent a fair amount of time with both his maternal grandparents.
40 I am satisfied Z knows Mr F’s mother and the large extended family in [the north] quite well, since he has been making regular trips there since he was very young. When he is in town he lives in the home of his paternal grandmother. Mrs F impressed me greatly, not only as a charming and cultivated woman but as a very warm person. I suspect Z would have a very close relationship with her. Z does not know his paternal grandfather, but Mr F is keen for him to meet his father and his relatives on that side of his family, who also live in the [the north].
The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
41 Ms Y has demonstrated some reluctance in allo wing Mr F to play a part in Z’s life. For example, she did not include his name on the birth certificate (Z’s surname was later changed by a consent order). On the other hand, she has been agreeable to Mr F taking an increasingly large part in Z’s life.
| (Page 11) | |
| 42 | I have some reservations about Mr F’s willingness to encourage a close relationship between Z and Ms Y. Mr F has a very low opinion of Ms Y, who he regards as nothing more than a “junkie”. |
| 43 | I do not consider this factor favours either parent – each of them is going to need to show greater respect for the other parent as Z matures, since whatever their failings, they are the only parents Z will ever have. I am satisfied that Mr F will show greater respect for Ms Y if she can kick her drug habit – and she will show greater respect for Mr F if he stops treating her with contempt. |
The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from –
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
44 Ms Y’s proposals would result in a significant reduction in the amount of time Z is able to spend with Mr F. Although they would be able to remain in regular contact, their relationship is likely to suffer to some extent, as Z has become used to seeing a lot of his father. Furthermore, if the orders were made precisely as proposed by Ms Y, there would be somewhat less opportunity for Z to visit his extended family in [the north], as it would only be feasible during the half of the school holidays when Mr F would have contact.
45 There would, of course, be a significant change in circumstances in the event orders were made as proposed by Mr F. Z would be living in the [the north] and would only be able to visit Ms Y infrequently, unless she moved to [the north]. This is significant because he has spent somewhat more of his time living with Ms Y than he has living with Mr F. He would also have much less time with his maternal grandmother and grandfather. On the other hand, he would spend much more time with his paternal grandmother, great-grandmother and his large extended family in [the north]. It is true that Mr F has some family in Perth, but I accept that he is closer to the many more relatives he has left behind in [the north].
The practical difficulty and expense of a child spending time with and communicating with a parent and whether
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that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
46 Z has become used to fairly regular travel between [the north] and Perth. The journey, however, is a long and arduous one for a small child. There is an air service, but it is much more expensive than other forms of transport and has only been used occasionally by Mr F and Z.
47 There was no evidence of the current cost of a return ticket to [the north] but when Mr F and Z were ordered to come back to Perth last year, the one-way coach ticket cost $191. Expense such as this would make it difficult for Ms Y to exercise more than infrequent contact with Z, since she has no skills and any employment she obtains would likely to be fairly poorly paid. Ms Y’s father has been generous in the past and I suspect he would assist Ms Y by meeting some costs associated with contact. Furthermore, Ms Y would have more money to spend on transport costs if she stopped using drugs. Of course, if Ms Y were to move to [the north] she would incur no travel costs in keeping in contact with Z.
The capacity of –
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child,
to provide for the needs of the child, including emotional
and intellectual needs.
48 As there was no independent evidence, it is difficult to assess how effectively both parents have provided for Z’s needs thus far. It would seem his development has been somewhat slower than might have been anticipated, for example, he did not begin to crawl until after he was 15 months of age. On the other hand, although he has had some health problems, he does not appear to have been hospitalised or suffered from any particularly serious health problems.
Accommodation needs
49 I am satisfied both parents currently have adequate accommodation for Z. Ms Y primarily lives with her father in his home and there are no other occupants. Ms Y and Z largely have the run of the house. Mr F will be living with his mother in her
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home. Although Mrs F babysits some of her young relatives, there
are no other people living regularly in the home.50 There is no particular reason to anticipate that either Ms Y or Mr F will need to look for their own accommodation in the short to medium term. However, if they ever had to do so, I would have serious reservations about Ms Y’s capacity to obtain and keep a residence. She appears never to have lived independently, save for one occasion when she had “supported accommodation”, which did not last long. On the other hand, Mr F was able to arrange his own stable accommodation until the middle of 2005, when he gave up his lease in the expectation of moving back to [the north]. Since then he has been more mobile, staying in various residences whilst waiting for the Court proceedings to be concluded
Financial needs
51 Both parties are likely to rely on social security in order to provide financially for Z. I doubt that Ms Y would ever look for work whilst she had social security. Mr F also does not show any great inclination to look for work at present, but I suspect when Z is somewhat older, he may do so. I consider this would be desirable as it would provide a good role model for Z and would also help Mr F to provide a better standard of living. It would be more realistic for Mr F to look for work in [the north] than in Perth, as he would have his mother and other relatives nearby to assist with Z.
Intellectual needs
52 I am satisfied each parent would make adequate arrangements for Z’s intellectual needs. I could see no justification for the proposition put on behalf of Ms Y that Z would be less likely to attend school regularly if living with his father than with his mother. If anything, I gained the impression the opposite might be the case.
Assistance from family in providing for Z’s needs
53 I have reservations in relation to the capacity of both parents to provide an adequate standard of care for Z. Ms Y appeared to be an immature woman for her age, with limited personal resources. Mr F is older and more mature, with greater personal resources, but he presented as a person who can be very domineering and somewhat aggressive.
54 I consider that both Ms Y and Mr F will benefit from the assistance they are likely to receive from the parent with whom
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they propose to live. Both Mr Y and Mrs F impressed me as
people who are anxious to do “the right thing” by their families.55 Mr Y has been very generous in providing accommodation and financial assistance to Ms Y. It is also very much to his credit that he has been able to maintain lines of communication with Mr F, as this has assisted the parties in managing their shared-care arrangement. I nevertheless had some reservations about him, including the fact that he has spent time in gaol (many years ago) for involvement in drug trafficking.
56 I was greatly impressed by Mrs F. She presented as a mature, warm and intelligent woman. She was most articulate and dignified in the way in which she gave her evidence. I consider she has a very great deal to offer Z. She would also be a firm moderating influence on some of the less attractive aspects of Mr F’s character.
Impact of drugs on Ms Y’s ability to attend to Z’s needs
57 One important element of the capacity of each parent to provide adequately for Z relates to their use of drugs. Ms Y has been a very long-term marijuana user, having commenced smoking dope in her teens. She admitted that she continues to use marijuana regularly. She does so even when she has Z with her, notwithstanding the order made in June 2004 preventing both parties from consuming drugs when caring for Z.
58 Although Ms Y glumly acknowledged marijuana no longer has the effect she experienced as a teenager, I gained the impression the only limit on her drug taking is her financial capacity to acquire drugs. Her father seeks to exercise no control over her drug taking, even though she lives in his home. He took the position that she would take no notice of him anyway and all her friends use marijuana.
59 Mr F is very suspicious that Ms Y is using drugs other than marijuana. Ms Y acknowledges having once tried amphetamines, but denies using anything else. On each of the drug test results she produced to the Court (three in early 2004), Ms Y tested positive to cannabis, but to no other drugs. I nevertheless had some reservations as to whether or not Ms Y was telling the truth about the extent of her drug taking. It would be inappropriate for me, in the absence of expert evidence, to do more other than to say that Ms Y is very, very thin and certainly not a picture of good health.
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| 60 | I do not accept Ms Y’s assertion that her drug use has no impact on her parenting. First, she admits she provides a poor role model for Z by continuing to take illegal drugs and associating with drug users. Secondly, I consider she underestimates the impact of long-term marijuana use on her functioning as a person, and therefore as a parent. |
| 61 | Ms Y never asked Mr F to submit to a drug test, although she was entitled to do so. He nevertheless regularly attended for drug testing, and on all occasions he was found to be drug free. I am satisfied Mr F has matured since Z’s birth and is unlikely to consume drugs again. I am also satisfied Mr F’s mother would not tolerate Mr F using drugs whilst he was responsible for Z. |
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
62 Z is still very young. I accept it is more difficult for a parent of a young child to maintain a long distance relationship with the child, since they have short memories and many find it difficult to maintain a conversation over the telephone.
If the child is an Aboriginal child or a Torres Strait
Islander child –
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order … will have on that right
63 Mr F takes his aboriginality very seriously. He expressed strong views about the marginalisation of Aboriginal people, and Ms Y’s counsel properly acknowledged that he had justification for doing so.
64 Ms Y’s family also has a close association with Aboriginal people. Her father had an Aboriginal partner and her three half- siblings are Aboriginal. Most of her friends are also Aboriginal. Although Ms Y has had very much more exposure to Aboriginal people than most other whites living in Perth, she demonstrated very little understanding of Aboriginal culture. She did not know which Aboriginal group her relatives came from and was not even sure which geographical area they came from. When asked
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whether she was able to participate in cultural activities with her Aboriginal relatives, she said they had “big Christmas get- togethers”.
65 I consider Z’s connection with his Aboriginal heritage would be significantly enhanced in the event he was permitted to live in the [the north] amongst his extended family. Not only would he be a permanent member of the family system in the [the north] but he would also find it easier to have the exposure to Aboriginal practices, which his father continues to follow when he is home in [the north].
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
66 Both Ms Y and Mr F are to be commended for the fact that they have successfully managed a shared-care arrangement for Z, even though they have a very hostile attitude towards each other. It is comparatively rare for a shared-care arrangement to work in such circumstances.
67 I am also satisfied that Ms Y and Mr F have tried hard to be the best parent they can be for Z. Although I have no doubt that both love Z very much, I gained the impression that Mr F was a more committed parent than Ms Y and took his responsibilities as a parent far more seriously. Whilst I acknowledge that she appears to have suffered from post-natal depression, Ms Y’s long delay in arranging the registration of Z’s birth, her failure to ensure that he was properly immunised and her failure to keep Mr F informed about Z’s immunisation/health suggested to me that she has a lackadaisical approach to Z’s wellbeing.
68 On the other hand, Mr F has been persistent and proactive about all aspects of Z’s care. I do not consider that his persistence arose from a desire to harass or annoy Ms Y, but rather from a genuine desire to advance his son’s wellbeing. For example, when it became apparent Ms Y would not organise Z’s immunisation, he took over responsibility for this task. When it was obvious that Z was not as mobile as he should have been for a child of his age, it was Mr F who arranged an appointment for him to see a specialist (although the problem rectified itself whilst he was waiting for the appointment).
69 I acknowledge there was some justification for the submission made by Ms Y’s counsel that Mr F is somewhat “possessive” about Z. I accept he also appears not to have a well-developed understanding of the importance of Z’s mother in Z’s life.
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Nevertheless, I consider that Mr F’s somewhat passionate statements about Z spring largely from his frustration about what he regards as being the inadequate parenting provided by Ms Y.
70 One of the responsibilities of parenthood is to ensure that children know right from wrong. Both parties have been in trouble with the law over the years, especially for driving related offences. I am satisfied, however, that there was some basis for Mr F’s claim that he has “straightened up” in more recent years. Nevertheless, I have not overlooked the fact that in the last two years he has been convicted of driving without a licence and also tried to pick a fight with a man who he felt was the cause of the breakdown of his relationship with Ms Y.
71 Both parents have indicated a reasonable ability to comply with Court orders. Apart from the hiccough when he took Z to the [the north], Mr F has done what he has been required to do in ensuring the contact arrangements work as intended. Ms Y has also ensured that Mr F has the contact to which he is entitled, although her attitude to punctuality has left something to be desired. She has also breached some orders, for example the one designed to prevent her from smoking marijuana and also the order about Z’s immunisation records.
Any family violence involving the child or a member of
the child’s family
72 Ms Y said that there were “a couple of incidents of domestic violence” during her relationship with Mr F. She described one when he put his hands tightly around her neck but she said “he let go and started crying and said he was sorry”. I find that Mr F has a fairly quick temper and would benefit from attending a course of anger management.
Any family violence order that applies to the child or a member of the child’s family
73 There are no family violence orders.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
74 I am not satisfied this is a factor of significance.
Any other fact or circumstance that the Court thinks is
relevant
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75 The most alarming evidence was that given by Ms Y and her father about Z sniffing petrol. They inferred this was behaviour Z learned when he was in [the north]. Both Mr F and his mother were incensed at the suggestion. Having heard both of them give evidence, I found it exceedingly difficult to believe that Z had been exposed to such activity whilst in their care. Even Ms Y readily agreed that Mr F and his mother were not at all likely to have allowed Z to come into contact with people engaged in petrol sniffing.
76 Mr F believes Ms Y and her father have made up this allegation because they recognise they have very few legitimate complaints concerning his parenting. Mr F suspects they have tapped into publicity concerning the petrol sniffing problem in some Aboriginal communities. Whilst I accept there is such a problem in some remote communities, the evidence did not satisfy me that there is any such problem in [the north]. Mr F, who knows the town very well, readily acknowledged there was a drug problem in [the north], but was adamant there was no petrol sniffing.
77 I was unable to conclude positively that Ms Y and her father were lying in giving this evidence about the petrol sniffing. If they were not lying, then Z must be sniffing petrol either because he has innocently discovered that he likes the smell (which some children do) or because he has been exposed to the activity when he has been with Ms Y or when she has left him in the care of some of her friends.
Parental responsibility
78 Mr F and Ms Y have previously agreed that they will share parental responsibility for Z. Neither of them seeks to change that arrangement. In these circumstances, although it is not the preferred position of either party, I am nevertheless obliged by s 89AA to consider:
• whether it would be in Z’s best interests to spend equal time with each parent; and, • if not, whether it would be in his best interests to spend “substantial and significant time” with each parent. 79 I have, of course, considered both these options, since the continuation of the current shared-care arrangement is the fallback
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position of both parties. Such an arrangement would allow Z to continue to have regular contact with both his mother and his father, as well as very regular contact with his mother’s family. Under such an arrangement, Z could also have occasional trips to [the north] to spend time with his father’s extended family. The parties have a demonstrated record of being able to make such an arrangement work.
Conclusion
80 I have concluded there are only two options likely to promote Z’s best interests – either to continue a shared-care arrangement or to allow Mr F to take Z to [the north]. There is absolutely no basis to consider reducing Mr F’s time with Z.
81 In considering the shared-care scenario, it is important to recognise that Z is growing up very quickly. He will start kindergarten next year and will move into pre-primary the following year. What may be a workable and appropriate while Z is three or four years of age could be quite impractical when he starts school. The parties presently live a long way apart and it would be necessary for one of them to move in order to make it practicable to continue a shared care arrangement after Z commences formal education.
82 This has been a very difficult case to determine; however, I find there is more to recommend in the proposal put forward by Mr F. I am satisfied that if Z was living in the [the north], he would be a member of a close and supportive Aboriginal family and community. He would be likely to live in a stable, secure and happy home, where he would have the opportunity to develop a very strong association not only with his father but his extended family. The only difficulty associated with the proposal (and it is a major one) is that Z would be unable to have the ongoing regular contact that he is currently having with his mother and his mother’s family. Although he could have more contact if Ms Y decided to move to [the north], I suspect this is fairly unlikely.
83 Although the decision is fairly finely balanced, my strong instinct is that Z’s prospects in life are likely to be better promoted if he lives with his father and grandmother than if he continues spending approximately half his life with his mother. Both Mr F and his mother impressed me as having much more to offer Z. I have therefore determined that orders should be made which would allow Z to be cared for by Mr F in [the north].
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| 84 | I nevertheless consider that Z’s move to [the north] should be delayed until just after Christmas 2006. Z is growing up quickly and his verbal skills are presumably developing fairly quickly. The older he is when he makes the move, the easier it will be for him to keep in touch with his mother by telephone, which I consider will be quite important in retaining their relationship. If Z arrives in [the north] just after Christmas he will have time to settle into his new home before the start of kindergarten in 2007. |
| 85 | When Z starts attending kindergarten, I consider that he should come to Perth for two weeks every eight weeks. This will not be too disruptive at that stage of his education and will ensure that he stays in regular touch with Ms Y and her family. However, when he starts pre-primary the following year, I consider he should remain at school during term-time and visit Ms Y for a little more than half the school holidays. I have in mind that he would have five days in [the north] each mid-year holiday period and about two weeks during the Christmas holidays, with the rest of the time spent travelling and with Ms Y. Christmas Day/Boxing Day would be spent one year with Ms Y and the next year with Mr F. |
Orders
86 I will ask counsel to attempt to agree the form of orders needed to give effect to these reasons. If agreement cannot be reached I will rule on the matters in dispute.
87 I imagine that a likely area of dispute will relate to the costs of transport for the contact arrangements. I will require further submissions on this issue if it cannot be agreed, but my preliminary view is that the costs should be shared equally, even if Ms Y is not paying any child support. If neither parent is working, it would be appropriate for Ms Y to come up to [the north] to collect Z and for Mr F to come down to Perth to bring him home until he is old enough to travel unaccompanied. Arrangements could also be made for a suitable third party to accompany Z as this might reduce the costs of contact.
88 Although I do not propose to make an order to this effect, I would consider it a sign of good faith if Mr F was to enrol immediately in an anger management program in Perth or undertake such a program if one exists in [the north]. If he starts a program in Perth he may not have time to finish it, but I consider he would be likely to find the early stages of one of these programs to be enjoyable and beneficial.
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| 89 | I also consider it would be highly desirable for Ms Y to undertake a program or counselling to deal with her longstanding addiction to marijuana. |
I certify that the preceding [89] paragraphs are a true copy of the reasons
for
judgment delivered by this Honourable Court
Associate
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