FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PRICE & BARNETT | [2008] FMCAfam 589 |
| FAMILY LAW – Child – relocation – parenting orders – best interests of child. |
| Family Law Act 1975, ss.4, 60B, 60CC, 61DA, 65DAA Family Law Amendment (Shared Parental Responsibility) Act 2006 |
| M & S [2006] FamCA 1408 Godfrey v Sanders [2007] FamCA 102 A & A; Relocation Approach (2000) FLC 93-035 P v P [2006] FMCAfam 518 Taylor v Barker [2007] FamCA 1246 |
| Applicant: | MR PRICE |
| Respondent: | MR BARNETT |
| File Number: | DNC 158 of 2007 |
| Judgment of: | Cameron FM |
| Hearing dates: | 12 – 16 May 2008 & 4 July 2008 |
| Date of Last Submission: | 4 July 2008 |
| Delivered at: | Darwin (by video-link from Sydney) |
| Delivered on: | 15 July 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr C. Black |
| Counsel for the Respondent: | Ms D. Elliot |
| Counsel for the Child: | Ms E. Terrill |
| Solicitors for the Applicant: | Cecil Black |
| Solicitors for the Respondent: | Northern Territory Legal Aid Commission |
| Independent Children’s Lawyer | Terrill & Associates |
ORDERS
The child [J] born in 2002 live with the mother in Cairns in the State of Queensland.
The mother and father each have equal shared parental responsibility for the child.
Each parent keep the other advised in writing of their residential address and their telephone number.
Each parent notify the other of any serious medical ailment or injury which may afflict the child.
The mother notify the father in writing of the name and address of the school at which the child attends and advise that school of the name and address of the father.
The child spend time with the father as follows:
(a)for three weeks of each Christmas school holidays, being the second half of the 2008/2009 school holidays and each alternate year thereafter, and for the first half of the 2009/2010 school holidays and for each alternate year thereafter;
(b)for the whole of the holidays following the conclusion of the first school term each year;
(c)for the whole of the June/July mid-year school holidays each year;
(d)in Cairns for one weekend each school term provided the father give to the mother 14 days’ notice in writing, such time to commence after school on the Thursday afternoon and to cease at the commencement of school on the following Tuesday; and
(e)in Cairns for the weekend in which Fathers’ Day falls, provided the father give to the mother 14 days’ notice in writing, such time to commence after school on the Friday and to cease at the commencement of school on the following Monday.
For the purposes of:
(a)order 6(a) the father is to arrange and pay for the airfares of the child and an accompanying person and notify the mother of these arrangements in writing 30 days in advance;
(b)orders 6(b) and (c) the mother is to arrange and pay for the airfares of the child and an accompanying person and notify the father in writing of these arrangements 30 days in advance;
(c)orders 6(a), (b) and (c), changeover is to occur in the arrivals hall of Darwin airport; and
(d)orders 6(d) and (e) the father is to collect the child at school at the commencement of the time and deliver her to the school at the conclusion of the time.
The child whilst in the care of the father not be in the vicinity of or exposed to any firearms which are not in storage.
The child have liberal telephone contact with the father on a mobile phone provided by and maintained by the mother between the hours of 3:30pm – 6:00pm on Sundays, Tuesdays and Thursdays.
Until the mother’s relocation to Cairns the father spend time with the child as follows:
(a)each alternative weekend from after school on Friday until the commencement of school on Monday, with the child to be collected by the father at the school at the commencement of the time and delivered to the school on Monday morning (or Tuesday should there be a long weekend);
(b)for the purposes of this time, order 8 does apply and the father is not to conduct his business at his workshop in the presence of the child;
The mother be permitted to relocate to Cairns with the child on or after 19 July 2008.
Those parts of orders 7(a) and (b) which refer to an accompanying person be discharged on the 10th birthday of the child or as otherwise agreed by the parties in writing.
IT IS NOTED that publication of this judgment under the pseudonym Price & Barnett is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNC 158 of 2007
| MR PRICE |
Applicant
And
| MR BARNETT |
Respondent
REASONS FOR JUDGMENT
Introduction
The parents in this matter are thirty-eight years old and commenced living together in about 1999. Their only child, [J], was born in 2002. On 31 December 2004 the parties separated at which point the mother left Darwin and went to Cairns where her family lives. Following proceedings in this Court, the mother returned shortly thereafter to Darwin where she and [J] still reside.
Final parenting orders were made by consent in the Family Court on
14 October 2005, subject to a minor variation made on 5 December 2005 by consent. The effect of those orders is that [J] lives with her mother and that her father spend time with her:
a)at all reasonable times by telephone but no later than 9:00pm;
b)during the school terms from 6:00pm each Tuesday until 7:30am Wednesday;
c)each alternate weekend from 6:00pm Friday until 6:00pm Sunday;
d)the whole of the Fathers’ Day weekend each year with her mother having [J] for the whole of the Mothers’ Day weekend each year;
e)half of the June/July and Christmas holiday periods;
f)the whole of the April school holiday period in alternate years; and
g)the whole of the September school holidays in alternate years.
Other orders regulating the parties’ relationship and responsibilities to each other and to their daughter were also made.
At the time of the hearing in these proceedings [J] was six years old and was attending primary school.
These proceedings
On 6 June 2007 the father sought orders varying the consent orders made in 2005 and, in particular, seeking:
a)pick-up from the mother’s home at 5:15pm on Fridays and drop off at 7:30am on Mondays either at the mother’s home or at school, every alternate weekend;
b)pick-up at 5:15pm every Tuesday and drop-off on Thursday 8:15am every week either at school on school days or at the mother’s home on other days;
c)the father’s weekends with [J] commence on Thursdays or terminate on Tuesdays should the Friday or the Monday of such weekends be public holidays;
d)should [J] be with the father on the weekend on which Mothers’ Day falls then [J] should spend between 9:00am and 4:00pm with the mother on Mothers’ Day with an equivalent arrangement for Fathers’ Day;
e)if [J]’s birthday falls on a non-contact day of either parent then she would spend a minimum of four hours with the other parent;
f)Easter holidays with the father every alternate year; and
g)if a parent’s birthday falls on a non-contact day [J] should spend a minimum of four hours of that day with that parent.
In her response to the father’s application, the mother sought orders permitting her to relocate with [J] to Cairns.
Issues in dispute
The parties are in dispute on all significant matters other than that there should be shared parental responsibility.
The law
In reaching a decision in this matter the Court is required to have, as its paramount consideration, [J]’s best interests. The objects of that part of the Family Law Act 1975 (“Act”) which deals with parenting orders, and the principles underlying those objects, are found in s.60B of the Act. Relevantly it provides:
Objects of Part and principles underlying it
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture)…
A child’s best interests are determined by reference to s.60CC of the Act which provides:
How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long-term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
(4A) If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred…
Orders giving effect to the Court’s conclusions regarding what is in a child’s best interests may be made having reached a conclusion concerning the question of whether it is in the child’s best interests for the child’s parents to have equal shared parental responsibility for him or her. In this regard, s.61DA says:
Presumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption of shared parental responsibility applies, then regard must be had to s.65DAA which provides:
Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
The evidence
The father
Implementation of existing orders
The father said that difficulties in his relationship with the mother had overtaken and impacted on the implementation of the consent orders. He said that the consent orders did not allow him sufficient time with [J] even though, being self-employed, he had absolute flexibility as to when he worked and it meant that it was reasonably practicable for him to spend equal time with the mother in caring for [J]. The father said that his workshop generally opened at 7:30am and closed at 4:30pm and that he had no employees. He said that he would be able to open the workshop later and close earlier if [J] was with him.
Amongst the problems with the operation of the consent orders to which the father deposed was the inefficiency of changeovers at a police station when it would be easier and more convenient to drop [J] off at school on Monday or Thursday mornings. Moreover, the father complained that the mother was often late in dropping [J] off and picking her up. He noted that when the mother was late in dropping [J] off, it diminished the time he spent with his daughter, particularly as he generally had to feed and bathe her before she went to bed which, to him, meant they spent less time together than if these tasks had been undertaken by the mother before drop-off. When it came to late collections, the father said that for the mother to be late while he and [J] were waiting for her at the police station amounted to a lack of respect for [J].
The father’s proposal was that he be [J]’s carer for 78 hours per week.
Relationship of Parents
At the outset of his evidence the father expressed regret if his prior behaviour had upset the mother. Even so, he gave little evidence which shed much light on the relationship of the parties while they were living together other than, principally, to deny the mother’s allegations that he was angry, moody and intimidating.
The father denies the mother’s assertions that the relationship was one of aggression on his part coupled with an inability to communicate. Notwithstanding this evidence, he did concede that if he was upset he would not speak for a day or so.
The mother alleges that the father used to address her in demeaning tones and ordered her about. He denies this.
The father also denies the mother’s allegations that he is controlling and menacing although he admits that he is forthright on issues which impact on [J]. He also says that he is prepared to listen to other points of view although also willing to challenge them. He commented that although some might consider such behaviour to be controlling it is not intended to be.
He admitted that there was an occasion when he shouted at a female neighbour because of a dispute over a dividing fence. This arose out of the father being upset that, notwithstanding an agreement with the neighbours about how the fence was to be repaired, the neighbours had done a cheap job and, rather than securing the boundary properly, had spent their money on a car. The father said that the fence was not secure and children could fall through it. He said that he had shouted because his neighbour had been “having a go at me”. He said that the neighbour was “egging me on” by saying “you are a woman basher”.
As to the parents’ current relationship, the father said that it was hard to say good things about the mother although he respected her as [J]’s mother. The father denied that he was hostile to the mother saying that she was hostile to him. He said that the mother made life difficult for [J] and him.
The father agreed that on one occasion a friend had contacted him to say that the friend had seen [J] running wild and unsupervised. The father rang the mother to check only to discover, he said, that the mother was at the pub and did not know where [J] was.
Separation
On 31 December 2004 the father asked the mother to leave the home. His evidence was that he did so because she was violent and that this was no good for [J] and had to stop. No details of the violence which motivated his request of the mother that she leave were provided in the father’s evidence.
After the father ejected the mother from the home, she went initially to a friend’s home and shortly afterwards to Cairns where her family lives. The father says that he was concerned at this time because he did not know [J]’s whereabouts and the mother would not tell him where she was nor for how long she was going to be away. As a result, he sought a recovery order which saw the mother and [J] return to Darwin by 27 January 2005.
The first part of 2005
The father said that the period January to July 2005, when the changeovers were at the [X], was a very hard time in their lives. He conceded that he was angry with the mother but denied that he was aggressive at changeovers.
The father said he was devastated and disappointed by the breakdown of the relationship. He said that early 2005 was very stressful for him and that in the first half of that year although he tried to talk to the mother she would not ring him. In that period he only saw her at changeovers. The father said that he was not aware that upon the mother’s return to Darwin she lived in a YWCA safe house. He said that he had not been told where she lived and only learned of her address in July 2005 as a result of the property settlement proceedings between them.
The father said that six months into the separation the parties were not communicating regarding [J]. An example of this lack of communication was seen in February 2005 when the father enrolled [J] in a childcare centre. The father conceded that he did not initially advise the mother that he had enrolled [J] in childcare.
Even so, the father expressed the view in evidence that generally conflict was initiated by the mother and that she dictated to him in relation to [J].
The second part of 2005
The father said that for five to six months in the second half of 2005 the relationship between the parents was not too bad but then the mother started to become unreasonable which was why changeovers were moved to the police station.
Notwithstanding that it would appear that the parents’ relationship had deteriorated by the end of 2005, the father said that [J]’s third birthday party in 2005, at which he and the mother were the only people other than [J] present, was a lovely night which [J] and her mother both enjoyed. Somewhat contradictory of this was the father’s evidence that the mother would not let him see [J] on that birthday and that his participation in the birthday party was for the sake of peace.
Complaints to FACS and police
The father said that he had a diary full of records of the mother being late and he complained that she never told him when this was going to happen whether by, for instance, telephone or text message. Moreover, these matters were of sufficient importance to him that, in order to maintain something like an independent record of these occasions, he reported them to the police so that they would be noted in a police daybook.
The father agreed that on three occasions he had complained to Family and Children’s Services about the mother and, in respect of one matter, rang the Chief Minister’s office four times.
First day at school
The father says that on the evening before [J]’s first day at school in 2007 he had telephoned the mother to let her know that he was intending to come to the school to see [J] off. Although he arrived at school “about 0743” the mother arrived at school at “about 0820” which was about 30 minutes late. The father said that the mother was angry at having been delayed in traffic and because of this he did not engage her and did not go into the school building as he had intended, which also prevented him from taking a photograph of [J] which he had wanted to do before school started. He said that he was “gutted” that he could not take the photograph and expressed the view that the mother was trying to get a response from him by being late deliberately.
At about 10:10am the same day, said the father, the mother arrived at his workshop appearing to be very angry. He did not explain why she would have been angry. His evidence was that although he asked her twice to leave she did not and then, he says, she struck his head on five occasions with a clenched fist. A domestic violence order was subsequently obtained against the mother but was not confirmed, nor was an order made against the father as sought by the mother, she alleging that he had head-butted her.
Relationship with [J]
[J]’s early life
The father says that he was present at [J]’s birth and in her early years there was no aspect of her life in which he was not involved. He said that he fed her, changed her nappies, played with her and read to her. He says that he often came home from work during the day when the mother telephoned him to say she was having difficulties putting [J] down and that when he got [J] to sleep he returned to work. The father also said that if [J] cried at night and he heard her he would, without being asked, see what she needed.
Quad bike
The mother has expressed concerns about the father permitting [J] to ride on a small quad bike which he has purchased for her. The father says that he has taught [J] how to ride the bike and that when she does he ensures that she is dressed with a safety helmet, body armour, gloves, goggles and boots. He further says that the vehicle is speed governed at about seven kilometres per hour and that when she is riding the bike a safety strap is attached to her wrist which deactivates ignition on separation.
Moreover, the father walks behind the bike and holds a cord connected to the bike which can operate the safety switch should she get into difficulties. The father says that [J] loves riding the bike around the home property where the land is even.
Values
The father says that at all times he has tried and will continue to try to teach [J] safety, ethics and values and that he has and will in the future educate her in being able to deal with the exigencies of life.
The father said that he sought to teach [J] values such as going to school, working hard and helping the poor and needy.
How father presents relationship with mother to [J]
The father said that he has told [J] that he loves the mother and that the mother loves him but they just cannot live together.
Father’s relationship with his family
Arising out of the family report appeared an apparent unwillingness on the part of the father to discuss his own personal family history. This was put to him in cross-examination and he said that he would not talk to strangers about this issue, including the family report writer.
In evidence the father conceded that he had had a poor relationship with his own family. He did not have much contact with his parents in the period before they died and said that he chose not to have contact with his mother having been made a ward of the state at age seven.
He said that it was hard to understand how a parent could walk away from a family and children. He also said that of his three surviving siblings, all sisters, he only had contact with one and did not care for [J] to have contact with another of them.
Other matters
Business name
The evidence adduced on behalf of the mother suggested that the father lacked respect for women which disrespect was manifested, amongst other things, in the name he gave the company which operated his business. He denied that the name was an allusion to female genitalia.
Ms B
The father described Ms B, his sometime companion, as a close friend and said that intimacy ceased four to five months prior to the hearing. The father said that he was trying to concentrate on these proceedings and could not focus on them if he was also in an intimate relationship. He said that he put the relationship on the back-burner, slowed it right down, in order to give priority to [J]. He said that it was very hard to concentrate on [J] and on a relationship as well and was trying to give “my all” for the sake of his daughter.
The father said that Ms B had not played a major part in [J]’s life although she might do so in the future. He decided not to get an affidavit from her for these proceedings.
Generally
The father’s view was that if the proceedings were truly about [J] then the parties would not have been in Court.
When questioned by the child’s representative as to how an increase in the time [J] spent with her father might be arranged in respect of practical issues like school uniform and schoolbags, given that the parents had already failed to negotiate many issues notwithstanding that the October 2005 orders provided for shared parental responsibility, all the father could say was that a parenting course or similar might be of use. He was not able to answer how [J] could be brought up to be a well adjusted child if she divided her time more equally between two homes with quite different routines.
The father conceded that it would be good for [J] to know her grandparents and her extended family in Cairns and that, were she to move there, the living conditions would be good.
In relation to the possibility of his own relocation, the father observed that he had a good client base in Darwin. He said that he could not relocate to Cairns because it would require him to sell his business and home with, in his view, no guarantee that the mother would not move from Cairns at a later point necessitating a further move on his part.
Mother’s evidence
The mother deposed to having been subjected to harassment over the consent orders, death threats, bullying, intimidation, abuse and humiliation at the hands of the father. The mother says she is afraid of the father and tries to avoid being in his presence. She further deposes that she feels restricted in her movements and social activities in Darwin because of the father. For instance, she referred to the father’s friends reporting on her to him when she was out with [J] which led to him then querying her about her activities. She said that she felt the father was trying to hold her back in life and control her future. She finds life in Darwin expensive and asserts that there are better opportunities for full-time work, together with strong family support, were she to move to Cairns.
Even while the father and mother were together she says that sometimes she left his workshop in tears because of his unkind words. She says that at first he was not so bad and he promised to improve but things did not improve. According to the mother, the father was drunk from time to time, physically assertive, angry and tense. She described his moods as very changeable and concluded that she was unable to please him.
The mother also deposed to the hard work which the father put into his business sometimes commencing at 3:00am and not returning until 8:00pm. Unsurprisingly perhaps, she described him as “cranky and bad-tempered”. Indeed, when the mother’s parents came to visit her in Darwin, her own father assisted [J]’s father in his workshop “as he was so stressed”.
The mother described the couple’s separation as being precipitated by a fight on 31 December 2004 when the father demanded she leave, threatening violence. She said that she no longer wanted to be treated in this fashion and so the next morning went to the YWCA and spent two days in a safe-house with [J]. She thereupon moved to Cairns for three weeks following which she was served with recovery order proceedings. She returned to Darwin with [J] and for a period she lived in a safe-house provided by the YWCA.
On the night of the separation, the mother said that she left with the clothes she was wearing and the father had locked the car so she could not get [J]’s nappies. She went to a friend’s home where she was informed that she had until 11:00am the next day to remove her effects because at eleven o’clock the locks would be changed. On New Year’s Day the mother collected her things and on 10 January 2005 she advised the father that she was in Cairns.
The mother gave evidence of the police coming to her home in June 2005 in response to a complaint made by the father regarding a possible injury to [J] caused by the mother’s dog. I accept that [J] was not hurt by the dog but simply fell, with her bottle, out of bed on top of the dog and split her lip. The relevant police report, which became an exhibit, shows that the complaint which precipitated the police visit was made on 22 June 2005 but it also discloses that the event in question occurred on 14 June 2005. That date accords with the mother’s evidence that she informed the father shortly after the event in question of what had happened and of her expectation that there was nothing untoward although, at the very early stage, she could not rule out the possibility that [J] had been bitten.
In the second half of 2005 the relationship improved and the parties were getting on better. The mother said that they had discussions when the father was civil but not when he rang up and when he was abusive, making the point that he was always nice when he wanted something.
The mother conceded that where in her affidavit she says that she and the father had “no communication at all” this was not completely accurate because, in fact, there had been some communication although, admittedly not much, and it was very difficult. One example of an agreement which the parents were able to reach was the primary school in which [J] is now enrolled. The mother said that she had tried to use a communication book with the father but he did not return it once she had sent it to him. But in any event, she said, a communication book was not the same as having a discussion.
The mother said that at [J]’s first day in school she was late and upon arrival she and [J] were approached by the father whom she observed to be glaring at them and very angry. The mother said that she and [J] were both a bit scared and when questioned how she could know if [J] was scared she said that her daughter grabbed her by the leg.
Afterwards, the mother went to the father’s workshop because, she said, she had been ashamed of his behaviour and wanted to tell him that he should have been ashamed as well. She denied being angry.
Some of the mother’s concerns may be encapsulated in her evidence that some of the father’s parenting might be a bit extreme for a girl of [J]’s age and that he lacked maturity in his actions regarding [J].
She instanced the fact that he keeps firearms at his home, for which he has a licence, a shed which has quad bikes and “bits and pieces” to which [J] has free access and [J]’s use of the quad bike the father bought for her.
The mother does not like [J] going to the father’s workshop because cars come in and out, their batteries are open or recharging and there are items there which are dangerous even for adults.
In an interview on 16 July 2007 with Family and Community Services she is recorded as having expressed her feelings towards the father and his family in strong terms although, in her evidence, she disputed the quotations attributed to her in the departmental file note.
She conceded that she could be an overprotective mother. She had seen a psychologist and received counselling to address issues concerning whether she was doing the right thing or whether she was being overprotective.
The mother spoke of intimidation by the father’s friends when she was out and about. She described them walking past her and not looking at her, addressing [J] rather than her. As a result, the mother said that she tried not to go out too much.
The mother said that she was not proposing to go to Cairns in order to get away from the father but to get a job and to live life in the company of her family and so that [J] could do so too. Even so, she conceded that it was not wrong to say that she no longer wished to live in fear or to be intimidated by the father’s friends or embarrassed by stories that she said had gone around Darwin.
The mother said that she could not work in Darwin because [J] is still only in transition class and she could not ask the father to look after her because, in her view, his work comes first and always would. She said that she did not believe that the father would be capable of looking after [J] and would take her to his workshop as he had previously.
Mr V
Mr V has been a friend of the father for ten years and the two of them have spent a lot of time together. He observed the father to have been devastated by the break-up with the mother and they discussed it at great length. The father blamed the mother for the break-up. Mr V was not employed and used to visit the father at his workshop. He saw the mother there in the second half of 2005 and the first half of 2006. He also said that he saw her in early 2005 at the workshop but conceded that his memory might not be perfect owing to medication he had been taking.
Mr S
The father’s neighbour Mr S gave evidence and while expressing admiration for the work the father had done around his house and the pride he took in the presentation of his home, he commented that the father had firm ideas which others might consider he was aggressive in defending. Mr S had observed the father with [J] and said that the father and [J] enjoyed a very loving relationship and he had never seen the father make an angry gesture towards [J] or say a word in anger to her. In his evidence, Mr S described the father as outgoing in respect of his opinions and passionate about his ideas.
Ms M
A former neighbour Ms M gave evidence of the father speaking about the difficulties he had in coming to agreed shared parenting arrangements with the mother and having spoken out against what he perceived to be unwarranted intrusions into his relationship with [J]. Ms M said the father complained about having to explain and justify himself to other people such as those in the Family Law system and the solicitors he had instructed. He had expressed frustration about having to account for his actions.
Ms M described the father as being firm in his opinions but also said that he had moderated and matured and was now more tolerant and considerate.
She also said that the father spoke of the difficulties he had had with the mother, that they did not get on well and that they did not talk to each other about [J].
Maternal Grandmother
[J]’s maternal grandmother deposed to the accommodation and family support which the mother and [J] would enjoy were they to move to Cairns.
She also deposed to a visit which she and her husband had paid to the parties in 2000 when they parked their caravan in the yard of the parties’ home. In her evidence she said that the relationship she and her husband had with the father at that time was quite good and there was no disharmony between [J]’s parents which was out of the ordinary although the mother reported that the father was being rude to her.
[J]’s grandmother visited again around the time that she was born during which the father seemed to her to be on his very best behaviour.
When [J] was approximately three months old her maternal grandparents again came to Darwin and stayed for a further three months in their caravan at the back of the parties’ home during which time [J]’s grandfather again assisted the father at his workshop. During this visit the grandmother observed the father being demeaning to the mother and by the time they left at the end of their three month visit, in her view he was not being a very nice person.
The grandmother said that although she has no respect for the father, for [J]’s sake she would facilitate his relationship with [J] were she to move to Cairns. She also said that the mother and [J] could live in the flat in the grandparents’ house for nothing and would receive financial support were that to be necessary although it was expected and anticipated that the mother would find employment in Cairns.
Ms B
The father’s sometime companion, Ms B, swore a short affidavit and attended the hearing after being subpoenaed. Annexed to Ms B’s affidavit was an unsigned statement, to which she adhered in her oral evidence, in which she spoke highly of the father’s parenting skills and the quality of his relationship with [J]. Also annexed to Ms B’s affidavit was a series of emails the most important of which referred to extreme mood swings and fits of rage demonstrated by the father.
She also expressed the view that the father had no respect for women.
In her evidence Ms B said that the father had used extremely intemperate and violent language in relation to the mother although
Ms B was confident that he would not follow through on these exclamations. Even so, Ms B expressed fear for her own safety and that of her pets as a result of her giving evidence in these proceedings. She said she was afraid because of the intensity of the father’s aggression and violent behaviour. She also believed that there was a potential for harm from the father’s associates.
Ms B expressed the view that the father sat “on a fine line” and that it did not take much to make him angry. He even conceded to her that he was moody.
For all this, Ms B said that the father was not threatening to [J] and was very careful and caring with her. However, she also made reference to a shopping excursion with the father and [J] and to the father’s mood change when they returned home at which point “[J] and I copped it”. [J] was spoken to in an angry way and told to go off and do something.
Ms B said that the father excluded her from his wider social life and had also tended not to involve her with [J], keeping her at arm’s length. Even so, Ms B had been able to see that [J] is aware of when her father might not be in a good mood and she manages her behaviour accordingly by being quiet, less demanding or more compliant.
Admitted into evidence was a letter which Ms B sent to the father some time ago referring to occasions of intemperate behaviour and expressing her objections to that conduct. In the letter Ms B talks of the father’s attitude towards her as being unkind and disrespectful.
In particular, she suggested in that letter that the father’s behaviour may demonstrate to [J] that his behaviour is an appropriate way for a man to treat a woman.
Ms B contradicted the father’s evidence concerning the meaning of his company’s name and said that at an earlier time he had said that it referred to female genitalia. Her evidence also contradicted elements of his evidence concerning the nature and course of their relationship.
The family report
Although these proceedings were initiated by the father’s application for something close to equal time, the family report writer, Ms Pavlin, identified the key issue occupying the minds of each of the parties as being [J]’s possible relocation to Cairns. She records the parties as holding each other responsible for the ill-feeling between them and as portraying the other as putting their own agenda and wishes ahead of [J]’s interests.
Ms Pavlin reported the mother as speaking urgently of her own concerns and conveying a sense of desperation about the father’s continued presence in her life with regard to matters other than [J]. She reported the mother as saying the father was controlling in the extreme and personally menacing.
The mother is also recorded as disagreeing with the father’s parenting partly because guns and vehicles were an important part of his lifestyle and she believed that the father exposed [J] to inappropriate risk by letting her ride a quad-bike when she believed she was too young to
do so.
The father is reported as having been reticent with regard to his own past. Ms Pavlin described the father as appearing to find it difficult to be asked questions concerning his childhood and parents saying that he did not see the relevance of it. Indeed, he acknowledged his intentional cutting of ties with his family.
The report records that despite his frustrated and critical references to the mother the father insisted that he was not hostile to her and said that, when asked by [J], he told her that “Mummy still loves Daddy”. Ms Pavlin observed that making such a statement in circumstances where the objective facts contradicted it sent mixed messages to [J] and was unhelpful to her emotional development.
The report also records that the father perceived the mother to be attempting to “dictate” to him what he may or may not do, finding this abhorrent. He asked rhetorically of Ms Pavlin “how does one chastise someone like [the mother] for what she is doing?”.
[J] was described as developing well on the whole and reaching the expected milestones for her age, being described by her teachers as bright, responsive and eager to please. Her teachers also described her as developmentally normal. Even so, Ms Pavlin said that it was clear that [J] had adopted an active role in dealing with her parents’ differences of views concerning what degree of involvement was appropriate for the other.
Ms Pavlin concluded that [J] shows significant proficiency in tuning in to the emotional states and needs of each of her parents which enables her to move between the two households with a relative degree of poise and apparent ease although Ms Pavlin suggested that it came at some cost to her fundamental emotional well-being. Ms Pavlin highlighted the inability of the parents to accept each other’s parenting styles and their belief that the other imposes an unacceptable degree of control or intrusion into each other’s life.
In her evidence, Ms Pavlin expressed her concern that communication between the parents could not be had in a tension-free manner.
Ms Pavlin noted that neither parent had found an effective means of diminishing or adequately coping with the powerful negative emotions which caused the separation. She concluded that the father’s proposal of shared residence whether on a three day rotation or a seven day rotation was not in [J]’s best interests because of the unacceptable emotional burden that such frequent changes would impose on her.
Ms Pavlin expressed the view that it would be desirable when each parent was with [J] that they were less pre-occupied with the other and, rather, live their life with their child. She was of the view that fewer transitions and longer periods with parents would permit their lives to get underway with the consequence that they would be less in each other’s minds and dwelling on the enraging aspects of the other’s behaviour. Ms Pavlin concluded that the relocation proposal presented the prospect of less emotional cost to [J] arising out of her movement between her parents and was coupled with an anticipated reduction in tension on the part on the mother who has been separated from the physical and emotional support of her extended family.
Ms Pavlin concluded that the mother was connected with her family and has felt stranded during the course of this dispute with their support being so far away. Ms Pavlin further concluded that while this situation existed, no matter how earnestly the mother tried to maintain [J]’s relationship with the father, she would be better off with her family and it would be better to take the mother out of a situation where she cannot do anything. Ms Pavlin said that the mother could settle down and be a better mother if she moved away. Indeed,
Ms Pavlin was of the opinion that there was no chance of [J] being a well-adjusted child at present.
Ms Pavlin further concluded that [J] was likely to benefit from close and frequent interaction with an extended family which, far from undermining her relationship with her father, may be counted on to offer her a secure and relatively conflict-free base from which to proceed when she spends time and communicates with her father.
Ms Pavlin recommended that the application for [J]’s relocation with her mother to Cairns be approved.
Commentary
The evidence given by the father and the mother was significantly divergent in both tone and detail.
The father’s evidence highlighted the success which he had had in his business and his determination to become financially secure. It was also apparent that he devoted considerable energy to achieving this goal to a point where, now, he is close to being debt free. His own personal history is marked by the fact that he was made a ward of the state at the age of seven and failed to maintain a good relationship with his family. At the time of the hearing both his parents and his only brother were dead and of his three sisters, he communicated with only one. He said that he had had no real contact with his parents in the period prior to their deaths.
The father presented as a man of very firm views which would not always be in accord with those around him.
In para.80 of his affidavit sworn 7 May 2008 the father concedes that he is forthright on issues impacting on [J] and that he is prepared to listen to, although perhaps challenge, other points of view.
He conceded that some might consider this behaviour to be controlling but he said that it was not intended to be. However, his complaints to Family and Children’s Services and to the police suggest otherwise. For instance, the fact that the father delayed for a period of eight days in complaining to the police about what I accept had been [J]’s split lip from falling out of bed suggests he was more concerned with making a point to the mother than he was with protecting [J]. His complaints to public authorities also suggest an inability to cope with the failure of the parties to negotiate successfully matters connected with [J].
In relation to the placement of [J] in childcare the father’s evidence was that the childcare centre had the mother’s contact numbers and he denied the proposition that they did not. This evidence was later contradicted by the mother’s evidence and by Exhibit 3. That exhibit is a copy of [J]’s enrolment details signed by the father on 9 February 2005, which did not originally mention the mother, and a fax from the childcare centre to the father dated 12 April 2005 advising him that the mother’s contact details were being added to the centre’s records. This arose out of contact the mother had made independently with the childcare centre.
As to the company name, the father gave an unconvincing explanation of why the company came to have the name it does which was contradicted by Ms B. I accept what she said on the point, which corroborated evidence of the mother, and prefer it to the father’s evidence. I also prefer Ms B’s evidence to the father’s evidence concerning the nature of his relationship with Ms B to the extent that it conflicts with her evidence.
I am satisfied that the mother’s evidence exaggerates aspects of her relationship with the father and her experiences since separation.
For instance, expressions in her affidavit such as her being in and out of court and being unable to have a cordial conversation with the father or a complete inability to communicate with him since separation were demonstrated in cross-examination to be hyperbolic. It is also apparent that some particular manifestations of her concerns for [J] have been motivated or aggravated by her suspicions of the father’s parenting skills. It is clear that he makes her nervous and apprehensive not only in respect of herself but also in respect of [J].
It is hard to believe that the mother has not contributed to the friction in the relationship. Although she presented in her evidence as a vulnerable person she also displayed a degree of strength and acuity. In particular, I note that on [J]’s first day at school, the mother went to the father’s workshop to remonstrate with him about his behaviour that morning.
I accept that on occasion she can respond in kind to the father’s assertiveness.
Even so, a conclusion I draw from the father’s evidence is that, by the time of the hearing, he realised that some of his attitudes and past behaviours were inappropriate and unlikely to assist his application.
I infer that in his evidence he has sought to minimise or deny such attitudes and behaviours.
The applicable law
The effect of the July 2006 amendments of the Act by the Family Law Amendment (Shared Parental Responsibility) Act 2006 has been considered in the context of relocation in a number of cases. One of these is M & S [2006] FamCA 1408 where Dessau J said:
Counsel for the father submitted that the new Part VII provisions effectively cast an onus of proof on the applicant for relocation. They do not, and it is clear that was not the intent of the amendments. The legislature has not explicitly prohibited the relocation of a child away from one parent. It has not introduced a specific presumption against it, nor an onus of proof on the moving party. Nor has it suggested that just because the relationship between a child and a parent will inevitably be affected by a move away, that in itself should preclude the court from permitting the relocation. Otherwise, given the inevitability of some change to the nature of the child/parent relationship when the structure of the time spent together is changed, virtually all requests for relocation would as a matter of course be disallowed. Had that been the intention, the Act would have been amended accordingly.
The objects and principles of the Act, the primary and additional considerations under s.60CC, together with the various provisions in relation to equal shared parental responsibility, direct the court squarely to maintaining the important relationship between a child and his/her parents. But the child’s best interests remain the court’s paramount consideration (s.60CA). In the opening words of the objects provisions in s.60B(1) of the Act, and again in s.60B(2) where it is stated that the principles set out there apply “except when it is or would be contrary to a child’s best interests”, the legislature has not diminished the best interests test as integral to any parenting issues, including the difficult issue of relocation. (at [38] – [39])
Her Honour further said:
I am conscious that a long-distance relationship, with longer but less frequent times spent together, is inevitably different from a relationship where people live closer together with regular face to face contact. But it does not in itself mean it cannot be meaningful. The likely impact of the relocation on O’s relationship with her father is integral to my decision in this case. It is important for her overall well-being and healthy development that she is able to enjoy their relationship, to experience his input into her upbringing, and to develop her own sense of identity through him and the paternal family. (at [45])
In Godfrey v Sanders [2007] FamCA 102 Kay J dealt with an appeal concerning an application for relocation from Melbourne to Brisbane. In that case, the respondent father, opposing relocation, was unrepresented and was unable to advance the discussion concerning Dessau J’s recent decision in M & S. His Honour said that in such instances, he saw no reason to depart from the conclusion of Dessau J that under the 2006 amendments the best interests of the child remain paramount in relocation cases.
When discussing the practical implications of relocation in the context of the recent amendments, his Honour said at [36] that the legislation aspires to promote a meaningful relationship not an optimal relationship, noting that relocation might result in the diminution of the quality of that relationship. His Honour noted the continuing applicability of what the Full Court of the Family Court had said in A & A; Relocation Approach (2000) FLC 93-035 at 87,553:
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.
Notwithstanding these decisions, it can be concluded that the effect of the July 2006 amendments is to make success in relocation applications more difficult because the Act demonstrates a clear preference, in circumstances of shared parental responsibility, for equal time or substantial and significant time. Clearly, relocation makes appropriate equal time impossible practically and makes substantial and significant time very problematic. This suggests that a relocation application which will produce neither of these outcomes is likely to face difficulties because of s.65DAA.
However, Brown FM said in P v P [2006] FMCAfam 518:
Although the shared parenting legislation has added emphasis to the principle that children benefit, in their emotional and social development, by having as extensive a relationship as possible with both their parents, there is no principle of law that the parents of children are required to live indefinitely close to one another in order to ensure that such an optimal outcome is achieved. (at [241])
[J]’s best interests
In Taylor v Barker [2007] FamCA 1246 at [62] it was held in the Full Court of the Family Court that when considering the appropriate order or sequence in which provisions of Pt.7 of the Act are to be considered, findings regarding the matters contained in s.60CC should be made before attempting to apply any other provisions of the Part in which the determinative factor is the subject child’s best interests.
The primary considerations
Section 60CC(2)(a) requires the Court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents. [J] will benefit from a meaningful relationship with both her parents.
Brown FM in P & P considered the meaning of “meaningful”, where it is used in s.60CC(2)(a). His Honour said:
In the context of section 60CC(2)(a), the use of the word “meaningful” by the legislature is interesting. The ordinary definition of “meaning” and “meaningful”, when it is attached to an idea or some object, is denoting of the significance or importance of that idea or object. It seems clear that the court is only to consider whether a relationship is “meaningful”, to the child concerned, after it has assessed the benefit or advantage such a relationship will bestow on the child concerned. Accordingly, it seems clear that the legislature intends the court to consider the significance of the child concerned having a relationship with both his or her parents in a positive or beneficial sense.
The practical underpinning of how a relationship for a child with one or either of his or her parents is to be rendered “meaningful”, in the context of a parenting order, is provided by section 65DA. The emphasis is on time, but not merely on the extent of that time, but rather on its quality and the manner of its utilisation with the child or children concerned. In this context, the court is to consider the parent concerned spending time that falls on weekends; holidays; weekdays; and perhaps most importantly, time that allows that parent to be involved in the child’s daily routine and occasions of particular significance, both to parent and child.
The rationale of section 65DAA is that children benefit, in an emotional and developmental sense, from feeling that their parents are involved in all aspects of their care, which flows from them being exposed to their parents in a variety of settings. These settings include “fun” activities on holidays and weekends – essentially interacting with their parents in a relaxed setting; as well as the day to day reality of the child’s life, such as supervising homework and bedtimes, imposing day to day discipline, collection and delivery to school and sports training – essentially spending time with parents in more mundane situations. In this way, the child is likely to have a more balanced and so richer relationship with the parents concerned. (at [256] – [258])
It is clear that both of [J]’s parents love her and wish to contribute to her life in their own way. As noted below at [119] [J] has a good relationship with each of them. I also conclude that it would benefit [J] to have a meaningful relationship with both of her parents but the practical issues which this presents are significant. If relocation were to be ordered, [J]’s relationship with her father would necessarily be made more difficult to maintain. However, were relocation to be refused, I conclude that her relationship with her mother would be less successful because her mother would be not as good a mother as she is likely to be if she moves to Cairns.
As to s.60CC(2)(b), in the circumstances of this case physical harm is not an issue. However, the father’s intemperate behaviour does raise issues of family violence. “Family Violence” is defined in s.4 of the Family Law Act1975 in the following terms:
family violence means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
The mother alleges that the father’s intemperate language has included threats to her. The evidence convinces me that the father is a man whose passions run deep and he expresses these in forceful language and sometimes anger. However, the mother’s stated concerns for her safety are belied by her agreement that the father should have shared parental responsibility for [J]. Being advised, had she genuine and reasonable fears for her safety she would at some time have expressly raised family violence as an obstacle to the father’s claims if only as a facilitator of her own application for relocation.
Consequently, although I accept that the mother feels intimidated by the father’s behaviour I do not conclude that such behaviour amounts to family violence such that [J] needs protection on this account.
Additional considerations
Section 60CC(3)(a) – The child’s views
[J] is only five years old and although she has made positive comments about moving to Cairns I do not accept that she has maturity sufficient to understand properly the significance of the relocation proposal.
Ms Pavlin said that, at this stage, [J] could not be expected to say what is good for her although there would come a time when she would be able to have a say and know what she was having a say about.
Section 60CC(3)(b) – The child’s relationship with her parents and other persons
[J] has a good relationship with both of her parents. As the family report says, each of her parents loves her and is loved in return. However, it is apparent from the family report that she is more relaxed and natural in the presence of her mother and more self-controlled in the presence of her father although this self-control can evaporate into what Ms Pavlin described as a disinhibited release of tension.
Section 60CC(3)(c) – The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
The situation of extreme conflict which exists between the parents makes it difficult for them to co-operate with each other or to facilitate the other’s relationship with [J]. However, [J] has not been prevented from seeing her father and I infer that her father is punctilious about ensuring that she is returned to her mother in accordance with the consent orders. I appreciate the father’s complaint that [J] was taken to Cairns in January 2005 and his further complaint concerning the mother’s inability to be punctual at changeovers. However, the former is long in the past and the latter, while unfair and irritating to the father, is not a matter of real substance in the context of future arrangements.
More important in the context of this case are the parties’ attitudes to each other and their chafing under what they perceive to be the other’s inappropriate attempts at control. It is clear that the parents are very different personalities and have very different parenting styles. I also conclude that they are unreasonably intolerant of each other and unreasonably sensitive to what they perceive as the intrusions of the other. They also give each other too little credit for concern about [J], being unwilling to see good points in each other.
The father’s enrolment of [J] in the childcare centre was an example of the parties’ problematical relationship. The father’s failure to list the mother as a contact in case of emergency is difficult to understand.
Similarly, the parties’ referrals of each other to the Family and Children’s Services section of the Northern Territory Department of Health and Community Services were described by that Department as “tit for tat” reporting. On 9 March 2005 the mother reported the father, on 18 April 2005, 26 May 2005, 22 June 2005, 28 June 2005 and
14 December 2006the father reported the mother to the Department or made contact with the Department in relation to the mother.
This mutual intolerance reduces each parent’s ability to encourage [J]’s relationship with the other.
Section 60CC(3)(d) – The likely effect of changes in [J]’s circumstances
Were the father’s application for almost equal time to be granted, [J] would be exposed on a frequent basis at changeover to the manifestation of the parents’ mutual hostility. Although she has developed coping mechanisms, it is clear from the family report that these are far from desirable, particularly in a child of her age. Moreover, were the father’s application to be granted, [J] would be spending almost equal time in two homes with significantly different routines and philosophies.
Were [J] to relocate with her mother to Cairns, her ability to spend time with her father would be circumscribed by distance and expense.
She would have to travel to Darwin and her father would have to travel to Cairns. Not only would this involve considerable cost but it would make time on weeknights impractical and would, in all probability, mean that she would not see her father, face to face, for weeks at a time. While the mother has proposed acquiring a mobile phone for [J]’s exclusive use, for the purpose of speaking to her father, and presumably at some time internet contact by way of Skype or something similar might be possible, these are only second best substitutes for time shared in person.
Even so, the family report makes it clear that [J]’s psychological health will be advantaged if the occasions of conflict between her parents are reduced and she spends longer periods of time with each parent.
Further, if one accepts that [J] should spend more time with one parent than another, and should that person be her mother, then the latter’s emotional state must be considered. The isolation which the mother feels in Darwin is aggravated by the oppressive nature of her relationship with the father and his friends. Based on what Ms Pavlin said in her evidence I conclude that the mother would function better in Cairns where she would be in an environment she would consider secure and where she would not feel at bay and on guard, which she would feel were she to stay in Darwin. Ms Pavlin’s conclusion was that were the mother to move to Cairns, she could settle down and be a better mother.
Section 60CC(3)(e) – Practical difficulty and expense of [J] spending time and communicating with parents
If [J] were to remain in Darwin there would be no issue arising under s.60CC(3)(e) other than the conflictual relationship already described. However, if relocation to Cairns were to be permitted there is no doubt that distance would present practical difficulties. The mother has proposed that [J] could be accompanied by a family member to and from Darwin while she is too young to travel as an unaccompanied minor. The expense of these trips and such trips as the father would make to Cairns were relocation to be allowed would be significant.
Section 60CC(3)(f) – Capacity to provide for the child’s needs
Each of the parents can provide for [J]’s needs but the mother could do so in a more comprehensive fashion. Although it appears that the father is not short of money, he would have to adjust his work hours in a fashion which the evidence suggests has not occurred in the past.
In essence, he lives alone and, if his evidence is to be accepted, he may find it difficult to maintain any other relationships while he is focused on [J]. Perhaps he might find it difficult to stay focused on [J] if he establishes a new relationship.
Throughout [J]’s life her mother has been her primary carer and thus her developmental achievements are largely the product of that care.
Were the mother’s proposal for relocation to be allowed the mother would have the support of her own parents to provide a stable and supportive home environment and [J] would have an extended family of which to feel a part.
The father has little contact with his own family and cannot supply an extended family network of grandparents, uncles, aunts and cousins as the mother can.
The mother would be financially advantaged by moving to Cairns where she would have the opportunity to take employment, something which she does not feel is open to her while she remains in Darwin.
Section 60CC(3)(g) – Maturity, sex, lifestyle and background of [J] and parents
[J]’s age and level of maturity have already been referred to, as has her lack of maturity sufficient to be able to say what is good for her. Although the mother is uncomfortable with the father’s physical and adventurous lifestyle, I accept his evidence concerning the considerable care he takes when, for instance, [J] is riding the quad bike. The father presents as a person who can take great care, perhaps be meticulous, in important aspects of his life and places great value on order.
My impression is that these characteristics would see the father taking care of [J] in any outdoor pursuits which they might pursue in the future.
Even so, it is apparent that the father works very hard in his business and I conclude that he would find it difficult to adjust his working hours in the way which would be required if his application were to be granted. The father’s dedication to success in business is not a characteristic of which the mother has spoken in connection with herself. Perhaps dictated by circumstance, her life has been focused on [J] and appears likely to continue to be. Additionally, accounts of the father’s tense and volatile behaviour contrast with the more moderated presentation of the mother, in which context Ms Pavlin’s description of [J]’s behaviour with her parents must be considered – see [119] above.
In the context of the relocation application, as already noted the father lives alone without the support of an extended family. This situation is in marked contrast to that which would exist in Cairns if relocation were allowed, where [J] would be living, in a separate flat, in her grandparents’ home and close to other members of her mother’s family.
Section 60CC(3)(h) – If the child is an Aboriginal child or a Torres Strait Islander child
Not applicable
Section 60CC(3)(i) – The attitude to [J] and to the responsibilities of parenthood demonstrated by the parents
Matters appropriate to be considered under this heading have already been considered elsewhere in these reasons.
Section 60CC(3)(j) – Any family violence involving the child or a member of the child’s family
This matter has already been considered above at [114] – [116].
Section 60CC(3)(k) – Any family violence order that applies to the child or a member of the child’s family
Not applicable
Section 60CC(3)(l) – The order least likely to lead to further parenting proceedings
Subject to consideration below of the father’s proposals for telephone contact with [J] and communication with the mother in the event of relocation, it is not apparent that either of the proposals made by the parents, or any alternative orders, would be more or less likely to lead to further parenting proceedings.
Section 60CC(4) – Extent to which each parent has fulfilled or failed to fulfil parental responsibilities
The matters relevant to this section have been considered in the consideration of the issues to be addressed under s.60CC(3).
Section 61DA – Presumption of equal shared parental responsibility
Before it is possible to determine whether [J] should spend equal time with her parents, substantial and significant time with her parents or other time with her parents, it is necessary to determine whether the presumption of equal shared parental responsibility applies.
The presumption is not displaced by any matters referred to in s.61DA(2). As to s.61DA(4), I do not find that the presumption is rebutted as the evidence does not satisfy me that it would not be in [J]’s best interests for her parents to have equal shared parental responsibility for her.
It is to be observed that each of the parenting proposals advanced by the parties contemplated that there would be equal shared parental responsibility.
Section 65DAA
Equal time
The evidence demonstrates that changeovers have been tense and difficult occasions and it is desirable that their frequency be minimised. While the simple mechanics of changeovers might be able to be negotiated if the parents both remained in Darwin, the continuing tension between them and their inability to deal with each other indicates to me that an equal time arrangement would not, in reality, be successful. Additionally, the psychological stress likely to be placed on [J] by moving on a frequent basis between two such different households should be avoided.
[J]’s best interests lie in reducing the number of occasions she moves between her parents’ households and the frequency with which she is required to adapt to their differing regimens. In the circumstances of this case such considerations dictate that [J] spend blocks of time with each parent rather than shuttle between them on a frequent basis. Moreover, given that her mother has been her primary carer to date, of the two parents she has the less volatile personality and it is with her that [J] is more relaxed and comfortable, I conclude that [J] should live with her mother and spend time with her father.
As I have concluded that equal time is not appropriate, it is not necessary that I consider its practicability. However, I do note that if relocation is appropriate, equal time would not be practicable.
Substantial and significant time
The problems of conflict between the parents and the issues created by their differing parenting styles are just as significant when the issue of substantial and significant time is to be considered. The current situation already sees [J] spending less time with her father than an order for substantial and significant time would be likely to provide but even this routine was described by Ms Pavlin as being one in which [J] has no chance of being a well adjusted child. Further, no mechanism has been identified in these proceedings which could make the orders made on 14 October 2005 work.
I have already concluded that [J]’s best interests would be served by her spending blocks of time with each of her parents, rather than have to cope with the frequent changeovers and the frequent change of environment which substantial and significant time would involve. Consequently, even were both parents to remain in Darwin, an order for substantial and significant time would not be appropriate.
As I have concluded that substantial and significant time is not appropriate, it is not necessary that I consider its practicability. However, as with equal time, I note that if relocation is appropriate, substantial and significant time would not be practicable.
Relocation
Having taken into account all the matters considered above I am of the view that [J] should be permitted to relocate to Cairns with her mother. In this regard, while it is important that [J] maintain a meaningful relationship with her father and it should be acknowledged that relocation would make this more difficult than were she to remain in Darwin, I am of the view that a move to Cairns would provide [J] with advantages which would not be available to her in Darwin. In this connection, I note particularly Ms Pavlin’s evidence concerning the mother’s capacity to be a better mother in Cairns than she could be in Darwin and the availability of an extended family there.
As noted in the previous paragraph, notwithstanding my conclusion that relocation should be permitted, it is important nevertheless that [J] maintain a meaningful relationship with her father and that she spend substantial amounts of time with him. This will require [J] to travel to Darwin for several weeks every year during school holidays and will also require the father to have the right to come to Cairns and see [J] during school term time.
Orders proposed by the parents
The orders proposed by the mother at the conclusion of the hearing contemplated that [J] spend time with the father for three weeks of each Christmas holidays, for the whole of the June/July mid-year school holidays, for the Easter school holidays and in Cairns for three weekends a year during school terms commencing on Friday afternoon at 4:00pm and ceasing on Sunday afternoon at 5:00pm. It is implicit in this proposal that [J] spend the third term holidays with her mother. The mother also proposed that [J] have liberal telephone contact with the father between 3:30pm and 6:00pm on Tuesdays and Thursdays.
After judgment was reserved the father submitted a parenting proposal addressing the possibility that relocation might be permitted. He proposed that [J] spend with him the whole of the first and third term holidays, half of the mid-year and Christmas holidays and in Cairns once every term commencing after school on Thursdays until the commencement of school on Tuesdays as well as the Fathers’ Day weekend from Friday afternoon until Monday morning. The father proposed that each parent be able to communicate with [J] “whenever and however that parent wishes”.
The mother’s proposal in relation to [J] spending time with her father during school holidays would mean that [J] would not see her father for a lengthy period between the mid-year holidays and the Christmas holidays. However, to add a fourth holiday period away from Cairns would not only require the child to undertake more travel at considerable expense to one or other parent, but as the independent children’s lawyer submitted, it would deny her, as she grows older, the opportunity to spend holiday time with the friends she will undoubtedly make in her new school. For these reasons, I conclude that the mother’s proposal in relation to holidays would be of greater benefit to [J] than the father’s proposal.
However, the mother’s proposal concerning the time which [J] might spend with her father during school term is too limited, particularly if [J] is not to spend any time with her father during the third term holidays. The father’s proposal for time in Cairns, although it will involve some liaison between the parents in relation to any school requirements on the Friday and the Monday on such weekends other than the Fathers’ Day weekend, does have the advantage of permitting the father to make himself known personally at [J]’s school and to gain for himself some appreciation of it. Further, the proposal that [J] spend time with her father during the Fathers’ Day weekend is also an appropriate proposal as it permits her to spend time with her father on an occasion of some significance and one which focuses on her father’s place in her life. It should also be noted that as Fathers’ Day falls in September, this will provide an additional opportunity for [J] to spend time with her father between the mid-year and Christmas school holidays.
By contrast, the father’s proposal concerning telephone contact is one fraught with difficulties and one which is likely to lead to disputation between the parties. If such contact were not structured, it would be a fertile ground for misunderstanding and, based on the parties’ history, perceptions that one parent was not co-operating with the other and facilitating [J]’s contact with him or her. While it must be recognised that a structured regime of telephone contact will lack spontaneity, this drawback is more than outweighed by the need to minimise causes of conflict between the parties. That said, however, two telephone calls per week is too few in circumstances where [J] will be so physically distant from her father and seeing him face-to-face only at intervals rather than frequently. In those circumstances, it is appropriate for her to speak to her father three times per week, on Sundays, Tuesdays and Thursdays between 3:30pm and 6:00pm.
As to the cost of travel, the mother’s proposal is that the father pay for [J] and an accompanying adult to travel to Darwin on two out of the three proposed holiday visits and, implicitly, for his own travel to Cairns. The father’s proposal was that the mother pay for three out of the four holidays’ travelling costs. Given that, in order that [J] may spend time with her father during school terms, it will be necessary for him to travel to Cairns at his own expense, it would not be appropriate to expect him also to pay for two out of the three trips which [J] and an accompanying person will make to Darwin. Consequently, I conclude that the mother should pay for two out of the three trips which [J] and an accompanying person will make to Darwin.
As to where the changeover in Darwin should occur, the mother proposed the [X] markets and the father proposed Darwin airport. There is no obvious reason why the [X] markets should be preferred over the airport and I conclude that the father’s proposal would be simpler and more convenient. As to changeovers in Cairns, the terms of the order giving [J] time with her father in Cairns imply that he will collect and drop her off at school.
The father proposed additional orders which would have the effect of requiring the parents to have considerable interaction on matters such as “any significant issue” and “any other issue that is of less significance” and “any document” affecting [J]. These proposals should not be adopted because of the potential to generate tension, disagreement and conflict between the parties.
Conclusion
For the reasons above, I conclude that the parenting arrangements which would promote the best interests of [J] are ones where:
a)the parents have equal shared parental responsibility;
b)[J] live with her mother and they be permitted to relocate to Cairns; and
c)[J] spend time with her father in accordance with the orders set out at the commencement of these reasons.
I certify that the preceding one-hundred and sixty-three (163) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 15 July 2008
- AGLC
- Price and Barnett [2008] FMCAfam 589
- Case
- [2008] FMCAfam 589
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were the determination of the primary residence of the child, the allocation of parental responsibilities, and the specific arrangements for the child’s time with each parent, including travel logistics, holiday schedules, and contact provisions. The court also had to consider the parents' requests for relocation and the child’s exposure to firearms.
The court ruled that [J] would reside with the mother in Cairns, Queensland, while both parents would share equal parental responsibility. The court set out detailed provisions for the child’s time with the father, including specific holiday periods and contact arrangements. The father was required to arrange and pay for the child's airfares during certain periods, while the mother would do so for others. The court also mandated that the father not expose the child to firearms and established a specific telephone contact schedule. Additionally, the court permitted the mother to relocate to Cairns with the child, subject to certain conditions.
The final orders of the court included specific guidelines for the child's residence, shared parental responsibility, contact arrangements, and relocation provisions, alongside detailed travel and safety instructions.
Orders
Orders of the court
1.
The child [J] born in 2002 live with the mother in Cairns in the State of Queensland.
2.
The mother and father each have equal shared parental responsibility for the child.
3.
Each parent keep the other advised in writing of their residential address and their telephone number.
4.
Each parent notify the other of any serious medical ailment or injury which may afflict the child.
5.
The mother notify the father in writing of the name and address of the school at which the child attends and advise that school of the name and address of the father.
6.
The child spend time with the father as follows:
(a) for three weeks of each Christmas school holidays, being the second half of the 2008/2009 school holidays and each alternate year thereafter, and for the first half of the 2009/2010 school holidays and for each alternate year thereafter;
(b) for the whole of the holidays following the conclusion of the first school term each year;
(c) for the whole of the June/July mid-year school holidays each year;
(d) in Cairns for one weekend each school term provided the father give to the mother 14 days’ notice in writing, such time to commence after school on the Thursday afternoon and to cease at the commencement of school on the following Tuesday; and
(e) in Cairns for the weekend in which Fathers’ Day falls, provided the father give to the mother 14 days’ notice in writing, such time to commence after school on the Friday and to cease at the commencement of school on the following Monday.
7.
For the purposes of:
(a) order 6(a) the father is to arrange and pay for the airfares of the child and an accompanying person and notify the mother of these arrangements in writing 30 days in advance;
(b) orders 6(b) and (c) the mother is to arrange and pay for the airfares of the child and an accompanying person and notify the father in writing of these arrangements 30 days in advance;
(c) orders 6(a), (b) and (c), changeover is to occur in the arrivals hall of Darwin airport; and
(d) orders 6(d) and (e) the father is to collect the child at school at the commencement of the time and deliver her to the school at the conclusion of the time.
8.
The child whilst in the care of the father not be in the vicinity of or exposed to any firearms which are not in storage.
9.
The child have liberal telephone contact with the father on a mobile phone provided by and maintained by the mother between the hours of 3:30pm – 6:00pm on Sundays, Tuesdays and Thursdays.
10.
Until the mother’s relocation to Cairns the father spend time with the child as follows:
(a) each alternative weekend from after school on Friday until the commencement of school on Monday, with the child to be collected by the father at the school at the commencement of the time and delivered to the school on Monday morning (or Tuesday should there be a long weekend);
(b) for the purposes of this time, order 8 does apply and the father is not to conduct his business at his workshop in the presence of the child;
11.
The mother be permitted to relocate to Cairns with the child on or after 19 July 2008.
12.
Those parts of orders 7(a) and (b) which refer to an accompanying person be discharged on the 10th birthday of the child or as otherwise agreed by the parties in writing.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.