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Rights of child to enjoy meaningful relationship with each parent

FEDERAL CIRCUIT COURT

OF AUSTRALIA

AT DARWIN

 

DNC 477 of 2018

 

MR BALTHIS

Applicant

 

And

 

MS MCNAIR

Respondent

 

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
2. This is a parenting case concerning X who is four years old. Her fourth birthday was in … this year. The parties are both 29 years old. They began living together in about … 2015 some three months before X was born. Up to that time both parties had been living with their parents. They separated in January 2016, that is, when X was about three months old. They had lived together for only six or seven months. This factor explains, in my view, much of the distrust each party feels for the other and their dysfunctional communication style, certainly, until recently. 
3. Illicit drug use. The mother alleges that the father is or has been a long-term user of methamphetamine. That was not in dispute. The father said that his use was “occasional”, every three or four months, and his last use was in November 2018. He received drug treatment with Modafinil in 2015 but that did not result in him ceasing to use. He also attended counselling for six sessions from November 2018 to May 2019. There have been urine tests and a hair follicle test this year with negative results. Although I am not satisfied that the father’s methamphetamine use was as sporadic as he claimed, I accept that there is no evidence that he has used this year while the process of litigation has been underway. He said to the family consultant that the existence of this litigation was the impetus for him to cease use.
4. He said that he still experiences cravings for the drug but he has learnt how to distract himself until they pass. Given that the father’s last use was about a year ago I think there is a good prospect that he will not return to use of methamphetamine. However, the family consultant in the family report expressed some concern about the father’s superficial account of the reasons for his abstinence and noted that the existence of litigation was not a permanent disincentive to resumption of use. Her prognosis could be described as “guarded”. I generally accept her views on this subject.
5. The father also alleged that the mother had used methamphetamine.  She admitted some use before the birth of the child but has denied use of methamphetamine since. The father has not sought any drug testing for her and I accept her denial. 
6. Coercive and controlling behaviour and family violence. The mother alleged that on one occasion while she and the father were living together, he punched her in the leg leaving a bruise. She does not make any other allegations of physical assault. She also alleged that in the aftermath of their separation the father threatened self-harm on multiple occasions. She annexed photographs posted by the father on social media of a knife, of a car speedometer at 150 kilometres an hour and the remark to the effect that “you know what happens next.” I accept the mother’s evidence about these matters. The mother also referred to offensive SMS messages from the father which continued until last year.
7. I do not accept that the messages necessarily constitute family violence, but they were certainly offensive and unnecessary and sometimes jealous and abusive which I acknowledge could be considered to be coercive and controlling behaviour. I accept the father’s communications have made the mother’s parenting more difficult and have been stressful for her. I also accept that the mother’s language directed to the father has on occasion adopted a high handed tone but I consider that the father’s messages to be the most objectionable. The mother also claims that the father has engaged in manipulative behaviour, inviting her to lunch or outings and kissing and hugging her in front of the child. She said she felt unable to object to this in front of the child. I generally accept what she says about this.
8. The father said that communications between the parties had significantly improved in the past few months. He asserted that he and the mother had engaged in sexual intercourse on one occasion about a year ago. She denied that and said that while communications had improved, she still found the father acted inappropriately in the manner previously described. In this context it is clear enough that the father did not want to the relationship to end and still pursued it for some time.  The mother’s attitude is quite different. She has no interest in resuming a relationship with the father. I am satisfied that the mother has found the father’s behaviour stressful and draining since their separation. I am satisfied that it has been emotionally challenging for her. I also accept that the break up was emotionally challenging for the father but for different reasons.
9. Both parents have relied on their families for support. The mother’s parents were previously employed in the Northern Territory as public servants but they have retired and moved to reside in Suburb C near Brisbane in January 2019. The mother is proposing to relocate to Suburb D, an adjacent suburb. Both parties emphasize their reliance on their parents. I accept this is the case with both of them. At the moment the mother’s parents are assisting her with rent to the extent of $100 a week.
10. According to the mother, the reason for that is that she cannot afford housing of a satisfactory standard in Darwin or City E and without this help she would be forced to rent in a rough or unsafe area of City E or take up public housing to which she has the same objection. Counsel for the father attempted to demonstrate that there was no real difference in the rents between Suburb D and City E. I do not feel able to make a finding about that but in my view it is notable that the mother’s parents feel they need to subsidise her rent. I am satisfied that they do so because they feel it is necessary to provide their daughter and grandchild with an adequate standard of housing.
11. It should be noted that the mother is also reliant on social security payments. She has no formal qualifications and a limited employment history. It should also be noted that the father pays the sum of $30.50 child support. This is garnished from his wages. I am satisfied that this is a far from equitable contribution to the cost of caring for this child. While I am not satisfied that housing in Darwin is more expensive than Brisbane, nor am I satisfied that it is not. The evidence was simply insufficient. However, I am satisfied that the mother lives under considerable financial stress and this adds to her general dissatisfaction of living in Darwin.
12. Another argument that the mother advanced for moving was that educational facilities were more easily accessed in Suburb D. There was some evidence about that but I do not accept that a course, which is the degree the mother wishes to pursue, is more accessible in Suburb D. There are two tertiary institutions, University A and the University B, which is the university she proposes to attend, with very similar facilities and both offer on campus classes, which is the mother’s preference over online classes. The mother also asserted there were better employment opportunities for her in Queensland. There was no evidence of this and I do not accept it.
13. I consider that the real motivation for the mother is that she wishes to live near her parents. She is emotionally reliant on them to some degree. I consider that the mother is somewhat emotionally immature and her independence is not fully developed. I also consider that she has found the father’s conduct difficult to deal with and she would like to get away. The family report writer was of the view at paragraph 93 of the family report that the mother did not provide any information to suggest she requires support from her parents to cope with parenting X. Expressed in such narrow terms I agree. The family report writer went on to say:

The exception to this is her experience with Mr Balthis. It is possible she may benefit from their support in responding to his behaviour toward her.

14. I am satisfied in practical terms that the mother is able to cope in Darwin. I am also satisfied that she will be happier living near her parents. This has obvious benefits for the child and also obvious disadvantages for the child unless the father moves to Brisbane too.  The family report writer was of the view that given the child’s young age it will be difficult for her to have the benefit of a meaningful relationship with her father if he remains in Darwin. I accept that.
15. This brings us to what, in my view, is the crux of the case. In any relocation case it also necessary to consider and give equal weight to the prospect that the other parent move as well, otherwise the parent who wishes to relocate, usually the mother, is effectively held hostage to, in this case, the father’s refusal to move.
16. The father gave little evidence on this subject. All the father says on this is at paragraph 118 of his trial affidavit where he said:

If Ms McNair and X relocate I also want to relocate to Brisbane. This will be difficult for me as I have no family or friends in Brisbane, and I have existing counselling support in place in Darwin.

17. The reference to “counselling support” is a reference to past counselling for methamphetamine dependency. The family report writer posed considerable weight on what she saw as a risk of a return to illicit drug use by the father. At paragraph 88 of the family report she said:

The problem Mr Balthis has experienced makes it difficult to envisage how he would move to live in Brisbane. It is possible his report he would do this was based not on wanting to be apart from X rather than an actual intent to move away from Darwin. The access Mr Balthis has to family support, and employment, have likely been crucial components in his current emotional stability and abstinence from drug use. It is likely best for him, and for X, if he remains living close to this support.

18. The father said in oral evidence that he had made no enquires about employment in Brisbane. He is a trade qualified tradesman. He was formally earning about $70,000 a year but due to the economic downturn in the Northern Territory he had lost that job and is currently employed as a tradesman earning about $40,000 a year. I have some difficulty accepting the justice of the proposition that the mother should be restrained from leaving Darwin where she is not happy because of the risk of the father resuming the use of illicit drugs is increased if he moves to Brisbane.
19. Another way of expressing this is that the mother, who has parenting capacities unquestioned and who is the primary carer of the child, is required to forgo her wish to live near her parents, who have continued to provide important emotional and financial support to her, in order to minimise the risk of the father resuming use of illicit drugs and thereby affecting the child’s best interest.
20. Emotional and financial support to her in order to minimise the risk of the father resuming use of illicit drugs and thereby affecting the child’s best interest. That proposition says something significant about the father’s parenting capacity, or lack of it. In my view, this calculus is speculative. There is no independent evidence to support the proposition that the father would be at significant risk of resumption of methamphetamine use if he were to move to Brisbane. I see no other obstacle to him moving and it may be that his employment opportunities would thereby be substantially increased.
21. The legislative pathway. The best interests of the child are determined by following the legislative pathway in part 7 of the Family Law Act 1975.  The primary consideration relevant in this case is the benefit to the child of having a meaningful relationship with both parents. This was not an issue and I am satisfied that the child would benefit from a relationship with both parents. In the context of this case it is desirable that both parents should live in the same location so the child, who is just four, can spend time with her father on a regular basis. In this case the parties have agreed that the child should spend substantial and significant time with the father if the parents are living in the same location.
22. The additional considerations are set out in section 60CC, subsection 3 of the Family Law Act 1975. The first is (a) any views expressed by the child. The child is too young to express views.
23. (b) The child is in the primary care of the mother and presently spending substantial and significant time with her father. Both parties propose to continue that arrangement if possible. The father says it should continue in Darwin. The mother says it should continue in Queensland.
24. (c) is not a significant matter in this case.
25. (ca). The mother made complaints about the father being in arrears of child support at one point. Apparently, that has been remedied. The father pays the assessed amount of child support which is garnished from his wages in the sum of $30.50 a week. 
26. (d) The likely effect of any changes in the child’s circumstances, including the likely effect of any separation from his or her parents or any other child or person. If the child moves to Queensland with her mother and the father does not move that would be detrimental to the child’s best interests. Also, such a move would interfere with the child’s relationship with the paternal grandparents, including a step grandfather, but she would move closer to the maternal grandparents. There is evidence that the child is closer to the maternal grandparents. The child has cousins in Darwin, children of the mother’s brother, who are aged three and six.
27. (e) The practical difficulty and expense of the child spending time with the father. It is obviously expensive if the mother is living in Brisbane for the child to travel to Darwin to spend time with the father. The mother proposes that she and the child will travel to Darwin six times a year in order to facilitate the child spending time with the father at the mother’s expense or, in reality, at the expense of her parents. I do not accept that that arrangement, while it may ameliorate to some degree the effect of separation of the child and the father and the inability to spend time regular time with the father, is an adequate substitute. It goes someway to facilitating the relationship, though I do not accept it is adequate in all the circumstances to ensure that the child has the benefit of a meaningful relationship with her father.
28. (f) The capacity of each of the child’s parents. The mother’s parenting capacity is not in question. I have made some remarks about the father’s capacity based on his illicit drug use and what appears to be a risk, though the degree of that risk has not been quantified in my view, of a return to illicit drug use. I consider that that detracts significantly from his parenting capacity.
29. (g) I consider that both parents are somewhat immature and both to some degree are dependent upon their parents emotionally and financially. The father continues to live with his parents, mother and stepfather, and rents a granny flat at their home.
30. (h) The mother identifies as an aboriginal person, but this was not otherwise the subject of any evidence.
31. (i) The attitude to the child and to the responsibilities of parenthood demonstrated by the parents. I accept that both parents are committed to the child and each of them is devoted to her.
32. (j) Any family violence involving the child or a member of the child’s family. I have found there has been historic family violence but I am not satisfied that this is currently an issue between the parties.
33. (k) There is no family violence order.
34. In relation to (l) and (m) there are no matters that I need to canvas under that heading.
35. As the parties have agreed on shared parental responsibility it is necessary to consider the matters in section 65DAA of the Family Law Act and, in particular, the practicality of the child spending equal or substantial and significant time with the father. As I have mentioned, the parties have agreed on the arrangements that are to apply in each of the circumstances and it is not necessary to consider equal time. In relation to substantial and significant time, I am not satisfied that it is practicable for the mother to remain living in Darwin. She is the primary carer of the child. She will be happier if she is living near her parents with a consequential benefit to the child who is also close to the maternal grandparents. I am satisfied that it is practical for the father to relocate to Brisbane for the reasons I have given.
36. I consider that the risk of him resuming illicit drug use with any consequent deleterious effect on his daughter is speculative. As I have mentioned, the parents have largely agreed on orders apart from the relocation question itself. I propose to make orders largely in line with the mother’s proposal for permitting her to relocate and if the father does not relocate providing for her to come to Darwin on six occasions next year and four occasions in the following year. I consider the father’s proposal about that which would require the mother to remain in Darwin over a period of more than seven days so that the child could spend time with him on consecutive weekends. It is impractical because it requires her to remain in Darwin for an extended period. It would seem to require her to go and stay with probably her brother or pay for private accommodation. I am not satisfied that that is practical in the circumstances.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Young

 

Date:  18 December 2019

Posted in: Derek Legal Blog at 22 January 20

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