Abberley & Clement
[2021] FedCFamC2F 211
•20 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Abberley & Clement [2021] FedCFamC2F 211
File number(s): CAC 2180 of 2019 Judgment of: JUDGE W J NEVILLE Date of judgment: 20 October 2021 Catchwords: FAMILY LAW – Review of Registrar’s decision – Father’s application for time with the child - Mother subsequently filed Response including Orders for liberty to relocate – Registrar ordered supervised time between the Father and child to commence and dismissed the Mother’s Application for interim relocation – where the Father has essentially spent no time with the child except for a period of 15 minutes at a contact centre – where the Mother seeks to relocate with the child to the Region B – Father confirmed his daily us of cannabis – Mother provided two expert Reports that are subsequent to an expert Report – Mother has obtained a job and is also now expecting her second child – long history of trauma in Mother’s life – Father has no relationship with young child – interim relocation Application granted. Legislation: Family Law Act 1975 (Cth) ss 60CA, 60(2A), 60CC(3)(a) – (o)
Federal Circuit and Family Court of Australia Act 2001 (Cth) Part 7, Division 3
Federal Circuit and Family Court of Australia Rules 2021 (Cth) rr.14.05, 14.06, 14.07
Cases cited: AMS v AIF (1999) 199 CLR 160
Banks & Banks (2015) FLC 93-637
Franklyn & Franklyn [2019] FamCAFC 256
Godfrey & Sanders [2007] FamCA 102
Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422
Harris v Caladine (1991) 172 CLR 84
Morgan v Miles (2007) 38 Fam LR 275Perry & Perry (2015) FLC 669
Sigley v Evor (2011) 44 Fam LR 439
Redmond & Redmond [2014] FamCAFC 155
Taylor v Barker (2008) 37 Fam LR 461
Vanzin & Vanzin [2014] FamCAFC 245
Number of paragraphs: 159 Date of hearing: 3 August 2021 Place: Canberra Solicitor for the Applicant: Robinson + McGuinness Solicitor for the Respondent: KJB Law Solicitor for the Independent Children's Lawyer: Legal Aid ACT ORDERS
CAC 2180 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR ABBERLEY
Applicant
AND: MS CLEMENT
Respondent
ORDER MADE BY:
JUDGE W J NEVILLE
DATE OF ORDER:
20 OCTOBER 2021
THE COURT ORDERS THAT:
1.The Orders made by Senior Registrar Tran on 22 March 2021 be discharged.
2.The Mother be at liberty to relocate the child’s, X (born: in 2019), place of residence to the greater Sydney region.
3.The Mother will cause her legal representative to advise the Independent Children’s Lawyer and the legal representative for the Father that she and X have relocated to the greater Sydney region within 7 days of the Mother having done so.
4.Subsequent to the Mother having relocated the Mother will, within 28 days thereafter, do all acts and things required to enrol in and complete a “Keeping Kids in Mind” course (or comparable course/program in or around the area in which the Mother resides) and provide evidence of having completed such a course or program to the ICL and the legal representative for the Father within 14 days of completion.
5.Within 14 days of the date of these Orders, being by 3 November 2021, the Father is to arrange and participate in chain-of-custody hair follicle drug testing for illicit substances and in doing so, provide a hair sample of sufficient length such that the use of any illicit substances for at least the previous 6 months can be tested. A copy of the Father’s test results are to be forwarded to the Independent Children’s Lawyer (ICL) and the Mother’s solicitors within 48 hours of receipt.
6.For the purposes of Order 5, the Father be restrained from:
(a)Causing his hair to be cut shorter than a length of 5 centimetres; and
(b)Dying or bleaching his hair.
7.The Father do all things necessary to participate in random chain-of-custody testing no more than once per calendar month at the request of the ICL and will forward a copy of the test results to the ICL and the Mother’s solicitor within 48 hours of receipt.
8.Following 6 months of negative drug tests (the time period to commence from the date of the first drug test), supervised time between the Father and child is to commence at an agreed contact centre and failing agreement, at C Counselling in Suburb D or Suburb E.
9.The parties’ therapeutic counsellors be provided with a copy of these reasons.
10.Ms F, the Father’s psychologist, be provided with a copy of the Mother’s affidavit dated 15 September 2020.
11.Within 21 days of the date of these Orders, being by 10 November 2021, the parties are to notify the Court via email to [email protected] regarding the agreed procedural course for the matter.
12.The Application in a Case filed by the Mother 20 May 2021 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Abberley & Clement has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE:
Introduction – Part I
Whatever else is said in the course of these reasons concerning, for example, reviews of registrars’ decisions, or anything else for that matter, above all else and pursuant to s.60CA of the Family Law Act 1975 (Cth) (“the Act”), the primary focus is upon the Orders that are in 2 year old X’s best interests.
Interim hearings and the making of Orders arising from them are notoriously difficult, including being able to make any relevant findings of fact in the absence of, for example, cross examination and or independent evidence. However, the following factual matters are relatively undisputed in this matter:
(a)The Mother and Father were in a relatively short relationship (perhaps just over 12 months or thereabouts) while they lived on the Region G of New South Wales;
(b)During that relationship, both acknowledge that they took drugs regularly; some of those drugs were very strong and dangerous. The relationship between the parties when they were together is characterised by the Father as “difficult”; by the Mother, as controlling and abusive;
(c)The Mother found out she was pregnant with X only a few days after she separated from the Father. She told the Father of the pregnancy shortly after this;
(d)For a period of time after informing the Father of the pregnancy, principally via a large number of degrading (and worse) SMS messages, among other things, the Father said (multiple times) that he hoped the Mother would mis-carry (“Miscarry so we don’t have to talk ever again”), and that, in effect, he wanted nothing to do with the child (e.g. “tell it that I’m dead”). He also urged her (multiple times) to have an abortion (“I am going to kill myself if you don’t have an abortion”). Details of the SMS messages are set out, in part, later in these reasons, and in full in Annexure A to these reasons;
(e)Having been adopted out by her then 13 year old Mother, the Respondent Mother in the current proceeding lived a life of often frantic and desperate circumstances. A recent psychological report suggested that during her teenage years, she exhibited symptoms of Post Traumatic Stress Disorder (“PTSD”);
(f)The Mother moved from the Region G to Canberra, in part to assist her adoptive Father with a range of significant health conditions, including (in his late 60s) transitioning to become a female. As it turned out, while she was trying to ensure that the Father of the child did not know (or learn) of her place of residence, her adoptive Father was informing the Father of her whereabouts. The adoptive Father filed an Affidavit, prepared by the Father, on behalf of the Father;
(g)Apart from her estranged adoptive Father (now Ms H), the Mother has no family in Canberra;
(h)The Mother has been seeing a psychotherapist for a significant period of time, and a psychologist on a number of occasions more recently. Reports from those persons are before the Court;
(i)A jointly appointed psychologist (considered in detail later in these reasons) recommended that supervised time at a contact centre occur between Father and son for very short periods. Given that the Father confirms his ongoing (apparently daily) use of cannabis to deal with stress and sleep issues, the psychologist also recommended that unless and until the Father was abstinent from cannabis use for six months, there should be no unsupervised time between X and his Father. Curiously, there was no recommendation regarding abstinence from use of drugs during supervised time;
(j)Although not actually admitted by the Father, all reports before the Court confirm that the Mother suffers from very significant levels of stress and anxiety, in part from her troubled past but also from the very difficult relationship with the Father, including his extremely abusive correspondence following separation and learning of the pregnancy with X with whom he now wants to have a relationship; and,
(k)Since his birth, X has spent only 15 minutes with the Father at a contact centre. The nature and level of the Mother’s distress and ongoing anxiety before, during and especially since that occasion has been such that she has not been able to facilitate any further time between the child and Father. It is impossible to conclude anything other than that the Father and son currently have no relationship at all.
The Mother is now pregnant with her second child, to a long-time friend, now partner. She seeks to relocate, before the birth of her second child, to what she calls the “greater Sydney region”, where her biological family live. The Mother also now has employment in her field of experience and qualification in management. The proposed locality for the Mother is a little way north of the Region J. She proposes that once she is settled and safe, and with the continued assistance of her therapists, supervised time between Father and son could commence at C Counselling in Suburb D (or Suburb E). In my view, this can only occur once there is relevant evidence of the Father’s abstinence from drug use.
As the High Court said in AMS v AIF, and the Full Court in Franklyn (summarised):[1]
Freedom of movement of parents is a significant priority. Indeed, only when the child’s welfare would be adversely affected must a parent’s right to freedom of mobility defer to the paramount consideration of the child’s best interests. (AMS v AIF at [145] (Kirby J); Franklyn at [28]
[1] AMS v AIF (1999) 199 CLR 160; Franklyn & Franklyn [2019] FamCAFC 256.
As well, there remains the important decision of the Full Court in Taylor v Barker, [2] which stressed the (one would think) relatively common-sense proposition that the welfare and well-being (“happiness” is the Full Court’s actual word – discussed later in these reasons) of the primary carer of a child (as the Mother indisputably is here) is a significant factor for the Court to consider. It may, for example, be formally considered under s.60CC(3)(o), as it was in Taylor v Barker.
[2] (2008) 37 Fam LR 461.
For the reasons that follow, the Mother’s Application (strictly set out in her Response) to relocate as sought, should be granted. She needs to be in the most secure place – physically, psychologically and emotionally – possible, before the relationship between Father and son can be seriously attempted. That relationship, if it is to occur, must be very carefully managed, and both Father and son protected, obviously from different factors and influences.
Introduction – Part II – Procedural Blandishmensts
There was, apparently, much dancing in a particular corridor or two in Parliament House, and perhaps a side street near that building upon the passage of the legislation that politically joined two federal Courts under the single, almost festive banner of the Federal Circuit and Family Court of Australia.[3] It is unclear and unknown if there was any dancing anywhere else, particularly given how immense and fierce was the weight of evidence against the so-called merger, noting too that both Courts actually remain separate and the commissions of Judges remain as they were before the merger/non-merger.
[3] It is also unclear how or why a superior Court somehow has the residue of its name after the intermediate Federal Circuit Court of Australia. Maybe this was part of some further clandestine deal to appease certain particular critics of the Family Court of Australia.
Certain politicians and a few of their supporters told the press enthusiastically that the merger heralded a new hope and new light for all who had walked in darkness for so long, totally benighted and otherwise ignorant of how best to deal with the plenitude of matters, most particularly in the Federal Circuit Court. Its labours dealing with some 90% of all family law matters spoke prodigiously, but clearly not loudly enough for politicians to hear, that its procedures actually worked, even if the Court was largely starved of proper resources. Starvation rations was the order of the day, for year after year. Curiously if not miraculously, since the merger, the spigot has been opened, at least for the employment of scores of registrars and others.
In any event, whatever the success of this Court now past, in various quarters assurances were given that the new and improved merged “Court”, plus new procedures and much longer Rules, together with multiplying Practice Directions for all manner of things, would ensure that there would likely be some diminution of certain kinds of work for Judges to enable them to do more final hearings because they would not be involved in the case management of the cases that they would ultimately hear. This so-called extra hearing time would come about because scores of newly minted Registrars (more recently called variations of “Judicial Registrars”) would deal with various procedural and other aspects of cases that would usually be attended to by Judges (thereby obliterating the long-held “docket system”, which is the invariably acknowledged more efficient and usual form of case management system used in other Courts) and mediate them to a standstill. However, one consequence of all these changes appears to be a sort of new growth area that entails reviews in this Court of decisions by Registrars. Sort of “swings and roundabouts” – you lose some work, you gain some work.
Formally, what is before the Court in the current Application is such a review. But there are other features which rather take it beyond simply a review. Why that is so is set out in what follows.
Procedural matters
One part of the procedural history to this parenting matter that concerns young X, who has recently turned 2 years old, is conveniently set out in the Independent Children’s Lawyer’s (“the ICL”) submissions, filed 1st August 2021, at pars.7 – 13. Those paragraphs, which contain a small amount of other material, are as follows:
7. The father started these proceedings on 21.10.19 to commence spending time with X. The mother has consistently resisted there being any time between X and his father.
8. The matter ran as a ‘de facto interim hearing’ before Judge Neville on 18 March 2020. Interim Orders were made for the parties to attend upon Ms K for the purposes of a type of mediation prior to attempting to co-parent. This was unsuccessful.
9. The parties appeared before the Court in May 2020 and following discussion between the parties, the mother agreed through her then-lawyer for supervised time to commence at L Families. The ICL communicated the parties’ agreement to commence L Families time and Orders issued in Chambers on 5 June 2020 noting the agreement. The mother then changed lawyers and resiled from her position.
10. A further interim defended hearing occurred on 18.9.20 and the Court Ordered by consent for the parties to obtain an Expert Report by Mr M. That Report was released on 9.9.20.
11. Discussions occurred between the parties following the release of the Report, but no agreement was reached regarding X spending time with the father. The father then filed an Application in a Case seeking time (25.1.21) and the mother filed a Response (11.2.21) seeking interim relocation to the Greater Sydney area and for the father to participate in a psychiatric report.
12. Following a defended interim hearing by SR Tran, interim Orders were handed down on 22.3.21 providing for X to spend professionally supervised time with his father building up slowly in time.
13. Supervised time occurred between X and his father at L Families on 16.4.21. The mother deposes to extreme distress and psychological impact upon her as a result of that short visit, as well as some behaviours of the child. The mother has not facilitated any further time.
The second part of the procedural matrix relates to the procedure or process for the “review.”
Part 7, Division 3 of the Federal Circuit and Family Court of Australia Act 2001 (Cth) (“the FCFCOA Act”) deals with “Registries and registrars.” Section 100 of that Act provides as follows:
(1) A party to proceedings in which a delegate has exercised any of the powers of the Federal Circuit and Family Court of Australia (Division 1) under section 98 may:
(a) within the time prescribed by the Rules of Court; or
(b) within any further time allowed in accordance with the Rules of Court;
apply to the Court for review of that exercise of power.
(2) The Federal Circuit and Family Court of Australia (Division 1) may, on application under subsection (1) or on its own initiative, review an exercise of power by a delegate under section 98, and may make any order or orders it thinks fit in relation to the matter in respect of which the power was exercised.
The section mirrors, in part, s.104 of the Federal Circuit Court of Australia Act 1999 (Cth). An immediate difference, obviously to add much needed clarity in a curious sort of way, is that under the new legislation, there is a reference to “delegate” as well as to “registrar”.
In a similar vein, Part 14.3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (one of three sets of new Rules) deals with “review of exercise of power by Senior Judicial Registrar or Judicial Registrar.” Rule 14.05 prescribes matters dealing with the “application for review of order or decision”; Rule 14.06 provides for the operation (or not) of a stay of the Judicial Registrar’s order under review; and Rule 14.07 provides for the “procedure for review”, which is in the following terms:[4]
[4] Regarding Rule 14.07(2)(d), if there is no transcript, the Court could face competing Affidavits about what any number of parties (or their legal advisers), or even the Registrar, might depose regarding the hearing and the Orders under review! One might wonder whether a Registrar might or could be called to give evidence.
(1) A court must hear an application for review of an exercise of power by a Senior Judicial Registrar or Judicial Registrar as an original hearing.
Note: In an original hearing, the court rehears the whole matter and does not simply review the decision of the original court.
(2) The court may receive as evidence:
(a) any affidavit or exhibit tendered in the first hearing; or
(b) any further affidavit or exhibit; or
(c) the transcript (if any) of the first hearing; or
(d) if a transcript is not available—an affidavit about the evidence that was adduced at the first hearing, sworn by a person who was present at the first hearing.
It will be readily noted that under these Rules, there is no reference in this Part to “delegate” as there is in the Act, just as there is no reference in the new Act to “Judicial Registrar” or “Senior Judicial Registrar”. It is unnecessary to consider these drafting anomalies, including by what legislative or other decree the new titles came to be resurrected or resuscitated. There is some curious history of course arising from the title given that there were Judicial Registrars under an earlier regime which obviously went out of fashion, with the last such office holders being appointed to the Family Court of Australia in 2010.
Whatever about the curiosities of legislative drafting quirks, the opacity and tenebrous nature of the new Act and new Rules, individually and their inter-face, and the dirigiste panoply if not carapace of practice directions that will daunt many lawyers let alone poor self-represented litigants, in more conventional “jurisprudence speak”, the “review” is, strictly speaking, not a review but a hearing “de novo.” Or, as specified in Rule 14.07 (on p.251 of the new Rules), it is “an original hearing.” Somewhat more confusingly, the “note” to this Rule (which is not binding of course) curiously states: “In an original hearing, the court rehears the whole matter and does not simply review the decision of the original court” (emphasis added). This seems to suggest that it could be, and perhaps should be, both an “original hearing” and/or an actual review of the decision under review. In my view, the drafting of the Note is, at least, infelicitous. The two matters referred to in it are mutually exclusive – an original hearing and a review. In what follows, I will treat the matter as “an original hearing”, and therefore it will be, strictu senso, a hearing de novo (literally “anew”) and therefore unbound by the earlier decision of the Senior Judicial Registrar. Or in terms of the Rules, it will be “an original hearing.”
Such an approach accords with what the High Court said in Harris v Caladine.[5] For example, Gaudron J said (at 153 & 154; emphasis added):[6]
It is necessary to turn to the nature of the review process required by s.37A(9) of the Act. In so far as that sub-section provides for the "review" of the "exercise of (a) power" delegated to a registrar or deputy registrar in accordance with that section, it was clearly intended that there should be a process enabling complete consideration of the matter as dealt with and not merely a process, such as is involved in the appeal process under s.94 of the Act, directed to remedying errors of law. Such a review entails a consideration of whether, quite apart from legal or other error, a different result should be arrived at. But, as is clear from the word "review" and from the expression "exercise of power", it was also intended that a decision made in exercise of delegated power should have force and effect unless and until set aside in or in consequence of the review process. Thus, a decision is not one that is provisional or, as argued on behalf of the appellant, one that is set at nought by the filing of an application for review, with the consequence that in the present case the Family Court was automatically obliged to determine, as a contested matter, what order should be made under s.79 of the Act. Rather, the review process is one in which the Family Court must first determine whether the order should be set aside. That issue may be decided on the basis that, even though there is no discernible error in the decision in question, circumstances, including intervening circumstances, require a different result.
[5] Harris v Caladine (1991) 172 CLR 84.
[6] To similar effect, see the joint judgment of Mason CJ and Deane J at CLR 95 – 97.
A third part of the procedural matrix is to record the various interim or interlocutory Applications currently before the Court:[7]
(a)On 25th January 2021, the Father filed an Application in a Case by which he sought certain procedural, and what might be called quasi-parenting, Orders which included (in general terms: (a) the Mother enrolling in L Families to enable the Father to spend supervised time with the child, X, and (b) for the Father to undergo chain of custody urinalysis testing;
(b)On 11th February 2021, the Mother filed her Response to the Father’s just noted Application. In her Response, the Mother sought Orders that included: (a) the Father to undergo hair follicle testing; (b) the Father undergo a psychiatric assessment; and (c) the Mother be permitted to relocate to “the greater Sydney region”. This appears to be the first time that the Mother raised formally her desire, and sought formal approval, to relocate;
(c)On 10th March 2021, the Mother filed an Amended Response to the Father’s January Application. This simply formalised, among other things, that the Mother have sole parental responsibility for the child (and that X would live with her), and the Mother’s proposed relocation as a Final Order sought;
(d)On 30th March 2021, the Mother filed an Application for Review, by which she sought to have reviewed the decision of, and Orders made by, a Senior Registrar on 22nd March 2021. The Orders the Mother sought in this Review Application were similar to those sought in earlier Applications, namely for the Father to undergo hair follicle drug testing (and related matters) and for the Mother to be at liberty to relocate with the child to the greater Sydney area. There is no record that the Father filed any Response to this Application; and
(e)On 21st May 2021, the Mother filed an Application in a Case by which she sought an Order that the Orders made by the Senior Registrar be stayed. There is no record that the Father filed any Response to this Application.
[7] I note that the primary Applications remain formally on foot, namely the Father’s Initiating Application, filed 25th October 2019, in which he sought, on an interim basis, that he spend time with the child supervised by his sister, and the Mother’s Response, filed 6th February 2020, by which she sought that the child live with her, she have sole parental responsibility, and that there be no contact between the Father and X. In the relevant Notices of Risk filed at the time of the primary Application/Response, the Father’s Notice of Risk identified no risks for the child in the Mother’s care; in the Mother’s Notice of Risk, she raised issues about the Father’s drug use and suicidal ideation, among other things.
One other perhaps curious procedural matter should be noted here. Following a directions hearing of the matter on 28th January 2021, Orders issued directing the parties to provide the Court with no more than 6 clarifying question to be sent to Mr M. This was in circumstances where the Mother raised questions about what she said were certain inconsistencies in the expert report between comments made in the body of it and the recommendations made in it later. This was also in the context of the Mother apparently running a “no contact” case. In fact, the Mother’s lawyer advised the Father’s lawyer and the ICL by email dated 18th December 2020 that the Mother was in fact running a “no contact” case.[8] However, on 16th February 2021, the ICL advised the Court that, following discussions between the lawyers, nothing further was required of Mr M.
[8] This email from Mr N to Mr Robinson, copied to the ICL, dated 18th December 2020, is Annexure C to the Father’s Affidavit, filed 25th January 2021.
Background
The general background, including relationship history, to this parenting dispute is conveniently summarised in Mr M’s Report, dated 8th December 2020 (Exhibit A). I have to say as respectfully as possible, as originally set out in Mr M’s Report, the very large and unfortunately undifferentiated block of text containing this information (as with very large other paragraphs in the Report), was very difficult to read and digest. It did not conform to the Rules of Court that require all documents filed to be in 12 point font, and to have line spacing of at least 1.5. To assist all parties and readers, Mr M’s original (and single-block) par.2 has been re-formatted (and to confirm, nothing other than formatting has been added to the text), thus:
1) The parents in this matter, Ms Clement and Mr Abberley met in 2017 when Mr Abberley was aged 30 and Ms Clement was aged 28. They were initially in a friendship until their relationship became romantic in December 2017. Mr Abberley relocated to the Region G from City O in 2018, and the couple resided together for a short period in mid 2018.
2) Both parties indicated that they both have experienced mental health difficulties in the past, and Mr Abberley particularly noted that following the loss of a friend to suicide, as well as his grandparents, he was acutely unwell at the time and seeking help. Both parties accept that there were heated verbal exchanges throughout the relationship, as well as via text messages, yet there is dispute over an instance of alleged physical violence from Mr Abberley towards Ms Clement. She alleges he was physically violent in the relationship, and Mr Abberley reported that he “threw an arm over her shoulder to stop her from leaving but immediately pulled my arm away.”
3) The pair ended their relationship on the 3rd January 2019 prior to becoming aware that Ms Clement was pregnant with their child X.
4) Ms Clement alleges, and Mr Abberley accepts that he sent a number of abusive text messages to her following the end of their relationship. Throughout 2019 Mr Abberley sought mental health support as well as substance abuse intervention, and he maintains upon interview that he has wanted a role in his child’s life, but due to the lack of contact from Ms Clement was unable to establish any meaningful agreement to form a relationship with his son, or be present for his birth which occurred in 2019.
5) Ms Clement alleges that she viewed Mr Abberley’s behaviour post-separation as harassment, abuse, and is fearful that he has been stalking her. Mr Abberley advised that he has contacted members of Ms Clement’s family to seek knowledge about the pregnancy, birth and subsequent health of his child, in the absence of any meaningful contact from Ms Clement. He provided the perspective that while he has known her whereabouts over the past 12 months, he has not attempted to engage with her in person out of fear of criminal charges or an apprehended violence order which would ultimately delay his ability to have any interaction with his son, and any fear response by the mother would directly impact the wellbeing of his son. Over the past six months there have been attempts by Mr Abberley to establish mediation and supervised access with X however this process has broken down.
Orders sought by the Applicant
The Orders sought by the Father were outlined in his outline of submissions filed 15th June 2021, at paragraph 7:
7. The Father seeks the Application for Review filed by the Mother be dismissed. The effect of such dismissal confirms the orders made by Senior Registrar Tran on 22 March 2021. The Father further seeks an order directing the parties be directed to take all steps necessary to implement those Orders within 7 days.
Orders sought by the Respondent
The Mother filed an Application for Review on 30th March 2021 which contained the Orders she was originally seeking. At the hearing on 3rd August 2021, the legal representative for the Mother indicated to the Court that the Mother accepted and adopted the Orders sought by the Independent Children’s Lawyer, save for Order 6 being amended so that the Mother could complete similar courses at a location in the greater Sydney/Region B.
Orders sought by the Independent Children’s Lawyer
The Orders sought by the Independent Children’s Lawyer (“the ICL”) were contained in the written submissions filed 1st August 2021. They were as follows:
INTERIM ORDERS SOUGHT BY ICL
1. That the mother have sole parental responsibility for the child X born in 2019 (“the child”).
2. That the child live with the mother.
3. That the mother be permitted to relocate the residence of the child to the Greater Sydney region.
4. That the child shall spend no time and have no communication with his father.
5. That the father do all things necessary to participate in random chain-of-custody drug urinalysis testing no more than once per calendar mother at the request of the Independent Children’s Lawyer (ICL), and will forward a copy of the test results to the ICL and the mother’s solicitor within 48 hours of receipt.
6. That the mother do all acts and things necessary to enrol in and complete the Keeping Kids in Mind, Positive Parenting and Circles of Security courses at L Families.
7. That both parents do all acts and things necessary to comply with recommendations of each of their respective mental health practitioners.
8. That the matter be listed for a section 62G Report with a Family Consultant.
9. That the matter be set down for Final Hearing of three dates on dates suitable to the Court.
Applicant Father’s Evidence
The Father filed two Affidavits in support of his Application to spend time with X (or to commence to do so), respectively on 25th January 2021 and 15th June 2021.
In his first, somewhat brief, Affidavit, summarily stated, the Father contended that:
(a)As at the date of filing in January 2021, he had not spent any time with X (at that time, X was 1 year and four months old);
(b)He confirmed (par.3) that he and the Mother were in a relationship “until January 2019”, regrettably, he did not state when the relationship started, or any features of it. He said that he and the Mother were “actively trying to have a child and had numerous discussions about possible names;”
(c)The Father confirmed that when the parties separated he did not know that the Mother was pregnant, and that she informed him of her pregnancy “shortly after they separated”. He confirmed that the Mother refused to provide him with any details regarding the pregnancy. He said he did not have any say in naming the child, nor did he know where the Mother and son were living;
(d)Although the Mother agreed in mid-2020 to the Father spending time with the child, after she changed lawyers, the Mother resiled from this agreement;
(e)At pars.6 and 7 of this Affidavit, the Father set out certain sections of Mr M’s Report (the Father paid for this Report) regarding the commencement of him spending time with the child;
(f)Pars.8 – 12 set out the Father’s unsuccessful attempts to arrange for him to spend time with X, supervised at L Families.
(g)Pars.13 – 17 outline that the Father ceased use of cannabis on 11th December 2020 and that he intended to provide monthly drug screens at the request of the ICL. He said he would do this until he could show that he has been “abstinent” from drugs for six months. It is unclear if the regularity of drug tests proposed actually took place. Certainly a copy of the Father’s drug test dated 13th January 2021 was Annexure E to this Affidavit;
(h)The Father also outlined that (i) he wished the Mother to undertake various parenting courses, (ii) the parents would communicate via a named parenting “app”, and (iii) he paid child support as assessed by the Child Support Agency.
In the Father’s Affidavit, filed 15th June 2021, the following matters may be noted:
(a)Since X’s birth in 2019, the Father spent only 15 minutes with him at the contact centre, L Families. This occurred on 16th April 2021;
(b)The Father sought to rely upon the transcript of the hearing before the Senior Registrar held on 18th March 2021 (the transcript later became part of the Father’s tender bundle at the hearing before me on 3rd August 2021). That said, it was not immediately apparent what specific matter was sought to be relied upon from that transcript, especially in the light of the High Court’s comments in Harris v Caladine noted above;
(c)The Father confirmed (par.7) that (in my words) his time with X did not go well and was shortened from 30 to 15 minutes because of the Mother’s distress. The Report of this meeting between Father and son (with Mother in attendance) was Annexure B to his Affidavit;
(d)The Father confirmed that following the unsatisfactory and distressing encounter with X on 16th April 2021, the Mother sought to defer further “time-with” arrangements so that she could obtain psychological support. Correspondence regarding these matters was at Annexure C to the Affidavit;
(e)Par.9 of the Affidavit (plus the annexures referred to) set out the attempts and detailed correspondence between the lawyers seeking [unsuccessfully] to secure further time between Father and son;
(f)Pars.14 – 18 address the Mother’s proposed relocation. The Father said (par.15) that the Mother did not raise any issue regarding relocation before or until the Father sought to spend time with X. He also said that she did not raise the issue in the interviews for the report of Mr M. Whether it was raised at the outset, or later, it is difficult to comprehend what point the Father was seeking to make here, other than simply that it was not an issue earlier but is an issue now, which may impact upon the spend time with Orders the Court may ultimately make. These matters of geography and the like are set out summarily in par.17; and
(g)The Father said that he has “no meaningful information” regarding the Mother’s relocation proposal or her financial circumstances, particularly arising out of a house on the Region G of NSW that was, apparently, left to the Mother by a member of her family (her adoptive Mother). Financial details were sought in a letter from the Father’s lawyers to the Mother’s lawyers in a letter dated 18th February 2021 (Annexure F to this Affidavit; in the body of the Affidavit, at par.16, this is referred to as Exhibit E, which had been previously been assigned to other documents noted at par.10);
(h)As noted above, the Father also relied upon the transcript of the hearing before the Senior Registrar.
The Mother’s Evidence
The Mother’s evidence was rather more comprehensive and certainly more expansive and detailed than was the Father’s, on many fronts. Affidavits filed by her, or on her behalf, were:
(a)The Mother’s Affidavits, filed 6th February 2020; 15th September 2020; 12th February 2021; 30th July 2021;
(b)Affidavit of Ms P, filed 25th August 2020. Ms P was/is the Mother’s psychotherapist and mental health social worker. The Mother was referred to her by her General Practitioner;
(c)Affidavit of Dr Q, filed 2nd August 2021. Dr Q is a clinical psychologist who has been consulted by the Mother on a therapeutic basis on five occasions (as at the date of the filing of the Affidavit). Dr Q was provided with a copy of Mr M’s Report by the Mother to review. She declined to do so, in my view properly and fairly, for the reasons set out at par.5 of her Report. Her comments were directed specifically to the issues of (i) whether there should be supervised visits between the Father and X and the commencement of them, and (ii) the Mother’s proposed relocation;
(d)Affidavit of Ms R, filed 17th June 2021. Ms R is the Mother’s biological Mother. She lives in Sydney and deposed that her large family (including uncles, aunts and cousins) seemingly all live within just under 2 hours or so drive from her residence in Sydney. She said that the Mother and X have visited her on “several occasions”, and that she was looking forward to the Mother being closer to her when/if she relocates, among other things so that she could provide various practical assistance to the Mother with X. She said that she was worried about the Mother and her lack of support in Canberra.
The Mother’s affidavit evidence
Accepting that I cannot, and do not, make any actual findings in this further interim litigious skirmish between the parties, to say that there was a stark contrast between the Mother’s detailed material, and the less expansive material filed by the Father, would be something of an understatement.[9] Without canvassing every detail in her significant number of Affidavits, I note the following.
[9] The principal locus for the conduct of interim proceedings remains Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422 especially at [81] – [82]. More recent Full Court decisions invariably refer to Goode and the restrictions and related matters concerning interim proceedings. See, for example, Vanzin & Vanzin [2014] FamCAFC 245 at [20] – [22]; Redmond & Redmond [2014] FamCAFC 155 at [21] – [22]; Banks & Banks (2015) FLC 93-637; Perry & Perry (2015) FLC 669.
The outline of information in pars.2 – 10 in her first Affidavit, filed 6th February 2020, provides a very neat snapshot of the short but rather troubled relationship between the parties. Those “troubles” were set out, with many of them documented, in later Affidavits. It is curious, but perhaps not, that most of the information provided by the Mother was unfortunately not mentioned at all by the Father.
For example, the Mother deposed that the parties were in a relationship between December 2017 and 3rd January 2019. She said that they lived together for only approximately one month (in approximately July 2018). Otherwise, she said that the relationship was essentially one of “boyfriend and girlfriend.”
The Mother next set out (pars.11 – 22) the reasons why she is opposed to the child spending any time with the Father. The Mother deposed that the Father’s controlling and violent conduct towards her has left her “feeling fearful of him and harassed by him.” The conduct complained of by the Mother was set out in detail, and consistently referred to in the reports (noted later in these reasons) from the Mother’s various treating health care professionals.
Notwithstanding the Mother’s fears and anxieties, at par.22 of her first Affidavit, she said that she recognised the importance of the Applicant as X’s Father, and that she would like to work towards having a co-operative co-parenting relationship, accepting that she remained “anxious and hesitant” but was still willing to try.
Regarding the Father’s troubling behaviour during the relationship, at pars.23 – 78, the Mother set out the following (some of which the Father confirmed, but not in much detail):
(a)During the relationship, the Mother said that the Father took a range of drugs, including LSD, marijuana and ecstasy. She confirmed that at times she took drugs also but not to the same degree (or “range”) as did the Father;
(b)The Father told the Mother that he suffered from depression and anxiety for which he took medication. He had moved from City O to Town S to be closer to the Mother;
(c)The Father was controlling of the Mother from early in their relationship, including her friendship with other males. She said that he directed her to delete certain “friends” from Facebook, and checked her mobile phone so as to delete their numbers;
(d)Among other things, the Father called the Mother various derogatory, insulting and belittling names (see par.32);
(e)At pars.33 – 37 are a series of detailed accounts of the Father suffering from panic attacks, the impact or interaction between the Father stopping his medication and him taking illicit drugs, and a purported suicide attempt in 2018;
(f)The Mother said (par.38) that in about June 2018 the Father asked her to move in with him so that she could help him pay the mortgage. She said that after she moved in with him the relationship became more difficult, which included him smoking marijuana in the house, which the Mother asked him to stop. He refused. The Mother said (par.40) that the Father became increasingly depressed and often would not get out of bed. The Mother moved out of the house;
(g)At pars.45 – 49, the Mother said that she had to work in her job at a business over Christmas in 2018. She said that the Father continued to harass her to spend time with him. She deposed that he said to her at this time: “You have ruined Christmas for me, I have thrown your Christmas presents in the ocean.” The Mother told him that there was nothing she could do for him unless he did something about his mental health and his drug use. In early 2019, the Mother told the Father that their relationship was over. In early 2019, the Mother found out she was pregnant. The following day, she advised the Father of the pregnancy;
(h)At pars.50 – 59 (with multiple sub-paragraphs in between), the Mother recorded a large number of utterly vile comments by the Father, ranging from “I’m going to kill myself if you don’t have an abortion”, to “… Your [sic] scum and nobody want you ever. Unfortunately our poor baby will love you and call you mum but as he gets older it will see what a despicable cunt of a human you actually are. So just take all that and never forget it”, to “O told you the same thing when I left yours this morning … him or us and if him and you keep the child tell it I’m dead was my words”, to “you won’t hear from me for a while which I’m sure you will love but thought you should know that my birthday wish is for you to have a miscarriage I hate your guts and you’re the most pathetic person I’ve ever known”, to “Miscarry so we don’t have to talk ever again”, to “I accept the fact we are having a baby but I still hope you miscarry for its sake”, to “You will be lucky to spend 1 birthday with our child before it’s 18 cos im gonna drag your ass through the courts for as long as it takes to gain full custody.”
(i)The messages from the Father set out above, and quite a number along similar lines, were taken from various SMS messages, copies of the originals of which are at Annexure A to the Mother’s Affidavit, filed 15th September 2020. Because of their importance in duration, range, volume and content, it is important that they stand as a form of witness or testimony to what the Mother endured at the time. In my view, there was nothing at the time they were sent to her, nor anything since, which could justify such vile messages. In my view, if it be possible, the messages were made worse by the Father obviously knowing that the Mother was carrying his child. The body of SMS messages from the Father (including the Mother’s responses) are at Appendix A to these reasons;
(j)Pars.60 – 74 outline a range of examples of what the Mother described as a history of harassment of her by the Father including at her then workplace and damage to property. The Mother went to the police to seek assistance but ultimately no protective Order was taken out by them. In consequence of the police not taking protective action, the Mother said that she moved to Canberra and changed her mobile phone number. The Mother said at the time that she was harassed, intimidated and terrified of the Father. She also said that she had no confidence in the Father’s ability to physically care for the child, and in particular, because of the Father’s “long-standing drug addictions and psychological/psychiatric problems and suicidal ideation,” the child would be at risk in the Father’s care. She said that she was concerned that the Father may harm her.
The Mother’s second Affidavit, filed 15th September 2020 by her new and current lawyers, confirmed that she had previously agreed to the Father spending supervised time with X at the contact centre, L Families. She said that she agreed to that arrangement based upon the legal advice she had at that time. She said that, at that time and based on the advice she was given, she felt that she had no choice but to agree to supervised time. She said that because of her ongoing stress and anxiety about X spending time with the Father, she has resiled from that agreement. At pars.4 – 15, the Mother outlined at a little length details of this stress and the lengths to which she has gone to remove herself from the “stressors”, primarily the Father.
For example, she spoke about the “ongoing and emotional impacts of the Applicant’s abuse and stalking behaviour towards her”, as well as towards her family and friends. Pars.6 – 7 outline various impacts the Mother says affect her if she even hears or reads the Applicant’s name. The Mother’s sleep and appetite are adversely impacted. So too is her milk production to breastfeed X.
The Mother said (par.8) that she had gone to great lengths “to get away from the Applicant” so that he could not find or contact her. She has nothing delivered to her in her own name. She has her mail forwarded to a different address to her residence. She has deleted her Facebook account and has stopped using Instagram. She has changed her email and phone number; she has taken steps to remove or reduce the possibility of tracking devices on her phone.
When the Mother was due to give birth to X, she contacted the hospital (see par.9). The hospital admitted her anonymously, and the ward to which she was admitted was placed into “lockdown” (not in a COVID-19 sense) but as a protective measure for the Mother and her son. Only verified visitors were permitted to see the Mother. A copy of the hospital’s letter confirming such things is Annexure B to this Affidavit.
At par.10, the Mother confirmed that after explaining her concerns to Centrelink, various protocols were put in place to protect the Mother’s information.
At pars.10 – 15, the Mother outlined her further concerns about coming into contact with the Father arising from what she described as “the psychological abuse” she suffered from him. She confirmed that she has been working with a psychotherapist, Ms P, for two years to help her with the issues recorded. Set out later in these reasons are details from Ms P.
The Mother further noted that upon moving to Canberra she joined various support groups for surviving narcissistic and abusive relationships. She said that she continues to suffer from constant stress, anxiety, fear and worry, which impacts her capacity properly to parent X. Part of her fear is that any communication with the Father will be taken by her as a “passive threat” even if they are not intended as such.
The remainder of this Affidavit (pars.16 – 40) deal with another difficulty in the Mother’s life. It concerns her adoptive Father. Very briefly summarised (a) the Mother moved to Canberra not only to put some distance between her and the Applicant but also to assist her adoptive Father who was unwell. As things transpired, among many other things, the adoptive Father was in the process of transitioning to become a female, who is now known as Ms H. This was something of a surprise to the Mother. Over a modest period of time, the Mother became estranged from her adoptive Father, who was also dealing with other health issues. It also transpired that her adoptive Father (Ms H) was also in touch with the Applicant.[10] Some of the very difficult correspondence between the Mother and her adoptive Father is annexed to her Affidavit (Annexures C – H). From the Mother’s perspective (par.40), this meant that she was having to deal with “2 abusers in my life [who] have now “joined forces” against me, which horrifies me.”
[10] The Mother’s adoptive Father, Ms H, filed an Affidavit, on 28th August 2020. It was stated to have been prepared by “Mr Abberley”, the Applicant Father. In my view, it is unnecessary to canvass the detail of this Affidavit, except to note that it largely supports the Mother’s account of the estranged relationship between them, the Mother’s difficult childhood, and the general alliance between Mr Abberley and Ms H against the Mother.
In the Mother’s quite short third Affidavit, filed 11th February 2021, she recounted (a) how she and her adoptive Father are now estranged, (b) she has no other family in Canberra and only a few good friends and (c) how she and X have undertaken a number of visits to the “greater Sydney area” to visit members of her biological family. She said that she has felt less stressed and anxious, and supported, in the time she has spent with her family in the broader Sydney area mentioned. The Mother also deposed to feeling isolated and largely unsupported in Canberra, and quite miserable living in the national capital.
The Mother outlined also her intentions regarding her return to work, including various general offers of work in the Sydney region, so it would appear. She confirmed that the Father now pays some child support ($27 per week), plus her Centrelink payments equivalent of $723 per week.
The Mother’s fourth Affidavit, filed 20th May 2021, primarily canvassed two issues: (a) the Father’s very brief supervised time with X on 16th April 2021, and (b) some details regarding the Mother’s proposed relocation to the “greater Sydney area.”
The Father’s time with X was pursuant to Orders made by the Senior Registrar, which provided for a half-hour supervised visit. Paragraphs 4 – 20 outline what happened on 16th April 2021, certainly from the Mother’s (and X’s) perspective. As already noted earlier in these reasons, the Father’s report is rather briefer.
Unsurprisingly, the Mother reiterated the almost “crippling anxiety” she has as a result (she says) of the abuse and controlling behaviour of her relationship with the Father. She confirmed that she sought to facilitate the time between X and the Father and hoped (par.4) that “the emotional and other impacts upon me were manageable.” As the Mother outlined, they were not.
Almost immediately after arriving at L Families the Mother started crying uncontrollably. The child had fallen asleep in the car. The Mother said that she tried to take deep breaths and to distract herself to aid in calming down. This did not work and the Mother continued to cry “uncontrollably.” The child was removed from the car. There were some staff from the contact centre who were trying to distract X, but he began to cry. X was taken from the Mother by one of the L Families workers. While initially starting to settle, according to the Mother, X started to cry again asking for her. This “process” happened twice. On the third attempt, the L Families workers suggested that the Mother “hide” from X; the Mother stayed in her car, and cried.
After approximately 15 minutes X was returned to his Mother. She said that she was still crying when this occurred. The report of the visit provided by L Families is Annexure A to the Mother’s Affidavit.[11] Upon X being returned to the Mother, he sought comfort and the Mother attempted to breastfeed him. The Mother said that because of her emotional state, she had no breast milk. Nor, she said, was she in a fit state to drive.
[11] The Report confirms the various levels of distress reported by the Mother. The Report also notes, to the degree that it could in the extremely limited circumstances, that there was some positive engagement between X and his Father. It noted also that X was distressed at times.
The L Families workers asked if they could allow the Father to leave. The Mother became more anxious because it had been agreed that there would be a time gap between the parties leaving. She confirmed (par.14) that her drive home was very distressing due to her own distressed state. She said that it took her some 30 minutes or so to stop crying after she returned home, but was “thoroughly exhausted” by the whole process having cried uncontrollably for almost an hour and a half. She said that she felt “depleted and depressed.” She said that she attempted multiple times to get X to sleep during the rest of the day but with no success. The Mother said (par.17) that her exhaustion, depression and anxiety continued for the remainder of the weekend, while the child remained clingy and demanded extra or almost constant beast-feeding.
Following her levels of distress and exhaustion as outlined on the occasion in question and its aftermath, the Mother confirmed (par.18) that she gave instructions to her lawyers to write to their counterparts on the Father’s part seeking to suspend supervised time until she had the opportunity to seek professional help to deal with her anxiety and to develop coping strategies for future visits. That letter is Annexure B to the Affidavit. The Mother said that she was advised that the only response from the Father’s lawyer was to outline the dates and times for future supervised visits.
The Mother recorded that she had sought appointments with no less than 10 Canberra-based psychologists, unfortunately without success. She annexed copies of correspondence in this regard (Annexure C). When she was finally successful, the earliest appointment was on 25th May 2021, noting that the first supervised visit with the Father was on 16th April 2021.
The remainder of the Mother’s Affidavit (pars.21 – 35) detailed what she described as “recent developments”, in the context of her Application to relocate.
The Mother confirmed that her lawyer had written to his counterpart for the Father again requesting that she be permitted to relocate to the greater Sydney region and that supervised visits be attempted at a Sydney facility. The Mother said that she had checked with C Counselling and confirmed that such visits were possible at their facilities in Suburb E and Suburb D. The Mother said (par.23) that she sincerely hoped that after relocating and with the support of her family in the Sydney region she may be able to cope much better (emotionally and psychologically) with supervised visits. Again she confirmed that she had no family support in Canberra.
The Mother confirmed that she had inherited a property at Town T on the Region G of NSW after her adoptive Mother passed away. She said that in late 2020 she decided to sell that property. In doing so it would enable her to purchase a residence for herself and X and thereby also reduce the financial cost of renting and provide long-term stability.
The Mother confirmed that settlement of the Town T property occurred on 9th March 2021. She had been looking in the greater Sydney region for a residence to purchase over the last 12 months. She said that she had inspected a number of houses since January 2021.
The Mother said (par.26) that she is aware that the Father had been making inquiries about her via his lawyer, and that he was aware of the sale of the Town T property. She said, again, that such inquiries heightened her concerns and anxieties, which has led to her withholding information regarding the more precise whereabouts of where she and X seek (or hope) to live. She said that she would drive X to the C Counselling facility in Suburb E or Suburb D to facilitate supervised time with the Father.
At pars.27 – 35, the Mother outlined her career as a manager on the Region G, and her further education in this regard (e.g. a Certificate IV to obtain qualifications as a manager). She confirmed that in the hope of being able to relocate, she continued to explore employment opportunities, which included her having discussions with a business in the “Region U area”. The Mother confirmed that this agency has since offered her a position, which she has accepted. A redacted copy of confirmation of the offer of employment, dated 2021, is Annexure D to her Affidavit. Annexure E is a redacted copy of the Mother’s payslip. Again, the Mother confirmed her desire/hope to relocate with X to the general area previously described as the greater Sydney region.
The Mother’s fifth and final Affidavit, filed 30th July 2021, updated the Court further on the following matters.
First, the Mother confirmed (pars.3 – 4) that she completed the purchase of a new residence for herself and X on 23rd July 2021. It was again only described as being in the “greater Sydney area.” A redacted email from her conveyancer confirming her purchase is Annexure A to her Affidavit. She confirmed further that her new residence was approximately a 35 minute drive to her proposed work-place. She was able to purchase the property without a mortgage.
Secondly, the Mother confirmed (par.6) that in early 2021 she re-kindled a relationship with a long-time friend. In pretty much every way, the Mother described this relationship as having “blossomed.” She confirmed also (par.7) that she has the support of her “current forensic psychologist”, Dr Q, who has also assisted in her (in my words) learning to trust and deal with her anxieties in the context of entering a new relationship. She confirmed that her new partner has taken steps to be able to relocate with her “in readiness” for a relocation.
Thirdly, the Mother confirmed (par.9) that she is now pregnant with a second child, who is due to arrive in 2022.
Fourthly, at pars.13 – 15, the Mother outlined various health issues in the past, including 4 miscarriages. She recorded that times of high or prolonged stress impact upon her health. She noted that her weight had dropped in the course of the current litigation. Annexure B to this Affidavit is a very short letter from her GP, dated 9th July 2021, in which concerns are expressed regarding the unsurprising need for the Mother to reduce the stressors in her life to assist the improvement in her mental health, and to have “strong family support around.”
The Mother’s Supporting Evidence
In addition to the significant number of Affidavits noted above, three other Affidavits were filed, thus: Ms R (the Mother’s biological Mother), filed 17th June 2021; Ms P (the Mother’s psychotherapist and mental health worker), filed 25th August 2020; and Dr Q (the Mother’s treating psychologist), filed 2nd August 2021. This material can be addressed quite briefly.
The Affidavit of Ms R, confirmed that she was Ms Clement’s biological Mother, Ms Clement being the eldest of six children. She also confirmed that all other siblings and their families live within approximately a 1 hour 40 minute drive from Ms R’s residence in Sydney.[12]
[12] Although Ms R did not disclose her address, her Affidavit was witnessed in Suburb E, in western Sydney.
Ms R further confirmed that the Mother had visited her a number of times during her pregnancy with X, and a number of times with X more recently. She confirmed that she looked forward to the Mother relocating, and that she would support her in doing so, including providing both support and assistance (e.g. looking after X) as required. Ms R said that relocating would enable the Mother (and X) to engage with her wider biological family.
As earlier noted, Ms P is a psychotherapist and mental health social worker. She recorded (par.3) that the Mother has had a total of 40 consultation sessions with her, with each session lasting approximately 50 minutes – 60 minutes. The Mother commenced seeing Ms P in August 2018 and ceased on 13th August 2020. Ms P set out her detailed comments and observations in her Report, Annexure B to her Affidavit. That Report recounts, largely on the Mother’s self-report but which is not challenged or doubted by the therapist, the Mother’s unstable and troubled childhood, a life of transience and homelessness for a time (until the Mother was 17, and various details (at pars.6 – 8) of the difficult and controlling relationship between the parties. In this regard, Ms P stated, at par.9, that there appeared to be little basis for an “amiable co-parenting arrangement at this stage.” In the same place, she continued:
Being forced or compelled to submit to access visits would compound and exacerbate Ms Clement’s anxiety.
Ms P stated, at pars.11 and 12, her concerns about the Mother’s significant stress levels and the importance of the Mother feeling “safe”, especially in the light of the ongoing toll on her mental health from the litigation and the impact of the past relationship, and ongoing attempted co-parenting relationship with the Father.
Ms P concluded her Report (par.14) by expressing concern for the Mother and the possible or likely detrimental emotional and psychological impact upon her of the ongoing contest with the Father. At par.15, Ms P outlined a number of various strategies to assist the Mother.
Dr Q noted in her Affidavit that she had been provided with a copy of Mr M’s Report (discussed below). She also said that the Mother had first consulted her on a therapeutic basis on 25th May 2021. Dr Q’s Report is Annexure B to her Affidavit. I need only note the following from pp.2 & 3 of that Report:
During the sessions I have had with Ms Clement, it is clear that she has valid concerns for her son's safety and that the thought of dealing with supervised visits or having anything to do with Mr Abberley, or with X seeing Mr Abberley, causes her to become extremely distressed and anxious. She becomes very distressed during sessions when discussing both her previous relationship with Mr Abberley as well as his request to have contact with X. While we are working towards Ms Clement learning and utilising strategies to manage her distress, at this point in time she has not has the time or opportunity to invest further in these due to the ongoing stress of the Family Court proceedings. Given the trauma related to the alleged abuse during her relationship with Mr Abberley, Ms Clement will require time to participate in treatment to process this before being able to consider supervised visits for X with his father.
…
In summary, Ms Clement has presented with severe trauma, stress and anxiety related to ongoing stressors related to her ex-partner wishing to have regular contact with their son X, and therefore potentially herself. Ms Clement has reported some valid concerns regarding the safety of her son around her ex-partner, Mr Abberley, which will need to be addressed before any parenting agreement is finalized. Ms Clement also needs stability and security for herself and her son and has advised that moving to the Greater Sydney area will allow her to provide this, given that she has permanent housing and employment, and family support.
In regard to X having supervised visits with his father and given Ms Clement's distress and anxiety around this, it would be beneficial if supervised visits could be deferred for a period of time to enable Ms Clement to work through her distress and learn strategies for managing her distress in relation to Mr Abberley having access to X, it is my opinion that if Ms Clement is compelled to participate in having X have supervised visits with his father, that this would have a profound effect on her mental health and may then impair her ability to provide the level of care that she currently does for X given her distress and trauma symptoms related to this. My opinion in this matter is based on the sessions I have had with Ms Clement, the history provided by her, her clinical presentation, and what I have observed in sessions with her, as well as the report from Mr. M.
I need only note the following regarding the material filed by or on behalf of the Mother.
First, in no expert or therapeutic report has there been any suggestion of the Mother exaggerating, or worse, confecting, any of the distress, anxiety or other manifestation of emotional and psychological concern recorded in them arising from her relationship with the Father and the ongoing trauma from it.
Secondly, more as a matter of procedure but otherwise as well, the material from Dr Q and Ms R, and all else filed post – late March 2021, was not available to or before the Senior Registrar when she made her decision on 22nd March 2021.
Thirdly, the consistency and acute detail of the Mother’s account regarding all aspects of her life (many of which are disclosures against her own interests), including her relatively short relationship with the Father, across all of her Affidavits, and equally across all health professionals (including Mr M), is impressive.
Report of Mr M
As earlier noted, the Report of Mr M, dated 8th December 2020, became Exhibit A. From that Report, with occasional passing comment (or two), I note the following.[13]
[13] Again I record that this densely, single-spaced Report (single-spacing is contrary to the Rules of Court – new and old), was re-formatted by my Chambers, after having notified Mr M of this course beforehand, to assist in its readability and functionality. Of course, no other changes were made to it. The re-formatted Report was of course provided to Mr M, and to the parties and to the ICL. All references will be to the paragraph numbering in the re-formatted version of this Report.
At par.15, the Father said that he moved to Town S from City O to support the Mother. At par.16, he confirmed that even when he moved the relationship with her was “a bit toxic.” In the context of a discussion about his drug use, somewhat differently to his earlier comments about the reason for his move, at par.26, the Father said that he moved to Town S, in part, to escape his drug use in City O. It is as well to record that paragraph (emphasis added):
26. When discussing illicit substance use, Mr Abberley reported that he started using cannabis at the age of 15-16 while still at school. He said “it started with just having it every now and then. But I was using it every day for a few years until last year. I stopped but I relapsed again this year. I go through around half an ounce per week, or two grams per day. It’s quite a lot. It gives me an escape, and helps me relax. I haven’t had any MDMA or party drugs since March last year, between when I was in City W and Town Y. I used MDMA most weekends when I came back from Queensland and was living in City O. It was always around and I got it pretty cheap. It wasn’t every day, some weekends it would be one night, sometimes Friday and Saturday night. I wanted to get away from it all by coming to Town S, that was part of the reason I moved away, to settle down.” He discussed more historical use of harder substances and said “I smoked ICE twice, and heroin once.”
At par.27, the Father confirmed that he had apologised to the Mother for his terrible text messages, which he acknowledged were “not good” and could not be defended. He said that he had allowed himself “to get worked up.” He said that he is seeing a psychologist, Ms F, fortnightly. Unfortunately, although Mr M spoke with Ms F (noted later in these reasons), there is no Report or other record from Ms F before the Court.
Par. 30 outlined the Father’s use of cannabis but something akin to a conditional stopping of it if he got to spend time with X. The comments by the Father are both revealing and self-explanatory. In my view, they are also concerning as to the Father’s strong self-focus, among other things. As reported to Mr M, the Father said:
30. Given his current cannabis consumption he was asked if he considered any additional treatment options to address his relapse. He said “I don’t need to go back to rehab. If I got told I was going to see X tomorrow, I’d throw it in the bin right now. I don’t expect anyone to believe me. I haven’t been given anything from this entire case, I’m the one that’s suffering. I don’t know what Ms Clement’s position is, I don’t know if she’s changed her mind, but I can tell you now I’m never giving up having access to our child. I said things to her like ‘I’ll go for full custody’ but it was to help her if she was having trouble I’d do that, I’m not trying to fight her. I feel like I’m left no other option. I’m hesitant on what to say. I’ve knocked on doors, and made phone calls and had allegations of harassment. From the get go, I jumped through every hoop that was put in front of me. How do I prove to her that I’ve got my act together? I sent her registered post letters telling her I was clean. I’m sober right now, I don’t need to sit there and smoke cannabis every second of every day. I’ve been to Bunnings and played golf this morning. I do do other things. If I was given the heads up that I was going to meet X, or that X was going to come into my full custody there would be no issue. It would be an adjustment but I look after my friends’ kids and my niece and nephews. I’ve never said anything that I’m going to harm my child. I’ve never threatened to hurt her or my child ever. They squashed the AVO immediately. I’ve been so patient with this, and will continue to be.”
At par.31 (and other places in the Report) the Father said that he sent the text messages to the Mother because he was not coping at that time. Such an admission may show some insight, but it also showed, in my view, that “not coping” was some form of justification for an ongoing barrage of distressing, hurtful, cruel and utterly insulting SMS messages to the Mother. That showed no insight at all, not least how he might have thought that haranguing and belittling the Mother (e.g. urging or hoping the Mother would miscarry the child) would somehow result in him learning details about the pregnancy, among other things.
The reports by the Father, and Mr M’s comments regarding his “current psychological functioning”, are important. Par.36 of the Report noted the following (emphasis added):
36. Mr Abberley’s perspective regarding his current mental health was somewhat contradictory. On the one hand, he discussed having appropriate support through his psychologist Ms F, and noted he had addressed a number of his more severe mood disorder symptoms through inpatient stays at Town Y and City W, and inpatient rehab in St Leonards, which he believed has taught him the skills to maintain good mental health. His psychologist Ms F noted that his mood upon presentation is variable, and reactive to what is occurring with legal proceedings however that in the spectrum of mental ill health, he is quite functional and self-motivated. On the other hand, Mr Abberley did report in the initial interview some anxiety which has prevented him from returning to work, which he later retracted. His current reliance on cannabis as a coping mechanism also raises questions about his capacity to properly utilise the strategies he has learned in his treatment. Ms F also reported largely a cognitive-behavioural therapy approach which is useful at resolving symptoms of depression and anxiety, as well as some targeted emotion regulation and anger management approaches.
Relevant comments and observations regarding the Mother were as follows from the Report.
Basic details regarding the Mother’s relationship with the Father are recounted at pars.49 – 52. Like most things recorded about the Mother, her account is both very candid and, in its own limited way, insightful. Thus:
49. I ended up seeing Mr Abberley after a few months by myself. He was lovely at first, I thought he was perfect for me. He was able to be the fun party guy, but then could be serious and respectful at events like weddings. We both had mental health difficulties in common. He made me smile. He chased me at first and then pretty much once I called him my boyfriend, it got very intense very quickly. He was all-in. He wanted to come everywhere with me. He moved down to the Region G. He wanted to buy a house for me and wanted to be my saviour, he went from 0-100 very quickly but I never agreed on any of it.
50. I was lonely on the Region G and wanted to have fun. I even told him not to move to Town S but he wanted to get into the market. It was all a load of s**t because once he came down he expected so much from me. He started controlling who I saw and what I did. It was like he wanted to be loved and adored a certain way and when it didn’t match his expectations he’d lose it. He’d go off the rails and yell and swear and say horrible thing.
51. I had some red flags early on. One time he convinced me to try acid, and so when I got on facebook to tell my acid friend that I was finally trying it, he came out and lost the plot and became jealous that I was speaking to another guy. I wasn’t allowed to talk to other guys, he pegged a tea towel at me. I burst into tears, and he went to bed. My first time trying acid and he was going to leave me there to freak out on my own. I was angry and scared and he eventually got up and we had some laughs. I was concerned about his temper and he kept telling me he’d seek help. He promised me he would see someone but kept putting it off. All the fights we had in the meantime I didn’t think to leave him because I didn’t have anyone else.
52. At first I thought he was just worried that I’d leave him or cheat on him and was an insecure person. But since he’s stalked and harassed my workplace, neighbours and friends I’m convinced he’s more dangerous than what he lets on. He swears he didn’t break into my place, but he has sent Mr Z messages and tried to break up his marriage. He has harassed my mother’s partner, a grieving old man, and harassed my neighbours. It’s beyond a normal person desperately wanting contact with his son. Coupled with what I went through with him where he was violent towards me and tried to drag me into his house, and what I know about him, I’m scared of him. He told a friend of his ‘do yourself a favour and kill yourself’ and his friend then completed suicide a few weeks later. I broke up with Mr Abberley in January 2019 and two days later found out that I was pregnant.” The relationship, and allegations of verbal abuse, stalking, and harassment are covered in more detail in the Perspective section below.
The Mother’s psychiatric and psychological history is similarly candid. In my view, it is insightful in its unvarnished account and commentary, notably about the causes of stress and anxiety in the Mother’s life. At par.57, Mr M recorded (emphasis added):
57. When discussing her historical psychological functioning, Ms Clement reported seeing a counsellor when she was in primary school but could not recall what the cause of the referral was. She expressed that her opinion of her psychological difficulties amounted to “situational anxiety in stressful life events. I sometimes worry about little things. I’ve come close to panic attacks over the last couple of years where my heart races, I shake and I over analyse things and ruminate. I spend hours researching things online. If the stress is around something I can fix, then I’ll be okay once I fix it. If it’s something I can’t control then it’s hard for me to relax. For example, if Mr AA and I were evicted I’d be stressing until we had a new place. But with this court stuff, and Mr Abberley, I can’t fix it so I’ve stayed anxious. I’ve been underweight since I was 14, and seen doctors about it. My counsellor thinks that I’d been living in a permanent state of fight/flight and my nervous system was burning a lot of energy. I felt like I’d calmed down after moving to Town S and I gained some weight. I felt safe at Town F before I left.”
The Mother’s report of her drug and alcohol use is at pars.58 and 59. Par.58 also comments on the Father’s drug use, thus:
58. In regard to illicit substances, Ms Clement advised that she used cannabis for six months in her teens, but has not used it regularly since then. She noted that she had used cocaine once prior to meeting Mr Abberley, yet used it regularly while in a relationship with him. Between the ages of 16-20 Ms Clement reported that she tried ecstasy pills, and would use them “every couple of months. With Ace in my early 20’s I only ever did MDMA. I knew what effect it had, and I knew the people I was buying from. Some of Mr BB’s friends did LSD and mushrooms but I didn’t do it, because I didn’t like the sound of it. I still asked a lot of questions about it and the effect it had, because I had this friend that did it quite a lot. But Mr Abberley was really into speed, coke, pot, and the psychedelics. He liked ketamine, acid, coke and DMT. It was on the weekend, and he did drugs much more than me. He always had some stuff on him or at home. I haven’t touched anything since New Years Eve 2018-2019.”
The Mother’s account of her relationship with the Father was similarly candid. Again, although a tad on the long side, its coverage by Mr M is important (pars.60 – 63 (emphasis added)):
60. Ms Clement discussed her perspective on parenting matters. When asked about her pregnancy she said “The physical part was fine. I was fine, it was the easiest pregnancy I’ve ever heard of. The only thing that made it difficult for me was everything else that was going on. I was concerned about stress levels and was trying to protect X from that, and saw my doctor and psychologist to help. I broke up with Mr Abberley for other reasons, which was his drug use and mental health. Then I found out I was pregnant two days later. I told him, he was being quite nasty even before we knew I was pregnant just because I broke up with him.
61. I told him I couldn’t be with him until he took action on his drug use and mental health. I thought telling him about the pregnancy would refocus him and we met up a week after I told him that I was pregnant, but he didn’t want to talk about that at all, he just kept bringing up Mr Z, which escalated into a fight. He was becoming more and more abusive verbally. I was answering phone calls at that time but after a few weeks I didn’t want to answer phone calls anymore. I had been speaking to other people who were finding it hard to believe me, as he can come across lovely and charming, and so I blocked him so he could only text me, and the texts kept getting worse. I’d block him and unblock him, I’d had enough and couldn’t take it. If he cooled down I’d tried to talk to him again, got his sister involved, because he said he was going to kill himself if I didn’t have an abortion, and I was worried about him. I told her I can’t deal with him anymore. She got involved and started talking to him. She was asking me to unblock him.
62. He kept doing the same old stuff. I’d screenshot it and send it to her. Phone calls, emails, text messages, letters. He phoned my neighbours, and my family. He was trying to get them to tell me to have an abortion. He would ask where we were and what was going on. Asked about everything in general. The problem that I had was that whenever I thought ‘maybe he’s had some time now, and is different’ I’d get told the things that he was saying and doing which were still nasty and vindictive. He wasn’t just asking them politely for information, he was threatening them. He told Mr Z’s wife we were having an affair. Him and Ms CC were also telling friends and family that they were breaking the law, trying to scare them into releasing information. They were being nasty and forceful. They made my mum’s boyfriend speak to Mr Abberley’s lawyer. Mr Z was worried Mr Abberley was going to turn up to workplace. It was a lot of intimidation tactics, and a lot of the things they were saying were untrue- such as there were warrants out for my arrest.
63. A normal person would have a genuine interest by that stage, but I don’t believe a normal person would be as intimidating Mr Abberley. It was more of the same behaviour to me and made me think that he was not well enough to be around his son or me. Some of the things he was sending to people included him threatening full custody. A couple of hours earlier he’d say ‘I don’t want to take the baby from her.’ The last 3-6 months he has gone more through legal avenues. Once it was ordered that I send him a weekly photo, he was sending me messages and stuff after every photo. His lawyer told him to stop doing it and he did. The other thing was in the beginning, I wasn’t present for the 1st court case. That was where it was decided photos would take place. I wrote a message to say ‘please do not pass on any information or photos to my father.’ I can’t remember what else I wrote but I asked politely, and found out that my Dad received the photos and was posting all my photos on her Facebook. It was a big deal given what had happened with my father.”
The ICL’s outline of submissions was filed on 1st August 2021, which was as follows:
OUTLINE OF SUBMISSIONS BY ICL
1. This outline is provided in the context of the matter being listed for Review and determination of Application in a Case following Interim Decision of Senior Registrar Tran on 22 March 2021.
2. These proceedings concern the child X born in 2019, currently aged 20 months (“X”). It is an uncontested fact that X has lived solely with his mother since birth and has had only one very short supervised visit with his father on 16 April 2021.
3. The competing applications requiring determination at the Interim Hearing are
(broadly) the father’s application to spend professionally supervised time with X and the mother’s Application of a Stay of SR Tran’s decision; a Review of that decision; an Order enabling her to relocate with X to the Greater Sydney area; and for X to continue to spend no time with his father.
4. Since the matter was determined by SR Tran, the mother has produced a Report by her treating psychologist, an affidavit of her birth mother and two of her own updated affidavits stating inter alia, she is now pregnant to her new partner, has purchased a house in the Greater Sydney region, has ongoing employment available to her there and that she was psychologically impaired by facilitating one visit between the child and father at L Families. The ‘flavour’ of the mother’s updated evidence is that her capacity to parent the child X effectively will be significantly detrimentally impacted if she is forced to facilitate time between X and his father at all, or at least without the supports available to her in Greater Sydney.
5. The ICL’s previous view supported professionally supervised time between X and his father and that the mother’s Application to relocate to Greater Sydney on an interim basis should fail.
6. The ICL has carefully considered the updating evidence produced by the mother. Given the changes in the mother’s circumstances and the medical evidence she has provided, in the ICL’s view the mother should be permitted to relocate the child’s residence to Greater Sydney. Further, the ICL is of the view that as the evidence presently stands, there should be no time between X and his father due to the impact it will have upon his mother as his primary carer.
Litigation background
7. The father started these proceedings on 21.10.19 to commence spending time with X. The mother has consistently resisted there being any time between X and his father.
8. The matter ran as a ‘de facto interim hearing’ before Judge Neville on 18 March 2020. Interim Orders were made for the parties to attend upon Ms K for the purposes of a type of mediation prior to attempting to co-parent. This was unsuccessful.
9. The parties appeared before the Court in May 2020 and following discussion between the parties, the mother agreed through her then-lawyer for supervised time to commence at L Families. The ICL communicated the parties’ agreement to commence L Families time and Orders issued in Chambers on 5 June 2020 noting the agreement. The mother then changed lawyers and resiled from her position.
10. A further interim defended hearing occurred on 18.9.20 and the Court Ordered by consent for the parties to obtain an Expert Report by Mr M. That Report was released on 9.9.20.
11. Discussions occurred between the parties following the release of the Report, but no agreement was reached regarding X spending time with the father. The father then filed an Application in a Case seeking time (25.1.21) and the mother filed a Response (11.2.21) seeking interim relocation to the Greater Sydney area and for the father to participate in a psychiatric report.
12. Following a defended interim hearing by SR Tran, interim Orders were handed down on 22.3.21 providing for X to spend professionally supervised time with his father building up slowly in time.
13. Supervised time occurred between X and his father at L Families on 16.4.21. The mother deposes to extreme distress and psychological impact upon her as a result of that short visit, as well as some behaviours of the child. The mother has not facilitated any further time.
Future Steps
14. The ICL submits that the updated evidence shows that if X spends time or communicates with his father, it will likely erode the mother’s capacity (presently as his sole carer) to properly care for the child. This is likely to mean that the ensuing detriment to the child determines that it is in their best interests not to spend time or communicate with the father.1
15. The mother has given evidence about the support she hopes to receive in the Greater Sydney area. The ICL is of the view that assuming that any Final Hearing would not occur until the second half of 2022, this time period should give the mother to ‘settle’ in her new environment, allow time for the mother to work intensely with a therapist and further time to adjust to the idea of a relationship between X and his father in the future. This time would also allow X to grow and develop, especially in terms of his verbal skills. This in itself may offer some comfort to the mother when considering future time between X and his father as he will be more able to ‘report’ anything negative that occurred with his father.
16. The ICL is of the view that an updated Report of Mr M (or other Expert) will be necessary just prior to trial.
For completeness, I should note here that in oral submissions, the ICL confirmed that the Father had not submitted to further drug screens as requested by her. She considered that there should not be the recommencement of time between Father and son until the Father had submitted such screens, and which were obviously negative. Thus far, as at the date of the hearing on 3rd August, the ICL had made two requests for drug testing (15th June and 13th July 2021), neither of which had been complied with. On one of these occasions, the Father, it seems , was unwell. The ICL further submitted that, in the light of the Father’s comments to Mr M, and his failure to do the recent drug screens, a relevant adverse inference might reasonably be drawn by the Court.
Outline of principle
In the Full Court decision of Morgan v Miles, at [74], Boland J said:[16]
The Act provides for the careful exercise of a structured discretion to determine the appropriate order to be made.
[16] Morgan v Miles (2007) 38 Fam LR 275.
At [79], her Honour set out, in significant detail, the matters that the Court needed to take into account in any parenting matter that involved relocation. At [81], her Honour again stressed the need for there to be the “structured exercise of the Court's discretion” by examining the issues in dispute against the relevant “s.60CC factors.” Obviously this was a reference to s.60CC of the Family Law Act 1975 (Cth) (“the Act”).
At [83], her Honour went on to state that, generally, Courts prohibited a relocation on an interim basis, or made orders which provided for the return of a child, if only a short period had elapsed after a unilateral relocation by one parent. Her Honour noted further, at [84], that, usually, Judges recognised that these were difficult cases, often with far‑reaching consequences for the child. I should also note that they are also difficult for the families involved. Precisely because they are such difficult cases, as far as possible, it should be the case that the inquiry undertaken by the Court:
Required the full investigation which can only occur at a final hearing.
At [88], her Honour went further and said that:
It is highly desirable that, except in cases of emergency, the arrangements which will be in the child's best interests should not be determined in an abridged interim hearing.
A little later, at [91], her Honour stated (emphasis added):
It is not distance, per se, which should be the determinative criteria. In many cases, what is relevant is the consequence of the move or proposed move. The issues to be determined may be quite different, for example, for an infant or toddler developing attachments to those of older children, or for economically impoverished families where fuel costs may be unaffordable, thus impeding maintenance of a meaningful relationship. Conversely, there may be little impact on maintaining a meaningful relationship between a child and the non‑relocating parent, particularly if the child has a history of living predominantly with the relocating parent and spending time with the other parent where, with alternate arrangements, the child's relationship with the non‑relocating parent can be maintained and fostered.
Two other cases, should be briefly noted.
Firstly, in Sigley v Evor,[17]the Full Court referred, at [128] – [129], amongst other things, to parenting matters still coming within the general ambit of what are known as discretionary judgments and the principles that should be recalled.
[17] Sigley v Evor (2011) 44 Fam LR 439.
Secondly, after noting (at [131] – 134]), comments from other decisions regarding what matters are to be taken into account in relation to what is a “meaningful relationship” under the Act, at [135] and [182], the Full Court referred to Kay J's decision in Godfrey & Sanders where his Honour observed, at [33] (emphasis added):[18]
The Act sets out in section 60CC several matters for the Court to consider in determining what is in the child’s best interests but does not seek to mandate that any one or other matter becomes determinative in any particular case. For the purposes of this case the legislation requires that there be a primary consideration given to the benefit of the child of having a meaningful relationship with both of the child’s parents but it does not purport to prescribe how that meaningful relationship is best promoted in the circumstances of any one case.
[18] Godfrey & Sanders [2007] FamCA 102.
His Honour went on, in [36], to state (emphasis added):
It seems to me that the final conclusion reached by the court that the proposed relocation would jeopardise the relationship between the children and their Father to an unacceptable extent was not at all consistent with the evidence that was before the court. Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal one.
At [182] and [183] in Sigley v Evor, the Court went on to comment, on the facts of the case there under discussion, saying that the child already has a meaningful relationship with the Father. In circumstances where there were other considerations that had to be taken into account, it had to be remembered that a meaningful relationship does not mean an optimal one, again referring to Kay J in Godfrey v Sanders.
The Court noted in that case that, given that the Father did not seek equal or substantial and significant time with the child, there was no reason, on the evidence, why a meaningful relationship between the Father and the child could not be maintained if the child resided with his primary carer in North Queensland.
The final decision to note is one that was brought to the attention of the parties in this matter prior to the hearing which, to the Court's knowledge, is the most recent Full Court decision in relation to interim relocation.[19] In Franklyn, amongst other things, the Full Court said, at [27]:
There is an inherent tension between, on the one hand, separated parents being able to establish new homes wherever they like and, on the other, their restraint by injunction from living too far apart to avoid any impingement of their children’s ability to retain meaningful relationships with both parents. The conflict is between the best interests of the children to know and have regular personal contact with each parent and the interests of the parents to enjoy a high measure of freedom of movement which is not lost by reason only of their parental responsibility for the children.
[19] Franklyn & Franklyn [2019] FamCAFC 256 (“Franklyn”).
There was then a brief reference, still at [27], to the High Court decision in AMS v AIF, with the Full Court commenting:[20]
The tension at the intersection of those conflicting interests is even greater when an order is sought, not just to restrain one parent’s move further away, but to compel the parent who has already moved away to return and establish a new residence closer to the other parent.
[20] AMS v AIF (1999) 199 CLR 160.
The Court went on, at [28], to state that:
While the children’s interests are paramount, their interests are not the sole determinant of parenting orders under Part VII of the Act. Parents enjoy as much freedom to live where they please as is compatible with their obligations pertaining to the children. Only when the children’s welfare would be adversely affected must a parent’s right to freedom of mobility defer to the paramount consideration of the children’s best interests.
On the facts in Franklyn, the Court noted, at [41], that the Mother’s evidence on the issue of the practicability of her relocating back to New South Wales was encompassed in what was described as the unpredictable, short‑term rental accommodation afforded to her in New South Wales by a public housing organisation called Housing Plus. There was also, in the Court’s view, the related matter of the instability created by the frequency of her residential moves in that area and the relative unavailability of in‑town accommodation.
In that case, accepting that every matter must turn on its facts, the Court found that the prevention of the Mother being able to move on an interim basis should be overturned. The appeal was allowed.
Of course, the Full Court in Franklyn considered the well-known decision of Boland J in Morgan v Miles, noted earlier in these reasons.[21] In that case, her Honour noted that, desirably, parenting cases that involved relocation should be determined at a final hearing. However, at [88], Boland J acknowledged that cases of emergency might very well warrant being heard on an interim basis and a determination made. And at [91], among other comments, her Honour noted that there may be little impact of a relocating parent “if the child has a history of living predominantly with the relocating parent …” A fortiori must this be the case where, as is the case here, there is currently no relationship between the child and the non-relocating parent.
[21] Morgan v Miles (2007) 312 FLR 114; (2008) 38 Fam LR 275.
In addition to the cases noted, the following further principles are no less important.
In Taylor v Barker, the Full Court (by majority – Bryant CJ and Finn J) said, at [53]:[22]
53. We agree that when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible (see Uv U (2002) 211 CLR 238 and Bolitho & Cohen (2005) 33 Fam LR 471.
[22] (2007) 38 Fam LR 461.
Then at [109], the Full Court noted:
109. Happiness is a state of mind to be inferred from evidence. The terms “happiness” and “contentment” were his Honour’s conclusions as to the mother’s state of mind, being reasonable inferences which could be drawn from the findings which he made in paragraph 50 of his reasons for judgment:
• She is in love with Mr B and wants to marry him.
• She wants to share her life with him.
• She has a child by him and wants to share the joys of parenthood with him.
At [113], their Honours concluded:
113. It will be seen from the passages from his Honour’s judgment which we have set out throughout these reasons, that this was a difficult and finely balanced decision. In such a case one factor will usually become decisive. In this case his Honour determined that that factor was the mother’s happiness and contentment. In such a case where, as his Honour noted, the mother wanted to marry and be with the father of her second child, it could not, in our view, be said that his Honour was wrong in elevating this factor together with the impact on the mother and on the subject child of her not being permitted to relocate to join the man whom she wanted to marry, to be the decisive factor or factors in this case. Thus there is no substance in any aspect of Ground 3.
In my view, the comments by the Full Court in Franklyn (noted above) confirm the accuracy and ongoing poignancy of the Full Court’s observations in Taylor v Barker regarding the balancing exercise the Court must undertake in cases that involve relocation. The considerations to be weighed include not only freedom of movement but also the happiness and therefore the mental well-being of the parent who seeks to relocate. The converse is true, namely the negative impact if the parent is prevented from relocating. Such matters are, of course, even more delicate where, as here, the Application to relocate is sought at an interim, rather than at a final, hearing.
Finally, by way of summary and overview, I note further the following basic principles of long-standing:
(a)No single factor is dispositive of decisions regarding “best interests” considerations in cases that involve relocation (AMS v AIF at [143] (Kirby J));
(b)The best interests of the child remain the paramount consideration under the Act (Franklyn at [27] – [28]);
(c)Freedom of movement of parents is a significant priority. Indeed, only when the child’s welfare would be adversely affected must a parent’s right to freedom of mobility defer to the paramount consideration of the child’s best interests. (AMS v AIF at [145] (Kirby J); Franklyn at [28]);
(d)A parent who seeks to relocate need not establish “compelling reasons” for such a move (AMS v AIF at [47] (Gleeson CJ, McHugh and Gummow), at [92] (Gaudron J), and at [209] (Hayne J));
(e)Modern means of communication may be a relevant factor (AMS v AIF at [147]; Godfrey & Sanders at [33] and [36]).
Consideration & disposition
As noted earlier in these reasons, in interim matters, the Court is unable to make any findings where, as here, many of the factual matters are in dispute, although various significant matters are not in contest. Accepting and in the light of this, I note the following. I do so by reference sequentially to the considerations in s.60CC(3) of the Act, to the degree that specific aspects are available on the evidence.
Given the age of the child and the circumstances where, it is acknowledged, he has no relationship, at this stage, with the Father, there are no views to consider. Likewise, apart from one very distressing and brief encounter at a contact centre, because there has been no time between Father and son, there is currently no relationship at all between them. There is no question, and ample evidence from the various Reports before the Court, of the good and close relationship between X and his Mother, who has been primary carer since birth.
For the reasons outlined above, to put it as neutrally as possible, there has been very limited opportunity for the Father to participate in any relevant decision-making regarding X, or to spend time or communicate with him. The reasons for this are primarily, on the Mother’s evidence, supported by her therapists, her abject concern and acute anxiety about coming into contact again with the Father because of the very difficult albeit short relationship between them. This relationship, it is acknowledged by all, involved significant use of drugs. Subject to comments earlier in these reasons regarding the Father (i) stating in January 2021 that he had stopped using drugs, (ii) showing positive drug tests in drug screens annexed to his January 2021 Affidavit, and (iii) his failure, on two occasions, to comply with requests from the ICL to undertake drug tests, the Father acknowledges that he continues to use cannabis, it would seem daily, to assist in his sleep and stress. The matters noted here go to the considerations set out in sub-paragraphs (c), (ca), (f), (g) and (i).
It is acknowledged that the Father pays child support in a modest amount.
Regarding the considerations contemplated by sub-paragraph (d), given that there is currently no relationship between the Father and son, and the recommendations by Mr M, at least regarding unsupervised time, which would require the Father to provide evidence of being abstinent in his drug use for a period of six months before unsupervised time would commence, the likely effect of any change in the child’s circumstances, at least regarding the Father, would be negligible if not non-existent. Any change impacting upon the care and protection provided to X by the Mother would be immense on both Mother and child.
For reasons similar to those just noted, the matters of practicality considered by sub-paragraph (e), in the current circumstances, are of little moment. Given (i) the lack of relationship between Father and son, (ii) the Mother has been and remains the child’s primary carer, and (iii) the Father’s admittedly limited evidence taken by Mr M that he would consider relocating himself, matters of practicality and expense are, immediately, of limited import.
Moreover, with the Mother now having a job, and having an unencumbered residence, the financial benefit to the Mother, and in turn for the provision of essentials and other care for X (and her soon to be born baby), all point very strongly to the very significant benefit to the child in the Court allowing the Mother to relocate to her new residence in the so-called greater Sydney region. In fact, as the Court learnt at the recent hearing, the residence is actually on either the Region J or Region B of New South Wales.
It is also not disputed, other than perhaps in degree and responsibility, that there was clearly significant family violence after separation. On the Mother’s evidence, she was in a strongly controlled relationship. The now almost infamous and terribly aggressive and distressing SMS messages from the Father to the Mother, over a period of time, plus his ongoing drug use, all require the Court to take a very cautious and protective approach to the Orders that are in X’s best interests. Indeed, the Court cannot allow even supervised time between Father and son until the Father has established that he is abstinent from drugs for a period of six months.
It may also be the case that the Court could (or should) consider the Mother’s welfare and well-being, especially her emotional and psychological well-being, under the general terms of sub-paragraph (o).
Here, as in Taylor v Barker, the Court should properly consider (i) the Mother having a new job in her area of interest and qualification (management), (ii) the Mother has a new partner (but well-known friend from times past) with whom she is now expecting a child, and (iii) she has a new and unencumbered residence. Her therapists record both her resilience generally, as well as her ongoing trauma and very significant anxiety from the relationship with the Father.
Borrowing from medical terminology and practice, the Court may take some notice of the fact that in situations of trauma, it is more common than not to treat the most urgent and sensitive areas of injury first, then attend to other, still important, areas of concern when the most pressing injuries have been attended to and settled down. Just so here. In my view, given that there is no current relationship between Father and son, as important as that relationship may ultimately prove to be in the future, and given the very significant trauma the Mother suffered from the relationship with the Father, it is best to treat that trauma first. Only when that is properly addressed can and should the relationship between Father and son be treated.
In this case, time and distance, plus various other protective actions, will best serve everyone (most especially X), in an orderly and methodical way. Thus, the Mother needs an opportunity to consolidate her life in her new residence with X and her partner, especially once the new baby arrives early in the new year. She needs an opportunity to establish her employment, as relatively untroubled as possible by distraction (or worse) from the Father. Then, and only then, can there be a move to re-introduce X and his Father at a contact centre, at an agreed location, perhaps as proposed by the Mother at C Counselling in Suburb D or Suburb E. Between now and then, the Father needs to undertake a hair follicle test to establish that he is drug-free. The ICL sought that there be regular urinalysis. Subject to what the hair follicle test shows, some regular urinalysis should occur as sought by the ICL. When he has independently confirmed that he is drug-free for six months, as recommended by Mr M (in a slightly different context as indicted earlier) then the time-with arrangements should commence, very gradually, as recommended. Until he is free of drugs for the period stated, there can be no time. I cannot imagine any contact centre being relaxed and comfortable to have any parent under the daily influence of drugs attending at that centre.
In addition to the above reasons, I accept and adopt the submissions of both the Mother and the ICL – the latter now obviously supporting the Mother’s relocation.
In all of the circumstances, the Mother should be permitted to relocate to her new residence. The other Orders she sought should be made, plus those to which I have referred. It must also follow that the interim orders made by the Senior Registrar on 22nd March 2021 should be discharged.
I certify that the preceding one hundred and fifty-nine (159) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Judge W J Neville. Associate:
Dated: 20 October 2021
ANNEXURE A
(attachments unable to be anonymised had to be removed)
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