Adelstein & Byron
[2022] FedCFamC1F 26
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Adelstein & Byron [2022] FedCFamC1F 26
File number(s): SYC 1582 of 2018 Judgment of: HENDERSON J Date of judgment: 31 January 2022 Catchwords: FAMILY LAW – PARENTING – Relocation – Mother seeks to relocate the child’s permanent residence to the B Region from Sydney – Where the relocation application was dismissed – Orders made for child to ultimately spend equal time with each parent in Sydney and for equal shared parental responsibility – In the event the mother chooses to live in the B Region the child is to live with her father in Sydney Legislation: Family Law Act 1975 (Cth) s60CC(2)-(3) Cases cited: Goode v Goode (2006) 206 FLR 212; [2006] FamCA 1346.
Morgan v Miles (2007) FLC 93-343; (2007) 38 Fam LR 275
Division: Division 1 First Instance Number of paragraphs: 239 Date of last submission/s: 12 November 2021 Date of hearing: 8 – 12 November 2021 Place: Sydney Counsel for the Applicant: Ms Lawson Solicitor for the Applicant: Boyce Family Law Counsel for the Respondent: Mr McMahon Solicitor for the Respondent: Jack Rigg Solicitors Counsel for the Intervener: Ms Mahony Solicitor for the Intervener: Sydney West Family Lawyers ORDERS
SYC 1582 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ADELSTEIN
Applicant
AND: MS BYRON
Respondent
INDEPENDENT CHILDREN'S LAWYER
Intervener
ORDER MADE BY:
HENDERSON J
DATE OF ORDER:
31 JANUARY 2022
THE COURT ORDERS THAT:
1.The mother’s application, seeking to relocate the permanent residence of the child, X born 2015 (“the child”), to Queensland is dismissed.
2.The parents have equal shared parental responsibility for making decisions about the long term care, welfare and development of the child.
3.In the event the mother relocates to Queensland, the child is to live with the father in Sydney, and is to spend time with the mother as follows:
(a)For 4 weeks in the Christmas school holidays each year as follows:
(i)the first 4 weeks of the Christmas holidays after the mother re-locates commencing 12 noon the Saturday after school finishes and ceasing 5pm on the Saturday of the fourth week of the mother’s time and each alternate year thereafter; and
(ii)the last 4 weeks in the following year and each alternate year thereafter commencing 12 noon the first Saturday in January and ceasing 5 pm on Saturday of the fourth week of the mother’s time.
(b)For half of the Easter and September/October school holidays commencing 12 noon the first Saturday of the school holidays and ceasing 5 pm on the second Sunday of the school holidays;
(c)For the whole of the June/July school holidays commencing 12 noon the Saturday after school finishes to 5 pm Saturday prior to school resuming;
(d)The parents to equally share the costs of the child spending time with the mother in Queensland;
(e)The child is to arrive in Queensland by 12 noon at the commencement of her time and in Sydney at 5 pm at the cessation of her time unless otherwise agreed; and
(f)On one occasion mid-term, for no more than seven days as follows:
(i)the mother to provide the father with notice of her intention to travel to Sydney to spend time with the child no less than 14 days prior to her arrival including all details of the accommodation that the mother and child, will be staying at and a contact telephone number;
(ii)the mother shall take the child to and from school and her usual activities each day;
(iii)the mother collect and deliver the child to the father at the commencement and cessation of the time; and
(iv)at other times as agreed including an equal sharing of important Jewish religious and other named celebratory days in the Jewish calendar.
4.In the event the mother remains living in Sydney, the child is to live with the father as follows:
(a)For five nights each fortnight from after school Wednesday, to the commencement of school Monday morning, commencing forthwith the first Wednesday after delivery of this judgement;
(b)From the commencement of the first week of term 2 in the 2022 school year, from after school Wednesday to the commencement of school Tuesday morning;
(c)From the commencement of the second week of term 1 in the 2023 school year from after school Wednesday to the commencement of school the following Wednesday; and
(d)Half of all school holidays:
(i)In midterm commencing 12 noon on Saturday after school finishes and concluding 12 noon on the second Sunday of the holidays; and
(ii)At Christmas the holidays are calculated from 12 noon the day after school ceases to 5 pm the Saturday before school resumes
5.The mother is restrained from moving the child’s permanent place of residence outside of the Sydney Metropolitan area.
6.Both parents may, by giving the other 28 days’ notice in writing of their intention to travel, take the child to an overseas country, provided such country is a member of the Hague Convention.
7.In order for the travel to proceed, the parent intending to travel must provide to the other parent, no less than 21 days prior to departure, a copy of the itinerary, air flight return tickets, contact details for the child while the child is overseas and the passport which is currently held by the father is to be forwarded to the mother no later than 14 days prior to the intended travel so that the necessary arrangements can be made.
8.The parents are restrained from denigrating the other parent or a member of the child’s family in the presence or hearing of the child and the parents will do all things necessary to ensure that the child is not in the presence or hearing of any third party who seeks to denigrate the child’s other parent or a member of the child’s family.
9.By consent, within 14 days from the date of these Orders, the father shall do all acts and things and sign all documents necessary to transfer the Motor Vehicle 1 (NSW Registration No. …) to the mother.
10.By consent, the father pay to the mother a lump sum payment of $10,000 forthwith by way of spousal maintenance, being $100 a week for a period of 100 weeks.
11.By consent, the father continue to pay for all medical costs associated with the child, including psychological costs.
THE COURT NOTES THAT:
A.The father has indicated he will not pursue child support payments from the mother.
B.During the hearing the mother agreed to seek appropriate mental health treatment for her emotional dysregulation.
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 the pseudonym Adelstein & Byron is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
This was an application by the father, Mr Adelstein born in 1975 (“the father”), that the parties’ child, X born in 2015 (“X”), primarily live with him in Sydney. The mother, Ms Byron born in 1981 (“the mother”), sought that she be permitted to relocate X’s residence permanently from Sydney to the B Region where her parents and extended family live.
In the event the mother is not permitted to remove X to the B Region and, although not contained in her material, the mother said in court she was not sure whether she would consider leaving X in Sydney with the father and relocating in any event.
Currently X lives nine nights per fortnight with her mother and five nights with her father broken up into two overnight periods. The mother’s position was that this time arrangement was patchy for X and difficult, which was accepted by the single expert, Dr Q (“Dr Q”).
There is much force in the mother’s submission that at the age of six, the time X is spending with her father which was put into place when she was much younger, is now no longer appropriate and in the event X and the mother remain in Sydney there was little objection from the mother to the father’s time being five nights in one block per fortnight.
Mr McMahon of counsel represented the mother, Ms Lawson of counsel represented the father and Ms Mahony represented the Independent Children’s Lawyer (“ICL”).
The ICL’s position at the commencement of the hearing was that X should continue to live primarily with her mother. That may not be possible given the mother’s position that if I do not permit X to relocate to the B Region she may consider relocating in any event.
SHORT SYNOPSIS
This matter is marked by an acrimonious, nasty relationship between the parents. This is also the attitude of X’s grandparents to her other parent.
The paternal grandmother gave evidence in court that in her opinion, X and the mother had no relationship. This is simply erroneous and it is apparent from the evidence that X has a primary attachment to her mother and that despite the acrimonious relationship between the parents, X is progressing well and is a robust child able to deal with change. X also has a secure attachment to her father as Dr Q’s report attested. Her father also agreed the mother has been a good mother to the child and is closely attached to her.
The maternal grandfather’s oral evidence was also of concern. He presented as an angry, emotionally uncontained man who has a negative view of the father. I have no faith that he would be able to protect his granddaughter from his negative view of the father. His affidavit was scathing of the father and his oral evidence did not soften this opinion.
However, this is not a concern I have in relation to the paternal grandmother. The paternal grandmother was emotionally contained in her evidence and affidavit. I accept her evidence as she was truthful in her responses which was that she does not talk about X’s mother with her. Although this is a sadness for X no bad comments are made to the child about her mother whilst in the paternal grandmother’s care.
This is important as it is clear that the paternal grandmother played a significant role in the early years of X’s life when the mother returned to work, when X was some 12 months of age and that she continues to do so now when in her father’s care. Thus, X has a significant relationship with her paternal grandmother who has been a constant in her life.
I accept her maternal grandparents are deeply attached to X and they have a relationship with her but given they live in the B Region and the mother in Sydney, that relationship has not been able to be developed as it has with the paternal grandmother.
Despite the parents’ acrimonious relationship, their poor level of communication, significant distrust and dislike of each other, X is progressing well. After hearing the evidence and it being tested, I have formed the view that the mother is not a witness of truth for the reasons that will follow. Contra, the father, who is a witness of truth demonstrated insight into his responsibility for the poor state of the parental relationship.
Insight into her responsibility for a poor outcome is something the mother struggles with and her uncontained and uncontrolled behaviour towards the father; Ms E (“Ms E”), the director of the preschool that X attended; and in court before me on several occasions, will pose a risk to this child’s emotional health if the mother does not take on board recommendations made since 2018 that she attend specific mental health treatment in relation to her dysregulated emotional functioning.
The mother has attended a domestic violence counsellor since early 2018 as she now asserts she had been the subject of violence perpetrated against her by the father. However she has never attended upon a psychologist to obtain the assistance she sorely needs.
As I have formed the view that the mother is not a witness of truth, I have rejected her allegations of serious violence perpetrated against her by the father for the reasons that will follow.
There is no doubt the parents shouted at each other, sent rude text messages to each other and were in a very unhappy, acrimonious relationship after about six months of being married in 2015. This behaviour is not acceptable and has resulted in the poor relationship they have today. However, the mother’s scandalous allegations that the father sexually assaulted her on five occasions, the first being in February 2015 prior to their marriage and whilst they were in Country N visiting her parents, and then on four occasions during the parties’ short relationship; that he attempted to strangle her; pulled her hair; demeaned, coerced and criticised her; are without foundation and, indeed, against the weight of evidence, including the mother’s own evidence at times. The reasons for these findings will follow.
A SHORT CHRONOLOGY.
There was a property aspect to this matter which the parties resolved to their credit and I have included those orders in this judgement.
The mother was born in 1981 and the father was born in 1975.
The parties commenced cohabitation in July 2014. They had met each other earlier in 2004 but they drifted apart.
The parties became engaged in early 2015. The parties travelled to Country N to visit the maternal grandparents in February 2015 for a holiday.
The mother asserted the father sexually assaulted her whilst on that trip and at the home of her parents. The mother told no-one of this concerning event.
The mother became pregnant.
The parties commenced to live above a unit owned by the paternal grandmother in 2015.
The parties were married in 2015.
In late 2015 X was born.
The mother asserts that from June 2017, the father’s violence against her escalated and he sexually assaulted her on four occasions during the marriage.
The parties separated on 4 February 2018 when an incident of violence occurred at the home whereby the mother threw a mobile phone and a glass at the father causing him injury and she was charged with assault causing actual bodily harm and pled guilty to that charge, receiving a good behaviour bond.
The father commenced proceedings on 14 March 2018.
The mother commenced receiving counselling with a domestic violence counsellor in 2018 which has not assisted her.
In late July-August 2019 the mother without the father’s consent or knowledge moved X to the B Region where she remained until orders were made for her and the child’s return
The mother conducted herself in this fashion after being told by Johnston J in 2018 and myself in 2019 that her interim application to remove X’s residence to the B Region could not be heard and that such an application was a final issue.
Unbeknown to the father, the mother whilst having care of the child was admitted to hospital on four occasions for mental health treatment involving alcohol and suicidal ideation initially in 2018 at R Hospital and then again on 8 July 2019.
In Queensland she was admitted to the B Region Hospital on 13 August 2019, to the S Hospital on 12 September 2019 and her father called the mental health triage rapid assessment team on 24 October 2019 due to fears of suicide due to orders having been made that she return X to Sydney.
On 13 August 2019 the mother’s father found her in the garage with cut wrists. Alcohol was involved.
Neither the mother nor her family told the father of these concerning events.
When the mother was admitted to the R Hospital on 8 July 2019 on discharge she was recommended to engage in a course of psychological treatment to assist with her mental health and failed to do this. Ms T, counsellor of a Domestic Violence Service who she has engaged with is not a psychologist.
The mother returned with X to Sydney in late October 2019 after orders were made for her return on 23 October 2019.
In April 2020 the mother made a report to the Department of Communities and Justice (“the Department”) raising concerns about bruising, without explanation, of X whilst in the father’s care.
The mother pressured X’s day care centre to report similar concerns to the Department which they refused to do as they had no concerns about X whilst in the father’s care. The mother continues to make allegations of unspecified harm whilst X is in the father’s care.
On 31 July 2020 the father via a letter from his lawyers tendered and marked Father’s Exhibit 4, informs the mother he will not be returning X due to his concerns of the mother’s four hospitalisations for mental health issues and alcohol and medication abuse which he discovered when inspecting subpoenaed material.
On 4 September 2020 after the father retained X, the mother files an affidavit in which she first discloses allegations of five occasions of sexual assault perpetrated by the father against her prior and during the relationship.
The mother made other allegations of significant violence such as choking, pulling of hair, death threats, slapping, hitting, and punching. None of these allegations are reiterated or referred to in her trial affidavit.
EVIDENCE
The mother and the father were each cross-examined, as were their respective parents however not the maternal grandmother.
Dr Q who prepared the family report marked Court Exhibit 1, was cross-examined.
The material read for the parties was as follows:
For the mother:
(a)Affidavit filed 13 October 2021 and exhibits
(b)Tender bundle of the same date;
(c)Affidavit of her father 7 October 2021 and exhibits ;
(d)Affidavits of Ms W and Ms U were not read
(e)A financial statement of the mother filed whilst the hearing was conducted;
(f)Amended response filed 5 November 2021;
(g)Counsel’s case outline; and
(h)No exhibits were tendered.
For the Independent Children’s Lawyer:
(a)Expert Report prepared by Dr Q, dated 20 January 2021, marked Court exhibit 1; and
(b)Counsel’s case outline.
For the father:
(c)Affidavit filed 31 August 2021 and 3 November 2021 with annexures ;
(d)Affidavit of the paternal grandmother filed 31 August 2021;
(e)Financial statement filed during the proceedings;
(f)A tender bundle and a supplementary tender bundle;
(g)Counsel’s case outline; and
(h)Exhibits 1-6.
Report of Dr Q
Dr Q a Child and Adolescent and Adult Forensic Psychiatrist prepared a report and gave evidence. Dr Q’s report concluded:
...It is my opinion X should continue to live with her mother. The reason for this is that X’s mother is a primary attachment figure. Given the deleterious effect on Ms Byron’s mental health due to the current relationship between herself and the father which I understand to be a consequence of both parties’ personality vulnerabilities it is my opinion her parenting capacity will be enhanced if she is permitted to relocate to the B Region. She will have access to the emotional and practical support that she requires to continually effectively parent X…She will also have more time to spend with her daughter as she will have to work fewer hours [and she is struggling financially in Sydney]…I understand the father will be able to have regular access to X as he is financially able to visit her in the B Region…His current employment entitlements would allow him to continue to visit her regularly…[and she] would be able to visit him in Sydney… Based on my assessment of X her attachment relationships with both her parents and the collateral information provided I form the opinion X will navigate such changes effectively. (line 1300-1310, page 40-41)
At the conclusion of cross-examination to which I will later refer, particularly by Ms Lawson on behalf of the father, Dr Q could not support the mother relocating to the B Region given the serious concerns Dr Q had to accept were evident as to the mother’s capacity to promote the relationship of X with the father over such a distance and the lies that the mother had told Dr Q which Dr Q had accepted carte blanche.
For example, Dr Q says, “Ms Byron presents with personality vulnerabilities which appear to be exacerbated in the context of her separation and subsequent interactions with [the father]” (at line 1250), and laid the root cause of these difficulties in the context of her marital relationship and subsequent separation. Dr Q then continued,
Her fragility and response to [the father’s] narcissistic personality traits within the context of her interactions with him means she is aided by the support of her family, specifically her brother, parents and close friends (at line 1257).
The mother had failed to tell Dr Q and the Court that she had mental health episodes earlier in 2004, well before she met the father, and in 2009 had been prescribed medication for her mental health on both occasions. Thus, the mother’s statement in her affidavit and to Dr Q that she had no mental health problems before she met the father was a lie.
Dr Q in line 1260 of her report said that the father met the diagnostic criteria for generalised anxiety disorder, a major depressive order and narcissistic personality disorder traits. The father had been upfront with the Court and Dr Q that he had suffered in 2009, a significant depressive event whereby he was struggling to work, had lost his job, was struggling to socialise and his behaviour was poor. He had suffered no such event prior to or after that date yet one is left with a clear impression from Dr Q’s report that the father continues to suffer from these conditions when he did not and has not since 2009.
Dr Q described the father as having narcissistic personality disorder traits. Despite being pressed on what this meant, she was unable to assist the Court in any diagnostic sense, rather saying it was his general demeanour and his presentation that left her with this impression.
There is no doubt Dr Q found the father’s presentation, and his manner of describing himself and his life to her as self-centred. However, there is simply no diagnostic basis proffered by Dr Q to base such a concerning diagnosis of narcissistic personality disorder traits upon.
Further, she was critical of the father saying he had a grandiose way of describing his achievements and self as follows.
Line 1271, page 40:
Of primary significance are the narcissistic personality traits [the father] presents with. Based on my assessment and the collateral information provided, I form the opinion that [the father] has a grandiose sense of self-importance as evidenced by his narrative in which his achievements were exaggerated. It was an all over perception that the father has a sense of entitlement. Most significant was his inability to generally empathise with the needs of others, for example, his own daughter and rather to experience and describe the impact of the separation and the current care arrangements on him rather than her.
When pressed on this and what question had she asked him, Dr Q, in cross-examination said she had asked him about the impact on him of separation from X. When he gave her his honest answer he was criticised for not focussing on the child when that was not the emphasis of her question to him. He clearly understood the impact upon his daughter of any move and told this to Dr Q in other parts of her report which she failed to acknowledge and refer to.
He was asked about his educational qualifications and he described to Dr Q his significant educational achievements, work experience and was justifiably proud of these achievements. This is not an example of a grandiosity trait rather justified proudness of achievements.
Dr Q’s assessment of the father was based on her perception of him in a 1.5 hour interview over Microsoft Teams. Dr Q accepted everything the mother told her and made assessments based on what the mother told her when the mother is not a witness of truth in relation to her relationship with the father, his treatment of her and in particular the consequences for her and others of her uncontained emotional dysregulation.
Dr Q described parties who have narcissistic personality disorder traits as overly sensitive to injury from criticism or defeat. This is a description of the mother’s behaviour towards those who do not agree with her or do not do what she wants such as the Court, the father, and Ms E, the pre-school director.
The mother has been charged with assault of the father and convicted as she pleaded guilty to these charges and was legally represented at the time. The mother is the parent who reacts poorly to criticism and stress not the father. Dr Q completely misjudged the father due to his unusual presentation, which I noted as well when giving his evidence. To compound her error Dr Q accepted carte blanche what the mother said.
Thus I find her assessment of the parents is flawed however her assessment of the child X was not and I accept that, to use her words: “X will cope reasonably well with the change in her circumstances provided that a secure attachment to her primary caregiver and attachment figure (her mother) is maintained” (line, 1178).
Dr Q also found at line 1226, “X has a secure attachment to both her parents. That it is in her best interest to spend substantial and significant time with each parent.”
This cannot happen if she lives in the B Region with her mother, or if the mother lives in the B Region in absence of X. It is a physical impossibility and both those scenarios are a possibility in this matter.
Dr Q made an extraordinary assessment at line 1230 that, “… [The] mother demonstrated a capacity to consider X’s needs above her own to a greater degree than her father did”.
There was no evidence that Dr Q could put forward when pressed to support that conclusion and it is wrong. The mother without notice to the father and knowing she was unable to move permanently, moved X’s residence to the B Region in the middle of 2019 and only returned to Sydney by order of the Court. The father had become concerned about his daughter talking about being on planes and travelling. Her day care noted X was not attending day care whilst in her mother’s care. The mother was ensuring that X spent time with her father when she carried out this unlawful act, thus subjecting X to four trips a fortnight on a plane from Sydney to the B Region at the age of three and a half years in an attempt to cover up her poor decision.
This is not the conduct of a parent who is able to put the needs of a child before their own and Dr Q was wrong in her assessment and it is against the weight of evidence. Dr Q did not know the full facts and yet made that assessment about the mother’s capacity to put X’s need ahead of her own in the absence of the mother telling her the full extent of what she had done.
In respect of the father’s capacity to put the needs of X before his own, I will criticise the father who received an inheritance of $1.1 million just prior to separation and provided very little of that money to the direct day-to-day support of his daughter such as a binding child support agreement or a trust fund setup for her benefit, and has used that money to pay for private education fees, his legal fees and his own living costs.
The mother will never forgive the father for keeping X from her in July 2020 when he found out about her four hospitalisations for mental health treatment in 2018-2019, coupled with her behaviour towards him and others. The mother kept referring to that event in her material and in her oral evidence. Yet again the mother could not see that her behaviour in removing X to the B Region and not telling the father of her significant mental health issues was putting her needs above X’s and that the father was justified in not trusting the mother to put the child’s need above her own.
The father was acting protectively when he retained his daughter. The letter his lawyers wrote to the mother on 31 July 2020, marked Father’s Exhibit 4, clearly sets out his genuine concern for his daughter in her mothers’ care given her mental health and stability. The mother and her family failed to tell him extremely important information concerning the mother and her capacity to care for X. Put in this context, Dr Q’s assessment is wrong concerning the mother’s capacity to put the child’s needs before her own as superior to the father. The mother was at least warned about the father’s intentions to retain the child and was given his reasons for so doing contra the mothers’ subterfuge.
Dr Q formed a view after a 30 minute assessment over Teams, with each parent respectively, that the mother and child had a far closer relationship than the father and X. I reject that opinion. I find that she made that assessment after having formed a negative view of the father and was unjustified in so doing for the following as at line 919, page 29, Dr Q said:
[The father] was critical of [the mother’s] parenting stating that she had moved five times in two years; …took [her] interstate last year and …exposed X to parental conflict. Specifically, [the father] said that X mentioned things to him such as “mummy didn’t hit you with a glass”.
The father was simply telling the truth and he is correct to be critical of her removing the child to the B Region as she did, subjecting the child to onerous travel to hide what she had done. Contra this to the mother’s evidence as follows regarding the assault charges.
The mother re-iterated in oral evidence and in her affidavit, “Although I pled guilty to the charge of throwing a glass at the father, I didn’t.” The facts are that mother pled guilty to a charge of throwing a mobile phone at his chest and a glass at his face, causing a cut above his eye. The facts of the plea to which she pleaded guilty describe those events. The mother may now wish to recant but this is what she pled guilty to when she was represented.
The father’s criticisms of the mother to Dr Q were correct. The mother behaved in this fashion and it was not child focused. The mother has involved X in this dispute. It was one of the things X instantly blurted out to Dr Q, “…daddy said mummy threw a glass at him but that’s not true, mummy wouldn’t do that” (at line 1001). The only person who can keep that fiction alive is the mother or her family.
Dr Q did not give the father credit for his insight into X and understanding that she is caught in the middle of this acrimonious relationship. At line 910 , page 29, the father said to Dr Q:
X [is] mentally “torn at the moment” and [I] form that view because X would say things like, “I only want to see you at the weekend daddy, when is it the weekend? I don’t’ know, Daddy.” [That] X told him she did not want to go back to her mother’s and he mused that “she probably says the same things to her mother”
(As per the original)
This is insight and understanding of X’s position as displayed by the father. The mother showed no such insight and it took some time under cross-examination before she realised that her daughter was saying the same negative things about her in the father’s care as she was saying to her mother about the father whilst in her care.
PARENTAL RELATIONSHIP AND BEHAVIOURS
The father told Dr Q that the relationship was very happy for six months and that the mother was the one who initiated sex. Father’s Exhibit 15 to the affidavit sworn on 31 August 2021– corroborates what he says. The mother wrote to him on many occasions prior to their marriage and post-February 2015 asking him to come home to have sex, to engage in intimacy. Cheeky, flirting, happy people who wanted to be together. These messages were sent at a time after the mother asserts the father first sexually assaulted her in February 2015 whilst in Country N. The father’s evidence is consistent with the text messages between them. It is inconsistent with the mother’s evidence that the father sexually assaulted her in Country N prior to their marriage and whilst engaged.
It is correct, as the father told Dr Q, that the maternal grandfather was yelling at him in court on 11 July 2019, “You’re a fucking dickhead. You’re a fucking arsehole.” Security was called. The maternal grandfather also had an altercation with the ICL, berating him outside the courtroom. The mother agreed under cross examination that this behaviour by her father was improper yet denied these events to Dr Q.
The mother told Dr Q that neither she nor her parents swore at the father in court. That was a lie. The mother denied the allegations that both she and her father swore outside of court, that her father behaved aggressively at a mention before me on 21 May 2019 and that security were called. The mother said that security attended when she was in court because she had fainted. The mother may have fainted, I do not know, but her behaviour and that of her father was poor and uncontained and I accept the father’s version of these events not the mother’s. This was yet another lie the mother peddled to Dr Q and Dr Q accepted as the truth.
What the mother and her father did not like at this time in 2020 was that the father had retained X and had not agreed to the mother removing her to the B Region. The mother behaved as she did because she was not getting what she wanted from the father and this is a pattern of behaviour with the mother, a fact not picked up by Dr Q.
The mother told Dr Q at line 672, page 22 of her report that when X returns from her father, she calls her maternal grandfather,
…Grumpy and [the maternal grandmother] the mad cow… [and that] she would say thinks like “it’s your fault Daddy and you aren’t together, you threw a glass at him” or ask [the mother] questions like, ‘are you a responsible parent mummy?...you drink alcohol, mummy...are you an alcoholic?” (line 676, page 21)
(As per original)
The mother does drink alcohol. The mother pleaded guilty to throwing a glass at the father at separation .The child’s maternal grandfather can be grumpy and poorly behaved.
The mother made significant complaint that the father did not attend any extracurricular activities, such as ballet, or swimming when X was in his care on a Saturday. Nor did he take her on playdates or to other children’s parties. That he spent time with her alone, engaging in activities such going to the zoo or time with her grandmother, with adult friends and that this was inappropriate for X’s social development.
That is hardly a positive attitude by the mother to the father and is inconsistent with Dr Q’s finding that the mother is the parent most likely to promote a positive relationship between the father and X than he would with the mother.
The facts are that the activities the father engages in with the child are appropriate and child focussed and not amenable to criticism. The activities the father engages in with his daughter in his time is a matter for him yet Dr Q made no such critique of the mothers’ unsubstantiated petty criticisms of the father.
On these facts it is simply wrong for Dr Q to say in her report that the mother was the parent best able to put the needs of her child first and promote a relationship with the father or as stated at line 697, that “the mother’s narrative was consistent with the collateral information” when on almost every area of contention it was not as Dr Q ultimately came to realise.
As Ms Lawson submitted to me, Dr Q abandoned every one of the conclusions in favour of the mother contained in her report. When the facts were made known to Dr Q she could not support X relocating to the B Region. Dr Q became aware during her cross examination of the extent of the mother’s subterfuge and lies to her namely: that she had only suffered with mental health issues due to her relationship with the father and not prior; that she did not throw a glass at the father yet pled guilty to facts which said she did; her subterfuge in removing the child to Queensland as she did; her treatment of Ms E and behaviour at the child’s’ pre-school; she did not tell Dr Q or Dr V that the father sexually assaulted her on 5 occasions and during the marriage pulled her hair and attempted to strangle her and yet, filed an affidavit stating he did so in September 2020.
In relation to the mother’s evidence “I didn’t know I couldn’t go to Queensland; I was confused” I find this is but a lie for the following reasons.
In the father’s material is the transcript of proceedings before Johnston J, myself and Senior Registrar Campbell as he then was.
Exhibit 8 to the father’s affidavit sworn on 31 August 2021 is the transcript of proceedings before me on 11 July 2019.
MS BYRON: Sorry, your Honour. I lost my case outline.
HER HONOUR: No. That’s okay. It’s not a problem. I just want to make sure I’ve got what you want.
MS BYRON: So - - -
HER HONOUR: And, of course, it’s – that one. Okay. Thank you. So I’ve got it here.
MR LENNON: It appears to be order 10 and 10.1 of the one specific to the parenting arrangements.
MS BYRON: Thank you.
HER HONOUR: Two-week schedule. Each alternate weekend from 5 pm Friday to 9 am Monday. Okay. All right. Now, this was the old one that came before me.
MS BYRON: That’s correct, your Honour. What I have since added in my case outline – and I will just find it for you. It’s on page 14.
HER HONOUR: Yes. Of the case outline, is it?
MS BYRON: Yes.
HER HONOUR: Right.
MS BYRON: Is the consideration of relocation to the B Region.
HER HONOUR: No. No. I’m not doing that on an interim basis.
MS BYRON: Okay.
HER HONOUR: I can’t. I need a family report. I need a hearing. I need to make findings. It’s not something I can permit you to do on an interim basis.
MS BYRON: Okay. I understand.
HER HONOUR: I can’t do that. That’s definitely for a final hearing. Now, have I ordered a family report in this matter?
The matter was before Johnston J on 24 September 2018, about a year before. According to the transcript, annexed at Exhibit 8,
HIS HONOUR: You probably need to take her into a, you know, Child Responsive Program. We need to get an issues assessment and get you going with a behavioural scientist. This isn’t going to happen overnight. You’re not going to get to take a two and a half-year-old child to Queensland overnight, not when Sydney is, you know, probably the major place of employment in the country and there must be other jobs you can do here.
MS BYRON: Well, the difficulty in that is that I received a section 10 in Suburb Y Court on 8 August. I pled guilty to the charges
…
MS BYRON: I’m sorry? Yes, that’s right. Yes. I have denied throwing the glass. I admitted to throwing the phone. I still deny that. I would have liked to have entered into evidence a forensic psychologist’s report.
The facts are she lied to Justice Johnston as she had pleaded guilty to throwing a glass at the father. The transcript continues,
…
MS BYRON: The section 10 appears – still appears on the criminal record. I wasn’t actually aware that it does. And working in government, all jobs require a criminal record check. So it doesn’t necessarily negate the fact that I would get the job, but it does lend to some bias.
HIS HONOUR: All right. Look, there are a lot of issues here.
MS BYRON: There is indeed.
HIS HONOUR: This – you’ve got a hard case, with respect. We need to get this into the Child Responsive Program, I think. I don’t know.
The matter then came before Senior Registrar Campbell, as he then was, on 23 October 2019, the transcript is annexed as Exhibit 9.
THE REGISTRAR: What does your client say now?
MS BB: Her understanding was that it meant it couldn’t be dealt with other than at a final hearing, but it didn’t – she didn’t understand it to mean she couldn’t go.
THE REGISTRAR: Why did she ask for an order, then?
MS BB: I suppose, at this point, she wanted to put everything on the record. What she - - -
THE REGISTRAR: And the judge said no. Not going to touch that till final hearing. And your submission on her behalf is, I thought I go could anyway. Is that right?
MS BB: The mother endeavoured, to the best of her understanding of what was happening at the time, bearing in mind that she does have – and I do have a letter here from the CC Health Service – with reference to that severe anxiety and panic attacks, the situational severe anxiety and panic attacks. She was probably living in a role that wasn’t as rational as one would like to think it should be. So - - -
THE REGISTRAR: Are we delving into something that will require some specific evidence?
MS BB: We probably will. We will probably will.
THE REGISTRAR: Well, perhaps we should do it that way.
MS BB: And if I might just say - - -
THE REGISTRAR: And just so it’s clear - - -
MS BB: Yes.
THE REGISTRAR: - - - I won’t accept your just unsupported submission that any confusion was based on some underlying medical condition. Take me to the evidence, by all means.
MS BB: No, I understand that, Senior Registrar. I think this says here that this is the actions of a desperate person wanting a solution, finding herself where she can’t cope, where she hasn’t got the money, she hasn’t got the support. She picked herself up, and the child, and went, where she – where there is support.
…
MS BB: Senior Registrar, at the outset might I state that it has always been the mother’s desire to relocate to the B Region, but - - -
THE REGISTRAR: Indeed. She made an application to that effect before Henderson J, and Henderson J said no.
…
THE REGISTRAR: Three weeks before she then went and did it.
MS BB: …my understanding from the mother is that that was not something that she was clear on. She was self-representing...
THE REGISTRAR: I’m sorry. Would I just – could I just read the passage…
…
THE REGISTRAR: That’s the clarification of the things she is seeking.
No, no. I’m not going to do that on an interim basis,
Says the judge.
….
Ms Byron:
Okay, I understand.
Now you say she didn’t understand?
MS BB: She didn’t think that she – she didn’t realise that it meant it couldn’t be heard at all. She thought maybe.
THE REGISTRAR: Well, the next line might be helpful. Her Honour says – after Ms Byron says, I understand, her Honour says:
I can’t do that. That’s definitely for a final hearing. Now, have I ordered a family report in the matter?
…That seems pretty clear.
This bespeaks the mother’s attitude. When she does not get her way or what she wants, she will simply shift responsibility to someone else or claim confusion and lack of understanding.
Ms Lawson also submitted that Dr Q agreed that X could live seven days with her dad, seven days with her mum, if it was done gradually and sensitively. Ms Lawson posited that Dr Q had realised during cross-examination there was an awful lot she did not know, and that her conclusions were against the weight of evidence and they were. I said to Dr Q that being critical of the father for raising the mother’s poor behaviour and conduct was a significant misstep by Dr Q because he was correct.
Dr Q agreed, that if X was exposed to the mother’s continued emotional dysregulation, it would affect her attachment to her. Thus, it is important that X ultimately have both her parents in her life sharing parental responsibility to ensure that if her mother continues on this pathway of emotional dysregulation, she has the father in her life with whom X can comfortably and happily live.
Dr Q referred to a parent who is emotionally dysregulated as no longer being a safe parent, and that is why a child’s attachment can be disrupted to that parent and she used as an example of this, the maternal grandfather. A person she correctly identified as being unsafe. There is no doubt that the mother moving to Queensland would take away significant lifestyle stresses the mother has at the moment. Difficulty in accommodation, difficulty in making ends meet, feeling of being socially isolated and alone in Sydney, that she believes her father is an emotional support to her, I accept all these matters. However her behaviour is of grave concern and if it continues she will become an unsafe parent. Given the maternal grandmother was not cross-examined, I cannot make an assessment about her capacity either.
Evidence of Ms E
Ms E is the director of DD Childcare Centre and has had that position for 20 years. She confirmed X commenced at her centre at the end of 2018, perhaps at the beginning of 2019 and left in July or August of 2020. Ms E would not provide an affidavit but gave her evidence orally.
Her evidence was as follows
She had contact with the father at drop-off and pick-ups, and that she had no concern with the father’s behaviour or treatment towards her, or his communication with her, or the way he interacted with her staff. Much was made that Ms E and the father went to D School where X now attends. However, they were two years apart and did not know each other. Again, the mother had some view there was a conspiracy against her.
Ms E said she initially had communication with the mother at pick-ups and drop-offs, the same as the father. That the mother used to be friendly and nice to her and then she became not so nice. This occurred, Ms E said, after the mother asked some of her staff to write reports on what they thought was happening with her child when she was in the care of her father. Ms E’s evidence can be summarised as follows:
The mother asked staff members to write reports on what differences they had seen. Two staff members wrote what they thought. They do not work with me anymore. I had nothing to do with it and ever since that time she has changed her opinion of me.
The information the mother wanted was about X’s behaviour. If it changed on the weekends that she was with her father or her mother. The mother began ignoring me at pick-ups. She did not want to deal with me and only wanted to deal with other staff. (Transcript 9 November 2021, p.54 line 26-44)
This occurred in 2019 when the mother wanted desperately to move to the B Region to live with her parents and the father did not agree.
The mother also told Ms E, “I don’t want you to have anything to do with my daughter. I only want her to be looked after by other carers.” (Transcript 9 November 2021, p.5 line 3-4)
She was always rushed. Not aggressive but rude upon leaving the centre. She did not sign out sometimes. Just took the bags. She did not thank the staff for a lovely day. Nothing of that sort of nature from the mother. It appeared that she told X a lot of things because X would come in the next day and say, “My mummy doesn’t like you anymore. You’re taking Daddy’s side. Mummy doesn’t want me to come here anymore.” And X said this to you directly. Yes. (Transcript 9 November 2021, p.5 line 10-20).
…
I didn’t discuss the Court case and X loved coming up to the centre despite what her mother told her. She would give us cuddles. She was happy. (Transcript 9 November 2021, p.5 line 25-29)
That X said to Ms E, “I want to like you but Mummy doesn’t want me to like you any more” (Transcript 9 November 2021, p.5 line 30).
That is evidence of an enmeshment of the mother’s needs with her child and her needs overwhelming X’s needs.
These comments were made between March and June 2020. Ms E says she became concerned about X’s emotional distress as she would be upset on many occasions and when asked would say that her parents were fighting over which school she was to attend “Daddy wanted this one, mummy wanted this one” (Transcript 9 November 2021, p.5 line 46-47). These parental disputes are matters that a child should not be involved in yet she was.
This was the only negative comment that Ms E received from X about her dad namely, her schooling. Otherwise, Ms E said there was nothing negative about the father.
Contra this with the mother. X told Ms E, “Mummy says Daddy always takes me to the zoo and we can’t do anything else and it must be so boring.” (Transcript 9 November 2021, p.6 line 13-14). A complaint echoed in Dr Q’s report. X would say to Ms E,
“I’m going to Queensland with Mummy and Daddy doesn’t like that”. X said to her, “Daddy couldn’t pay for our living or our house so we have to go and stay with Granny.” Perhaps Nanna. And she called it “in Queensland” (Transcript 9 November 2021, p.6 line 33-37).
Two documents were tendered, being emails from and to Ms E: an email dated 10 June 2020 and a second dated 30 July 2020. They were identified by Ms E and they were marked Father’s Exhibit 2. The first is a letter from Ms E directly to the ICL with whom she had prior communication when he was investigating X’s usual living arrangements:
I wish to make you aware of some of the incidents of late that have raised my level of concern in relation to X. In 20 years I have been an early childhood educator I have never experienced in anything what is currently happening to X. Not only having to deal COVID, I have had to deal with the following. I am worried about X’s mental health and as a mandatory adviser I believe a threshold has been crossed and I have left that with the department to determine. Secondly, numerous examples of X’s wording seem to be rote learning, for example, “I’m too old for this school. You don’t teach me anything.” However, when we sit down with the educational leader and explore these comments X has minimal interest but rather wants to play like a four year old. This is manipulation to me. It’s manipulation of a child and undermines integrity of the teaching staff.
Thirdly, X often says her parents cannot agree on schools and tells the teaching staff about these conversations. Fourthly, battling manipulation with her mother and desires to be a child. Fifthly, she has become more boisterous and obnoxious as well as aggressive to me and the staff –
The mother has become boisterous and obnoxious as well as aggressive to me and my staff to the point we have considered taking an AVO out against her. This emanated from the fact Ms Byron wanted to sit down with us and talk about X in the absence of the father which we refused to do. She then insinuated, the mother, X was being abused and we should report it. We are aware of our obligations and feel this was not warranted. Six, 9 June 2020 the mother came to pick up X. She did not come into the centre to pick up her belongings. Most parents do ask about X’s day, sign her out of the premises and was obnoxious to me. We have had to take the extraordinary step of seeking legal advice on a number of occasions as a consequence of the mother’s actions. If this continues, we will have to ask X to attend another centre.
(As per original)
Ms E spoke of the frequency of emails and there is no doubt both parents emailed the centre. However, there is a difference in the nature and the reasons for the emails from the mother and father. The mother emailed the centre to obtain reports to satisfy her position that in some way the father was harming X when in his care, a position the centre did not agree with. The father wrote requests to the centre to ask if X was any different in his care than in her mother’s care to protect himself from the allegations the mother was raising and had raised in her affidavit of 4 September 2020 of his poor behaviour towards the child and the mother.
The father wrote for information as defence to the mother’s scurrilous allegations against him. The mother wrote to obtain “dirt” on the father to use against him in these proceedings. This is a substantial difference. However, having so found it was entirely inappropriate behaviour by each of them to be involving Ms E in their nasty family dispute.
Ms E was clear; she told the mother again and again the only bruises she had seen on X were normal bruises, that is, bruises below the knee or on the thigh, not on the body and there was nothing to the report.
Ms E said they sometimes ask X about a bruise and she told them, “I fell off my bike or I fell off”. They were not concerned. Ms E was clear the mother would not accept this and she believed the mother was determined to prove that the father was harming X; the mother believing, erroneously, this would strengthen her case to move to the B Region. The reality is after testing the evidence and becoming aware of the level of the mother’s uncontained behaviour and lengths she has gone to besmirch the fathers conduct has had an entirely opposite effect to that which she sought to achieve.
The mother had written to a person, called Ms FF. Ms E identified that Ms FF was someone she knew and that Ms FF had contacted her and that the following Whatsapp message was received as a screen shot on her phone in July 2020 at 1:24 pm and is as follows. The mother wrote:
Ms GG passed on your details to me and this is very random so I apologise. She mentioned you know Ms E if this is correct.
Hi, to give you context my daughter’s been taken away from me by her father because of Ms E. Ms GG thought you may have some information regarding her character or reputation. I’ve spoken to three other people who have confirmed some pretty appalling things.
Thus in 2020 the mother was contacting people who had worked at the day care centre to try and find information besmirching Ms E’s good name and to assist her with these court proceedings.
This is a similar pattern of behaviour she engaged in against the father in contacting his prior partners who filed affidavits in her case. Their evidence was rejected and not read.
Another staff member wrote to Ms E in 2020 , saying:
Ms GG asked me about what was going on at kindy. She said she doesn’t care about what’s going on between the mother and Mr Adelstein but she’s helping the mother and has reported about the kindy. She put me in an awkward position knowing I work at DD Childcare Centre.
The mother launched a campaign against Ms E with people who had been at the centre either as workers or parents, to try and find some evidence against her for the father’s decision to retain the child when the root cause of the father’s concerns was not anything Ms E had said or done but the mother’s own behaviour.
The mother wrote to a previous employee of the day care centre. This text formed part of Ms E’s business records and it says as follows:
Hi such-and-such, Ms HH mentioned you moved to Queensland. If you need help finding work a close family friend owns a day care centre across Queensland. Now that you don’t have to worry about Ms E, would you be prepared to write a statement about what happened the day Ms E called the police? You are the only witness as I can’t get hold of the student that was there on that day. Mr Adelstein kidnapped X for six weeks. I didn’t see or speak to her because of what Ms E did. Feel free to give me a call to discuss. Thanks, Ms Byron (Transcript 9 November 2021, p.12 line 21-29).
This text was sent on Monday, 11 October 2020 at 11.02 am. The mother had clearly formed a view that Ms E had had something to do with the father’s decision to retain X.
The tested evidence is entirely to the contrary and is set out in a very clearly letter dated 31 July 2020, and marked Father’s Exhibit 4 from his lawyers to the ICL and the mother who was then self-represented. The mother had received this letter setting out the reason why the father had determined to retain the child prior to her request to “Ms HH” to do a report.
Father’s Exhibit 4 is as follows:
Our client…will not facilitate changeover of X and hand her into your care today. Our client is of the view that to do otherwise would pose an unacceptable risk to X and likely expose her to further violent, erratic and otherwise inappropriate behaviour and language contrary to her best interests.
Over the last few months especially, our client has observed a serious deterioration in [the mother’s] behaviour which strongly suggest to him that [she] might be suffering from mental health episodes which require specialist medical attention and monitoring.
While you have notified our client that you are presently under the care of “Ms T”, our client is concerned that you might not be received treatment from an appropriately qualified medical specialist, particularly given [the mother’s] relatively recent episode of psychosis, which necessitated police intervention during a time X was in your care.
…
Our client has good reason to hold genuine concerns in relation to you repeatedly exposing X to aggressive and otherwise inappropriate behaviour and language which is likely to cause the child long-term damage and harm.
Since [separation] you have been charged with assaulting our client and been subjected to an Apprehend Domestic Violence Order in protection of our client.
…
Security services at the Family Court of Australia have been forced to intervene on two occasions [with you and your father] as a consequence of your and your father’s aggressive and intimidating behaviour in court or otherwise on campus.
You and your father have also directed threats at staff members at X’s day care which caused them to notify New South Wales Police in protection of staff and [other members and children in the centre]. The director of the day care centre has gone so far as recently to say she’s considering taking out an apprehend domestic violence order against you.
During these proceedings, you also unilaterally relocated X’s place of residence to Queensland to live with you and your parents without our client’s knowledge and consent and… [would not return until an order was made].
…
You have made numerous unfound allegations and suggestions in relation to our client harming X and have gone so far as to notify relevant child protection authorities that you believe our client has exposed X to inappropriate behaviour which is sexualised in nature, [being putting her back in nappies at night].
We note that to date you have not written to our office or notified our client directly about your alleged concerns of sexual impropriety involving our client and X. Our client otherwise categorically denies such suggestions and allegations…
The letter also outlined that the father was concerned that the mother lacked insight into her escalating behaviour and its impact upon X. The father was correct to be concerned given the mothers’ behaviour and subterfuge.
The letter offered the mother to spend time with X at a supervised contact centre or such other facility.
The incident on 30 July 2020 at the day care centre is of real concern.
Ms E said:
That’s the morning she came in and told me I wasn’t to have an interaction with only – and only other staff members could. She came in. I did not want any confrontation. I went into the bathroom at that thought. I thought the other teachers could deal with the situation and I would come out and everything would be fine. She brought X in, had a discussion with one of the teachers and everything was fine. She then opened my office door into the bathroom and said to me whilst I was still in the bathroom with my door closed to the bathroom, “You’re going to have nothing to do with X today.” I came out and said, “That’s not really possible. This is my centre. I’m in charge of the daily running of the centre and we have limited staff members due to COVID.” She then said I was the cause of all these issues that are going on and I’m ruining her chances at the Court. I can’t really remember. Just blaming me for everything and she kept getting louder and louder. (Transcript 9 November 2021, page 14 line 34-47)
…
X and one of the other children were sitting in the dining area having morning tea and they were becoming visibly upset. They were crying and didn’t like the atmosphere of confrontation in my office which is right next to the dining room. I then said, “Listen, I think it’s time for you to leave.” She kept arguing with me. That’s when I said to her, “Mr Adelstein has told me if I’m ever feeling unsafe for myself or X just to call the police,” and I did that and I picked up at the phone and I said, “If you don’t leave, I will call the police.” I said that two or three times. She didn’t listen. When I finally got on the phone to the police she left. Outside I could hear her still screaming. One of my staff went out to see. I think the mother took X with hr and the staff member said, “Are you sure you don’t want to leave her here? I’ll be here. I’ll make sure she’s okay.” She was still screaming. One of the other parents came in. “Oh my gosh. I don’t know what’s going on. I just ….. all of this screaming outside,” when they were bringing their daughter in. (Transcript 9 November 2021, page 15 line 1-14)
This unregulated emotional outburst of anger, shouting and yelling occurred in front of her daughter, in front of other parents and most concerning in front of other people’s children. The mother denied that she raised her voice. The mother denied her daughter heard this conversation. The mother denied she behaved inappropriately. I reject her denials for the following.
A woman called Ms JJ was working at the day care centre on this day and the mother refers to her in her affidavit. Ms JJ prepared a statement dated 4 November 2021, marked Father’s Exhibit 3:
Ms Byron walked in with X while the children were having morning tea between 9:00-10:00am. She went to straight to the office and said, “I don’t want you anywhere near X” Ms E said, “I’m working here today and X will be under every ones care including me.” Ms Byron lost her temper and started yelling at Ms E. The children in the dining room got scared, X and one of the girls started crying. I tried to calm them down and while Ms E asked Ms Byron to calm down and leave the premises. After asking her three times politely Ms E warned her if she doesn’t leave, Ms E will have to call the police. Ms Byron kept yelling and Ms E had to call the police. Ms Byron left as soon as Ms E got the call with the police.
(As per original)
I accept entirely what Ms E says occurred and what is reported to have occurred by Ms JJ as found in her statement in the centre’s records. The mother’s behaviour is uncontained and uncontrolled when she does not get her way. This behaviour occurred a mere 12 months ago, and as the mother has not received proper and appropriate therapeutic intervention to deal with her dysregulated functioning it will still be occurring.
Ms E confirmed X was really upset about this incident and said:
That the mother was screaming in the view of other parents. Screaming that if I had more staff they could come out. That I wasn’t doing things correctly by COVID. Didn’t have any hand sanitiser – the criticisms that the mother made: didn’t have hand sanitisers out front. She was the only parent who complained about my COVID Safe practices and protocols. Everyone else was happy we stayed open (Transcript 9 November 2021, page 16 line 17-20).
It is miraculous that Ms E maintained her centre to be opened so parents could go to work, and the mother continued to work to her credit yet she gave Ms E no credit for this.
The mother formed the erroneous view that Ms E is responsible for the father’s significant mistrust in the mother’s care and capacity to provide for X’s emotional wellbeing when the evidence is that the father’s concerns are based upon the mother’s behaviour and he is justified in his concerns. Ms E had nothing to do with the father retaining the child. It was the father who took the action, not Ms E and Ms E wrote what she had seen and observed and what she had seen and observed of the mother was unacceptable behaviour.
Ms E confirmed that Ms JJ told her the mother said to her, “You know it’s an offence to lie in court”. The mother should be cognisant of her own comment.
In the business records of X’s day care the mother is reported to have said to Ms E, “X has a red bottom. Do you know about this stuff?” The relevant exhibit was Father’s Exhibit 2, being the Department reports of risk of harm to X.
When asked whether the mother had ever raised this with her Ms E said:
Way back before the divorce X had quite a bit of issues with bowel movements and going to the toilet. We discussed this a lot, what sort of treatments to use and how to help her. We did everything we were asked to do in terms of that. After the toilet training and after things began to progress the mother seemed to be accusing the father – I thought it was physical abuse at first – and then there was a lot of things about UTIs and I got lots of photos of rashes and I did get a lot of questioning about this – rashes of X’s genitalia. And the mother was sending these photos to you? ---Yes. That’s correct (Transcript 9 November 2021, page 17 line 20-39).
Ms Lawson, counsel for the father asked Ms E:
What did you think the purpose was? ---Well, at the beginning it was to show me how it was going. At the end it was very much showing me after the weekend she had been with her father (Transcript 9 November 2021, page 17 line 41-44).
The mother then raised that the father may be sexually abusing X. The mother requested a one-on-one meeting with Ms E which she refused and would only meet with both parents.
I can draw from this that the mother was seeking evidence against the father to fit her narrative that the father is a violent, predatory sexual abuser and Ms E did not comply. Further Ms E was clear X has never expressed any sexualised behaviours at all in her care or sustained any injuries consistent with such behaviour and that there was nothing to report.
It became apparent in cross-examination that Ms E had blocked the mother from her mobile due to the plethora of emails and communications she had received. That Ms E had sent an email out to all parents to only contact …@... and not the personal phones of herself or her workers. In response the mother sent Ms E a WhatsApp communication dated 24 January 2021, marked Father’s Exhibit 3:
I have it all, Ms E you have children so I’m giving you one last chance to do the right thing for your children else I’m going down the path of criminal defamation and my lawyers will be in touch. If you don’t already know, which I’m sure you do, the local rabbi organised a group of 236 participants to rally at family court against what you and Mr Adelstein did.
This is related to the father retaining X, an event in which Ms E played no part.
The mother sent a text to Ms E marked Father’s Exhibit 3:
I hope every single day you wake up and look at your children you see this picture. I’m looking forward to KK and X reconnecting. They are children so I’m sure as a qualified educator you’ll have no issue with this.
These are offensive and threatening messages and are entirely without justification. Ms E said the mother’s attitude to her changed due to three things: Ms E’s letter to the ICL in July 2020 that Ms E did not want to have a meeting with the mother alone and the letter Ms JJ wrote.
The reports that Ms E said the mother asked her to write were in relation to X’s injuries. For example, Ms E said to the ICL under cross examination :
X told me different things happened at both houses. I didn’t think any of them were a problem. I mean, she fell off her bed with her mother, bumped her head, had to get stitches. She fell off her bike with the father. They’re all the same things. They happened on different weekends. (Transcript 9 November 2021, page 30 line 44-46)
Ms E disagreed the father would ask about the time X spent with her mother. Ms E said:
He wouldn’t ask for a report. He would just say, “How’s she feeling? Is she happy? Is she,” not like a report but just how she was doing. (Transcript 9 November 2021, page 31 line 41-42)
Ms E said to the ICL, “I didn’t do anything with Mr Adelstein. I didn’t do anything wrong” (Transcript 9 November 2021, page 41 line 41).
That is correct and for the mother to write these threatening messages, which threats included Ms E’s own children is scandalous. The mother’s statement in her message to Ms E of 236 participants in a rally organised by a Rabbi to protest at the Family Court was a fabrication and unravelled under cross-examination. These messages show the mother is capable of intimidation, coercion, control and indicates a significant incapacity to control her emotions when she does not get her own way.
Evidence of Ms LL
Ms LL gave evidence and she prepared an affidavit dated 1 November 2021. The value of that evidence was that the father was engaged in therapeutic intervention which Ms LL will continue after this court case. This confirmed the father’s evidence that, he read comments Dr Q made, took them on board and he is determined to be the best parent he can. This is in contrast to the mother who believes anyone who criticises her is simply against her.
The mother’s hospital admissions and Medicare records.
Dr Q set out well in her report starting at line 390 the notes of the mother’s admission to hospital and mental health treatment that she was aware of:
Clinical record is consistent with Ms Byron’s account. She had no contact with mental health services prior to the separation. Her mental health presentations all occurred within the context of her acrimonious separation and the attendant stressors.
However Dr Q was entirely unware of the extent of mothers’ mental health treatment starting in 2004 as the mother failed to tell her and thus Dr Q’s statement is incorrect concerning when her mental health issues first arose. The mother had a mental health plan referral in 2004 but did not take this up until 2014 it seems. The mother was prescribed medication in 2004, 2008/2009 and in 2014 and failed to disclose this to Dr Q.
Dr Q noted that she has a predilection to degrading mental health when stressed. Her first contact with mental health occurred at the R Hospital on 15 June 2018. She was admitted to the emergency department with acute alcohol intoxication. She saw Dr MM regularly and was placed on a mental healthcare plan on 3 June 2019, this was her second mental healthcare plan.
Dr Q was unaware her first mental healthcare plan from Father’s Exhibit 5 was 8 September 2004, with Dr NN and she was placed on the medication, Sertraline and that she was prescribed Diazepam in December 2012 and 2013, 2014, 2015.
The mother attended a GP to obtain mental health treatment on 21 December 2008 and failed to report this to Dr Q. This was a time where her partner had died unexpectedly and tragically of cancer. The mother also attended for mental health treatment on 15 February 2009 and again on 27 April 2009 and was prescribed medication. It is apparent that the mother has a history of difficult mental health.
The mother was admitted to the R Hospital for a second occasion on 8 July 2019 as she had spoken to her father on the phone disclosed suicidal ideation, was intoxicated and her daughter was not with her. The mother was assessed by the mental health team at that time and they provided her with helpful, valuable notes and recommendations which she simply did not take up.
The mother’s hospitalisation notes are part of the father’s tender bundle. The mother was diagnosed on 8 July 2019 with acute suicidal ideation in the setting of alcohol intoxication and multiple significant psychological stressors, all of which were to do with her daughter. For example, she said to her father, “I can’t live like this anymore. I can’t live without her”. The hospitalisation notes on 8 July 2019 indicate that she met the criteria for a major depressive disorder with residual symptoms despite having had adequate doses and duration of Escitalopram. She agreed to follow up with her GP and psychologist. The mother did not follow up with a psychologist rather she chose to attend a domestic violence counsellor. The mother did not fulfil the recommendation.
After the 2019 incident, on 8 July 2019, as Dr Q noted in her report at line 410:
[The mother] was discharged to the acute care team but failed to engage [and] she was simultaneously discharged to the care of her GP with a recommendation she see a psychologist under a mental healthcare plan.
The mother did not carry out these recommendations.
The third mental health event that Dr Q was aware of was when she decamped to Queensland on 13 August 2019. Ms Byron was assessed as having probable diagnosis of post-traumatic stress disorder given reports of trauma, consistently found to be re-traumatised with untreated post-traumatic stress disorder with moderate to severe depressive episode. The notes state if she is untreated and unsupported her symptoms will worsen resulting in another attempt on her life. Dr Q said the mother received treatment for her mental health over the course of the next 12 months, with a psychologist. However that is incorrect. The mother saw a domestic violence counsellor only and this was inadequate to treat her severe issues.
Part of the stressors the mother said that were evident in her life was the mother continuing to fly down to Sydney for hearings and handover her daughter for visits. The mother caused those stressors and expense given she left for Queensland with X knowing she was not able to do that.
However even when living in Queensland with her family she suffered further mental health events when her father found her in their garage at their home with cuts to her wrists in late August 2019.
Her father told the mental health team she was abusing medication, that she had suicidal ideation and could succeed in her attempts. This is most concerning evidence of the poor mental health of the carer of a young child who is living with her family, who were her support people at that very time.
The mother confirmed that her father’s reports of her emotional state were accurate.
The various notes of her admissions to hospital whilst in Queensland describe her ruminating on what might be happening to her daughter when with her father and that she is bound to provide access by the Family Court. The mother had 2 serious attempts on her life in 2019 when she overdosed on Lexapro. Notes at that time reveal she had disappeared, ceased contact with everyone and was found by police. The mother does not remember being taken to hospital. It was noted there was little remorse. That she was in a mindset that she had to save her daughter. That she would be dead if the police had not found her. The mother reported she has ongoing suicidal thoughts which fluctuate now she has relocated.
On 21 August 2019 there was a mental health triage assessment on the phone. The mother was booked to see a psychiatrist on the week of 27 August 2019. Dr NN diagnosed her low mood in the context of psychosocial stressors. There was no clear major depressive disorder but possible post-traumatic stress disorder secondary to domestic violence. The mother commenced medication.
Again, the mother was unwell on 12 September 2019 when her father contacted the acute care team and took her to S Hospital, again acutely suicidal. On 24 October 2019 Mr Byron, the maternal grandfather, called the mental health service reporting his daughter was suicidal because she had been ordered to return to Sydney. The mother did not speak on the phone.
Dr Q says her mental healthcare has been primarily and appropriately managed since these acute episodes by her GP and psychologist. The mother has not seen a psychologist. Ms T is a domestic violence counsellor and not a psychologist and that statement is without foundation.
Allegations of domestic violence
With that history I would have hoped to have seen insight and understanding of what the mother needed to do to ensure she did not get into such a fraught emotional state whilst caring for her daughter. Unfortunately, her affidavit was nothing but justification for her behaviour. She says at paragraph 13:
Under duress I married Mr Adelstein in 2015.
That allegation is inconsistent with the evidence that follows.
The mother maintained her allegations of the father’s sexual assaults, physical and coercive control of her during the relationship and that his behaviour was the root cause of her poor mental health
Yet in 2018 when the mother filed her first affidavit in these proceedings she said there had been no physical abuse. These concerning allegations came later and increased in intensity particularly after the father retained the child in 2020. Her affidavit filed in September 2020 was the first time she made allegations that the father had sexually assaulted her on five occasions pre and during the marriage.
The mother’s allegations of the father sexually assaulting her prior to the marriage is inconsistent with the multitude of text messages that the father exhibited to his affidavit filed on 31 August 2021. They commence with a letter from the mother left on the fridge after their return from Country N:
You’re the most incredible man. Every moment, second I spend with you I fall deeper in love with you. I can’t even begin to explain how amazing you have made me feel the last two weeks.
I love you with all my heart, soul, mind and body. I can’t wait to be Ms Byron-Adelstein.
From the father:
Ms Byron, you make me so happy, love.
These notes were penned immediately after their return from Country N when she alleged in her 7 September 2020 affidavit that he had sexually assaulted her:
Texts from the mother to the father on 29 August 2015:
Mother: Ha-ha, I’ll try maybe naked in an apron but think apron is too small. I need a plus size.
Father: Well, you better be naked in bed when I arrive in home.
Mother: Teeheehee figure of speech but thanks. Hurry up and come home. I’m horny.
Mother: I’m stealing the silver umbrella. That’s awesome.
Father: You don’t have to steal, baby. It’s yours already.
Texts from the mother to the father on 29 August 2015:
Mother: How’s my kosher sausage. Me super horny. Wants my kosher sausage. Hopefully we can have playtime tomorrow.
Father: Gorgeous day here too.
Texts from the father to the mother 30 August 2015:
Mother: But you love me?
Father: Always and forever.
Mother: Nope horny.
Father: Hehe. Cheeky.
Mother: Ooh I can assure you, I’m not going to be too tired.
Father: See how you feel when you get home but it’s a yes from me.
The parties married in 2015. These texts are post their marriage and show their love and affection for each other. The texts are incompatible with the mother’s description of their violent and coercive relationship at the hands of the father pre and post the marriage.
The evidence is consistent with the father’s description of their relationship. Being that for the first six months they were happy.
It was put to the mother that she had not raised any allegations of the father abusing her in her initial affidavit filed in 2018. Importantly the mother did not raise it in her sentencing report prepared for the assault charges by Ms V that the father had sexually assaulted her five times, strangled her, choked her, made death threats to her and pulled her hair. The mother was pressed on these glaring omissions in cross-examination. Consistent with what she said in her affidavit she told the Court, that she was advised by her then counsel Ms OO not to disclose the domestic violence perpetrated by the father as the Court would view this as victim blaming and that Ms V had also said this to her in relation to the criminal proceedings.
Further, that she was advised by her then counsel, Ms RR in the family law proceedings that as she had no evidence of such poor behaviour by the father and there were pending charges against her, it was best not to disclose the domestic violence perpetrated by the father in the Family Court as they would view the mother as a non-friendly parent. The records of Ms OO and Ms RR, or the firms they worked for, were subpoenaed and no such disclosure or advice was found to be in the notes.
The report of Ms V dated 4 August 2018 is revealing.
Her first admission to hospital was 15 June 2018 when she was diagnosed with acute alcohol intoxication. The mothers’ evidence to Ms V at page 4 of 12 of her report, paragraph 2.5, “[The mother] denied any history of significant problems with alcohol use”, is inconsistent with her admission to hospital was 15 June 2018 when she was diagnosed with acute alcohol intoxication, a theme in all her admissions.
The description of her relationships under the heading “Family Relationships” at paragraph 2.3 of Ms V’s report is as follows, “she described their relationship as contentious and reported they experienced increasing problems after the first six months of their relationship”.
This is consistent with the father’s affidavit in that he said they were happy for six months and consistent with the text messages between them in August 2015 which were flirty, happy, sexual, and intimate. They could not wait to see each other and were very much in love. This evidence is inconsistent with the mother’s affidavit where she said she married the father under duress. The report continues:
Over the course of their relationship the mother reports [the father] subjected her to verbal and emotional abuse, describing “daily latent abuse that was constant”…[He would gaslight] her by telling her she was not performing household tasks or childcare appropriately, and also subjecting her to controlling behaviour including preventing her from seeing her friends…[H]e would intimidate her on a daily basis by shouting at her, and would “grab me or stand right in my face and scream”…[He] became physically rough with her on some occasions by poking or pushing her and she was afraid he may become physically violent. However, she denied he had ever struck her (at page 3, paragraph 5 of the Report by Ms V, dated 4 August 2018).
This reporting by the mother to Ms V is not a parent-friendly comment and is victim blaming which is inconsistent with her evidence in the witness box of the reason for the glaring omission in this report and her 2018 affidavit of her allegations of sexual assault. It is inconsistent with her affidavit at paragraphs 27 and 28 and her oral evidence that she did not disclose in her trial affidavit the issues of sexual assault because she did not have the evidence. It is simply inconsistent with her initial affidavit filed in 2018 where she said there was no poor behaviour by the father during the relationship.
I find that the mother has simply fabricated the story of the father sexually abusing her and controlling and coercing her as alleged. I accept that their relationship became unfulfilling and toxic and that she and the father yelled at each other, did denigrate each other and did not treat each other with the respect each of them deserve as the parents of their child.
To now assert that the father perpetrated significant domestic violence upon her; that this has resulted in her suffering significant mental health breakdowns and post-traumatic stress disorder is rejected by me. The mother has a significant personality vulnerability which was evident in 2004 and is continuing as disclosed in her Medicare history reports, marked Father’s Exhibit 5 and for which she remains untreated.
The mother’s evidence is so inconsistent and changes to suit her needs at the time that insofar as the nature of her relationship with the father is concerned, it cannot be believed and is rejected by me save to say the parties had an acrimonious relationship, the mother was unhappy, the father was unhappy, both sets of grandparents did not assist their children to deal with the difficulties of an emotional breakdown and a young child to care for in terms of emotional support.
It is because the father failed to comply with her request and allow the mother to move to the B Region with their daughter and secondly retaining their daughter that the mother mounted a campaign against him using and involving other people including Ms E. I reject this evidence and find that the mother has concocted a history of serious and concerning domestic violence and assaults perpetrated against her by the father to achieve an end.
THE LAW
This is a relocation matter. I must consider the parties’ competing proposals and the impact of those proposals on the child, see Morgan v Miles (2007) FLC 93-343; (2007) 38 Fam LR 275.
The father’s application is that X primarily resides with him in Sydney and spends significant and substantial time with her mother, a reverse of what the current arrangement is. If the mother chooses to move to the B Region, that X remain living with him. This would be a significant change in her usual care arrangements.
The mother’s proposal is that she and X move to the B Region and that the father have half of all school holidays and be able to attend Queensland by giving her seven days’ notice on any occasion he deems appropriate to spend time with their child. This would be an upheaval in her current care arrangements.
If the mother remains in Sydney, X is to spend alternate weekends with her father and half of all school holidays again a significant change to her current care arrangements. Yet in oral evidence the mother proposed 5 nights in one block a fortnight with the father .the mother’s primary position is to relocate. I will provide for the alternative of the mother relocating without the child given her equivocal evidence on this point in the witness box for if I do not permit her to remove X the mother may go to the B Region in any event.
In assessing those competing proposals I must have regard to the matters under section 60CC (2) and (3) of the Family Law Act 1975 (Cth) (“the Act”), see Goode v Goode (2006) 206 FLR 212; [2006] FamCA 1346.
X has primarily lived with her mother and she would be her closest emotional attachment. However, she is strongly attached to each parent, as Dr Q noted. She is a robust child, able to deal well with change as noted by Dr Q and is progressing well. Thus, we do not have a vulnerable child who will be significantly impacted by significant changes in her life and she appears to be able to go with the flow as it were.
Certainly, Dr Q’s recommendations that X would be able to deal with change were predicated upon her living with her primary attachment figure which she found was her mother. However, there are significant concerns about the mother’s proposal to relocate X to Queensland.
The first is I have no confidence at all that the mother has a capacity to promote in X a positive relationship with her father which deficit will be compounded when there is a distance involved. Currently, X has that relationship with her father because he is involved in her care each week and X has her own attitude toward and view of the father which is separate to her mother’s. Over distance with a young child, where the father may be able to see her perhaps once a month by going to the B Region and/or only for school holidays, there is a real risk that the supportive, close, attached relationship she has with her father will diminish and may become fractured. If X expresses a wish not to hop on a plane to see her father, her mother will comply and will do little to encourage X to attend because that would suit the mother well. The only reason the mother had X travelling as she did on a plane when she went to the B Region was because she was still involved in the court process.
The mother has an extremely negative view of the father at every level and has lied about his behaviour and treatment towards her to many people including Dr Q, doctors, X’s school, and has laid blame entirely for her poor mental health and significant emotional dysregulation at the feet of the father because of their acrimonious relationship. The reality is the mother has significant responsibility for her emotional dysregulation and poor mental health which is at times, due to her clear abuse of alcohol and prescription medication, and her failure to engage in appropriate psychological assistance. The mother’s significant emotional dysregulation is clearly evident and is mirrored in her father’s presentation and attitude as well.
In Queensland the child will be surrounded by her mother, grandfather, and a grandmother I know nothing of, where there is very negative attitude towards the father, and she will be subjected to uncontained emotional responses from her mother and her grandfather. X’s important and meaningful relationship with her father is at significant risk if she is moved to Queensland.
I have found that the father has not perpetrated violence as alleged by the mother and it is the mother who is the perpetrator of violence, having been convicted and pleaded guilty to an assault on the father.
In those circumstances, the mother who has every right to live where she wishes to live is not removing herself and her child from a domestically violent situation or minimising the risk of harm to herself and the child due to the behaviour of the father a fact situation she desperately tried to create and failed to do so. The evidence is to the contrary, and the risk to the child is the mother’s poor mental health functioning and dysregulated emotions which she has failed to address, despite having been advised to do so in 2019. There is no risk of harm whatsoever to the child from her father and to remove him from her daily life is a significant risk to her ongoing emotional health and functioning.
The father has a negative attitude to the mother, however, his attitude is justified in part. The mother has behaved as he has alleged. She has endeavoured to besmirch his name. She has lied about his treatment of her. She has indicated that the father is somehow abusing X. She criticises the activities the father engages in with X and does not value at all the important relationship X has with the father. Thus, although the father criticises the mother, his criticisms have a basis in fact. The mothers’ criticisms do not and are inconsistent with the evidence. The father has also been complimentary of the mother describing her as a good mother to their daughter. There is no such concession in the mother’s evidence.
The paternal grandmother has a very negative attitude and a disappointingly negative attitude to the mother who is, in many respects, an excellent mother as X has progressed well in her care. But she is emotionally contained and was a witness of truth, and I accept her words, “I do not talk about the mother with X” which is sad but protective.
X is too young to express a wish. She wishes to have both her mother and her father in her life and be free from the conflict. It is the mother who escalates the conflict at every turn by her inability to accept responsibility for her behaviour and its consequences.
Each parent takes their roles as a parent seriously and do all they can to spend all the time they can with their child. I am concerned about the father’s decision to expend his significant inheritance on this trial and fail to put in place some proper arrangement to support his daughter financially, and his view that spending $20,000 per annum on school fees is supporting a child. It is not. Children need food, clothing and shelter to be supported.
However he has agreed he will no longer accept child support payments from the mother to him. He has provided the mother with the car she has possession of by way of property settlement. He will continue to provide $100 a week by way of spouse maintenance in one lump sum and he will pay for all his daughter’s medical costs, including psychological costs. This will then free up the mother’s income by some $200 to $250 per week from her current income, which will greatly assist her.
I accept the mother’s position, that she is virtually unable to provide for herself and her child whilst living in Sydney, but it is not the cost of living in Sydney, it is the cost of her loans. The mother took out a loan with repayments at $537 a week to fund her litigation. That is the problem for her. These loans will be paid off shortly, but currently make a significant dent in her income. I accept the mother has worked and has always worked, to her credit, but she has had a series of temporary contract jobs, no permanent employment, and this also is a difficulty for her.
At her current rent of some $750 a week, $537 in loan repayments and tax of $682 on an income of $2200 a week, there is very little left to support herself and her daughter. However, the $250 a week which the father will now be providing to the mother by not receiving child support, continuing the $100 a week maintenance payment, and paying for all of X’s health care will assist her to perhaps be able to break even. I accept it is difficult for her and it is a difficult way to live.
A further relevant factor under the Act is the nature of X’s relationship with each of the parents. Although the mother is her primary attachment figure, she is closely attached to each of her parents and her paternal grandmother and is an emotionally robust child, able to deal with change.
I have I formed the view that she could live happily with either parent and be in one parent’s primary care, if she was spending good quality time with the other parent .
X would suffer greatly from living in Queensland and having limited time with her father and in the reverse, if her mother chose to live in Queensland, and she was living with her father in Sydney and having limited time with her mother. The greatest risk to X is not having both parents in her life daily, not so much whether she lives primarily with her mother or father.
There will be a significant impact upon X moving to Queensland. She will be removed from her school, D School. She will be unable, effectively, to have the religious education in Brisbane she can have in Sydney as there are no suitable high schools, only a primary level school. The father cannot continue to pay her school fees for D School, and the paternal grandmother is only prepared to pay her school fees at D School and no other school. Thus, she would have to change to a State school and she will be separated from her father and grandmother, her friends, her usual activities and where she has always lived.
Similarly, living with her father in Sydney if her mother relocates, results in her being separated from her mother, who has been her primary carer and this is a risk also but no greater risk to her than being separated from her father. However she will be maintained at her school, places she knows, her father’s home, with her paternal grandmother and her usual activities.
Living primarily with her father and spending significant and substantial time with her mother or continuing the current arrangement of five nights in a block with an increase to equal time is the best possible outcome for X.
If the mother moves to the B Region I do not see she will suffer unduly from a move to the father’s primary care from the mother’s primary care, provided she sees her mother regularly.
There is a significant practical expense and difficulty of X seeing her parents if the mother is in Queensland and she is in Sydney, or if she is in Queensland and her father is in Sydney. It is an expensive and lengthy trip. The father does not want to live in the B Region. He has accommodation with his mother which he pays for. His mother will not provide him accommodation in Queensland or pay any other expenses, and his mother significantly supports him while he continues his studies which will not finish until 2024.
At one level the father can live wherever he wishes; he is a man without any other partner or other children. He has no business here and he could live in the B Region, should he choose to, and could certainly do that once his studies have finished. But this would be a two year period for X without her father’s continued presence in his life, and I accept that he is on a particular scholarship at QQ University where he has a substantial reduction in his university fees, paying only some $14,000 per annum, and whether that is transferrable to a university in another state is not a factor known to the Court. Thus, there are some difficulties for the father to move to Queensland, but it is not an impossibility in the long term or the future when he finishes his studies and gains employment. He can travel to Queensland if he chooses so to do.
Both parents have a capacity to provide for the day-to-day care and educational needs of their child and they have done that. The mother’s capacity to provide for her child’s emotional needs is significantly flawed. It is the mother who has involved her daughter in this dispute. It is the mother whose chose her needs over the needs of her daughter when she chose to decamp to the B Region, chose to lie about the father’s treatment of her, did not tell the father of her poor mental health and hospitalisations and commenced a campaign against anyone who did not agree with her position, such as Ms E.
The mother has exposed X to her dysregulated emotional behaviour, such as the incident at the day care centre in July 2020 and similar behaviour was displayed by her in court. In light of those facts I have no doubt this is how the mother has behaved in front of X on other occasions. It is the mother’s behaviour that has caused X emotional distress, not the father. The father is more contained. He has a calm exterior and demeanour and I do not accept the allegations of family violence levelled at him by the mother, other than that each of these parents yelled at each other, spoke badly of each other, and their relationship was desperately unhappy.
They both have deficits in their attitude to X and the responsibility of parenthood. The father, I criticise for his choices in relation to his expenditure of his significant inheritance. However, he is clearly focused on his daughter, and her education and wants her to attend the best possible school. He is very focussed on her education and may perhaps be too invested in this. He was doing red dot mathematics with her when she was four months of age and I do not accept this was necessary.
X is doing well at school, despite the father stating in his affidavit she was falling behind. It is her first year of school, and from a reading of her school reports there may be two or three subjects that she might need some work and improvement in however given her age this is to be expected The father is, perhaps, too invested in his daughter progressing and achieving the milestones he has achieved in education and may need to take a step back to allow X to achieve at her pace.
The mother’s attitude towards X and responsibilities of parenthood have been seriously deficient, in removing X to Queensland as she did; yelling in front of X at the day care centre in front of other children; losing her temper; her emotional dysregulation and failing to address this by having appropriate psychological intervention.
The mother’s attitude in attempting to portray the father as an abuser of X failed and reflected poorly on her. Ms E’s evidence was clear; the bruising she saw on X was normal childhood bruising that all children suffer from. The child did not exhibit any signs of sexual trauma after spending time with her father. Not content with this response the mother, took Ms E on and endeavoured to find out information from other parents and people who had worked at the centre to besmirch Ms E’s name including threatening Ms E’s children. This is truly a concerning characteristic and trait of the mother namely, her need to get her way being completely overwhelming.
Consistent with the ICL’s position, it is certainly better for the child if the parents remain in Sydney together. However adults may live where they chose.
I formed the view that the father is a capable parent well able to parent this child, to allow her to be the person she wants to be, protect her emotionally and ensure she has a relationship with her mother and her maternal family for the following.
I am concerned with the mother’s conduct and attitude towards her own mental health, her penchant for blaming others for her behaviour and her scurrilous lies against the father concerning his treatment of her and campaigns against those who do not do as she wishes. The mother laid blame at the feet of lawyers, psychologists who had prepared a report for her sentencing, the father, the day care centre, the father’s mother, anyone but herself and her family.
This is an unhealthy attitude to have in a parent who seeks to be the primary parent and take a child a significant distance away from the other parent with whom they are closely bonded. The father demonstrated no such deficits in his personality. Further unlike the mother, he has taken on board the comments made by Dr Q that she could not see that he was as emotionally attuned or that he could not put X’s needs to the front as she opined the mother could and has sought independently psychological assessment from a highly skilled and trained psychologist, Ms LL. Contra that with the mother who went to a domestic violence counsellor, and has used the information she obtained at that counselling to further her allegations of the father being seriously violent towards her.
I have formed the view that the father has the better capacity to promote a positive attitude in and relationship for X with the mother, contra to Dr Q’s unsupported opinion which is contrary to the evidence. It did not appear to be a matter of great import to Dr Q in her report that the mother unilaterally removed the child to Queensland; subjected the child to four flights every two weeks to and from Sydney; and concealed these events from the father. This behaviour was unjustified and carried out with subterfuge and weighs against the mother having her daughters needs at the forefront of her decision making processes a position Dr Q ultimately accepted.
I have formed the view for X to live in the B Region with her mother would be the death knell of her relationship with her father and the loss of this relationship would seriously compromise X’s emotional functioning into the future. I have no trust or faith in the mother or her father to support the father-daughter relationship, contra the father’s capacity to promote the child’s relationship with the mother and maternal family.
If the mother chooses to live in Queensland, I accept and understand why she would chose to do so. Her parents are there, her friends and her extended family are in Queensland, and there is a Jewish community in that area. The mother would have the support of her parents to take the child to and from school and she would not need after school care for example. These matters I understand and accept entirely. However for the child to live in Queensland would be subjecting her to live in a toxic environment vis-à-vis her important relationship with her father. In Sydney living with her father is not living in a toxic environment vis-à-vis her mother. It is not positive insofar as the maternal grandmother is concerned, yet is positive insofar as the father is concerned.
The father said positive things about the mother. The father agrees she has been a very good parent to their daughter, but is concerned at her failure to tell him of serious events when she had the care of their daughter. There is no trust in the mother now for the father and he is justified in that lack of trust.
The mother’s behaviour and her dysregulation are evident when matters concern her daughter. Her behaviour at the day care centre; what she said to the mental healthcare team when she was admitted; when the father retained the child are all triggers. Combine this with a mother who has not accepted she has an emotional dysregulation problem, who has not taken on board the treatment recommended to her, although in court said she would, is a potentially volatile mix for a parent who is to have the primary care of a child over distance and poses a potential risk to the emotional wellbeing of the child if the mother continues to dissemble and have outbursts in front of the child. It is the mother’s behaviour, conduct, and evidence which has caused me to form the view I cannot trust her or what she says.
It is a big jump to accept that the mother’s mental health will improve when she moves to B Region. It may, as I accept some of the psycho-social stresses she currently endures will be avoided. However she will be living in a home with a toxic attitude towards the father. Thus, although the mother’s stress in relation to money and social isolation will be very much helped by moving to Queensland, it is at the risk of X having ultimately no relationship with the father.
Dr Q was clear that the mother’s mental health episodes were not necessarily caused by her allegations of the father’s behaviour. The alleged behaviour of the father may be precipitous but not the reason. As I have found that the father did not behave in this fashion towards the mother, the mother’s mental health episodes are all the more concerning and may never cease given they were set off in great part when she was not getting her way.
For all the above reasons the mother’s application to remove X’s permanent place of residence to Queensland must fail.
If the mother choses to live in Queensland, she will have four weeks with X in the Christmas school holidays each year, all of the June/July mid-term school holidays and half of the Easter and September/October school holidays.
The mother may spend a period of one week with her daughter in Sydney each term by providing the father with notice thereof no less than 14 days prior to her arrival. The mother must take X to school and her usual activities, and give the father details of her accommodation.
If the mother chooses to remain in Sydney, I have formed the view that it is in X’s best interest that she ultimately lives equally with her parents and not with one parent primarily. Even though I have concerns about the mother’s capacity the child has lived primarily with her mother and is strongly bonded to her. I agree with the mother that it is in X’s best interests she immediately goes to a block of five days in her father’s care each 14 days.
Ultimately she will progress her time with her father to equal time. Although her parents have an acrimonious relationship the child is progressing well in their care and to minimise her time with either parent would disadvantage her.
Immediately the child will spend a block of five nights with her father from after school Wednesday to the commencement of school Monday morning each alternate week with such time to increase from after school Wednesday to the commencement of school Tuesday morning from the first week of term 2 in the 2022 school year, and to further increase to equal time from after school Wednesday to the commencement of school the following Wednesday morning at the commencement of the second week of term 1 in the 2023 school year and I will so order
I note the parents have agreed in relation to overseas travel and I will make those orders as well.
I certify that the preceding two hundred and thirty-nine (239) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Henderson. Associate:
Dated: 31 January 2022
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