ASHTON & FARLEY

FAMILY COURT OF AUSTRALIA

ASHTON & FARLEY

[2020] FamCA 963

FAMILY LAW – CHILDREN – whether the child should live in a week about arrangement with both parents or live with the mother nine nights a fortnight and with the father for five nights a fortnight – dispute in the context of the mother abandoning plans to relocate to Adelaide and subsequently to Country M – on the last day of the trial the mother consented to orders requiring her to return the child from Adelaide to Melbourne – long-standing history of blatant defiance and contravention of court orders – Capacity of mother to encourage and facilitate a relationship between the child and the father – whether the mother should retain the child’s passport or the passport should remain with the father’s lawyers – should the child be permitted to travel to countries other than those which are signatories to the 1980 Hague Convention.

Family Law Act 1975 (Cth) ss. 60B, 60CA, 60CC
Evidence Act 1995 (Cth) s. 140

Re F: Litigants in Person Guidelines (2001) FLC 93-072
Bell & Nahos [2016] FamCAFC 244
McCall & Clark [2009] FamCAFC 92
Mazorski v Albright [2007] FamCA 520

APPLICANT:

Mr Ashton

RESPONDENT:

Ms Farley

FILE NUMBER:

MLC

14231

2018

DATE DELIVERED:

19 November 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Williams J

HEARING DATE:

7 – 9 October 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hall

SOLICITOR FOR THE APPLICANT:

Alpass & Associates

THE RESPONDENT:

Self-represented

Orders

The child X, born … 2015 live with each parent on a shared care week about basis with changeover to take place each Monday morning at 9:00AM.
Unless otherwise agreed in writing, changeover referred to in order one hereof take place:
(a) until X commences primary school in 2021, at the father’s home;
(b) upon X commencing primary school in 2021, at her school.
X’s Australian passport shall be held by the applicant father’s solicitors and only released with joint written authorisation to give effect to paragraph 4 of these orders.
Each parent be permitted to take X on a holiday outside of the Commonwealth of Australia providing:
(a)unless the father provides his written consent to the contrary, the holiday is to a country which is a signatory to the 1980 Hague Convention;
(b)the travelling parent is to provide no less than 45 days written notice to the non-travelling parent of the proposed overseas travel pursuant to these orders;
(c)travel shall not take place during school term time;
(d)the travelling parent is to provide the other parent with the following information no less than 30 days prior to the intended travel:
(i)the name of the country or countries to which X will travel;
(ii)the names of individuals who will be travelling with X;
(iii)the dates upon which X will depart from and return to Australia;
(iv)the airlines on which X will travel, including provision of a copy of a return ticket for X;
(v)proof of travel insurance.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ashton & Farley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 14231 of 2018

Mr Ashton

Applicant

And

Ms Farley

Respondent

REASONS FOR JUDGMENT

Introduction

The applicant is the father and the respondent is the mother of the child X born in 2015 (“the child”).

Issues in Dispute

At the commencement of the trial the mother sought the court’s permission to relocate X to Country M, and in the event that was unsuccessful, to relocate to Adelaide.
On the morning of the third day of the trial the mother abandoned her proposals to relocate X’s residence to either Country M or Adelaide and conceded that her best interests would be served by X remaining in Melbourne.
The mother consented to interim orders requiring her to return X from Adelaide to Melbourne on the next Sunday after the trial, and that X’s time with her father would resume in accordance with the orders which were made on 21 May 2020, which provide for X to live five nights a fortnight with her father and nine nights a fortnight with her mother.
The parties also consented to a suite of orders including for the parents to share parental responsibility for X and restraining both parents from relocating their residence more than 25 km from the Suburb B post office.
The following issues remained in dispute at the conclusion of the proceedings:
i)whether X should live with her parents in accordance with the existing orders, or with each parent on a week about basis;
ii)which parents should retain X’s passport;
iii)whether X should be permitted to travel overseas to countries other than countries which were party to the 1980 Hague Abduction Convention.

Synopsis

I have determined that it is in the child’s best interests that :
i)X should live in a week about arrangement with her parents;
ii)the father’s lawyer should retain X’s passport;
iii)X should only be permitted to travel to Hague Convention countries.
The reasons for my determination follow.

Background

The father is aged 35 and the mother is aged 34. The parties commenced living together in rental accommodation in 2011, prior to X’s birth in 2015.
On 27 June 2018, the mother moved out of the former family home and commenced living with X with her parents.
In September 2018, the father moved out of the family home.
Between June 2018 and December 2018, X spent time with her father by agreement between the parties prior to the mother ceasing X’s time with her father.
Between December 2018 and 30 January 2019, X did not spend time with her father because of her mother’s unilateral termination of time. The mother asserted that X had issues arising from urinary tract infections.
On 5 February 2019 interim orders were made by consent for X to live with her mother and spend time with her father as follows:
i)in week one from 5:30PM on Friday until 5:30PM on Tuesday;
ii)in week two from 7:30AM on Monday 7:30AM on Tuesday.
All changeovers were to take place at N Centre in Suburb P.
Subsequent to the orders the parties varied the arrangements by consent so that X concluded her time with the father in week one at 11:00AM on Tuesday and in week two at 11:00AM Tuesday instead of 7:30AM.
The father commenced to spend time with X from late February 2019 in accordance with the agreement reached referred to in the previous paragraph.
In the mother’s affidavit of 23 January 2019, she deposed that she sought to relocate with X to Adelaide for her work and to spend time with her new partner, Mr G.
On 16 April 2019, further parenting orders were entered into by consent to reflect the arrangement reached between the parties around the end of February 2019.
On 20 April 2019, Easter Saturday the mother’s partner attended the father’s place of work and questions with the father about X’s whereabouts.
On 24 April 2019, the father and then attended changeover at Suburb P, where a verbal altercation took place.
On 26 April 2019, the mother forwarded a text message to the father advising that she had arranged a rental property in regional Victoria near the South Australian border and requested that changeovers take place in Q City, R Town or S Town.
The father did not agree to a change of changeover venue and changeovers continued at either Suburb P, or at the mother’s insistence, the Suburb T and Suburb B Police Stations.
On Saturday 11 May 2019, prior to the father’s scheduled time with X on Monday 13 May 2019, the mother forwarded a text message to him requesting the father to travel to V Town in South Australia to collect X and to return her to V Town the following day. The mother asserted she had injured her back and that was why she asked the father to travel five hours each way to collect X.
On Friday 14 June 2019, X spent time with her father until 11:00AM Tuesday, 18 June 2019. As X had woken up vomiting, the father arranged an appointment for her at a local medical centre on the Tuesday, which the mother attended and where the father asserts the doctor’s diagnosis was that X was constipated.
On Friday, 21 June 2019, the mother sent a text message to the father advising:
As DHS are involved now and concerned about what X’s eating and inconsistent habits in your care making her ill I’ll be contravening the court orders and she (X) will be staying in my care until the investigation is closed and X is better.
The father subsequently contacted DHHS and obtained a letter dated 21 June 2019 confirming there was no investigation current or pending and none warranted. A copy of that letter is annexure A1 to the father’s trial affidavit filed 13 August 2020.
As the mother did not comply with orders for X to spend time with her father on Monday, 24 June 2019 and Friday, 28 June 2019, the father issued a contravention application which was listed before Registrar Kaur on 19 August 2019. On that day, orders were made for the father to have make up time with X and for changeover to take place outside J Services in Suburb C. Orders were also made permitting the mother to take X overseas for eight days in September 2019.
In October 2019, the mother issued a contravention application which was listed before a registrar on 21 October 2019. During the course of that application the mother advised the court that she wished to relocate with X to Country M rather than to Adelaide.
On X’s fourth birthday, the father asserts that his attempts to speak to X via Skype was thwarted by the mother’s partner and he did not speak with X that day.
On 16 January 2020, the mother filed an Amended Response seeking leave to relocate with X to Country M.
The matter was listed for a defended hearing on 3 February 2020 when it was transferred to this court.
Between 26 February 2020 and 4 March 2020, X travelled overseas to Country M and Country W with her mother with the consent of the father. The father asserts that the mother advised him that there had been a family tragedy which necessitated international travel.
On the weekend of 7 and 8 March 2020, X spent time with her father. In her affidavit of 1 April 2020, the mother deposed that she had been hospitalised and tested for COVID-19 over that weekend. The father asserts the mother did not advise him at change over that she was ill.
On 14 March 2020 the father received a My Mob message from the mother’s partner stating X will not be attending kinder either rather spending time with solely Ms Farley. A copy of that message is annexure A3 to the father’s trial affidavit.
On Sunday 22 March 2020, the South Australian Government announced the closure of borders between South Australia and Victoria as from 4:00PM Tuesday, 24 March 2020.
On 23 March 2020, the mother moved X from Victoria to South Australia.
The father asserts that the mother’s partner contacted his solicitor on 26 March 2020 and advised that the father would only see X on terms dictated by the mother.
On 27 March 2020, the matter was listed before a Registrar of this court. The father asserts that the mother was advised during the hearing she would be required to return X to Victoria to comply with orders.
On 2 April 2020, the mother filed an application in a case seeking permission to relocate X to Adelaide and that she have sole parental responsibility for X.
In April 2020, the mother’s partner applied for an intervention order against the father in the Adelaide Magistrates Court. The father asserts that the intervention order proceedings were instituted as leverage against the father in the family law proceedings. The mother’s partner forwarded a text message to the father on 13 May 2020, which is annexure A7 to the father’s trial affidavit, which evidences a proposal by the mother’s partner to withdraw the intervention order proceedings, if the father consented to X’s relocation.
On 12 May 2020, the matter was listed before Justice Hartnett. The father asserts the mother advised the court that she would be returning to Victoria within the next two days.
On 21 May 2020, the mother’s application was listed before Senior Registrar Field. On that day the mother withdrew her application to relocate X to South Australia and orders were made providing for minor alterations to the existing parenting arrangements.
Subsequent to the hearing before the Senior Registrar, X spent time with her father in accordance with the amended orders until Thursday, 9 July 2020 when X’s time with him ceased.
The father resumed time with X on Friday 24 July 2020 until Tuesday, 28 July 2020. The interviews for Mr D’s updated family report were conducted during this time.
On 4 August 2020, the mother forwarded an email to the father’s solicitors advising that she would not be complying with court orders and that X would not be spending time with the father, as X and the mother were in Adelaide. The mother asserted that she had to visit Adelaide as a matter of urgency due to medical care required for her partner and antenatal care for herself A copy of that email is annexure A6 to the father’s affidavit.
X did not spend time with her father until the mother returned X to Victoria, in accordance with the consent orders which were made on the final day of the trial, when the mother agreed to X living in Victoria.

The proposals of the parties

The applicant’s proposal

The orders which the father now seeks from the court are:
i)X live with each parent in a week about arrangement;
ii)the father retain custody of X’s passport;
iii)X only be permitted to travel to Hague countries.

Documents relied upon by the applicant

The applicant relied upon the following documents:
i)Amended Initiating Application filed 20 August 2020;
ii)Trial Affidavit filed 12 August 2020;
iii)Affidavit of Ms F (paternal grandmother) filed 12 August 2020;
iv)Affidavits of Mr D filed 11 April 2019 and 13 August 2020;
v)Notice to Admit served upon the mother by email on 30 September 2020;
vi)Documents tendered by Counsel, including documents produced pursuant to subpoena.
The father gave evidence and was cross-examined by the mother. The father was an impressive witness who answered questions in a straightforward manner and did not prevaricate. He was responsive to all questions asked and was not at all combative. His counsel submitted that he was not lying or deceptive during cross-examination, rather he was humble, straightforward, focused on X’s welfare and avoided getting into disputes.
The mother’s Written Submissions were highly critical of the father, both as a witness and in her perceptions of who was to blame for the current dispute. She described him as constantly placing blame back on her and other extenuating factors instead of answering questions succinctly. That does not accord with or reflect my observations of the father. Her assertions about the father appearing apathetic and lacking emotion and seeming confused about a number of events is irreconcilable with my observations of the father as a witness and I do not accept those submissions as accurate in any manner whatsoever.
I agree with the submissions of the father’s counsel and I accept the father as a genuine and truthful witness.
The paternal grandmother gave evidence and was cross-examined by the mother. She also was a highly impressive witness who appeared focused on the welfare of her granddaughter X. Her answers were straightforward and direct.
The mother, in her Final Written submissions was highly critical of the paternal grandmother. That criticism is not justified and I do not accept that submission as consistent with my impression of the paternal grandmother. I accept her as a witness of truth.
Where the evidence of the father and the paternal grandmother differ from the evidence of the mother and her partner, I prefer the evidence of the father and the paternal grandmother.

The respondent’s proposal

The orders which the mother now seeks from the Court are:
i)X live with the mother nine nights a fortnight and with the father five nights a fortnight;
ii)the mother retain custody of X’s passport;
iii)X be permitted to travel to countries including those that are not signatories to the Hague Convention.

Documents relied upon by the respondent

The respondent relied upon the following documents:
i)Amended Response filed 12 February 2020;
ii)Trial Affidavit filed 18 August 2020;
iii)Affidavit of Mr G (mother’s partner) filed 18 August 2020;
iv)Affidavits of Mr D filed 11 April 2019 and 13 August 2020.
The mother gave evidence and was cross-examined by counsel for the father. As submitted by Counsel for the father, she conducted herself during the proceedings in an unusual and exceptional manner. She agreed with many of the propositions put to her by Counsel for the father despite the pattern of her behaviour indicating the exact opposite. The most striking example was her blatant disregard and defiance of the orders made by consent in February 2019 for the father to spend five nights a fortnight with X, despite her protestations that it was in X’s best interest to spend time with her father and that she wanted and had done all things to promote a relationship between X and the father. It was submitted that her statements in evidence which were diametrically opposed to her actions must give rise to a concern as to what she really thought and her evidence must be evaluated in that context. I agree with those submissions.
The mother’s partner Mr G gave evidence and was cross-examined. He was not an impressive witness. Counsel for the father submitted that he demonstrated his own character through his answers to questions during cross-examination and that the world was centred around him and his needs and those close to him, such as the mother and X had to make things work and accommodate his requirements. I agree with that submission. He did not answer questions directly and in particular was highly equivocal about such a simple question as to where he was living and the address he had stated on his affidavit. He was at times belligerent and evasive, in particular when questioned about his financial affairs and his involvement in the dispute between X’s parents. He sought to cast himself as an innocent facilitator of time between X and her father, whereas in reality the opposite is true. Such an example is his visit to the father’s workplace on Easter Saturday, 20 April 2019 when he questioned the father about X’s whereabouts. Another example is his apparent desire to be overly enmeshed in the dispute between the parents and to “assist” with changeover even to the extent of scheduling overseas flights to return to Australia to coincide with changeovers and medical appointments. His presence at changeover has given rise to disputes between the father and himself, including the incident in the park which occurred on 24 April 2019. Where his evidence differs from that of the father, I prefer the evidence of the father
The following documents were tendered by the parties and received into evidence:

Exhibit

Description

F-1

ASIC Search of Mr G and Associated Companies

F-2

Statutory Report by Liquidator of K Group dated 21 June 2019

No documents were tendered by the Respondent Mother

Preliminary matters

Electronic Trial

The matter was heard electronically during the COVID-19 Pandemic, with the consent of both parties.
I am confidently satisfied that the matter was appropriate for an electronic trial and that justice and equity, and procedural fairness were afforded to all parties

Self-Represented Litigant

At the commencement of the trial, as the respondent was self-represented, I advised the respondent of the requisite matters, in accordance with the guidelines referred to in Re F: Litigants in Person Guidelines (2001) FLC 93-072, and confirmed she had copies of the relevant provisions of the Family Law Act 1975. I also arranged for Counsel for the applicant to make his oral final submissions prior to the respondent mother, and made procedural orders enabling the mother to file written submissions.

The Applicable Law

Evidence

The standard of proof in this case is the balance of probabilities (s.140 Evidence Act1995 (Cth)).
Section 140 of the Evidence Act1995 (Cth) provides:
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject- matter of the proceeding; and
(c) the gravity of the matters alleged.
The father and the mother relied upon their respective affidavits. The affidavits exhaustively recounted the history of the dispute .I have examined that evidence and do not propose to repeat it in these reasons.
In Bell & Nahos [2016] FamCAFC 244, Strickland J addressed the obligations of a trial judge in that regard as follows at [28]-[29]:
[28] … [I]t is not necessary in reaching a decision for a trial judge to refer to every piece of evidence or argument that is presented during a trial. That principle is well established in a number of authorities; I will mention two:
a) In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said this:
…A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
b) In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385 – 386, Mahoney JA said this:
It is not the duty of the judge to decide every matter which is raised in argument.
…
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…
[29] I can see no error here in her Honour’s failure to refer to all of the evidence of the mother in relation to this issue. Her Honour plainly considered the evidence that she needed to in order to reach her decision.

Statutory Pathway

Part VII of the Family Law Act 1975 (Cth.) sets out the provisions relating to children. Section 60B sets out the objects of the Act and the principles to be applied. Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration when making parenting orders. Section 60CC of the Act sets out how court is to determine what is in a child’s best interests.
Section 60CC(1) of the Act provides that:
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations.
Section 60 CC(2) of the Act provides that:
The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Subsection 60CC(2A) provides that:
In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

Primary Considerations

The benefit to the child of having a meaningful relationship with both of the child’s parents

In McCall & Clark [2009] FamCAFC 92 (“McCall & Clark”) at [109], the Full Court said:
The Act does not contain a definition of “meaningful”, nor does it provide any specific criteria to assess how parents either have, or should have, a “meaningful involvement” in a child’s life. It does not give guidance to the interpretation of the phrase “meaningful relationship”.
At [117] of McCall & Clark, the Full Court said:
Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child [sic].
The Full Court said there were differing possible approaches to s.60CC(2)(a) of the Act. The Court preferred the “prospective approach”, although the “present relationship approach” may also be relevant.
At [118] of McCall & Clark, the Full Court defined both the “present relationship approach” and “prospective approach” as follows:
…
(a) one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);
…
(c) the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”). In this dispute I prefer the prospective approach.
In Mazorski v Albright [2007] FamCA 520, Brown J at paragraph [26], described a meaningful relationship as one “which is important, significant and valuable to the child” and the word meaningful is “a qualitative adjective, not strictly a quantitative one”.
There is no dispute that it is enormously beneficial to X to have a meaningful relationship with both her parents. That is obvious from the concessions made by the mother in abandoning her proposals for X’s relocation to both Country M and Adelaide and the proposals of each party.
I agree that it is beneficial for X to have a meaningful relationship with both her parents.

The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse

The father asserts that the mother is unable or unwilling to facilitate and encourage a relationship between X and himself. She has gone out of her way to disregard court orders providing for time between X and himself and has been aided and abetted by her current partner, to frustrate X’s time with her father.
The father submits that X should spend equal time with each parent to ameliorate X’s exposure to the mother’s persistently negative views of the father and her attempts to physically distance X’s place of residence from him. He also asserts that the mother seems to find fault in him and his capacity to care for X as a way of justifying her attempts to disconnect X from his life, in favour of a preferred relationship with her partner.
The father’s assertions are addressed in more detail later in these reasons.
The mother filed a Notice of Risk on 23 January 2019 in which she described her concern about alleged disclosures made by X which led her to believe that X may have been exposed to inappropriate conduct of a sexual nature which might be construed as child abuse.
The mother’s allegations were referred to Victoria Police, SOCA at Suburb T where no action was taken. The matter was referred to the DHHS who identified no protective concerns.
In her affidavit of 16 January 2020 and at paragraphs 78 – 82 of her trial affidavit the mother lists her concerns about the father, which may be summarised as follows;
i)the father has taken medication for depression and anxiety, and during cohabitation, the mother observed that he adjusted his dosage of prescription medication to suit himself;
ii)the mother observed the father taking illicit substances and drinking excessively;
iii)there were occasions when sexual intercourse was non-consensual;
iv)the father encouraged her to terminate a pregnancy in March 2012.
At paragraph 75 of his trial affidavit the father deposes in response to the allegations as follows:
i)he was initially diagnosed with depression in 2004, was prescribed antidepressants and has continued to take antidepressant medication since that time;
ii)he has never had any time off work as a result of his condition and it does not affect his capacity to care for X;
iii)he denies that he has ever had sex with the mother other than on a consensual basis;
iv)he agrees the mother had a termination of a pregnancy in 2012, the parties discussed the termination but it was ultimately the mother’s decision;
v)at the commencement of the relationship in 2005 he smoked marijuana approximately once a month and used MDMA at a party in 2008 and 2010. He has not used marijuana or MDMA since 2010;
vi)he sent a text to the mother’s sister, which is referred to at paragraph 29.4 of the mother’s January affidavit, in 2006 and not 2015;
vii)he used ketamine at a gathering in 2011, after a friend of his had committed suicide and has not used it since;
viii)he undertook drug screens in January 2020 and on 5 August 2020, the results of which are annexure A8 of his trial affidavit. Both screens are clear and have appropriate creatinine levels.
The mother did not cross-examine the father about these matters and I accept the father’s evidence.
Additionally, the mother’s proposal that the father spend five nights per fortnight with X is contradictory and inconsistent with any allegation that the father’s mental health or historical drug use poses any risk to X.
I find that the father does not pose a risk to the child of physical or psychological harm or exposing or subjecting X to abuse.

Additional Considerations

The additional considerations are set out in s.60CC(3) of the Act. I will now consider the additional considerations.

Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

X will turn 5 years old in late 2020. X was observed with her parents for the purposes of the first family report of Mr D which occurred when X was 3 years old, in the context of the mother’s then proposed relocation to Adelaide. That report is annexed to the affidavit of Mr D filed 11 April 2019.
Mr D reports that both parents described X is happy, vibrant, vivacious, confident and outgoing three-year-old child and that his observations accorded with the description provided by both of the parents.
Furthermore, each parent described X’s development as progressing extremely well, as observed by Mr D.
Neither report refers to an individual interview between the writer and X, which would certainly not be appropriate for a child of X’s age.
There is no objective evidence of any views that X may have about her potential living arrangements. Both reports were obtained in the context of potential relocation by the mother to either Adelaide or Country M, and not whether X should live in a week about arrangement, or primarily with her mother and spend five nights a fortnight with her father. Even if it were possible to elicit such views from such a young child, it is unlikely that those views would be accorded weight.

The nature of the relationship of the child with:

(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)

Both parents consider they have an excellent relationship with their daughter. That assessment is supported by the family report writer.
At paragraph 6 of the first family report, prepared in April 2019 Mr D observed that X in the company of her parents, was exactly as described by both:
she was extremely articulate, displayed extremely well-developed expressive and receptive language, she was clearly and easily able to make herself understood and clearly and obviously understood what was being asked of, and communicated to her. She interacted with the parents confidently, easily and effortlessly. She treated both as secure, safe, adult figures, showed an abundance of physical attention and affection for both, easily approached them respectively to have her needs met, and engaged with them with an abundance of imaginative and creative play; her presentation was, conspicuous by virtue of how, frankly, it was so unremarkable.
At paragraph 7, Mr D concluded:
X presented as an extremely happy, bright, enthusiastic and engaging girl, who related unequivocally well with both parents, who impressed me as interchangeable in her psychological world.
Interviews for the second family report were conducted on 27 July 2020. The father, mother and the mother’s partner attended with X. Again X was not interviewed independently by Mr D, although she was observed in the company of her father and her mother and her partner.
Mr D, at paragraph 6 of his second report observes :
it is worth highlighting that in the midst of the parental acrimony, X appears to be progressing extremely well, that she has a good relationship with both her parents and with Mr G, and was observed to relate warmly, easily, comfortably and reciprocally with each of the adults…….
…….X appears to be relating with both parents extremely well, is maintaining a good relationship with both, and notwithstanding the transitions, appears well cared for and secure in her relationship with each of her parents separately.
I am satisfied that X has an excellent relationship with both her mother and father and appears to have a good relationship with her mother’s partner.
The father lives with his mother, Ms F. Ms F was a witness in the proceedings who impressed me as a responsible, diligent and devoted grandparent. There was no challenge to the nature of X’s close relationship with her grandmother.

The extent to which each of the child’s parents has taken, or failed to take, the opportunity:

(i)        to participate in making decisions about major long-term issues in relation to the child; and
(ii)       to spend time with the child; and
(iii)     to communicate with the child

Participation in making decisions about major long-term issues in relation to the children

The mother’s affidavits contained a litany of complaints about the father and the capacity of the parents to cooperate about major long-term issues. There was specific reference to the problems which the mother perceived had been encountered in X’s medical issues. Despite the ever-increasing parental acrimony X received the appropriate medical care for urinary tract infections, constipation and dietary concerns.
The mother did not consult the father about her removal of X to South Australia on 23 March 2020 nor her removal of X to South Australia in August 2020, where she remained until her return to Melbourne, which she agreed to during the course of the trial.
During cross-examination, the mother:
i)agreed that during the hearing on 21 May 2020 before Senior Registrar Field, she withdrew her application to relocate to Adelaide on an interim basis;
ii)conceded she was told by the court to forthwith return to Victoria and remain until the final determination of the trial;
iii)conceded she had deliberately breached the orders when she went to South Australia in August;
iv)would not describe her move to South Australia in August as a visit, but preferred the verb visiting;
v)agreed that in order to comply with existing court orders a visit would have to be of limited duration;
vi)stated that she should be entitled to breach court orders only if it was not safe for X.
The mother’s evidence during cross-examination in this regard demonstrates an unambiguous and unilateral course of decision-making and a blatant and flagrant disregard for court orders.

Opportunity to spend time with and communicate with the children

The father is of the view that the mother has sought to undermine, interfere and disrupt his time with X and that the mother has attempted to dictate his time with X, notwithstanding clear and unambiguous court orders for X’s time with her father.
The first time the mother suspended the father’s contact with X for a prolonged period post separation was in December 2018. She did so purportedly on the basis that the father’s conduct raised issues which warranted the involvement of protective agencies including the police and DHHS.
The mother agreed during cross-examination that she stopped X spending time with the father from 28 December 2018 until the end of January 2019. In her affidavit of 23 January 2019, she deposed that once the DHHS had investigated the allegations and cleared the father she would be willing to reinstate the father’s time with X.
However a copy of the DHHS file which was produced pursuant to a subpoena, disclosed that the department had not actually opened a file nor had commenced any investigations subsequent to the notification. The father’s time was eventually reinstated by the mother prior to the first scheduled hearing. When invited to apologise to the father for her conduct, her responses that she did not particularly want to do so.
The second occasion when the mother suspended X’s time with her father occurred in March 2020. On 23 March 2020, subsequent to the South Australian government’s announcement the preceding day that the borders between Victoria would be closed, the mother removed X and herself to South Australia and did not comply with orders for X to spend time with her father. She eventually returned to Victoria on 13 April 2020.
The third occasion on which the mother suspended X’s time with her father occurred in August 2020 when the mother moved X and herself to South Australia on an unknown date. The father was advised via email from the mother on 4 August 2020 that she had once again relocated to South Australia and that the father would need to enter South Australia and spend time in quarantine should he wish to spend time with X.
According to the father’s Case Outline, during the period from March 2020 until October 2020, the Orders of the Court provided for X to spend time with her father for 51 nights. X did not spend time with her father for 48 of the scheduled 51 nights. The orders provide for X to spend time with her father for 10 nights in each four week period and the following times have not occurred:
i)six nights in March 2020;
ii)five nights in April 2020;
iii)nine nights in May 2020;
iv)six nights in July 2020;
v)ten nights in August 2020;
vi)ten nights in September 2020;
vii)all nights in October 2020 up until the date of the trial.
The mother’s reason for travelling to South Australia was that she required antenatal treatment, as at the date of trial she was five months pregnant, and that Melbourne was in lockdown. She did not accept that her actions by returning to South Australia with the COVID-19 curtain being conveniently drawn behind her, amounted to an undermining of the father’s relationship with X. Remarkably, her evidence was that she does not accept that she was trying to exclude the father from X’s life.

I do not accept the evidence of the mother that it was necessary to travel to South Australia to obtain antenatal care and thereby flagrantly breached court orders and denied X a regular and ongoing face to face relationship with her father.
I accept the proposition that the mother’s protestations that she seeks to encourage and facilitate a relationship between X and her father are clearly, unambiguously and fragrantly at odds with her conduct in removing X to South Australia without a valid reason and in the face of court orders.
The mother has cast her actions as being justified and that she was still prepared to facilitate X’s time with her father, despite the move to South Australia. An example of that was her conduct on the weekend of 11 May 2019 when she proposed that the father drive five hours to V Town to collect X to spend one night with him and then return her the following day. She interprets the father’s refusal to drive to South Australia to collect X as a refusal to cooperate and compromise with her to make arrangements work, rather than the opportunistic action on her part, which it really was.
The mother’s partner was also cross-examined about his understanding of the requirements to comply with court orders. His evidence was that he thought court orders could be ignored if there was a reasonable excuse to do so. I was left with no doubt that the mother and her partner had deliberately engineered a plan to covertly relocate X to South Australia, flying in the face of court orders, and that one of the motivating factors was to diminish the relationship between X and her father.

The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

The father pays child support in accordance with an administrative assessment and is up-to-date. There was little focus on this consideration during the trial and I accept that both parents have met the obligations to maintain X.

The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

There was little evidence about the effect on X of any change from the existing arrangements of five nights a fortnight with her father to an equal time arrangement.
The only objective assessment of X’s relationship with both her parents is to be found in the family reports prepared by Mr D.
The family report writer’s observations of X during both assessments are referred to at paragraphs 95 – 99 hereof.
X’s relationship with both her parents is secure and she related in a remarkably positive manner to each of her parents. At paragraph 7 of the first family report, Mr D notes that the relationship between X and each of her parents as interchangeable in her psychological world.
Having made that observation, Mr D, at paragraph 45 of the first family report refers to X’s perception of her mother.
It is apparent from that highly positive comment that there is no objective evidence that X would likely be adversely affected by increasing her time with her father from five nights a fortnight to seven nights a fortnight.
Similarly, there was no objective evidence that there would be any adverse effect on X by increasing her time with her grandmother from five nights a fortnight to seven nights a fortnight. Indeed, there was no challenge to the positive nature of X’s relationship with her paternal grandmother, with whom she would also live.

The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

There are no significant practical difficulties or expenses for X to spend time or communicate with either parent.
The orders which were entered into by consent on the third day of the trial provided for inter alia:
i)the mother to return X to Melbourne the following Sunday;
ii)both parents being restrained from relocating their residence more than 30 km from the Suburb B Post Office;
iii)the parties to do all acts necessary to enrol and ensure X’s attendance at L School in Suburb H commencing in 2021.
The father lives in Suburb B and the mother has leased an apartment in Suburb H, both of which are in relatively close proximity. The Orders referred to in the previous paragraph require the parties to continue to live relatively close and for X to attend a primary school which is accessible to both parties.

The capacity of:

each of the child’s parents; and

any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs

The father asserts that one of his primary concerns is that the mother is seeking to diminish his relationship with X and that is evidenced by her previous plans to relocate to either Adelaide or Country M.
In regards to the diminishment of the relationship between X and her father, the mother was cross-examined about why she had encouraged X to refer to her partner as Mr G, shortly after meeting X. Her evidence was that she had told X to call her partner Mr G and that she sought such an appellation demonstrated X’s level of comfort with Mr G. Such a comment demonstrates a profound lack of insight and is most surprising given that the mother and Mr G, despite expecting a child together in February 2021, are not engaged to be married and that Mr G has not even proposed to her.
She agreed with the proposition that she had deliberately encouraged confusion about X’s origins by allowing her to call her partner Mr G. She also said during cross-examination that it was her partner’s idea to refer to himself as X’s honorary stepfather in his affidavit, and that she saw that as seeking to build a future together, although she denied she had been implicated in the preparation of Mr G’s affidavit where that comment was made.
I do not accept that the mother was not involved and implicated in the preparation of her partner’s affidavit. I find that she was fully aware of the statements attempting to elevate X’s relationship with her partner vis-à-vis the father.
Furthermore, during cross-examination she referred to her partner’s brother as X’s uncle. She denied that she had encouraged her to refer to him as such although she agreed that she was comfortable for X to call him uncle.
It became apparent to me that there was a child making noise playing in the close vicinity of the mother during the opening of Counsel for the father. Upon questioning by me, the mother disclosed that the child was X. The mother was cross-examined by Counsel for the father and her evidence was extraordinary.
Her evidence during cross-examination may be summarised as follows;
i)in response to the proposition as to why X was present during a legal opening, her response was it was bad judgement;
ii)when it was put to her that it was not bad judgement that simply she had taken no steps to protect X from the proceedings she was not particularly responsive;
iii)in response to the proposition that she displayed ignorance of the need to protect X from adult issues, she said she did not want to say anything and was not disputing the statement;
iv)she did not accept the assertion that she had failed to protect X from the dispute;
v)she denied that X had been present while she had been discussing the proceedings.
I do not accept that the mother has attempted to protect X from the proceeding and that she has not discussed the father in a derogatory manner in X’s presence or hearing. Such a statement is unbelievable given what occurred during the early part of the trial.
What is remarkable is so far, according to Mr D, is that X seems to have avoided being caught up in the parental conflict.
I find that the mother has not demonstrated a genuine capacity to encourage and facilitate the relationship between X and her father, despite her protestations to the contrary.
I agree with the submission of Counsel for the father that any assessment of the mother should be on the basis of her actions and deeds and not what she says.
The father is also critical of the role of the mother’s partner in seeking to diminish his relationship with X. In his affidavit, Mr G referred to himself as X’s honorary stepfather and further deposed that more recently X had asked him whether it was okay to call him dad as well because she wanted to call him the same thing as her little sister.
Paragraph 20 of his affidavit he referred to the father as “biological father”. During cross-examination he denied that he was referring to X’s father is a sperm donor. In my view that is a gratuitously offensive comment.
The mother’s partner attempted to justify his role in the dispute as encouraging X to communicate and spend time with her father when it was safe and that he had done a lot, expended time and effort to facilitate X’s time with her father, including driving hundreds of miles to enable X to spend time with her father, when he was complicit with the mother in her removal from Melbourne to South Australia.
During cross-examination about the mother’s notification to DHHS in December 2018, his evidence about whether he had suggested the mother complain to DHHS was evasive. He finally agreed with the proposition that he would have supported the mother to stop X spending time with her father during that time.
The mother’s partner has engaged in provocative behaviour towards the father, the two most blatant examples of which are him attending the father’s workplace on Easter Saturday 2019, when the father was at work and X was at home being cared for by her paternal grandmother and a changeover at a play centre on 24 April 2019.
During cross-examination he admitted that he showed up at the father’s work on Easter Saturday 2019, however he qualified that attendance by stating he was there to purchase beverages. He agreed that he had questioned the father about X’s whereabouts in the presence of the father’s co-workers. He did not seem to think that such an unprovoked visit when he lived nowhere near the vicinity of the father’s work was unusual or inappropriate.
During cross-examination he agreed that when the father collected X from the play centre on 24 April 2019 he had told the father that he may go to jail for a few years and that he had accused the father of raping the mother and breaking her knees. This exchange occurred in the presence of X, who was in the park, although he denied that X would have heard as she would have been some metres away from him. When questioned whether he considered that appropriate for him to continue to do change over, his response was that he should be able to do so. Such a response demonstrates a clear lack of insight about X’s best interests.
He was further cross-examined about his future attendance at changeovers, in the context of the mother having agreed during the proceedings that he should be restrained from attending changeovers. He seemed to have enormous difficulty accepting that he would not be able to attend changeovers and gave evasive answers about it being the mother’s responsibility to abide by Court orders before eventually agreeing that he would be absent from changeovers if there was a form of security and provided it was safe for the mother.
Similarly in the context of whether he would refrain from being near X when she was having electronic communication with her father, he sought to justify his previous unhelpful and unnecessary involvement as providing a device to X although he did eventually concede that he would see that she was not disturbed.
I do not accept that he has assisted nor encouraged X’s relationship with her father, and I find to the contrary that he has deliberately obstructed the mother’s compliance with clear and unequivocal court orders to enable X to spend time with her father.
The mother’s main complaints about the father are directed at his inability to communicate and compromise with her and what she describes as his passive-aggressive conduct. She is also critical of the fact that the father requires assistance from his mother to care for X.
She did not level criticism at the father that he was unable to facilitate or encourage a relationship with the mother, rather her complaints were directed to what she perceived as significant communication problems which the father had instigated and was responsible for.
The mother’s partner is also critical of the father’s asserted lack of reality and adaptability to the COVID-19 pandemic and his family’s circumstances. At paragraph 38 of his affidavit, he is scornful of the father’s response to his requests as “stick to court orders”. During cross-examination, Counsel for the father put to Mr G that he considers such a response worthy of criticism and that it was not a legitimate response. Mr G’s comment was that they have tried to mediate and resolve issues and cited the example when the mother hurt her back when X had been removed to South Australia thus making it inordinately difficult to comply with orders. I was left with the impression that criticism of the father was because he failed to agree to variations of court orders which would have been advantageous to the mother and Mr G, to the detriment of the father and his relationship with X.

The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

I have referred to X’s maturity as reported by her parents to Mr D earlier in these reasons.
There are no specific issues of maturity, sex, lifestyle and background of either of the parents.

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

This consideration has been discussed in the context of opportunity to spend time with X and parental capacity.

Any family violence involving the child or a member of the child’s family

The mother in her trial affidavit makes allegations against the father which are referred to earlier in these reasons. The mother also filed a Notice of Risk in January 2019, however subsequent investigation by relevant protective agencies did not warrant the opening of a file by the DHHS.
I find that there has not been any family violence involving X.

If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:

(i)        the nature of the order;
(ii)       the circumstances in which the order was made;
(iii)     any evidence admitted in proceedings for the order;
(iv)      any findings made by the court in, or in proceedings for, the order;
(v)       any other relevant matter

The mother’s partner issued an application for an intervention order in the Adelaide Magistrate’s Court in April 2020. He alleges he and the mother decided to apply for intervention orders due to the abusive commentary of the father. Mr G refers to the circumstances of the application in paragraphs 33 – 37 of his affidavit.
In her final written submissions, the mother asserts that the father had been constantly abusive to her and she was forced to address her concerns by issuing the application for an intervention order.
Mr G seeks to justify the obtaining of an intervention order on the basis of a note written by the father following the incident on 24 April 2019. The note is annexure G-1 to his affidavit. The note does evidence that the father apologised for his comments made on 24 April 2019 however there is no acknowledgement by Mr G of the context of the preceding comments he made to the father in the park where X was present, about the father being a rapist and going to jail.
The mother’s application was “set aside” because the magistrate apparently said that she would expect this Court to deal with the father’s behaviour.
The father asserts that the implication was filed to provide leverage to the mother during negotiations about whether or not the father would agree to X relocating to Adelaide.
I find that the intervention order application by Mr G is of little relevance to X’s best interests, other than it is demonstrative of the myopic view of the mother and her partner in terms of perceiving themselves as wronged victims in the dispute.

Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

It would be preferable to make such final orders.

Any other fact or circumstance that the court thinks is relevant

All relevant factors have been addressed in these reasons.

Discussion and Conclusion as to living arrangements

The father proposes that X live in a week about arrangement with each parent and that changeover to take place each Sunday evening at 5:00PM at the father’s home, until X attends school in 2021 and thereafter at 9:00AM each Monday.
The mother proposes that X live with her and spend five nights a fortnight with her father and that changeover occur with the father collecting X from school on Thursday and returning her to school the following Tuesday morning.
Counsel for the father in his final submissions submitted:
i)the mother is unreliable and her behaviour and speech are incongruous;
ii)her words should not be taken at face value unless they are able to be independently verified by her actions;
iii)any degree of frustration shown by the father should be contextualised where the mother was:
(i)seeking to overtly relocate X to a distant location; and
(ii)committing extensive breaches in the face of very clear court orders.
iv)the mother’s long-standing behaviour can be characterised:
(i)at best, as unstable; or
(ii)unreliable and untrustworthy;
v)the mother’s past behaviour has been proprietorial which is evidenced by:
(i)her withholding X’s time with her father in December 2018 and January 2019 on the basis of her phone calls with the DHHS;
(ii)unilaterally relocating X to Adelaide and then seeking to relocate her to Country M;
vi)her conduct sends a “meta message” that she considers that she has the right to solely determine where X lives and the father will have to travel to accommodate her decision;
vii)as a result of her past conduct, she should not be elevated to a role of primary custodian as she cannot be relied upon to facilitate and promote a relationship between X and her father;
viii)the mother faces the future challenges of her relationship with her partner in circumstances where it is difficult to ascertain the extent of conflict between them and whether the degree of commitment is stable;
ix)the father enjoys the stable accommodation afforded by the paternal grandmother, who was of good character, exudes common sense and an asset to help the father care for X;
x)living with her father and the paternal grandmother is an absolute attribute to X’s advantage which provides a stable and loving household.
In her final written submissions, the mother submits that she should be X’s primary carer. She is critical of the father’s motivation for seeking an equal shared care arrangement, when he had previously not been interested in pursuing such an arrangement, until the commencement of these proceedings.
She submitted:
i)she is a protective parent and should not be criticised for that;
ii)she wants X to thrive and is capable of providing her with all the support she requires;
iii)she has encouraged a relationship between X and her father, irrespective of the nature of the relationship between X’s parents;
iv)the father has excused his abuse and at times lied to her because he was frustrated with the situation;
v)the father was willing to put his daughter at risk during the COVID-19 pandemic and not openly discussed with the mother X’s health concerns;
vi)her partner has provided positive support for X;
vii)the observations of Mr D in his updated family report support X’s excellent relationship with her partner;
viii)the father appears to have very little drive to make any adjustments to the life he is already accustomed to or make any compromises whatsoever;
ix)the father has continually engaged in denigrating behaviour in MyMob directly to the mother and in front of X and she had to take action further in an alternative method because her concerns were not being actioned;
x)she is able to offer X’s stability and she should not be criticised because her home is rented;
xi)the Family Law Act is clear about shared parental responsibility which does not necessarily equate to the exact same amount of time being spent with each parent.

The mother abandoned her application to relocate X to Country M on the third day of the trial and consented to orders whereby X would be returned forthwith to Melbourne and that both parents would live within a reasonable geographical proximity of each other.
Prior to that concession, Counsel for the father cross-examined the mother at length about her plans to travel to Country M. The mother conceded the following:
i)neither she nor X had rights of residency in Country M;
ii)her plan was to go on a holiday to Country M and obtain a long-term visitor visa;
iii)there was no guarantee she or X could leave permanently in Country M;
iv)she was hopeful that if her child was born in Country M that would assist the family to obtain rights of residency;
v)the school in Country M where it was proposed X would attend had fees of approximate $30,000 per annum, in circumstances where the mother is currently reliant on government benefits to support her household and was unable to afford legal representation;
vi)she had no financial capacity to pay for travel between Country M and Australia as she had proposed;
vii)she had failed to produce any documentation to substantiate that her partner Mr G needed to live in or had any connection with Country M.
In the context of her admissions during cross-examination it is difficult to understand the reasons why the mother would or indeed could possibly seek to relocate to Country M.
The mother’s proposal and former desire to relocate to Country M is highly indicative of the mother’s lack of capacity or willingness to facilitate the father and X maintaining a future relationship. This is particularly so given the blatant non-compliance of the orders for X to spend time with her father between March and October 2020.
Similarly, the mother’s ostensible motivation for moving X to Adelaide in the face of court orders was to protect her from COVID-19 and to access antenatal care for herself. The timing of the first removal to Adelaide was subsequent to the announcement of the closure of the borders between Victoria and South Australia and the actual closure of the borders, a matter of days. The second removal was around the time of the second lockdown in Victoria, being early August 2020.
Neither reason presents as particularly compelling or genuine nor a reasonable excuse to contravene court orders. It is obvious from the comments of her partner during cross examination that he was of the view that court orders could be contravened if there was a reasonable excuse and I have no doubt it was a disingenuous plan of the mother and her partner to move X to South Australia on the pretext of COVID-19 health concerns and I find accordingly.
During the assessment interviews for the updated family report which occurred in July 2020, each parent provided their perspective of the dispute to Mr D.
The father’s main concern was the marginalisation of his role in X’s life and the mother’s attempts to elevate the position of her partner in X’s life, to the detriment of her father. In that regard I refer to my discussion of the mother and her partners encouragement of X to perceive Mr G as her father.
The mother was concerned with ongoing difficult communication and what she perceived to be intransience and the hostile stance and attitude of the father. She also expressed her concern that the father did not see a problem with exposing X to his negative feelings and attitudes and was unable to elevate her need to have a good relationship with both parents.
Such comments of the mother in the context of her permitting X to be present during the court proceedings and in particular the opening address of the father’s counsel, and the comments of her partner to the father in X’s presence in the park in April 2019, can only be viewed as disingenuous.
Likewise, her comments to Mr D in the assessment session for the updated family report, referred to at paragraph 21. The mother’s perception of the father’s negativity, resistance and refusal to mediate are myopic and do not acknowledge that the mother has consistently sought that the father capitulate to her desired outcome, and any resistance to do so, including not engaging with her, is viewed as negative and aggressive.
I find that the mother has engaged in controlling, limiting and restricting behaviour in regards to X’s relationship with her father and that her perception of her own conduct as being open, facilitating, encouraging and ready and willing to mediate, is the exact opposite of reality.
Despite the parental communication problems asserted by the mother, the parties have been able to reach agreement about which kindergarten X should attend and which primary school she should attend. They have also been able to obtain medical assistance for X when needed, despite the mother’s criticisms of the father’s engagement. Most importantly, the mother willingly consented to an order for equal shared parental responsibility, which is indicative of the capacity of the parents to communicate in reaching important long-term decisions for X’s welfare.
I am confident that X, despite the mother’s conduct has an excellent relationship with her father and her paternal grandmother and that there will be no difficulties in a transition for her to equal time as opposed to a five night block each fortnight.
Despite her complaints about the father and his conduct, the mother clearly has sufficient confidence in his capacity to care for X, with the assistance of the paternal grandmother to propose that X spend a five night block in his care.
An equal time arrangement will send a strong message to X that she has emotional permission to love and spend time with each parent, as she is entitled to do.
I have no confidence that the mother would encourage and facilitate X’s relationship with her father if X were to live in arrangement as proposed by her. Furthermore, I have significant concerns that she would seek, with the encouragement of her partner, to attempt to elevate X’s relationship with her partner to the detriment of X’s relationship with her father.
A week about arrangement will enable X to have a loving and significant relationship when her new sibling is born.

Is it reasonably practical for X to live equal time with both parents?

Counsel for the father submitted it is reasonably practical for the parents to have shared care of X because:
i)the mother had agreed to a restraint that both parents live within a 30 km of Suburb B Post Office; and
ii)the parents had agreed that X should attend L School in Suburb H.
In her final submissions, the mother submitted;
i)the current arrangement of five nights a fortnight is best for X because of the proximity of the mother’s rented apartment to L School;
ii)her home is an eight minute drive from the agreed school, whereas it was a drive of between 26 to 39 minutes for the father to take X to school, dependent on which roads he chose and whether he was at home or work;
iii)the father had admitted that he would need assistance for after-school care as he would be required to work on some days and his mother may also be working;
iv)adjustments to orders which were made in 2019 to suit the father’s work schedule were indicative of the father’s work obligations;
v)the most practical option would be for X to be collected from school on Thursday afternoon by the father and return the following Tuesday morning so that his evening work would not impact on his time with X and that each family could enjoy a full weekend with X.
In the context of the reasonably close geographical proximity of each of the parents to each other and to X’s school, I am of the view that it is reasonably practical for X to live in a week about arrangement with each parent.
I accept that the father may have to avail himself of after-school care on some occasions and that his mother, X’s paternal grandmother will inevitably assist with arrangements for her care, including driving X to and from school.
The parent’s respective homes and the school are not so far apart as to make transporting X to and from school onerous for her or indeed her parents.
I do however agree with the mother that changeover should not occur on a Sunday at 5:00PM permanently, as this will affect X’s capacity to spend a full weekend with each parent. However the father proposes that once X commences school at the end of January 2020 changeover should be effected at 9:00AM on Monday morning.
There was no evidence or submissions by the mother that changeover could not be affected at school on Monday morning, once X commences school. I am able to infer from the father’s submissions, that changeover at 9:00AM on Monday morning is practicable for him. I therefore propose to make orders that changeover to take place at 9:00AM on Monday morning, commencing as from the date of these orders.
For these reasons, I find it is in X’s best interests to live equal time with each parent and that it is reasonably practical to do so.

Who should retain possession of X’s passport?

The father seeks an order that his lawyer retain possession of X’s passport. The mother seek an order that she should retain possession of X’s passport. There was no application for X to be placed on the Watch List.
Counsel for the father submitted that the father’s lawyer should retain possession of X’s passport for the following reasons:
i)the father does not trust the mother;
ii)the court should have little reason to trust the mother because her past behaviour of blatant lack of regard and noncompliance with court orders;
iii)the mother should not be granted any latitude or indulgence from the court because of her flagrant breach of past court orders;
iv)the court should conclude that the father is deferential, modest, humble and would do what is reasonably necessary and expected of him.
In her final written submissions, the mother submitted that she should retain possession of X’s passport for the following reasons:
i)she cannot fully trust that the father would properly release X’s passport in a timely manner before travel, irrespective any consent he may give to that travel;
ii)the father has expressed no desire to travel due to his anxiety and has deliberately tried to impede any travel plans that she may have with X without just cause;
iii)there is no just reason that X’s passport should be held by solicitors for the long-term and it should be kept together with the passports of her family.
I do not accept that the mother should be empowered to make unilateral decisions about international travel for X. That is particularly so in the context of her overwhelming and blatant disregard for court orders in the past and her recent desire to relocate to Country M which was only abandoned during the last day of the trial.
The mother has demonstrated an overwhelming propensity to take matters into her own hands and thereafter justify her actions. I simply do not have any confidence that the mother, aided and abetted by her partner, will abide by orders to obtain the consent of the father for X’s travel overseas, if she were permitted to hold X’s passport.
Absent X’s name being placed on the Watch List, at least for the duration of the current passport, the parent who has possession of the passport is effectively empowered with regard to X’s international travel. If the mother had a history of compliance and respect for court orders I may have had more confidence in her capacity to comply with court orders in the future.
In the context of her long-standing desire to relocate to Country M with her partner I am of the view that to enable her to make decisions about X’s international travel is not in X’s best interests.
To ensure compliance with existing orders which were entered into by consent providing notice to the other parent and details of proposed flights and itinerary, in my view the father’s lawyers should retain possession of X’s passport which should only be released to either party providing joint written authorisation.
I intend to make an order that X’s passport be retained by the father’s lawyers.

Should X be permitted to travel to non-Hague countries?

The father seeks an order that X should only be permitted to travel internationally to countries which are signatories to the 1980 Hague Child Abduction Convention.
The mother seeks orders that X should be permitted to travel internationally to all countries, irrespective of whether they are signatories to the 1980 Hague Convention, although in her final written submissions she seems to have changed her position.
She submits that it is her understanding that it is “a standard order for most parenting arrangements” and it was not necessarily something that she did not agree to by consent.
Her position now appears to be that if she had a legitimate reason to travel to a non-Hague country, then the father would consider it at the time of making a request. She makes that submission on the basis that the father previously allowed X to travel to Country W by consent in February 2020 and that X was returned a week later without incident.
In light of the mother’s blatant disregard for court orders and her attitude towards the father’s role in X’s life, I am not prepared to make an order permitting the mother to travel to non-Hague signatory countries. I am, however, prepared to make an order that X be permitted to travel to non-Hague signatory countries with the father’s written consent.

I certify that the preceding two-hundred and ten (210) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Williams delivered on 19 November 2020.

Associate:

Date: 19 November 2020

[2020] FamCA 963

19 November 2020

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Consent

Jurisdiction

Remedies

Procedural Fairness

Exhibit	Description
F-1	ASIC Search of Mr G and Associated Companies
F-2	Statutory Report by Liquidator of K Group dated 21 June 2019