Aster & Neeley
[2023] FedCFamC1F 926
•31 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Aster & Neeley [2023] FedCFamC1F 926
File number(s): BRC 5847 of 2022 Judgment of: BAUMANN J Date of judgment: 31 October 2023 Catchwords: FAMILY LAW – PARENTING – Contested residence – Whether the child should live with the father in Victoria or with the mother in Queensland – Child to live with the father Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA Cases cited: Sampson & Hartnett (No 10) (2007) 38 Fam LR 315 Division: Division 1 First Instance Number of paragraphs: 89 Date of hearing: 16-17 October 2023 Place: Brisbane Counsel for the Applicant: Mr Casey Solicitor for the Applicant: Beck Legal Group Counsel for the Respondent: Mr Trost Solicitor for the Respondent: Finnigan Smith Counsel for the Independent Children's Lawyer: Ms Chekirova Solicitor for the Independent Children's Lawyer: Gary Rolfe Solicitors ORDERS
BRC 5847 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ASTER
Applicant
AND: MS NEELEY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
31 OCTOBER 2023
THE COURT ORDERS UNTIL FURTHER ORDER:
1.That by 4.00pm on 7 November 2023, the Independent Children’s Lawyer shall prepare and provide to the mother and father a minute of order consistent with the Reasons for Judgment delivered 31 October 2023.
2.That by 4.00pm on 14 November 2023 (being seven (7) days after the Independent Children’s Lawyer’s minute of order is provided), each parent shall file and serve any further written submissions as to the form of order.
3.That unless otherwise ordered, the Court will consider the terms of the final order in chambers.
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 Aster & Neeley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
This case involves the best interests of a little girl, X, born 2021. Her biological parents are the Applicant father, Mr Aster, currently aged 43 years, and the Respondent mother, Ms Neeley, currently aged 33 years.
On any assessment of the evidence heard during the trial, which commenced before me on 16 October 2023 for two days, X has had a number of changes in her young life that she has been required to deal with. The major events in her life are dealt with in the history of the matter as set out later in these Reasons.
The essential issue to be decided by the Court is where X should live. The father says she should live with him in City B, Victoria, where she has been living since June 2022. The mother says she should live in Queensland with her and the child’s siblings, where she had lived from birth until June 2022. For the reasons which follow, the Court has decided on the evidence at this stage that it is in the best interests of the child, X, that she live with the father in City B, but spends regular time with her mother in Queensland.
PRINCIPLES
In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s 60B of the Family Law Act1975 (Cth) and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s 60CC(2) and the additional considerations under s 60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the child.
To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.
In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s 61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.
RELEVANT HISTORY
When the parents commenced cohabitation in 2020, they had been in an intimate relationship for some nine months. The mother came into the relationship as a coparent of two children, C (born 2015) and D (born 2018). C and D are the children of a same-sex relationship between the mother and her former long-term partner, Ms F. The evidence is that the children were conceived with the use of donor sperm and the eggs of Ms F, but that Ms F carried to birth the child, C, whilst the mother in this case carried to birth the child, D. At the trial of the proceedings before me, C and D are living in an equal time arrangement between the mother and Ms F. There is no evidence that those arrangements are not working well for the children, and they are operating with significant cooperation and mutual respect between the mother and Ms F.
After the mother sadly miscarried with a child in 2019, X was conceived within the relationship of the mother and the father and was born in 2021. X experienced a difficult post-natal period. It seems, for example, that for the first 11 months of her life she required medical equipment. The mother talks of, and I accept, over 40 appointments with specialists in or about the first 12 months of X’s life were required.
It is not in dispute that the parties separated after an event that took place which I do not need to make any significant findings on, initially in early 2021. However, as the parties were both living in Queensland at that time, the mother says, and I accept, the father returned to the home and continued to live in some form in the home until a final separation which is associated with a significant event of family violence to which I am satisfied the father was the perpetrator, in mid-2021. The fact that the parties had resumed cohabitation before that final separation is surprising in some ways, considering the final domestic violence order/protection order made in the mother’s favour in early 2021. The father was, at or about the time of final separation, charged with a breach of the early 2021 family violence order. He, in mid-2022, pleaded guilty to a breach of the order, and in respect of that incident was fined and a conviction was recorded. As appears to be consistent with the mother’s adult behaviour, she quickly entered into a new relationship with a Mr E within three months of her final separation from the father. That relationship formally ended in early 2022 in circumstances which I will deal with shortly.
Importantly, some reasonable level of communication between the father (who had returned to Victoria in mid-2021) and the mother existed. The mother says he effectively absconded to evade the police’s intention to charge him with the breach of the domestic violence order, but the parties negotiated, signed and sought orders be made by consent in respect to the parenting of X, and those Orders were made on 9 November 2021 by a Deputy Registrar in the following form.
Parental Responsibility
1.Except as otherwise stated, the Mother shall have sole parental responsibility for major long-term issues of the child [X] born […] 2021 (“the child”) including:
a. The child’s education;
b. The child’s religious and cultural upbringing;
c. The child’s health.
2.The mother will, in the exercise of her sole parental responsibility:
a.keep the Father informed in relation to all medical, educational and developmental decisions made; and
b.where possible, consider the Father’s views when making decisions relating to major long-term issues.
3.The child’s surname is to remain as ‘[Aster]’ and both parents will ensure the child is known by this surname only.
Child’s living arrangements
4.The child shall live with the Mother.
Time and Communication
5.The child will spend time with the Father as follows:
a.For a period ofup to 4 consecutive days with such time occurring at a frequency no less than twice per calendar year. Overnight care remains with the mother;
b.The Father is to provide the Mother with 6 weeks' notice of the time he intends to spend with the child;
c.Upon the child reaching school age, the time spent shall occur only on days that are not gazetted school days;
d.All travel costs of the Mother, Father and child for travel pursuant to these orders will be paid for by the Father;
e.A copy of return airfare tickets (where relevant) and an itinerary will be provided by the Father to the Mother upon commencement of the child's time with the Father.
6.The Mother will facilitate the child having telephone communication with the Father no less than once per week for up to one hour and:
a.Such time will be guided by the routine and age of the child at the relevant time;
b.The Mother will advise the Father of the appropriate time for any telephone calls;
c.The Father will send a message to the Mother prior to telephoning the child to ensure that it is an appropriate time to telephone the child;
d.If the child is not available to communicate via telephone with the Father for any reason at the time the child is scheduled to communicate with the Father, the Mother will, within 24 hours, advise the Father of an alternative time to telephone the child with such alternate communication to occur within 7 days.
7.The parties will keep one another informed of any change in their telephone number within 48 hours of that change occurring.
8.The parties will keep one another informed of any change in their address within 14 days of that change occurring.
Despite the Order, and in my view perhaps mostly associated with the affects of Covid-19; the restrictions on travel in and out of Victoria; and the costs of travel and the distance to be travelled, there was limited time spent between the child and the father after the final separation in mid-2021, save for two visits at least in early-January 2022 of short duration.
X’s life was significantly affected by events which occurred in early 2022. It is not necessary in these Reasons, despite the significant amount of evidence that has been offered to the Court and is not challenged by the mother, to detail or make extensive findings about specific actions of Mr E. However, the mother accepts, and on the evidence, I am prepared to accept at this stage, that Mr E acted inappropriately towards X in early 2022. She was one year old at the time and had been left in the care of Mr E when the mother was at work. The mother says, and I accept, that Mr E contacted her saying that the child was bleeding from the vaginal area and that he had accidentally scratched her whilst attending to her toiletry needs.
The evidence makes clear that investigations by both the police and the Department of Child Safety, Seniors and Disability Services (“the Department”) ensued quickly. There is no suggestion in my view on the evidence that the mother sought to cover up the injury to the child. There is some suggestion that it took some time for the mother to accept, as she claims to now accept unequivocally, that the child was hurt by the actions of Mr E. In particular, the affidavit of the Department child officer, Ms G, filed on 21 June 2022, and relied upon by the Independent Children's Lawyer, sets out a detailed history of the events that began relevantly with a concern report about the vaginal bleeding to X in early 2022. Ms G was not required for cross-examination, and I accept her evidence of the history. In particular, I have read and accept the report by Dr H dated 1 April 2022. Dr H is a forensic paediatrician with the Child Protection and Forensic Medical Service at J Hospital. Dr H’s forensic conclusion was inter alia that:
1.The injuries sustained by the subject child are the result of acute severe blunt force penetrating trauma to external genitalia. There has been no adequate explanation provided for these injuries. The concern that these injuries are inflicted is SUSTAINED.
2.The injuries may be a result of physical assault occurring during a nappy change or in the context of an acute sexual assault.
3.Vaginal penetration is legally defined as through the labia majora. This includes penetration of the vulva (external female genitals) and vagina to any extent and includes penetration with an object or digital penetration
(As per the original)
The recommendation of Dr H in the circumstances was “that a thorough Child Safety and Police investigation be undertaken to further understand the possible cause of these injuries and to ensure the protective needs of the child are met”.
It seems that the Department, concerned about the welfare of the child, took steps to obtain a temporary assessment order in early 2022. The affidavit of Ms G confirms, as the mother informed the Court, that she separated from Mr E less than two weeks later. I have read other aspects of the investigations by the Department, but they are not, in circumstances where neither party is asking that I now make an assessment of risk or make a finding of risk to X in the care of either party necessary to further examine. I do note, however, that during the period of the investigation by the Department, prior to the Orders of the Court being made, that the mother’s mental health concerns were raised at least by some of her comments to the Department: the derogatory and demeaning way in which the mother was reported as speaking about the father; concerns observed about the mother’s attachment with the child by the Queensland Department of Health at the hospital in 2022; and the threats made by the mother to Department officers as referred to at paragraph 69 of Ms G’s affidavit.
Ms G’s affidavit attached a copy of a letter said to be a clinical assessment of the mother by Ms K (Psychologist) dated 5 June 2022 (annexure DCYJMA-19) which after a mental health status examination and a period of preceding consultations, Ms K observed as follows:
[Ms Neeley] presents for clinical support and treatment to myself when she experiences heightened anxiety responses to acute stress response to situational/personal stressors. There is no evidence of mental health disorder.
[Ms Neeley] is aware that she has a trace of [mental health] disorder in that she can have difficulty managing affect instability when in acute stress situations. [Ms Neeley] denies nil suicidal/self-harming behaviour (with exception of 1 occasion), nil feelings of emptiness, nil impulsivity that results in self-damaging behaviour, nil paranoid ideation nor dissociative symptoms and there has been no evidence of same on contact. She is also capable of maintaining self-worth and self-image.
(As per original)
Ms K identified that the treatment should include:
…clinical support and monitoring of mental state, and inclusion of DBT/CBT principals such as affect awareness and regulation for emotions, boundary setting and assertiveness communication for relationships, problem solving and goal setting, and cognitive disputing/evidence disputing.
(As per original)
The affidavit of Ms G also attached an assessment by the father’s psychologist, Ms L (see annexure DCYJMA-20). That report, dated 9 June 2022, certified that the father:
…is a patient of mine at [M Psychology]. I commenced working with [Mr Aster] in April 2022. [Mr Aster] has attended therapy on an approximate monthly basis for the last three months. We have worked on managing anxiety and depression.
(As per original)
and after discussing the nature of treatment, Ms L opined that the father:
…demonstrated commitment and interest in therapy, expressing a great understanding of his symptoms.
[Mr Aster] has indicated he finds the therapy beneficial and wants to continue working to develop a better relationship with his mental health.
(As per original)
At the trial, neither Ms K or Ms L were presented for cross-examination.
As a result of the Department’s concerns, the father, having been contacted by the Department, as the biological father identified on the birth certificate, initiated proceedings in the Court on 19 May 2022. He sought that the child live with him. Two supervised visits with the child occurred 23 and 27 May, supervised by an officer from the Department. This meant X had spent only four short periods with the father in twelve months.
When the matter first came before a Senior Judicial Registrar on 1 June 2022, the Senior Judicial Registrar made Orders that the child live with the father, but the father was to remain in Region N, and that the mother’s time with the child was to be supervised. By 17 June 2022, the mother says she accepts that Mr E had sexually abused X. I note at this point that there is no evidence that Mr E has actually been charged with any offence relating to X. All parties accept, however, that it is in the interests of the child that Mr E have no contact at all with the child.
The matter next came before the Senior Judicial Registrar on 23 June 2022, and in a Judgment that was reserved but was delivered on 1 July 2022, the Senior Judicial Registrar ordered that X live with the father and that the father be permitted to relocate from Region N to his home in City B on an interim basis. Orders for the child to spend time with the mother supervised were made at that time.
The matter was transferred to Division 1. The Independent Children’s Lawyer retained in the matter procured a single expert psychiatric report by Dr P in respect of the mother. The interviews took place on 18 October 2022, and the report of 23 November 2022 is before the Court. Neither party required Dr P for cross-examination. The report speaks for itself. However, for the purposes of these Reasons, and having identified that there were a number of very important medical and psychiatric issues which had been identified from his assessment of the mother with respect to the notes before the Court (many suffered from a childhood described by Dr P as shaped by “horrific adversity, in her child adolescent development in her family of origin” concerning child neglect and abuse), Dr P came to the conclusion and opined that the mother needed ongoing treatment for a depressive illness which would incorporate “a biopsychosocial model of management with counselling/psychotherapy and mood monitoring.”
He opined that the mother’s prognosis:
…is improved, but uncertain.
This is because [Ms Neeley’s] self-awareness about the functional issues concerning her personal relationships and their importance with respect to the potential for such issues to impact on parenting and on her mental health, needs to continue to improve.
(As per original)
He noted however that the mother “…has embraced the need for psychotropic medication and psychological therapy (with three therapists) since 2012, and especially note that she has not been hospitalised for mental health issues since 2012”.
It became apparent towards the end of the trial that Dr P had not, for reasons not adequately explained to the Court, been provided with a report procured by the Department from a psychiatrist, Dr Q (see Exhibit 5). I also found it curious that the Department continued to brief Dr Q to provide a report about the mother in circumstances where at the time of his briefing (August 2022) the child was no longer in Queensland, and further, that the Federal Circuit Court and Family Court of Australia had made Orders that the child live with the father in Victoria.
I speculate that, at least at some level, the investigation related to the continued parental functioning of the mother, who was a coparent of the children, C and D. Dr Q was not the subject of cross-examination by either party. Dr Q, who is a forensic and clinical Psychologist, identified (at paragraph 92) that:
[Ms Neeley] presents with a complex array of mental health difficulties. She presents with [disordered personality] traits reflecting vulnerability for disassociated symptoms and emotional dysregulation. Motor restlessness and impulsivity is eminent with heightened potential to react without consideration of the consequences. This reflects potential to make utterances without anticipating outcomes. [Ms Neeley] has previously experienced a major depressive episode, precipitating a hospital admission, though no. persistent depressive mood for approximately 11 years. Most prominent for [Ms Neeley] are PTSD symptoms reflecting heightened reaction to trauma cues, intrusive recollection of previous trauma, a negative outlook and disassociated reactions.
(As per original)
Dr Q continued at paragraph 93 by opining:
[Ms Neeley’s] history of mental health difficulties increase the potential for the children to be exposed to emotionally disturbing actions and may attenuate the mother’s capacity to protect the children from harm. She has previously behaved in an emotionally dysregulated manner during disassociation. This was evident during [X’s] forensic examination whereby [Ms Neeley] disassociated from the situation perceived by medical professionals as disinterested, and in past aggressive reactions whereby [Ms Neeley] felt she was reliving past trauma.
(As per original)
The recommendations of Dr Q at the time of his report, which was 28 October 2022, were that the mother was to continue to receive mental health support. He observed that the mother was currently engaged with and responding well to intervention from her counsellor. He recommended that she continue to attend those appointments. In that regard, the mother provided a single page letter from a counsellor – whose qualifications are uncertain – Ms R, dated 22 August 2023.
The mother indicated that she has had 20 sessions with Ms R. She says she has found Ms R a much more effective therapist than any of the psychologists she has had in the past, making such comments when she was cross-examined about the qualifications of Ms R and whether or not Ms R was an appropriately skilled person to support her. Ms R says in the statement, again, not tested in cross-examination, that:
[Ms Neeley] has steadily worked through a lot of her past traumas and is continuing to do so. She has come a long way in developing good skills around regulating her emotions around triggers. I recently had the pleasure to meet her new partner, [Mr S], who has been a steadying influence on [Ms Neeley]. I observed a healthy relationship built on trust, which is a huge step for [Ms Neeley], after abusive partners in the past.
(As per original)
The mother’s trial affidavit filed 24 August 2023, in which the report from Ms R was attached, referred to the existence of the mother’s partner, Mr S. The mother’s trial affidavit, at paragraphs 12 to paragraph 188, gave details of her new relationship with Mr S. Whether or not the mother properly characterised her relationship with Mr S when she was interviewed by the family report writer, Ms T, on 27 January 2023, was a matter of controversy.
I discuss further in these reasons the evidence of Ms T. However, I am satisfied from hearing Ms T’s evidence, and also the mother, that the mother was less than candid about the existence and importance of the relationship with Mr S in her interviews with Ms T. The full reasons for her lack of candour are not clear. The mother says her focus was not on her new relationship (which began as a friends-with-benefits sort of relationship created through an electronic couples application) that merely progressed to a more substantial relationship by the time of the trial.
Thankfully however, having observed at the commencement of the trial the lack of any evidence from Mr S, an affidavit that had been sworn by Mr S on or about 10 October 2023 and produced to the parties by the mother through her Counsel, Mr Trost, was relied upon. The father’s Counsel, Mr Casey, and the Independent Children's Lawyer’s Counsel, Ms Chekirova, after a period of time getting instructions, confirmed they had no objection to leave being granted to the mother to file and rely upon the affidavit of Mr S. He was, as a result, cross‑examined, and I make a comment later in these Reasons as to my impressions of Mr S.
I note that Ms T was concerned in her evidence that she had had no opportunity to make any assessment as a family report writer of Mr S or of the relationship he and the mother now claim they have.
When this matter first came to my attention in July 2023, in circumstances where this young child had been placed in the care of the father, it clearly was a case that required urgent consideration, and the matter was listed for trial to commence on 16 October 2023.
Prior to the trial, by consent, on 4 September 2023, the Court ordered that X’s time with the mother in Queensland, which was occurring on a weekend, proceed unsupervised. At the time of the trial, three such visits without complications had occurred. At least on one of those visits, at about the time of changeover, the father, who travelled at his cost in support of the Orders made by the Court with the child, had the opportunity to meet Mr S.
At this point, I should indicate that the Court appreciated the approach adopted by Counsel earlier identified representing the parties. Importantly, at the commencement of the hearing, Mr Casey, on behalf of the father, indicated that he did not rely upon paragraphs 151 to 226 in the father’s affidavit, which were effectively a response to the mother’s affidavit filed 10 June 2022. As a result of my trial directions, the mother did not rely on that affidavit, nor did she incorporate concerns she had at the time outlined in that earlier affidavit into her trial affidavit.
For context, the mother said that the affidavit filed 10 June 2022 was prepared without the benefit of the significant medical evidence that helped her to form the concluded view that Mr E had, in her view, sexually abused the child. Unfortunately, when the Independent Children's Lawyer provided further material to the family report writer, Ms T, the trial affidavit of the father, which included the comments at paragraphs 151 to 226, were not excluded and had clearly been read by the report writer, as is obvious from her cross-examination.
COMPETING PROPOSALS
Exhibit 6 formed the Independent Children's Lawyer’s final proposed order. That order is marked as Appendix One to these reasons. What is apparent and clear from the orders finally proposed is that the Independent Children's Lawyer’s position had significantly changed from that articulated in the outline of case document filed 10 October 2023. The Independent Children’s Lawyer’s final position is now that X should live with the father, whereas the final orders sought in the outline of case document provided for the child to live with the mother.
That change of position by the Independent Children's Lawyer was a matter of concern to Mr Trost, Counsel for the mother. It arose, as I will explain, from the new evidence, at least given to the family report writer, Ms T. I do not regard the mother as being taken by surprise by that proposal being open to the Court, because it was entirely the position at all times adopted by the father. It would have been a surprise to the mother that the Independent Children’s Lawyer, having adopted the mother’s position that the child live with her, changed his position to one where the child was to live with the father.
As indicated earlier in these Reasons, the mother and the father both sought that the child live with them. Both parties supported regular time between City B and Queensland, and acknowledging the practical effect, costs and difficulties for a child of this age in navigating the distance. In that regard, and as was made clear to all the parties during the course of trial and particularly in the final submissions, the competing proposals of the parties do not, in my view, on any test, represent the best arrangement for the child.
For a child of this age, the optimal arrangement would be for the parents to live closer to each other so that regular unsupervised and effective interaction between the child and the households of the father and the mother could occur often, with less expense and where I would find, as Ms T acknowledged, in the child’s best interests would be met. Both parties’ alternate proposals identified the extent to which they would support a more inclusive arrangement if the parties lived closer together.
However, as is often the case, the Court was not presented with the optimal option, and was required, and as these Reasons explore, to examine the “least worse option” in many ways.
The father and mother have no evidentiary obligation or onus to explain why they do not want to move to where the other parent now lives, but that does not mean that the reasons why they choose to live where they do are irrelevant. In my view, this was not a relocation case, but a contested residence case.
The Applicant father, as I say, did live in Queensland for a period, during the time of the relationship with the mother, when the child was conceived and first born but returned to his home state and community around City B in June 2022. He says, and I accept that he has strong family networks supporting him in that region, including parents, siblings and a community of friends, reflective of him having lived in that area for many years.
He has been employed in a managerial level by a large company for over two years. He is able to work, at times, from home, but when required to work in Melbourne can do so, travelling from home to his workplace as required during the week. He says, and I accept, that he would feel, but for his relationship with the child, somewhat isolated without the benefit of the current employment which he enjoys and which offers support to him, if he moved to Queensland.
Whilst criticised for not investigating the opportunity to move to Queensland, I do not find that criticism is warranted. He is entitled to live where he wishes. Final submissions for Mr Trost, on behalf of the mother, suggested that I should find there is a prospect that the father would move to Queensland if the child was living with the mother. I do not make a finding. Although, I do not ignore that, having seen the father in the witness box, there is every prospect that he would be significantly distressed if the child was to live in Brisbane with the mother, and would, in those circumstances, perhaps contemplate whether he could move to Queensland. There are many factors which he would need to consider, which I have already identified.
The mother’s evidence that she cannot live in Victoria is shaped by the fact that, it seems, she has never done so for any significant period of time; she has a new, yet developing, and important relationship with Mr S, who has had long-term employment in Queensland; most importantly, perhaps, she is a co-parent of the two children, C and D, and if she moved to Victoria, her relationship with those children would be significantly changed because of limitations in time that she could spend with the children.
Furthermore, I find that the mother works as an allied health worker and has done so for a short period, but nonetheless enjoys that work. The work is important to her both for her confidence, self-esteem and financial benefit, and there is no guarantee she could find employment of a similar nature in Victoria, where she has no other support. Because of these facts and the Court being satisfied this is not a case where the Court could, or should, make any coercive orders requiring a party to move to the other parent’s preferred area of residence (see Sampson & Hartnett (No 10) (2007) 38 Fam LR 315), the case is characterised as a contested residence case with two stark proposals.
FAMILY REPORT EVIDENCE
The family report writer, Ms T, an experienced social worker, interviewed the father and observed the father with the child on 1 November 2023, and subsequently interviewed the mother and observed her with the child on 27 January 2023:
(a)resulting in a report dated 23 February 2023 which is before me in evidence. No doubt, the observations made by Ms T;
(b)the parties’ experience about the improved communication and changes in the parties’ relationship with the child; and
(c)the events of early 2022 being put into a proper context,
resulted in neither party contending for any assessment by this Court that the father or mother, at this time, are not able to meet adequately the physical and emotional needs of X.
Ms T ultimately raised some concerns in her oral evidence about the mother’s capacity, which I will deal with shortly, but in her report, she did not. Such was her view at the time of the Report that, as I have already indicated, her recommendations, concluded with the opinion that the parties share parental responsibility and that X transitions to live in the primary care of Ms Neeley with immediate effect.
It was clear from the report, at paragraphs 165 to 168, that Ms T identified the mother as the preferred primary carer, having identified at paragraph 161 that the crux of the issue was where the child should primarily reside, noting, from a developmental perspective, her previous and current attachments with the respective parents and her extended family stating “further there is a requirement to consider the ability of the parent with whom the child resides to be able to proactively support and promote a healthy relationship with the non-resident parent.”
The Independent Children’s Lawyer did provide further information to Ms T, and further documents were identified in the Independent Children’s Lawyer’s letter to the report writer dated 17 October 2023 (Exhibit 4). The most important document then produced to the report writer, in my view, was the report of Dr Q. Again, I do not know why, it apparently being available to the Independent Children’s Lawyer, if thought so relevant, it was not produced to Ms T in her initial instructions. I have already observed that I do not understand why, if available, the report from Dr Q was not have been provided to Dr P even after he had produced his own report, if for no other reason so as to obtain an addendum.
During the course of cross-examination of Ms T I made the observation that it was not for Ms T to seek to distinguish the competing opinions of the two psychiatrists; one a single expert; one appointed by the department, who procured an opinion based on different material and different instructions. It was very unhelpful for Ms T to have been put in that position. As can be observed, however, I am not satisfied ultimately there is a significant difference in the opinions expressed by Dr P and Dr Q. This is important because Ms T, in cross-examination, when asked quite properly by Mr Trost of counsel for the mother as to why she had changed her position, identified the report of Dr Q as a significant issue, namely the extent to which the pervasiveness of the mother’s mental health was higher, and therefore the potential risk higher than she had previously assessed it to be from the report of Dr P.
Under cross-examination Ms T opined that she is not saying that the mother is a risk at this stage, but that there is a potential for her dysregulation more than she had assessed earlier. I was somewhat confused by the evidence of Ms T. It is of course clear that the Court is not bound to accept the opinions or evidence of a report writer. Much of the report contains opinions with which neither party cavilled. In the final analysis, I took the view that Ms T had changed her recommendation because on reflection, she regarded the father as being in a better position to offer continued stability to the child – having navigated the creation of a strong bond with the child since June 2022 – and that to further disrupt the child’s attachment, routine, and stability by returning to the care of the mother, even where that would of course involve a more intact capacity to interact with her siblings, was less desirable than to X continuing to live with the father.
As would be expected in final submissions that revised opinions by Ms T – somewhat delivered “on the run” – were challenged by Counsel for the mother. Ms T’s recommendation in its final form was adopted by the Independent Children’s Lawyer and by Counsel for the father, not surprisingly.
I now propose to deal with the competing residence applications within the matrix of the relevant primary and additional considerations set out in section 60CC(2) and (3) of the Act. Before doing so, it is agreed that the parties will have equal shared parental responsibility which would require the Court to consider in those circumstances an equal time arrangement even where the parties’ primary proposals are that the parents live in different states, as already indicated.
Although, I would be satisfied that a substantial significant time arrangement, and even perhaps even time arrangement would be in the best interests of the child, it is clearly not reasonably practicable where the parties have both identified an inability to move from their current location.
PRIMARY CONSIDERATIONS
Both parties by their proposals and in their evidence make it clear that they accept that the child will benefit from having a meaningful relationship with the other parent. I agree. Section 60CC(2)(b) requires the Court to consider the need to protect the child from physical or psychological harm and from being subjected to, exposed to abuse, neglect or family violence. I do not ignore the events that occurred at final separation in mid-2021 which resulted in the father’s conviction on his own plea of the assault upon the mother.
I do not ignore some of the concerns arising from the mother’s erratic behaviour, and her ability to form inappropriate relationships for short periods of time and then quickly thereafter, forming a new relationship. However, in final analysis, counsel for all the parties acknowledge that the evidence, although matters to be taken into account in relation to violence and the mother’s mental health, does not reach a level on the evidence at this stage as to establish an unacceptable risk to the child, and no finding is made in that regard.
ADDITIONAL CONSIDERATIONS
I propose to deal with the additional considerations relying upon earlier findings made in these reasons without repeating them, and doing a narrative form. The child is too young for any wishes she expresses, even if available to the Court, to be given any weight. I am satisfied that now, as opposed to June 2022, when the father accepted, it seems to me happily, the role as primary carer, that this child now has a secure and important relationship with both her mother and father and with other extended family, and particularly her siblings C and D.
Ms T’s evidence did not distinguish between the strength of the relationship the child has with each of the parents, and the evidence itself, notwithstanding the history of care, would not allow me to do so. Ms T did not see the need, sensibly in my view, in the end analysis to observe C and D with X, it not being contested that the children have a good relationship as a sibship group. At least since the orders made in June 2022, the parties have complied with the orders of the Court, and it seems to me the father has demonstrated both financially and psychologically a willingness to continue to support the child’s relationship with the mother and the mother’s unit, at least reflected by the consent order for unsupervised time made in September 2023, as well as the number of occasions he has travelled to Queensland to facilitate the child spending time with the mother.
I deal in the final analysis with section 60CC(3)(d) of the Act, namely the likely effect of any changes to the child’s circumstances, which is at the core of my decision, and the difficult issue that is confronted in this case. There are practical difficulties in relation to the child spending time with the other parent that she does not live with because of distance. Whilst both parties have a reasonable income, they have expenses, and they are not on any assessment so wealthy as to undertake the frequency of travel which would be optimal for this child. I again deal with this matter shortly, however note that at no time did any party give me any evidence in relation to the actual costs of travel between Melbourne and Brisbane.
I am satisfied that the father has now demonstrated a capacity to meet the needs for the child, including emotional and intellectual needs. He was not effectively challenged in that regard by either the Independent Children’s Lawyer or the mother’s Counsel. That he has done so from a difficult starting position – namely with limited time with his daughter – is a great credit to him. I think I am entitled to infer that at least initially, the adjustment for this young girl living with a father with whom she did not have a significant relationship could have created some ongoing problems. He has dealt with them. There is nothing to suggest on the evidence that she is suffering in his care.
Although the mother’s care of this child during the period she was with Mr E could only be regarded as problematic, there are no complaints at all about her ongoing care of C and D in this regard. Although Ms F at one stage was a party to these proceedings, she gave no evidence of any concerns about the way C and D are being managed in the mother’s care when they were with her. I am happy to find that the mother is, and has the capacity, to meet the intellectual and emotional needs of X.
No real criticism can be extended against either party as to their attitude to the responsibilities of parenthood. It would be too simplistic to merely criticise the mother for the way in which she enters and withdraws from relationships, including with the father in this case. In that regard, I regard the way in which Mr S and the mother cautiously moved from what seems to be a purely physical or sexual relationship to a more meaningful and deep relationship, as entirely appropriate. It seems that at least the decision to move in, and as Mr S described it, to “go for it”, arose from a happy period of holidaying in New Zealand, Mr S’s country of origin, where he introduced the mother to his parents and extended family in that country.
Thereafter the parties were released from their personal rental agreements so as to jointly enter into an arrangement to occupy a home together in which C and D spent approximately equal time, and X has now spent three occasions unsupervised. However, it has to be accepted, and in view of the mother’s past history, a matter which is at least an area of potential concern that the relationship with Mr S is quite new and untested. I say untested because, as I put to Mr S in cross-examination, being in a household that might involve three children of varying ages and different parenting is not for the fainthearted.
Whilst Mr S has some experience around young children he has not been in a parental role before. He works shift work from 2.00 am to midday, four days a week. His need to adjust his sleeping habits in a busy household including during school holidays will not be without challenge. However, Mr S gave me every confidence that he wishes to genuinely make this new relationship work, and there was nothing that was suggested on the evidence that he would not do his best to make that occur.
Family violence issues between the parents, which were the subject of earlier observations by the Court, have not, it seems, been repeated since the parties separated. In fact, both parties expressed, with some degree of joy, the improved communication and level of respect demonstrated in their communication. They seem to be able to compromise on occasions and negotiate some flexibility. I do not ignore the family violence order in existence.
The Court is required by section 60CC(3)(l) to consider whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the child. With a child so young, I cannot be satisfied of course that circumstances in the near future may not cause the parties to, or one of them, consider whether further different orders to those being pronounced with these reasons are still in the child’s best interests. However, understanding that she will be commencing prep in 2026, the importance of stability for the next two years is a very significant factor for the Court’s consideration.
DISCUSSION
Having observed how it would be impracticable for an equal time or any substantial and significant time arrangement as defined by the Act to be put into place, notwithstanding the parties’ agreement that equal shared responsibility should be ordered, I am persuaded on all the evidence that it is in the best interests of the child at this stage that she continue to reside with the father. There are, in my view, some uncertainties associated with the mother’s personality, her past behaviour, the difficulties that she has encountered but overcome, and an element of risk of continued stability in her home that does not currently on the evidence exist in the father’s home.
I also believe that the father, in terms of the orders I propose to make, is more able to financially and properly maintain the level of travel this child needs to endure to maintain her relationship with the parents. The mother’s financial position very much depends on the support at this stage of her new partner Mr S, and she has of course the added responsibilities of the costs associated with C and D. Her employment of itself is only of limited duration, but it is to her credit that she has secured that employment, enjoys it, and sees a future in it.
In making this decision, I do not underestimate what a difficult interim decision the Senior Judicial Registrar had to make in June. It was made in a quite different context. There was in some ways a leap of faith taken by the Court in placing the child in the care of the father, in view of the limited relationship opportunities he had had since separation. However, all the evidence shows, and his evidence in the witness box which I must say impressed me, reveals a mature person enjoying now having, as he has often wished to have, the responsibilities of parenthood.
I did not sense from anything in the evidence that he will seek to exclude the mother, C, or D from the life of X. He understands how important those relationships are to her.
I do not underestimate how distressing my decision will be to the mother and most likely to her children C and D. C has expressed his disappointment, bordering on anger, at times with the way in which his “little sister” was removed from his mother’s care and taken a long way away to Victoria. I understand those natural emotions that C, who is yet to reach eight years of age, expresses. It is to be hoped that the orders I pronounce today for the time to occur will go some way to enabling those children to maintain, as I believe they will, the relationship with X.
It is to be hoped that the decision I make does not cause the mother such emotional distress that some of the triggers that have caused erratic behaviour in the past are created. I draw some comfort from the fact that I understand Mr S is committed to their adult relationship and has already on one occasion supported the mother when she adopted the strategy of dealing with a traumatic event, he has, had the benefit of listening to some of the evidence, including final submissions. He will do everything he can to support the mother.
Whether the mother’s preferred therapist Ms R is or is not the appropriate person with the right skills is not a matter for the Court. The mother believes she is, gains some therapeutic support from her, and wishes to maintain that therapeutic relationship. I would not seek to disturb it.
It is likely that there will be many occasions over the life of this child where she will miss her mother and her siblings significantly. However, on balance, at this stage and on the evidence at this time, the orders that I make are in her best interests.
The form of orders which are made and appear at the commencement of these Reasons take into account a number of the factors that arose from financial submissions, including those of Mr Trost, who made submissions if the Court was minded, as it is, to order the child to remain living with the father in Victoria. Mr Trost could not have said more to advance the position of the mother’s case, and when he made those submissions I understood he was doing so on the alternate proposal without in any way conceding it was in the child’s best interests that X to live with the father in Victoria, rather than with the mother in Queensland.
The matters that arise from the form of order that require further brief discussion are as follows.
FORM OF ORDERS
The cost of travel looms as an ongoing significant consideration in this case. The parties’ statements of financial circumstances do not suggest either have unreasonable spending or significant available funds for travel.
In final submissions, Mr Trost for the mother said that travel costs should be shared as to one third by the mother and two thirds by the father. The Mother is, on the evidence, unlikely to travel to Victoria to spend time with the child and says, and I accept, travelling to City B with C and D would be beyond her financial capacity.
The orders proposed by the Independent Children’s Lawyer create a more extensive regime of time before X begins Prep in January 2026 with a reduction after January 2026 more to time over the school holidays. Taking advantage of the greater availability of X before she beings Prep is reasonable. However, it is not clear on the evidence of the mother how, if she spends one week a month or as she submits, one week every four weeks (so as to align with the week about arrangements for C and D), she will manage her work commitments during that week. As both C and D attend school, time during school holidays presents as the best opportunity for X to come to Queensland.
For each visit to Queensland, the costs of travel (including an accompanying adult) will involve the following fares:
(a)Child and adult – Melbourne to Brisbane;
(b)Adult returning to Melbourne;
(c)Adult to Melbourne to Brisbane; and
(d)Child and adult – Brisbane to Melbourne.
Without anticipating any accommodation costs in Brisbane for the accompanying adult (most likely the father), and using as a guide each fare costs say, $600 return, the costs of travel for each visit to Queensland and will include one child return fare and two adult return fates, perhaps in the region of $1800 to $2000. If that was to occur, as the Independent Children’s Lawyer proposes to January 2026, 12 times within a year the costs of travel will be significant.
Considering all these factors, I anticipate the mother’s capacity to contribute to air fares with this frequency will be under financial strain – even if only a third of the fares is paid by her.
The orders I propose will require the child to spend time with the mother in Queensland, up to eight visits a year – with three, one week visits to occur during school holidays at the end of terms one, two and three and with one visit to occur during the end of term four school holidays for a period of not less than two weeks.
I would order one visit to Queensland (until January 2026) during each school term as agreed for up to one week provided the mother is substantially present. There is limited benefit, for example, for the child to come to Queensland during a school term when C and D are at school and the mother is working. If the mother is able to make herself available, I accept “one on one” time between the mother and X would be of benefit to X.
When the child commences Prep in January 2026, I would adopt the Independent Children’s Lawyer’s proposals except, time in each school term will be one weekend each term, not one weekend per month, unless the parents otherwise agree.
I would order the parties share the costs of travel for X and any accompanying person equally. I accept that the mother would be entitled to seek a departure from the child support assessment if the costs of her exercising contact to the child impacts unfairly.
It was agreed that X, going forward, should be spending time with the mother that includes Christmas in 2023 and each odd year thereafter, with the child to be with the father for Christmas in 2024 and each even year thereafter. To allow this to work effectively, after the child commences Prep, the end of term four school holidays shall be shared equally, in two blocks – but on the basis the child will always be in the care of the father from the Wednesday before the start of each school year, so as to enable him to prepare the child for that new school year.
Otherwise, the ancillary orders proposed by the Independent Children’s Lawyer were not seriously challenged by either party and I accept them.
Whilst I take the view that the regime of time is not what any party effectively sought, I will allow the parties to make any further submissions as to the form of order before they are pronounced, and accordingly order:
(a)by 7 November 2023, the Independent Children’s Lawyer shall prepare and provide to the mother and father a minute of order consistent with these Reasons; and
(b)by 14 November 2023 (being seven (7) days after the Independent Children’s Lawyer’s minute of order is provided), each parent shall file and serve any further written submissions as to the form of order.
I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 31 October 2023
APPENDIX ONE
Parental Responsibility
(1)That the Mother and the Father have equal shared parental responsibility in respect of all decisions relating to the long-term issues for the child X born 2021 (‘the child’) including but not limited to:
(a)The child’s education;
(b)The child’s health;
(c)The child’s religious and cultural upbringing;
(d)The child's names; and
(e)Any changes to the child's living arrangements that make it significantly more difficult for the child to spend time with each parent.
(2)That notwithstanding the provisions of Order 1 hereof:
(a)The Mother shall be responsible for the daily care, welfare and development of the child when the child is spending time with her; and
(b)The Father shall be responsible for the daily care, welfare and development of the child when the child is spending time with him.
Live with
(3)That the children live with the Father.
Spend time with
Pending the child commencing Prep in January 2026(4)That the child shall spend time with the Mother as agreed between the parents in writing but failing such agreement:
(a)For a period of up to one (1) week per month in Queensland, such week preferably being when the child’s half-siblings are in the Mother’s care;
(b)For the purposes of changeover, the child shall be collected by the Mother at the commencement of the child’s time with the Mother at U Airport;
(c)The child shall be collected by the Father at the conclusion of the child’s time with the Mother at V Airport;
(d)All costs associated with such travelled shall be shared equally by the parents.
When the child commences Prep in January 2026
(5)That the child shall spend time with the Mother as agreed between the parents in writing but failing such agreement:
(a)For one (1) weekend per month from after school Friday to Sunday afternoon;
(b)For the first half of the Easter and September Queensland School Holidays in even numbered years and for the second half in odd numbered years;
(c)For four (4) consecutive weeks in the Queensland Christmas School Holidays to include Christmas Day in even numbered years;
(d)For the entirety of the June/July Queensland School Holidays;
(e)That school holiday time will commence after school on the last day of school term to 5:00 pm on the day that is calculated to be the halfway point of the school holidays;
(f)That the number of nights in each school holiday is to be used to calculate half of the school holidays;
(g)If there is an uneven number of nights on the school holiday period, then the Mother will retain the additional night;
(h)Until such time as the child is able to travel as an unaccompanied minor, the child shall be collected by the Mother at the commencement of the child’s time with the Mother at U Airport;
(i)The child shall be collected by the Father at the conclusion of the child’s time with the Mother at V Airport; and
(j)All costs associated with such travelled shall be shared equally by the parents.
Communicate with
(6)That the child shall communicate with the parent who the child is not currently spending time with (‘the non-residential parent’) as agreed between the parents in writing but failing such agreement as follows:
(a)Via Facetime/video call every Tuesday and Friday at 5:30 pm to 6:00 pm; and
(b)The non-residential parent is to initiate the video call to the residential parent’s mobile phone;
(c)The residential parent is to ensure that the child is available to receive such video call; and
(d)The residential parent shall afford the child privacy (s much as reasonably and practicably possible due to the child’s age) while the child is communicating with the non-residential parent.
Special Occasions
(7)That notwithstanding any other Order, the child shall spend time/communicate with the parents on special occasions as agreed between the parents in writing but failing such agreement as follows:
Child’s Birthday
(a)The child shall communicate with the non-residential parent via Facetime/video call at 5:30 pm to 6:00 pm.
Mother’s Birthday/Mother’s Day
(a)In the event that the child is spending time with the Father on the Mother’s Birthday and/or Mother’s Day, the child shall communicate with the Mother via Facetime/video call at 5:30 pm to 6:00 pm.
Father’s Birthday/Father’s Day
(a)In the event that the child is spending time with the Mother on the Father’s Birthday and/or Father’s Day, the child shall communicate with the Father via Facetime/video call at 5:30 pm to 6:00 pm.
Privacy
(8)During the time the children are with any parent, that parent shall:
(a)Respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b)Speak respectfully of the other parent;
(c)Not speak to the child in relation to any adult issues and/or parenting matters; and
(d)Not denigrate or insult the other parent in the presence of or hearing of the children and use their best endeavors to ensure that others do not denigrate or insult the other parent in the hearing of or presence of the child.
Restraints
(9)That the Father and the Mother are restrained and an injunction issue restraining them from:
(a)bringing the child into contact with Mr E;
(b)consuming illicit drugs whilst the child is in their care;
(c)consuming alcohol to excess whilst the child is in their care; and
(d)using any method of physical discipline, or permitting any other person to use any method of physical discipline, on the child.
Other issues
(10)That the parents will:
(a)Keep the other parent informed at all times of their email address, landline contact telephone number and mobile contact telephone number, and advise of any changes thereto within forty-eight (48) hours of the change; and
(b)Keep the other parent informed of the names and addresses of any treating medical or other health practitioners who treat the child and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the child.
(11)That the parents do all things necessary to ensure that the other parent is listed as an emergency contact with all allied health care providers, medical practitioners, care providers, schools or extra-curricular activities that the children may attend from time to time.
(12)That this paragraph shall operate as any authority necessary for any allied health care provider including but not limited to medical practitioners, specialists or hospital treating the children and any care and/or educational facility which the children may attend upon from time to time to provide to the other parent such information as they may request regarding the children’s health, welfare and development at their own expense.
(13)That both parents notify the other immediately, and if immediately is not possible, within four (4) hours, upon the children suffering any serious injury, illness, accident or emergency whilst in their care and advise the other parent of the treatment provided and the contact details for the relevant medical service providers as soon as reasonably possible.
(14)That in the event that either child requires medication, such medication and relevant dispensation instructions shall accompany the child at changeovers.
(15)That each parent be at liberty to attend at all school functions and events that are normally attended by parents.
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