BALSAM & LACKNER (No.2)

[2021] FCCA 585

FEDERAL CIRCUIT COURT OF AUSTRALIA

BALSAM & LACKNER (No.2) [2021] FCCA 585

Catchwords:
FAMILY LAW – Parenting Dispute – mother seeking to relocate to Queensland – mother buying property in Queensland after unsatisfactory (to her) conclusion of bitter property proceeding – father’s opposition to relocation springing from sense of entitlement – no denying close relationship between father and son even though mother clearly primary carer – very significant risk to child’s relationship with the father if relocation permitted – not in child’s best interests to live in Queensland.  

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 61DA

Cases cited:

Balsam & Lackner [2020] FCCA 1115

Goode v Goode [2006] FamCA 1346

McCall & Clark [2009] FLC 405

Hepburn & Noble [2010] FamCAFC 111

Rice v Asplund (1979) FLC 90-725

Starr & Duggan [2009] FamCAFC 115

Applicant: MS BALSAM

Respondent: MR LACKNER

File Number: DGC 2783 of 2019

Judgment of: Judge Burchardt

Hearing dates: 25 & 28 February 2021

Date of Last Submission: 26 February 2021

Delivered at: Dandenong

Delivered on: 30 March 2021

REPRESENTATION

Counsel for the Applicant: Ms Byrnes

Solicitors for the Applicant: Borchard And Moore

Counsel for the Respondent: Mr Marchetti

Solicitors for the Respondent: T J Mulvany & Co

ORDERS

1. The extant parenting orders made on 16 April 2020 remain in full force and effect.

2. The mother is to give the father one month’s notice if she seeks to relocate more than 50 kilometres from her present residence.

3. Otherwise all extant applications are dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Balsam & Lackner (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

DGC 2783 of 2019

MS BALSAM

Applicant

And

MR LACKNER

Respondent

REASONS FOR JUDGMENT

Introductory

1. By an application filed 4 November 2020 the applicant mother seeks to relocate to Queensland together with her child X born in 2011.  She has bought a property up there.  The respondent father opposes relocation and seeks an order (not substantially pressed so far as I can recall in submissions) that the mother not be permitted to relocate any greater distance than 50 kilometres from where she presently resides.

2. The mother says it is imperative for her own health and by inference the best interests of X that she be permitted to move.  She will be greatly distressed if the relocation is not permitted for reasons to which I shall return.  The father by way of contrast says that X’s right to a meaningful relationship with him will be significantly impacted if not destroyed if the relocation is permitted. 

3. Although it puts the matter shortly, for the reasons that follow, and by no means without sympathy for the mother, it is clear that X’s best interests will be met by not permitting the relocation to Queensland. 

The Relevant History of the Matter

1. This proceeding does not emerge from nowhere.  As long ago as 28 August 2019 the mother filed an application seeking adjustment to property interests.  The husband’s response filed 9 October 2019 added the question of parenting.  Although parenting orders were made by consent on 16 April 2020 some of what the parties had to say in their affidavits leading up to those orders remains relevant. 

2. It should be noted, as I have had regard to the entirety of the parties’ affidavit material, that in her affidavit in support of her amended application filed 31 September 2019 the mother went into some detail as to alleged insults thrown at her from time to time by the father during the relationship including extremely insulting epithets to the effect that she was a prostitute, bar girl or the like. 

3. The father’s affidavit filed 9 April 2020 stated in respect to the use of Ritalin, at paragraph 75: 

   X was, at some stage, prescribed Ritalin.  The mother did not advise me as such.  X no longer takes this medication.

4. In her affidavit filed on 13 April 2020 the wife deposed at paragraph 30 of her intention to continue living in the Suburb U area although this was said to be dependent upon what she could afford depending on the outcome of the property proceeding. 

5. Dr O filed a family report by her affidavit filed 14 April 2020.  She noted at page 4 the possessory quality to the father’s notion of the relationship with X whom he described as my son.  Dr O noted at page 13: 

   Mr Lackner claimed that despite the present alleged animosity from Ms Balsam, a shared week about arrangement would work well for X.  Unfortunately, Mr Lackner went on to criticise Ms Balsam’s parenting of X, claiming that he much prefers X to be independent and he perceives Ms Balsam as promoting dependence with their son.  He impressed that from his perspective that a shared arrangement for X would involve vastly different parenting styles with each parent rather than cooperation and an agreed approach. 

6. At page 15 Dr O noted X’s anxiety when being separated from his mother and at page 16 she noted that X’s support worker Ms LL was “capable and skilful in her management of him”. 

7. At page 18 Dr O noted: 

   Psychological assessment of Mr Lackner indicated that he feels highly competitive with Ms Balsam about X’s care and takes a critical approach of her.  Many of his attitudes appear to come from an entitled position.  He impresses as having been raised in an indulgent household where being encouraged to be self-reflective or take a critical approach to his own behaviour was not emphasised.  Mr Lackner appears to have a poor understanding of the psychological makeup of others and his hypotheses about Ms Balsam’s behaviour and background appear to stem from an unsophisticated style of reasoning. 

8. Dr O went on to say on the same page that observation of family members suggested X loves both his parents and appears to perceive each of them as interested and attentive to him although he found transition between his parents very unsettling. 

9. At page 19 Dr O observed: 

   There was nothing in my assessment to suggest that Ms Balsam has not appropriately supported X’s development, learning and daily living skills.  It is also common for parents to have different perceptions as to how rapidly children’s independence should be progressed, and for children with ASD these perceptions can vary widely. 

10. She went on the same page to say: 

    Mr Lackner may consider that he has taken a better approach to teaching X how to be independent, but it is my assessment that his criticisms of Ms Balsam and verbalised superiority are likely to be having a significant impact on X by exacerbating the discord between his parents, rather than having any validity. 

    It is my strong recommendation Mr Lackner undertake a parenting after separation program with the intention that he is provided education around all the negative effects of parental conflict and denigration of the other parent on children so he might appreciate how these effects are amplified for children who are particularly vulnerable, like X.  Ms Balsam may also benefit from participation at parenting after separation course so she may understand the effects of conflict on X. 

11. Against this background final parenting orders were made on 16 April 2020 by consent which provided equal shared parental responsibility, X to live with the mother, and to spend gradually increasing amounts of time with his father such that by 19 April 2021 X would be spending from Friday to Sunday in one week and from Tuesday to Wednesday in another week together with the father, and in addition the father to take X to his occupational therapy appointment on one Monday each month together with five consecutive nights in the Summer school holiday commencing 2021.  The orders noted that the father was at liberty to bring a further parenting application not before Easter 2022 without facing a Rice v Asplund (1979) FLC 90-725 (“Rice v Asplund”) objection. 

Agreed or Uncontroversial Matters

1. The mother was born in 1972 and the father was born in 1975.  They met in Country F and commenced cohabitation in 2008.  They underwent a form of marriage in Country F in 2009 and separated on 25 January 2019 under one roof with final separation on 19 August 2019 when the father was evicted following an intervention order. 

2. Their son X who was born in 2011 as earlier indicated was diagnosed with autism at around about two and a half years of age. 

3. The parties underwent a bitterly contested five-day trial in April 2020 following which I gave judgment on 15 May 2020.  The gravamen of my decision is at paragraph [213]:

   In the particular circumstances of this case, in my view, the just and equitable outcome is that the husband should retain the A Street, Town B property and his cars and there should be an equalisation of superannuation.  The wife should retain all the other funds. 

4. I went on to say at paragraph [216]: 

   it is obviously at one level of analysis a stark outcome when a man who has earned the money in a relationship of 11 years walks away with virtually nothing (although he has his car and some other chattels).  Nonetheless, the overarching picture as I have said already, is entirely clear.  At separation, the parties effectively had a million dollars and now they have nothing like that figure.  True it is that some of the monies that had been expended were expended to the benefit of the wife in the form of the mortgage and the like but the picture could not be clearer.  The husband has gone to an enormous amount of time and trouble to diminish the pool to prevent the wife from having any of it.  He has had his fun and now he must be held to account.  The wife’s future earnings will be modest, she needs to set herself up and needs a home in which to care for X.  The $333,000 that is available will be in no ways be overly generous to enable her to do so.  She will receive all the funds. 

The Materials Filed in this Tranche of Litigation

1. On 4 November 2020 as already indicated the wife filed her application in which she sought to relocate to Queensland and that X spend time with his father “as appropriate”. 

2. In her affidavit filed in support on 31 October 2020 the mother deposed as to X being unsettled and aggressive both before and after spending time with the father.  The affidavit noted at paragraph 8 that Ms H had noted starkly different parenting styles by each of the parents.  She deposed that at paragraph 10:

   there was simply not enough for me to survive and purchase a property in a built up area within Victoria.  X needs to be living in a large enough home for his needs and within close proximity to his support networks

3. At paragraph 12 the mother noted that she had on 22 October 2020 settled on the property she had bought in Queensland (for a price of $450,000). 

4. She went on to depose at paragraph 14 that the husband pays no child support and at paragraph 16 deposed: 

   X has settled into the change from MM Autistic School, five days a week to MM Autistic School three days a week and NN School two days a week, with little issue. 

5. She went on to annex his school reports.  She deposed at paragraph 17 as to enquiries she had made as to schools for X in Suburb OO should she move to Queensland and to a capacity to relocate her work to Queensland also.  At paragraph 20 she deposed to having spoken, prior to making the decision to move to Queensland, with the various professionals dealing with X and appended reports from each of them. 

6. The father as earlier indicated sought in his response to prohibit the relocation and indeed to limit the mother to 50 kilometres of her current dwelling. 

7. The father’s affidavit filed contemporaneously understandably set out his opposition to the relocation.  I note that at paragraph 30 he observed: 

   I find it somewhat presumptuous that Ms Balsam has purchased a property for the purposes of a relocation, without first seeking my consent to the relocation or indeed seeking court orders. 

8. The father went on at paragraph 35 to depose to the fact that he would not be able to afford to travel to Queensland and even if he were able to do so it would be impracticable.   He pointed to the fact that X will not see the extended paternal family. 

9. The mother filed an amended application on 30 December 2020 by which she sought that the father spend Friday to Sunday of each third weekend of the month in Queensland and more time in Queensland provided he gave 14 days’ notice. 

10. In her affidavit filed 14 February 2021 the wife responded to assertions by the father that she had not kept the father informed of X’s treating professionals.  She also deposed that the father had been living with his girlfriend at the time the final orders were made and appended as “-1” a text dated 7 June 2020 in which the father informed her of his new address. 

11. At paragraph 7 the mother deposed that X was thriving at NN School and at paragraph 8 she deposed to child support arrears of $820.63.  She further deposed to the general proposition that living in Queensland would be far cheaper. 

12. The parties have been referred to Ms H for assistance by the final orders made by consent and Ms H filed an affidavit sworn 18 February 2021 annexing her report.  Obviously I have read the report carefully and have regard to all of it.  I note that at paragraph 7 the father repeated his criticisms (made previously in affidavits and to Dr O) as to the mother being overprotective of X.  He deposed to travel to Country F for up to 24 times.  He told Ms H he met his new partner Ms PP in early 2020. 

13. The report notes that the father’s discussions about X suggested that the mother was more of a helicopter parent who spoils X rather than challenging him and the father’s assertion that his own style of more direct interaction was superior.  The report noted the father’s reservations about Page attending NN School.  Perhaps most relevantly page 7 of the report Ms H observed: 

    He stated that Ms Balsam attributes all issues littering the mother’s household automatically to him.  He sees that Ms Balsam is not able to see her contribution or see the challenges that X has in an objective and impartial way.  It is such misinformation that could have been discussed as (sic) in a joint session if both parents are agreeable. 

14. Unsurprisingly the report notes the father’s opposition to relocation to Queensland. 

15. Page 8 of the report Ms H noted: 

    Ms Balsam is a Country F national.  Her narrative and chronology have been detailed in her material.  Her comprehension and thinking pattern reveal a person with a rigid belief that she has been maligned, and a victim of verbal and financial abuse. 

16. The report noted that the mother became distressed when describing the history of the matter.  I note “she claimed that Mr Lackner stopped the Ritalin which created more issues for X”. 

17. I note that at page 9 of the report Ms H observed: 

    She believes that Mr Lackner does not understand X’s needs and treats him as a child who has no issues, for example, by allowing him to drive a motorbike. 

18. Ms H noted that the mother had the support of a support worker who comes every day and noted the mother’s assertions at page 9 that X becomes angry after spending time with his father. 

19. I note that at page 10, financial issues were still regarded important.  Ms H recorded:

    Since she has purchased a home in Queensland, she has felt positive about the future and her distress and crying has decreased. Ms Balsam vacillated further and said she still believes that Mr Lackner “took everything”, referring to the financial settlement.  She still feels betrayed from the financial outcome and reverted to grief about having to leave the house.

20. On the same page, Ms H noted the mother’s desperation to go to Queensland.

21. In the evaluation section at pages 11 and following, Ms H noted the different positions of the parents.  At page 12, she noted:

    There was extreme acrimony regarding the financial distribution according to Mr Lackner.  He claimed that Ms Balsam wanted to believe that the family had more assets than disclosed and that she wanted a large proportion of the distribution.  This has continued to be an issue.  Settlement was eventually effected in September 2020.

22. The report noted the differing views of the parents, something also commented on by Dr O.  In essence Ms H noted the obvious distress that the mother would feel if she was not able to relocate and the father’s concern that he would be marginalised if not excluded if relocation was permitted.  In the end however and in my respectful view very sensibly, Ms H left the matter to the Court. 

23. The father’s brother Mr T and his mother Ms KK have filed affidavits supporting the father’s position and attesting to their own good relationship with X.  The father has filed a further affidavit on 22 February 2021 deposing to his new relationship with Ms PP, and her sons QQ aged eight and RR age six.  One passage of his affidavit that struck me was paragraph 56 where he deposed: 

    I am disappointed, frustrated and upset that Ms Balsam has reopened family law proceedings after months of financially crippling litigation that I considered had been concluded and that she has now sought a drastic course of action contrary to what I thought had been agreed on a final basis, and with the spirit of the agreement reached that both parents would work towards an increase in the time that X spends with me, and not a reduction.  Had she raised the matter of a proposed interstate relocation in the previous proceedings all parties could have focussed on the issue and utilised the resources available at the time. 

24. This self-serving passage it should be noted in passing is open to significant criticism.  It was the father’s choice to be represented by senior and junior counsel at the trial.  I found he had made determined endeavours to limit the amounts of money that might be available for distribution between the parties.  His complaints of the cost are in the circumstances little short of risible. 

The Evidence Given and Submissions Made at Court

1. What follows is taken from my notes.  

2. The matter commenced with a brief brisk discussion of the rule in Rice & Asplund but in the ultimate no submissions were made by the respondent under this heading. 

3. The opening and evidence of the mother. 

4. Counsel submitted that the mother had not sought to relocate before judgment was handed down.  She obtained less money than she expected and decided that Queensland was cheaper.  Counsel pointed to the likely effects on the mother if relocation was not permitted.  X has special needs and final orders were made on 16 April 2020 which would lead to a three/eleven regime by April 2021.  Dr O’s report had not been challenged.  The mother had received $284,000 after paying her legal expenses and borrowed $200,000 for the Queensland property.  Counsel referred to Hepburn & Noble [2010] FamCAFC 111 (“Hepburn & Noble”) in regard to the principles relevant to relocation.  Counsel noted that the capacity to pay for any airfares was difficulty because both sides assert that they are unable to pay. 

5. The mother was called and adopted her affidavits as true and correct.  She is employed as a health care worker. 

6. By leave evidence was led in-chief about one occasion on which the mother refused to hand X over to the paternal grandmother.  She said he was sending his mother to do his job and finally came at 6 pm.  The mother confirmed that she received about $284,000 after paying her legal fees and borrowed $200,000 to buy the property in Queensland.  When she found out how much she got, being under $300,000, she was looking at a property she could afford. 

7. The mother confirmed that the father had only seen the occupational therapist several times.  NDIS funding was received about three years ago and the parental grandmother never attended the occupational health sessions although she if I understood her correctly – she appeared to concede that the grandmother came several times to the paediatrician.  She met the father’s new partner in Ms PP the next day after the hearing.  He did not introduce the partner to her.  X had to sit in the back seat because the partner was present. 

1. Under cross-examination the mother confirmed that X is nine and a half years old.  He is 142 centimetres tall whereas the mother is 155.  He is a happy child and is bright and enthusiastic.  He can show love and affection.  She agreed with Dr O’s assertion that X understands the love and attention of both of his parents.  When it was put that X had a relationship with the parental grandparents and the father’s family the mother said that the father’s family had not sought to see X since he was born.  They only see him occasionally on Christmas or birthdays or if she had cooked for the whole family.  The father never tells her where he takes X.  X has been spending fortnightly time and she has to settle him before he goes.  X needs to spend time with his dad.  She wishes X could have quality time with his dad.  It is good that X knows who his dad is and spends time with him.  When asked if there was a benefit to X spending time with the father the wife did not in fact respond directly.  She said that the father does not tell her what he does.  X cannot tell the story.  X enjoys attention.  He has no difficulty travelling.  She said she had never seen the father and X together. 

2. When it was put that the father had described in his affidavits his interaction with X the mother said that that was what he says and appeared to say that she did not know.  She said it was important for X to have a relationship with his father.  When asked if she agreed with Ms H’s observations the mother again did not respond directly but said she always follows what the judge orders.  She offers more time and the father does not take it and gives X to other people.  When asked when the father had not attended the wife’s answers seemed to me to be equivocal and prevaricatory.  One occasion appears to have been before final orders were made. 

3. When it was put to her that she could not say anything positive about the father the mother responded that it was not about being positive or negative.  When asked what her position was about the father spending time with X the mother said he can play with X and can take him to activities.  Reading more than five minutes would be great.  She wants him to have a nice father.  When asked again if he was a nice father (and this was very much the pattern) the wife did not answer directly.  She said she hoped he would do his best.  He is not really a nice father at the moment.  She said she was just desperate to be a good role model.  She has no one here.  It should be noted the wife became labile at this point and a short adjournment was necessary.   Upon resuming she did not accept that she was critical of the father as a parent.  She had told Ms H that the father was not a good dad.  This was true.  She wants him to be a good dad.  She does not have a poor view of him.  She has not changed her mind and will still follow orders.  She decided to relocate after she saw how much she got.  After May she said she had looked and following looking unsuccessfully in Melbourne, she had found nobody gave her a home loan because she was only on the pension.  Then she was looking to find a home around Australia.  Mr Lackner would never agree to any of her decisions and he would never support or agree anything.  She told the father through her lawyers about her intention to move and there was delay through COVID. 

4. The mother said she had spoken to specialists after she had got approval for the home loan.  She bought the house sight unseen.  After signing the contract she contacted the specialists and investigated schools.  She did not tell the father because he would never agree anything.  She did everything through her lawyer.  When it was put to her that the notation said the father’s time should increase she said she followed Court orders.  It was put that she wanted to reduce.  She said it was for X.  She has no one here.  She does not speak English (the mother had expressly declined the opportunity to have an interpreter).  She said she did not want to live in a poor rental property.  X needs his own yard.  Relocation will not cut him off from his father.  The father can visit him any time and she will change her routine to do that. 

5. The mother said that only one bank gave her a home loan.  Ms H was not correct.  She just does her best.  It was not her purpose to get her distance from the father.  The father can afford to come to Queensland as he took things from the asset pool.  When it was put to her that the child support assessed both parties at $32,000 she did not believe it.  The father had told her he was working full-time but he never did this.  He has no job now.  She then embarked upon a detailed account of the history of the parties’ property dealings.  She asked how the father could not afford to travel to Queensland after dissipating a million dollars’ worth of assets.  When it was put that if the father could not travel there would be harm to X the mother said that he could see him through Zoom, telephone or FaceTime.  X enjoys seeing people.  The extended family can call him. 

6. When asked about holidays the mother said she gave the father six days in January.  X lost 1.5 kilograms and was dry and wretched when he came back.  The father never said what he was doing and she asked him but he avoided the question.  X was crying in the car and she had to reassure him that she would pick him up.  X has started swearing and she does not know where that comes from.  He twists her fingers hard.  She does not tell the father because he would never accept that this was happening.  X is weeing in the bath after visits.  She would not let X be with Mr Lackner for a long time.  She proposes Suburb OO State School.  When it was put that X is well-settled in school now and doing really well she agreed.  She had researched one school in Queensland only but had spoken to the school many times.  The most recent was 18 or 19 January.  They want to see X in person.  If she relocates she would do this the following week.  Her furniture is in storage.  She had a one-year rental contract but broke the lease and moved.  She can transfer her work to Suburb SS in Queensland and is working now.  She works about 10 to 20 hours over three to four days and earns $38 per hour.  NDIS pay specialists.  It is easy for her to find a job anywhere.  She plans to work less in the Region TT because life there is less expensive and she can survive with less work.  She wants to study and give herself a choice of career. 

7. The mother confirmed, slightly to my surprise, that she has $30,000 in an offset account notwithstanding her financial difficulties.  The mother confirmed that she proposes five days during the Christmas holidays.  Travelling with an autistic child would be difficult.  Explaining an airport would be a problem.  Six times a year to Melbourne would be too much.  The father could come and collect X and bring him to Victoria.  Every school holiday would be too much for X.  Two times per year would be okay including the visits she would undertake.  After six days with the father X is not right.  Two nights is the maximum at the moment.  She posited possibly two-day blocks. 

8. This cross-examination about the mother’s proposal for time in Queensland demonstrated, I should interpolate and make clear, that the mother had really not thought through in any meaningful way any serious proposal for X to travel to Victoria, and indeed largely so in respect to time in Queensland also. 

9. The mother said that the move to Queensland would reduce her financial stress and reduce X’s stress too.  She does not want X stressed.  She is stressed.  She saw a counsellor before 2017 but every time she sees them she has to pay $150.  She prefers to keep the money for X.  The mother said tellingly that she just wants to forget everything and move on.  She had not completed a Parenting After Separation course.  The father denigrates her.  Dr O said so.  X is very flexible.  The house will help meet X’s needs.  It was put the time in Queensland would be in motels and the like and the mother responded X was not bonded with the paternal grandmother and uncle.  When asked if there was no relocation she might go to Queensland on her own the mother said she had not thought about it.  She cannot sell the home.  It was a fluke she had got a home loan and she cannot afford to rent the house.  On re-examination the mother confirmed that she does not know what the father does with X.  Any of the balance of the $10,000 set aside for Ms H could be used for airfares.  She still proposes two visits to Victoria each year with the father to pay. 

10. I will return to the quality of the mother’s evidence in due course but I would observe at this point that the mother was significantly stressed and at times distressed while giving her evidence.  I observed no empathetic response of any sort whatsoever from the father to the mother’s distress.  He appeared to be completely unconcerned and dismissive of it. 

The Opening and Evidence of the Father

1. Counsel pointed to the thorough assessment of Dr O and the fact that she found that there would be a benefit to X in a relationship with his father.  Dr O at page 19 had not wanted to reduce the father’s time.  The orders made in April 2020 were by consent and Ms H had been helpful to the parties.  The father did not have the income to travel. 

2. The father was called and adopted his affidavits as true and correct.  He has been self-employed but was about to take up employment in the trades industry.  Subsequently exhibit R1 was filed confirming that from 1 March 2021 he will be employed by Employer UU with a salary of $65,000 per annum. 

3. Under cross-examination the father confirmed that Ms H had not been paid.  He confirmed that X did not talk about the mother’s household to him.  He does not see how X travelling to Victoria could work.  He confirmed that he has a job paying $65,000 working in the service industry.  He will be undertaking quality control of the workshop because he has an eye for detailed work.  This would be five days per week from Monday to Friday and will start soon.  He has known them for 30 years.  He is still driving his Motor Vehicle 1.  He seeks orders to restrain the mother from moving.  The child should be with both of his parents.  He has always worked towards fifty-fifty care.  X could cope with fifty-fifty.  The mother will be the primary carer however for the foreseeable future. 

4. When asked if he was prepared to pay the mother and X’s airfare to Victoria he said he wished to see his son and would contribute to costs.  When asked what positives he could put about the mother’s parenting of X he said she was a very loving mother.  They have different parenting styles.  She cares for his autism but there could be a lot more done.  He does not know how much communications the mother has with the schools.  She takes him to the paediatrician.  He complained that the mother does not comply with court orders for him to be able to see the specialists.  He is blocked from the NDIS.  When asked about whether he had contacted the occupational therapist who sees X once per month the father said he did not want to cause trouble.  He could not afford to pay $200 an hour.  He asserted that the mother stopped him getting NDIS funding for this.  NDIS told him to come back to Court but he did not want to agitate things.  He had good contact with Dr VV but has not rung the occupational therapist.  He has not seen the speech pathologist.  He said he got information from Dr VV.  The mother took the child to Dr VV but he gets the report by email.  There are five to six such reports.  When asked why he had not gone to see Dr VV he said she could not see him.  She was too busy.  He had not made an effort to get an appointment with Dr VV because he got the reports.  She had felt X needed Ritalin while he was with the mother for reasons described by the mother. The transcript records the father then saying “which I don’t have these – so I’ve never administered X any drugs other than Nurofen, that’s it”. Although the father sought immediately to qualify this answer it is quite clear that the father has simply failed to give X Ritalin because he himself does not think X needs it when in his care. Given his complete absence of medical qualification, this approach is as arrogant as it is misguided.

5. When asked if he trusted the mother he said he trusts her to do what she has been doing. 

6. It was put to him that he had moved in with his girlfriend in May.  He said he had stayed with the grandmother until the case was finalised.  The mother did not know he moved in.  It was a mistake not to tell her he was moving. 

7. When asked about the mother’s trips to Country F he said this happened five to six times and she stayed up to four months.  At the time of the four-month trip X was only six months old.  X last went to Country F in 2019 for three weeks.  Sometimes he went with the mother alone.  He had never been on an aeroplane with X on his own.  X would be a handful on a plane.  The challenges with X are communications.  He uses pictures.  Outbursts and screaming are now very rare.  He has tuned himself into X and there were no problems in the five days X spent with him.  He is not unsettled when he comes to his household. 

8. The father confirmed that he would prefer that the mother brought X to Victoria or he would go up to get him.  He was not seeking an order that X live with him.  It was an option but it will not happen.  The father was asked about X’s two days at NN School.  He said it was working well now.  He was not sure at the start but he had visited the school.  His behaviour has been a lot better in the last six months.  He is not sure about the mother’s mental health.  He does not fear anything harmful.  There are possible long-term problems.  It should be noted that the father’s responses to questions about his view of the mother’s mental health were prevaricating and non-responsive.

9. At changeover he always picks X up.  The mother is very rarely there.  When it has happened it is not a problem as they stay in their cars.  A change to Queensland would be very difficult for X.  There is no conflict between the mother and him.  They do not speak.  Ms H has been amazing and communications can get better in the long run.  He said he returned X’s Country F passport to the mother a long time ago.  The mother has no family in Australia. 

10. He lives with his partner in a rental property.  She works and supports him.  She works part-time in a private firm.  She pays $1700 in rent per month.  She has been there for nine years.  He owns a block of land worth $60,000 which has a derelict house on it.  He has two cars and conceded he could sell one.  He confirmed that his mother has paid all his legal fees.  He was a partner in a business but it was hit by COVID and was closed about five months ago.  JobKeeper finished in October and he told the child support agency.  He has not failed to get a job just because of this case.  The $1100 of child support arrears are now paid off.  The mother being distressed will be bad for X.  He will be paying $800 per month child support when he works. 

11. In re-examination the father confirmed that he was paying off $180 per month while paying off child support arrears.  If relocation takes place his relationship with X will be difficult because he will be away from him.  X can cope with school with the proper assistance.

The Evidence of Ms WW:

1. Ms WW confirmed her affidavit is true and correct.

2. Under cross-examination Ms WW indicated that she worked twice a month during the COVID regime.  Before that she had a 12-month contract for 30 hours week.  She has been in a relationship with the father since early 2020 and they decided to live together mid 2020.  She is separated and pays rent to her father-in-law.  She intends to take over the mortgage on the property in which she lives.  X is an energetic child who is silly, funny and very smart.  Some days he has meltdowns.  When asked about the cost of travel to Queensland, Ms WW indicated that the father could not contribute as he has no income.  He has not applied for jobs during the lockdown.  She has met the mother twice and said hello.  She would not support the father’s going to Queensland.

The Evidence of Ms KK

1. Ms KK adopted her affidavit as true and correct. 

2. Under cross-examination Ms KK confirmed that she had sworn an affidavit in previous proceedings.  She loves X dearly.  She is very close to all three of her sons.  She does not agree with the move to Queensland.  She has not got on well with the mother in recent times.  They last spoke in March 2019.  She felt shut out.  When questioned as to what was good about the mother as a mother for X, Ms KK was palpably reluctant to give credit. 

3. Ms KK had been to the paediatrician once before separation.  She had taken him to occupational therapy.  There are no meltdowns when X is with the father and only very occasional screaming.  X is occasionally frustrated but it is easy to calm him down.  She is paying her son’s legal fees through a loan from the bank, which he has to pay back.

The Evidence of Mr T

1. Mr Lackner adopted his affidavit as true and correct. 

2. Under cross-examination Mr Lackner confirmed that he is an identical twin with the father and they are very close.  He has seen episodes with X.  X squeals and expresses discomfort.  He sees X about half as much as the father does.  When asked if the mother was a good mother, he said he had nothing for or against her.  He does not speak with her.  Absolutely not.  He said he was he was indifferent to her.  She has made it clear she does not want contact with him.  He would visit in Queensland when he could.  He cannot help the father now.  He had not read the mother’s affidavit but understood she wanted to get away from them.

The Evidence of Mr XX

1. Mr XX, who was called under subpoena confirmed that he works for YY Centre in Suburb ZZ as an occupational therapist and director of the clinic.  He has been involved in paediatric occupational therapy for over 20 years.  This deals with fine motor skills, self-care skills and social skills.  He had written letter to whom it may concern dated 13 October 2020.  He has been seeing X for two and a half years.  He sees X fortnightly in the term and in term 4 moved to face-to-face fortnightly.  These are clinic based sessions.  He last saw X shortly before Christmas.

2. X has made lovely progress in the last two and a half years.  He has skill gains in fine motor.  There is a decrease in his impulsive behaviours.  The father has come for two sessions with X.  There were two sessions the previous February which were cancelled.  He does not regularly see both parents.  The father’s two sessions were, he thought, in 2019.  Sometimes the carer comes to the sessions.  The mother has attended all sessions and has always tried to support X.  She provides information.  More space would be important for X as would a separate play area.  If X was to go to Queensland, he would need preparation through the preparation of a social story.

3. Under cross-examination by counsel for the father, Mr XX confirmed that the relationship between X and the father was nothing out of the ordinary.  He had had some initial communications with the Suburb OO School in December and January of this year.  This was all by email. 

The Evidence of Dr VV

1. Dr VV, a consultant who likewise was called under subpoena, is a consultant paediatrician with 20 years’ experience at Region AAA.  She sees X twice per year normally but the mother is not always with him.  The last contact with the father was in 2015.  He had been copied through her reports but otherwise the reports come through the GP.  X has significant autism and also ADHD.  They trialled Ritalin but stopped because the father opposed.  They restarted because X was going to a mainstream school.  Ritalin was started on 15 October 2020 and  discontinued and then restarted in December.  She was aware that there was an acrimonious settlement between the parents.  If the mother was happy the child would be happy.  There was an excellent relationship between the mother and X.

1. Under cross-examination by counsel for the father Dr VV said she had never observed the father as he had never been.  Unaided travel for X was impossible.  He would need a carer or parent.  Stability of regime was good. 

2. In response to questions from the Court Dr VV confirmed that when there was an attempt to measure X’s IQ it could not be measured because he was unable in the WPPSI-IV test.  When asked about his speech apraxia Dr VV confirmed that X speaks in short little sentences of single words.  He will say hello if prompted.  Dr VV confirmed that the Ritalin prescribed for X is short-acting, having a lifespan of four hours.

The Evidence of Dr BBB

1. Dr BBB confirmed that she had written a letter to whom it may concern.  She first saw X on 12 April 2014 and started seeing him regularly in 2016.  The mother brings him to the clinic.  She has only very rarely met the father.  X is very emotionally attached to his mother and could only listen to his mother.  She only gets the history about X from the mother.  There is a very loving relationship between the mother and X.  She has told the mother to display pictures of the home and school in Queensland.  The mother had told her that school and a park were near to home but they would need support.

2. Under cross-examination by counsel for the father Dr BBB confirmed that X has seen photographs of the house and school.  She understood the mother to have researched extensively before she bought the house.  X had asked if it was a new house.  Dr BBB last saw the father three years ago. 

The Evidence of Ms CCC

1. In evidence-in-chief Ms CCC confirmed that she is a self-employed speech pathologist who treats X.  She has seen him since June on a fortnightly basis.  This was at home.  If it was done by telehealth it was done with a support worker.  There has been some improvement in X’s spontaneous expression.  The mother was always there at the home.  She had nothing to add to her letter.   When X is frustrated he hits and screams.  She had never met the father nor spoken to him on the phone.  She provided services to the mother.  Used to be on a Thursday morning fortnightly or Monday monthly.  She would support sessions with the father.  X has a receptive language impairment.  Wherever he lives he will need supports.

2. Under cross-examination by counsel for the father Ms CCC said the mother had not said whether the father was good or bad.  She would welcome the father if the mother was comfortable with it.  She seemed to indicate that the mother had seemed uncomfortable about the question of divorce.  She had seen X 10 times at home and the others were at her rooms with Ms LL the support worker.   She had emailed the Suburb OO School because she though the move was happening.  X has mentioned going on an aeroplane because he likes aeroplanes.  There had been no follow-up from the Suburb OO School since October. 

The Evidence of Ms H

1. Ms H adopted her affidavit as true and correct.

2. Under cross-examination by counsel for the mother Ms H confirmed that she had seven sessions with the mother, seven sessions with the father and five with X.  It was not outrageous that the mother sought to move to Queensland.  It was highly unfortunate, especially for X.  The mother and the father manage differently.  The father is more involved in the MM Autistic School.  The father left it to the mother in early days.  When it was put that the father had opposed giving X Ritalin Ms H said this was only a brief discussion.  The parents are polarised about X.  The father thinks the mother gives X too many lollies.  The mother thinks the father is not tuning in to his needs.  When X was with the father, the structure was evident.  The mother is in tune with X even when he is challenging.  Ms H said it was not for her to say which of these approaches was correct.  This was a matter for the treating practitioners.  The father is prepared to build bridges but the mother could not see the positives of a relationship between X and the father.

3. X was disordered when returned.  The mother always saw the father in a negative light.  The father maintains his criticisms of the mother.  The father was able to some extent to reflect.  The mother’s distress would be valid for her and was not put on.  The mother is distressed about the future for X and is distressed at having a disabled child.  There are no concerns about the mother’s care of X.  The parents are both focused on the son.  There was a very close relationship between X and the father.  He has a connection with both his parents.  He has a different experience with the father which benefits X.

4. Under cross-examination by counsel for the father, Ms H confirmed that the mother has a very poor view of the father.  When it was put there would be a reduction in the relationship if the mother moved to Queensland, Ms H said the mother has at all times come to appointments and will comply with orders.  The parents will need clear guidelines.  Medication has not been communicated.  When it was put that the proposed a visit once per month or every three weeks Ms H said there would need to be a preparation for X to understand the time and would need to be enhanced.  Monthly separation was extremely unfortunate but he has been to Country F for more than one month.  There is grief and loss each time he sees the father.  The mother will see X returning as disordered.  The mother was looking at the father taking X to some theme parks which would be activities for X.  Whether this would work or not was a matter she would defer to treating practitioners.  The mother is open to counselling and support but her focus was going to Queensland, the move would make her happier.  Distance would give her opportunity to regulate her response to X’s behaviour when he returns from the father. 

5. When asked about the extended paternal family, Ms H said X had spoken of his needs.  He goes to the mother and the father.  He spoke of his parents.  He did not speak of the extended family nor react when any other names were mentioned.  His focus is Mum and Dad.  Ms H understood her job to be to help the parties implement orders.  Ms LL would often help with the technology.  X would need an aid for any electronic communications which could, perhaps, be undertaken at school with an aid.

Final Submissions of Counsel for the Mother

1. Ms Byrnes confirmed that the care worker referred to was Ms LL, a student nurse.  She is a part-time family support worker.  She spends time with X on Wednesdays from when he returns on the bus until 9 pm plus as needed.  She has been involved with X for 12 months since January 2020 and would assist three days in COVID.  The mother also has a Country F friend who helps her.

Final Submissions of Counsel for the Father

1. Counsel submitted X was nine and a half years old with ASD.  The father was concerned about the benefit between the relationship that he had with his son.  Dr O at page 18 of her report had said that X needed regular time.  Disruption to this routine would not be in X’s best interests and the mother’s proposal would not work.  The father does not have the time or money to go to Queensland.  Two nights per fortnight would reduce to one weekend each month.  The father’s forthcoming salary was only going to be $65,000 and he has debts to repay.  He will receive no help from his family and friends and each visit would cost him about $2000.  The mother has a very poor view of the father and says he is not a good dad.  She could not say anything good about him.  The father had offered an olive branch and had undertaken courses.  The level of communications points to compliance.  Relocation will impair the father/son relationship.  The mother wants to remove the paternal family by taking X to Queensland.  Zoom or Skype would be a poor alternative.  If relocation were permitted, there should be additional time in the holidays.  Five or six days in January could be here in Victoria.  There was a query as to whether the father could fly to Queensland but X likes planes.

2. Counsel traversed the mother’s motivation for relocation.  The mother asserts it is for financial relief but the mother is not accepting counselling.  The decision in Hepburn & Noble was not applicable because there were different facts.  The mother has no supports or other attachment with Queensland.  Counsel referred to Hepburn & Noble at [63] in this regard and Hall & Clark [2009] FLC 405.  There is no evidence as to what the loss would be if Queensland is sold.  The preparatory work suggested by the professionals has not been undertaken. 

Final Submissions for the Mother

1. The mother’s position is about the best interests of X.  The application for the order for her not to move more than 50 kilometres from her current home is typical of the father’s controlling behaviour.  The mother relied on her case outline.  No one is seeking equal time.  The father was not an honest witness.  He says he wants to mend the bridges but is entirely accusatory of the mother.  The father’s family is close but they dislike the mother.  The mother was born in Country F and has no family here and is on her own.  She devotes herself to X and is his primary carer.  This has been particularly the case since separation in January 2019.

2. The parties will manage transition.  X needs security and the support of his parents and, in particular the mother.  X is with the mother 12 nights out of 14.  The financial circumstances are relevant.  The mother was shocked by the trial outcome and this led her to purchase in Queensland.  The mother is not doing this to terminate the relationship between X and the father.  The father provides no financial support for X and has only just got a job.  The parties do not speak to each other. 

3. If the mother is in Queensland, she should have sole parental responsibility.  X will have to engage with new resources.  The parents have different attitudes about how to bring X up.  The mother is compliant with orders.  There is a very close and loving relationship between the father and his extended family.  The mother needs time to settle X in Queensland.  Father has a new job but child support remains problematic.  He has been deliberately not working.  He still has two cars and a block of land worth $60,000 that he has made no effort to realise.  Counselling would not be needed if she was living in Queensland.

Findings about the Credit of the Parties.

1. It will be noted that I did not by any means find either of the witnesses satisfactory in the earlier trial. I said at paragraph [168] “neither of them were good witnesses”.  Neither party raised any objection, however, to my hearing this matter. 

2. To a considerable extent I find their evidence in this proceeding to suffer from similar deficiencies to those in the last.  It is quite clear that the mother despite her denials opposes X having any relationship with his father because she dislikes him.  She is plainly deeply emotionally engaged by the need, as she would see it, to get away from his family.  Even though she was giving her evidence in English without an interpreter her demeanour and affect, together with her generally good command of the language, only went to enforce the obviousness of these observations.

3. The father presented as smug and self-satisfied.  A number of his answers were prevaricating and non-responsive.  He impressed me as he impressed Dr O as having a pronounced sense of entitlement and a marked lack of insight into the emotions and feelings of other people.  I note in passing that he continues to possess two cars, one of which I found to have a considerable value, and a block of land, neither of which he has made any move to realise notwithstanding his professed incapacity to pay child support or to assist the wife in any way.

Against These Dispiriting Findings I come to the Statutory Pathway

1. I turn now to the statutory pathway which is set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65]:

   “Summary

   [65]    In summary, the amendments to Pt VII have the following effect:

   1.  Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.

   2.  The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).

   3.  If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).

   4.  The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).

   5.  When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).

   6.  The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
   (s 65DAA(5)).

   7.  The concept of “substantial and significant” time is defined in s 65DAA to mean:

   (a)    the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)    days that do not fall on weekends and holidays; and

   (b)    the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)    occasions and events that are of particular significance to the child; and

   (c)     the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   8.  Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.

   9.  The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.

   10.    When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.

   11. The child’s best interests remain the overriding consideration.”

Parental Responsibility

1. Neither counsel’s case touched in any great detail on this issue.  The written submissions of the wife’s case outline relevantly assert:

   The mother seeks orders for sole parental responsibility.  She contends the presumption should be rebutted as the father has shown little interest or involvement in X’s treatment for autism and his resultant needs and his education. 

1. In oral submissions this was developed more along the lines of the practicalities of the matter should relocation be permitted.  The father opposed an order for sole parental responsibility (it is to be inferred as I am not sure any direct submissions were made) on the footing that this would be the excision of the father from the child’s life.

2. It should be remembered that the presumption of equal shared parental responsibility is a mandatory one pursuant to section 61DA(1) unless pursuant to section 61DA(2) there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence.

3. It is immediately apparent that the matters asserted by the mother do not fit within this descriptor.

4. Pursuant to section 61DA(4), however, the presumption may be rebutted by evidence that satisfied the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.

5. There is no doubt that the mother is correct to say that the father’s involvement with the treating specialists has been dilatory at best.  His answers about how he got information from Dr VV, which if I understood his answers more completely really meant that he got reports through the GP, were manifestly unsatisfactory.  He complained of not being given a prescription and/or Ritalin to give to the child but it is clear he never made any endeavour to progress the matter because in truth he does not himself believe in it.  He is a tradesman not a doctor and would do well to defer to the specialists.  His failure to do so is part of sense of entitlement and self-satisfaction as I find. 

6. Nonetheless it is not true to say or fair to say that the father has no interest in the child’s autism and how to deal with it. Rather it is more accurate to say as both Dr O and more particularly Ms H observed that the parents have very different perceptions and as a result parent styles of response to X’s very challenging behaviour. In my view, the presumption is plainly not rebutted pursuant to section 61DA(2). In circumstances where it is plain on the objective materials that it is desirable for X to have a relationship with his father, it is equally plain that despite the mother’s misgivings, the order for equal shared parental responsibility has not been shown not to be in the child’s best interests. Accordingly, there will be an order for equal shared parental responsibility.

The Child’s Best Interests - the Primary Considerations, s60CC(2)

1. At least in principle all parties agree that it is to X’s benefit to have a meaningful relationship with both of his parents.  In respect of the mother’s relationship with X the father despite his carping criticisms of her does not contend the contrary.  The mother’s position is more nuanced.  In truth she does not really think it is in X’s best interests to have a relationship with the father despite her assertions to this effect in the witness box, which I should make it clear, having heard and seen her give her evidence, I do not accept.  Nonetheless looked at objectively and particularly through the prism of the unchallenged evidence of Dr O and that of Ms H, it is plainly desirable that X should have a meaningful relationship with both his parents.

2. The question then becomes whether there is any need to protect X from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.  In my view there is no question of family violence.  There is no serious suggestion that X will suffer neglect with either with either of his parent.  It is plain these considerations weigh in favour of X having the benefit of a meaningful relationship with both of those parents. 

The Additional Considerations Section 60CC(3)(a)

1. X has expressed no views.  He is incapable of doing so.  Nonetheless it is clear from what he has shown both to Dr O and to Ms H that he loves both his parents. 

Section 60CC(3)(b)

1. I have already, touched on this matter immediately above.  There is no doubt that X’s closest relationship is with his mother who has always been his primary carer.  I roundly reject any suggestion made by the father that he was the primary carer during or after the relationship.  It is clear that X’s close relationships are with his mum and dad as the independent evidence of Ms H establishes.  One area not really explored much in the materials but which I bear in mind is that X also seems to have a good relationship with his carer Ms LL whom he has known for over a year and who appears to handle him well.  His relationship with his paternal grandmother and uncle is more nuanced.  I have no doubt that they love him.  There is no earthly reason to think otherwise.  The paternal family is close knit after all.  Nonetheless the extent of X’s relationship with them must be qualified by Ms H’s observation that the names that X actually recognises are the those of his mother and father.

Section 60CC(3)(c)

1. The mother has been very critical of the father’s failure to attend medical and other ancillary worker interviews.  It is, in my view, a valid criticism.  As I find this springs, however, not from a complete absence of interest on the father’s part in X’s wellbeing.  The father is simply lacking in insight as to the extent of X’s disability.  The general tenor and thrust of his evidence was along the lines that the mother is overly protective and indulgent of X whereas he with his forthright (and one would infer manly) approach is able to get far better outcomes when X is with him.  It should be noted that Ms H did in fact observe some of this in their interrelationship.  Nonetheless he has taken it upon himself to oppose the administration of Ritalin which was recommended by the specialist and this is consistent with his pattern of self-satisfied self-indulgence.  Nonetheless (and I will repeat and probably do again in due course) I have no doubt that he does love his son and cares very deeply about his future.  The mother has of course tended to the primary care of the child and taken all necessary and appropriate steps to involve herself in major long-term decisions about X’s future.  It should be noted nonetheless that the father has also taken considerable steps to involve himself with the MM Autistic School, and appears to have come round, not without misgivings, to the NN School also.

2. Both parties have obviously sought to communicate with the child and indeed have fought this case to finality to do so.

Section 60CC(3)(ca)

1. The mother has undoubtedly taken all appropriate steps to fulfil her obligations to maintain the child.  The father has not.  In his evidence he said that he had been self-employed for a long time and it was a big decision for him to go back to work for someone else.  Once again, this is self-indulgent.  It may be a big decision for him but his failure to have any income has meant that he has not provided any support whatever by way of child support (save for minimal payments and a spurt to pay off arrears which I suspect may have been influenced by the forthcoming nature of this case) since separation.  He has now got himself a job and it is to be hoped that his support will now start.  As earlier indicated he has made no endeavours to realise capital which might have been of assistance to the parties to assist X. 

Section 60CC(3)(d)

1. There is no question that any significant removal of X from his mother would be distressing to him.  The evidence of Dr O and Ms H is quite clear and nothing more needs to be said.  The father’s insistence that he is working towards equal time is, at least for the foreseeable future, merely an indication of his tendency to see the world entirely through his own needs and interests.

2. The father’s present house has of course two other children in it but there is no meaningful evidence as to quite how well X gets on with them notwithstanding their mother’s giving evidence.  I accept that the mother’s new partner has an entirely appropriate attitude towards X and is likely to be beneficent to him.

Section 60CC(3)(e)

1. Contrary to the father’s position I think there is no practical difficulty and excessive expense associated with a spend time regime if the mother lives in Queensland.  If he really loves his child he will see his expensive car and block of land and use the money to go to see him.  His refusal even to contemplate such matters (not expressed directly but clearly the case given the march of events) speaks volumes.

2. That is not however the end of the matter by any means.  The issue of expense, while not in any sense absolute as I have just explained, cannot be set wholly to one side.  The father’s new income is not enormous and is slightly less than average weekly earnings.  More to the point however is the question of practicality.  X may like aeroplanes but there is no question that he cannot fly on his own.  He is likely to find flying troublesome because of the new environments into which he will be placed.  It would require careful planning and preparation with storybooks and the like to enable it to even occur.  If the father were to spend time with X in Queensland true it is that he may be able to go to exciting outings like theme parks and the like.  Nonetheless the father will be living in motels, possibly different ones on each occasion and there is no doubt give the need for stability for X that there would be a considerable measure of practical difficulty involved.

3. These difficulties would of course be diminished if the mother and/or the father were to fly X down to Melbourne to stay with the paternal family whether with his new partner or with the paternal grandmother.  They would not however be devoid of difficulty for X and much of the difficulty might depend upon the frequency with which this could be arranged.

Section 60CC(3)(f)

1. The mother has always been the primary carer of the child and is a devoted and effective mother.  That is the overwhelming evidence in this case and I have no doubt it is correct.  Unsurprisingly perhaps there are some weak chinks in her armour.  This mother, and this is a matter which I will return to, faces personal difficulties of her own which may cause her to become overly protective perhaps of X.

2. The father can plainly care for X’s needs when he is with him.  He is at least sufficiently attuned as Ms H’s observations make clear to X’s personality and needs.  What bedevils the case is his different approach from that of the mother and in saying this each is in my view to blame. 

Section 60CC(3)(g)

1. X is described by all concerned as a lovely child, reasonably tall for his age, but bedevilled with the difficulties associated with his autism and intellectual disability.  As I said at the end of the hearing one’s heart goes out to him and both his parents.  Understandably X finds change difficult and in my view this explains very readily why he is upset both before when he goes to his father’s and when he comes back.  The father’s generalised assertions, which I think can be fairly characterised without oversimplifying them, as being that X is always fine with him rather miss the point.  They reflect a lack of insight as to the likely difficulties that X has with change and may well also reflect any absence of Ritalin while he is in his care.  I note that Dr VV said that the short-acting Ritalin would not be likely to provoke an effect upon its cessation but if the child is with the father for a period of time without Ritalin and if Ritalin has a calming effect upon the child then its absence may only surely be felt more keenly as time goes by and find its expression upon the return to the mother.

2. I have already, and of course it always regrettable to have to do so, commented adversely on the father’s personality.  It is not necessary to repeat these unfortunate findings.  Notwithstanding any inadequacies however he clearly loves his son and the son loves him.  His background is self-indulged and I note that even now he has had the good fortune to be able to make a new relationship with a woman who supports him and provides him with up until now free rent and board. 

3. The mother’s circumstances are difficult.  She had a childhood not without difficulties in itself.  She met and married Mr Lackner in Country F and came to Australia and has in my opinion done very well to establish herself to the extent that she has.  She is on her own.  She has no supports in Queensland whatever.  She appears to have a Country F friend who assists her from time to time with X and she has the assistance of the helper Ms LL.  These of course are not part of her personal background, which is the matter with which this subsection is concerned, but they fit into an evaluation of her circumstances.

4. I should also observe that both of these parties, as I observed in my first judgment, are very money oriented.  The father was at great pains to try and make sure the wife got as little as possible and was largely successful.  It is quite plain that the wife continues to resent this bitterly and there is no doubt that this played a significant part in her decision to relocate.  She puts this as being because of the lack of funds that ultimately devolved but I shall return to that matter later.

Section 60CC(3)(h)

1. This is not relevant.

Section 60CC(3)(i)

1. As Dr O noted the father’s attitude towards the child is possessory (my child).  Nonetheless as I have said it before and repeat yet again he loves his son.  His attitude to the responsibilities of parenthood is unremarkable save for his lack of desire to contribute financially to the wife’s household.  The mother’s attitude to the child is that of a devoted mother but there is I sense an understandable tendency perhaps to allow her present loneliness to overconcentrate her emotions upon X.  The distress that the mother described so movingly to Ms H is part and parcel of her difficult circumstances but I suspect, and I do not believe it is an unreasonable inference, that it makes her in a sense interdependent with X to a degree which is slightly unhelpful. 

Section 60CC(3)(j)

1. There is no relevant family violence.

Section 60CC(3)(k)

1. This is irrelevant.

Section 60CC(3)(l)

1. It is plainly preferable to make final orders and all parties seek that this be done. 

Section 60CC(3)(m)

1. The other matter is obviously present in this case is the question of relocation.  I have of course been referred to case law in this regard but it is appropriate to remember what the Full Court said in Starr & Duggan [2009] FamCAFC 115, which was itself a relocation case at [33] where the Full Court said:

   The core principle consistently referred to in all appellate decisions involving challenges to parenting orders (including where an order for relocation is sought) is the “paramountcy principle” found in section 60CA.  That is, a Court must regard the  best interests of the child as the paramount, but not sole, consideration.

1. Here there is no doubt that the mother genuinely wants to move to Queensland.  Even the father accepts that the property she has bought there is cheaper than properties in some parts of Melbourne.  I should make it clear however that there is no doubt in my mind, and I find as a fact, that what really happened was this.  The mother was bitterly put out by the result of the property proceedings.  As her counsel put it she did get as much as she thought she would.  This led her very understandably to consider what property she could afford.  I do not accept that she looked around in Victoria or around Australia in any detail. I take judicial knowledge of the fact that for $450,000 she could have obtained a property in Victoria (albeit possibly at some greater distance from the centre of Melbourne) and certainly in states like Tasmania which are not so far away.  She decided to punish the father for the outcome of the proceedings by moving as far away as possible and excising him from her life.  I have no doubt that the mother sees the father’s failure to pay child support and the outcome of the proceeding as ongoing controlling behaviour on his part, and I would say she is probably correct.  Nonetheless her desire to move to Queensland is plainly tied up with a desire to excise the father and his family from her life.  She is deeply distressed at the thought of not being able to go.

2. It must also be accepted that in the event that the mother is not permitted to relocate her financial circumstances will be rendered more difficult in all probability by the necessity to sell the property in Suburb OO, which I fully accept is large and otherwise well-suited to X’s needs, and return to a property which may not be as desirable somewhere in the outer reaches of Melbourne.

3. What militates decisively and irreparably against relocation is the all too obvious effects it will have upon X’s relationship with his father.  In truth as I find the mother has not thought through any detailed spend time regime for the father with X if she goes to Queensland.  Her remarks at one point to the effect that he could see him as he wanted if he gave notice run completely at odds with her attitude towards him.  X has the right under the legislation to a meaningful relationship with his father and there is no doubt that relocation to Queensland will at the lowest heavily disrupt, or as I find more likely completely destroy, the relationship between the father and X which has been observed I repeat yet again by both Dr O and Ms H.

4. Clearly the mother will be deeply distressed by the decision not to allow her to relocate.  She will be very probably at least somewhat financially disadvantaged by it.  Nonetheless she cannot impose a result by her own unilateral action.  Her decision to buy in Queensland was clearly impulsive.  She bought the property without even seeing it.  All this bespeaks a hurried and almost frantic desire to get away from the father as I have no doubt it was.  I have some sympathy with her position.  I have commented unflatteringly about the father on a number of occasions and his non-involvement with X’s treating professionals, and its associated insouciant suggestion that X is in fact not that disadvantaged, speaks strongly against him.  But there is simply no getting around it.  He is the father X has and X has a loving relationship with him.  The mother dislikes the father so strongly that she will in my opinion do very, very little if anything to foster the relationship if she moves.  To the contrary, her detestation of him will be more probably than otherwise such as to seek its disruption.

5. There are further practical considerations in relation to the move.  In Melbourne the mother has at least one friend and has the benefit of reasonably well-established support worker.  Those would not be available in Queensland where the mother has by definition no contacts of any sort.  It is of course true that over time school and sundry other supports could be replicated in Queensland but this would represent a formidable challenge for the mother especially since she would have to work as well.  These are all part of the practicalities that would occur if the relocation were permitted.

Conclusion

1. In the end, the decision, which has probably been made sufficiently clear already, is stark but unavoidable. While I can understand the mother’s desire to go to Queensland and get away from the father it is not in X’s best interests. X’s relationship with his father is one to which he is entitled pursuant to section 60CC(2) and it will simply not survive if relocation is permitted. Notwithstanding all the other relevant considerations which I hope I have traversed, in the end a proper application of the law to the facts of this case leads inexorably to the conclusion that the relocation cannot be permitted as being in X’s best interests.

2. The next matter however is the father’s desire to restrict the mother’s residence to 50 kilometres of his own.  This can be dealt with shortly.  The mother may well have to move some distance from where she presently is in order to get somewhere where she can afford to buy.  To preclude her from doing so is in my view completely contraindicated.  I note that at one stage in his interviews with Ms H the father said he would have been willing to assist the mother by purchasing her a home in the event that separation had been amicable.  If he really wants to extend an olive branch he can consider selling his property and advancing those funds to the mother to enable her to buy a more expensive property closer to where he lives.  I am not prepared to trammel the mother’s endeavours to get herself a home in the fashion that the father seeks. 

3. Having said this, I would wish to emphasise in the clearest possible terms that I am not as it were giving the wife carte blanche to move anywhere she pleases in advance.  I am going to order that in the event the mother proposes to relocation any distance greater than 50 kilometres from where she lives she gives the father not less than one months’ notice of her  intention to do so so that the resultant inevitable dispute can be disposed of by the Court in due course.

4. It should be noted that this might be seen to run somewhat counter to the observations set out under section 60CC(3)(l) but in truth they are not. It is to be hoped that the orders I make which are effectively to continue the existing regime, will indeed play out with commonsense and without the need for further curial intervention. Surely even these parties must be getting tired of litigation by now.

I certify that the preceding one hundred and forty-two (142) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date: 30 March 2021