Bannan and Norton

FEDERAL CIRCUIT COURT OF AUSTRALIA

BANNAN & NORTON

[2016] FCCA 141

Catchwords:
FAMILY LAW – Mother seeks child live with her and siblings in Queensland – Stability for child in remaining with father and his wife in (omitted) – father greater capacity to provide for child’s educational needs – mother has a capacity to provide for child’s emotional needs over distance –father and mother new partner each have perpetrated violence on the mother in child’s presence.

Legislation:

Family Law Act 1975 s.60CC

Applicant:

MS BANNAN

Respondent:

MR NORTON

File Number:

DUC 238 of 2010

Judgment of:

Judge Henderson

Hearing dates:

20, 21 April 2015

23, 24 September 2015

Date of Last Submission:

24 September 2015

Delivered at:

Sydney

Delivered on:

29 January 2016

REPRESENTATION

Counsel for the Applicant:

Mr Keller

Solicitors for the Applicant:

Family Legal

Counsel for the Respondent:

Ms Gall

Solicitors for the Respondent:

Neil Jones Solicitors

ORDERS

The parties have equal shared parental responsibility for the child X born (omitted) 2005 (“the child).
The child live with the father.
The parties have day-to-day care and responsibility for the child when the child is in their respective care.
The child spend time and communicate with the mother as agreed between the parties and failing agreement, as follows:
(a)Until such time as the child commences Year 7, each year, on one occasion during the term 1, 3 and 4 school term from as soon as practicable after school Friday to Sunday as agreed between the parties and failing agreement such time to occur on the middle weekend of the school term.
(b)Each year, on the June long weekend from Friday to Monday unless otherwise agreed between the parties.
(c)Each year, for all of the term 1, 2 and 3 school holidays from the conclusion of school (being the next day on which the first flight from (omitted) to Brisbane is available) until the Friday on the weekend prior to the recommencement of school.
(d)In the event that the Easter holiday period falls during the school term (and not during the school holiday period) from Friday to Easter Monday.
(e)During the term 4 school holiday periods as follows:
(i)Commencing in 2015 and each alternate year thereafter from the conclusion of school (being the next day on which the first flight from (omitted) to Brisbane is available) in term 4 until the Friday falling closest to the two (2) weeks prior to the recommencement of school.
(ii)Commencing in 2016 and each alternate year thereafter from the Friday falling closest to two (2) weeks after the conclusion of school for the balance of the school holiday period until the Friday on the weekend prior to the recommencement of school.
(iii)By telephone, FaceTime or any other digital communication between 7pm and 8pm each Tuesday, Thursday and Sunday.
(iv)Such other times as agreed between the parties in writing.
In order to facilitate the child spending time with the mother, the child is to fly as an unaccompanied minor from (omitted) Airport to Brisbane Airport with the mother to be responsible for the cost of the flight from (omitted) to Brisbane and the father to be responsible for the cost of the flight is to provide the other parent with a copy of the flight details at a minimum of seven (7) days prior to the travel.
In the event that there is no direct flight from Brisbane to (omitted) then the child is to fly from (omitted) to Sydney then from Sydney to Brisbane as an unaccompanied minor with the mother to be responsible for the cost of all flights to Brisbane and the father to be responsible for the cost of all flights to (omitted). The party responsible for the cost of the flights is to provide the other parent with a copy of the flight details at a minimum of seven (7) days prior to the travel.
In the event the mother intends to travel to the (omitted) area then the child is to spend time with the mother as agreed between the parties in writing and the mother is to provide the father with notice of her intention to be in the (omitted) area at least seven (7) days prior to such travel.
The mother and father keep each other advised of their current address and contact telephone numbers (including both landline and mobile telephone numbers) and advise the other party of any changes to these details within seven (7) days of such change occurring.
During any period referred to in these Orders, in the event of the child being hospitalised or receiving medical attention, the parent spending time with the child shall notify the other parent as soon as practicable after the first contact with either the medical practitioner, medical centre or hospital.

IT IS NOTED that publication of this judgment under the pseudonym Bannan & Norton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

DUC 238 of 2010

MS BANNAN

Applicant

And

MR NORTON

Respondent

REASONS FOR JUDGMENT

The matter of Bannan & Norton is a parenting application concerning the parenting arrangements for the parties’ child, X, born (omitted) 2005. X’s mother, her husband and his four brothers and sisters live in Queensland. X currently lives with his father and his wife, Ms J, in (omitted).
The matter commenced to be heard in (omitted) before me on 20 and 21 April 2015. The 21 April 2015 hearing was shortened due to personal difficulties. The matter resumed hearing in the Sydney registry on 23 and 24 September 2015. The matter was listed for final submissions on 10 November in Sydney. An application was made by the applicant to tender fresh evidence being the 2014 and 2015 school reports for her children Y and Z. That leave was granted provided the documents were provided to the parties and the Court in 7 days and if provided were to be marked mother’s exhibit 3.
The parties were granted leave or make further submissions via telephone following the release of that material. No further submissions. Exhibit 3 was received by the court on 17 November 2015.
Initially, in (omitted), Mr Stenhouse appeared for the respondent father. At the resumed hearing, Mr Gall of counsel appeared for the respondent father. Mr Keller of counsel continued to act for the applicant mother. I appointed an Independent Children's Lawyer at the conclusion of the matter in (omitted), and Dr B appeared on behalf of the Independent Children's Lawyer in Sydney.
The material I read was as follows:
a)For the mother:
i)Mother’s initiating application filed 25 November 2011.
ii)An affidavit filed 28 February 2015.
iii)A statement prepared by her husband for the 1st hearing marked mother’s exhibit 1.
iv)Case outline prepared by her counsel for the 1st hearing.
v)At the resumed hearing the mother and her husband filed updating affidavits on 18 September 2015 which ultimately became the trial affidavits.
vi)Affidavits of her mother Ms T filed 27 February 2105 and her sister Ms E filed the same date.
vii)The mother, her husband, mother and sister were all cross examined.
b)For the father:
i)Response to initiating application filed 6 December 2013.
ii)Affidavits of himself, his wife, his mother and his mother-in-law, filed in December 2013 for the 1^st hearing in Dubbo.
iii)Trial affidavits of himself and his wife, Ms J, filed 16 September 2015 for the resumed hearing.
iv)The father and his wife were cross examined.
Two family reports have been prepared in the matter. The first was a report prepared by Mr B, dated 19 August 2011, which I read in these proceedings, and Dr H’s report, dated 16 July 2014. Dr H came to court to give evidence.
The exhibited material is as follows:
a)Court exhibit 1: The two family reports.
b)Court exhibit 2: The transcript of 20 and 21 April 2015.
For the father:
a)Exhibit 1: The minute of orders the father initially sought.
b)Exhibit 2: A map of the distance between where the mother lives and the school the children attend in Queensland.
c)Exhibit 3: School reports of X at the (omitted) Public School in 2014, (omitted) School in September 2013, (omitted) Public School for 2012, 2011 and 2010.
d)Exhibit 4: The enrolment form for X at (omitted) Public School.
e)Exhibit 5: An email dated 6 June 2014 from the mother to (omitted) Public School.
For the mother:
a)Exhibit 1: The witness statement of her husband.
b)Exhibit 3: Z and Y’s school reports for 2014 and 2015.
For the Independent Children's Lawyer:
a)Exhibit 1: a printout of the JETGO direct flights from (omitted) to Queensland.
b)Exhibit 2: A 2014 student summary of X from (omitted) Public School.
c)Exhibit 3: A tender bundle, being all relevant COPS entries of the adults, New South Wales criminal history of the relevant adults, family report of Mr B, Queensland Police records of the relevant adults and details of the PDL programme that X is currently enrolled in in.
The short history of the matter is as follows.
The father was born in 1978 and the mother in 1986.
They commenced a relationship in (omitted) 2002.
They married on (omitted) 2003.
The mother alleges that the father was violent towards her during the relationship in her affidavit material to Mr B and in particular to Dr H. I read from Dr H’s family report, paragraph 8:
The dispute, although several years after the parents’ separation, is influenced, in part, by Ms Bannan’s allegation that Mr Norton has often been physically violent to her during their marriage and the early years of separation. She accuses him of having kicked her in the stomach while she was pregnant with X. He had been once found guilty of attacking her with a crowbar, for which he received a one year good behaviour bond. She had taken out a number of AVOs against him, and she had once or twice required medical attention as a result of his violence.
As the evidence unfolded, this is a description of her relationship with her current husband, Mr R. Further I will be making a finding that the violence perpetrated by Mr R on the mother was of a more serious nature than that as alleged by the mother against X’s father.
This important and concerning evidence of serious violence between she and her current husband Mr R, was not revealed by the mother or by Mr R and only came out in cross-examination after subpoenas had been issued by the Independent Children's Lawyer to the Department of Community Services and police.
In oral evidence both the mother and Mr R admitted domestic violence in their relationship but had failed to disclose this to anyone including Dr H. They did not mention at all their tumultuous and violent relationship when they were living together in the (omitted)/(omitted) area.
Both the mother and Mr R now assert that since moving to Queensland in late 2012 early 2013, their relationship has been on an even and steady keel. They both re-iterated that this now stable relationship is what the Court should be focusing on and not their turbulent past relationship and each said they did not think the past was relevant now.
Unfortunately, they were both gravely mistaken and in error to assert that incidents of violence perpetrated on the mother by Mr R from 2011 to August 2013 was not a relevant factor that the court would have regard to in the parenting arrangements for a 10 year old boy.
X was born on (omitted) 2005.
The mother alleges various incidents of violence with the father, Mr Norton, in 2005 and continuing.
In 2006 the parties separate. They divorced in 2007.
The mother re-partnered with Mr R, who is her husband.
The mother has four other children. Z born (omitted) 2008, Y born (omitted) 2009, V born (omitted) 2012 and W born (omitted) 2015. Z’s father is deceased. The other children are the children of the mother and Mr R.
The father commenced a new relationship with Ms K in 2006. He and Ms K have two children, A, born (omitted) 2008 and B, born (omitted) 2009. The father sees little if nothing of these children and X has little, if no, relationship with them although they live in the (omitted) area.
The evidence of the father and Ms Norton were that at the request of Ms K they were waiting for the conclusion of these proceedings to commence a relationship with X’s siblings.
This is a significant sadness for X. I fail to understand why when the child is living in (omitted) and is separated from his mother’s children who are his brothers and sisters and he has brothers and sisters in (omitted) who are his father’s children, his father would not do all he could to ensure he at least has a relationship with some of his siblings.
The reason proffered for this poor parenting decision is unconvincing. It was that as the father was not sure if X was to remain living with him he did not want to start a relationship with his siblings in (omitted) if he was to move to Queensland. Even if X is to live with his mother in Queensland, he will be spending significant time in (omitted) in the holidays with his father and thus could maintain his relationship with his (omitted) siblings on those occasions.
However, after these proceedings are over I am told, and I expect, that X will commence a relationship with his brother and sister in (omitted).
In 2009 consent orders were made in the Dubbo local court for X, to live with his mother and spend time with his father.
Y is born on (omitted) 2009.
The father and Ms A separated in 2009 and the father commences his relationship with his wife, Ms J, in November 2009.
The mother marries Mr R in 2010.
X commences kindergarten at (omitted) Public School in 2010. He transfers to (omitted) School. The mother is struggling to care for X and in a child-focussed and protective way asks the father to care for him for some time in March 2010. The father enrols him in (omitted) Public School, where Ms J teaches.
A recovery order is sought in May 2010 by the mother as the father would not return the child. X returns to live with his mother and commences school at the (omitted) Primary School.
In May 2010, the mother moves from (omitted) to (omitted) and enrols X in (omitted) Primary School.
In late 2010 the mother moves from (omitted) to (omitted) and X continues to attend (omitted) Primary School.
In June 2011 X is enrolled at (omitted) School.
In 2011 the mother files an application seeking to relocate the child’s residence to (omitted).
V is born on (omitted) 2012.
The mother withdraws her application to relocate in September 2012. The father has increased time with X.
The child commences school at (omitted) School in February 2013.
Final orders are made on 15 April 2013 for the child to live with the mother and spend time with his father.
The father files a contravention in August 2013 and the mother admits to that contravention in the Dubbo local court.
In 13 November 2013, the mother files an initiating application seeking to relocate X’s permanent residence to Queensland. The mother moves to Queensland.
An interim hearing is conducted before Judge Dunkley in November 2013 and on 23 December 2103 His Honour dismisses the mother’s interim application, makes orders for the child to live with his father and to spend, effectively, all of school holidays with his mother in Queensland.
To her credit, the mother has paid all the travel costs to enable X to spend time with her and her family in Queensland including airfares. The father never once offered to share in those significant costs. This demonstrates a poor attitude on his part to support X’s all important relationship with his mother and demonstrates a significant commitment from the mother to maintain her relationship with her son.
X commences to attend (omitted) Public School in January 2014, where he remains.
The father marries Ms J on (omitted) 2014.
Dr H completes his report in July 2014.
2015 W is born.
The mother’s evidence was of significant concern to the Court. The mother failed at any time to disclose the significant and profound family violence she had suffered at the hands of Mr R, who from 2010 to the end of 2013, was consuming alcohol to excess on his own evidence in his occupation as a (occupation omitted), was not compliant with medication for depression and where the mother’s injuries at his hands were sufficient to result in hospitalisation.
Mr R caused the mother such a significant injury in 2013 she was in hospital for three days. He has injured her wrist, yelled at her, pushed her, grabbed her, often in the presence of and hearing of the children. The mother and Mr R have had many separations. Each admits to violent outbursts against the other. The mother admitted to hitting him on the head in one encounter. The last recorded incident was in August 2013. The mother not once disclosed any of this concerning history to the Court or either family consultant. Despite, to use the vernacular, downing X’s father to Dr H as a violent thug she failed to down her current husband Mr R as also a violent thug.
This is not the only significant gap in the mother and Mr R’s evidence. There is no medical evidence from Mr R about his current treatment for depression and use of alcohol.
The evidence from the mother and Mr R was that he sees a psychiatrist once every month/six weeks, he takes antidepressant medication. He has been compliant with his antidepressant medication since at least late 2013 early January 2014. Both confirm he has not touched a drop of alcohol since moving to Queensland.
I accept he has not had a drink since moving to Queensland. The Queensland Police records were subpoenaed. No evidence of any of the poor behaviour engaged in (omitted) appears in the Queensland documents. Not only that, both the wife’s sister and mother gave evidence and were cross-examined and each confirmed they have never seen Mr R drink, he has not had a drink while he has been in Queensland and he has been in Queensland for coming on two years. Thirdly, his demeanour in the witness box was calm even when this confronting prior behaviour was being put to him. He attempted to answer questions fairly.
However, Mr R and the mother have a very limited, perhaps naïve attitude to their sad and sorry past. Mr R says he does not like to remember it because he is not proud of it. However, not recalling or not being able to remember or choosing not to remember makes it difficult to fully recover from poor behaviour in the future because you have not fully explored why it occurred in the past.
I accept the sincerity and truthfulness of Mr L’s evidence when he said, “I haven’t touched alcohol – a drop since I moved to Queensland. I lost one family because of alcohol and I know if I drink again I will lose this loving family and I do not want that to occur.” I accept that is sincere and to his credit I accept Mr R no longer consumes alcohol.
Neither the mother nor Mr R could tell me the particular antidepressant medication he is on. This lack of knowledge is a concern.
I accept that Mr Norton behaved poorly towards the mother. Both the mother and Ms K, the mother of his 2 other children have taken out AVO’s against him. Both Mr Norton and Mr R have behaved very poorly and in a violent way towards the mother but Mr R’s behaviour is more recent and was more serious.
Mr Norton has retrieved himself. Ms J was clear there is no poor behaviour between he and she and Ms J was a most impressive witness.
Mr R and the mother say there is no longer any poor behaviour between them however they did not disclose or admit prior poor behaviour and thus I am left with lingering doubt. This is a highly relevant matter when the living arrangements of a vulnerable 10 year old child are at issue.
In the ICL tender bundle, the (omitted) Area Health Service report dated 27 March 2011:
Patient present due to sore hand. Arm was injured during a domestic with husband. Husband grabbed forearm when she went for a phone and squeezed it. Dropped the phone. Iced the arm since.

The mother gave evidence in cross examination that she that she lied about that incident. Her version is that she had tried to grab Mr R’s phone from him, that she hit him on the back of the head when he wouldn’t give her the phone and that is her wrist was injured. At the AVO proceedings she recanted her hospital version of Mr R hurting her and said that she had made it up.
When asked why she has made this story up she replied “I was angry. I will say anything when I am angry “. The notes go on to say:
On 1 January 2011 the mother presents again following a domestic violence situation from a partner. They had had a verbal fight last night and she told him to leave. The partner self-harmed himself and threatened the partner and knocked her into a wall. Left the house with her child.
This must have been a frightening incident for the mother and the children.
On 27 June 2013 the mother was in hospital and was not discharged until 30 June 2013. The notes read:
Patient injured. Headbutted and thrown against a wall. Hit by kitchen furniture. Assaulted by her husband.
When questioned on this most concerning incident Mr R said he does not recall, to use his words “going wild and throwing things around the home”. He does not recall head butting the mother. However, his daughter C in the Department of Community Services files says when she was aged 16 living with her father that he head-butted her due to a clash of wills about her behaviour.
Mr R says he blocks things out. The mother would not admit he behaved in this fashion under cross examination. I find he more than likely did head-butt her in June 2013 just two years ago when X was in her full time care and that she has not disclosed any of Mr R’s poor behaviour.
The mother was in hospital for three days because she was assaulted by her now husband, she was head-butted, punched around the head, kicked and thrown against a wall, dragged around by her hair and hit with kitchen furniture. The children were present. Neither the mother or Mr R in their filed material or to the family consultants chose to;
a)Disclose that incident to the court; or
b)Tell the court why it happened and what they have done to ensure it will never happen again; and
c)How they have dealt with the impact of such violent behaviour on their children.
There are several incidences in the COP entries of the mother yelling at the father in the street in (omitted), the child being present with his dad and being upset.
The mother calls Ms J the father’s wife (omitted). There are text messages to that effect. (omitted) is the wife of the ogre Shrek. The mother’s excuse for this rude and hurtful behaviour was “I get angry and lose control I suppose”.
The attendance of X at school whilst in his mother’s care was nothing short of neglectful. The mother tried to justify his appalling attendance record on his bad ears including that he had to have grommets inserted and other related operations. I accept he had to have grommets and related operations necessitating time off school however these explanations cannot assist in explaining the following evidence.
(omitted) Public School 2010, his first year at school, he was below expected level of learning in many areas. He had total 11 days absence from 19 July 2010 to 12 November 2010. Four explained seven unexplained. In 2010 term 2 X had from 6 May to 28 May 2010 9 days absence all of which were unexplained. Understandably his progress at school was below expected in almost all areas.
In 2011 at (omitted) Public School his attendance from 31 January 2011 to 6 June 2011 records 18 days absence. 12 were explained six were unexplained. In his second semester 2011from 18 November to 25 November he had 17 whole day absences. 12 explained five unexplained.
In semester 1 of 2012 he had 14 days absences. Seven explained seven unexplained. His report states:
X has tried hard this semester, although he has not demonstrated an understanding of concepts taught.
Concerns about his behaviour:
X needs to recognise that his safety depends on this behaviour.
In the second semester of 2012 there are recorded 13 days absences. Five explained 8 unexplained. Not surprisingly his English was basic. Personal development, creative arts and maths was sound. In all other areas he was achieving at a basic level. This is not surprising given his poor attendance at school.
From (omitted) School we have a one page document which states:
Below the expected: talking and listening, reading, writing, handwriting, mathematics, integrated studies, neatness, time management, punctuality.
Spelling was at the expected level:
X displays a committed attitude at times, lacks motivation to maintain it. X is able to focus and concentrate on his work when he tries. He regularly needs to be reminded to complete his homework.
These reports reveal basic academic achievements. He was only absent two days in semester one of 2013 which was pleasing and a significant positive change.
In the second semester of 2013:
X is having difficulty keeping pace with Stage 2 outcomes in maths and English. He is not showing the improvement expected and ability to work through unfamiliar problems or grasp abstract concepts as other children have.
He was achieving basic level only. He was absent for 10 days in the second semester of 2013. X has some skills at art and is a keen and talented sportsman.
The (omitted) School end of the year report for 2014 spans effectively time whilst living full time with his father and Ms Norton. His mid-year report states:
His commitment towards homework and home reading has been encouraging. His ability to model school values towards his peers and school life is developing. He has received encouragement to participate positively towards his learning and giving a focused approach.
He had basic achievement in science and technology, human society and development, talking and listening, reading and writing. Mathematics was a little easier. He was quite good at number patterns and algebra. X had assistance at school to read. He was absent, on the first semester when he was in his father’s care, no days. In the second semester he was absent one day. This is a stellar change in his school attendance in his father’s care to that in his mother’s care.
X’s commitment to his school life is excellent, as is his application towards weekly homework. X has the capacity to model school values and is developing an awareness of respect of his peers in all settings.
As I read these reports, this is a pleasing and positive turnaround in those 12 months. That positive progress has continued for X, most fortunately, in the education-orientated home of the father where X is an only child and the structures and routines are set to satisfy his needs and only his needs.
Looking at the 2014 Student Summary for X, he was clearly having difficulties early in 2014 in settling into the schoolyard and playing with peers. As Dr H opined, this would not be unusual, given he had been separated from his mother, who he had always lived with and with whom he has a very close, attached and primary bond.
He was engaging in attention-seeking behaviour which the school appears to see as a problem in late 2014. However looking at the attention seeking behaviour I am not convinced that it was an issue in November 2014. It might be better described as showing off.
He demonstrated consistent homework application. His home reading always done. He swore at a student in September 2014 however no one knows what the student said to him. There issues about pushing students which is not surprising in the playground with rambunctious boys playing with balls. They are bound to push each other at times.
What is pleasing is that the positive comments outweigh the negative comments including his PBL behaviour and consistent class awards. In March 2015 there was an incident where X is reported to have put his finger up another boy’s bottom and tells a teacher he has had sex with his cousin. X said, “We play parent games.” The school contacted the father and both Ms J and the father attended and they with the school put together strategies to help X. He is playing soccer to develop his peer skills and interaction with other students. The father and Ms J each said they talk to X about consequences of poor behaviour.
One can see from his student record that the father and Ms Norton are extremely responsive to the school. As soon as the school contacts them, they are there the next day. They are totally focused on this child. They have him enrolled in karate, which he enjoys and soccer, which he enjoys and in their care, he is progressing well. One may even use the word thriving.
The mother has shown a limited capacity to provide for X’s educational needs and his structured needs. For example, organised sport after school and on the weekends and a consistency in homework and school rules and carrying out tasks that a child may not want to carry out but are important for his growth and development.
I had no evidence from the mother about how her other children are progressing at school, their attendance record, her commitment to attend the school and react quickly and promptly to concerns about her children. I accept she has four children to care for and has just had a baby of six months but she asks that X be returned to her care into her environment and that she is the parent best placed to parent him and this evidence was vital thus I allowed the mother to re-open her case and provide Z and Y’s school reports for 2014 and 2015.
Looking at those reports Y is developing in Maths, Science and History and needs help in English. Z is developing in History and Geography but needs support in English and Maths. Both girls are well behaved students who have each received various school awards gold and silver for behaviour.
However Y had 10 unexplained absences in the school year 2015, and 12 explained absences. This was the same for Z. This mimics X’s poor school attendance whilst in his mother’s care. The girls’ attendance in 2014 was excellent with only one unexplained absence and 3 other absences.
Thus the school reports of X’s sisters cement my concerns of the mother’s inability to maintain X’s current exemplary school attendance in (omitted) if he is to live in Queensland.
Looking at X’s emotional needs he has a right to know and be loved by each of his parents, to have a relationship with each of his parents and other significant adults. X’s mother has a superior capacity to the father to provide for his emotional needs. Despite the significant distance between she and her son, the mother still manages to be a solid emotional support for her son. He is closely attached to her. He misses her most as Dr H reported and he is able to freely speak to her on all issues. The mother is concerned he is not free to speak to her however the evidence is he can and does frequently. He receives a benefit from his communications with his mother. I find he can contact her and speak to his mother effectively whenever he wants and he does so.
Dr H agreed that the mother shows an impressive capacity to emotionally provide for and parent her son over distance. This may well be a testament to the strength of their relationship and his primary attachment to her, as well as her own nurturing and emotionally empathic capacity, which she demonstrates I expect, with all her children.
The father and Ms Norton have in the past behaved very poorly in relation excluding the mother from X’s schooling and his right to spend as much time as he can with his mother. Ms Norton wrote two emails to X’s school, effectively trying to exclude the mother from spending time with the child at school when she came to (omitted) in early 2014. This was just after X had been placed in his father’s full time care and he permitted the mother to spend only 20 minutes with the child. This was decision was not child-focused and was not in X’s best interests.
X was struggling being away from his mother. His father looking at the matter from X’s best interest should have realised this and he and Ms Norton should have facilitated him spending maximum time freely with his mother to assist him to adjust to living in their household.
It is true that the parental relationship has improved lately and it is most pleasing to see that on two occasions this year, the father has agreed for X to spend additional time with his mum. One was a wedding of his aunt, the mother’s sister, in Queensland and X flew to Queensland and was Mr R’s mother’s 60^th birthday in the (omitted) area. X spent the weekend on a farm with his mother’s other children and his siblings.
Ms Norton says she has learnt that her behaviour previously when X first came into her care was inappropriate, that she was perhaps, reacting to what I see as real hostility from Ms Bannan about her. There is a poor relationship between these two women. The mother would do well to look at her own behaviour as to why this is the case for, whether she likes it or not, Ms Norton does provide a mothering role for her son. The mother should be pleased that this mothering role is assisting her son with his education and his behaviour generally at school and with other children. X was on a trajectory of poor outcomes at school, both as to attendance, behaviour, friendships as well as academic progress, in his mother’s care had matters continued as they had been from the time he commenced school.
Ms Norton says that she has learnt to leave these matters to the father to deal with. That it is between him and the mother. She is pleased to see that the father and mother are communicating and agreed it was an excellent outcome for X when he went to his auntie’s wedding and Mr R’s mother’s party.
His father described his behaviour when he returned from these events as really excited, he talked to them about what he had done and his father said:
It was just terrific. It’s really great. It’s just what I want.
His father opined he would love to be able to take his son out to dinner with just he and the mother. He realises this is probably something he cannot achieve but the father and Ms Norton have, no doubt, from reading Dr H’s report, as well as being now settled and confident in the care of X and with his progress being so pleasing, calmed down. They no longer need to prove themselves because they have proved themselves as most effective and competent parents for this little boy who was on a pathway where the outcome could have been very different to what it is today.
The stability they bring to X in their parenting of him and their focus on his needs alone have worked well for X. This parenting confidence is clearly allowing them to let go and see the benefit for X of spending as much time with his mother and extended family and various siblings as is possible. X’s need to spend time with his mother is not threat to their parenting or his relationship with them.
The mother’s application is for the child to re-locate to Queensland. The father asks he remain in (omitted) with him.
Dr H said although he did not express a wish, X would prefer to live with his mother, his brothers and his sisters. Paragraph 52:
X faces restricted time with one or other of his parents wherever he lives.
Dr H confirmed that whichever decision I make, there are costs to X.
Although he remains largely ambivalent, his leaning to want to live with his mother deserves some consideration given his age and relative maturity. On balance, because Ms Bannan is likely to facilitate X’s contact and time with his father, it seems it would be in the best interests of the child to live with her and his half siblings and to spend the bulk of school holidays with his father.
He talked about X experiencing a lonely life with his father because he is an only child, that he has brothers and sisters in Queensland. However, X did not demonstrate a significant attachment to his siblings, as often is the case, his most significant attachment was to his mother.
I disagree with an assessment that X has a lonely life with his father. He spends time with his grandparents, aunts, uncles and cousins he has sleepovers with friends at his home and at other children’s home. This assessment was not supported on the evidence.

Looking at the section 60CC factors under the Act

I will not rebut the presumption of equal shared parental responsibility. Each of the parents wants to share this responsibility and they should. They have much to offer their son. The mother is his closest emotional attachment and she is nurturing and able to nurture and provide for these needs from a distance, a most commendable and impressive capacity. He benefits from a meaningful relationship with each of his parents, of that there is no doubt. Whichever order I make one relationship with one parent will not be a fulsome as it may be due to the significant distance between (omitted) and Brisbane.
X has been exposed to poor behaviour, violence, abuse and neglect in his mother’s household, perpetrated initially by his father upon his mother and latterly by Mr R upon his mother. His mother was unable to protect him from the poor behaviour of each of these men who are significant in his life. However, the father’s behaviour, for many years, certainly since meeting Ms J in 2009, has turned around and I accept unreservedly his and Ms Norton’s evidence that his home is a calm, child-focused, harmonious, happy home. The father said “We get on great. It’s really happy.” I accept that evidence.
Similarly, I accept that since moving to Queensland the mother’s life has changed for the better. The mother’s desire to move was for she and Mr R to have a fresh start, for her to have the support of her mother and her sister, which she has in Queensland and provide a better quality of home and lifestyle for her children and this she has achieved. X is not her only child and she made a difficult choice of what was best for all her children. I make no criticism of her actions at all.
I accept the mother now lives in a quality home on acreage in what may be regarded as a mini farm close to the beach. This is a most suitable environment for children and she and Mr R have created a better life for their family than that which they had achieved in (omitted).
Mr R has received a workers’ compensation payout which he gave to the mother. I accept she is the money manager in that home. They are debt free, they have a brand new car and they have money in an interest bearing account saving up to purchase their own home. Their life has taken an upward trajectory. Neither of them are working at present. Mr R has a significant injury. I could see the pain in his face and in his body when he was standing up to give evidence. Ms Bannan has just had a baby who is six months of age. The mother’s children have 2 parents at home in what I would regard as a very appropriate environment for them and X, surrounded by other family members cousins and the like attending the same school as their cousins.
So for X, both his parents are in a far better place than they have ever been and this may reflect why he is doing so well as both his parents are also doing so well.
Wishes of the child. Dr H believed X’s preference was to live with his mum and his father agrees. His father said he misses his mum and he would probably love to live with his mum but X’s words were and I could put it no better myself at paragraph 44-5:
X predicted he would be a little bit upset by a Court decision that he continue to live with his father, because he would miss his mother, brother and sisters. He anticipated he would be a little bit happy and a little bit sad by a Court decision to live with his mother because he would not see his father.
There is a slight preference. X is torn; he loves both of them and with that level of attachment he would be happy living with either of his parents, because he has a strong, attached relationship with each of them and he has a strong and attached relationship with each of his parents’ spouses. I have no doubt Mr R and X do many activities together and they enjoy each other’s company. I have no doubt X and Ms Norton do many activities together and they enjoy each other’s company. X enjoys his extended maternal and paternal families as well. X has a very large, extended, welcoming family in Queensland and in (omitted).

Ms Norton has a good relationship with Ms K, the mother of the father’s two other children and I am confident these women will be able to arrange for X’s brother and sister to stay over and sleep over at each other home in the near future.
X has friends sleep over and sleeps over at friend’s home in (omitted).
I accept whichever home he lives in he will engage in these extending relationships with family and friends.
X has strong and attached relationships with all the adults, siblings and extended family members in his life. He is a much loved child. His primary attachment is, however, still with his mother. His attachment to his father has blossomed in the last 12 months as he is living with him daily.
The parents have each taken every opportunity to spend time with and communicate with their child.
The mother has a superior capacity to the father to promote the child’s relationship with her than the father has demonstrated he has to promote X’s relationship with his mother in the past. However, I accept he and Ms Norton have realised the error of their ways and have this year facilitated important additional time with X and his mother, no doubt due to them feeling more secure in their parenting of him and realising this is in X’s best interests. I find the father and Ms Norton have the capacity to be able to facilitate X’s time with his mother in the same fashion the mother has the capacity facilitate his time with the father.
I find the father has failed to maintain his son financially to the best of his ability in allowing the mother to pay for each and every flight to and from (omitted). Whether Judge Dunkley’s orders did or did not say or imply that the mother was to pay for all flights, there is nothing in those orders that says the father cannot pay for the odd flight or two. I will be making orders that this cost is equally shared in the future.
The significant factor in this matter is the impact on X of change if I accede to the mother’s application. He is doing so well at school. He is on a positive upward trajectory. He is in a home where the focus is on him. He receives one on one attention from Ms Norton and his father in an environment which has a proven track record to assist, promote and maximise this child’s behaviour, his learning and his ability to become an adult who has maximised his potential.
The mother’s track record is not good in relation to his schooling, his education and his ability to socialise. The evidence of her daughters’ poor school attendance in 2015 mimics what occurred with X.
Her comments in her affidavit that Mr R demonstrates a better way for a boy to model male behaviour on in the treatment of women than his father does and that Mr R shows a better way than the father to teach X how men behave in and this is the man the mother wants X to be is not supported on the evidence. Mr R has an alcohol problem, he perpetrated significant violence on her over a period of 4 years requiring 3 days in hospital on one occasion and X witnessed much of this behaviour.
The mother is blinkered. Even if I accept every matter she raises against the father in relation to violence Mr R’s behaviour was far more serious and extreme than the father’s.
If X moves to his mother’s care, he will be attending a different school albeit one where his siblings and cousins also attend. His mother does not have a good track record for his schooling and educational needs in stark contrast to his father.
He will be living in home with 4 other children sharing his mother’s; time with them. He will not be the sole focus for his mother as he is for his father. I accept the mother is studying to be a (occupation omitted) and will be the main bread winner given Mr R’s injuries.
Neither the mother nor Mr R have demonstrated similar capacities of the father to steer a clear path for X’s education and other social needs with behaviour. The mother will have 5 children to care for, she will be stretched, particularly when she will be the adult going to work with Mr R as the stay home parent. I have little faith, with no criticism, that Mr R can steer the course for X’s development as closely and as well as it has been steered by the father and Ms Norton.
X has blossomed on the one on one, child focus on him, the attention he is given the structured and clear routines his father and Ms Norton have provided for him.
There is a significant difficulty and expense with X spending time with his parent no matter where he lives. The direct flight from (omitted) to Brisbane makes it easier for X and he is already and seasoned traveller. X can communicate with the other parent by telephone, Skype, Facetime and the like no matter with which parent he lives. X is well able to communicate by these methods into the future as he has done in the past. X and his mother have managed supportive and nurturing relationship by these means of communication over distance and as he grows and ages, that will become even easier.
The father has a far greater capacity to provide for the child’s educational needs, his structure, his routine, his relationships, fitting into society. The mother has a greater capacity to provide for the child’s emotional needs.
The parents each have a positive attitude to their child and responsibilities of parenthood. The mother was sorely lacking in relation to implementations educational structures and a sound routine. The evidence supplied by the mother in relation to Y and Z’s school attendance has not satisfied me she has addressed this lack of capacity let alone is approaching the father’s capacity.
The father in the past demonstrated a limited capacity to provide for his son’s emotional needs to spend time with and communicate with his mother freely and as often as it could be done in contrast to her capacity to do so. However, he has addressed that deficit.
On balance, to disrupt and potentially interrupt permanently this child’s positive trajectory of doing well at school, having friends, fitting in with society, being able to accept rules and engage in mainstream society, which is a possibility with him moving to Queensland to his mother’s home is what I regard as the balance. Such a move is an experiment.
I favour the child, as the Independent Children’s Lawyer says, remaining in the father’s care so that the good work he and Ms Norton have put into X will continue and he will reap the benefits of being, an only child in a very child focused home.
For all those reasons, I favour the child remaining with the father as the order in his best interests and I make the orders sought by the Independent’s Children Lawyer in Independent Children’s Lawyer exhibit 1. These orders provide for the child to have time with his mother as much as is possible, given the distance they are apart and for the parents to equally share the costs of facilitating that time.

I certify that the preceding one hundred and forty (140) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Date: 29 January 2016

[2016] FCCA 141

29 January 2016

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Areas of Law

Family Law