Beltran & Preston
[2025] FedCFamC1F 102
•25 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Beltran & Preston [2025] FedCFamC1F 102
File number: NCC 1850 of 2022 Judgment of: AUSTIN J Date of judgment: 25 February 2025 Catchwords: FAMILY LAW – PARENTING – Final orders – Where, for years with the parties’ consent, their two sons have lived with the father and their daughter has lived with the mother – Where the mother has not complied with interim orders – Where the mother has not facilitated the youngest child spending time with the father as ordered – Where the mother breached an interim injunction restraining her from moving too far from the father – Where the mother amended her application throughout the hearing – Where the mother sought orders for the two youngest children to live with her within a certain proximity to the father – Where counsel for the mother conceded there was no evidentiary foundation for the second child to live with the mother – Where the father sought orders for all children to live with him – Where the youngest child suffers from significant medical disorders – Where the father contended the mother’s diagnosed psychological conditions were liable to result in the youngest child’s needs being neglected – Where the mother has satisfactorily met the youngest child’s developmental, physical, psychological, and emotional needs – Ordered the two eldest children live with the father and spend time with the mother – Ordered the youngest child live with the mother on condition the mother relocates her residence closer to the father. Legislation: Family Law Act 1975 (Cth) Pts VII, VIIIAB, Div 8, ss 60B, 60CA, 60CC, 61B, 61C, 61D, 61DAA, 61DAB, 64B, 65AA, 65D, 69ZN, 69ZP, 69ZQ, 69ZX, 90RD
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 7.01, 8.15
Cases cited: AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
Franklyn & Franklyn [2019] FamCAFC 256
Oberlin & Infeld (2021) FLC 94-017; [2021] FamCAFC 66
Sampson v Hartnett (No 10) (2007) FLC 93-350; [2007] FamCA 1365
Division: Division 1 First Instance Number of paragraphs: 92 Date of hearing: 10–12 February 2025 Place: Newcastle Counsel for the Applicant: Mr Murray Solicitor for the Applicant: Toronto Legal Counsel for the Respondent: Mr White Solicitor for the Respondent: Voros Lawyers Counsel for the Independent Children's Lawyer: Mr Mooney Solicitor for the Independent Children's Lawyer: Jennifer Blundell & Associates Pty Ltd ORDERS
NCC 1850 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BELTRAN
Applicant
AND: MS PRESTON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
25 FEBRUARY 2025
Order amended pursuant to Rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 on 26 February 2025
THE COURT ORDERS THAT:
1.All former orders in respect of the following children are discharged:
(a)X, born 2009 (“X”);
(b)Y, born 2016 (“Y”); and
(c)Z, born 2021 (“Z”).
2.The father and the mother shall retain parental responsibility for X and Y, but in respect of whom the father has sole decision-making authority for all “major long-term issues” as defined in s 4(1) of the Family Law Act 1975 (Cth).
3.X and Y shall live with the father.
4.The parties shall take all reasonable steps to ensure X and Y spend time with the mother:
(a)during school terms, each alternate weekend from 5.00 pm Friday until 5.00 pm Sunday, commencing on the first Friday of each term;
(b)in the Autumn, Winter and Spring school holidays, from 9.00 am on the first Saturday of the holidays until 5.00 pm on the following Saturday;
(c)in the Summer school holidays,
(i)when the holidays start in December of an odd-numbered year, from 9.00 am on Boxing Day until 5.00 pm on 8 January; and
(ii)when holidays start in December of an even-numbered year, from 5.00 pm on Christmas Eve until 5.00 pm on 6 January.
(d)from 9.00 am until 5.00 pm on Mother’s Day.
5.For the purpose of implementing Orders 3 and 4, unless otherwise agreed in writing, the parties shall exchange X and Y at the father’s home.
6.The mother:
(a)shall, by 11 April 2025, establish her residence at an address within a radius of 50 kilometres from the police station at Suburb D, NSW;
(b)is thereafter restrained from establishing her residence outside that radius for the remainder of Z’s minority; and
(c)shall forthwith furnish to the father a copy of any residential lease into which she enters at any time after the date of these orders for the remainder of Z’s minority.
7.Subject to the mother’s compliance with Order 6:
(a)Z shall live with the mother.
(b)the mother and the father shall retain parental responsibility for Z, but in respect of whom the mother has sole decision-making authority for all “major long-term issues” as defined in s 4(1) of the Family Law Act 1975 (Cth).
(c)The parties shall take all reasonable steps to ensure Z spends time with the father:
(i)during school terms before the Winter school holidays in 2025, each alternate weekend from 5.00 pm Friday until 5.00 pm Saturday, commencing on the second Friday of each term;
(ii)during school terms after the Winter school holidays in 2025, each alternate weekend from 5.00 pm Friday until 5.00 pm Sunday, commencing on the second Friday of each term;
(iii)in the Autumn and Winter school holidays of 2025, for periods of 24 hours starting at 5.00 pm on the first, third and sixth nights of the week during which X and Y live with the father;
(iv)thereafter, in the Autumn, Winter and Spring school holidays, from 5.00 pm on the second Saturday of the holidays until 5.00 pm on the last Sunday of the holidays;
(v)in the Summer school holidays which start in December of an odd-numbered year:
A.from 5.00 pm on Christmas Eve until 9.00 am on Boxing Day; and
B.from 5.00 pm on 8 January until 5:00 pm on 22 January.
(vi)in the Summer holidays which start in December of an even-numbered year:
A.from 5.00 pm on 23 December until 5.00 pm on Christmas Eve; and
B.from 5.00 pm on 6 January until 5.00 pm on 20 January.
(vii)from 9.00 am until 5.00 pm on Father’s Day.
(d)from 9.00 am until 5.00 pm on Father’s Day.
8.In default of the mother’s compliance with Order 6:
(a)Z shall instead live with the father.
(b)the father and the mother shall retain parental responsibility for Z, but in respect of whom the father has sole decision-making authority for all “major long term issues” as defined in s 4(1) of the Family Law Act 1975 (Cth).
(c)the parties shall take all reasonable steps to ensure Z spends time with the mother:
(i)during school terms, each alternate weekend from 5.00 pm Friday until 5.00 pm Sunday, commencing on the first Friday of each term, during which time the mother is restrained from removing Z from within a radius of 50 kilometres from the police station at Suburb D, NSW;
(ii)in the Autumn, Winter and Spring school holidays, from 9.00 am on the first Saturday of the holidays until 5.00 pm on the following Saturday;
(iii)in the Summer school holidays,
A.when the holidays start in December of an odd-numbered year, from 9.00 am on Boxing Day until 5.00 pm on 8 January; and
B.when the holidays start in December of an even-numbered year, from 5.00 pm on Christmas Eve until 5.00 pm on 6 January.
(iv)from 9.00 am until 5.00 pm on Mother’s Day, during which time the mother is restrained from removing Z from within a radius of 50 kilometres of the police station at Suburb D, NSW.
9.For the purpose of implementing Orders 7 and 8, unless otherwise agreed in writing, the parties shall exchange Z at the father’s home.
10.Each party is restrained from denigrating the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.
11.Each party shall notify the other of any medical emergency, illness or injury suffered by the children whilst in their respective care warranting treatment by a third party.
12.Each party shall inform the other, and keep the other informed, in writing of their respective current residential address, mobile telephone number and email address.
13.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
14.The Independent Children’s Lawyer is discharged upon the latter of the determination of any appeal or the expiration of the applicable appeal period.
15.Any other outstanding applications under Pt VII of the Family Law Act 1975 (Cth) are dismissed.
16.The financial cause of action under Pt VIIIAB of the Family Law Act 1975 (Cth) is listed for procedural directions at 9.30 am on 11 March 2025.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Beltran & Preston has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN J:
These proceedings under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) are contested between the parents of three children.
For some years, with the parties’ consent, the two eldest children (who are boys) have lived with the father, while the youngest child (who is a girl) has lived with the mother.
No persuasive case was made by the parties or the Independent Children’s Lawyer (“the ICL”) to fundamentally depart from the current voluntary arrangements, which are now perpetuated, subject to the mother establishing her home closer to the father, as she agreed she could and would.
BACKGROUND
The parties were never married.
The parties’ de facto relationship broke down in May 2018. A declaration was made to that effect by another judge under s 90RD of the Act in May 2023, though the mother still insists their de facto relationship did not break down until April 2021.[1]
[1] Mother’s affidavit at [7], [111]
When their de facto relationship broke down in 2018, the mother vacated the family home.[2] The two eldest children, then aged nine and two years, remained in the father’s primary care and thereafter spent time with the mother on weekends and during holidays.[3] The parties acquiesced to that ad hoc arrangement for years.
[2] Mother’s affidavit at [68]
[3] First Family Report at [14], [25], [60]; Mother’s affidavit at [69]
The parties persisted with a sexual relationship. The youngest child was not born until 2021.[4]
[4] Mother’s affidavit at [80]
The father commenced these proceedings in June 2022, as he felt the mother did not allow him sufficient involvement in the youngest child’s life.
The parties are still in financial dispute under Pt VIIIAB of the Act, but the two causes were bifurcated in February 2024 by another judge and these reasons deal only with the parenting dispute. The financial cause will be heard in due course.
Interim orders were made in August 2022 with the parties’ consent, providing for the parties to have equal shared parental responsibility for the children, for the two eldest children to live with the father, for the youngest child to live with the mother, and for the children to spend time regularly with the non-residential parent. The implementation of those interim orders has not been easy.
First, the mother has evidently breached the orders by not facilitating the youngest child’s time with the father, which time was to graduate and culminate in overnight stays in two of every three weeks. The youngest child still only spends several daytime hours with the father on those occasions. The mother has not yet allowed the youngest child to spend a single night with the father. In cross-examination she tried to imply that was the father’s choice, but the implication is rejected. It suited the mother for the youngest child not to spend more time with the father.
Secondly, in January 2023, on the father’s application, the Court had to direct the mother to return the two eldest children to the father or otherwise suffer the execution of recovery orders. Additionally, an injunction was made restraining the mother from living too far from the father and the two eldest children, in default of which obligation the youngest child was required to move and live with the father and her siblings. The father and ICL could consent in writing to her living farther away, but she conceded in cross-examination they had not consented.
Thirdly, despite the terms of that restrictive injunction, the mother and the youngest child now live in two places – City E and Sydney. The mother conceded in cross-examination she spends as much, if not more, time in City E. The mother maintains an apartment in Sydney and travels between the two homes to enable the children to spend time with each parent. In a conciliatory spirit, the father elected not to try and enforce the order reversing the youngest child’s residence on account of the mother’s ostensible breach of the injunction. He lives with the two eldest children in City F, as he has done since separation.
PROPOSALS
The father initially sought the orders proposed in his Further Amended Initiating Application filed on 20 September 2024. In effect, he wanted sole parental responsibility for the children, for them to live with him, and for them to spend time with the mother, provided she poses no risk of harm to the children and chooses to live within 150 kilometres of their schools. His proposal was largely in line with the proposal he discussed with the court child expert in June 2023.[5]
[5] First Family Report at [18], [64], [65], [70]
At the close of the evidence, the father tendered a fresh Minute of Orders revising his proposal slightly.[6] He resiled from the condition requiring any finding to be made about the mother posing a risk of harm to the children, but tightened the requirement for her to live within the closer distance of 50 kilometres.
[6] Exhibit F1
The mother’s proposal was a moving feast.
When she conferred with the court child expert in June 2023, she wanted all children to live with her and was content for the two eldest children, though not the youngest child, to unconditionally spend expansive amounts of time with the father.[7]
[7] First Family Report at [19]–[20], [60], [64]–[65], [71], [113], [126]
Only a few months later, when she filed her Amended Response on 13 October 2023, she still wanted all children to live with her, but her proposals for the children to spend time with the father were profoundly confused, both as to their finality and the need for the father’s fulfilment of numerous aspirational conditions (proposed Orders 13–26), which conditions included the father completing education programs, undergoing psychological evaluation, complying with psychological treatment plans, furnishing the mother with expert evidence of his ongoing parenting capacity, working with a “Family Preservation Service” (whatever that means), and submitting to at least an initial period of professional supervision with the children.
In September 2024, the mother was ordered to file any Amended Response in readiness for the trial,[8] but she did not do so. Yet, when the trial commenced in February 2025, the mother announced the abandonment of her application for all children to live with her. She pressed only for the residence of the two youngest children and accepted the eldest child should remain living with the father, believing he would probably eventually choose to move and live with her anyway. She also wanted permission granted for her and the two youngest children to live in City E.
[8] Order 4 made on 4/9/24
Near to the end of the father’s cross-examination, the mother’s counsel announced to the Court how her application was amended in another significant way. She abandoned her application for the tight restrictions conditioning the time which the two youngest children would spend with the father and, instead, she was content for them to spend substantial amounts of unsupervised time with him, incorporating seven weekends in each school term and one-half of all school holiday periods, which regime would implicitly necessitate them living within reasonable proximity.
Before final submissions commenced, the mother tendered a Minute of Orders she proposed.[9] In summary, she proposed that the two youngest children live with her in City E, which application was impossible to reconcile with the evidence she gave in cross-examination the day before of her willingness to forthwith move to City F to ensure the two children who live with her are then able to spend expansive amounts of time with the father and eldest sibling.
[9] Exhibit M2
During the mother’s final submissions, her counsel orally amended the mother’s application in multiple ways. Many proposed orders were abandoned.[10] Ultimately, she wanted the two youngest children to live with her at some place within a radius of 150 kilometres of City F, but for them to still spend expansive amounts of time with the father and sibling. Although the mother pressed her application for the residence of the second child, her counsel conceded there was no evidentiary foundation for such an order to be made, in which event the mother’s application really devolved to an application to retain the residence of the youngest child.
[10] Exhibit M2, proposed Orders 1, 4, 9, 10, 12, 34, 35, 36, 41.4, 41.5, 44 and 45
No rational explanations were advanced by the mother (either in evidence or by submissions) for her dramatic changes in attitude after her discussion with the court child expert in June 2023, when she filed her Amended Response in October 2023, when she started the trial, during the trial, at the conclusion of the evidence, or during final submissions. Her changing proposals seemed entirely arbitrary and disconnected from the evidence upon which she relied.
At the outset, the ICL foreshadowed seeking orders for all children to live with the father, but did not tender any Minute of Orders. Instead, the ICL supported the father’s proposal, subject to some minor variations.
EVIDENCE
The parties decided to ignore procedural orders requiring their affidavits to be filed by 20 December 2024.[11]
[11] Order 5 made on 4/9/24
The father relied upon his affidavit filed on 3 February 2025, which was in the mother’s hands for six days ahead of the trial.
The mother relied upon her affidavit filed on 9 February 2025, which was not served until the morning the trial was due to start. To overcome the procedural unfairness such late service of process wrought upon both the father and the ICL, the start of the trial was delayed by several hours.
The voluminous annexures to the parties’ respective affidavits did not form part of their evidence-in-chief (r 8.15(3)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”)). The parties and the ICL were invited to tender any documents they regarded as being relevant to and probative of any fact in issue, but few were tendered.[12]
[12] Exhibit ICL1, Exhibit ICL2 and Exhibit M1
At a procedural hearing conducted on 4 September 2024, five months ahead of the trial, the mother was refused permission to rely upon numerous witnesses she nominated. The refusal was empowered by ss 69ZN(4), 69ZP, 69ZQ(1)(a), 69ZX(1) and 69ZX(2) of the Act.[13] The mother accepted the evidentiary decision and did not renew her application to rely upon any of those witnesses, or any others, at any time up to or during the trial.
[13] Notation A made on 4/9/24
To clarify, the procedural orders only stopped the mother from calling her treating psychologist to give opinion evidence beyond the remit of her expertise about the mother’s parenting capacity, any opinions expressed about which were the province of the court child expert. Had the mother wanted to, nothing stopped her from calling her treating medical practitioners to give evidence about her various diagnoses, treatments and prognoses (r 7.01 of the Rules).
The parties and the ICL relied upon two family reports, dated 14 February 2023 and 22 September 2024, compiled by the court child expert.
LEGAL PRINCIPLES
Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation (s 60B).
When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (s 60CA and s 65AA) and the Act specifies the criteria which must be considered when determining the form of orders which meets and promotes the child’s best interests (s 60CC).
Parental responsibility for children is vested in their parents (s 61C(1)), regardless of whether they live together or are separated (s 61C(2)), but that situation only applies whilst ever no order is made to change it (s 61C(3) and s 61D). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B).
When an order is made allocating parental responsibility for a child or children in relation to “major long-term issues” to more than one person, the order may prescribe whether those persons have joint or sole decision-making authority in relation to all or only specified issues (s 61D(3)). The Act defines “major long-term issues” to include those such as the child’s education, religion, culture, health, name, and changed living arrangements (s 4(1)) and defines what “joint decision-making” requires in respect of decisions about such issues (s 61DAA). One person allocated with parental responsibility for a child need not be consulted by another person allocated with parental responsibility in respect of minor decisions made for the child which fall outside “major long-term issues” (s 61DAB).
Since amendments were made to the Act, operable as from 6 May 2024, parental responsibility orders no longer have any bearing upon determinations made about with whom a child should live or spend time.
CHILDREN’S BEST INTERESTS
The children are not indigenous, so s 60CC(1)(b) and s 60CC(3) of the Act do not apply.
Sections 60CC(2)(a) and 60CC(2A)
This litigation was replete with countervailing allegations made by the parties and the ICL of unacceptable risks of harm to the children.
At the commencement of the trial, the parties and the ICL were asked to nominate the factual findings of such risks, for which they expected to advocate at the close of the evidence.
The father and the ICL both contended the mother’s diagnosed psychological conditions were liable to cause her to neglect the youngest child’s needs and thereby compromise her physical safety. Accordingly, they only sought to engage s 60CC(2)(a) of the Act against the mother for reasons of neglect – not family violence or abuse.
Conversely, the mother did not contend for any form of risk posed by the father. She asserted only that her parenting skills were superior and the father lacked the capacity to meet the emotional needs of the second child, whose residence she wanted to take from him, so her case did not engage s 60CC(2)(a) of the Act at all. The mother did not contend that the children’s safety, while in the father’s permanent or temporary care, was compromised by the prospect of their subjection or exposure by him to family violence, abuse or neglect.
Before moving on, however, it is necessary to address allegations of family violence, which seems to be a simmering factual issue for the mother, even though it had no material bearing upon the outcome of the case she chose to conduct. Over the course of the litigation, the mother has made unspecific allegations of the father’s past controlling and coercive conduct towards her. She made the allegations to the court child expert,[14] to a consultant psychiatrist in January 2025,[15] and in her trial affidavit.[16] However, as the court child expert correctly observed,[17] the mother’s allegations were vague and unattended by any factual detail. Even when pressed by the court child expert, she could not give any concrete examples. The allegations did not rise above the mother’s generalised and subjective conclusions.
[14] First Family Report at [38], [40], [51]
[15] Exhibit ICL2
[16] Mother’s affidavit at [14], [77], [106], [110], [128], [253] and [254]
[17] First Family Report at [41], [51], [93]
The mother’s belief in the family violence perpetrated by the father, supposing her belief to be genuine, seems quite inconsistent with her concessions of there not ever having been much conflict between them,[18] her denials to numerous third parties of being the victim of any family violence perpetrated by the father,[19] and her voluntary return to live with him for a while.[20] In addition, the father vigorously denied committing any family violence to the court child expert,[21] he was not challenged in cross-examination with the mother’s allegations of family violence, and he generally presented in Court as a calm, thoughtful and gentle man. He seemed genuinely hurt by the mother’s allegations.[22]
[18] First Family Report at [35]
[19] Second Family Report at [4]
[20] Second Family Report at [6]
[21] First Family Report at [43]
[22] First Family Report at [55]
No finding of family violence was sought and none is made.
Turning then to the allegations of the risk of the youngest child’s subjection to the mother’s neglect, the evidence fell well short of establishing the proposition.
The allegations were primarily premised upon this observation by the court child expert:[23]
10.… This is significant as there are at least three known incidents of [the mother] having made decisions which have placed [the youngest child] at risk of serious harm and/or lethality. These being:
a)[In late] 2021, inserting [the youngest child’s medical equipment] when not yet certified to do so. (Noted in the Family Report)
b)[In late] 2022, [the mother] attended hospital with [the youngest child] as per the immediate direction of [doctor]. However, [the mother] left the hospital as no beds were immediately available, despite being told by the hospital to wait.
c)[In late] 2022, discharging [the youngest child] from hospital against medical advice, transporting [the youngest child] without the required [medical equipment the youngest child] needed from Sydney to [City F]. (Noted in the Family Report)
[23] Second Family Report at [10]
In cross-examination, the father said he additionally held concerns about the mother changing her principal place of residence from Sydney to City E in late 2022 and forcing the children, but mostly the youngest child, to then repeatedly endure road trips over the long distance between her homes in those cities. While that is a concern which does reflect upon the mother’s insight and parenting capacity, thereby engaging s 60CC(2)(d) of the Act, it has nothing to do with the mother’s alleged “neglect” of the children, such as to engage s 60CC(2)(a) of the Act.
Returning to the three incidents of concern identified by the court child expert, the first incident occurred in late 2021 and involved the mother inserting the youngest child’s medical equipment when not certified to do so. The mother gave evidence of some level of training beforehand,[24] but she conceded in cross-examination that her training was not complete until afterwards. The father admitted the mother did become properly trained after the incident. The youngest child now no longer needs the medical equipment, so the issue is not a current concern.
[24] Mother’s affidavit at [207]
Despite date discrepancies, the second and third incidents are seemingly one and the same, as both apparently relate to the mother taking the youngest child from G Hospital in Sydney and then conveying her to H Hospital in City F. It is alleged the mother refused to wait at the Sydney hospital, as no beds were available, and took the child to the City F hospital without medical equipment. The evidence about the timing of the incident is confusing and was never clarified. It could have been either late 2021 or late 2022.[25] Even if there were two separate incidents, they can be conveniently discussed together.
[25] Second Family Report at [10]; Mother’s affidavit at [166]–[169] and [211]
The mother explained, both in her affidavit and during cross-examination, how she took the child from Sydney to City F because the hospital staff unreasonably delayed arranging inter‑hospital medical transport and so the trip by private car was more expedient. She also explained that, at the time, the youngest child was only using the medical equipment nocturnally and the car trip occurred during the day. It was not until after the youngest child was admitted to and assessed by staff in the City F hospital that her constant use of the medical equipment was prescribed. Sensibly, the mother conceded her decision to privately transport the child was rash and, with the benefit of hindsight, she would not have acted as she did. Again, however, the youngest child’s current medical needs are not so acute as they were then.
Some unsatisfactory aspects of the mother’s past control of the youngest child’s medical care have been identified in isolation, for which she is understandably criticised by the court child expert,[26] but they should not be exaggerated. Three significant points should not be overlooked. First, in cross-examination, the father conceded the mother could provide a “good standard of care in most respects” to the children. Secondly, during cross-examination of the court child expert, she agreed with the father’s counsel’s proposition that the mother seems to have done a “reasonable job” looking after the youngest child. Thirdly, the father told the court child expert he was satisfied the mother was consistently meeting the youngest child’s needs, save for the amount of travel she must still endure.[27]
[26] First Family Report at [102]–[103]; Second Family Report at [11]
[27] First Family Report at [45]
If the youngest child continues to live with the mother, the evidence does not support a finding that her safety is liable to be compromised by her subjection to the mother’s neglect.
Section 60CC(2)(b)
The eldest child presents as mature, responsible and high achieving.[28] He enjoys close and positive relationships with both parties,[29] but would prefer to remain living with the father.[30] Given his age and maturity, his views carry substantial, if not dispositive, weight.
[28] First Family Report at [2] and [99]
[29] First Family Report at [57], [72] and [99]
[30] First Family Report at [75] and [99]
The second child is closely bonded with the eldest child and looks up to him.[31] He also enjoys close and positive relationships with both parties.[32] He would like to spend more time with the mother, but he did not express any desire to live primarily with her.[33] He is prone to feel worried in the mother’s care, but was reluctant or unable to explain why.[34] He was unwilling to discuss “his experience of his mother’s mental illness”.[35]
[31] First Family Report at [3]
[32] First Family Report at [57], [78] and [100]
[33] First Family Report at [78]
[34] First Family Report at [78]
[35] First Family Report at [80]
The court child expert was inclined to place no weight on the second child’s views,[36] but his unarticulated worry about being in the mother’s care must carry some weight. Inferentially, the worry that he experiences is likely due to the mother’s idiosyncratic behaviour, about which adverse effect upon the children she is expressly aware and harbours a sense of guilt.[37] The court child expert also thought the eldest child might have been consciously protecting the mother from criticism,[38] which suspicions were later vindicated when the eldest child revealed he had to take on some parenting responsibilities for the second child to cover for the mother – like preparing meals and caring for him late into the night.[39]
[36] First Family Report at [100]
[37] First Family Report at [52]–[53]
[38] First Family Report at [74]
[39] Second Family Report at [12]
The youngest child was too young to express any view.
Section 60CC(2)(c)
The two eldest children are thriving in the father’s care, with all their developmental, physical, psychological, emotional and intellectual needs being met.
The youngest child presents a parenting challenge. She has been diagnosed with a genetic disorder which impairs her physical and psychological development. She is now three years old and is still non-verbal. Her enormous current and likely future limitations were described by the court child expert,[40] without contradiction. There is no need to elaborate them in these reasons. The youngest child has since been diagnosed with another genetic disorder,[41] which only serves to complicate her care.
[40] First Family Report at [4], [9]–[11] and [61]–[62]
[41] Mother’s affidavit at [137]–[138]
The youngest child is primarily attached to the mother, but she is familiar and comfortable with the father and siblings,[42] with whom she spends time reasonably regularly, but only for short periods.[43] She separates easily from the mother.[44] The father attends to her needs tenderly.[45]
[42] First Family Report at [4]
[43] First Family Report at [24]
[44] First Family Report at [81]
[45] First Family Report at [84]–[86]
Save for the few instances already discussed, the mother has satisfactorily met the youngest child’s developmental, physical, psychological, and emotional needs. However, the court child expert was unsure of the youngest child’s future cognitive capacity to make allowances for the mother’s behaviour in the way the two eldest children have done.[46]
[46] First Family Report at [96]
Section 60CC(2)(d)
The father has the parenting capacity to meet all the children’s needs. The mother was impelled to a concession of that ilk during cross-examination, despite her expression of doubts to the court child expert during their earlier consultation. The father’s parenting performance with the two eldest children has been exemplary.
The only concern about the father is his capacity to take on the additional primary care of the youngest child, with all her attendant needs, while holding down regular employment. That was the court child expert’s only concern about his capacity.[47] The father plans to take the first year off work to help the youngest child settle in his residential care, which he explained in cross-examination he can arrange through the structured use of parental leave and accrued long-service leave. He said he could negotiate with his flexible employer a phased re-introduction to full-time employment thereafter, but that plan is only formative at best.
[47] First Family Report at [98] and [116]
The mother’s parenting capacity, while generally satisfactory, is impaired to some extent for two reasons. First, she has unreasonably curtailed the time the youngest child should have spent with the father and thereby not fulfilled her emotional needs by promoting her relationship with him, as he rightly believes and the court child expert correctly concluded.[48] Secondly, the symptoms of her psychological conditions, which reflects in her day-to-day conduct demands latitude and understanding by the two eldest children.
[48] First Family Report at [27], [29], [65] and [92]
The mother has suffered from anxiety, depression and a mental health disorder since she was adolescent.[49] Recently, she sought out another diagnosis of post-traumatic stress disorder.[50] The mother believes her conditions do adversely affect the two eldest children.[51] Some of the demands placed upon the children were described by the father to the court child expert and in evidence,[52] which the mother conceded in cross-examination. The eldest child presented as being protective of the mother, for whom he takes on some parental roles,[53] while the second child presented as being unable or reluctant to speak about the mother’s mental health.[54]
[49] First Family Report at [50]
[50] Exhibit ICL2
[51] First Family Report at [52]–[53]
[52] First Family Report at [56]
[53] First Family Report at [74]; Second Family Report at [12]
[54] First Family Report at [78] and [80]
The court child expert initially believed the mother has generally managed her conditions well,[55] but she later acknowledged how the mother had declined offers for support by service providers and may minimise her difficulties.[56] The court child expert accepted there will likely always be some level of concern about the effect of the mother’s conditions upon her parenting capacity.[57] The court child expert harbours concern the mother is causing the eldest child’s “parentification”.[58]
[55] First Family Report at [54]
[56] Second Family Report at [5] and [13]
[57] Second Family Report at [9]–[10]
[58] Second Family Report at [12]
The mother’s psychological fragility was apparently the reason why she decided to establish a residence in City E, even though she was restrained from living away from Sydney and all the youngest child’s treatment providers were then in Sydney. She has disrupted the youngest child to accommodate her own needs.[59] The court child expert’s tentative view of her relocation decision being “well considered” is rejected.[60] Aside from the mother’s breach of the interim residential injunction and subordinating the youngest child’s needs, she receives no support from the maternal family members in City E and so that could not justify the move.[61] She conceded she has not seen the maternal grandparents or her sibling for years and describes their relationship as “strained”.[62] She regards the maternal grandparents as the source of the “contamination” which she obsessively and compulsively strives to avoid.
[59] First Family Report at [104], [107] and [111]
[60] First Family Report at [105]
[61] First Family Report at [106]
[62] Mother’s affidavit at [49]
The mother’s parenting capacity is not superior to the father’s, as she wrongly believes, but she is not incapable.
Section 60CC(2)(e)
The children should each enjoy close and loving relationships with both parents, as that would be of benefit to them. Neither party disagreed.
More needs to be done to promote the youngest child’s relationships with the father and her siblings. If she does not live with the father, then she should at least spend much more time with him.
Section 60CC(2)(f)
No other consideration was submitted to be relevant.
CONCLUSION
While the court child expert carefully explored the advantages and disadvantages for the children living with each party, ultimately, she felt unable to make any recommendations in the family reports about the most desirable parenting orders.[63]
[63] First Family Report at [124]; Second Family Report at [20]
The two eldest children should live with the father. The mother did not contest the eldest child’s residence with the father. Although she formally contested the second child’s residence with the father, her counsel commendably conceded in final submissions that no justification could be reasonably advanced for any change to the second child’s residence. The two eldest children are thriving in the father’s primary care, where they will stay.
The youngest child should continue to live with the mother, but only on condition that she relocates her residence closer to the father so the youngest child can then spend much more time with the father and her siblings. Supposing the youngest child spends much more time with the father and her siblings, the reasons for reversing her residence fall away. The mother’s primary care of the youngest child may not be optimal, but it is good enough.
The reversal of the youngest child’s residence is liable to cause her emotional stress, as she would then be removed from the mother, to whom she is primarily attached.[64] The father’s residential care of the youngest child would likely be no less competent than that provided by the mother, but it is doubtful he could offer the youngest child any better standard of care than the mother, given his existing responsibilities for the eldest two children and his likely ongoing employment obligations.
[64] First Family Report at [117]
The mother was squarely confronted in cross-examination with the dilemma posed by her apparent resistance to the youngest child spending more time with the father. She affirmed she understood the problem and was willing to move to City F to overcome it – preferably so she could maintain the youngest child’s residence but, even if all three children were to instead live with the father, so she could be closer to them. Her preference was to remain living in City E with the two youngest children, but she was nevertheless willing to move to City F. She said in relation to the move “I will make it happen”.
Since the mother currently maintains two rental homes in Sydney and City E at a total weekly cost of $850, she envisaged she could afford rental accommodation in City F. She did not suggest there were any other impediments to her immediate relocation, though she would need time to find and lease a home. Arrangements will also need to be made to change the youngest child’s therapists, all of whom are presently in City E. However, all the youngest child’s treating specialists are in Sydney, so they can still easily be consulted.
Despite her expressed willingness to move to City F, the mother still initially pressed for an order enabling her to live in City E during final submissions.[65] When the inconsistency between her evidence and her application was identified, the mother amended her application to one which would enable her and the two youngest children to live within 150 kilometres of City F, which amended proposal did not cure the inconsistency. Understandably, the father and the ICL doubt the genuineness of the mother’s stated willingness and intention to relocate to City F in the face of her prevarication. Such doubts underpinned the maintenance of their joint application for the youngest child to live with the father.
[65] Exhibit M2, proposed Order 12
Ultimately, I am unwilling to reject the mother’s sworn evidence as being untruthful, but she will be taken at her word. The youngest child will continue living with her, but only if she adheres to her concession by moving to and staying in the City F environs. Parents enjoy the freedom to live where they like, but only to the extent compatible with their legal obligations to the children for whom they care (AMS v AIF (1999) 199 CLR 160 at 223–224 and 231–232; Sampson v Hartnett (No 10) (2007) FLC 93-350). Here, the mother is obliged to ensure the youngest child lives relatively near the father and her siblings, so she sees them regularly. It is uncommon for the Court to make a mandatory injunction compelling a party to move to and live in a region he or she would not voluntarily choose, but such an onerous order is empowered and justified when demanded by the best interests of the child who lives with that party (Franklyn & Franklyn [2019] FamCAFC 256 at [18] and [25]–[28]). Here, such an injunction is uncontroversial as it enjoys the mother’s consent, given in cross-examination.
Although the mother said she would move to City F, the orders will give her the extra freedom to live anywhere within a radius of 50 kilometres from the police station at Suburb D, NSW, which is an indisputable location near to the father’s home. That permits her the latitude to establish her new home in various regions of NSW. The greater distance of 150 kilometres she alternatively proposed is still too much for the youngest child to manage easily. The orders give the mother more than six weeks within which to make the residential move.
If the mother moves to and stays within the City F environs, the youngest child will remain living with her and will thereby experience the benefit of both remaining in the care of her primary attachment figure and spending plenty of time with the father and her siblings. So far, she has not spent as much time with the father as she should have and her relationships with her siblings were described by the court child expert as being “limited”.[66] The court child expert said in cross-examination that sibling bonds for the youngest child were important, despite her communication impairment. The time spent by the youngest child with the father will graduate over the first few months.
[66] First Family Report at [122]
If the mother does not move to and stay within the City F environs, the best interests of the youngest child demand that she instead live with the father and her siblings, so she may experience close and loving relationships with all members of the family, not only with the mother. The youngest child’s change of residence may then be enforced by the issue of a recovery order pursuant to Pt VII, Div 8, Sub-div C of the Act, upon the father’s proof of the mother’s failure to either move to or remain in the area.
If the orders must be executed in that way sooner rather than later, the youngest child’s time with the father might not then graduate, as would be ideal, but that delicacy designed for her short-term transition can be forgone for her long-term benefit. The youngest child is still comfortable with the father and her siblings. When the youngest child then spends time with the mother, they will be confined to a radius of 50 kilometres from the father’s home, other than during school holidays when they can travel further afield.
The court child expert said the children should ideally live together,[67] but in cross-examination she only emphasised the need for the two eldest children to live together. Otherwise, she said it was better for the parties to live closer together so that, with whomever the children live, they will be able to spend plenty of time with the non-residential parent and siblings.
[67] First Family Report at [109]–[110]
The father and ICL proposed orders for sole parental responsibility. The father regards the parties’ co-parenting relationship to be poor.[68] So must the ICL. The mother proposed orders for shared parental responsibility, but for her to have sole decision-making authority in relation to health and medical decisions for the children, so she too must worry about the parties’ capacity to compromise on decisions of that nature.
[68] First Family Report at [28]–[29]
It is unlikely the parties will reach consensus on many of the decisions they will need to make for the children’s welfare. While the court child expert’s recommendation for shared parental responsibility is adopted,[69] to overcome the prospect of the need for the Court to decide stalemates, the residential parent will have sole decision-making authority on “major long-term issues”, as that concept is defined in the Act. The parties’ retention of parental responsibility, as conferred by law, will enable them both to consult with the children’s doctors and schools.
[69] First Family Report at [126]
Changeovers will occur at the father’s home, which has been the arrangement for the past few years. It is necessary to perpetuate that arrangement to cater to the mother’s idiosyncrasies about the children’s “contamination” and her need for them to be showered and then dressed in freshly laundered clothes before returning to her care from the father. The mother admitted the changeover routine described by the father in evidence was correct. Her belated proposals for the changeovers to be in public parks and for the parties not to attend one another’s homes were not explained by any evidence or submission.[70]
[70] Exhibit M2, proposed Orders 27 and 41.5
The remaining orders are generally consistent with the mutual proposals of both parties and the ICL, though no attempt is made to navigate and resolve the intricate detail of the differently drafted proposals, as such detail was not addressed by either the evidence or in submissions.
No orders are made for the children to communicate telephonically or electronically with the non-residential parent. The issue was not raised at all during the trial, either in cross‑examination or submissions. Neither party raised any concern about the frequency or duration of their current communication with the child or children living with the other party, so they are presumably content with current arrangements. Even if they are not, the children will see the non-residential parent frequently enough that orders regulating communication between visits is relatively unimportant.
The stand-alone orders sought by the father in respect of the mother’s medical treatment are not made.[71] They are beyond power (Oberlin & Infeld (2021) FLC 94-017 at [45]-[53]).
[71] Exhibit F1, proposed Orders 16 and 17
The injunctions sought by the parties, restraining their use of alcohol and illicit drugs and their exposure of the children to family violence, are not made.[72] They are not prescriptive or enforceable.
[72] Exhibit F1, proposed Orders 21 and 22; Exhibit M2, proposed Order 41.4
The injunctions sought by the mother, restraining physical discipline, is not made.[73] No allegation was made that either party has or is likely to physically discipline the children.
[73] Exhibit M2, proposed Order 41.2
The orders sought by the mother regulating overseas travel are not made.[74] The issue was not mentioned and the parental responsibility orders will govern such decisions.
[74] Exhibit M2, proposed Orders 34-36
I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 25 February 2025
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