BICKERT & OAKDEN
[2021] FCCA 14
•29 January 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BICKERT & OAKDEN | [2021] FCCA 14 |
| Catchwords: FAMILY LAW – Relocation application from Town B to City C – parties have agreed to equal time for the next 15 months prior to the child commencing school –– father’s conduct and attitude towards mother troubling – mother shows more maturity in her parenting and honesty in her communications with the father – mother respects the role of the father – mother has capacity to help child achieve her full potential in life. |
| Legislation: Family Law Act 1975 (Cth), Pt.VII, ss.4, 60CC, 61DAA, 65DAA |
| Cases cited: Mazorski & Albright [2007] FamCA 520 McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92 MRR v GR 240 CLR 461; [2010] HCA 4 Taylor & Barker (2007) 37 Fam LR 461;[2007] FamCA 1246 U v U (2002) 211 CLR 238; [2002] HCA 36 |
| Applicant: | MS BICKERT |
| Respondent: | MR OAKDEN |
| File Number: | CSC 860 of 2019 |
| Judgment of: | Judge Willis AM |
| Hearing dates: | 8 and 9 September 2020 |
| Date of Last Submission: | 9 September 2020 |
| Delivered at: | Cairns |
| Delivered on: | 29 January 2021 |
REPRESENTATION
| Counsel for the Applicant: | Mr McGregor |
| Solicitors for the Applicant: | Mk Family Law |
| Counsel for the Respondent: | Mr Fellows |
| Solicitors for the Respondent: | Cope Family Law |
ORDERS
IT IS ORDERED BY CONSENT THAT:
Parental Responsibility
That the parents are to have equal shared parental responsibility for the child, namely X born in 2016 (“the child”).
Without limiting the parental responsibility of either parent, each parent shall keep the other parent informed of and shall properly consult with the other with respect to any significant parenting issue affecting the child. For the purpose of these Orders, “significant parenting issues” are:
(a)Any medical or health matters concerning the child undergoing any medical intervention by a medical practitioner or being prescribed any medication by a practitioner, with any medical reports to be provided to the other parent;
(b)Any medical or health matters affecting either parent which may affect the ability of that parent to care for the child;
(c)Matters relating to the education of the child including, but not limited to, the choice of the school and curriculum and the provision to the other parent of all school reports, school photographs and all communication from the child’s school other than in respect of routine or administrative matters;
(d)Disciplinary matters other than a trivial nature;
(e)Matters concerning the social development and sporting activities of the child;
(f)Matters concerning the religion or faith of the child;
(g)Any intended change in the surname by which the child is commonly known from that which appears on the child’s birth certificate;
(h)Any changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with either parent;
(i)Generally, any other matter regarding the child in respect of which a parent should be informed or consulted with respect to having regards to the provisions of Part 7 of the Family Law Act1975 (Cth) (as amended).
That the parent with whom the child is living at any time is to have responsibility for the day-to-day decisions affecting the child.
Living arrangements until January 2022
From the date of this Order until the child commences her first year of school in 2022, the child will live with each of the Mother and Father on an equal time basis as follows:-
(a)The Mother for a period of three weeks and each alternate three week period thereafter; and
(b)The Father for a period of three weeks and each alternate three week period thereafter.
IT IS ORDERED THAT:
As from January 2022 when the child commences school/prep the child’s living arrangements will be as follows:-
As from January 2022 when the child commences prep the child will live with the Mother in City C.
The Mother and Father will do all acts and things to ensure that the child is relocated to live with the Mother in City C no later than one week prior to the first day of school/ Prep.
Father’s time with the child whilst the Father remains living in Town B
Upon the child commencing school/prep, the Father will spend time with the child as agreed between the parents but failing agreement, as follows:
(a)For one half of the Queensland gazetted school holidays (not including Christmas Eve, Christmas Day and Boxing Day) with the Father to spend time for the first half of such holidays in odd numbered years and the second half of such holidays in even numbered years;
(b)Upon the giving of seven (7) days’ notice to the Mother, the Father will spend time with the child one (1) weekend per month in months other than school holiday months;
(c)If the Father is not spending time with the child as per Order 7(b), the Father may nominate that the child spend such time with the Paternal Grandparents in lieu of himself.
(d)Any other time as agreed to in writing between the parties.
Living arrangements for the child in the event that the Father permanently relocates to City C
In the event that the father relocates to City C, the child live with each parent on an equal shared basis on a week on/week off arrangement and the child will live with each parent for one half of all school holidays alternating between the first and second half each year.
Costs of Travel
Each of the parents will be responsible for one half of the actual total cost of travel for the child including the costs of any accompanying adult. The cost of the travel is to be based upon any concessional airfare able to be obtained by the father due to his “local” status. The father is to do all acts and things to access any concessional airfare when he is able to do so whilst he lives in Town B.
Changeovers
All changeovers should occur to and from the parent’s home or the relevant airport or other agreed place. In the event that the parties are in the same locality, changeovers should occur to and from school on school days and from the parent’s homes on non-school days unless agreed otherwise.
Facetime/Telephone communication
Commencing from the date of this Order, both parents are to have reasonable and regular telephone/FaceTime contact with the child when the child is not in their care as agreed between the parents but failing agreement, each Tuesday and Thursday between such hours as are agreed to but failing agreement, between the hours of 6:00pm and 6:30pm with the parent who does not have the child to initiate the call.
Mother’s Day/ Father’s Day
Commencing from the date of this Order, in the event that the child is living with the Mother and the parents are in the same locality, the child will spend time with the Father from the close of day-care/school on a Friday until 4:00pm on Father’s Day on the Father’s Day weekend.
Commencing from the date of this Order, in the event that the child is spending time with the Father pursuant to these Orders, and the parents are in the same locality, the child will spend time with the Mother from the close of day-care/school on a Friday until 4:00pm on the Mother’s Day weekend.
Commencing from the date of this Order, in the event the parents are not in the same locality on Mother’s Day or Father’s Day, the parent not spending time with the child will have Facetime/telephone communication with the child between the hours of 6:00pm and 6:30pm with that parent to initiate the call.
Parents’/child’s birthday
In the event the child is living with the Mother or Father on the other parents’ birthday, in the event the parents are in the same locality, the child will spend time with the birthday parent as follows unless agreed otherwise:-
(a)On a school day for a period of four (4) hours from the conclusion of school; and
(b)On a non-school day, for a period of five (5) hours between 2:00pm and 7:00pm.
On the child’s birthday in the event the parents are in the same locality, the child is to spend time with the parent whom she is not otherwise living. On a school day, the child will spend four (4) hours with the non-resident parent and on a non-school day the child will spend one half of the day with the non-resident parent.
ChristmasEve, Christmas Day and Boxing Day
The child will spend time with the parents during such specified days as agreed between the parents but failing agreement, as follows:
(a)If the parents are in the same locality:
(i)With the Father from 1:00pm Christmas Day until 1:00pm Boxing Day in even numbered years and alternating each year thereafter;
(ii)With the Mother from 1:00pm Christmas Eve until 1:00pm Christmas Day in odd numbered years and alternating each year thereafter.
(b)If the parents are not in the same locality, they will alternate the Christmas week to include such days with the Father to have the Christmas week of the Queensland gazetted school holidays in even numbered years and the Mother in odd numbered years.
Restrictions
The Mother and Father are restrained from:
(a)Removing the child from the State of Queensland without the prior written agreement of the other parent;
(b)Denigrating the other parent or their spouse or family to or in the presence or hearing of the child and each parent will remove the child from the presence or hearing of any person doing so.
IT IS ORDERED BY CONSENT THAT:
Itinerary
If a parent wishes to take the child out of the State of Queensland they are to obtain the prior written consent from the other party (pursuant to Order 18(a) herein) and the relevant parent will provide to the other parent a written itinerary 21 days prior to the intended departure. The itinerary must include:
(a)The date the child will be leaving and returning;
(b)Where the child will be travelling to;
(c)The mode of transport (including flight times and flight numbers, and/or similar information in the event of bus travel or train travel (if any); and
(d)The address and contact number relevant to where the child will be staying each night the child is away.
THE COURT ORDERS THAT:
Other Orders
This Order will be sufficient authority for all schools, medical practitioners (general and specialists), dentists, psychologists, psychiatrists, counsellors and other allied health professionals dealing with the child to provide to the parents any and all information concerning the child that is usually provided to parents and each parent will be responsible for any related expense.
The Mother and Father are to notify the other, via text or email, of any change of address or telephone number or email address within forty-eight (48) hours of any change.
All outstanding applications are removed from the pending cases list.
IT IS NOTED that publication of this judgment under the pseudonym Bickert & Oakden is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CAIRNS |
CSC 860 of 2019
| MS BICKERT |
Applicant
And
| MR OAKDEN |
Respondent
REASONS FOR JUDGMENT
These proceedings involve the living arrangements for the child X now aged 4 being born in 2016 (“the child”).
X is the only child of the union between the Applicant and Respondent.
The Applicant in this matter is Ms Bickert (“the mother”). She seeks to relocate X to live with her in City C where the mother has now moved to. The Respondent, Mr Oakden (“the father”), lives in Town B and he is opposed to the Orders being sought by the mother. He seeks Orders that X live with him in Town B.
The Mother
The mother and father are agreed and have signed off on Consent Orders about the living arrangements of X prior to her starting her schooling. This happened on the first day of trial, prior to the trial commencing.
The primary position of the mother thereafter is that, upon X starting school, she lives with the mother in City C.
The mother proposes X spent time with the father for one half of all the holidays which is around 3 weeks at Christmas and one week for the other school holidays, a total of 6 weeks. In addition the mother proposes one weekend per month as well. I assume that is each month that the child is not already spending time with the father for school holidays that leaves at least another 6 months for a weekend to be spent with the child.
The mother told the Court she does not wish to return to live in Town B.
The mother says that in City C she is closer to medical experts for X who has several medical conditions requiring specialists which will be referred to elsewhere in these reasons. The mother believes there are many more educational and other opportunities in City C for her and the child’s advancement. The mother says City C is a much larger community than Town B. According to the Australian Bureau of Statistics in the 2016 census Town B had a population of ... . City C (not including surrounding regions and Town D) had a population in the same census of ... .
The mother also wishes X to be able to live as a family with herself, X’s new half sibling E who is only a baby being born in 2020, and her partner Mr F.
The mother proposes however, that if the father moves to City C, that X live in an equal time arrangement with each parent namely week on week off.
The Father
As I have said elsewhere, the parties have agreed on the living arrangements for X in the period prior to her commencing her schooling.
Thereafter the Father is opposed to X relocating and living with the mother in City C and seeks Orders that she lives with him in Town B.
The father proposes 4 weeks at Christmas, one half of Easter and September, all of June/July school holidays, so 8 weeks of school holidays. He also proposes 2 weekends per term, so that is another 8 weekends I assume separately from school holidays months. He also proposes one week in City C per school term, so 4 terms, another month of time with the father each year.
The father proposes a mirror arrangement for the child if the child lives in City C.
The father says if X lives with the mother in City C, he will have to move to City C. That maybe so, however, his primary position is that he does not wish to leave Town B where he has work and family and that the child live with him in Town B. The father says he also likes living in Town B in the “tight knit” community and that he likes the lifestyle where there is a beach, camping and swimming with cousins and lots of family support. Generally the father likes the outdoor life and says all of his family are in Town B.
If the father does move to City C, he seeks an equal time arrangement of week on week off.
Both sets of proposals – special days and other conditions
Mr Fellows of Counsel for the father helpfully prepared an aide memoire setting out the specifics of the respective proposals in relation to special days and handovers. There are slight variations however generally I do not consider that there is any significant controversy between the parties on these issues.
The father’s proposal for Father’s Day and Mother’s Day is that it is only possible if they parties are both in the same place whereas the mother proposes 4pm Friday to 4pm Sunday on the relevant weekend. The father proposes FaceTime in the alternative.
As for birthdays, if the parties are in the same locality, the father’s position is for 5 hours on a non-school day and after school to 7pm on a school day with the non-resident parent. The mother proposes 4 hours and 3 hours respectively for the non-resident parent. The father proposes FaceTime in the alternative.
As for Christmas, if the parties are in the same locality, the father proposes from noon to noon Christmas Eve to Christmas Day or Christmas Day to Boxing Day. The mother’s position is from 1pm to 1pm but otherwise the same.
In relation to changeovers, the father’s proposal is it occurs at school on school days and the parent’s home otherwise. The mother has no proposal but it is assumed that this is not controversial.
In regard to the costs of travel, the father proposes that the parent receiving the child is to meet the cost. The mother proposes that it is shared equally. Whilst this appears to be a distinction without a difference, the mother means that the total costs are shared. The mother proposes that the tickets are purchased by the father in the first instance as he is able to access a discount for “locals” on airfares (up to a certain number of flights each year). The mother proposes that the total cost be shared equally between the parties. The father proposes that each party pay for their own tickets. The father showed some reluctance to use up his “locals” flights by also buying the mother’s ticket for X. The father said he uses the opportunity to purchase locals flights for other social events he attends outside of Town B.
In terms of ongoing communication between the parents, the father’s position is that this should be via text or email except in the case of emergency. The mother has not articulated a position but again it is not assumed to be controversial.
The father proposes other clauses regarding issues such as non-denigration, restraints concerning illicit substances, authority to schools and medical practitioners, permission to attend school and extra- curricular activities. The mother agrees to authorities to schools and medical practitioners. Although the mother has no response to the balance of the father’s Orders sought in this regard, it is not anticipated that there is any controversy regarding such Orders.
Notifications regarding telephone numbers, addresses and emails are agreed. The mother’s proposal about a restraint upon removal of the child from Queensland without written permission and provision of itinerary is agreed to by the father.
Orders by Consent covering the period from trial until the child commences school at the beginning of 2022
The Order of 1 May 2020 was amended by consent at the commencement of this final hearing, to vary the period that X spends with each parent to a three week turn around, rather than each two weeks. The three week period is to run continuously through the school holiday periods. Each of the parents considered that this period of time was suitable for X and that the cost of contact was less expensive for each of them taking account of the airfares from Town B to City C and return.
Unexpectedly, at the beginning of the trial, Counsel for the parties advised the Court that, contrary to their respective applications and responses, they had now each agreed that the amended shared care arrangement of X spending 3 weeks with each parent between City C and Town B was to continue not until the judgment was handed down, but rather for the balance of 2020, and all through 2021 until X starts school with her prep year at the beginning of 2022. Thereafter X will either live with the father in Town B or the mother in City C, as determined by the Court.
Counsel advised that both parties are therefore now asking that the Court make a determination as to the living arrangements for X upon her commencing prep in 2022 on the evidence before the Court at this time.
The position at the commencement of the trial then was that the parties:
a)Agree to equal time on a 3 week rotating basis between City C and Town B until X starts prep in January 2022;
b)Each party agrees that if the mother returns to live in Town B or the father relocates to live in City C the parties will implement a week on week off shared care arrangement of X; and
c)the parties agree that an Order for equal shared parental responsibility should be made as a final Order.
Whilst the parties agree that the costs associated with air travel for X can be shared, it seems there is a minor dispute as to how the tickets should be purchased to ensure that any local discount available to the father is effectively used so both benefit from that discount thus ensuring equality in sharing the cost.
Background
The mother was born in 1994 and is currently aged 26. The father was born in 1991 and is aged 29 years.
They knew each other for some years prior to commencing a relationship in 2014 when the mother was aged 20 and the father was aged 23.
When pregnant with X the mother had to travel to City C for her ante natal care on the advice of her doctors as the foetus was growing “at a weird pace” and the doctors felt that frequent scans and attention at the City C Hospital were advised.
Their only child X was born in 2016.
The mother was the primary carer of X following her birth. The mother returned to work around mid 2016. The father continued working throughout.
The child went to work with the mother who worked in her home business. The father worked full time.
The mother set out in her affidavit that X was born with a few significant medical issues including a labial fusion, craniosynostosis and her eyes turning inward. The Family Report makes reference to the medical issues suffered by X[1] stating X’s corpus callosum was absent/closed at birth. The mother explained that X was born with a fused labia, which has just now started to open. The Family Report states that “This absence is a rare birth disorder which brings with it a very wide range of developmental disorders that accompany this disorder, including vision impairment, developmental delays in language and other developmental milestones”. The mother stated that X’s skull grew “fine”, however, at 8 or 9 months old, X was referred to an eye specialist because her eyes turned inwards. The mother accompanied X to Brisbane where she had surgery at the age of 10 months on both of her eyes.
[1] Paragraph 76.
The Family Report notes that X had “bronchial pneumonia at seven (7) months and she apparently has had six (6) Urinary Tract Infections (UTI) up to March 2020”. It seems X also had a speech problem involving articulation difficulties. The Family Report notes that speech therapy does not usually begin until after the age of four years. X is required to have ongoing medical specialist interventions and monitoring.
After commencing their relationship in 2014 the mother reports separations during their relationship, the first one six months after they commenced living together. The mother had a pregnancy in 2014, which sadly resulted in a miscarriage. Thereafter the mother describes being in an on/off relationship with the father.
The parties finally separated in Town B on 4 March 2018. At that time X was aged 20 months.
By June 2018, 3 months after separation, the parties had entered into an equal time arrangement with X going week on week off between the parties whilst both parties worked full time. Initially the mother operated her business at her home, which X attended. At some point she was enrolled in a day care centre.
The mother is a qualified allied health worker or being the term used by the mother. The father is a tradesman.
The mother remained living and working in Town B following separation as did the father. The father’s parents have lived in Town B for years and own a home there. The father moved back to live with his parents in their home in Town B following separation. The father’s sister Ms G lived in the upper storey of the house and the father and X lived on the ground floor. The paternal grandfather lived at the same address, in a separate dwelling.
In or around 2018, the mother commenced a relationship in Town B with her current partner Mr F after separation in March 2018. Mr F was born in 1992 and is aged 27. He lived and worked in Town B at the time. Mr F is a former mate of the father. The father and Mr F used to go fishing and camping together and it seems drink and engage in drug taking.
The mother and father engaged in drug taking prior to the birth of X. The mother says she has not consumed drugs since being pregnant with X. The mother’s evidence is that the father continued taking ICE throughout their relationship and it was an issue which caused significant conflict between them. The father produced a hair follicle test in December 2019 which was clear of drugs.
Around mid-2019, Mr F left Town B to take up a work opportunity in City C. He says he was run out of town by malicious false rumours that he was a “wife basher”. This was further exacerbated given that the father was close friends with Mr F’s boss, Mr H.
When Mr F left Town B, he did not know at that time that the mother was pregnant. Mr F has lived in City C since leaving Town B in mid-2019.
Mr F has a child from a previous relationship J born in 2012, now 8. Upon moving back to City C, Mr F commenced an equal time parenting arrangement with the mother of J (who used to live in Town B and moved back to City C) on a week on week off basis.
Due to her pregnancy and need for ante natal care in City C, the mother left Town B in December 2019 and travelled to City C to be able to attend the City C Hospital and undergo scans and the medical attention she needed in relation to her ongoing medical difficulties with the pregnancy and for the birth.
The mother said it was always intended that she would give birth at the City C Hospital as is generally the case for mothers in Town B. The mother’s pending due date for her unborn child was in 2020.
Given her pregnancy requirements, the mother left Town B around December 2019. The mother did not unilaterally relocate X. X remained living with the father in Town B. The mother however did not agree that X should remaining living in Town B and accordingly she filed an urgent application seeking to relocate X to City C on an interim and final basis. The mother awaited the Court’s allocation of an interim hearing date and decision as to whether X could relocate with her to City C.
Each of the parties appeared at the interim hearing legally represented. Orders were made by Consent on 4 February 2020, for the preparation of a privately funded Family Report with the costs to be shared in preparation for the proposed contested interim hearing. The report was available for the interim hearing.
Prior to the interim hearing, Consent Orders were made providing for X to live with the father and spend a week with the mother each three weeks by way of interim Orders. They were made after the mother arrived in City C, and pending the contested interim hearing regarding the mother’s application to relocate X to City C on an interim basis which was opposed by the father.
The contested interim relocation hearing was held on 30 April 2020 and the decision delivered on 1 May 2020. The Orders were made by the Court for X to spend a fortnight with each parent namely two weeks with the mother in City C and two weeks with the father in Town B until the final trial which was given an expedited hearing date. On 30 April 2020 the Court allocated the dates of 8 and 9 September 2020.
This priority date was allocated given the uncertainty as to the long term living arrangements for X and the cost of ongoing travel between Town B and City C, and noting the arrival of the mother’s new baby (E) to her partner Mr F, who were living in City C. The Court was also most concerned as to how much money was being spent on this litigation by these two still young parents.
The privately funded Family Report is dated 13 April 2020. Observations took place on 7 March 2020. On 4 August 2020 the matter was before the Court, and in preparation for the final trial, an Order was made that the parties provide their trial material to Ms K, the Family Report Writer, with a joint letter stating if Ms K wishes to prepare a short addendum or have further consultations with the parties (in preparation for the September trial) she is authorised to do so and the parties should attend upon Ms K for such updating report. No updated report or interviews were undertaken.
The Order of 4 February 2020 makes reference to the mother’s then current difficulties with her pregnancy and that in the event she returns to Town B the parties would resume an equal care arrangement as set out.
There were other Orders for the parties to forthwith enrol for the Post Orders Parenting Program together with procedural Orders to prepare the matter for trial, the parties to share the costs of travel and for FaceTime between each parent and the child.
The mother’s second child, E, was born in 2020 at the City C Hospital. E’s father is Mr F.
The mother has returned to permanent part time work, four days a week from 8.30am to 4.30pm with the days changing each week. As she predicted the mother is able to take both baby E and X to her workplace.
The father has a new partner that he met in 2019, Ms L born in 1995, currently aged 24. By 2019 Ms L and the father were in a relationship. Ms L is a public servant and as part of her work role, Ms L moved to Town B in 2019. She does not have children of her own.
In March 2020 and by the time of the Family Report interviews on 9 March 2020, the father and X had moved out of his parent’s home and into a home provided to Ms L by the Queensland Government as part of her salary package. Ms L says that prior to acquiring her own Government funded home, she spent most of her time at the father’s parent’s home with the father.
The mother and Mr F have now secured another home in a different suburb of City C, in Suburb M, still on the south side of City C.
Ms L the father’s new partner was not required for cross-examination. Neither was the father’s sister who works in Town B as an allied health worker.
The Law
This application is governed by the principles set out in Part VII of the Family Law Act 1975 (Cth) (“The Act”).
In making parenting orders, the best interests of the child are the paramount consideration. The Act provides two primary considerations described by Justice Brown in Mazorski & Albright [2007] FamCA 520 as “twin pillars”. I am to give greater weight to the second of the primary considerations.
Her Honour stated: “The first is the importance to the children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s 60B (1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s 60CC (1).
When deciding what parenting Orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DAA). The presumption relates to the allocation of parental responsibility, not the time the child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds it would be not in the best interests of the child for it to apply.
If the presumption applies, and there is an Order for equal shared parental responsibility, the Court must consider whether spending equal time with each parent would be in the child’s best interest (s.65DAA(1)) and if no such Order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).’
In MRR v GR [2010] HCA 4, 3 March 2010 the High Court stated that ss.65DAA (1) (a) and (b) and 65DAA (2) (c) and (d) are expressed in imperative terms and oblige the Court to consider both the question of best interests and whether it is reasonably practicable to order equal time or significant and substantial time. A determination as a question of fact that it is in the child’s best interests and reasonably practicable that equal time (or significant and substantial) be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is only when both questions are answered in the affirmative that the Court may give consideration to making an Order for equal time, or if not equal, significant and substantial time.
In this matter each of the parties have agreed that there should be an Order for Equal shared Parental Responsibility. At the outset it is conceded by both parents that it is impracticable for X to continue to live in an equal shared arrangement beyond the commencement of prep as the distance between City C and Town B makes that untenable.
This matter involves a relocation. I have had regard to authorities in relation to relocation including U v U (2002) 211 CLR 238; [2002] HCA 36, Taylor & Barker [2007] FamCA 1246 and McCall & Clark (2009) FLC 93-405. McCall & Clark involved a discussion of the prospective approach in terms of s.60CC3(a).
In this judgment a statement of fact in these reasons represents a finding unless stated otherwise.
Witnesses
The Mother
The mother gave evidence and was cross-examined.
She presented as a quiet, and thoughtful young woman. She made appropriate concessions when they were called for. The mother was a good historian. She seemed quite considered in her responses and mature in her overall functioning. She is now a mother of two children and explained that recently she has returned to permanent part time work and that she is able to take both X and baby E to this same centre where she gets a discount on the day care fees.
In her Family Report interview on 9 March 2020 with the Family Report Writer, the mother reported (when asked) to the Family Report Writer that she had forgotten that the Orders of 4 February 2020 required the parties to enrol in a Post Orders Parenting Program (POP), but that now she had been reminded about the Order she would now do so and enrol.
Under cross-examination by Counsel for the father, the mother was reminded of her memory lapse regarding the Order of 4 February 2020 that both parents enrol in a POP program. The Family Report Writer when questioned by Counsel for the father during the trial, was critical of the mother for not remembering during her Family Report interview, that four weeks prior to her interview, this Order had been made.
Under cross-examination at the trial the mother explained that “I had heaps of pregnancy issues, so probably it slipped my mind”. The mother explained when she did enrol, there were limited opportunities to do the course given the Covid-19 restrictions. The mother said it was “all being done by Zoom. I would have started 8 weeks ago, I waited about 3 months until I was put in to a zoom meeting with two other ladies. There are six at a time, that is all they can fit in with the seminars. When I first called them they had no space for that session. I had to wait a further couple of months. I have since completed the parenting program… I will finish on Thursday” referring to the Thursday following the trial.
I am not as critical of the mother as the Family Report Writer is for this lapse of memory. On 4 February 2020, when the mother appeared in Court she was heavily pregnant being only a few weeks away from giving birth. The mother was experiencing difficulties during the pregnancy. As the mother told the Family Report Writer she was having a healthy pregnancy but the baby in utero was having “lots of problems... still upside down”. Baby E was born in 2020 at the City C Hospital.
The mother said as soon as she remembered, that she set about to enrol in the course, that she was pregnant, that she had complications associated with the pregnancy and she just did not remember. I accept her evidence. I consider that the Family Report Writer was unduly harsh in her criticism of the mother on this issue and that the Family Report Writer did not properly acknowledge the mother’s overall circumstances and all the immediate issues she was grappling with.
The mother also had to leave Town B to give birth in the City C Hospital, find a place to live and she was having difficulties with the baby in utero. A reading of the Order of 4 February 2020 shows that there were a raft of Orders made on that day. Whilst the Order to do a parenting course was important, in the circumstances I consider that the mother’s delay in enrolling as explained to the Family Report Writer was reasonable and that the mother had other significant competing priorities. The failure to comply with Orders of the Court always permits for a reasonable excuse and I consider that at the time of her Family Report interview the mother had a reasonable excuse for her delay in enrolling as required by the February Orders. There is no suggestion that the mother was refusing to do the POP program. I note also that she was due to complete the final component of the parenting course the day after the trial concluded.
The mother relocated herself to City C but did not relocate X. The mother quite properly filed an application to seek the Court’s leave to relocate on an interim and final basis. The mother agreed in February 2020 that X would stay with the father in Town B until the date of the interim hearing albeit this was not her preferred position.
At that contested interim hearing, the Court determined that the child should spend a fortnight with each party and that the final trial should be expedited. To say that the mother had a lot going in in February, March and April 2020 is an understatement.
In the Family Report, the Family Report Writer has perused the subpoena material and reported that the mother has no Police history. The Family Report Writer then listed out the father’s criminal history and also the criminal history of Mr F.
At trial, the mother was questioned extensively about traffic notices or infringements. She agreed that on 14 December 2019 her vehicle, a Motor Vehicle 1 driven by Mr F, was stopped on the Region N and given a traffic infringement because the car did not have a front number plate. Once pulled over the Police also gave a caution that the vehicle was being driven with a badly cracked windscreen and both front tyres were not legal.
The mother agreed that by Christmas day in the same year 2019, she had not replaced the two front tyres or the front number plate. She accepted that the car was used to drive X to a changeover at Christmas. The mother said she had “fixed the windscreen before Christmas”. As to why the tyres were not replaced by Christmas however the mother said the “tyres were bought and put on after Christmas as there was a delay for the tyres to come up”.When asked why the number plate was still missing by 5 January 2020 when Mr F was pulled over again for the missing number plate the mother said that the number plate was on order. I accept her evidence.
The mother accepts that X is securely attached to both herself and the father. The mother said she wants X to have a meaningful relationship with her father and that she would always promote this. I accept this is so and that the mother will always ensure that this occurs.
The mother made appropriate arrangements for both herself and X when she had to leave for City C. The mother agreed for X to remain living with the father in Town B whilst she attended to her necessary medical care relating to her pregnancy and her unborn baby. The mother found a place to live in City C with her partner whilst waiting out the final few months in the countdown to the birth of her baby. The mother said it broke her heart to have to leave X in Town B, but that she knew she could not simply unilaterally relocate and that she had to wait the outcome of her interim application as the father would not agree that X could go to City C with the mother.
The Family Report Writer is critical of the mother’s instability agreeing with Counsel for the father that the mother has moved twice already. That refers to the mother relocating to City C and renting a place when she first arrived in City C heavily pregnant and prior to the birth and then moving into another home where she and her partner and their baby now live.
The Family Report Writer considered that this added to the mother’s instability. I consider this criticism is overly harsh and not warranted. Naturally the move from Town B to City C for the reasons outlined, would involve a move to a different dwelling. When the mother first arrived in City C heavily pregnant she found somewhere to live. Now that the baby E is born and she has permanent part time work, the mother and Mr F have moved to another home a few suburbs away. The Family Report Writer is not critical of the father for moving into his parent’s home with X post separation and then a second move in March 2020 moving into his new partner’s home with X.
The mother initially lived in a house at Suburb O, and now she has moved to a home at Suburb M which is 5.2 kilometres further south with travel time estimated at 7 minutes. The mother’s trip to work from her new home at Suburb M via the P Highway is a 3 kilometre journey (with an estimated travel time of 5 minutes.[2] )
[2] Google searches.
The Family Report Writer, Ms K, noted in her oral evidence that when the mother was a child her family moved around more than the father’s family did when the father was a child. Ms K noted though that the father’s mother currently had left Town B and taken a job in Town Q near City C for an indefinite period.
The Family Report Writer agreed with Counsel for the Father that the mother did not have such stable employment as the father. When asked what effect this might have on the child the Family Report Writer said that if the mother changed employment frequently, “the child might ask where is mum today and we could see some anxiety coming out”. When asked by Counsel for the father what would be the signs of anxiety, the Family Report Writer said it “could be sleep related”.
After X’s birth when both parties lived in Town B, X lived with the mother and father. After separation in March 2018, X was dropped off at day care each day by each parent (or others) whilst both parents went to work. Similarly she was collected by either the parents or others. I am unsure how X particularly at her young age would know where the mother, or for that matter, the father was physically working once she was dropped off to day care.
Moreover there is no evidence at all of this child being anxious. Neither parent has given this evidence. The Family Report Writer described the child as “presented as a physically healthy and happy girl with a bubbly personality who wears prescription glasses and has a slight speech anomaly”. It is also noted that X has been consistently reviewed by the paediatricians every few months who visit Town B and by specialists in City C and Brisbane.
As to the mother’s stability in employment, the mother has worked in the same occupation in Town B and in City C. The mother had worked as an allied health worker in Town B for two years and also worked for 4 years at the Employer R. Two jobs in six years.
Historically the mother relocated to Town B in 2012 when her sister lived in a house owned by their mother. At age 20 the mother moved to City C and studied at TAFE completing her Cert III and a Diploma. At the time of the Family Report interview the mother was aged 26.
The mother told the Family Report Writer in March 2020 prior to the birth of her baby, that whilst she was not working presently she hoped to return to the work force when the baby was born and that she had been offered a permanent part time position at Employer S in Suburb T once she was ready to return to work.
At trial, as predicted and organised by the mother, she had taken up the employment offered to her at Suburb T with Employer S. The letter from the Director of the Employer S regarding her future employment[3] annexed to the mother’s affidavit says in part “I have personally known Ms Bickert for over 8 years and in this time I have come to know her not only as a dedicated employee, but mother as well”. The letter confirms that a position will be offered for the mother’s daughter (X) within the centre and that she will receive a discounted child care fee. Both X and E attend this centre with their mother.
[3] Annexure 6.
The mother has always worked as an allied health worker. She has years of experience doing that.
The father has annexed to his affidavit[4] a letter from his employer U which says in part “This is to certify that Mr Oakden is a full time employee of this Company and has worked with this Company for 4 years consistently and 8 years in total”. This suggests that there has been some break in his employment. I am not critical of the father or the mother for their employment records however I do not accept that the mother has any troubling instability in her employment.
[4] Annexure 4.
I consider that now as a young mother of two children, the mother has acted responsibly in securing and returning to employment to provide an income. In so doing she has managed to make appropriate arrangements to have baby E being cared for at her work, along with X. I think these are very child focused arrangements all made by the mother in an endeavour to provide financial security for herself and her young family.
Under cross-examination, the mother accepted that after separation whilst working in Town B, she breached the rules in relation to taking a photograph of a child attending at her workplace. The mother said she did the wrong thing in sending such photo to the father of the child, who it seems was a friend of hers who was not seeing his child.
The Family Report Writer was critical of the mother for not seeking out mental health assistance and said that the mother told her in March 2020 that she was under a lot of stress but had not sought out mental health support. In fact the mother told the Family Report Writer that she had been seeing a mental health worker through the Town B Hospital since October 2019 due to the stress of “trying to move on” as set out in the Family Report.[5] The Family Report Writer then observed “Apparently she does not have a mental health worker in City C”. The mother explained in her affidavit that when in Town B she accessed the only support she could get in Town B which was through the V Service.
[5] Paragraph 45.
There was no evidence that the stress the mother reported she was under in March 2020 prior to the birth of E and whilst she was dealing with the complications of the pregnancy, was at a level where she was required to undergo ongoing mental health treatment.
When asked at the trial what indicators would be present to suggest that the mother is not coping the Family Report Writer thought for a moment or two and said that she might need assistance if she is struggling with the baby (and the Family Report Writer said she did not know if this was happening) and that a baby can create stress, or if the mother was struggling to organise her days.
Having watched and listened to the mother at the trial in September 2020, I am satisfied that the mother has re-organised her days and working life to accommodate appropriate living and working arrangements following the birth of E in 2020. I have no evidence to suggest, nor is it my impression of the mother, that she is “not coping”. Quite the reverse is true. The mother presented as a mature, organised and competent young working mother with two children.
Whilst the birth of a new baby means added pressure for all parents including the mother, clearly the mother will have benefitted from the experience of having already had and raised one child, X. The mother also has formal qualifications in allied health and she has experience of working with and managing the care of multiple children, which will likely assist her in managing her own two children.
Since being in City C the mother has signed up X for hobby classes. When the swimming pool opens, she plans to have X do swimming lessons in City C. Overall I consider there is sufficient evidence of the mother making appropriate day to day arrangements for herself and the child.
The mother has now removed herself from Town B where the mother said her life was lonely and stressful due not only to not living with her partner Mr F, but from what she described as constant bullying and harassment from the father and his friends in Town B.
The mother said Town B is such a small town that she felt most uncomfortable remaining there given some of the untrue stories that were spread about her and the comments that the father has made about her and put on his Facebook. The mother said she could not remain living in Town B. I accept that the mother was subjected to stressful interactions from both the father and his friends whilst she lived in Town B. I accept her evidence as to the derogatory insults by the father about her when they were together and also after she left the relationship.
The mother also set out in her affidavit the difficulties she encountered with the father acting irresponsibly whilst they were together and their relationship being toxic.
The mother accepted that she and the father used drugs prior to the birth of X. The mother said that the father continued to use the drug ICE after X was born and that he would go into the bathroom and use ICE, saying that it was okay to do that out of sight of the child.
She described her life with X as a new baby and that she used to take X into the bathroom during her night wake ups with X so as not to wake the father who would get “cranky” at being woken up. On other occasions she would take X to the hospital on her own as the father was too tired and said he needed sleep. When X contracted pneumonia and was up for most of the night struggling with her breathing, it was the mother who spent the night laying on the couch with her. Similarly it was the mother who took X to the hospital during the night when X was vomiting. It seems that the father did not let the arrival of X as a baby interfere with his weekends away camping and drinking to the point of collapse.
The mother experienced the father’s friends telling her about conversations the father had had with them, wherein he had described their sex life to his friends and made utterly appalling comments about his view of very intimate aspects of the mother’s body in this context, causing her significant embarrassment and humiliation.[6]
[6] Paragraph 98 mother’s trial affidavit filed 11.08.2020.
X has an extensive medical history referred to in this judgment and this has resulted in the necessity for trips away to City C to attend specialist appointments. The mother has been responsible for taking X to City C for check-ups every three months. The mother said that the father attended once.
The mother took X to every appointment for her eye specialist and eye surgery except one.
The father agrees that the mother attended to this aspect of X’s medical needs, and says that it was agreed he would go to work and the mother would be the parent to take X to the specialists in City C. The mother said that the father refused to take X to hospital trips as he did not like flying and had very little interest in the home or the child whilst they were together. I accept the mother’s evidence. Whatever the reason was for the father not accompanying the child to Brisbane for eye surgery or specialist appointments in City C to see specialists and or have treatments, it is not contested that it was the mother who has had the ongoing responsibility for this and engagement with the experts.
It is the mother who has been intensively involved in physically making sure that X has the expert medical assistance necessary through her personally being the parent attending to these arrangements and the sole care of X whilst the mother and X were away on these trips.
When X was ten months old the mother took X to Brisbane by herself for the surgery to correct her eyes. The father went camping with his friends. The mother described the father as being unsupportive to her personally and in their child raising. When she broke her leg around late 2017 when X was 17 month old, the mother said she struggled to still look after X but that the father just would not help her. The mother took X and stayed with her family then in Town W for 3 weeks. Whilst in Town W the mother had phone calls from the father saying he could not take it anymore, and he should just end his life. The mother said the father sounded as if he was coming down off a drug. I accept that the mother has been a responsible parent throughout X’s life and that she has attended to the bulk of the parenting of X.
On the evidence before me I am satisfied that the mother is coping in having two children live with her and in all aspects of her parenting.
I am satisfied that throughout the post separation period, the mother has wanted to work cooperatively with the father however, she has encountered significant difficulties in communicating with the father given his hostility towards her. I am satisfied that the father does not respect the mother or her parenting ability and that he has treated her as an object of ridicule amongst his mates and others. Notwithstanding the father’s hostility towards the mother, the mother has continued to facilitate and encourage an ongoing relationship between the father and X and shown genuine respect for the father’s role in X’s life.
The mother says she wants to move on with her life and make a fresh start in City C which is a much larger regional area than the town of Town B.
I accept the mother’s evidence that she and Mr F received intimidating, unwelcome and crude communications from the father’s friends.
I accept that the mother has relocated for genuine reasons. These include to take up a new life with her partner Mr F with whom she now has a child. The mother sees a brighter future in a bigger population centre such as City C for both herself and X. She says she will be able to have much easier access to the ongoing medical specialists treatment for X in City C into the future. The mother points to more choice in schooling and activities in City C. The mother also says that her life in Town B was intolerable given the father’s attitude towards her and the actions of the father and his friends.
The mother points to a range of family support she has available to herself and X in City C which does not exist in Town B.
Despite the hostility of the father toward her, I am satisfied that the mother is genuine and committed to ensuring that X has a meaningful relationship with both parents.
I have a strong impression that the Father and those around him are critical of the mother for first leaving the father and then wanting to relocate and live elsewhere. It must be remembered that the High Court of Australia has recognised that Australia is a big country with a mobile population and that Australian citizens have a right of freedom of movement.[7] Wanting to relocate is not a crime. It is a matter for the Court to weigh up the advantages and disadvantages in determining which Orders are consistent with the best interests of X.
[7] U v U (2002) 211 CLR 238; [2002] HCA 36.
The Family Report Writer was critical of the mother for not expressing the disadvantages for X in living in City C. Ms K said that when parents do not acknowledge this in relocation matters, it is not a good sign. These parties are still young. The mother is 26 and the father is 29. It is inevitable that they will each meet new partners, as they have each done. It is equally inevitable that any new partners may not come from or wish to move to Town B. The father’s new partner is not a long time resident of Town B. She is a new comer to Town B having moved there for work purposes in 2019. Mr F moved to Town B and decided he wanted to leave Town B. He is permitted to do that.
The father’s reactions to the mother leaving him and starting a new relationship with another person and then planning to leave Town B has been angry. He has viewed her plans with scepticism, suspicion and criticism. The father’s evidence of going around to Mr F’s work place post separation to speak to his close friend Mr H (Mr F’s employer) “to find out what was going on” left me with a very strong impression that the father considered the mother and Mr F were not permitted to be in a relationship nor were they permitted to make plans for a life of their own.
In order to move her life forward she is permitted to discuss plans to relocate. The mother does not need the father’s permission to commence a relationship but the impression gained from the father’s conduct overall is that he was intent on making sure the relationship ended.
Under cross-examination, Ms K agreed with the proposition of Counsel for the father that “on paper the father’s partner is a better candidate than the mother’s partner”. The relevance of this comparison was not really clear. I have however had regard to all of the evidence about the parties and their partners. It is true that Mr F has a criminal history as does the father. It is also true Mr F has experience in raising children and that the father’s partner does not.
In City C the mother has family support being two aunts, two uncles and eight cousins. The mother says she also has support of her partner Mr F’s relatives in City C if she needed it and her de facto mother in law and other aunts and relatives of Mr F who live on the Region Q behind City C. I accept that the mother has more support in City C than in Town B. I also accept that her reasons for relocating and wishing to relocate X are genuine.
Overall I found the mother to be a truthful witness and a good historian. Wherever her evidence contradicts the fathers, in the absence of independent evidence, I prefer the evidence of the mother.
Mr F – the mother’s partner
Mr F, the mother’s de facto partner, was born in 1992 and is currently 27 years old. He and the mother are the parents of the child E who is only 5 months old at the time of trial.
Mr F is currently an apprentice tradesman having started this about two months prior to the trial. He is keen to obtain a formal qualification in this field as he has worked in it before.
He was born in Country Y. He has lived in City C for most of his life having come to City C as a young child with his parents and sisters when he was around 6 years old. His father was in the armed forces and his family moved around continuously. His education was interrupted by various changes of schools. His parents separated and then he lived with his mother. Although he has no formal trade skills, it seems he has maintained continuous work.
Mr F lived in City Z with his family and then came to City C in 1999. He went to primary and high schools in the City C region, interrupted with a stint at high school in South Australia. He went to TAFE in City C after leaving school in year 11.
It seems Mr F moved from City C to Town B with his former partner, the mother of his son J, in 2015. J was born in 2012 and is currently aged 8. Mr F worked with Employer AA in Town B.
Under cross-examination, Mr F appeared apprehensive and cautious. He had difficulty with the formality of the language used by Counsel. He became more settled once he had a chance to re-read his affidavit which he had not done since he swore it back in April 2020.
Under cross-examination, Mr F was queried about the dates in his affidavit[8] where he said he knew X from when she was about 4 months old. X was born in 2016. Clearly Mr F had made mistakes about the dates. He conceded the anomaly when it was explained to him and ultimately corrected himself and said that he and the mother started seeing each other around July 2018, a few months after the mother separated in March 2018. Mr F said on several occasions during his evidence that he did not know “exact dates” and that “I can read but my memory is pretty shocking”. When asked, Mr F said that he had a few concussions during his earlier years from football collisions and motorcycle accidents. As his evidence progressed it was apparent he did have a very poor memory.
[8] Paragraph 11 Mr F’s affidavit filed 9.04.2020.
Mr F leaves Town B
Mr F said his boss was Mr H. Mr H is a good friend of the father’s. Mr F and the father met one afternoon when the father went around to Employer AA after work to have “afternoon beers” with his friend Mr H in his workshop. Through this connection the father and Mr F became mates. Mr F says he and the father went on a couple of hunting trips together on weekends when drugs were used. He said the father brought the drugs. The father confirmed in his evidence that he knew Mr F for a year before the father and mother separated.
Mr F said that on these times away, the father used to discuss the mother and “talk extremely bad”[9] about the mother. This included the father talking openly about what were extremely intimate details about the mother and his sex life with her, which the father discussed in vulgar terms as seen in the mother’s material and Mr F’s material. I accept that this occurred.
[9] Paragraph 9 Mr F’s affidavit filed 9.04.2020.
He also said he has seen the father drink to the point of passing out on these hunting trips away including when the father had a loaded gun just laying around.
Both the mother and Mr F put forth that they were driven out of Town B by rumour and malicious gossip. Central to the alleged gossiping were allegations made by the father and people acquainted with the father that Mr F was a “wife basher” and that Mr F was violent to the mother. The relevant text messages were in evidence.
Each of the mother and Mr F deny there is violence in their relationship.
Mr F receives threats
The mateship between Mr F and the father ended once the father found out that Mr F started a relationship with the mother. Mr F said that after separation, when the father found out that he and the mother had been “hanging out”, things started to change for the worst. “It stated affecting my job at Employer AA as my boss Mr H is really close friends with Mr Oakden and his family”.
Mr F said that he started getting phone calls and text messages that he was going to “smash my teeth in, burn my car and steal my car and drive it into the lakes”. I accept his evidence.
Similar threats were made post separation by the father to Mr BB, a previous boyfriend of the mother’s prior to her association with the father. The mother annexed a text message describing threats made by the father to Mr BB just after the threats had been made. The messages gave a detailed account of the father approaching Mr BB saying “did you fuck Ms Bickert on my couch”.
When Mr BB replied “yes, but it was years ago”, the father was reported as saying “Your lucky I have court soon or I’d do it now but after court I’m going to fucking Kill you”.
Under cross-examination the father denied he had made any such threats to Mr BB, but did not deny that he approached Mr BB or that he had been insulting. The father said he approached Mr BB and that “all I said to him was that he was a snake in the grass”.
There is however, also evidence of the father sending a message to Mr BB on 2 September 2019 saying “Hey mate!!! Just found out about you and Ms Bickert on my couch… Oh next time we meet you better hope you can box, I been getting some practise in so good luck”. I do not accept the father’s denials and am satisfied that he has made the threats alleged by Mr F and the mother.
Mr F gave evidence of other occasions when the father would drive past his work extremely slowly, “wind his window down and pretend with his fingers were a gun and that he was shooting me. This was a concern to me as Mr Oakden holds a gun licence and has weapons at his house”. Mr F said he called the Police about these matters.
Mr F reported having several text messages from a friend of the father’s Mr CC who threatened that he was going to “bash me and make me drink out of a straw because I was apparently a wife basher”. [10]
[10] Paragraph 15 & 16, affidavit filed 14.04.2020.
Mr F had evidence of one text message from Mr CC to the mother but intended for Mr F. Mr CC wrote:
a)“Oi cunt roumer has it you beating Ms Bickert do you want to fight a real man and stop picking on woman of are you that shit”; and
b)“If its true and you have hurt her your going to be having dinner with a straw”
c)In referring to the mother’s partner reading the text message the author (who asks if the mother knows who she is talking to) goes on to say “I can see you reading the message you pussy black cunt”.
I accept the evidence of Mr F that he received threats from Mr CC, then a friend of the father.
Mr F said that rumours were spreading that he was a “wife basher” to the point where he received several threating messages and phone calls and several people came up to him asking if he was a “wife basher” and to “pick on someone his own size”.
Mr F said his employment came to an end with Employer AA when his boss Mr H made his work life difficult by giving him work normally done by first year apprentices. He said also that his boss stopped talking to him for days on end or would yell at him for no reason.
Mr F said he found himself in a workplace with false accusations being made to his boss, making his working environment very difficult.
In his evidence, the father admitted that he went around to see Mr H, Mr F’s employer, who is clearly a friend, to find out “what was going on”.
The father reports that his friend Mr H told him that “they” meaning the mother and Mr F, have been planning on leaving Town B for ages. This advice seems not to have been well received by the father. It seems that even though the parties had separated, the father was still very intent on finding out what the mother and Mr F were doing in their private lives. The father went to Mr F’s workplace to, “find out what was going on”. In other words to find out personal information from Mr F’s employer about Mr F and the mother. One might have thought that the father and mother were still in a relationship, but they were not.
I accept Mr F’s explanation that things became impossible within the “tight knit” community (as the father referred to it) closing in on Mr F. On the father’s own evidence it is clear he was intruding into the lives of Mr F and the mother.
Mid-2019 – Mr F arrives in City C
Mr F subsequently left Town B and moved back to City C in mid-2019 and took up employment with a company as a tradesman. This job generally involved working in City C and the City C region however, there was one contract which involved working much further afield in Town DD for a week.
Mr F continued with his employment in City C until around late 2019 when he left. He denied that he was sacked. Mr F said that he and the employer had a discussion and came to an agreement, and he walked out. He denied being angry with his employer saying he was more frustrated. Mr F accepted that a month or so later he agreed he went back to the workplace to ask his former employer for his separation agreement.
The Police records contain a record of a person attending the City C Police Station counter to report behaviour by Mr F over a work contract terminated in late 2019. Mr F had returned to the worksite in early 2020 and allegedly threatened a person in relation to the matter. Mr F denied this. No complaint was pressed or followed through.
He was unemployed for the balance of December and January and then started working for a company in early 2020. He said this work was “tough as it involved working with toxic chemicals”.
He left that employment to take up his current employment which is an apprenticeship in trades work. He is now hoping to work through the units required, which as I understand it he has started, as part of his apprenticeship. The apprenticeship will take 4 years though he can do the units faster than that.
He had only a week in between leaving the company before taking up the full time apprenticeship about 3 months ago. He averages about 40 hours per week, generally between 7am and 4pm. Mr F said he now takes home just under $900.00 each week.
Mr F was defensive in relation to the occasions shown in the subpoenaed material where he received traffic infringement notices whilst driving the mother’s car. He accepted there was a traffic infringement notice in relation to a missing number plate on 14 December 2019 and that he was cautioned for a badly cracked windscreen and both front tyres not being legal.
He admitted that he and the mother were talking about personalised number plates though denied that he told the Police officer that is what they were waiting for in response to why the car did not have a front number plate.
Mr F gave slightly different evidence to the mother as to the damaged windscreen and when the tyres were replaced. On balance, given Mr F’s poor memory, I prefer the mother’s evidence as she was able to give a coherent and candid account of how and when the tyres were replaced. She said the windscreen was fixed before Christmas and the tyres were bought and put on slightly after Christmas as there was a delay for the tyres to come up.
Quite lengthy cross-examination occurred both with the mother and Mr F about their traffic violation involving the mother’s car. Also the issue of Mr F’s change of employment was thoroughly examined.
Mr F was criticised by the Family Report Writer for not being able to keep stable employment. I have set out his employment. As can be seen, he has maintained a fairly good record of employment, albeit I agree he has changed his workplaces. He is still a young man aged 27.
I have taken account of Mr F’s criminal history. That shows that just prior to his 18th birthday, he was charged with Grievous Bodily Harm in 2009 and placed on a suspended jail sentence. Three years later in 2012 he was charged and fined for assault for obstructing a Police officer. The following year in 2013 he was charged with a breach of the 2012 sentence and sentenced to a further two months.
In 2019 when Mr F was required to work for a week in Town DD, Mr F and other co-workers entered a hostel at the back of a hotel and were then subsequently reported by the backpacker tenants for trespass. It was alleged by the backpackers that an altercation broke out between the backpacker tenants and Mr F and his work mates. The Police were called and attended at the hostel. No charges were laid. The Police moved the offenders on. CCTV footage showed the offenders climbing the rear fence and then their violent behaviour at the front of the hostel. There was no footage of the alleged punches being thrown at the hostel as the cameras did not cover this area. Later that day Mr F and another person attended the Police station and were issued with an infringement notice Public Nuisance and Trespass. He and the other worker were given a Police banning notice in respect of the hotel they had been drinking at. Mr F said the backpackers had invited him and a work mate back to the hostel once the hotel closed.
Mr F told the Family Report Writer that he had remorse for his criminal charges in his earlier life (which he justified by saying he was trying to protect someone else or himself) and that he has matured since then and not committed any further offences.
My impression is that he is a hard worker, and that whilst he maintains employment, it has not been continuous and not particularly long term work with any one employer. He has had three jobs since arriving in City C. He is now doing the work he wishes to achieve to obtain a trade qualification. To that extent I consider he is trying to improve himself and his opportunity for future employment with a trade qualification.
Since returning to City C, where his former partner and mother of J now reside (having left Town B) Mr F has a week on week off parenting arrangement regarding his son J aged 8. Mr F has aunties, uncles and cousins in Town C.
Mr F gave uncontested evidence that J and X enjoy each other’s company and have lots of fun together. Mr F also has family in City C being his sister and her fiancé.
On 4 September 2020 Mr F has (together with the mother) completed an online parenting course as seen in Exhibit M1 being Young Children in Divorce and Separation, a 90 minute course for separated parents of very young children. This is a short course, however, he did this at night, after he had been working full time starting around 7am and whilst being the father of a new born.
Since arriving in City C, has worked to provide financial support for the mother and his child E. I accept he has a fondness for X and that he is a supportive partner to the mother. Importantly he has existing parenting experience with his own son J.
The Father
The father is very softly spoken and presents as lacking in confidence and nervous. Ms K explained in her report that during the Family Report interviews, the father was so anxious he was sweating profusely from anxiety rather than the weather.
He explained at trial that after the Interim Hearing in April 2020 he explained that he no longer attended upon a psychologist and that when the corona and all that come - they could no longer – I was still doing two weekly phone interviews but I was feeling a lot better and the techniques they’ve given me have really helped so they thought it was no longer needed.
My strong overall impression of the father is that he is immature, he does not always tell the truth, he uses intimidation and threats at will and he has a tendency to minimise events involving his own poor conduct.
I was not satisfied that at the time he made the decision not to send X to her mother in March 2020 in accordance with the Court’s Orders to do so, that he was justified in believing that the child was going to be in more danger of being exposed to Covid-19 in City C than would happen in Town B. X had not seen her mother for three weeks at the point the father decided to not put her on the plane from Town B to City C.
I have viewed the text message discussions between the parties in relation to the father’s plan that X not travel to City C to spend time with her mother pursuant to Orders. The mother showed sensible reasoning saying that X would be able to be at home with her as the Mother was not in the workforce rather than going to day care every day. Living with the father in Town B, X is in day care every day. There were also sensible alternatives to the child flying out of Town B namely being driven as has happened on various occasions. The mother was genuine in her concern that if an outbreak of Covid-19 occurred in the nearby Indigenous community of Town EE around 70 kilometres north of Town B on Region FF, that the Covid-19 virus could spread rapidly to the population in Town B where there were very limited medical resources.
My impression of the father’s evidence and position was that he was more concerned about X not being sent back to him or staying longer with the mother, than he was with either the Covid-19 threat or the child’s opportunity to spend time with her mother who was at home and not in the work force.
In handling this disagreement, the father did not have the honesty to admit to the mother specifically what he was doing in not sending X to the mother. He did not tell her that he was not putting X on the flight to City C until 6:00pm on 27 March 2020. Due to his late notification, it was too late for the mother to cancel the flight and the mother lost the cost of the airfares being $374.08. The father did not contribute to that cost. Overall, although the issue was contentious, my impression of the father was that he did not deal with the mother in good faith.
As to the submission by Counsel for the father that the father’s judgment on this issue should be seen in light of the fact that he was legally represented at the time, I consider that the father must take responsibility for any decision he makes, legally advised or otherwise.
As a result of the father’s decision, X did not then see her mother in March at all, all of April including Easter, all of May, and then not until late June. I accept the mother’s evidence that it was at her instigation, not the father’s, that X was able to travel to City C slightly earlier than was proposed in the Orders of May 2020.
The father’s answers under cross-examination were at times illogical and there were various issues about which the father was not candid.
The father has been abusive towards the mother. I do not accept the denials of the father that he did not make vulgar comments directly to the mother (the mother was “just a hole for his dick”) nor do I accept his denials saying he did not make crude comments about the mother in the presence of mates including Mr F (“Since she had X she was extremely loose and sloppy and he would refuse to have sex with her”[11]). The father has humiliated the mother through these comments.
[11] Paragraph 9 Mr F’s affidavit filed 9.04.2020.
His suggestion in the affidavit that he could have been “more courteous” to the mother is a gross understatement. His remarks are demeaning and crude. I am deeply troubled with the father’s overall attitude towards the mother. The father has repeatedly demonstrated how immature he is and this is another example.
I do not accept his denials regarding the personal and crude insults he has made towards the mother and as seen in his text messages.
He had no valid explanation for his text message to the mother saying “… I haven’t said anything for a few weeks but there are some rumours going around that Mr F is abusive towards you.. I wouldn’t give a shit because that’s what you deserve I’m worried about X.”
He has been quick to rush to his Facebook to publicly criticise the mother to his friends saying, “once again the mother hasn’t turned up again… no phone call and no text”. The father said the mother was due to collect X from him and did not do so. In his Facebook world his alleged Facebook friends have been vulgar and used appalling language to support the father and criticise and make threats of violence towards the mother saying “Tell her to come round here, step up” and “Shittest cunt I will punch her in the flap. Ousss ousss”.[12] As it turned out, the mother was in hospital getting treatment for a broken leg.
[12] Affidavit of the Mother filed 11.08.2020, Annexure 14, pages 54 – 56.
The father has shown a lack of insight into how abusive his remarks have been. It was not until the time of the trial that his evidence included apologies for his previous abusive conduct saying it was something he was now ashamed of. When asked by the Court whether he had ever apologised to the mother for his behaviour, he said no. I was not convinced that his recent statements of regret made in the witness box were genuine, rather they appeared strategic.
I am troubled at the evidence of threats by others being friends of the father to harm the mother or Mr F. The Father has shown he can be mean spirited and also malicious towards the mother and others. I accept the mother’s evidence that the father said “she deserved to be bashed” as I have seen the text message. I also accept the mother’s evidence that the father has told her she should “do everyone a favour and kill herself”. I found the father’s evidence that he could not recall saying these things and denials most unconvincing.
The father attempted to diminish the gravity of his threats made to Mr F in relation to stealing his car and driving it into a lake. I accept Mr F’s evidence that the father said he was going to “smash my teeth in, burn my car and steal my car and drive it into the lakes”.
The father accepted that he left a threat on the mother’s phone about Mr F’s car saying that he threatened “I would keep Mr F’s car until the bond is paid”. The father subsequently sent a text message saying he was just joking and that it was just a meaningless threat.
The father does not show any insight into the gravity of his own behaviour in insulting and threatening the mother and others. The father is quite immature and fails to comprehend the consequences of his actions. Unlike the confident and considered person one might conclude he is after reading his affidavit material, in person the father has very little to say and he was not able to explain or justify his own behaviour.
X is too young at 4 years old to express a view as to her long term living arrangements.
S.60CC(3)(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
Each of the parties agree that X has a close relationship with the other. The Family Report Writer noted that X was definitely well attached to both her mother and her father primarily engaging with each of them instead of her parents’ partners, young J or the Family Report Writer.
I accept that X would have a good relationship with her aunts (the father’s sisters) and grandparents and cousins.
I also accept that X has been and continues to develop a loving relationship with her new baby half-brother, E. X has also been spending seemingly enjoyable time with Mr F’s child J.
S.60CC(3)(c) The extent to which each of the child’s parents has taken, or failed to take, the opportunity to (i) To participate in making decisions about major, long term issues in relation to the child; and (ii) To spend time with the child; and (iii) To communicate with the child.
Each of the parties have been involved in making decisions about X and each keeps in touch with her when she is with the other parent.
The mother did not have time with X from February 2020 until June 2020 that she should have had pursuant to Orders providing that X was to spend the first week of each month with the mother, however this was not through her choice. The loss of time included additional time that the mother would have requested over the Easter period.
The loss of the mother’s time was due to the father’s decision not to facilitate a handover in March 2020 as per the Consent Order, claiming he was allegedly concerned about the child catching the Covid-19 virus if she spent time with the mother in City C. Even though the mother was not in the workforce at the time and she was in City C pregnant and able to spend every day with X, the father unilaterally decided that X would not be seeing her mother as he had changed his mind about complying with the Court Orders. I have referred elsewhere to the circumstances surrounding this incident.
S.60CC(3)(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
Neither of the parties presented evidence of child support being paid by the parents.
The mother’s evidence is that generally she has paid significant costs and that during the relationship she used all of her money to pay for food and expenses. She said[19] when she had to borrow money “I was always fearful of asking Mr Oakden to contribute as he would always make me feel bad for asking. I would usually ask my mum or my sister if I was short of money”).
S.60CC(3)(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
[19] Paragraph 95 of the mother’s trial affidavit.
There is considerable distance between City C and Town B of some 820 kilometres. The drive takes around 10 hours one way. The quickest way to travel between the two locations is by air.
Given this distance, X is going to have significantly more separation from the parent with whom she is not living, albeit the parties each set out time that she is to spend with the other parent in such circumstances.
If X lives in Town B with the father she will be raised in a small remote community in Region JJ with a population of around 3,000. The father is employed full time in Town B and works 12 hours a day. X will grow up with her father and cousins and two aunts around her and their spouses and her paternal grandfather. The paternal grandmother does not live in Town B at the time of trial. She had been living and working in Town KK (a township behind City C on the Region Q) for some time though the father says she will return to Town B.
Living with the father, X will typically spend every weekday in day care and in the absence of the father having help from his new partner, X will be dropped off very early, usually around 6:30 am as seen in the subpoenaed material.[20] The father sometimes has to work late and sometimes on weekends.
[20] Family Report, paragraph 39.
The pressure on X in this routine is seen in the text messages from the father who complained to the mother that the staff were not considerate at the early drop offs and he thought they should allow her to remain in her pyjamas and go back to sleep and get changed later. This seemed to relate to the day cares request that the child be dressed in day clothes when checked in. The father wrote in part, “Yer Ms GG has the shits with them, she went and picked her up and all Ms LL did was go on how bad she is, she loves it there is the only reason or I would just go family daycare or something… And I been starting early so she is still asleep in the car on the way, there no where to put her till she wakes up or whatever. Then they just stare at me as I’m dressing her and that. Wouldn’t you think that there not doing fuck all they would say we will dress when she wakes up properly… They can’t even cut her fruit up for her they just don’t give it her”.[21]
[21] Mother’s Affidavit, Annexure 10 page 40.
On the same day a little earlier, the father had written; “Im over this daycare, they make out like she is the worst child and make me feel like a bad parent every time.. But then when Ms GG has her Says she uses her manners and is kind and caring and never a drama. Ms G Says she had a good day then the next morning I get told all this stuff how she had a bad day”.[22]
[22] Mother’s Affidavit, Annexure 10 page 39.
Although the father has unsworn evidence in the form of a letter from his employer saying he has flexible work hours (and I note that he also has to sometimes work overtime and on weekends), this alleged flexibility has not really been apparent. Post separation, the father lived in his parents’ home with ongoing assistance from his sisters and father in relation to X. I have the impression that the father relies heavily on assistance from others with collecting the child in afternoons whilst he still at work. The father seems comfortable in his work and new living arrangements now that he has moved into his new partner’s housing arrangement provided by her employer, however he does not give evidence of starting late to enable X to avoid early starts.
On the father’s proposal, X will not have the experience of living with the mother and her baby half-brother E. Nor will she be going to the same day care with her mother and half sibling, which is the mother’s proposal.
X will have the experience of being raised primarily by her father and with regular ongoing assistance from his two sisters. He is also currently assisted by his new partner Ms L. As seen in her affidavit, Ms L now plays an important role in taking the child to day care for the father (who goes to work early) when her work permits her to start later in the morning. As well his partner is now sharing all tasks related to X’s care. Ms L explained “When X is in Mr Oakden’s care, we share all tasks related to caring for her. This includes any general tasks around the home including preparing meals, bathing and dressing her, taking her to day care or other extra-curricula activities, playing with her and caring for her when she is unwell. Whilst explaining that the person who finishes work first picks up X from day care, on Monday Wednesday and Friday Miss L does the early morning routine so that the father can start work early. The father is in charge, as explained by Ms L, “on Tuesday and Thursdays I work from 7.15am to 5pm and those are the days I usually travel to Town NN for work. On those days Mr Oakden is in charge of X’s morning routine and getting her to day care.”
Ms L is not an experienced parent in that she does not give evidence of having children of her own though it is clear she has thrown herself enthusiastically into all aspects of X’s care to help the father as can be seen in her affidavit. Ms L aged 24 at trial is a public servant who arrived in Town B in 2019 and a month later was in a relationship with the father. Her relationship with the father is in its early stages.
Living in Town B will mean that X will need to continue to travel with an adult to City C for her ongoing specialist medical treatment or medical/therapeutic reviews. This involves the expense of both X and an accompanying adult, (who may or may not be the father) travelling with X down and back to Town B. Typically this has been the almost sole responsibility of the mother. If it is the father, he will need to obtain time off work for the journey down and back and the duration. There may be the cost of accommodation for him unless he has somewhere to stay with or without X for the duration of the review or treatment. Perhaps other relatives will assist. My assessment of the father is that having heard each of the parties talk about the medical conditions of X, he does not have such a deep understanding as the mother has of X’s medical treatment and ongoing issues. This is likely because he appears to have only accompanied X to the hospital once, whereas the mother has attended all appointments since birth. The mother says at paragraph 90[23] in relation to the surgery X was required to have on both her eyes that “At every appointment we had, I was the only one who attended except for I think one (1) appointment. Mr Oakden refused to go because he said that he did not like to fly”. At paragraph 92 the mother says “Every three (3) months, I would take X to City C for her check-ups. Mr Oakden attended one (1) appointment as he was too scared to fly”. I accept this evidence.
[23] Mother affidavit filed 11.08.2020.
If the child lives in City C with the mother, X will be living close to the City C Hospital and there will be little to no cost for either parent in enabling X to access her medical and other specialists. This is a significant advantage for X and the parents and of the mother’s primary proposal.
If X lives with the mother in City C she will have the opportunity to grow up with her baby half-brother E spending time with him on an almost daily basis (and currently at day care), rather than as an only child living in Town B and seeing her little brother at set times when X travels to City C. Spending her early years growing up with E in a family home where they are spending most of their time together in a range of activities living together and experiences which will provide the foundation for X to build a lifelong close attachment to her only sibling. I give this consideration significant weight and consider it is an advantage of the mother’s proposal.
If the child lives in City C with the mother, her primary parent will be the mother. On the father’s proposal he is to be the primary parent. On balance I am satisfied that the mother shows more maturity and good judgment in her actions and decision making than the father.
I am satisfied that the mother is committed to ensuring that X has an ongoing loving relationship with the father and that she genuinely values that relationship for X. The mother shows a strongly held belief that X loves the father and should be enjoying a loving relationship with him. I am satisfied that if the mother is the primary carer, that X will be able to have a meaningful relationship with both of her parents.
The father struggles with his unresolved anger or resentment towards the mother. There was no genuine sign of this changing. He has shown her great unkindness and disrespect. He is strongly supported by his family and partner. I am concerned that as time goes by, if X lives primarily with the father and in an environment where the mother is held in such poor regard, the father’s openly hostile attitude and lack of respect towards the mother will affect X’s relationship with the mother. I give significant weight to this consideration.
S.60CC(3)(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The parties have each agreed that they can share the cost of contact which will typically involve flying X between City C and Town B, though of course the parties are free to drive X if they or people close to them and known to X were travelling between these centres.
I accept that the method of booking the flights should be as suggested by the mother which means that both parties will get the benefit of the locals discount, not just the father. Although the father says he might want to fly somewhere else for his own interests and use his locals discount for that purpose, I consider that his first priority should be to minimise the cost of travel for X. The father knew when putting forth his proposal that each party book and pay for their own airfare meant that the mother would not be able to share in the discount.
The evidence shows that trips between Town B and City C are around $150 to $200 per person, one way. The mother annexes airline tickets from two Airlines in this range. She says the fares are usually around $350 to $450 for two people, per trip.
The father’s proposal for time with the child involves many more trips each year than the mother’s proposal.
As to the father’s proposal for time with the child, I am not satisfied that the evidence supports his proposal. Time wise, he proposes having up to 8 weeks of school holidays a year off from work. In addition, he proposes on 14 days notice another four weeks away from Town B to potentially spend a week in City C each school term (or his parents to do so in his place), making a total of 12 weeks of holidays per year for the father from his work.
In addition, the father on 14 days notice would spend time with the child for up to two weekends per term (8 weekends in total) with such time to take place in City C or Town B or the location of his choice with the child not to miss school unless agreed by the parents.
The flights for the child for the school holidays from City C to Town B will total 8 flights. Then the potential for weekend flights on the father’s proposal of two weekends per term by four terms is another 8 weekends or 16 flights for the child (if she flew to Town B or elsewhere). In addition, the father would be flying or travelling down to City C for one week each term that is another four trips of a week each (noting that his parents can do it in his place). That proposal is also conditional upon 14 days notice to the mother and the father taking the child to school and extra-curricular activities during that time. If the father had the child flown back to Town B on all of the weekends or elsewhere, there is the potential for another 16 flights for the child each year. It would be less if the father spent the weekends in City C. The Orders sought permit him to take the child elsewhere with the child for the weekend and for the child to miss school if agreed to by the parents.
Potentially there are 24 flights for the child each year on the father’s proposal. There would be additional flights for the father if he flew down for the four weeks each year in City C.
Overall I consider that the father’s proposed time is inconsistent with the evidence as to his availability for holidays. I do not accept that he has this level of flexibility in his work. The father has given evidence of working late and starting early. There is no history or evidence of him having such flexibility in his working arrangements.
I also do not accept that he and the mother have the financial ability to fund one half of 24 flights of the airfares proposed by the father. The mother has two children now to support. Moreover, at the beginning of the trial, the parties increased the length of time that they would spend with X for the year 2021 to a three week turnaround (from two) with the parties indicating to the Court they could not financially sustain the cost of airfares on the two week turnaround which had been occurring up to this date. If the parties could not sustain the cost of the two week turn around, I have no confidence that they can support the cost of 24 flights a year.
I also consider that the amount of travelling involved in the father’s proposal, is an immense amount of travel and preparation for this little girl of 4 years, particularly once she starts school.
S.60CC(3)(f) The capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
Whilst the parties have agreed to equal time if they are both living in the same place, that is not to say that each of them are beyond criticism when it comes to various parenting issues and attitudes and behaviour.
Overall as can be seen in these reasons, I am far less confident about the father’s ability and capacity to parent X as compared to the confidence I have in the mother’s capacity and maturity.
The father has shown much immaturity, unnecessary hostility, and engaged in issuing threats to whomever he decides needs to be intimidated. I have observed that when the father is held to account for these threats and insults as happened under questioning from Mr McGregor of Counsel for the mother, the father just has very little to say, could put forth no valid reason for doing so, or gave what sounded like a rehearsed response of showing regret.
I also have confidence in the decision making ability of the mother in relation to practical details for example as shown in her proposals for the early return of X to spend time with her, or the living and day care arrangements for X where X can go to day care. I have also touched elsewhere on my concern about whether the father will be able to put aside his grievances and criticisms of the mother. I believe this will likely affect his ability to genuinely promote a relationship between X and the mother in the long term. I accept the evidence of the mother that she is fearful of what will happen after the litigation is over in terms of the father’s conduct. I accept he has threatened to harm people after this Court case is over.
Having considered all of the evidence, the decisions made and conduct of the parties and watched each of the parties give their evidence, my strong impression is that the mother has the ability to be an independent and organised parent who has made plans and arrangements for herself and X (and baby E) in a very child focused mature way.
I do not accept that the father has the same parenting ability or judgment as the mother. I am satisfied that the mother can provide for the emotional well-being and intellectual needs of X to a superior level than the father.
S.60CC(3)(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
I have nothing to add.
S.60CC(3)(h) If the child is an Aboriginal child or a Torres Strait Islander child, the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting Order under this Part will have on that right
Not applicable.
S.60CC(3)(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
I have nothing to add to my comments elsewhere in this judgment.
S.60CC(3)(j) Any family violence involving the child or a member of the child’s family; S.60CC(3)(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
the nature of the order;
the circumstances in which the order was made;
any evidence admitted in proceedings for the order;
(iv) any findings made by the Court in, or in proceedings for, the order;
any other relevant matter.
There are no family violence Orders between these parties.
I have set out elsewhere my assessment of the father’s intimidating conduct towards the mother and others. I accept that the father has a short fuse and that he has thrown objects around in anger and frustration in the presence of X and the mother.
The father has also punched a hole in the wall in his parents’ home. He said he did this when he heard something about the mother which upset him involving a previous boyfriend. At the father’s age, he cannot yet control himself or his temper. Punching a hole in a wall or a door is an act of violence.
The father’s unpredictable angry outbursts in which items are thrown or walls smashed, seriously undermine his capacity to parent and suggest he is a very poor role model for X. The father’s problem solving techniques involve issuing threats of physical harm. Again, the father is a very poor role model in dealing with conflict or disagreement. I consider this aspect of his behaviour seriously undermines his capacity to parent.
I have read the affidavit of his current partner, Ms L, who has decided to give the Court her broad commentary and opinions about various incidents that occurred well before Ms L was on the scene and to which she had no direct exposure. Nonetheless Ms L has attempted to re-tell the events and put them all in her own context of other things told to her by the father. Ms L says the father told her about punching a hole in the door of his parent’s home, which he then covered up with a unicorn poster. Ms L has said of the father’s violence “I made it very clear to the father that sort of behaviour is not acceptable.” Ms L’s commentary on the father’s conduct when he sent a text message (that she heard about) wherein the father told the mother “you deserve to be bashed” was that I told “the father that he was an idiot and that I was incredibly disappointed with him for sending that message”.[24] Ms L’s opinion and comments do not diminish the relevance of the evidence I have heard about the father’s vitriol towards the mother. Ms L’s comments “that the father knows a lot of people but is a very private person” and she was not aware of him spreading any rumours about the mother may be her perception but, as with other issues she has touched upon, do not accord with the evidence before the Court.
[24] Affidavit of Ms L filed 21/8/20 paragraph 18
My overall impression is that Ms L is in the early stages of her relationship with the father, is naturally anxious to be supportive of the father and keen to be part of the Oakden family. Whilst Ms L is no doubt well intended, her attempts to ameliorate or trivialize some of the father’s conduct is not accepted and nor does it accord with the evidence.
Overall I am satisfied that the father has engaged in acts of Family Violence against the mother under the definition in s 4 of the Act. I give this matter considerable weight.
S.60CC(3)(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
It is in the interests of both parties and X that a decision be made on a final basis as to her future long term living arrangements. The pressure and cost of this privately funded litigation for each of these young parents has been immense albeit the Court has accommodated an urgent interim hearing and a priority final hearing. This is particularly acute given their modest incomes.
S.60CC(3)(m) Any other fact or circumstance that the court thinks is relevant
I have nothing to add.
Parental Responsibility
As I have indicated at the outset, the parties have agreed that they should equally share parental responsibility. I have considered an equal time arrangement, however, it is also agreed that it is not possible for X to live in an equal time arrangement given the primary position of each party which is that they are not moving from City C to Town B or Town B to City C. I have also considered significant and substantial time. Again, that is limited to what can be afforded and what is practical. There will be school holidays and special occasions on both proposals.
It seems to me and it was the Family Report Writer’s evidence, that the proposals of each of the parties provide for X to have a meaningful relationship with each parent.
Evaluation
Each of the parties has presented a proposal to the Court in terms of the future living arrangements for X. The Court has carefully evaluated and weighed the advantages and disadvantages of each proposal and considered all of the evidence.
I have also taken account of the recommendations of Ms K that the child should live with the father in Town B. As is apparent from these reasons, there are various foundation issues and views and concerns expressed in Ms K’s report and evidence with which I disagree. I have had the advantage of seeing evidence from the parties including long after the Family Report interviews were conducted in February 2020 when the mother was heavily pregnant with E. I have concluded that the mother is not struggling as a parent and am satisfied that the Family Report Writer’s concerns in this regard have not been borne out. I am satisfied that the mother has made appropriate living arrangements with her new partner Mr F and work arrangements for herself. I am content that the mother has made appropriate arrangements for X to attend day care. I do not have the confidence in the father’s parenting capacity that the Family Report Writer holds. I consider that the Family Report Writer has given insufficient acknowledgment to the father’s hostility and demeaning conduct towards the mother and intimidating conduct to others. I am troubled about the father’s anger in throwing objects and punching walls. I do not consider that the mother had high expectations in seeking to have the father assist her in parenting X. I accept the mother’s evidence that the father was not focused on helping her in raising baby X, but rather he continued to indulge in activities with his friends and to consume ICE. Unlike the Family Report Writer, I am not troubled by the mother’s work history. I do not accept the mother changing her workplace has had any effect on X, as was speculated by the Family Report Writer. There is no evidence to this effect. Similarly I do not agree that the mother has shown instability in moving homes in City C since her arrival, any more than I consider that the father has shown instability in moving homes since separation.
I have taken account of the capacity of each of the parents and the father’s engagement in acts of family violence.
Whilst both parties are still young, the father has yet to mature and deal with his ill temper and inability to control his emotions. The evidence as to his disturbing hostility to the mother leaves the Court with significant concern as to the long term effect upon X. It seems likely that his influence as the primary parent would affect X’s ability to maintain an enduring and meaningful relationship with the mother. I also consider that the opportunity for X to develop a close sibling relationship with baby E is a significant issue and adds to the advantages for X under the mother’s proposal. Similarly the opportunity for X to live locally to her medical specialists, given her diagnosis and conditions she has yet to deal with in her childhood development, is a distinct advantage for X.
On balance, after consideration of all of the relevant factors and evidence, I consider that the long term best interests of X are provided for in the proposal of the mother wherein X lives with the mother in City C.
I am satisfied that such an Order will ensure that X has a loving ongoing meaningful relationship with both her mother and father. It goes without saying that each of the parents loves X however, I am satisfied however, that, as between the proposals of the mother and father, that the mother’s proposal of X living primary with her will ensure that X reaches her full potential in life. The mother has a level of emotional maturity and capacity to parent not seen in the father. The mother has the maturity and capacity to be the primary parent. I am satisfied that the mother’s proposal for X to live with her in City C is in her best interests.
As to the time that X should spend with the father, assuming he remains living in Town B, I have already expressed my concern at the number of flights and the costs of travel involved in the father’s proposal. I do not consider his proposal is sustainable financially nor do I accept that it is feasible for him to be away from work for the time proposed in his Orders that totals a sum of 12 weeks or at minimum 8 weeks for the school holidays.
Having considered the evidence, I am satisfied that the mother’s proposal of one weekend a month with the father (or the grandparents) is in the child’s best interests and the mother says she can afford this. I do not consider however that this should happen in a month which there will be school holidays happening (unless by agreement). However I do not consider that the time should extend beyond weekend times as a regular occurrence.
I am satisfied that the mother will agree to any extra reasonable time that the father can secure to spend time in City C with X and that she will always promote within reason their ongoing relationship. I therefore intend to make Orders largely in line with the mother’s draft of time proposed and add any other time that is agreed to between the parties in writing. This will leave the parties with more flexibility to organise additional time as can be afforded and is in the best interests of X.
In the event that the father does relocate to City C, the proposed equal time arrangement will operate as a buffer against the father’s negativity and hostility towards the mother. Wherever the father lives, it is to be hoped that the father develops more respect for the mother as a person and mother. I would strongly recommend that he undertake professional assistance to deal with his outbursts of anger and impulsive acts of threats and throwing objects and punching walls. It is entirely in X’s best interests that he do so.
I intend to make Orders in accordance with my findings. Mr Fellows of counsel has prepared an aide memoire comparing each of the specific Orders. I have adopted the father’s position in terms of length of time for birthdays as these are final Orders and X enjoys spending time with each of her parents. I have indicated in the Orders that special occasions such as birthdays are only possible when the parties are each in the same locality.
I certify that the preceding three hundred and fifteen (315) paragraphs are a true copy of the reasons for judgment of Judge Willis AM
Associate:
Date: 29 January 2021
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Consent
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Costs
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Remedies
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