Blevins & Ball
[2022] FedCFamC2F 141
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Blevins & Ball [2022] FedCFamC2F 141
File number(s): PAC 4292 of 2019 Judgment of: JUDGE NEWBRUN Date of judgment: 15 February 2022 Catchwords: FAMILY LAW – interim parenting - mother seeking order to relocate child’s residence - proposed Order not made - mother seeking to vary prior interim Orders relating to child spending time with the father - proposed Orders not made - best interests of child Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 68B Cases cited: Goode & Goode (2006) FLC 93-286
Marvel & Marvel (No 2) [2010] FamCAFC 101
Eaby & Speelman [2015] FamCAFC 104
Salah & Salah [2016] FamCAFC 100
Cimorelli & Wenlack [2020] FamCAFC 58
Banks & Banks [2015] FamCAFC 36Saif & Saif [2020] FamCA 119
Division: Division 2 Family Law Number of paragraphs: 105 Date of last submission/s: 1 December 2021 Date of hearing: 1 December 2021 Place: Parramatta Solicitor for the Applicant: Ms Kermode Solicitor for the Respondent: Mr Havenstein Solicitor for the Independent Children’s Lawyer Ms Moran ORDERS
PAC 4292 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BLEVINS
Applicant
AND: MS BALL
Respondent
AND: INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
15 FEBRUARY 2022
PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.That the Mother’s proposed Minute of Orders sought in her Case Outline filed 30 November 2021 be dismissed.
2.Without admission, the Father is restrained from physically chastising the child.
3.Without admission, the Father is restrained from force-feeding the child.
4.Without admission, the Father shall take all reasonable steps to ensure that the paternal grandmother does not verbally abuse the child or any other child in his household, and shall take all reasonable steps to ensure that the paternal grandmother is not left alone with the child.
5.Pursuant to section 68B of the Family Law Act 1975, the Father shall be restrained from coming within 100 m of the residential address of the maternal grandparents and Ms C.
6.That the Father shall undertake a hair follicle alcohol test and for the purposes of this order the following shall apply:
(a)The Father is required to maintain his head hair at a length of not less than four (4) centimetres; neither head hair nor body hair is to be cut, bleached or dyed between the date of this order and the time of collection of hair;
(b)The Father shall, within 7 days of these orders, make an appointment at an Australian Workplace Drug Testing Services clinic AWDTS by telephoning 1300 378 483 for the purposes of providing a hair sample for hair drug and alcohol testing purposes;
(c)The Father shall provide such hair samples as directed by AWDTS for the purposes of analysis of alcohol EtG;
(d)The Father is restrained from taking any steps to interfere with the provision of any hair samples, or interfering with the test results; and
(e)The Father shall do all things necessary and sign all necessary authority and documents to authorise TWDA to provide the test results to his legal representatives with copies of all results forthwith upon those results becoming available and thereafter upon receipt of such results his legal representatives shall provide a copy to the ICL and the Mother’s solicitors forthwith.
7.Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship shall attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by September 2022.
8.The Family Report shall deal with the following matters:
(a)Any views expressed by the child(ren) the subject of parenting orders sought in this case, provided that the child/ren shall not be required to express a view in relation to any matter.
(b)The nature of the relationships of the child(ren) with each of the child(ren)’s parents and with significant other persons;
(c)The willingness and ability of each of the child(ren)’s parents to facilitate and encourage a close and continuing relationship between the child(ren) and the other parent.
(d)The likely effect of any changes in the child(ren)’s circumstances, including the likely effect on the child(ren) of any separation from:
(i)either of the parents: or
(ii)any other child, or significant person, with whom the child(ren) has/have been living.
(e)The practical difficulty and expense of the child(ren) spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child(ren)’s right to maintain personal relations and direct contact with both parents on a regular basis.
(f)The capacity of each parent, or another person, to provide for the needs of the child(ren), including emotional and intellectual needs.
(g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) other child(ren) and of either of the child(ren)’s parents and any other characteristics of the child(ren) that the reporter thinks are relevant.
(h)Each parent’s attitude to the child(ren) and to the responsibilities of parenthood.
(i)Any family violence involving the child(ren) or a member of the child(ren)’s family.
9.The parties shall attend all appointments with the Family Consultant and shall ensure the subject child/ren attend all appointments with the Family Consultant, as requested by the Family Consultant.
10.The Family Consultant may inspect the Court file, and any documents produced on subpoena access to which has been granted to a party or the Independent Children’s Lawyer.
11.The matter is to be listed on a date to be advised following release of the Family Report. The Court expects the Family Report to be released in about September this year.
12.Direct the Father through his solicitor to respond to the Mother’s solicitor’s letter dated 10 January 2022 within 7 days.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Blevins & Ball has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
This Interim Hearing relates to the male child X born in 2019 (“the child”).
The child has been spending time with the Father pursuant to Orders by consent made on 1 April 2021; inter alia, each alternate weekend from 6pm Friday until 6pm Sunday, and each alternate Monday from 4 PM until 8 PM. Those Orders provided for the child to live with the Mother. On 1 July 2021, the Court made an interim Order that the Mother be prohibited by injunction from relocating the child away from the Region D of NSW.
The Mother seeks interim Orders as set out in Annexure A to her Case Outline filed 30 November 2021; inter alia, she seeks Orders that previous Orders that the child spend time with the Father be suspended; that the previous injunction that she be prohibited from relocating the child away from the Region D of NSW be discharged; that the Father spend no time with the child until he undertakes a hair follicle alcohol test and which returns a certain specified result; upon compliance with the said test, that the child spent time with the Father each Sunday between 10 AM and 12 PM supervised by a suitably qualified professional supervision agency of the Father’s choosing; and that pursuant to section 68B of the Family Law Act 1975 (Cth) (“the Act”), the Father be restrained from coming within 100 m of the residential address of the maternal grandparents and Ms C.
The Father seeks that the Mother’s Application that the proposed above interim Orders be made be dismissed. At the Interim Hearing, the Father sought an order extending his alternate weekend time to 9 AM Monday or the commencement of day care.
Inter alia, the ICL did not support the Mother’s proposed Order 4 relating to the father spending no time with the child until he undertook a hair follicle alcohol test which returned a specified result; and supported an Order that the Father carry out a hair follicle test presently and another test in three months’ time.
The Father relied upon his Case Outline dated 30 November 2021 together with the documents referred to in that Case Outline, and his Tender Bundle of 26 pages.
The Mother relied upon her Case Outline filed 30 November 2021 and the documents set out in that document.
The ICL relied upon her Case Summary filed 1 December 2021.
AGREED FACTS INCLUDING THE PARTIES’ ALLEGATIONS
The Mother is aged 30 years. The Father is aged 32 years.
The Father describes his occupation as tradesman. The Mother works part-time as a tradesperson.
The Mother has been in a relationship with a woman, Ms C, for about 2 years.
The Father’s current partner alleges that she and the Father have been in a relationship since early 2019.
The Father has a child from a previous relationship, E, born in 2014. E lives with her Mother and spends regular time with the Father.
The Father alleges that the parties met in 2017 when he moved to Suburb F. He alleges that in April 2018 the parties met by coincidence in Town G. He alleges that in early May 2018 the Mother stayed at his house. He alleges they started spending most nights together, either at his house at Suburb F or the Mother’s parents’ house in Suburb H. The Father alleges that in 2018 the parties found out the Mother was pregnant. He alleges the Mother made it clear that she was not willing to move to Sydney. The Father alleges that he decided he would move to Suburb H so the parties could make family life work as well as possible. He alleges the parties lived together for about a month before they decided to separate.
The Mother alleges that the parties began cohabiting in June 2018 but that their relationship did not improve. She alleges they separated on a final basis in July 2018.
The Mother alleges that, post separation, the parties eventually progressed to the child spending unsupervised time with the Father with overnight time commencing in November 2020.
The Mother states that during the parties’ relationship the Father was not physically violent towards her. However she alleges that at times he was verbally aggressive and could be very controlling. For example, she alleges that he often recorded the parties’ conversations, particularly during arguments, without the Mother’s consent.
The Mother alleges that the Father, during the parties’ relationship often struggled with managing his anger, however the outburst largely occurred when he was drinking.
The Mother asserts that the Father previously disclosed, in an affidavit filed 29 September 2021, following the Mother’s movements on multiple occasions, with the Father annexing covertly taken pictures of the home the Mother shares with her parents, as well as the residence of her current partner. She alleges that her parents and her partner have installed security cameras at their residences due to the alleged escalating nature of the Father’s behaviour.
The Mother asserts that during the changeover on 29 March 2021, the Father’s partner disclosed that the Father was engaging with Alcoholics Anonymous (AA) after an incident in January 2021 and a drink-driving offence.
The Mother alleges that she has also become aware of the paternal grandmother struggling with alcohol abuse. She alleges that she has previously met her and has previously had concerns about the child being left in her care. She alleges that she has become aware from DCJ material that the paternal grandmother has been verbally aggressive towards the Father’s partner’s children.
The Mother asserts that she has always wanted the child to have a meaningful relationship with the Father, however the child’s safety is her paramount concern.
The Mother alleges that at changeover, when the child is being dropped off to the Father, the child becomes very distressed.
The Mother alleges she has become aware that a witness reported to DCJ that they were disgusted by the Father’s behaviour towards the child, specifically the Father allegedly being frustrated with the child refusing to continue eating so he forced the child to eat and struck his hand.
The Mother alleges that her partner lives in a property in Suburb J. She alleges that she has a strong and loving relationship with her partner. She alleges that her partner and the child have a very close bond.
The Mother alleges that being unable to relocate to Suburb J has been stressful and damaging to her mental health. She alleges that due to Orders preventing relocation, that the child and herself have been unable to spend as much time as they previously did with the Mother’s partner.
The Mother alleges that she currently resides with her parents in Suburb H. She has not relocated due to the current Order preventing her from relocating to Suburb J. However, the Mother asserts that she does occasionally spend time with her partner at her residence in Suburb J.
The Mother asserts she is employed as a tradesperson at a business in Suburb K and works three days per week. She alleges that she will have the opportunity to work a greater number of hours if she is able to relocate closer to her workplace.
The child attends day care in Suburb L on average three days per week, and this day care is about an eight minute drive from the Mother’s place of employment. The day care report dated 22 June 2021 for the child is a positive report, referring to the child’s happy, smiling face and that he is very social and interacts positively with his peers and educators.
The Mother asserts that it is her position that the Father should only have professionally supervised time until he can prove to the Court that he can provide for the child’s safety and has addressed his substance abuse and mental health issues. The Mother asserts that she did not produce the child for changeover on 22 November 2021 due to the concerns raised by her regarding the child’s safety.
The Father alleges that he has been spending time with the child since February 2020.
The Father attaches to his affidavit filed 30 November 2021 a copy CDT test result dated 14 April 2020 stating that “the normal CDT does not support recent or ongoing excessive alcohol use”.
The Father admits turning to alcohol to help cope following the death of his Father in October 2020. He alleges that his Father’s death affected him quite significantly. He alleges that he did not drink when he had the child in his care or prior to the child coming into his care as per the Court Orders. (The Court observes that on 19 February 2020 the Court ordered that the Father be injuncted from drinking alcohol for 24 hours prior to and during contact with the child. On 27 April 2020 the Court ordered that “The restriction with respect to the consumption of alcohol is amended whereby the Father is restricted to not consuming alcohol within 12 hours prior to seeing the child”. On 3 November 2020, a consent interim Order was made providing that the parties be restrained from consuming alcohol “in quantities that would lead to them having a blood alcohol level exceeding the then current lawful limit from time to time for drivers holding Class C driver licences in the state of NSW when the child is in their care and for a period of 24 hours prior to the child coming into the care.”)
The Father alleges that he has complied with the above alcohol related Orders.
The Father admits that on 26 January 2021 he got into a fight with a friend after he had been drinking. He alleges that this was the turning point for him. He allegedly stopped drinking and joined AA for support. He alleges he has continued to attend AA meetings. He alleges AA has helped to minimise his drinking. He alleges that he now has coping skills to help him deal with situations that may cause him to turn to alcohol in the future. He alleges that he does not currently drink alcohol to excess. He alleges that he has the support of AA and his current partner to remain sober.
The Father alleges that after he was sentenced for his novice range PCA offence (the Court observes that the criminal history of the Father refers to a novice range PCA offence on 8 January 2021) that an interlock device was fitted to his car and that he is unable to drive his car if he registers any alcohol reading on the interlock when he turns it on.
The Father alleges that he has not engaged in any domestic or family violence towards his current partner. He alleges he has not been charged with any domestic or family violence offences involving his partner or any previous partners.
The Father denies smacking the child on the hand or speaking to the child in a disgusting manner. He alleges that the paternal grandmother rarely visits his home and has not been left unsupervised with the child or other children.
The Father alleges the child is a very active boy who is adventurous and sometimes clumsy.
The Father admits that he had thoughts of self-harm following becoming depressed after his separation from the Mother when she was pregnant with the child. He alleges that he sought help and saw a counsellor regularly over a few months.
The Father alleges that the child and himself have formed a strong bond. He alleges that the child has also formed a strong bond with his half-sister E, his partner Ms M, and his partner’s children N and O.
The Father and his partner have recently purchased a house in Suburb H.
The Father’s work as a tradesman takes him all across greater Sydney and the Region D.
The Father alleges that the Mother has refused to put his name on the child’s birth certificate as the child’s Father. He alleges that he has been unable to be involved with the child’s daycare due to it being in Suburb L and the Father not being listed as a parent of the child on the day care forms. He alleges he does not receive any updates from the daycare.
The Father’s partner’s affidavit filed 30 November 2021 refers to the partner being 37 years of age. The partner asserts her children N and O are aged 11 and 13 respectively.
The Father’s partner alleges that the way the Father speaks to the child is appropriate in all the circumstances. She alleges that the Father is loving and gentle in his interactions with the child. She alleges that she has not witnessed the Father smack the child. She alleges that an interlock device was installed in the Father’s car after being sentenced for his novice range PCA offence. She alleges the Father continues to attend AA, and now has the coping skills and support around him to ensure that he stays on the right path. She alleges that the paternal grandmother rarely visits their home and has never been left alone to care for the child. She alleges that while she has witnessed some tears from the child at changeover, the child is always settled before he even gets to the front door and always asks to see the dogs.
The Father’s partner alleges that her children and herself moved from Sydney to Suburb H so that the Father could be part of the child’s life.
RELEVANT LEGAL PRINCIPLES
The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode (2006) FLC 93-286.
In Marvel & Marvel (No 2) [2010] FamCAFC 101 the Full Court of the Family Court of Australia (Faulks DCJ, Boland and Stevenson JJ), discussed the problems associated with making findings on disputed evidence as follows:
[120] As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an Interim Hearing is disregarded at the final hearing (s 61DB).
…
[122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an Interim Hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123] Later, at [100] their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
Of this, the Full Court in Eaby & Speelman [2015] FamCAFC 104 said at [19]:
As would be immediately apparent, this approach enables the Courtto appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.
In Salah & Salah [2016] FamCAFC 100, the Full Court said:
[37] It is very common in interim parenting proceedings to see factual disputes which cannot be determined without the evidence being tested in the context of a trial. His Honour recognised this and indeed at [14] referred to “the usual pathway as highlighted in Goode & Goode (2006) FLC 93-286”. A paragraph relevant to this appeal in the Goode decision is as follows (at 80,901):
[68]… the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
The Full Court in Cimorelli & Wenlack [2020] FamCAFC 58 said:
[80] In Interim Hearings, where the evidence remains untested, disputed facts cannot be the subject of definitive findings, but simply because material facts have been put in issue does not mean the contested evidence must or should be ignored, since such evidence may have a significant bearing upon the determination of orders which promote the children’s best interests ([Salah] at [35]-[45]; Eaby & Speelman (2015) FLC 93-654 at [18]-[19]). Despite the limitations which constrain findings at Interim Hearings, aside from those “couched with great circumspection”, certain provisions within Part VII of the Act direct judges to consider risks which are pertinent to the welfare of children and their carers (for example: ss 60B(1)(b), 60CC(2)(b), 60CC(3)(j), 60CC(3)(k) and 60CG). It would constitute an error of law to ignore the statutory mandate and, correctly, the primary judge did not ignore it.
[81] Naturally, the concept of risk encompasses the possibility of harm, not just the probability of harm (M v M (1988) 166 CLR 69). The primary judge was conscious of the need to evaluate the available evidence to determine whether or not it capably vindicated the submissions made by both the Father and the ICL that the Mother poses a tangible risk of psychological harm to the children. Her Honour’s finding that the evidence did do so was appropriately circumspect and does not foreclose the issue being revisited at final trial, when the evidence will be properly tested. Her Honour was obliged to resolve the issue at an interlocutory stage, albeit provisionally rather than definitively, because it underpinned the parties’ contest over the children’s residence.
The Court also refers to the decision of the Full Court of the Family Court of Australia in Banks & Banks [2015] FamCAFC 36, especially at paragraphs 46 to 52.
Section 60B of the Act sets out the objects of Part VII of the Act relating to children that inform the making of parenting Orders.
In deciding whether to make a particular parenting Order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3), and in this regard the Court refers to Banks & Banks above.
As to relevant legal principles relating to interim relocation applications, the Court respectfully refers to Foster J’s discussion of relevant legal principle in Saif & Saif [2020] FamCA 119 at paragraphs 78-79 as follows:
[78] Relocation is but one aspect of parenting. It falls to be determined in the best interests of the children.
[79] Recently in Franklyn & Franklyn [2019] FamCAFC 256 the Full Court took the opportunity to review the applicable principles in the context of the subject interim relocation appeal. The Full Court said at [27] – [28]:
There is an inherent tension between, on the one hand, separated parents being able to establish new homes wherever they like and, on the other, their restraint by injunction from living too far apart to avoid any impingement of their children’s ability to retain meaningful relationships with both parents. The conflict is between the best interests of the children to know and have regular personal contact with each parent and the interests of the parents to enjoy a high measure of freedom of movement which is not lost by reason only of their parental responsibility for the children (see AMS v AIF (1999) 199 CLR 160 (“AMS v AIF”) at 196, 206, 207-208, 210). The tension at the intersection of those conflicting interests is even greater when an order is sought, not just to restrain one parent’s move further away, but to compel the parent who has already moved away to return and establish a new residence closer to the other parent.
While the children’s interests are paramount, their interests are not the sole determinant of parenting orders under Part VII of the Act (AMS v AIF at 207, 225, 230; U v U [2002] HCA 36; (2002) 211 CLR 238 (“U v U”) at 282). Parents enjoy as much freedom to live where they please as is compatible with their obligations pertaining to the children (see AMS v AIF at 223-224, 231-232; Sampson and Hartnett (No.10) [2007] FamCA 1365; (2007) FLC 93-350; Zanda & Zanda [2014] FamCAFC 173; (2014) FLC 93-607 at [132] - [136]). Only when the children’s welfare would be adversely affected must a parent’s right to freedom of mobility defer to the paramount consideration of the children’s best interests (see U v U at 262).
The best interests of the children
Section 60CC considerations
(2)(a) (the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration)
In Saif & Saif [2020] FamCA 119, above, Foster J stated:
[95] The reality is, in the context of this Interim Hearing, that the Court is obliged to have regard to the maintenance and promotion of the children’s relationships with both parents. A relationship may be less than optimal but nonetheless meaningful: (Godfrey & Sanders [2007] FamCA 102 at [33]-[36]; Sigley & Evor (2011) 44 Fam LR 439 at [182]).
[96] In Mazorski v Albright [2007] FamCA 520, Brown J considered ordinary definitions of the term “meaningful” and observed:
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
[97] In McCall & Clark [2009] FamCAFC 92 at [121] the Full Court accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
The child has a meaningful relationship with the Mother and will benefit from a continuance of that relationship. The Mother has been the children’s primary carer from birth to date.
The child would appear to have a meaningful relationship with the Father. The child will benefit from a continuance of that relationship provided it is safe for him to do so.
The child will turn three years in 2022. The child is still very young and it is important that the child, at this stage of his life, spends regular time with the Father so as to sustain and enhance the relationship between them.
The present Orders of 1 April 2021 provide that the child spend time with the Father each alternate weekend from 6 PM Friday until 6 PM Sunday, and each alternate Monday from 4PM until 8 PM. The relevant changeover order provides that the Mother shall deliver the child to the Father’s residence at the commencement of the child’s time with the Father, and the Father shall deliver the child to the Mother’s residence at the conclusion of the child’s time with the Father. Again, presently both parties reside in Suburb H on the Region D. The Mother wants to relocate the child’s residence to Suburb J.
As discussed further below, should the Mother be permitted to relocate the child’s residence from Suburb H to Suburb J, then, in compliance with the orders of 1 April 2021, there is a real risk that the child’s time with the Father will be detrimentally affected on the fortnightly Sunday afternoon because the Father will need to drive the child from Suburb H to Suburb J so as to drop off the child to the Mother’s residence at Suburb J by 6 PM on that Sunday. Similarly, there is a real risk that the child’s time with the Father will be detrimentally affected on the fortnightly Monday evening by having to drop off the child to the Mother’s residence at Suburb J by 8 PM on that Monday. With such time between the child and the Father being detrimentally affected, there is a real risk that the child’s meaningful relationship with the Father will also be detrimentally affected.
The Court gives significant weight to this meaningful relationship primary consideration and regards it as particularly important at this Interim Hearing, and which consideration does not support relocation.
(2)(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Court refers to the Mother’s allegations against the Father of verbal aggression, controlling behaviour, and issues with anger management.
Relating to the Father’s alleged anger, the Mother alleges that the Father’s anger outbursts largely occurred when he was drinking. She expressly states that during the parties’ relationship the Father was not physically violent towards her. The Father makes significant denials in this context. Moreover, he makes frank admissions relating to problems with alcohol consumption coming to a head in January 2021 following which he alleges he took positive steps to deal with his alcohol issue; in particular, he alleges that he began attending AA with positive results and he continues to do so. His current partner alleges that the Father attends AA meetings. She makes no allegations suggesting adverse consumption of alcohol by him.
Further, in relation to drink-driving and a related offence in January 2021, the Father alleges that he uses an interlock device for his car, which allegation is supported by his partner. In this context, it is not without relevance that Mother asserts that during the changeover on 29 March 2021, the Father’s partner disclosed that the Father was engaging with AA after an incident in January 2021 and a drink-driving offence, yet the Mother continued to facilitate the child spending time with the Father, including entering into interim consent orders on 1 April 2021 relating to the child spending regular time with the Father. Acting cautiously and conservatively, the Court will Order the Father to undertake a hair follicle alcohol test. And the Court notes that there are existing Court Orders (3 November 2020) restraining the parties from consuming alcohol in relation to the care of the child.
The Mother alleges that the Father exerted controlling behaviour upon her to which the Father makes significant denials. He admits to only one occasion when he recorded the Mother’s conversation with him, alleging that he was concerned that the Mother would make false allegations against him. The Father admits to being subject to a prior interim ADVO, albeit in 2016 protecting a former partner. The Father makes allegations in relation to this interim ADVO, alleging that he was just trying to get his telephone back. The police report (page 4 of the Mother’s Tender Bundle) states that none of the contact the Father had made with the former partner had been threatening. He alleges that the ADVO was withdrawn and dismissed and no final ADVO was made against him.
The Mother refers to complaints made to DCJ. As to alleged complaints in relation to domestic violence being experienced by the Father’s present partner, the Court refers to the Father’s partner’s sworn affidavit which does not suggest significant domestic or family violence being perpetrated by the Father against her, nor against the child or her children. The Father’s partner alleges the Father is loving and attentive to the child.
A DCJ report refers to a person being allegedly disgusted by the way the Father talks to the child, and includes allegations of force-feeding and smacking the child on his hand. The Father makes significant denials in this context. No formal action was taken by DCJ against the Father in relation to the child following their investigations. Acting cautiously and conservatively, so as to minimise the risk of this alleged conduct occurring, as discussed at the Interim Hearing, the Court proposes to make interim protective orders that the Father not force feed the child or exercise physical discipline upon the child.
In relation to the Mother’s allegations and concerns that the Father is or may be perpetrating adverse behaviour and/or family violence towards the child, it is not without relevance that the Q day care centre’s report of June 2021 is a positive report for the child’s well-being and development.
In relation to the paternal grandmother and allegations made to DCJ that she is verbally abusing one of the Father’s partner’s children, and noting allegations that the paternal grandmother rarely attends the Father’s residence, and as discussed at the Interim Hearing, acting cautiously and conservatively, so as to minimise the risk of this alleged conduct occurring, the Court will make a protective order that the Father take all reasonable steps to ensure that the paternal grandmother does not verbally abuse any child in his residence and that she not be left alone with any child in his residence.
As to the Mother’s contentions relating to the Father’s adverse mental health, the Court refers to the material before the Court in this context. In particular, the Court refers to the Father’s frank admission that he had thoughts of self-harm following becoming depressed after his separation from the Mother when she was pregnant with the child. The Court notes that he was admitted to Town P Hospital on 20 August 2018 with suicidal ideation; the clinical notes refer to the Father presenting with anxiety and suicidal thoughts after relationship break down, and that the Father has been seeing a counsellor. He alleges that he sought help and saw a counsellor regularly over a few months. He alleges that his mental health is not adverse. The Court would further observe that the Father alleges he is working as a tradesman.
Having considered all the material before the Court, and having considered all the Mother’s allegations, contentions and submissions in relation to the child being at risk in spending unsupervised time with the Father, the Court is of the view that there will be no unacceptable risk that the child will be exposed to family violence if continuing to spend unsupervised time with him, and there will otherwise be no unacceptable risk of harm posed to the child in continuing to spend unsupervised time with the Father. Again, as discussed above, the Court will make certain protective orders, acting cautiously and conservatively.
This need to protect primary consideration is probably neutral as to relocation.
Section 60CC(3) additional considerations
(3)(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
The child is too young to express a relevant view.
(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)
The Court refers to its discussions above under the meaningful relationship primary consideration. The child would appear to have positive relationships with the Mother’s partner, and the Father’s partner and children.
(3)(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child
It would appear that the Mother has been making the major decisions for the child.
The Father alleges that the Mother has refused to put his name on the child’s birth certificates as the child’s Father. He alleges that he has been unable to be involved in the child’s daycare due to it being in Suburb L and the Father not being listed as a parent on the daycare forms. He alleges he does not receive any updates from the daycare.
Subject to the above, both parents would appear to have taken, or sought to have taken, such opportunities.
This consideration is probably neutral as to relocation.
(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
The parents would appear to have maintained the child when the child was in their respective care. The Father alleges that because the Mother has refused to put his name on the child’s birth certificate as the child’s Father, the Child Support Agency cannot collect child support. He alleges that he has asked the Mother for a list of the child’s expenses. He alleges that if the Mother provided him with the requested information he would be happy to come to an agreement regarding private child support.
This consideration is probably neutral as to relocation.
(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
The Court refers to the meaningful relationship primary consideration discussed above; should the child be permitted to relocate with the Mother to Suburb J, there is a real risk that the child’s meaningful relationship with the Father will be detrimentally affected.
(3)(e) The practical difficulty and expense of a child spending time with and communicating with the 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
Should the child’s residence be relocated to Suburb J there is likely to be some practical difficulty in relation to the child spending time with the Father as discussed above under the meaningful relationship primary consideration.
(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
The Court refers to its discussions above under the need to protect primary consideration.
The parties would appear to have such capacities.
(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
The child appears to be progressing and developing well.
(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.
(3)(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
The Court refers to its discussions above under the meaningful relationship and need to protect primary considerations.
The parents appear to have demonstrated appropriate attitudes.
(3)(j) Any family violence involving the child or a member of the child's family.
The Court refers to its discussions above under the need to protect primary consideration.
(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 findings made by the Court in, or in proceedings for, the order; any other relevant matter.
There has been no AVOs between the parties. The Court refers to its discussions above in relation to a prior interim AVO in relation to the Father and a prior partner.
(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.
These are interim proceedings.
(3)(m) Any other fact or circumstance that the Court thinks is relevant.
The Mother seeks an order pursuant to section 68B of the Act that the Father be restrained from coming within 100 m of the residential address of the maternal grandparents and her partner. The Father admits to attempting to obtain proof of the Mother’s alleged breach of the injunction preventing her from relocating the child’s residence away from the Region D. He admits to taking photographs of the Mother’s car at the Suburb J address. He admits to driving past the Suburb J residence on more than one occasion. He alleges that he previously could not afford the services of a private investigator. The Mother, for her part, alleges that her parents and her partner have installed security cameras at their residences due to the alleged escalating nature of the Father’s behaviour. She alleges that she became concerned that the Father was engaging in stalking behaviour and reported this alleged activity to the police. So as to minimise the risk of the Father engaging in his prior admitted behaviour in the future, and so as to alleviate any potential stress and anxiety in the Mother relating to the Father potentially carrying out surveillance upon her (noting that such stress and anxiety may adversely affect the Mother’s parenting capacity), it will be appropriate for the welfare of the child to make the Mother’s proposed section 68B injunction, on an interim basis.
The Mother seeks the Court’s permission, on an interim basis, to relocate the child’s residence to Suburb J, which is opposed by the Father.
The Court now addresses, to the extent that it has not been previously addressed in the Court’s consideration of s 60CC factors, the advantages and disadvantages in respect to the relevant proposals of the parties.
Turning first to the Mother’s proposals.
The Mother alleges advantages to the child in relocation being permitted, inter alia, as follows:
(a)She will be able to live with her current partner in the latter’s residence at Suburb J. Again, she alleges that she has a close and loving relationship with her partner. Further, she alleges that her current partner has a close relationship with the child which can be enhanced by living together with her. The Court would observe that despite the Mother living with the child in Suburb H, she has managed to maintain her close and loving relationship with her new partner, whilst the Court acknowledges that it is possible that the Mother’s relationship with her partner may be enhanced if they were living together;
(b)The Mother alleges that being unable to relocate to Suburb J has been stressful and damaging to her mental health. The Mother adduces no objective mental health related health professional evidence in this regard. The Court observes that the Mother continues in part-time employment. The Mother does not allege that her care of the child has been compromised in this regard;
(c)The Mother alleges that the child’s day care at Suburb L is quite close to her workplace at Suburb K, and Suburb J is not far away from these suburbs. The Mother contends, the Court would infer, that her travel with the child will be reduced accordingly, should she not have to return to live with the maternal grandparents in Suburb H. In this context, the Court observes that the Mother adduces no significant evidence as to the child’s difficulties with such return travel to Suburb H, albeit that she alleges that the child can experience difficulty at changeover. Nevertheless, the Court acknowledges that it is possible that such reduced car travel for the child may be helpful for him;
(d)The Mother alleges that she will have an opportunity to work “a greater number of hours” if she was able to relocate closer to her workplace. She adduces no material from her employer in this regard, in particular no such material relating to the extent of greater working hours that she might be offered. She adduces no significant evidence relating to her financial circumstances, whether positive or negative, albeit that she does assert that the Father has failed to assist her with child expenses;
(e)The Mother refers to the Father working in the greater Sydney area.
The Court observes that the Mother states that she currently resides (with the child) with her parents at Suburb H. It would appear that the Mother and child have been living with the maternal grandparents in their home for some not inconsiderable time. She does not adduce any express evidence relating to the relationship of the child with the maternal grandparents but nothing adverse is stated by the Mother in this regard. It is possible that if relocation is permitted, that the child will be less exposed to the presence of the maternal grandparents.
Turning to the Father’s position opposing relocation:
(a)The Court refers to its discussions above under the meaningful relationship primary consideration; there is a real risk that the Father’s time with the child, pursuant to the Court’s Orders of 1 April 2021, will be detrimentally affected, with the related real risk that his meaningful relationship with the child will be detrimentally affected;
(b)The Father alleges that in about June 2018, when the parties found out the Mother was pregnant with the child, he decided he would move to Suburb H so that the parties could make family life work as well as possible. He now alleges that he and his new partner have recently purchased a house together in Suburb H. He would contend, the Court would infer, that it is now not practically possible for himself to relocate back to Sydney’s western suburbs. Further, in this context, the Court notes the Father’s partner’s allegation that her children and herself moved from Sydney to Suburb H so that the Father could be part of the child’s life.
On balance, the Court is of the view, evaluating the above considerations under section 60CC of the Act, and other matters discussed above, and having regard to relevant legal principle, and placing particular importance on the real risk that the child’s meaningful relationship with the Father will be detrimentally affected if relocation is permitted, that it will not be in the best interests of the child to permit the Mother, at this interim stage, to relocate the child’s residence to Suburb J.
The Court is of the view that it will continue to be in the best interests of the child that the Mother be prohibited by injunction from relocating the child’s residence away from the Region D of NSW and that the child continue to spend time with the Father pursuant to the Court’s Orders of 1 April 2021.
The Court is not persuaded that the Father’s time of the child should be extended as sought by the Father at the Interim Hearing. In particular, the Court observes that the child has maintained his meaningful relationship with the Father through the implementation of the Court’s time-with Orders of 1 April 2021, and the Court, at this interim stage, has a concern with interrupting the child’s stability and routine.
SUMMARY
Evaluating the above discussed considerations under section 60CC of the Act, and other matters discussed above, the Court is of the view at this interim stage that it will be in the best interests of the child to make the following interim parenting Orders:
1.That the Mother’s proposed Minute of Orders sought in her Case Outline filed 30 November 2021 be dismissed.
2.Without admission, the Father is restrained from physically chastising the child.
3.Without admission, the Father is restrained from force-feeding the child.
4.Without admission, the Father shall take all reasonable steps to ensure that the paternal grandmother does not verbally abuse the child or any other child in his household, and shall take all reasonable steps to ensure that the paternal grandmother is not left alone with the child.
5.Pursuant to section 68B of the Family Law Act 1975, the Father shall be restrained from coming within 100 m of the residential address of the maternal grandparents and Ms C.
6.That the Father shall undertake a hair follicle alcohol test and for the purposes of this order the following shall apply:
(a)The Father is required to maintain his head hair at a length of not less than four (4) centimetres; neither head hair nor body hair is to be cut, bleached or dyed between the date of this order and the time of collection of hair;
(b)The Father shall, within 7 days of these orders, make an appointment at an Australian Workplace Drug Testing Services clinic AWDTS by telephoning 1300 378 483 for the purposes of providing a hair sample for hair drug and alcohol testing purposes;
(c)The Father shall provide such hair samples as directed by AWDTS for the purposes of analysis of alcohol EtG;
(d)The Father is restrained from taking any steps to interfere with the provision of any hair samples, or interfering with the test results; and
(e)The Father shall do all things necessary and sign all necessary authority and documents to authorise TWDA to provide the test results to his legal representatives with copies of all results forthwith upon those results becoming available and thereafter upon receipt of such results his legal representatives shall provide a copy to the ICL and the Mother’s solicitors forthwith.
7.Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship shall attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by September 2022.
8.The Family Report shall deal with the following matters:
(a)Any views expressed by the child(ren) the subject of parenting orders sought in this case, provided that the child/ren shall not be required to express a view in relation to any matter.
(b)The nature of the relationships of the child(ren) with each of the child(ren)’s parents and with significant other persons;
(c)The willingness and ability of each of the child(ren)’s parents to facilitate and encourage a close and continuing relationship between the child(ren) and the other parent.
(d)The likely effect of any changes in the child(ren)’s circumstances, including the likely effect on the child(ren) of any separation from:
(i)either of the parents: or
(ii)any other child, or significant person, with whom the child(ren) has/have been living.
(e)The practical difficulty and expense of the child(ren) spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child(ren)’s right to maintain personal relations and direct contact with both parents on a regular basis.
(f)The capacity of each parent, or another person, to provide for the needs of the child(ren), including emotional and intellectual needs.
(g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) other child(ren) and of either of the child(ren)’s parents and any other characteristics of the child(ren) that the reporter thinks are relevant.
(h)Each parent’s attitude to the child(ren) and to the responsibilities of parenthood.
(i)Any family violence involving the child(ren) or a member of the child(ren)’s family.
9.The parties shall attend all appointments with the Family Consultant and shall ensure the subject child/ren attend all appointments with the Family Consultant, as requested by the Family Consultant.
10.The Family Consultant may inspect the Court file, and any documents produced on subpoena access to which has been granted to a party or the Independent Children’s Lawyer.
11.The matter is to be listed on a date to be advised following release of the Family Report. The Court expects the Family Report to be released in about September this year.
12.Direct the Father through his solicitor to respond to the Mother’s solicitor’s letter dated 10 January 2022 within 7 days.
I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 15 February 2022
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