BROOM & FALCON

FAMILY COURT OF AUSTRALIA

BROOM & FALCON

[2011] FamCA 67

FAMILY LAW – CHIILDREN – Division 12A – final determinations of fact and matters and lengthy adjournment of proceedings part-heard pursuant to principles for conducting child-related proceedings

Family Law Act 1975 (Cth)
Starr & Duggan [2009] FamCAFC 115 MRR v GR [2010] HCA 4

APPLICANT:

Mr Broom

RESPONDENT:

Ms Falcon

INDEPENDENT CHILDREN’S LAWYER:

Mrs Cope

FILE NUMBER:

CSC

480

2009

DATE DELIVERED:

16 February 2011

PLACE DELIVERED:

Cairns

PLACE HEARD:

Cairns and Hobart

JUDGMENT OF:

Benjamin J

HEARING DATE:

16, 17 & 20 September, 8 December 2010 and 25 January 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Wilson in 2010 and self represented in 2011

SOLICITOR FOR THE APPLICANT:

O'Reilly Stevens Bovey Lawyers in 2010 and self represented in 2011

COUNSEL FOR THE RESPONDENT:

Mr Jacobs

SOLICITOR FOR THE RESPONDENT:

Murray Lyons Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Fellows

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Cope Family Law

Orders

All previous parenting orders in respect of the children;
·A born … October 1995,
·B born … November 1997,
·C born … January 2002,
·D born … November 2005; and
·E born … April 2008;
are discharged.
The children shall live with Ms Falcon (“the mother”). The mother is permitted to relocate her primary residence to the T area of South East Queensland and the mother shall have sole parental responsibility to arrange for the children to be enrolled at a state school (close to the home in which the mother is living in T) commencing first term 2011.
Mr Broom (“the father”) and the mother have equal shared parental responsibility for the children to subject these orders.
The parties are to consult with each other about decisions to be made in the exercise of their shared parental responsibility and shall make a genuine effort to come to a joint decision. The parties are not however required to consult with each other about the daily care of the children. The types of decision about which parents are required to inform and consult each other about include but are not limited to changing the names of the children, relocating the residence of the children so that existing parenting arrangements become impracticable, changing the school of the children and any significant medical intervention for the children.
In relation to the exchange of information the mother and father shall:-
(a)keep each other informed at all times of their residential address and contact telephone number and notify the other parent within twenty four hours of any change;
(b)keep the other parent informed of the names and addresses of any treating medical or other allied health practitioners who treat the children and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the children; and
(c)inform the other parent, as soon as is reasonably practicable, of any medical condition, significant health issue or significant illness suffered by a child or the children and authorise the treating medical practitioner to release the child or childrens’ medical information to the other parent.
The mother shall authorise the school and/or day care centres attended by the children to give the father information about the childrens’ education and progress and other related activities and supply the father, at his expense, with copies of reports, photographs, certificates and awards obtained by the children.
During the time the children are with either parent that parent shall:-
(a)respect the privacy of the other parent and not question the children about the personal life of the other parent;
(b)speak to the other parent respectfully;
(c)not denigrate or insult the other parent or other family members in the presence or hearing of the children; and
(d)use their best endeavours to prevent any other person denigrating or insulting the other parent or other family members in the presence or hearing of the children.
The children shall spend time with the father as agreed between the parties and failing agreement as follows:-
(a)the father will spend time with the children at the Sunshine Coast or Cairns for one consecutive week each school term;
(b)the father will spend time with the children at the Sunshine Coast or Cairns for three consecutive weeks each Christmas holiday period although Christmas Days shall be each alternate year;
(c)the father will provide the mother with a minimum of fourteen days written notice by mail or electronic means of his intention to spend time with the children in accordance with this order and the mother will facilitate the children spending time with the father;
(d)for the purpose of the father spending time with the children in accordance with these orders, the father shall be responsible for travel costs for himself and for the children;
(e)the father will take as many of the children who wish to spend time with him and will not veto any or other of the children from spending time with him;
(f)collection and delivery of the children may be by the mother and/or her sister and/or her brother-in-law;
(g)the attendance of A and B is voluntary.
The parties shall communicate with each other via post, MSM, email, text message, Skype or other electronic means unless in the case of an emergency at which time the parties may communicate via telephone.
The father be at liberty to telephone the children each Monday, Thursday and Sunday evenings between 6.00pm and 7.00pm on a land-line number to be provided by the mother and the mother will facilitate and encourage the children to speak to the father on those occasions.
The parties shall continue to attend on a psychologist or other health care professional as is recommenced by their general practitioner for the purpose of individual counselling.
Pursuant to s65L, it is requested that a family consultant assist the parties in the following:-
(a)that the children shall attend a psychologist or other health care professional as is recommended by their general practitioner, the Independent Children’s Lawyer or Mr P for the purpose of individual counselling;
(b)the parties shall ensure that A, B and C attend on a psychologist or other health care professional as is recommended by their general practitioner for the purpose of individual counselling and initially as recommended by either Mr P or the Independent Children’s Lawyer.
Leave be given to the parties and the Independent Children’s Lawyer to provide to any counsellors or health care professionals assisting the parties in relaton to the children:-
(a)a copy of these orders and any final order the court issues;
(b)a copy of the reasons upon which these orders are based;
(c)a copy of the reports of Mr P;
(d)a copy of the reports of Dr K.
In the event there is dispute about the children or interpretation or implementation or enforcement of these orders, unless the parties have met one of the exceptions set out in s60I(9) of the Family Law Act and before making any further application to the Court, the parents shall:-
(a)either attend counselling or mediation or an organisiation that is recognised under the Family Law Act (as amended) or by the Commonwealth Attorney-General; or
(b)participate in family dispute resolution with a Family Relationships Centre or a person authorised under 10G of the Family Law Act (as amended).
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and the details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
This matter be removed from the list of cases requiring determination.
All subpoenaed documents are to be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
IT IS NOTED
That the parties agree that the children’s school fees, day care fees, extra curricular activity fees and sporting fees shall be equally shared between the parties.
That the mother continues to offer to provide assistance with accommodation to the father in or about the T area subject to the state of those premises arising as a result of the recent floods in Queensland.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC 480 of 2009

MR BROOM

Applicant

And

MS FALCON

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

Ms Falcon (“the mother”) and Mr Broom (“the father”) have five children. At the commencement of the hearing, A (aged fourteen almost fifteen), B (aged twelve almost thirteen), C (aged eight), D (aged four) and E (aged two). The parents separated in March 2009 and the relationship between the parents has deteriorated markedly since that time. This continued after the conclusion of evidence and an application to re-open was made on 8 December 2010. As a consequence, the hearing and evidence continued and concluded on 25 January 2011.
The father wants equal shared parental responsibility and wants the children to live with him for half of the time. He wants the family to remain living in the Cairns area. On 25 January 2011 the father said that he both opposed the relocation and later that he did not want to prevent the relocation. He tendered in evidence the various orders he sought on 25 January 2011.[1] The father had agreed to the children’s relocation in November 2010 but later withdrew that consent.
[1] Exhibit F4.
The mother wants the children to reside with her and asks the Court to make orders enabling the children to relocate with her to T in South East Queensland.
An Independent Children’s Lawyer was appointed to represent the interests of the children. The Court was initially assisted by three family reports from a qualified psychologist, Mr P and psychiatric evidence in respect of both parents by Dr K. A later report from Mr P was read into evidence on 25 January 2011 together with further evidence from the family consultant.

THE ISSUES

The issues are:-
a.whether there ought to be equal shared parental responsibility (which is sought by both parents) in circumstances where the parties have not effectively communicated since shortly after separation.
b.the nature of the relationship between the children and each of their parents. In particular having regard to the reluctance of the three eldest children spending time or communicating with the father since separation.
c.whether the parties, in particular the mother, encourages a relationship between the children and their father.
d.whether either of the parents are controlling and manipulative to the extent that they undermine the relationship between the children and the other parent.
e.whether the mother should be permitted to relocate with the children to South East Queensland.
f.what time the children should spend with their father and how they should communicate with the father.
In these reasons, any statement of fact is to be regarded as a finding of fact.

BACKGROUND

At the commencement of the hearing the father was aged 44 years and was in good health. The mother was aged 42 years and was in good health.
The parties commenced cohabitation in about 1986 or 1987 and married in Brisbane in July 1989. The parties moved their residence to Cairns in the same year.
A was born in 1995, B in 1997, C in 2002, D in 2005 and E in 2008.
The father accepts that in most respects the mother is a good and loving parent, except in terms of encouraging the children to have a relationship with him.
The parties separated in March 2009 and shortly after that time the father commenced counselling with Ms M. In April 2009 a domestic violence order was made against the father.
These proceedings were commenced in August 2009 and various interim orders have been made since that time.
The time the children spent with their father in 2009 was problematic and as a consequence he commenced seeing the children at the Children’s Contact Centre in August 2009.
This matter was listed for hearing in the Federal Magistrates Court. The proceedings were initially conducted in the Federal Magistrates Court but were transferred to the Family Court and the hearing commenced on 16 September 2010 and ran for three days. This was followed by further hearing days in December 2010 and January 2011.
Since separation the children have lived with the mother and there have been significant problems relating to the children spending time with the father. The mother initially would not consent to unsupervised time between the children and the father but is now seeking orders for the children to spend unsupervised time with the father. Whether the father moves to the area of South East Queensland is not clear, however if he does, the parenting time between he and the children would need to be varied and probably increased. I make this comment to circumvent any Rice & Asplund type argument if there is conflict in terms of time the father spends with the children if he moves closer to their home.
The Independent Children’s Lawyer set out the following in his case outline:-[2]
[2] Filed 15 September 2010 at pages 2, 3, 4 and 5.
The father commenced these proceedings on 4 August 2009 and the mother filed her response material on 29 September 2009. Both parties have filed amended documents, the father’s amended application being filed on 8 September 2010 and the mother’s amended response being filed on 30 August 2010. Whilst both parents seek equal shared parental responsibility and that the children live with the mother, the mother seeks to relocate with the children to South East Queensland and for the father to spend time with the children limited by that factor... The father sets out the orders he seeks should the mother be allowed to relocate with the children and if she should not.
Allegations were made by the mother in her initiating material in relation to inappropriate behaviour by the father. A family report was obtained from Mr [P] which was filed in these proceedings on 14 December 2009. Mr [P’s] view was that each parent underestimates the impact of stresses on the relationship. Mr [P] saw the father’s excessive masturbatory behaviour as a “maladaptive coping strategy” and not indicative of sexual orientation which posed any risk to the children. Mr [P] expressed the view that relocation by the mother would offer little more than short term relief and was more likely to place the parties at risk of long term challenges. Mr [P] recommended continuing contact between the father and the children with counselling to take place for all of the family. In particular Mr [P] suggested that the parents address any issues that they had through counselling. The parents have never undertaken any joint counselling.
Dr [K] prepared reports in relation to both parents. Dr [K] found that there were no significant psychiatric issue for either party and whilst he noted that the father may have been masturbating “somewhat compulsively” his view was that it appeared that the father’s issues had significantly resolved, that he was no longer depressed, he had friends and was resuming activities and working. Dr [K] expressed the view that he would not see the compulsive masturbation as standing in the way of the father having appropriate contact with the children. Dr [K] also saw that there were no significant psychiatric issues with the mother which needed to be taken into account.
Mr [P] provided a supplementary report filed in these proceedings on 23 March 2010 simply clarifying his earlier report in that he stated clearly that neither parent appeared to present any significant and/or direct risk to the children other than their limited capacity to be fully emotionally available. He recommended the continuation of supervised and reportable contact to take place hand in hand with professional assistance for the parents. This recommendation was based on the need to minimise and contain any further deterioration in the family relationships rather than to provide any risk management.
At the time the parties attended a Legal Aid Conference on 25 May 2010 the mother was still not attending counselling and nor were the children despite the recommendations of Mr [P]. The extent of the father’s attendance in 2010 will need to be clarified however he had attended counselling from March 2009. Counselling for the mother commenced in July 2010 and counselling for the children, to the knowledge of the independent children’s lawyer, has not commenced although it was indicated by the mother she intended to make appointments for the children with the School Guidance Officer.
The father has had very limited time with the children post separation. A review of the material reflects that the father has had some time at the Contact Centre (the number of visits in total is 16), has had two visits supervised by a paid supervisor and has had (as at Father’s Day) unsupervised time with the children on 30 May 2010, 4 July 2010, 11 July 2010, 8 August 2010, 15 August 2010 and 5 September 2010. This is a total of six occasions in about four months. On the last three occasions the child [C] has not attended for contact with his father.
Mr [P] released an updated report on 7 September 2010 which was filed in these proceedings on 14 September 2010. Mr [P] noted that both parents continued to underestimate the impact of the period of stress and remained at significant risk of entrenchment in reactive functioning and progressive risk of clinic depression and/or anxiety disorders. Mr [P] saw that each parents’ capacity for objectivity and the ability to separate their own needs from those of their children was depleted.
Mr [P] does not see a relocation of the mother as a “stand alone solution” (Paragraph 137), particularly as regards to the “long term impacts on the children’s functioning and relationship opportunities with their father”. Mr [P] notes that there is unlikely to be any improvement in the absence of substantial changes in the parents’ attitudes and levels of co-operation. Mr [P] noted that he had recommended professional support for the parents. Mr [P] stated that whilst the father reported attending upon a psychologist the mother did not convincingly report. Mr [P] doesn’t view either parent as having made a “substantial investment” into therapy to try and assist to resolve the matter. (Paragraph 142).
Mr [P] sees that lack of commitment to counselling as a clear indicator of the parents’ attitudes and thinking difficulties. Mr [P’s] view was that neither parent made any substantial commitment to improving the children’s relationship with the other parent. Mr [P] expressed concerns about the problems being experienced by the child [A] who has become highly aligned with her mother and is highly critical and rejecting of her father. Mr [P] again stated that [A] was sorely in need of support and intervention. (Paragraph 147). Mr [P’s] view was that [A] should not attend at future contact between the father and the other children. Mr [P] felt that their attendance at any future contact would “potentially erode any potential benefits to the younger children”. (Paragraphs 148).
I [sic] relation to [B] Mr [P] felt that until [B] had some therapy she also should not attend at contact with the younger children (paragraph 150).
Mr [P] formed the view that the relationship between the father and [C] could be salvaged - possibly with the assistance of a therapist.
In conclusion Mr [P] felt that before any final decision should be made there should be an opportunity to [B] and [C] to improve their relationship with their father. (Paragraph 153).

These matters were not put in issue between the parties and are agreed facts.
Following reasons being reserved in September 2010, there were a series of events which are dealt with in the affidavit of the Independent Children’s Lawyer, Mrs Cope, filed 7 December 2010. Her evidence set out in that affidavit was not challenged.
On the first visit between the children and the father in September 2010 the child, A, asserted that the father left the children for about twenty minutes without explanation and that subsequently the father said he did not want A to attend at that time. Issues arose over the next visits including conflict between the father and A and there was some evidence of the father discussing court issues with the children.
I find that the father discussed the litigation with the children as the father set out in an email to the family consultant and others dated 9 January 2011 the following:-
I have been very careful not to seek my childrens’ opinions, and I clearly know that it is not advised in the orders. However, there comes a time when it is time to move forward. I am unsure how the conversation started. It was just me and [A]. I asked her did she want to stay in Cairns. “No”. I asked her did she want to move to Brisbane. “Yes”. She told me Patricia Cope told her I started all this. I told her that I never opposed relocation, and that Patricia Cope was aware of this, just simply that to this point [the mother] has not put forward a proposal that accommodated a clear and concise detail of how I would fit into their lives. She clearly told me she did not care if she did not see me again. I told her that I had tried a number of times to engage [the mother] in conversation about this, and that [the mother] would not or was not prepared to discuss anything. She told me she was aware of the mediation meeting. I also asked [C] what he thought. I asked him if he knew mum wanted to move to Brisbane. “Yes”. I asked him if he wanted to go. “Yes”. I asked him if he knew that he would not see me as much. “Yes”. I asked him how he felt about this “it makes me sad”. I tried to talk to [D]. He was not interested and wanted to play.
In early November 2010 the father sent an email to the mother confirming that he now consented to her relocation to South East Queensland. There was also an issue about the mother spending Christmas with her family in South East Queensland at that time.
In communication between Ms V (“the family consultant”) and the father, the father confirmed his decision to allow the mother to relocate and had no complaints about the mother’s co-operation regarding contact.
However, problems regarding contact continued through November 2010 and a report was prepared by the family consultant.
The report prepared by the family consultant was read into evidence.[3] The evidence contained in that report was not challenged. In relation to the father the family consultant observed that he acknowledged he had written ‘goodbye letters’ to the mother and to each of the children and had said goodbye to the children at changeover and that he had given permission to the mother to relocate but then changed his mind.
[3] Child Inclusive Conference 65L Supervision order dated 24 November 2010.
The father was unable and unwilling to acknowledge that this behaviour could be emotionally harmful for the children. The father denied that he drove dangerously with the children in the car and said that he often became upset particularly when the younger children refused to go with him. For the reasons set out elsewhere, I do not believe him.
The family consultant interviewed the mother and made comments in respect of what she had observed and heard particularly with regard to the child A being informed about the Court case and adult matters, alleged reckless driving and conflict between the parents at changeover. The family consultant interviewed B.
The family consultant concluded that the father caused emotional harm to the children by writing the goodbye letters and by demonstrating a profound lack of insight into their negative impact on the children and his behaviour towards them. The family consultant recommend that A not attend the visits with the father and was critical of a “family meeting” (which the mother initially denied but later conceded).
The conflict appears to have continued unabated since that time.
By an application in a case heard 8 December 2010 the Independent Children’s Lawyer was given leave to adduce fresh evidence and permission to obtain an updated report from the expert Mr P.
Both the mother and father were given leave to file further material and the parties were given leave to attend the completion of the hearing by telephone.
On 17 September 2010 I made interim parenting orders.
When the matter came before me on 25 January 2011 counsel for the Independent Children’s Lawyer relied upon the affidavit of Mrs Cope filed 7 December 2010, the orders of 17 November 2010 and 8 December 2010, the report from the family consultant (referred to earlier) and a report from the family consultant dated 11 January 2011 in respect of an interview undertaken on 26 October 2010.
The father’s legal representation had ended and he was acting for himself. He tendered the orders which he sought in these proceedings (referred to earlier).
Mr Jacobs continued to act as Counsel for the mother and he tendered an email from the father to the family consultant dated 9 January 2011[4] and a letter from a counsellor, Ms R, apparently dated 21 December 2010.
[4] Exhibit M1.
The father objected to the report of Ms R being admitted into evidence. I gave reasons when allowing that report into evidence. However, as Ms R was not willing to be cross-examined in respect of her report and in the light of the submission made on behalf of the mother that the father should spend unsupervised time with the children, I give the report little weight (this accords with the submission of the Independent Children’s Lawyer). The report raised concerns about the father’s capacity to parent the children although this was not reflected (to that level) by the submissions made on behalf of the mother and was not accepted by the Independent Children’s Lawyer.
In the material the father indicated that he was likely to move employment to the Brisbane area if relocation was allowed. He was ambivalent in terms of relocation. At times he said he did not oppose relocation and at other times he said he did oppose it. I treated his case as if he were opposing the relocation of the children.
At the conclusion of the evidence, and bearing in mind the nature of the evidence discussed in these reasons, I determined that it would be appropriate for the children to relocate and I made a final order in that regard at that time. This was to enable the children to commence at their new schools at the commencement of term 1.
I also made interim orders with respect of the time the children should spend with the father, although now that these reasons are finalised I have converted those interim orders into similar (but not identical) spend time with and communicate orders.

THE RELEVANT LEGAL PRINCIPLES TO BE APPLIED

In exercising its jurisdiction in relation to children, the Family Court is bound by the provisions of the Family Law Act 1975 (Cth) (“the Act”). This is a proceeding to which the provisions of Division 12A of Part VII of the Act applies.
The object of the Act relating to children is to ensure that the best interests of the children are met. Section 60B(1) of the Act provides that this can be done by:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles set out in s 60B(2) that underlie those objects are that, except when it would be contrary to a child’s best interests:-
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Each parent of a child has complete but several parental responsibility for their child pursuant to s 61C of the Act. This is subject to any court order and must be considered in the light of the so-called presumption arising out of the operation of s 61DA of the Act. This section provides that a Court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility[5] for the child, subject to section 61DA.
[5] Parental responsibility is defined by s61B to mean “all the duties, powers, and responsibilities and authority which, by law, parents have in relation to children.”
If the presumption is not rebutted and it is in the child’s best interest a court must make an order for equal shared parental responsibility. Logically, if the presumption is rebutted under 61DA(2) but a Court determines that it is in a child’s best interest for an order for an order for equal shared parental responsibility, it should be made.
The effect of an order which provides for shared parental responsibility, whether equal or not, is set out in s 65DAC.
The question of the allocation of parental responsibility generally needs to be determined before the question of with whom the child lives and/or spends time with and the degree of communication a child is to have with another person is determined (see s 64B(2)). This is because where the presumption of equal shared parental responsibility applies, the Court must consider whether it is in the best interests of the child to order equal, or substantial and significant time pursuant to s 65DAA. In circumstances where s 65DAA does not apply because the presumption does not apply, there still should be consideration of whether in the factual circumstances an order for equal or substantial and significant time is appropriate.
Should parties be unable to agree about the living arrangements of a child, a court must, in determining whether it should make orders or in determining what orders should be made, have regard to the best interests of the child as the paramount consideration. Section 60CA of the Act provides:-
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.
How a court determines what is in the best interests of a child is set out under s 60CC of the Act. From 1 July 2006, those best interests are determined under a two-tiered approach pursuant to s 60CC, that lists “primary considerations” and “additional considerations”. A court must consider the matters set out in s 60CC unless considering a consent order, in which case the Court may, but is not required to, have regard to the matters set out in ss 60CC(2) and (3) of the Act. Part of s 60CC reads as follows:-
Primary considerations
(2) The primary considerations are:-
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:-
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(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;
(f)the capacity of:
(i)each of the child’s parents; and
(ii)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;
(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;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)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);
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(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;
(m)any other fact or circumstance that the court thinks is relevant.
A court must consider the s 60CC(2) considerations as “primary considerations”. This does not mean that they inevitably outweigh the “additional considerations”, but some weight must be attached to the term “primary”. A Court should consider each of the additional considerations separately, then have regard to all of the matters set out in s 60CC (including subsections 4 and 4A) and in the light of those factors, weigh up questions of parental responsibility, face to face time and communication.
In that evaluation, if there is to be an order for equal shared parental responsibility (whether arising pursuant to the presumption or otherwise), the Court must consider:-
Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents.[6]
[6] MRR v GR [2010] HCA 4.
The Court should then determine time, communication and other parenting issues having regard to the nature and quality of the parent/child relationship and the need to make orders in the best interests of the child.
The Full Court in Starr & Duggan [2009] FamCAFC 115 set out the following approach to applications involving relocation of a child:-

Approach to applications involving relocation of a child

33.The core principle consistently referred to in all appellate decisions involving challenges to parenting orders (including where an order for relocation is sought) is the “paramountcy principle” found in s 60CA. That is, a court must regard the best interests of the child as the paramount, but not sole, consideration.
34.The interplay between the paramountcy principle, the objects of the Act and the principles underpinning those objects is described in Goode & Goode (2006) FLC 93-286.
35.In McCall & Clark the Full Court referred (at paragraphs 58 to 60) to explanations given in other relocation cases of the order in which relevant provisions in Part VII may be applied when determining a parenting application. Their Honours (Bryant CJ, Faulks DCJ and Boland J) went on to explain (at paragraphs 61 and 62) that it will often not be an academic exercise to consider whether a child should spend equal time with both parents, as such an order is likely to be sought by a non-relocating parent.
36.The Full Court also pointed out that in seeking to address all of the relevant provisions of the legislation it is inevitable there will be “dual consideration” of some matters. This is so because consideration of the s 60CC factors does not take place in a vacuum and those factors will need to be assessed in the context of the competing proposals. Some of the matters to be considered under s 60CC(3), for example the likely effect of any change in the child’s circumstances and the practical difficulty and expense of a child spending time with a parent, must also be considered when applying s 65DAA, especially s 65DAA(5).
37.Thus the appellate decisions determined after the commencement of the Family Law Amendment (Shared Parental Responsibility)Act 2006 (Cth) have set out a framework which a judicial officer may follow when determining applications for parenting orders, including an order that a child be permitted to relocate.
38.However, it is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:
(iii)first make findings concerning the relevant s 60CC factors;
(iv)then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
(v)then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.

39. Section 65DAA will provide a useful framework to consider the advantages and disadvantages, not only of the equal time and substantial and significant time scenarios, but also other outcomes which may be in the child’s best interests, including the proposal to relocate.

THE WITNESSES

Dr K

Dr K is a psychiatrist who prepared a number of reports. One report prepared on the 2 December 2009 and the other of 9 March 2010. He also prepared a supplementary report in respect of the father on 9 March 2010.
Dr K’s qualifications were not challenged and his evidence was accepted by the father.
In his December 2009 report Dr K said of the father:-[7]
… I do not see him as having significant continuing psychiatric problems at this stage.
I certainly did get the impression of some obsessional traits in his presentation/personality. But I certainly would not be prepared to go so far as to say he has an Obsessive Compulsive Disorder.
[7] At page 7.
Dr K went on to say of the father:-[8]
On the basis of how he presents – and not having seen the Family Court Report, I would certainly see no reason why his contact with the children should be supervised and see him as being perfectly capable of being a reasonable parent.
[8] Ibid at page 9.
In relation to the mother, Dr K observed:-[9]
To see her in interview and listen to the general history that she provides, note the absence of psychiatric symptoms, note she generally has good relationships with people, is animated, lacks any question of substance abuse, absence of significant psychiatric symptoms, I could not possibly see her as having any significant psychiatric disturbance.
[9] At page 6 of Dr K’s’s report dated 9 March 2010.
He goes on to say:-[10]
But basically what I can say here is that there are no significant psychiatric issues, personality disfunction or substance abuse in her that should stand in her way as being an appropriate parent. That is there are no psychiatric issues that I believe the Court needs to take into account in terms of dealing with this matter.
[10] Ibid at page 7.
I generally accept his evidence.

Mr P

Mr P is a Clinical and Forensic Psychologist. He prepared three Family Reports which were contained in affidavits filed 14 December 2009 (“the first report), 23 March 2010 (“the second report”), 13 September 2010 (“the third report”) and 10 January 2011 (“the final report”).
There was no challenge to Mr P’s qualifications. In his third report, he made the following summary and recommendations:-[11]
In the writer’s clinical opinion, both parents continue to underestimate the impacts of protracted series of stress in their lives; however remain a significant risk of entrenchment in reactive functioning, including progressive risks of Clinical Depression and/or Anxiety Disorders.
Further, in the writer’s opinion, each of the parent’s capacities for objectivity in respect of separating their own, from their children’s’ needs, remains significantly depleted; which situation has not been relieved by the emergence of any positive changes to their motivations and/or capacity to co-parenting.
[11] At paragraphs 134 and 135.
Mr P went on and made numerous other comments and recommendations in that report. Events overtook that report.
Mr P gave evidence at the commencement of the hearing and was cross-examined. In cross-examination, Mr P confirmed that the relationship between the father and the children had deteriorated between his second and third reports. He was critical of the parents’ capacities to co-operate, in particular that of the mother. My view is that the mother took these criticisms on board and endeavoured to address them between September 2010 and January 2011.
He says the mother was at that time not coping, whereas the father was holding “the line”. Mr P is particularly concerned about the child A’s deteriorating relationship with the father.
In his first report, Mr P suggested a protocol to be implemented to try and resolve these problems. This is set out in paragraphs 153, 154 and 155 of his first report. That protocol has not been implemented. In the circumstances of the move of the mother to South East Queensland it is unlikely to be put in place unless the father moves to that area. If he does move, such an approach envisaged in the protocol would be of value to these children.
He said it needed to be implemented before the Court could make final orders. His evidence was that without containment of the issues which he addressed the situation would deteriorate. He believes that there is a possibility that the children C and B (and the younger boys) are able to form a relationship with the father. However, it is A who needs the assistance.
Mr P was initially of the view, at that time, that if the mother was permitted to move to South East Queensland, the opportunity of the father repairing and developing a relationship with the children would be lost. The therapeutic process needs to be implemented.
It was also his view, at that time, that the Court ought to adopt an interim order approach rather than a final court order approach. That view changed by the time he gave evidence in January 2011.
Mr P was cross-examined in relation to equal shared parental responsibility and said he was surprised with the shift and was not convinced that the rhetoric would lead to reality. He is strongly of the view that there needs to be one mental health expert.
Mr P was shown the memo of the children’s views[12] and also a statement prepared by the mother from A[13].
[12] Exhibit ICL1.
[13] Exhibit ICL2.
Mr P and the family consultant are of the view, which I accept, that A needs some counselling intervention. At paragraph 154 of his first report, Mr P recommended that both parents currently (though differentially):-
·Experience practical, attitudinal and thinking difficulties in separating their own needs from those of their children.
·Continue to experience significantly unresolved personal and relationship issues that limit their emotional availability and nurturant capacities in respect of their children.
·Have developed counter-productive communications; hallmarked by an over-reliance on fear of the legal process; particularly strategic elements of such.
·Require psycho-educational assistance to effectively improve individual and co-parenting capacities.
He went on to say at paragraph 155 of that report that an effective protocol would be/involve:-
·Managed by one mental health practitioner. This practitioner would be an experienced clinical psychologist, with a specific history of working with families.
·Would be a member of a Clinical College of APS. Alternatively the practitioner could be a sessional psychiatrist, however, with experience in family therapy and family law clientele.
·The practitioner be given copies of selected reports/materials considered appropriate by the ICL to inform initial therapeutic phases.
·The mandate of the practitioner would be to assist the parents to effectively manage any Interim Court Orders.
·The practitioner have [sic] discretion to organise the order, sequencing and grouping of clients; including homework assignments and any parallel processes (for example selected courses) considered necessary to achieve the therapeutic mandate.
·Not limited to the parents; and therefore involve the children as and when considered appropriate.
·Both parents [sic] would share [sic] costs of all therapeutic sessions.
In his experience of similar matters, “and based on each parents presentation and subsequent psychometric testing individual therapeutic targets might also include (though not be limited to):-[14]
·Improved understanding and acknowledgement regarding degrees of personal responsibility for co-parenting difficulties and impasses.
·Improved understanding of childhood and adolescent development, with particular focus on parental impacts on a child’s personal, social and gender identity.
·Improved communication and negotiation skills in respect of their children’s needs (particularly those features identified by the previous dot point).
·Improved personal emotional processing skills; generally in respect of frustration and/or anger; however, with particular focus on self-monitoring and pro-social responses.
·Demonstrate individual ability to identify and problem-solve likely, future high-risk co parenting scenarios.
·Improved understanding of realistic and achievable flexibility with co-parenting plans; responding to their children’s practical and changing needs.
[14] Ibid at paragraph 156.
In his second report, Mr P was of the view that “each of the parents’ capacities for objectivity in respect of separating their own, from their children’s needs’ remains significantly depleted; which situation has not been relieved by the emergence of any positive changes to their motivations and or capacities to co-parent”.[15]
[15] At paragraph 135.
He was particularly concerned about A with regard to the “reported range of increased educational, developmental and social-relationship challenges”[16] which she had experienced. He was concerned that she appeared to have “become further aligned with her mother in this matter; and concurrently, highly critical and rejecting of her father”.[17] He was specifically concerned about the mother’s:-[18]
… apparent enabling of [A’s] access to Court materials and reports; and exposure to “FBI profiling” of her father, and as a result of admitted pathologising of the father (by the mother) in the first instance.
[16] Ibid at paragraph 145.
[17] Ibid.
[18] Ibid at paragraph 146.
He went on to say:- [19]
In the writer’s opinion, [A] presents as a child who is sorely in need of support and intervention by an experienced mental health practitioner to contain a range of functional challenges and developmental risks; at the very least to provide an independent forum for her to process her manifest, personal distress.
And said that: -
… involving [A] in any future, supervised contact appears not only unnecessary, but likely provides opportunities for this child to actively or covertly erode any benefits to the other children.
[19] Ibid at paragraph 147.
Mr P was, at some levels, protective of the father and accepted his explanations.
Subsequent to the material provided in the initial part of the hearing Mr P provided a final report in December 2010 which was contained in his affidavit filed 10 January 2011. In his up-to-date report he opined that:-
9.The writer has considered the liability of the court utilising its powers to stop/delay relocation attempts: however, it is of the opinion that such a stance would enable continuation of historical difficulties rather than provide a significant opportunity for stabilisation of the separated family system.
I take from this that Mr P’s views have changed, although his concerns that the relocation will not provide a panacea remain. Mr P went on to say:-
11.Specifically, and in this regard, the writer continues to hold general concerns regarding each of the children’s practical and emotional development, particularly if the mother does not actively involve herself with the ongoing and experienced professional support.
12.The writer, however raises specific concerns regarding [A’s] emotional well-being, and consequent need for professional assistance: to address a range of issues already outlined in the reports and cross-examination by the writer, as such the child has been the most impacted upon by the history of parental difficulties.
13.Further, in the writer’s experience of similar matters, it can be reasonably expected that in the absence of some new found levels of co-operation and sustainable good will between the parents, the childrens’ relationship with their father will deteriorate in the short term, and will be further prejudiced in respect of the long term significance in their lives.
14.While relocation will represent some level of time out for the parties, the writer considers that all children (however, more particularly [A]) will nevertheless challenge the mother’s parental capacities over the next few years.
The evidence of Mr P was not challenged and I accept all of his evidence including his current position.

Ms M

The father sought to rely on an affidavit of Ms M, his psychologist, which was filed in Court on 16 September 2010. There was no objection to that course and Ms M gave evidence by telephone and was cross-examined by counsel.
In many ways, Ms M was guarded in her views of the father. She described an improvement in his previously erratic thinking and speech. Ms M was of the view that the father was not delusional but said he was depressed and exhibited a high degree of anxiety.
Ms M said initially the father was focused (although not compulsively) on the mother. She says there has been a reduction in that intensity. Ms M said the father was dedicated to the process but it was a slow study and he had trouble accepting the end of the relationship.
I have had regard to the evidence of Ms M and in particular, I note her careful assessment of the father and the implicit underlying concerns she has in regard to his improvement.

The father

The father gave evidence in accordance with his affidavit of 8 September 2010. He also tendered into evidence, on the 25 January 2011, a document setting out the various orders he was seeking.
He was not a particularly impressive witness. He was at times argumentative and at times prevaricated. Having heard his evidence, I am satisfied that he minimises his controlling, abusive and angry behaviour.
He was cross-examined in relation to a series of letters that he sent to the mother at around the time of their separation. In giving evidence in relation to this the father often tried to paint himself in a better light.
At one stage the father was asked if he was verbally abusive to the mother and he denied it. However, when pressed about material in the letters he conceded that he had been verbally abusive to the mother.
Much of this material was prepared and sent by the father in the rarefied time of the relationship breakdown and in an effort by him to restore the relationship. I give it some but little weight.
The father was cross-examined in relation to the question of his masturbation. Whilst this conduct may have soured the relationship between the parties, I am not satisfied that it in any way impacted on his ability to have a father/child relationship with the children.
I am satisfied that during the time the parties cohabitated, the father spent significant time away from the family and was not involved in the care of the children to the extent that he asserts in his written and oral material.
I am satisfied the father was from time to time verbally abusive to the mother and also the children and is from time to time insensitive in the way he deals with the children. This is shown in terms of his approach to the children after separation including text messages and the events at various contact centres and events in particular at the children’s first visit to his home at his parents’ house earlier in 2010. His consent and then withdrawal of consent in terms of the mother’s relocation and the attendant interaction with the children is indicative of this insensitivity.
These are not factors which would prevent the children from seeing the father but they would impact significantly and adversely in terms of him having the children in his care for significant periods of time (other than school holidays and/or if he resided in close proximity, on a fortnightly basis during the school term). I am satisfied that the father’s stated wish to have the children for “equal time” is more about his needs than those of the children.
The father concedes remorse in relation to some of his behaviour. I am concerned that there is no substance in his expression of remorse and that he has continued to act inappropriately in terms of the children since separation for example by yelling at them, exchanging provocative emails, enmeshing them in the proceedings, using inappropriate language with his children and in particular his elder daughter. On one occasion the father took a recording device on a visit with the children and from time to time he would not accept directions from the staff at the Children’s Contact Service.
In July 2010 the father encouraged his daughter B to leave the home.
I am satisfied that the father had from time to time considered moving to South East Queensland. The father continues to live with his parents. Their home does not have the capacity to house all five children if they stay over the weekend. It could, with some difficulty, house three or four of the children.
A has clearly formed a view that she does not want a relationship with her father. I am not satisfied that this arises solely out of implicit or explicit views of the mother. Much of it arises out of the father’s behaviour and that of the child’s paternal grandmother. In terms of the father’s behaviour, it is the behaviour that he has exhibited over many years.
I do not intend to make orders forcing A and B to see the father although there is no reason why the father cannot send letters, cards, presents and occasional text messages.
The father was given the opportunity to respond to the serious allegations made in respect of his aggression with the children, aggression with the mother and frightening driving. He gave no evidence in response to that and I am satisfied that those events occurred. I am cautious of the extent of them having regard to my concerns about the mother. I accept that the father has little insight into his behaviour in terms of the children.

The mother

The mother gave evidence in accordance with her affidavits. She also relied upon her financial statement filed 30 August 2010. The mother also relied upon affidavits of Ms U filed 7 September 2010, the maternal grandmother filed 30 August 2010, TN filed 31 August 2010, LN filed 7 September 2010, SN filed 31 August 2010 and two affidavits of Ms H filed 31 August 2010 and 17 September 2010. The mother also sought to rely on an email from the father to the family consultant dated 9 January 2011, which was tendered into evidence, and a letter from a counsellor, Ms R, apparently dated 21 December 2010.
The mother was not an impressive witness. From time to time she prevaricated in answering questions or endeavoured to reconstruct events. She sometimes gave non-responsive answers and other times she would obfuscate.
The mother gave further evidence on 25 January 2011. She is clearly under enormous pressure in caring for these five children in limited circumstances and in the absence of significant help which she desperately needs. The father does not assist the mother in practical ways which could make her life easier. An example of this was the Volvo. The mother had one car in which to drive the children about. Her car had a mechanical defect which made it unsafe to drive. The father was informed as to the costs of repairs to the vehicle (about $600.00 plus labour) but was unable or unwilling to offer assistance. As a consequence the mother could not use the car and it was eventually returned to the father.
In listening to her evidence, I was conscious that the mother was under great pressure as a consequence of these proceedings and that she is the carer of five children. I also accept that the father was at least verbally abusive throughout the time of cohabitation. He is likely to have been economically abusive during the course of the marriage. I am satisfied on the evidence that this verbal abuse continued for some months after the parties separated until the mother secured the protection of a domestic violence order.
The mother asserted no subsequent verbal abuse after that time in her affidavits but said that it continued in her oral evidence. While there is some element of exaggeration I am satisfies it continued at fluctuating levels after separation.
The mother gave evidence in chief about counselling for the children. In many ways I am satisfied this evidence, whilst accurate, was raised by the mother solely to overcome the difficulties she perceived in her case with regard to the evidence of Mr P. She said that the father has never offered to pay for counselling. I do not believe her. She said she is not mixing her feelings with those of the children. I do not accept that and I am satisfied she has limited insights in that respect.

Finally, I have considered making an order to provide (or including a provision in the order) for the children to spend equal time or significant or substantial time with each of the parents.
Having regard to all of the findings of fact and in light of the s 60CC factors I determine that in the circumstances which the parties and the children find themselves in, it is not in the best interest of the children, particularly the eldest children, to have equal or significant or substantial time with the father.
In coming to this decision, I have had regard to the best interests of the children as the paramount, but not sole, consideration.
The father gave evidence that he was seeking equal time in the long term. That evidence was troubling having regard to the issues raised by Mr P in his report and the findings of fact I have made in these proceedings.
As I said earlier in these reasons, it seems that the equal time is more about the father’s needs than those of the children.
The children will need counselling, the mother will need counselling and the father will need counselling. This will need to be assisted by a health care professional as discussed earlier in these reasons.
The submission of counsel for the mother as to her circumstances was profound however for the reasons set out above I intend to permit the relocation.
I have considered the mother’s needs for freedom of movement and the economic hardship which she endures. The changes between September 2010 and January 2011 have been positive in terms of the mother who has endeavoured, although at times mechanically, to address the issues raised at trial. The father has continued to display anger and aggression. His approach with regard to the children has been less than satisfactory in terms of their needs.
I had contemplated leaving the children in Cairns for about twelve months and then reconsidering relocation. That is no longer an available option having regard to the evidence of the mother, Mr P and the family consultant. These difficulties have been exacerbated by the father’s confusion as to whether the children should relocate or not relocate.
Having regard to all of the factors and all of the considerations it is appropriate that the mother ought to be able to move to South Eastern Queensland. The children should remain in her primary care and should spend time with the father although this will be difficult bearing in mind the circumstances described earlier.

I certify that the preceding two hundred and thirty one (231) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 16 February 2011.

Associate:

Date: 16 February 2011

[2011] FamCA 67

16 February 2011

Key Legal Topics

Areas of Law

Family Law