Cafferty & Bowles
[2024] FedCFamC1F 314
•13 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Cafferty & Bowles [2024] FedCFamC1F 314
File number: MLC 3854 of 2023 Judgment of: STRUM J Date of judgment: 13 May 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – UNDEFENDED HEARING – Where the mother’s solicitors filed a Notice of Ceasing to Act – Where the mother has not filed any documents for the trial – Where the Court is advised that the Independent Children’s Lawyer and solicitors for the father have not had contact with the mother since her solicitors ceased acting for her – Where there is evidence of the mother’s poor mental health – Where the father filed an Application in a Proceeding seeking that the matter proceed on an undefended basis, and this Application was served upon the mother via text message – Where the mother did not appear at the trial – Trial proceeded undefended as against the mother.
FAMILY LAW – PARENTING – Consideration of amendments to Pt VII of the Family Law Act 1975 (Cth) by the Family Law Amendment Act 2023 (Cth) – Final orders made in 2022 that the child live with the father and spend time with the mother and for the parents to have equal shared parental responsibility – Where the father has filed an Initiating Application seeking to relocate to City C, Country B with the child – Where the father seeks to relocate for employment reasons – Where there is a significant change in circumstance – Where the mother’s mental health has deteriorated and she has spent minimal time with the child since the final orders – Where the Family Report Writer’s findings support the child’s relocation to Country B with the father – Where the Independent Children’s Lawyer supports the orders proposed by the father – Relocation allowed – Father to have Parental Responsibility for decision-making for the child in relation to all major long-term issues – Child’s surname, being that of the mother, to include that of the father too.
Legislation: Family Law Act 1975 (Cth) Pt VII, 60CC, 60CG, 61C, 61D, 61DAB, 64B, 65D, 65DAAA, 68LA, 69ZT
Family Law Amendment Act 2023 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Federal Circuit and Family Court of Australia, Central Practice Direction: Family Law Case Management, 1 May 2024
Cases cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Rice & Asplund (1979) FLC 90-725; [1978] FamCA 84
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Division: Division 1 First Instance Number of paragraphs: 111 Date of hearing: 8 May 2024 Place: Melbourne Counsel for the Applicant: Mr O’Grady Solicitor for the Applicant: Pentana Stanton Lawyers The Respondent: The Respondent did not appear Counsel for the Independent Children’s Lawyer: Mr Marchetti Solicitor for the Independent Children’s Lawyer: Clark Family Lawyers ORDERS
MLC 3854 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR CAFFERTY
Applicant
AND: MS BOWLES
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
STRUM J
DATE OF ORDER:
13 MAY 2024
THE COURT ORDERS THAT:
Name
1.The child presently known as X born 2018 hereafter be known as X (“the child”).
2.The Applicant Father be at liberty to apply to the Victorian Registry of Births, Deaths, and Marriages to register the change of the child’s name, in accordance with order 1, and do all such acts and things necessary and sign all such documents as may be required to give effect to that registration.
Parental Responsibility
3.The Applicant Father, to the exclusion of the Respondent Mother, have Parental Responsibility for decision-making for the child in relation to all major long-term issues provided that he keep the respondent mother promptly advised of such decisions by email or text-message to an email address and/or mobile telephone number provided by her to him for such purpose.
Live With
4.The child live with the Applicant Father.
Relocation
5.The Applicant Father be and hereby is permitted to relocate the child to Country B as and from 21 June 2024.
6.The Applicant Father give the Respondent Mother not less than 14 days notice of the date on which he intends to relocate the child to Country B.
Spend Time Pending Relocation
7.Until such time as the child relocates to Country B pursuant to order 5, the child spend time with the Respondent Mother supervised by Ms D or such other supervisor agreed between the Applicant Father and Respondent Mother (“the Contact Centre”) at such times as nominated by the Contact Centre or as otherwise agreed between the Applicant Father and Respondent Mother AND FOR SUCH PURPOSES the Respondent Mother:
(a)contact the Contact Centre within 48 hours of the making of these orders and request an appointment for assessment for suitability for supervised contact;
(b)attend for assessment at times and places appointed by the Contact Centre;
(c)attend any appointments made by the Contact Centre for supervised time;
(d)comply with all reasonable rules of the Contact Centre; and
(e)comply with all reasonable requests of the Contact Centre.
8.Provided the Applicant Father has not yet relocated the child to Country B THEN within 7 days of the Respondent Mother performing her obligations in order 7(a) and (b), the Applicant Father:
(a)contact the Contact Centre and request an appointment for assessment for suitability for supervised contact;
(b)attend for assessment at times and places appointed by the Contact Centre;
(c)attend any appointments made by the Contact Centre for supervised time;
(d)ensure the child attends any appointments made by the Contact Centre for supervised time;
(e)comply with all reasonable rules of the Contact Centre; and
(f)comply with all reasonable requests of the Contact Centre.
9.If the parties are accepted by the Contact Centre as suitable for the Contact Centre to facilitate supervised time, the Respondent Mother spend time with the child at such reasonable times and frequency nominated by the Contact Centre and such time occur at the Contact Centre.
10.The time under order 9 be supervised by staff nominated by the Manager of the Contact Centre and the Applicant Father pay the reasonable fees for the supervision on each occasion of supervision AND the Respondent Mother pay for her own intake assessment.
11.The Applicant Father deliver the child to and collect the child from the Contact Centre at the times specified by the Contact Centre and on each occasion promptly leave the building and the vicinity, unless requested to remain by a staff member of the Contact Centre.
Spend Time and Communication Following Relocation
Communication
12.The Respondent Mother be at liberty to send letters, cards, emails and gifts to the child to an address (including email address) nominated by the Applicant Father.
13.The Applicant Father nominate an address to which the Respondent Mother may send letters, cards and gifts to the child within 14 days of him relocating to Country B.
14.The Respondent Mother communicate with the child by Zoom or other agreed technology as follows:
(a)On 18 March each year (between 5.00 pm and 6.00 pm Country B time);
(b)On 21 August each year (between 5.00 pm and 6. 00 pm Country B time);
(c)On Mother’s Day (in Australia) each year (between 9.00 am and 10.00 am Country B time);
(d)On 25 December each year (between 9.00 am and 10.00 am Country B time);
(e)On 26 December each year (between 9.00 am and 10.00 am Country B time);
(f)Each Wednesday (between 5.00 pm and 6.00 pm Country B time); and
(g)At any other dates and times agreed by the Applicant Father and Respondent Mother in writing.
15.The Respondent Mother send to the Applicant Father the link to be used for communication in order 14 not less than 24 hours prior to the communication taking place.
16.The Applicant Father be at liberty to monitor communication that takes place pursuant to order 14.
17.The Applicant Father be at liberty to audio and visually record communication that takes place pursuant to order 14.
18.The Applicant Father be at liberty to terminate communication in order 14 on any occasion if he reasonably considers the time is unsafe for the child.
Spend Time
19.From 1 January 2025, not less than once per calendar year, the Applicant Father cause the child to return to the Commonwealth of Australia (“Australia”) for a single period of not less than 10 days.
20.The Applicant Father give the Respondent Mother not less than 90 days’ notice of the dates he intends to return the child to Australia pursuant to order 19.
21.Upon the child returning to Australia pursuant to order 19, the child spend time with the Respondent Mother supervised by Ms D or such other supervisor agreed between the Applicant Father and Respondent Mother (“the Contact Centre”) at such times as nominated by the Contact Centre or as otherwise agreed between the Applicant Father and Respondent Mother AND the Applicant Mother:
(a)contact the Contact Centre within 60 days of the making of these orders and request an appointment for assessment for suitability for supervised time;
(b)attend for assessment at times and places appointed by the Contact Centre;
(c)attend any appointments made by the Contact Centre for supervised time;
(d)comply with all reasonable rules of the Contact Centre; and
(e)comply with all reasonable requests of the Contact Centre.
22.If the parties are accepted by the Contact Centre as suitable for the Contact Centre to facilitate supervised time, the Respondent Mother spend time with the child during the child’s visit to Australia pursuant to order 19 at times nominated by the Contact Centre for not less than four (4) occasions in the 10 day period and such time is to occur at the Contact Centre.
23.Time under order 22 be supervised by staff nominated by the Manager of the Contact Centre and the Applicant Father and Respondent Mother pay the reasonable fees for the supervision on each occasion of supervision in equal shares.
24.The Applicant Father cause the child to be delivered to and collected from the Contact Centre at the times specified by the Contact Centre and on each occasion promptly leave the building and the vicinity, unless requested to remain by a staff member of the Contact Centre.
25.The Applicant Father be relieved of his obligation to cause the child to travel to Australia pursuant to order 19, unless the Respondent Mother provides the Applicant Father, no later than 60 days before the date nominated by the Applicant Father pursuant to order 20, written confirmation from the Contact Centre that the Respondent Mother and the child have been accepted by that service for supervised time.
Spend Time in Country B
26.The Respondent Mother spend time with the child in Country B as follows:
(a)Upon the Respondent Mother nominating a single ten (10) day period each calendar year during which she will travel to and be present in Country B; AND
(b)Giving not less than 90 days’ notice to the Applicant Father of the dates she will be in Country B,
on not less than four (4) occasions during each 10 day period, with each occasion being of not less than 2 hours’ duration supervised by such supervisor as the parties agree (and in default of agreement as determined by the Applicant Father) and at such venue as the parties agree (and in default of agreement as determined by the Applicant Father).
Provision of Information
27.The Applicant Father provide to the Respondent Mother the name of all schools at which the child is enrolled within 7 days being so enrolled.
28.The Applicant Father authorise all schools at which the child may attend to:
(a)Provide the Respondent Mother, at the expense of the Mother, copies of all reports, notices and applications for photographs in relation to the child; and
(b)Communicate with the Respondent Mother in writing with respect to the child’s progress.
29.Both parents be entitled to receive, at their own request and expense, any and all information in relation to the health and welfare of the child, including but not limited to details of any illness suffered by the child and treatment required AND this Order constitutes an authority to child’s medical practitioners and allied health professionals to provide that information.
30.The Applicant Father and Respondent Mother keep the other parent informed within two (2) days of any change to their residential or postal address, landline and mobile telephone numbers and email address.
31.The Applicant Father:
(a)keep the Respondent Mother informed of the names, addresses and email of any treating medical or other allied health practitioners who treat the child and authorise those practitioners to provide the Respondent Mother with information that they are lawfully able to provide about the child; and
(b)inform the Respondent Mother as soon as practicable of any emergency medical condition, significant health emergency issue or significant illness suffered by the child and authorise any treating practitioner to release the child’s medical information to the Respondent Mother.
Injunctions and Restraints
32.The Applicant Father and Respondent Mother be and hereby are restrained by injunction from:
(a)Abusing, belittling, rebuking or otherwise denigrating the other; and
(b)Discussing these proceedings with or in the presence of the child and from permitting any other person to do so.
Miscellaneous
33.Pursuant to s 11 of the Australian Passports Act 2005 (Cth), a passport or travel document (within the meaning of that Act) may issue for the child upon application by the Applicant Father, and without requiring the consent of the Respondent Mother to the child travelling outside of Australia or her signing passport or passport renewal applications and for the avoidance of doubt this order expressly permits and/or authorises a passport or travel document to issue for the child.
34.The Applicant Father be and hereby is authorised to obtain a Country B passport for the child without the consent of the Respondent Mother.
35.The Applicant Father and Respondent Mother be and hereby are permitted to disclose a copy of these orders to:
(a)Any public authority or Court in Country B (together with a copy of the Reasons for Judgment);
(b)Any medical practitioner upon whom the child attends; and
(c)Any school at which it is intended the child be enrolled at or attend.
36.Within 7 days of these orders being published, the Applicant Father serve these orders (together with a copy of the Reasons for Judgment) upon the Respondent Mother with such service to be effected by:
(a)Email to the address …@...; AND
(b)SMS text message to ….
37.The Independent Children’s Lawyer (“the ICL”) meet with and advise the child of these orders by no later than 17 May 2024.
38.Upon the Independent Children’s Lawyer complying with order 37, her appointment be discharged.
39.All extant applications be dismissed and the proceedings be removed from the docket of the Honourable Justice Strum.
AND THE COURT NOTES THAT:
A.These orders are made with the consent of the Applicant Father and the Independent Children’s Lawyer.
B.The Respondent Mother did not attend at trial. She was called inside and outside of Court. She was telephoned by the Court.
C.Counsel for the Independent Children’s Lawyer informed the Court the Independent Children’s Lawyer called the Respondent Mother that day and the Independent Children’s Lawyer left her a voicemail message advising of the Court hearing and the requirement for her to be in attendance.
D.In the circumstances on the morning of the first day on which the trial was listed, namely, 8 May 2024, an order was made that the matter proceed undefended as against the Respondent Mother.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cafferty & Bowles has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
STRUM J:
INTRODUCTION
These are proceedings for parenting orders in relation to the child of the parties’ relationship, born 2018. The child was less than a year old when the parties separated finally, in May 2019.
These are my reasons for judgment, in which final orders are sought by consent, as between the applicant father and the Independent Children’s Lawyer, undefended by the respondent mother. I must, nevertheless, be satisfied that the orders sought by the father and the Independent Children’s Lawyer are in the child’s best interests, including for the father to have parental responsibility for decision making for the child in relation to all major long-terms issues (to the exclusion of the mother); for the child to (continue to) live with the father and to relocate with him to Country B; for the child to spend supervised time with the mother; and for the father’s surname to be added to that of the child (being that of the mother). For the reasons that follow, I am so satisfied.
BACKGROUND
In or about early 2020, the child was placed in the father’s care by the Department of Families, Fairness and Housing. Subsequently, after the institution of proceedings in the then Federal Circuit Court (now known as Division 2 of the Federal Circuit and Family Court of Australia) in April 2020, and until October 2021, interim orders were made on a number of occasions which provided for the child to live with the father and spend time with the mother, including under supervision.
On 9 November 2022, final orders were made by consent (“2022 Orders”) which, in summary, provided for the parties to have equal shared parental responsibility for the child and for the child to live with the applicant father and spend time with the respondent mother. Such time included: each alternate weekend, from Friday evening until Sunday evening; each alternate Wednesday afternoon/evening; during kindergarten and school holidays; and on special occasions. The mother’s time was provided to be:
… conditional upon her receiving ongoing therapy with psychologist [Mr E] or other suitable psychologist for a minimum period of twelve (12) months or as otherwise recommended by her treating psychologist, with the Mother to provide documentary evidence of her attendance (receipt or similar) to the Father’s email […@...] within 14 days of the Father’s request to the Mother.
It is clear, inter alia, from the report of the single expert consultant psychiatrist, Dr F, dated 27 November 2023, annexed to an affidavit affirmed by him and filed by the Independent Children’s Lawyer on 4 March 2024, that the mother has a long history of poor mental health, both preceding and following the making of the 2022 Orders. She has made a number of suicide attempts, including one shortly prior to separation and two within a period of some 18 months thereafter.
The Independent Children’s Lawyer tendered an optimistic letter from the mother’s treating psychologist, Mr E, dated October 2022, some 10 days prior to the making of the 2022 Orders, regarding her apparent mental health at that time which, the father deposes, contributed to his consent thereto. However, it soon became apparent that the optimism of Mr E and the father in late October–early November 2022 was misplaced.
In late 2022, within a few weeks of the making of the 2022 Orders, the mother was voluntarily admitted to a mental health facility and was only discharged therefrom some weeks later. However, soon thereafter, she again required psychiatric care; she attended there again a short time later, presenting with “distress and increased anxiety in the context of crisis at home, feeling suicidal earlier [that day] as she was not able to zoom call or have access to her son” and was voluntarily re-admitted to care in early 2023.
It is common ground between the father and the Independent Children’s Lawyer that the 2022 Orders “never really got off the ground” (or words to similar effect, by counsel for the father) and that the mother has only spent very limited time with the child pursuant to thereto, including only one period overnight, between 19–20 November 2022. Indeed, counsel for the Independent Children’s Lawyer tendered four paragraphs of the mother’s interlocutory affidavit filed on 10 May 2023 in which she deposed, inter alia, that she had not spent face-to-face time with the child since 29 November 2022 and that she had only had telephone contact with him on 28 December 2022 and possibly on 20 March 2023.
On 13 April 2023, some four months after the making of the 2022 orders, the father filed a fresh Initiating Application, seeking the discharge of those orders and leave to relocate the child with him to City C, Country B.
On the return of that application, on 14 June 2023, a Senior Judicial Registrar ordered, by consent, until further order, inter alia, that:
·the provisions of the 2022 Orders for the mother to spend face-to-face time with the child be suspended;
·the provisions of the 2022 Orders for the mother to communicate with the child by video-conference (namely, Zoom) be varied, such that it take place each Monday and Friday between 6.30 pm and 7.00 pm; and
·the mother spend time with the child each Saturday from 10.00 am until 3.00 pm supervised by the maternal aunt.
On 13 December 2023, further orders were made by consent which discharged the previous orders for the mother to spend face-to-face time and to communicate by video-conference with the child and, instead, provided for the mother to spend supervised time with him at a contact centre and to undertake hair follicle testing for drugs and alcohol. The evidence is that, thereafter, she did not complete the necessary intake documents for the contact centre or undertake the hair follicle test and that she has spent no face-to-face time or had any communication with the child since 9 December 2023. Therefore, it is the case that, in the 18 months or so since the 2022 Orders were made, the child has lived with the father and had negligible face-to-face time or communication with the mother, through no fault of the father. Two video-recordings were played to the Court and tendered and marked Exhibits MC-4 (recorded on 8 September 2023) and MC-6 (recorded on 18 September 2023) respectively of the mother’s Zoom “communication” with the child; however, in fact, there was little discernible communication between them. On both occasions, the mother bizarrely sang the same song to the child, who appeared entirely disinterested in the song, his mother or the opportunity to communicate with her. The lyrics of the song were tendered and marked Exhibit MC-5. I am not familiar with either, but the lyrics appear bizarre and entirely inappropriate to a child aged five years.
Why the mother would sing a song with such lyrics to a five year old child is not at all apparent to me. It is unclear whether (but concerning if) the references are to these proceedings, to the mother’s illness and to the father.
On 31 January 2024, the father filed a further amended Initiating Application seeking, in summary, sole parental responsibility for all long-term major issues in relation to the child; leave to relocate the child with him to City C; that the mother spend time with the child, dependent upon the state of her mental health; and that his surname be added to that of the child, which was the mother’s surname, such that the child be known as, and his surname be changed to, that of the mother, hyphenated with that of the father, in that order.
On 23 February 2024, I made trial directions (“Trial Directions”) that required, inter alia, the mother to file and serve, by 4.00 pm on 27 March 2024, any amended or further amended Response to Initiating Application setting out with precision the orders sought at trial, together with the affidavits of evidence in chief of all witnesses relied upon at trial, noting that affidavits filed for previous hearings could not be relied upon as evidence in chief without leave. She failed to do so. She was present at Court that day, represented by counsel, instructed by a firm of solicitors. Insofar as might be required, to make the implicit explicit, my Trial Directions provided that should any party fail to comply therewith, or any ensuing amending directions, the party who had complied would have leave immediately thereafter to file an Application in a Proceeding (if so advised), supported by affidavit/s, seeking for the matter to proceed on an undefended basis. On 12 April 2024, the father filed such an application.
However, on 6 March 2024, the solicitors on the record for the mother had filed a Notice of Ceasing to Act, in which they specified the mother’s last known residential address, mobile telephone number and email address.
The father’s Application in a Proceeding was listed before me on 16 April 2024. In his affidavit in support thereof, he deposed, inter alia, that the mother had been unresponsive to his solicitor’s correspondence and to the process server trying to serve documents upon her at her last known residential address specified by her former solicitors. An Affidavit of Service by the process server was filed on the eve of the hearing. On that occasion, there was no appearance by or on the half of the mother. My associate endeavoured to contact her on the mobile telephone number specified by her former solicitors, but the call diverted to voice-mail. Accordingly, I adjourned the Application in a Proceeding to the first day of the trial and ordered the father, through his solicitors, by 4.00 pm the following day, to serve upon the mother, by way of SMS message to her mobile number, the application and supporting affidavit. An affidavit of service thereof was filed by the father’s solicitor on 17 April 2024, confirming such service.
There was again no appearance by the mother at trial. She was called outside the court at the commencement of the day, but there was no response to the call. Further, my associate attempted in open court to contact the mother on her mobile telephone number but the call was diverted to voice-mail. I was also informed by counsel that the Independent Children’s Lawyer had also endeavoured to contact the mother by telephone that morning, similarly unsuccessfully.
Given the provisions of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the Family Law Case Management Central Practice Direction and my Trial Directions, the mother’s failure to appear and the circumstances of the case generally, to which I refer below, I ordered that the trial proceed on an undefended basis, as against her.
A minute of orders sought to be made, by consent as between the father and the Independent Children’s Lawyer, was tendered by them. As I indicated above, and for the reasons that follow, I propose to make orders in the terms of that minute.
In relation to the mother’s failure to participate in the preceding after made my Trial Directions and to appear, both on 16 April 2024 and at trial, I note that in Allesch v Maunz (2000) 203 CLR 172, Kirby J said:
35It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as “an indispensable requirement of justice”. It is a rule of natural justice or “procedural fairness”. It will usually be imputed into statutes creating courts and adjudicative tribunals. Indeed, it long preceded the common and statute law. Even the Almighty reportedly afforded Adam such an opportunity before his banishment from Eden.
36The rule is also implicit in international principles of human rights. It is inherent in the proper conduct of judicial proceedings in a court of law. It may even be an implied attribute of the Judicature established under, and envisaged by, the Constitution. So deeply ingrained is the principle that more recent times have seen its extension, with certain exceptions, to administrative tribunals and other decision-makers. The principle governed the Family Court of Australia in determining the rights of the present parties.
(Footnotes omitted)
However, Kirby J continued:
38…it is worth emphasising that the principle just described does not require that the decision-maker actually hear (or receive the submissions of) the party potentially liable to be adversely affected. Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.
39Decision-makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to act rationally in their own best interests. This consideration may be especially relevant in relation to the Family Court where emotions, often engendered by the highly personal issues involved, can sometimes cloud rational thought.
40Nor are courts obliged to delay proceedings indefinitely because one party, although proved to be on notice of the proceedings, refuses or fails to appear in person or to be represented by a lawyer or some other individual permitted to speak for them who can explain the need for an adjournment. The rights of other parties are commonly involved. In the Family Court, the rights of non-parties (especially children) may be affected. Additionally (as this Court has itself accepted), the rights of the public in the efficient discharge by courts of their functions must be weighed against unreasonable delay in concluding litigation.
(Footnotes omitted)
PRELIMINARY ISSUES
The trial of this proceeding commenced and concluded the day on 8 May 2024, two days after the amendments to Pt VII of the Family Law Act 1975 (Cth) (“Act”), by the Family Law Amendment Act 2023 (Cth) (“Amendment Act”), commenced operation.
Two issues arise therefrom. First, s 65DAAA(1)–(3) of the Act (as amended) now provides as follows:
(1)If a final parenting order is in force in relation to a child, a court must not reconsider the final parenting order unless:
(a)the court has considered whether there has been a significant change of circumstances since the final parenting order was made; and
(b)the court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered.
(2)For the purposes of determining whether the court is satisfied as mentioned in paragraph (1)(b), and without limiting section 60CC, the court may have regard to any matters that the court considers relevant, including the following:
(a)the reasons for the final parenting order and the material on which it was based;
(b)whether there is any material available that was not available to the court that made the final parenting order;
(c)the likelihood that, if the final parenting order is reconsidered, the court will make a new parenting order that affects the operation of the final parenting order in a significant way (whether by varying, discharging or suspending the final parenting order, in whole or in part, or in some other way);
(d)any potential benefit, or detriment, to the child that might result from reconsidering the final parenting order.
(3)Despite subsection (1), the court may reconsider a final parenting order with the agreement or consent of all the parties to that order.
I consider that, notwithstanding the mother’s failure to participate in, or appear at the trial of, the proceeding, and my order that the trial proceed undefended as against her, s 65DAAA(3) is not engaged. Nevertheless, for the reasons that follow, I am satisfied of the matters required by s 65DAAA(1)(a) and (b), including in circumstances where the Independent Children’s Lawyer consents to the orders sought by the father. In summary, I consider the significant change of circumstances to be constituted by the unanticipated continuation and/or deterioration of the mother’s mental health since the 2022 Orders were made, contrary to the optimism of her treating psychologist at the time; the minimal time spent by her since then; and the work opportunities and/or obligations overseas of the father, with whom the child lives, which have arisen since then. However, given the particular circumstances, this case is not the appropriate vehicle through which to consider what might generally constitute a “significant change of circumstances” for the purposes of s 65DAAA(1), other than to observe that it appears to be a statutory codification of the principle in the line of cases commencing with Rice & Asplund (1979) FLC 90-725 and thereafter.
Secondly, s 68LA(5A) of the Act (as amended) now provides that:
Subject to subsection (5B), the independent children’s lawyer must perform the following duties (not necessarily at the same time):
(a)meet with the child;
(b)provide the child with an opportunity to express any views in relation to the matters to which the proceedings relate.
Section 68LA(5B)–(5D) further provides:
(5B) The independent children’s lawyer is not required to perform a duty if:
(a)the child is under 5 years of age; or
(b)the child does not want to meet with the independent children’s lawyer, or express their views (as the case requires); or
(c)there are exceptional circumstances that justify not performing the duty.
(5C)Without limiting paragraph (5B)(c), exceptional circumstances for the purposes of that paragraph include that performing the duty, would:
(a)expose the child to a risk of physical or psychological harm that cannot be safely managed; or
(b)have a significant adverse effect on the wellbeing of the child.
(5D)If the independent children’s lawyer proposes not to perform a duty because of paragraph (5B)(c), the court must do the following before making final orders:
(a)determine whether it is satisfied that exceptional circumstances exist that justify not performing the duty;
(b)if the court determines that those circumstances do not exist—make an order requiring the independent children’s lawyer to meet with the child or provide the child with an opportunity to express their views (as the case requires).
The Amendment Act was assented to on 6 November 2023 and provided that the relevant amendments commenced operation on 6 May 2024. Accordingly, the Independent Children’s Lawyer should have known of the impending requirements of these provisions and that they were to commence operation prior to the trial, albeit only very shortly so. Nevertheless, s 68LA(5B)(c) provides that an Independent Children’s Lawyer is not required to perform a duty specified in that section if “there are exceptional circumstances that justify not performing the duty”. Section 68LA(5D) provides, inter alia, that if an Independent Children’s Lawyer proposes not to perform a duty because of s (5B)(c), the court must determine whether it is satisfied that exceptional circumstances exist that justify not performing the duty. For the reasons that follow, I am satisfied that, in the particular circumstances of this case, exceptional circumstances exist that justify the Independent Children’s Lawyer not having complied with s 68LA(5A). In summary, these include, the very recent commencement of operation of s 68LA(5A); the fact that s 68LA(5B)(a) provides that an Independent Children’s Lawyer is not required to perform the duties in subsection (5A) if a child is under five years of age and the subject child is only five years of age; pursuant to the 2022 Orders the child already lives with the father and it is agreed between the Independent Children’s Lawyer and him that he will continue to do so; the father seeks to relocate with the child to Country B as and from 21 June 2024, in six weeks’ time; if the trial were to be adjourned by reason of subsection (5D)(b), it could not be relisted before me until August, at the earliest; the father seeks to relocate well prior to the commencement of the northern hemisphere academic year in September, in order for the child to commence to settle in to life in Country B; the father (and the mother, by her failure to participate at trial) does not urge upon the Court that exceptional circumstances do not exist; and, indeed, the orders proposed by the father and the Independent Child’s Lawyer provide for the Independent Children’s Lawyer to meet with the child. Indeed, the father contends that exceptional circumstances do exist. However, given the particular circumstances, this case is not the appropriate vehicle through which to consider what might otherwise generally constitute “exceptional circumstances” for the purpose of s 68LA(5B)(c).
EVIDENCE
The father relies upon the following affidavits: his affidavit, filed on 20 March 2024; an affidavit of his mother, Ms J, filed on 20 March 2024; and an affidavit of Ms H, psychologist, filed 21 March 2024.
The Independent Children’s Lawyer relies upon the following affidavits: an affidavit of Mr K, family consultant and psychotherapist, filed 15 December 2023, annexing a Family Report dated 22 November 2023; and an affidavit of Dr F, psychiatrist, filed 4 March 2024, annexing his psychiatric assessment of the mother dated 27 November 2023.
Neither the father, nor any of his witnesses, was required for cross-examination by the Independent Children’s Lawyer. Similarly, neither the Family Report Writer nor the single expert psychiatrist was required for cross-examination by the father. However, the father gave some brief oral evidence-in-chief.
I have read and considered those affidavits and do not propose to refer to every aspect thereof in these reasons. It is not necessary for a trial Judge to refer to every piece of evidence or argument presented during a trial.
In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said.
A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385-386, Mahoney JA said:
It is not the duty of the judge to decide every matter which is raised in argument.
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard… Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…
I have referred to some of the evidence in addressing the background of the case, above.
The gravamen of this case is as follows. The father is a musician. He has been signed to a music company since early 2021. A letter from Mr L of that company, dated early 2024, being annexure MC-14 to the father’s affidavit, was tendered by him and marked Exhibit MC-1. Mr L describes the father as “an outstanding [musician]”, who has recorded “[…] songs with some of the most influential musical artists around the globe”. He continues:
As the global Covid-19 pandemic led to travel bans accompanied by a complete change of song writing sessions ([Mr Cafferty’s] everyday workplace) from in-person to digital meetings [Mr Cafferty’s] locational disadvantage vanished - a big reason why we picked him up even if we are based in Europe. Now that the pandemic situation and the associated issues when it comes to having a bigger number of people in one room improved, digital writing sessions practically do not play a role anymore. This marks a significant setback for [Mr Cafferty’s] career, and it withdraws his financial basis of existence.
Most of the globally relevant songs […] are done in Europe with [City C] functioning as [an] important hub for music producers, songwriters, labels, and managers.
Therefore, a relocation to [City C] for [Mr Cafferty] is almost inevitable.
Furthermore, we would like to point out that a renewal of [Mr Cafferty’s] exclusive […] deal only becomes a possibility if he relocates to Europe. All things considered [Mr Cafferty’s] career really depends on where he will be based going forward as Melbourne, Australia currently does not play a big role in globally relevant [music]. In summary it can be said that we strongly support [Mr Cafferty’s] plan to relocate to [City C], [Country B] as this is the only way he can have a vital career and provide for his family going forward.
I consider that Mr L’s letter explains why his company now seeks the father’s presence in Country B, notwithstanding that their relationship predates the 2022 orders by nearly two years. Mr L’s letter corroborates the father’s evidence.
The father is also a co-owner of N Group. A letter from Mr M, managing director of O Company in Country B, dated 4 March 2024, was tendered by the father and marked Exhibit MC-2. Mr M describes O Company as a “[Country B-based], world-renowned music publisher […]”. In his letter, he purports to confirm the intention of O Company “to enter into a partnership […] with the [N Group], as well as with the author”, namely, the father. He continues:
[O Company] is seeking a co-publishing agreement with [N Group], as a successful international […] music group, under the leadership of [O Company]. To this end, [O Company] has offered [N Group] a 3-year contract with a one-off advance of €50,000 and a further one-off advance of €30,0000, provided that at least 50% of the first advance has been recouped with the 2 years of the contract. The jointly generated rights are split 50/50 and [O Company] has a first option.right for new signings.
In addition, [O Company] intends to conclude an exclusive author agreement with [Mr Cafferty] as a [musician] as soon as his current exclusive author agreement expires (probably in 2026). The condition for a concrete offer for this purpose is [Mr Cafferty’s] relocation to Europe. The reason for this is that [O Company] regularly hosts [events], at which [Mr Cafferty] will be firmly scheduled. Last year, [O Company] organised such [events] in [a number of locations], and in the current calendar year, [these events] are planned in [a number of cities], some of which have already been implemented. The flexibility to take part in such [events] with little lead time is only possible for [Mr Cafferty], if he lives in Europe.
[O Company] therefore intends (subject to [Mr Cafferty’s] relocation to Europe) to enter into a long-term partnership with him and with [N Group].
Like Mr L’s letter, that of Mr M also corroborates the father’s case.
Given the importance of the matters contained in the letters, it is perhaps surprising that affidavits by the authors thereof were not filed. However, the letters are admissible by reason of s 69ZT of the Act. The Independent Children’s Lawyer did not object to the tender of the letters and, by reason of the mother’s failure to participate in and/or to appear at the trial of this proceeding, there was, and could be, no objection by or on her behalf. As I have noted above, the contents of the letters are corroborative of the father’s evidence and, in the circumstances, I place weight thereon, notwithstanding that affidavits by the authors thereof have not been filed and that the letters are hearsay. I accept that the father is reasonably required, for the purposes of his career, to relocate to Country B. Since the end of the Covid-19 pandemic, he has travelled for the purposes thereof, twice in late 2022, early 2023 and late 2023, leaving the child in the care of his mother. By all accounts, the child and she have a loving relationship. Her evidence is that, if the child relocates with the father to Country B, she will do likewise, having been born there and lived there until the age of 21 years and having relatives there.
There is no suggestion that the father’s wish to relocate with the child is not bona fide or is motivated by a wish to distance him from the mother. Indeed, as I have noted above, she has spent little time and had little communication with the child since the 2022 Orders were made.
The child presently attends P School in Suburb Q, where he is in the preparatory grade. He also attends a Country B Language school. From May 2023, he attended kindergarten at G Kindergarten. A letter dated November 2023, co-signed by the director thereof and by the child’s kindergarten teacher there last year, being annexure MC-10 to the father’s affidavit, was tendered on his behalf and marked Exhibit MC-3. They state, inter alia, that it did not take very long for him to begin to build relationships there and that he began to be more engaged in the program in July/August 2023, participating in group activities regardless of group sizes and expressing his ideas and thoughts openly. However, they continue that:
During the period that [the child’s] dad [Mr Cafferty] was away, [the child] appeared quite dysregulated almost every day. We noticed a regular pattern of concerning behaviours. These could be pinching other children, throwing and/or destroying others’ hard work, verbally teasing or using inappropriate language, and at times, revealing his private parts in public space. There was a noticeable regression in [the child’s] engagement in the program, where he could barely sit down for the group meeting without interrupting the group session and disturbing other children. Although slow and subtle, we did see improvement in [the child’s] behaviours in the social settings after his dad’s return, in particular about making meaningful experiences rather than provoking and escalating conflict. Hence, in our opinion, maintaining a stable dynamic in the home [the child] lives in is in the best interest for [the child’s] overall wellbeing.
Those observations are consistent with those of the paternal grandmother. She deposes that, when the father goes overseas, the child “screams and cries hysterically” when he finds out that the father will be going for an extended period of time and will not be seeing him for a while and that it takes about an hour to calm down and to stop crying. He asks “When is daddy coming back? How many more days?” and says “I really miss daddy” (or words to similar effect). She further deposes to observing a significant change in the child’s usual demeanour during such times; he becomes more frustrated, throwing his toys around; he cries more often; and he becomes extremely clingy to her.
The psychologist upon whom the child has attended, first, when he was two years of age, and again since late 2023, deposes that she has not had interactions with the mother since her re-engagement and that her sessions with the child in the presence of the father. She reports, inter alia, as follows:
[The child] has been very cautious of the therapy and has not spoken directly to the clinician, however, will respond to questions via gestures, or by whispering to his father. [The child] engages fully in play in the sessions.
His play is intensive and disorganised, with themes with the doll’s house that suggest that he is having difficulties with the changes and transitions in his life. [The child] has indicated the confusion he feels in regard to when his father goes away and reacts emotionally by clinging to [Mr Cafferty] if [Mr Cafferty] talks about work overseas.
Within sessions it is evident that [the child] has a secure attachment with [Mr Cafferty]. [Mr Cafferty] demonstrates emotional availability to [the child], nurturance and provision of comfort and structure and routine. [Mr Cafferty] interacts directly with [the child], often sitting on the floor and playing with him. He has also been able to set limits with [the child] despite protestation. It is evident that [Mr Cafferty] himself is under considerable stress and emotionally this is unsettling to [the child].
In my clinical opinion whilst [the child] is showing an expected developmental trajectory, however, he also presents with anxiety, with specific separation anxiety and selective mutism aspects. In addition to this [the child] seems to have quite a disorganised working model (idea) of his family and how it works. He is very reliant upon [Mr Cafferty] as the constant in his unpredictable experience. Observations indicate his father is his primary caregiver who provides a sense of safety and predictability.
She refers to the importance of consistency, predictability and stability for the child. Concerningly, she opines that additional major changes to his experience will be the destabilising for him and will impact his function. It is her clinical recommendation that the child requires ongoing psychological care. There is nothing in the evidence to suggest that the father would not secure such care for the child in Country B. Indeed, I am fortified in so finding by the fact that it is the father who re-engaged the psychologist upon referral from his paediatrician.
LEGISLATION
Section 60CA of the Act continues to provide, as the Act has provided in one way or another since it first came into operation on 5 January 1976, that:
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.
However, since 6 May 2024, s 60CC(1)(a) of the Act (as amended) now provides that, in considering what is in the child’s best interests, the court must consider the matters set out in subsection (2).
Section 60CC(2) now provides as follows:
(2)For the purposes of paragraph (1)(a), the court must consider the following matters:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i)the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
Insofar as s 60CC(2)(a) is concerned, s 60CC(2A) provides:
In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a)any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b)any family violence order that applies or has applied to the child or a member of the child’s family.
Insofar as s 60CC(2)(b) is concerned, s 60CD provides:
(1)Paragraph 60CC(2)(b) requires the court to consider any views expressed by a child in deciding whether to make a particular parenting order in relation to the child. This section deals with how the court informs itself of views expressed by a child.
(2) The court may inform itself of views expressed by a child:
(a)by having regard to anything contained in a report given to the court under subsection 62G(2); or
(b)by making an order under section 68L for the child’s interests in the proceedings to be independently represented by a lawyer; or
(c)subject to the applicable Rules of Court, by such other means as the court thinks appropriate.
The balance of s 60CC(2) provides:
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f) anything else that is relevant to the particular circumstances of the child.
Section 60CG provides:
(1)In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order:
(a)is consistent with any family violence order; and
(b) does not expose a person to an unacceptable risk of family violence.
(2)For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.
Insofar as, pursuant to the 2020 Orders, the parents have equal shared parental responsibility for the child, the father (supported by the Independent Children’s Lawyer) now seeks that he have parental responsibility for decision-making for the child in relation to all major long-term issues, to the exclusion of the mother.
Section 61C of the Act continues to provide:
(1)Each of the parents of a child who is not 18 has parental responsibility for the child.
…
(3)Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).
Section 61D of the Act (as amended) now provides:
(1)A parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.
(2)A parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any):
(a) expressly provided for in the order; or
(b) necessary to give effect to the order.
(3)A parenting order that deals with the allocation of responsibility for making decisions about major long‑term issues in relation to the child (see subsection 64B(3)) may provide for joint or sole decision‑making in relation to all or specified major long‑term issues.
Section 61DAB of the Act (as amended) now provides:
(1)If a child is spending time with a person at a particular time under a parenting order, the order is taken not to require the person to consult a person who:
(a)has parental responsibility for the child; or
(b)shares parental responsibility for the child with another person;
about decisions that are made in relation to the child during that time on issues that are not major long‑term issues.
Section 64B of the Act, which, inter alia, defines the meaning of “parenting order” and related terms, remains unchanged. I am satisfied that the orders sought by the father and the Independent Children’s Lawyer are parenting orders.
Section 65D(1) of the Act (as amended) now provides:
(1)In proceedings for a parenting order, the court may, subject to section 65DAB (parenting plans) and this Division, make such parenting order as it thinks proper.
CONSIDERATION OF S 60CC(2) MATTERS
(a) What arrangements would promote the safety (including safety from being subjected to, or exposed to family violence, abuse, neglect, or other harm) of the child and each person who has care of the child (whether or not a person has parental responsibility for the child)?
As noted above, in considering this matter, the Court must include consideration of any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child) and any family violence order that applies or has applied to the child or a member of the child’s family.
Given the mother’s failure to participate in the proceedings since I made trial directions on 23 February 2024, to comply therewith and to appear at trial, the trial proceeded undefended by her and there is no contradictor to the orders sought by the father, as the Independent Children’s Lawyer joins with him in seeking same.
I note that an intervention order was made against the father, in favour of the mother and, initially, the child after separation. This was at a time when the child had been placed in the father’s care by the Department of Families, Fairness and Housing. The Department promptly thereafter advised the father that it supported the removal of the child from the intervention order. In any event, the fact of an intervention order, some five years later, when proverbially much water has passed under the bridge and the child has lived with the father since early 2020, is of reduced (if any) relevance at the present juncture in time.
I consider that the orders sought by the father and the Independent Children’s Lawyer will have no adverse impact on the safety of the mother or him. However, I consider that they will promote the safety of the child. The mother’s psychiatric health has long been, and remains, of concern. In the absence of any evidence adduced by her from her treating psychologist or psychiatrist (as opposed to the single expert consultant psychiatrist), the Court must proceed with caution. Whilst the mother attended upon Dr F in August 2023, and he produced his report on 27 November 2023, her unexplained failure to engage in the proceeding since the trial directions hearing before me on 23 February 2024, and to appear at trial, is troubling.
Dr F reports that, upon examination, over eight months ago, the mother did not display any agitation; her affect appeared within normal limits, with no evidence of depression or anxiety; there was no disorder of thought form; in terms of thought content, there were no significant depressive or anxious themes, suicidal or self-harm ideation or delusions; he could not detect any abnormality of cognition or perception; and, in terms of insight, she acknowledged she had had a psychotic episode and was (then) apparently compliant with ongoing medication, as well as antidepressants, and ongoing psychological therapy from Mr E. However, he noted that, according to a hospital file, the mother had had multiple registrations (namely, episodes of care), with ta hospital unit, between mid-2016–early 2022, preceding the 2022 Orders.
In relation to the mother’s admission to a mental health facility in late 2022 (shortly after the making of the 2022 Orders), she acknowledged to him that she had “at least several weeks of paranoia leading up to her admission”, during which time she had consumed an illicit substance. The period of “several weeks” of paranoia prior to late 2022, may overlap with the date on which the 2022 Orders were made, namely, 9 November 2022. However, some five days after her discharge, she again presented to the emergency department with suicidality, after escalation in anxiety. Strangely, there is no reference to the mother’s subsequent period of readmission, to which I have referred above.
In relation to his opinion and recommendations, Dr F reports that the mental health records provided for the mother confirm his previous assessment, in March 2020 (which is not in evidence), that she has suffered from “significant mental health difficulties that have impacted on her ability to parent”, including a number of disorders. In relation to the mother having suffered from a psychotic episode in November 2022, he opines that:
Sufferers of [a] personality disorder can certainly have psychotic symptoms under stress, but they are usually briefer than those described. Diagnostically, it is not clear whether there is [a] psychotic disorder.
He opines that “there is no doubt that [the mother’s] mental health has been significantly unstable during periods of 2022, in the letter from her psychologist, and her clinical presentation, suggests that her mental state has stabilised”. However, that was his opinion in late November 2023, having seen the mother in late August 2023. The letter from Mr E, to which he refers, is not in evidence. Whilst he reported that he did not, as at late August 2023, see any “current” evidence of psychosis, or that her personality disorder or depression or anxiety were (then) significantly active, there is a deafening silence in relation to her mental health since then. Although he opined that there were then “no psychiatric grounds for restriction or supervision of her contact”, he continued that her mental illnesses “are prone to fluctuation and relapse, including now the recent lapse of psychosis, so it is important that a relapse presentation plan is put in place”. Concerningly, there is no evidence as to whether her mental illnesses have fluctuated in the past eight months, since she attended upon Dr F, whether she has suffered any relapses or whether a relapse prevention plan has been put in place.
I consider that Dr F’s opinion, in the final paragraph of his report, that “there are no psychiatric grounds that would warrant consideration of removal of the child overseas due to any concerns about, or risk posed by [the mother’s] mental health” and that “such removal would undoubtably negatively impact on her mental health” is not germane. The father does not seek to relocate the child overseas due to the mother’s mental health and, whilst I accept that his relocation likely will negatively impact thereon, it is the child’s best interests that are the paramount consideration.
The Family Report Writer also referred to the mother having suffered from unstable mental health and her struggle with suicidal ideation and self-harm issues, as well as a having “pattern of not seeking consistent therapeutic support and on-off use of illicit drugs as a way of self‑medicating to deal with the stresses in her life”.
On the evidence, she has done little to be able to spend time or meaningfully communicate with the child. The video recordings of her communication (or lack thereof) by Zoom in September 2023 are perplexing. There is no explanation for the entirely age-inappropriate song she bizarrely sang to him. She does not seek to engage with him and she appears oblivious of the fact that he does not engage with her.
The day after the second of the video recordings, there was an exchange of SMS messages between the parents in relation thereto, which was tendered by the father and marked Exhibit MC-7. The father wrote to the mother on 19 September at 7.59 am:
Dear [Ms Bowles], There was a lot of explicit language in the Zoom (18 September 2023), please do not expose [the child] to these non age appropriate themes. I also heard you trying to communicate with me and asking [the child] questions about me about half a dozen times, including speaking about the ongoing family law matter to [the child]. Please stop this
The Court was only shown the first two minutes of this recording as part of the father’s case; however, the Independent Children’s Lawyer did not seek that more be viewed.
The mother responded later that morning, at 10.19 am, stating:
I did no such thing, and how would you know unless you are in the room. Do not interrupt my Zoom with [the child] and respect our privacy.
There is no criticism by the Independent Children’s Lawyer of the father for recording these two instances of “communication” between the mother and the child and, in the circumstances in which the recordings were made, no criticism by the Court. No interruption by the father of the mother’s “communication” with the child was evident from the recordings viewed.
A letter dated 4 October 2023, from the father’s solicitors to those then acting for the mother, was tendered by him and marked Exhibit MC-8. In the letter, the father’s solicitors referred to (and enclosed), “two recent concerning videos of [the child’s] ZOOM [sic] calls with the Mother. Those videos were taken on 8 and 11 September 2023”, which were also provided to the Family Report Writer. The latter recording was not viewed by the Court or tendered. Reference was made in that letter to “the Mother’s erratic behaviour”. Insofar as the letter also states that “[The child] was not present”, that is not literally correct; he was manifestly visible in the recording made on 8 September 2023. However, it was submitted by counsel that what was meant by that statement was that the child was not engaged with the mother. In circumstances where I observed the child not engaging with the mother, I accept, on balance, as likely, the explanation proffered by counsel.
A letter dated 16 October 2023, from the mother’s then solicitors to those acting for the father, responding to their previous letter, was tendered by him and marked Exhibit MC-9. In it, her solicitors advised, inter alia, as follows:
We are instructed that our client acknowledges the inappropriate nature of her behaviour and is remorseful over the incident and is well advised.
It is not entirely clear whether the “incident” (in the singular) referred to by the mother’s solicitors in their letter is a reference to one or the other of the recordings, or one of the other matters referred to in the father’s solicitors’ letter, including the mother having “screened positive for [illicit substances] on 29 November 2023 [sic]”. The year clearly is 2022. However, it seems unlikely to be the case, as the mother’s solicitors further advise that she “instructs that she is no longer on such medication is as referred to in your correspondence”. The mother admitted to the Family Report Writer that she had played an inappropriate song to the child, albeit only once. The Family Report Writer reports, in this regard, that the father informed him that there were numerous recordings of the mother presenting bizarre behaviour, even after being told that he would be recording her. Only two such recordings were played in Court and tendered. The Family Report Writer opines:
If the father’s allegations are proven in the proceedings, the mother’s self-sabotaging behaviour could mean that she is emotionally dysregulated and unable to contain her behaviour.
The two recordings to which I refer make it clear that she had played an inappropriate song to the child more than once. The Family Report Writer recommends that, if the father’s allegations are proven, there needs to be an order that he be able to supervise the Zoom sessions between the mother and the child and discontinue any session if there is inappropriate parenting behaviour on the part of the mother. Although the “numerous recordings” to which the father referred in interview with the Family Report Writer were not tendered, possibly by reason of the trial ultimately proceeding undefended, I am satisfied from the two that were tendered, as well as from the mother’s incorrect assertion that there was only one such occasion, that he should be able to supervise and, if necessary, terminate any electronic communications between the mother and the child.
In relation to the father’s application for leave to relocate the child overseas with him, and the reasons therefor, the Family Report Writer reports that the mother “laughed aloud mockingly, stating that the father has no future as a musician and no career prospects in [City C]”. That is in stark contrast to the evidence constituted by the letters from Mr L and Mr M. I consider it unlikely their are respective companies would have entered into, and/or would enter into, contractual relationships with the father and/or his company if the mother’s assessment of him, and his career prospects, as a musician, were correct.
I consider that the relocation of the child to Country B with his long-standing primary (and, indeed, almost sole) carer would promote his safety, taking into account the evidence of the paternal grandmother and that constituted by the letter from the director of, and his teacher at, his kindergarten in 2023, coupled with the lack of time spent and communication between the mother and him both prior and subsequent to the 2022 Orders.
(b) Any views expressed by the child.
As noted above, in considering this matter, the Court may inform itself by having regard to anything contained in a report given to the Court under subsection 62G(2) or by an Independent Children’s Lawyer. In this case, the Court has the benefit of both, albeit that the Independent Children Lawyer has not met with the child.
The Family Report Writer reports that, in their interactions, the child “seemed very attached and emotionally dependent on his father” and that their relationship seemed trusting and secure. Conversely, when he told the child that his mother was in the waiting area and would be coming in to play with him, the child:
… bent his head down and did not respond for a while. He pretended that he did not hear the message and tried to divert attention to a toy. After asking a couple of times, if his mother could come in, [the child] consented.
The Family Report Writer continues that when the mother came in, she rushed towards the child and gave him a warm hug and several kisses, telling him that she loved him and missed him. It is not suggested that she does not love or miss him. He reports that the child “quietly accepted his mother’s affectionate gestures but did not verbally respond to her” but that, once they had settled, he seemed comfortable and smiled at his mother. Nevertheless, whilst the mother told the child a few times that it was good to see him and that she missed him, she received no reciprocation from him. When she asked him if, in turn, he missed her, he responded, in a soft voice, “me too”. The Family Report Writer also reports that the child generally answered the mother’s queries about his kindergarten or friends stating “I don’t know” and that he asked if his father was waiting for him a couple of times. He concludes, in this respect, that the child seemed happy in his mother’s company, he separated from her without fuss and he reunited with his father quite relaxed.
(c) The developmental, psychological, emotional and cultural needs of the child.
There is no suggestion that the child has any particular developmental, psychological, emotional and cultural needs, other than in one respect. The Family Report Writer notes that the child’s kindergarten teacher in 2023 reported that he seemed to have a loving and affectionate relationship with his father, who delivered him to and collected him from kindergarten daily, except when he went overseas. However, during the father’s absences, he generally became a “withdrawn and anxious” child, whose “regressed behaviour” gradually improved once his father returned to Australia. This is consistent with the evidence of the paternal grandmother, as well as that contained in the letter from the director of, and the child’s teacher at, his kindergarten in 2023. There is no suggestion that he should not continue to live with his father and this is relevant to the question of relocation.
(d) The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs.
Whilst, pursuant to the 2022 Orders, the parents presently have equal shared parental responsibility for the child, the father, supported by the Independent Children’s Lawyer, seeks parental responsibility for decision-making for the child in relation to all major long-term issues, to the exclusion of the mother.
For the reasons above, including the “known unknowns” regarding the mother’s health since late August 2023, and the negligible time spent, and communication, by her with the child since the 2022 Orders were made, together with my, admittedly brief, observations of her bizarre behaviour during the two Zoom calls in September 2023, I am troubled by her capacity to provide for his developmental, psychological and emotional needs. Indeed, the Family Report Writer advises that, shortly prior to the release of his report, he received a communication from the mother’s psychologist, Mr E, stating that she had attended 13 therapy sessions with him in 2023, the last being on 27 September 2023, and that, “[a]lthough further sessions were booked, the mother did not attend after that”. Although Mr E speculated that, whilst he had provided concession rates, the cost could be one reason for the mother not attending further appointments, in the absence of evidence from the mother, the Court cannot so speculate.
Conversely, there is nothing in the evidence which suggests any reason for concern in relation to the father’s capacity in relation thereto. The Family Report Writer opines that, upon presentation in mid-September 2023, the father presented as a responsible and protective parent who was child-focused and concerned about protecting the child from any harm. He records that the father:
… emphasised several times that is relocation application was not intended to separate [the child] from his mother and it was about following his career prospects, which he believed would provide him with an opportunity to be a successful [musician] and inability to provide [the child] with a sound and secure emotional and material upbringing.
Whilst the Family Report Writer noted that the mother presented as a loving parent to the child, she was “angry and distressed that she could only spend limited [sic] time with her son for most of” 2023. Whilst I except that the mother was distressed, there does not appear to be any recognition by her of the reason therefor.
The Family Report Writer opines that the child has a strong, positive relationship with the father, in whose care he has resided for most of his young life. He describes the child as being dependent on the father for his physical and emotional survival. He reports that the child is attached, responsive and secure in his interactions with the father. He recommends that it is in the child’s best interests that he continue to live with his father, who can provide adequate and safe care for him, whether they live in Australia or City C.
Conversely, the child’s relationship with the mother is described by the Family Report Writer as having been “fragmented and disjointed”, not having spent regular and continuous time with her for the last couple of years. He reports that the child’s relationship with her “seems tentative and ambivalent” and that he “does not present as open, secure and confident in his interactions with her”. Nevertheless, he loves her (as she does him) and he wishes to spend time with her.
Importantly, in my view, the Family Report Writer opines that the “psychological stability of the parents is crucial and needs to be explored before the final determination of the matter”. Unfortunately, by reason of her failure to participate in the proceedings and to appear at trial, she has, in large part, precluded such an exploration, especially in respect of the past eight months since she attended upon Dr F. Whilst the Family Report Writer reports that the mother put forth “her fundamental argument that the father is taking advantage of her delicate mental health to keep their son away from her”, he opines that “she lacks insight that in the past, her effort to [harm] herself when [the child] was in her care is a grave risk factor to [his] well‑being”. In respect of her admission for psychiatric treatment in late 2022, “just days after the final hearing, where she had asserted to have no issues with her mental health, reportedly supported by her treating psychologist [Mr E]”, the Family Report Writer reports that the mother was not forthcoming and diverted the topic of conversation.
Equally concerningly, the Family Report Writer reports that:
During a phone call to her in early November, [the mother] stated that after the phone call with the writer, she would be rushing to attend work […]. However, the writer’s phone call to the [mother’s workplace] revealed that [the mother] had only attended casually in the past and had not worked there for more than two months. Therefor, it is questionable if the mother has provided factual information to the writer about her other daily activities.
In the circumstances, he suggested that the mother might need to provide factual information to the Court regarding these issues, including her attendance and therapy sessions over the past four months. She has not done so. Whilst not doubting the mother’s love for the child, he opines that:
… she appears to lack comprehension and insight about the impact of her parenting behaviour on her son when she is faced with mental health issues. She has a history of not seeking consistent therapy and treatment to address and maintain her mental health, which provides her with ongoing strategies to remain emotionally regulated and mentally sound.
The Family Report Writer also refers to the mother’s limited social support network, which mainly includes her mother, maternal aunt and two younger siblings, and notes that she has a quickly changeable relationship with her mother, who has also reportedly suffered from untreated mental health issues in the past. It is unclear whether the mother’s report to the Family Report Writer that she considers her maternal aunt “a controlling influence” in her life is considered by her to be, and/or is a positive or a negative factor. He also notes that the mother does not have many friends, which makes her emotionally and socially isolated and vulnerable.
Adding to these concerns, the Family Report Writer opines that, “if the mother is into recurring use of illicit drugs, it is likely to have an escalating and detrimental impact on her mental health thus affecting her parenting behaviour”.
The mother alleged to the Family Report Writer that she had sent detailed information to the father assuring him that she was mentally well. He requested that she send a copy of that information to him; however, as at the time of the release of the family report, on 22 November 2023, she had not done so.
The Family Report Writer opines that a diagnosis of mental health is not, in itself, a sufficient reason to suspend parenting arrangements; rather, it is the impact of the illness on parenting practice that needs to be considered. I agree. In this regard, he observes that the mother “denies, discounts and disregards the impact of mental health issues on her behaviour and, in turn, the effect of such on the mental and emotional well-being of [the child]”.
(e) The benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so.
A negative aspect of the child’s relocation with the father to Country B, identified by the Family Report Writer, is that he “would miss the physical presence of his mother in his life” and he “may experience sorrow and grief about the lack of his mother’s involvement in his daily life”. However, even whilst both parents have lived in Melbourne, at least since the 2022 Orders were made and, indeed, for considerable periods prior thereto since separation, when the child was less than one year of age, the mother’s physical presence in his life and her involvement in his daily life have been limited. Whilst the Family Report Writer opines that relocation “may further weaken the nature of the mother-son relationship”, which “would be an emotional loss that [the child] has to carry in his life”, the reality is that this may be the case even if the father and child remain here.
(f) Anything else that is relevant to the particular circumstances of the child.
The Family Report Writer reports that the father did not present as maliciously making a relocation application to take the child away from his mother; that his intention to move to Country B appeared not grounded in redress or revenge; and that he explained the motivation behind his relocation application with plausible reasons, such that, if it were positively proven, which I find to be the case, “it would seem that [the child] has considerable positive benefits to gain from relocating with his father to [City C]”.
The Family Report Writer opines that, if the child is allowed to relocate, he will continue to live with the father, “his primary parent with whom he has a secure emotional relationship and receives continued family support”. He describes the child as bright, sociable and curious, who can likely make new friends and be positively stimulated by the experiences of being in a new environment. However, if he is not allowed to relocate:
… the father would be put in a dire position financially for breaching his work contract, impacting the child’s] general welfare. [He] might lose love and support of his paternal grandmother as she wishes to move to [Country B], which is another derailing loss in his life. If the father has to travel to [City C] for work without [the child] for extended periods, [the child] would experience distress and repetitive trauma of separation from his primary parent. If [the child] continues to reside in Melbourne, he is likely to be exposed to recurrent parental conflicts, which would harm’s overall development and general well-being. As the saying goes, ‘If nothing changes, nothing changes’.
OUTCOME
In the circumstances, I consider the orders sought by the father, and supported by the Independent Children’s Lawyer, to be in the child’s best interests and I shall make same, with one substantive addition thereto.
The child has lived overwhelmingly with the father since early 2020, when he was between one and two years of age. There is nothing to suggest that it is not in his best interests to continue to do so. Indeed, on the evidence, I positively find it to be in his best interests that he continue to do so.
He has spent limited time and had limited communication with the mother, certainly since the 2022 Orders were made and, indeed, prior thereto. In the circumstances, I am satisfied that it is in his best interests, for the reasons above, to be allowed to relocate with the father to Country B. The father wishes to be able do so, as and from 21 June 2024, in order to be able to settle him into his new home and surroundings before the commencement of the northern hemisphere new academic year in September 2024. That is entirely appropriate.
In circumstances where there are “known unknowns” regarding the mother’s mental health and her ability to spend time with the child by reason thereof, on the evidence, there may be little difference in the time to be spent by him with her, whether they live in the same city or in different continents and hemispheres. As I have observed above, even whilst the mother and the child have lived in Melbourne, their time together has been very limited.
I consider the time proposed by the father, and supported by the Independent Children’s Lawyer, to be spent by the mother with the child, upon relocation, to be in his best interests in all the circumstances, including the fact that she has spent minimal time with him since, at least, the making of the 2022 Orders.
Commencing 1 January 2025, the father will cause the child to return to Australia for a period of not less than 10 days in each calendar year, during which the mother will be able to spend supervised time with him on not less than four occasions, at a contact centre (at their joint expense in equal shares), providing she takes the initiative to make the arrangements therefor. In the unfortunate event that she does not do so, the father will be relieved of his obligations in this respect.
Further, the mother will be able to spend supervised time with the child in Country B upon her nominating a single 10 day period in each calendar year, on not less than four occasions in each such period, with each such occasion being of not less than two hours’ duration. In default of agreement as to the supervisor of, or the venue for, the time to be spent, it shall be the nomination of the father.
The mother will be at liberty to send letters, cards, emails and gifts to the child to an address (including an email address) nominated by the father and, in the case of a postal address in Country B, such address to be nominated by the father within 14 days of relocation.
The mother will be able to communicate with the child by Zoom (or other agreed technology) for up to one hour each week, as well as on specified special occasions. However, for the reasons above, the father will be at liberty to monitor and record (audio or visually) such communications and to terminate them on any occasion, if he reasonably considers same to be unsafe for the child.
In circumstances where the father seeks, and the Independent Children’s Lawyer concurs that he should have, parental responsibility for decision-making for the child in relation to all major long-term issues, to the exclusion of the mother, and the mother has failed to adduce any evidence or participate at trial, I shall make such an order, especially as the child will be living with him in Country B. However, as I referred to above, I shall require him to keep the mother promptly advised of such decisions by email or text-message to an email address and/or mobile telephone number provided by her to him for such purpose.
Similarly, in circumstances where the child will be living with him in Country B, and he will be the child’s only parent living there, I consider it to be in the child’s best interests that the father’s surname be added to the child’s surname, which is presently that of the mother only, such that the child’s surname will be that of the mother, hyphenated with that of the father, in that order.
I shall also make the balance of the orders sought by the father and the Independent Children’s Lawyer for the provision of information and documents relating to the child’s education and health; for non-denigration by one parent of the other; for neither parent to discuss these proceedings with or in the presence of the child; for Australian and Country B passports to issue for the child without the consent of the mother; for the provision of the orders and these reasons for judgement to any public authority or court in Country B; and for the provision of the orders to any medical practitioner upon whom the child attends and to any school at which it is intended the child the enrolled or attend. I am satisfied that it is in the child’s best interests for such orders to be made in the circumstances of this case.
I conclude by observing that it is unfortunate for the mother, but all the more so for the child, whose best interests are the paramount consideration, that she failed to participate at all in these proceedings after the trial directions hearing and/or to appear at trial. Had she done both, some aspects of the order may have been different. However, in the circumstances, on the unchallenged evidence before the Court, I am satisfied that the orders proposed by the father are in the child’s best interests. Further, I am fortified in so finding by reason of the Independent Children’s Lawyer’s concurrence with the orders.
I certify that the preceding one hundred and eleven (111) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strum. Associate:
Dated: 13 May 2024
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