Caldwell & Prentiss
[2022] FedCFamC2F 1545
Federal Circuit and Family Court of Australia
(DIVISION 2)
Caldwell & Prentiss [2022] FedCFamC2F 1545
File number(s): NCC 941 of 2021 Judgment of: JUDGE BETTS Date of judgment: 11 November 2022 Catchwords: FAMILY LAW – Parenting – one child, aged 4 years 11 months – where the mother has been the primary carer – where there the father has a history of drug use – where the parties relationship has broken down – where the father has spent regular time with the child since separation – where both parties have now re-partnered and started new families – where the mother seeks to relocate with the child to Town B, a 7 and a half hour drive from the father’s location – where the father opposes the relocation and seeks to implement an equal time arrangement – where the Independent Children’s Lawyer proposes that the mother should be allowed to relocate but that the father spend time with the child during school holiday periods – where the Court must consider all parties’ options against the evidence– best interests of the child. Legislation: Family Law Act1975 (Cth), Pt VII Cases cited: Adamson & Adamson (2014) FLC 93-622
Godfrey & Sanders [2007] FamCA 102
Mazorski v Albright (2007) 37 Fam LR 518
MRR & GR (2010) FLC 93-244
U & U [2002] 211 CLR 232
Zahawi & Rayne [2016] FamCAFC 90
Division: Division 2 Family Law Number of paragraphs: 209 Date of last submission/s: 17 June 2022 Date of hearing: 15, 16 and 17 June 2022 Place: Newcastle Solicitors for the Applicant: WM Lloyd & Associates Counsel for the Respondent: Mr Willoughby Solicitors for the Respondent: Rachael Brennan & Associates Lawyers Counsel for the Independent Children’s Lawyer: Mr Boyd Solicitors for the Independent Children’s Lawyer: Adams & Associates ORDERS
NCC 941 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CALDWELL
Applicant
AND: MS PRENTISS
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE BETTS
DATE OF ORDER:
11 November 2022
THE COURT ORDERS THAT:
1.All previous orders be discharged.
2.The parents have equal shared parental responsibility for the child X born in 2017 (“the child”).
3.The child shall live with the Mother.
4.The Mother shall be at liberty to relocate the child’s residence to Town B NSW.
5.The child shall spend time with the Father as agreed between the parties in writing, but failing agreement, as follows:
(a)During the NSW Term 1, Term 2 and Term 3 NSW school holiday periods from 1pm on the first Saturday to 1pm on the last Saturday of those school holiday periods;
(b)During the Term 4 NSW school holiday periods from 1pm on 7 January to 1pm on the last Saturday of the school holiday period in even numbered years and from 1pm on the second day of the school holiday period until 1pm on 7 January in odd numbered years;
(c)In the Town B area at any time the Father can travel to Town B upon the Father giving the Mother twenty-one (21) days written notice that he wishes to spend time with the child for a period of up to three days or as otherwise agreed;
(d)In the Town C area for a time as agreed if the Mother is in the area visiting family or friends, with the Mother to give the Father at least twenty-one (21) days written notice of her intention to visit the Region D area.
6.If the Father is not already spending time with the child, there will be FaceTime or other video communication between he and X on Father’s Day, the Father’s birthday, the child’s birthday, Christmas Day and each Tuesday, Thursday and Sunday at 5pm, with the Mother to initiate the call.
7.When the child is spending time with the Father, the Mother shall be at liberty to communicate with the child via FaceTime or other video communication on the child’s birthday, on the Mother’s birthday, Mother’s Day, Easter Sunday, Christmas Day and each Tuesday, Thursday and Sunday at 5pm, with the Mother to initiate the call.
8.To facilitate the time in Order 5(a-c) above, the parties or their respective nominees will meet at the E Playground, F Street, Town E at the commencement and conclusion of the time, and to facilitate Order 5(d) above the parties or their nominees shall meet at the McDonald’s Restaurant, Town C.
9.Provided the Father gives the Mother at least twenty-eight (28) days written notice of his intended weekend wedding date, the Mother shall provide the child to the Father for the weekend of the said wedding, and shall facilitate all of the travel for the child to spend time with the Father on that weekend.
10.In the event the child suffers a medical emergency requiring attendance at a hospital or medical centre whilst in the care of either parent:
(a)The parent having the care of the child shall notify the other parent as soon as practicable by telephone call;
(b)The notifying parent shall provide the other parent with the full details of the practitioner or medical facility upon which the child attended as soon as practicable; and
(c)The medical practitioner or facility is to be advised that both parents shall have access to the child’s medical records and information retained by them upon request.
11.Each parent shall keep the other informed at all times of their current contact telephone number, email address and residential address and advise the other parent of any change within twenty-four (24) hours of such change occurring.
12.These Orders are sufficient authority for either parent to be listed as a contact at the child’s school and both parents are at liberty to liaise directly with the child’s school to receive information normally available to parents and to attend any school, or day-care function, or activity, or extra-curricular activity normally attended by parents.
13.These Orders are sufficient authority for either parent to receive all medical and health information, reports and any other document in relation to the child from any medical or health professional that the child has attended upon or is attending upon.
14.The parents are each restrained from denigrating the other parent or members of the other parent’s family to, or in the presence or hearing of the child and shall immediately remove the children from the vicinity of any other person doing so.
15.Each party is to bear their own costs of and incidental to the proceedings. The Independent Children’s Lawyer’s Application for costs against each of the parents is dismissed.
16.The proceedings be removed from the list of active pending cases.
NOTATION:
A.The Court has indicated the orders it is making today and has heard and determined the Independent Children’s Lawyer’s costs application orally.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Caldwell & Prentiss has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BETTS
INTRODUCTION:
These proceedings concern the future parenting of a young girl, X (“X”), born in 2017 who is presently four (4) years and eleven (11) months old.
X’s parents are Mr Caldwell (“the Father”) and Ms Prentiss (“the Mother”). Their relationship was brief and they separated soon after X was born. The Mother has always been X’s primary carer and – broadly – the Father (and his family) have enjoyed regular and age-appropriate time with her. X spends 4 nights per fortnight with him, being from 3pm Thursday until 9am on the following Monday in alternate weeks.
The Father lives at Town C with his fiancé Ms G. Each of them work at the nearby Employer H where the Father is a tradesman and Ms G is the manager. Ms G has 2 daughters, J (born in 2014) and K (born in 2019), who live with them for 8 nights per fortnight including alternate weekends. Ms G is pregnant to the Father, with their child expected to be born in 2023. The paternal family also live close by and X has developed close and loving relationships with them, most notably with the paternal grandmother who has spent substantial time with her throughout her life.
The Mother lives with the maternal grandfather in his home at Town L in the Region D region, not far from Town C. She too has re-partnered. Her partner, Mr M, lives in Town B where he owns his own home and is employed as a labourer at a nearby employer. As Town B is some 674 kilometres from Town C - a 7 ½ hour drive [1] - he and the Mother have had to conduct their relationship on a long-distance basis. It has not been easy. When the Mother travels to Town B, she makes 4 separate toilet/rest stops along the way. Mr M also has travel issues, as he works a 28-day roster consisting of 7 dayshifts (7am to 7pm), followed by 7 days off, then 7 night shifts (7pm to 7am) and 7 days off. His shift pattern, combined with working long shifts, take a physical toll on him: he is required to sleep the day after finishing shifts and the day before recommencing them. Thus his capacity to travel on his days off is limited to 5 days rather than 7. Historically he has travelled to Town L after completing his day shifts rather than his night shifts.
Despite the geographical challenges, their relationship has thrived and they have gone on to have a child together, N, who was born in 2022. As a result of their current circumstances, the Mother is largely having to parent her alone. Moreover, N is now another passenger when the Mother travels to Town B.
Herein lies the entirely human and understandable difficulty at the heart of this case. The Mother wants to relocate with X to Town B; the Father opposes the relocation and seeks to implement an equal time arrangement.
Like many mothers who seek to relocate, the Mother in this case says she will not move unless X comes with her. The Father says he cannot move to Town B himself as he has no job there and no support. Moreover, Ms G cannot move given her own shared co-parenting arrangement with her children’s father.
It is an arid exercise in this case to label either parent as “selfish” or to accuse them of “preferring their own needs over those of the child” and I reject any such submissions. Both parents genuinely believe that what they want is best for X. As they cannot agree, it is the Court’s role to make the decision for them.
Regrettably, one parent is going to be bitterly disappointed by the result.
The EVIDENCE:
This matter proceeded to final hearing before me on 15, 16 & 17 June 2022. The Father was represented by his solicitor Mr Lloyd, formerly of counsel. The Mother was represented by Mr Willoughby of counsel and the Independent Children’s Lawyer (“ICL”) was represented by Mr Boyd of counsel.
The Father relied upon:
(a)Outline of Case Document filed 7 June 2022;
(b)Amended Initiating Application filed 10 September 2021;
(c)Notice of Child Abuse, Family Violence or Risk filed 18 May 2022;
(d)Affidavit of the Father filed 18 May 2022;
(e)Financial Statement of the Father filed 19 May 2022;
(f)Affidavit of Ms G filed 8 June 2022;
(g)Affidavit of the paternal grandmother, Ms O filed 19 May 2022;
(h)Affidavit of the paternal grandfather, Mr P filed 18 May 2022;
(i)Affidavit of the Father’s sister, Ms Q filed 19 May 2022.
The Mother relied upon:
(a)Outline of Case Document filed 14 June 2022;
(b)Amended Response filed 2 November 2021;
(c)Affidavit of the Mother filed 20 May 2022;
(d)Affidavit of Mr M filed 20 May 2022;
(e)Affidavit of Mr M’s mother, Ms R filed 20 May 2022.
The ICL relied upon:
(a)Outline of Case Document filed 10 June 2022;
(b)Child Dispute Conference Memorandum of 21 June 2021, prepared by Court Child Expert Ms S (marked as exhibit 1); [2]
(c)Child Impact Report of 10 November 2021, prepared by Court Child Expert Ms S (marked as exhibit 2).
During the course of the hearing, the parties tendered various other exhibits which will be referred to as relevant. Most notably, these included the ICL’s proposed minute of order (exhibit 12). Therein the ICL proposed that there be equal shared parental responsibility, that the Mother be at liberty to relocate with X to Town B, that the Father spend time with X during school holiday periods and at other times either in the Town B area or the Town C area, and that there be regular electronic communication. The ICL proposed that changeovers occur at Town E, some 183 kilometres from Town C (a 2 ¼ hour drive for the Father) and 491 kilometres from Town B (a 5 ¼ hour drive for the Mother). [3] The Mother ultimately adopted the ICL’s proposed minute.
At the request of the Court, each parent tendered a proposed “fallback” minute of order in the event that their respective primary positions were unsuccessful. The Mother’s minute became exhibit 6 which, inter alia, provided for equal shared parental responsibility and for X to live with the Mother and spend time with the Father on alternate weekends from Friday to Sunday together with time over the Christmas holiday period.
The Father’s “fallback” minute was exhibit 7. It proposed, inter alia, that X spend time with the Father for the whole of all school holiday periods, and for all of the New South Wales long weekends, with the Mother to undertake all of the travel. In the face of some criticism as to the unreasonableness of this proposal, the Father later tendered as exhibit 11 an amended “fallback” minute which provided for the Mother to at least share the Christmas holidays with him and for changeovers to occur at Town E.
SOME WITNESS OBSERVATIONS:
Having had the advantage of seeing and hearing the witnesses give their evidence, I make the following brief observations.
The Father is devoted to his daughter. In a heartfelt way, he said that “having X ripped away will kill me”. In my view he does not want to even think about that prospect.
Unfortunately, various aspects of the Father’s evidence troubled me. One was his pervasively negative view of the Mother. He seemed very much focussed on what she had done “wrong” rather than what she had done “right”. Notwithstanding his close and loving relationship with X, the Father was unsatisfied with the Mother’s attitude and saw himself as a victim.
The Father does not trust the Mother. He accused her of altering the content of some text messages which the Mother had annexed to her affidavit. Despite the seriousness of this allegation, he offered no evidence in support and I find his allegation baseless. He challenged the validity of the letter of employment annexed to Mr M’s affidavit, seemingly on the basis that the letter as annexed did not include the employer’s letterhead. It was no more than a formatting issue and Mr M later produced the letterhead version which was otherwise identical (exhibit 9). The Father also questioned the “lack” of affidavits from other support witnesses in the Mother’s case (such as friends and extended family) – an approach more akin to a Royal Commission than a parenting case.
Also of some concern was the Father’s near complete lack of empathy for the Mother’s circumstances. This was exemplified by his oral evidence that, insofar as living in Town L and Town B were concerned, he “couldn’t see any real difference for the Mother”.
To be fair, some of the Father’s negativity towards the Mother, and his apparent lack of empathy, may be based upon her making a complaint to Police about him possibly perpetrating sexual abuse of X. I will discuss that allegation later, but it suffices to say that the Mother was acting in good faith and that the allegation was unsubstantiated and has since “fallen away”. But while this allegation no doubt greatly inflamed the situation, it does not fully explain the Father’s attitude. His negativity and lack of trust of the Mother existed long before that allegation was made, and was shared by other paternal family members.
The paternal grandmother was quite a forceful personality; she is heavily invested in these proceedings both on the Father’s and X’s behalf. She comes from a close family, as reflected in both her strident support of the Father and her criticism of the Mother. Not only has the paternal grandmother been heavily involved in X’s life, she has also played an active “background” role in this litigation, acting as the Father’s adviser and confidante and generally prodding him to – as she would see it – “stand up for his rights as a father”. Overall, she was a highly partisan witness, much of whose evidence needs to be looked at cautiously.
Ms G was a seemingly straightforward witness who is clearly a devoted mother herself and has formed a close bond with X. Regrettably however, she has also bought into the paternal family’s rather negative view of the Mother.
The paternal grandfather was not required for cross-examination but I have little doubt from his affidavit that he is a loving and devoted grandfather with a keen interest in X’s welfare. He does, however, share the paternal family’s negative view of the Mother. For instance, his affidavit describes the Mother’s refusal to send X to the paternal great-grandmother’s funeral as “one of Ms Prentiss’s lowest acts.” The quoted words connote a distinct lack of respect for the Mother and, as with other paternal family members, there is no real recognition of the good things the Mother has done as a parent.
The Father’s sister Ms Q was not required for cross-examination. She lives with her partner, Mr T, and they have a young child, U, born in 2001. Her partner has 3 children from a prior relationship - V (7), W (6) and Y (4) - who live in an equal time arrangement between their parents. Ms Q’s affidavit speaks positively about the paternal family relationships with X but does not otherwise add much to the evidence.
The Mother was a straightforward and honest witness. She had empathy for the Father’s circumstances in the event that she was able to relocate. She appeared appropriately mindful of the potential adverse impacts on X of her being geographically separated from her Father and from the paternal family. Her parenting proposals appeared to be reasonably thought out and her concession that she would remain in Region D if she could not relocate was both genuine and reluctant. Like the Father, the Mother does not want to think about the possibility of not achieving her desired outcome.
I was impressed by the evidence of Mr M. He is clearly as deeply rooted in Town B as the Father is in Town C. Mr M very much sees his future in the Town B region where he has a high-paying job with excellent future prospects. He did not appear to have any particular animus towards the Father and in my view he displayed some empathy and understanding of the geographical challenges that would arise in the event of relocation.
Ms R was also an impressive witness. I am satisfied that she will support the Mother and Mr M as best she can in the event of relocation.
chronology OF EVENTS:
Prior to X’s birth
The Father was born in 1991 and has lived close by the paternal family in the Town C region for practically all of his life. His early employment history is somewhat unclear. Between 2012 and 2014 he slipped into drug dependency – namely cannabis and methamphetamines. He therefore appears to have had some difficulties in his life, which were probably incompatible with consistent employment.
The Mother was born in 1994 and has lived in a number of different locations. She was just 7 years old and living in Town Z when the maternal grandmother passed away. Thereafter she and the maternal grandfather lived in Town L until the Mother was aged 14. At that stage she moved back to Town Z, where she lived with an uncle for 10 months before moving to Town AB from 2010 – 2014 where she lived with another uncle while she finished school. She met Mr M during that period, although they were not in a relationship. While in Town AB the Mother obtained administrative work, before ultimately returning to Town L.
The parties commenced a relationship in 2016 at a time when the Father was unemployed and the Mother was working as an administration officer. Both parents took ecstasy together at a music festival in early 2017, but when the Mother fell pregnant with X around 2017 she ceased any drug use. However, the Father continued to use cannabis and this became a source of parental conflict. The Mother’s brother Mr AC was a cannabis smoker and the Mother became irritated that he and the Father were smoking together. She argued with both of them about it, to no avail.
In the early hours of 22 July 2017 the Mother caught the Father smoking cannabis in a bedroom with her brother. He quickly tried to hide something behind his back, but she pushed through and tried to grab whatever it was. In so doing, she slapped him and he then stood over her with his fist raised. She “snapped” at that point, hitting herself in the stomach and telling the Father that “We have a child on the way.”
Her despair at that time is recorded in a text message she sent to the paternal grandmother some days late:
I’m so fucking tired and over having to give [Mr Caldwell] all these chances because this is why he’s still doing this shit. Saturday night should have woke him up but still doesn’t listen! I’m tired because 90% of the time I’m angry or upset and crying not enjoying anything that’s happening in my life, when it should be the other way around. I’m feeling so hurt and lost in life I need to make big changes otherwise I’m going to go down a dark path which I don’t know where that will lead me.
The paternal grandmother, well aware of the Father’s drug issues, responded sympathetically.[4] She bought the Father some products to help him quit.
The parties subsequently reconciled and in August 2017 they moved into the paternal grandparents’ rental home at Town C. They purchased baby items together; the Father and his parents agreed to pay half of the costs for the baby cot (some $650). The Father told the Mother he was going to work when in truth he was secretly meeting up with her brother to smoke cannabis. When the Mother found out, the parents broke up again and in September 2017 the Mother moved back to the maternal grandfather’s home at Town L.
The Father was diagnosed with depression soon after, and placed onto a mental health care plan. He was still struggling to get off drugs and, in November 2017, he stole $950 in cash from a tin which the maternal grandfather kept in his house. When the money went missing, the Mother suspected that the Father was the culprit, though he initially denied it. He later confessed that he had stolen it as he owed money to a drug dealer. The Mother was mortified.
The paternal grandparents were overseas at the time and upon their return they attended the maternal grandfather’s home to repay the money. The maternal grandfather was away at the time but the Mother was home together with her stepmother and brother. An unpleasant scene ensued as the paternal family said they were only repaying some of the money because, given the parents’ separation, they were deducting their half share of the cot money. Emotions were running high all round and the Mother verbally abused the paternal grandparents and said she would be throwing away baby clothing that the Father had bought for the baby. The paternal grandmother and/or the Father’s sister also suggested to the Mother that she was bipolar. None of this exchange was helpful but it was a two-way street.
Things did improve somewhat. In late November 2017, the Father underwent drug and alcohol rehabilitation at AD Hospital. In the leadup to X’s birth, both parents tried to improve their relationship for the baby’s sake.
X’s earliest days
When X was born in 2017, the Mother was living with the maternal grandfather. There was some sort of reconciliation between the parents at this time and on New Year’s Eve they (and other paternal family members) attended a party together. They stayed at the paternal grandparents’ home that night; the Mother went home early.
The next day the parents had another significant argument. The Mother was tired and wanted to go back to Town L but the Father had taken her car keys and would not let her go. At some stage the paternal grandfather went to cuddle X and the Mother, already annoyed, voiced an objection. She grabbed X and tried to leave but the Father was blocking the door. He tried to grab the Mother’s wallet and iPhone and the Mother pushed past him, scratching his face as she did so. At the suggestion of the paternal grandparents, a photograph was taken of the scratch.
The Father then drove the Mother back to the maternal grandfather’s home as requested. They continued their argument in the car, during which the Father was abusing the Mother about leaving the paternal home and she retaliated by grabbing his sunglasses and breaking them. I accept her evidence that the Father in turn knocked her sunglasses off her face, breaking them as well as throwing her iPhone and smashing the screen. In short, it was a volatile situation in which each of the parents perpetrated family violence against the other.
The parents separated a week later on 8 January 2018. They met at Suburb AE so the Father could see X and the Mother told the Father she wanted to end the relationship. Later that day, the Father went to Police to complain about the Mother assaulting him on 1 January 2018 (scratching his face) as well as breaking his sunglasses. He was not fearful of the Mother, nor was he genuinely concerned about her actions. His complaint was motivated by the possibility of family law proceedings as neither he, nor his family, trusted the Mother to promote their relationships with X.
Two days later on 10 January the parents again met at Suburb AE so that the Father could see X. During this meeting, the Father asked her whether she wanted “to do this the hard way or the easy way?” She maintained that she was still determined to leave their “toxic” relationship. At some stage the Police telephoned the Mother and invited her to attend the Town C Police Station for an interview in relation to the Father’s complaints. Shortly afterwards the Mother wanted to leave with X but the Father refused to hand her back. Police attended and negotiated X’s return to her.
Later that day the Mother was arrested and charged with Assault Occasioning Bodily Harm (“AOBH”) and Malicious Damage in relation to the events of 1 January. They also took out an Apprehended Violence Order (“AVO”) to protect the Father from the Mother. The Mother did not herself make any complaint about the Father having broken her sunglasses and her iPhone screen.
While I do not minimise the seriousness of family violence, in this case it was mutual and situational. The parents’ emotions were running high and they were navigating a separation in the context of having a young baby. I accept the ICL’s submission that the Father’s decision to complain to Police was unhelpful.
Mother facilitates Father (and paternal family) spending time with X
The Mother wanted to facilitate visits between the Father and X but, in light of the Father’s reluctance to give her back on 10 January, and the recent AVO made against her, the Mother wanted to be cautious and therefore she arranged for the Father to spend time with X in a public place. The visits resumed on 22 January and there were 4 visits over the next fortnight. Various paternal family members also attended. The Mother also invited the Father to attend X’s immunisation, which he did.
The Father completed the “Building Connections” course through Interrelate. But while he was seemingly doing what he could to improve the co-parenting arrangements, he had unfortunately reverted back to methamphetamine use - claiming he did so because he was “lost and upset” about his limited time with X.
It is true that the visits were relatively brief; the Father and paternal family criticize the Mother for that. But given X’s age and the Father’s resumption of methamphetamine use, such criticism rings hollow.
By agreement, the Father started spending unsupervised time with X in February and March. On 8 March 2018 the Mother appeared in the Local Court where her AOBH charge was dismissed. She pleaded guilty to Malicious Damage and was placed on a 12-month bond.[5] A final AVO was made against her, also for a period of 12 months.
An unfortunate altercation occurred between the parties on 25 March 2018. On that day the Mother had made arrangements for X to go with the Father while she went out with friends. In the early evening the Mother rang him, asking for him to return X earlier than he had expected. He complied, somewhat unhappily. He says that when he arrived at the Mother’s home, she was intoxicated and he told her she was not in a fit state to look after X. The Mother denied it and asked the Father to “call the Police and have them come round to drug and alcohol test me”. I am satisfied that the Mother had consumed some alcohol but do not consider that she was as intoxicated as the Father suggests or that she was unable to care for X. There was an element of opportunism about his actions; he had not wanted to bring her back at that time anyway.
Despite the Mother’s objection, the Father took X away with him. They exchanged angry words, with him saying he was X’s “Father” and not a mere babysitter, and her telling him that a babysitter was all he was and that she was going to stop him seeing X from then on, and go back to supervised visits.
The Mother contacted the paternal grandmother who was unsympathetic, emphasising the Father’s right to have X (who was 3 months old at the time). The Mother called Police who said they could not assist unless X was in an unsafe environment. The next day, the Mother attended the Family Court at Newcastle, speaking to a duty solicitor who negotiated X’s return.
After this event, the Mother insisted on returning to supervised visits. Though the Father (and his family) were critical of her decision, the Father properly conceded in the witness box that he could understand why she did so given his decision to hold X over and also his earlier reluctance to give her back on 10 January. (He was also still using methamphetamines).
The Mother had her brother (or others) attend visits with her for a time. She arranged visits in public places and various paternal family members also attended. The situation was volatile. On 8 April 2018, the Mother (and her friend) criticised the Father for not changing X’s nappy during the visit, the paternal grandmother leapt to his defence and the Mother then responded angrily to her. The Mother and paternal grandmother then exchanged heated words with the Mother asking the paternal grandmother “What kind of mother are you?” and the paternal grandmother responding that “At least I’ve always been able to see both of my parents, what kind of mother are you trying to keep X away from his father?” The Mother told her that that X was her child; the paternal grandmother said she was her grandchild (or words to that effect). Notably, the Father adopted a passive role throughout the argument.
For a short period thereafter, the Mother blocked the paternal grandmother’s phone number. She soon un-blocked it again and on the June 2018 long weekend initiated communication with the paternal grandmother, telling her that she wanted to try to work things out with the Father and establish a more normal co-parenting relationship.
The paternal grandmother in turn contacted the Father and she deposes in her affidavit that “I observed that Mr Caldwell, who had been using illicit substances being methamphetamine, stopped using methamphetamine”. She does not however mention the events of 20 July 2018.[6]
On 20 July 2018 the Mother had brought X to the paternal grandparents’ home for a visit. The Father arrived a little later, where he “passed out” on the lounge. The paternal grandparents called an Ambulance for him and he was taken to the AF Hospital. There he admitted that he had been on a “bender” having taken methamphetamine that very morning. He also told doctors that he had taken “Xanax”. The hospital notes record that the paternal grandparents pushed him to undertake drug and alcohol counselling but that he was unwilling.
I accept the Father’s evidence that the events of 20 July 2018 frightened him; they were a “wakeup call”. I accept his evidence that after this event he stopped using methamphetamine “cold turkey”.
The parents again tried to reconcile their relationship not long after. The Mother tried to assist him to stay “clean”.
In a state of intoxication (and perhaps drug withdrawal?), the Father acted violently on the evening of 18 August 2018. He was behaving in a threatening way towards some people, and when a man stepped in to intervene the Father punched him once in the left side of the chin. The victim fell to the ground, hit his head on the pavement and briefly lost consciousness.
In the meantime the paternal grandfather had been contacted; he took the Father home. Fortunately for all, the victim recovered. His injuries could have been much worse.
Police conducted investigations, including speaking to the Father’s sister who had been at the scene. Notably, neither she nor the paternal grandfather mentioned the event in their affidavits. The Father later pleaded guilty to an offence of AOBH and was placed on a 12-month community corrections order.
Final separation; liberal time arrangements implemented & Father moves to Sydney for work
Around November 2018 the parents separated for the last time. However, their co-parenting relationship had improved and the Father was able to spend alternate weekends with X from Friday to Sunday.
In 2019 the Father moved to Sydney for work, returning to the Town C area on weekends. He was still using cannabis, as evidenced by his March 2019 conviction for possession. (He was fined $300).
On 29 April 2019, the Mother declined to allow the Father to take X to the paternal great-grandmother’s funeral - one of her so-called “lowest acts” in the opinion of the paternal grandfather. Her decision was not unreasonable given X’s age.
In September 2019, the Mother commenced a relationship with Mr M. She told the Father about their relationship fairly early on. There followed a period of relative calm and goodwill between the Mother and the paternal family. The Mother was happy in her life and she began to regularly call upon the paternal grandmother to assist her to look after X, predominantly on weekends but sometimes during as well. This included overnight time. The Father was not always present.
The Mother also invited the paternal grandmother to attend X’s doctor appointments, which she did. Other paternal family members also assisted, although the paternal grandmother played the largest support role.
In December 2019 the Mother formally introduced Mr M to the paternal grandparents. That same month, the Mother took X out to Town B for the first time so she could meet him and the Father quit cannabis “cold turkey”.
2020
In early 2020 the Mother took up part-time work as an administration assistant. She asked the paternal grandmother if the paternal family could assist her by looking after X as needed. They happily agreed.
By September 2020 the Father had returned to live in the Town C area. Initially he lived with his sister Ms Q and her partner. He obtained his current job as a tradesman and the Mother facilitated X spending time with him (and the paternal family) from Thursday night to Sunday in week 1, and from Wednesday night to Thursday in week 2. The arrangements worked smoothly.
In the background however, the Mother was struggling. Money was tight. Due to his income, the Father paid only modest child support. Part of the reason that the Mother was inclined to provide extra time to the paternal family was because she simply couldn’t afford not to go to work. For example, if X was unwell and could not attend day-care, the Mother would enlist the paternal family’s help to care for her.
In the meantime the Mother’s relationship with Mr M had continued to grow and the tyranny of distance was real. She had talked to Mr M about moving to Town B, at least temporarily. They had also discussed the possibility of Mr M moving to Town L. Their future living arrangements were somewhat “up in the air”.
Mother unsuccessfully tries to relocate
At a handover on 7 March 2021, the Mother tried to bring the relocation question “to a head”. She told the Father that she had news for him and that they were moving away to Town B after Easter. Somewhat shocked, the Father did not respond at that stage. He did however speak to paternal grandmother, who strongly told him not to agree to it.
The Mother followed up with a text to the Father at 4.30pm that day, suggesting that the move to Town B would be temporary (some 6 - 12 months) and that she was happy to leave X with the Father for one week in every four, with handovers at Town E. The Father asked for more time to respond. When he did, his initial request was that she re-think the move. He also referenced some earlier discussions wherein it had been contemplated that Mr M might relocate to the Region D area instead.
The Mother followed with more texts, inviting him to agree to the move. The Father said that he needed to think carefully, to talk to his Mother, and not “mess anything up”. He later proposed that X live with each of the parties for 2 weeks at a time. The Mother disagreed.
On 11 March 2021, the Mother telephoned the Father and proposed that she would bring X back to Town C at her expense for 4 nights per month. The Father disagreed, suggesting that the Mother was being selfish by “letting another guy pretty much take my daughter away from me”.
On 18 March 2021, the Mother sent the Father a polite but firm letter which began:
I am writing this letter to let you know that in order to maintain and develop my relationship with [Mr M], I will be relocating with our daughter [X] from [Town L] NSW to [Town B] NSW from about 12 April 2021 to April 2022.
Our plan is to relocate back closer to this area in 2022 and buy a home.
As you are aware, [Mr M] and I have been doing long distance relationship since September 2019. [Town B] is where [Mr M] lives and works a 7/7 roster plus overtime. [Mr M] and I also plan to try have a baby this year and as I am living with my father that wouldn’t be practical.
It is important to me that [X] continues to maintain her relationship with you as her father while we are at [Town B].
The letter went on to propose that the Father spend 4 nights per month with X at Town C as well as having regular FaceTime communication four nights per week, and time on special occasions. [7]
The Father replied by email the same day:
I’ve had some time to think over the letter you sent me about relocating and I don’t give consent for you to move [X] away as it’s not fair on her or myself and the loving relationship we have been building together I hope you understand where I’m coming from being her father. [8]
On 23 March 2021, the Mother sent the Father another polite but firm letter which stated that on 12 April 2021 she and X were relocating to Town B on a temporary basis. She reiterated her request that:
If you would please reread my letter dated 18 March 2021 and send me your proposal if you would like to add/or change anything we can both communicate on a regular basis to come to an agreement before we relocate on 12 April 2021.[9]
The parents were at an impasse.
These proceedings
On 25 March 2021 the Father filed an Initiating Application, seeking to restrain the relocation. He sought equal shared parental responsibility, a continuation of the 4 nights per fortnight arrangement and time with X during holidays and special days.
On 31 March 2021, the parents consented to interim orders restraining the relocation. An order was made for equal shared parental responsibility, for X to live with the Mother and to continue to spend time with the Father for 4 nights per fortnight - being from 3pm Thursday until 9am Monday in alternate weeks - together with time on special days. A Child Dispute Conference was also ordered.
Around this time, X regressed to wetting her pants. She also had a significant nightmare one night with the Father. In my view she was “picking up” on the tense co-parenting situation.
In May 2021, the Father commenced a relationship with Ms G, although at that stage he still remained living at his sister’s home. The same month he was convicted of driving with a suspended licence, and drink driving, resulting in a licence disqualification for 3 months.
X’s “disclosure” to the Mother
On the evening of Sunday 6 June 2021, the Mother was trying to settle X to sleep and she told her to roll over so she could rub X’s back. X then rubbed her own vagina with her hand and told the Mother to rub her there instead. The Mother asked “Who does that to you?” to which X responded “W. No my dad.” The Mother asked X where this occurred and she said that it happened in bed at the Father’s house. The Mother’s stepmother then came into the room and the Mother told her what X had said. X kept rubbing her vagina. Shocked and becoming upset, the Mother asked X “Does your dad tell you not to tell anybody?” to which the child responded affirmatively.
In my view, the Mother had very quickly become alarmed from the moment X rubbed her own vagina. She automatically assumed something sinister rather than something innocent. So much is obvious from her patently leading - and no doubt anxious - questions. In the circumstances, X’s responses were not reliable. They were internally inconsistent as she vacillated between “accusing” the Father and W.
The next morning the Mother and her stepmother again asked X about what she had said and she duly repeated it. The Mother then contacted Town AG Police Station. A Constable advised her to suspend X’s time with the Father pending their investigation, telling the Mother to “just make up a reason as to why X is unable to go”. She did as suggested.
Mr Lloyd suggested to the Mother that she had made up the “disclosure” in order to advance her relocation case. She denied it and I accept her denial. X did say these things to her and the Mother was acting genuinely in going to Police.
On 21 June 2021, the Child Dispute Conference took place. By that stage the Father had not seen X for some 3 weeks. He was understandably concerned and upset. The Mother alluded to X having said something concerning to her about the Father, which was being investigated. The Mother was pressing to relocate with X to Town B to continue her relationship with Mr M and to start a family with him and still proposing to come back to Town C once per month, subject to the outcome of the investigations that were taking place. The Mother told CCE Ms S that Mr M had the capacity to move to the City AH area if necessary but that she would prefer to move to Town B.
The Father admitted his previous drug use and said that he had no concerns about X’s general development, health and wellbeing. At the hearing the Father attempted to “walk back” that concession, by suggesting that he was simply “going along with” whatever was put to him that day given his difficult position but I reject that.
It is true that the Mother spent significant time at Town B while the investigations were ongoing. Given her circumstances and the advice she had received from Police it is difficult to be overly critical of her for this.
The matter came back on before Registrar AJ on 29 June 2021 when an ICL was appointed and the matter set down for interim hearing on a date to be advised. The ongoing investigation was noted.
In July 2021, the Mother discovered that she had fallen pregnant to Mr M. At the same time, with all of the uncertainty in his life the Father understandably found himself at a low ebb. He was diagnosed with anxiety and depression and placed onto a mental health care plan.
Police did not interview the Father and at some stage the investigation was effectively handed over to the NSW Department of Communities & Justice (“DCJ”). On 9 August 2021 a DCJ caseworker telephoned the Father and interviewed him in relation X’s “disclosures”. The Father answered questions openly and honestly; the matter was unsubstantiated.
The matter came back before Registrar AJ on 12 August 2021 when the Court was advised that the DCJ investigation was complete and that no further action was going to be taken. On 17 August 2021 the Father’s lawyers wrote to the Mother’s lawyers pointing out that the DCJ investigation was closed and calling upon the Mother to resume the Father’s time under threat of a contravention application.[10] The Mother agreed to reinstate the Father’s time effective from Thursday 26 August.
On 20 August the paternal grandmother texted the Mother to ask if she and the paternal grandfather could FaceTime X that morning. The Mother responded that she could FaceTime X when she was in her Father’s care.
At the end of the Father’s first visit on Monday 30 August 2021, an unpleasant altercation occurred at changeover when the paternal grandmother returned X to the Mother. X was reluctant to go back home and she became upset. Given that X had not seen the Father or the paternal family for about 3 months, this was understandable. Moreover, there was significant tension in the air. The Mother came over to the paternal grandmother’s car, defensively asking X “What have they been putting in your head baby girl?” It was an inflammatory and unhelpful thing to say, and the paternal grandmother quickly rebutted it. She in turn blamed the Mother – saying that because the Mother had previously stopped their visits, X was probably scared about not being able to see the paternal family again. The paternal grandmother also said that X was scared of “Mr AK” (which was X’s name for the Mother’s brother Mr AK). The Mother told the paternal grandmother that this was “bullshit” and that she was a “fucking cunt” and the paternal grandmother then chided the Mother about her language in front of X, telling the Mother that she was “a piece of work”.
The Mother then grabbed X and took her. The paternal grandmother suggests that the Mother shook X violently but I do not accept this. Nor do I accept her allegation that the Mother told X that she needed to see a psychiatrist. But on any view, it was a highly emotional and unpleasant scene to which X should not have been exposed and the Mother appears to have been the main instigator.
The paternal grandmother was quite emotional after the event; she called the Father and told him what had happened. After clearing it with the Father, she then decided to make a complaint to DCJ about the Mother’s actions. The complaint was made while emotions were still high and it is regrettable that cooler heads did not prevail. I add here that the paternal grandmother, the Father and the wider paternal family all believed that X’s earlier “disclosure” was no more than an invention by the Mother and that the child had never said anything at all. In that sense the paternal grandmother had a motive to complain to DCJ about the Mother. But her doing so was excessive, unnecessary and unhelpful.
On 1 September an interim hearing date was allocated for later that month. The very next day the parties consented to the interim hearing being vacated and instead a Child Impact Report was ordered, with a request that it address relocation issues. The Court ordered that the matter be listed for a priority final hearing as soon as possible in 2022.
On 10 September 2021 the Father filed an Amended Initiating Application seeking week-about time.
On 10 November 2021 the Child Impact Report was prepared. It observed that the parents were able to cooperate and that there did not appear to be any risk factors. Interestingly, the Father suggested at the hearing that there were some risk issues and some family violence issues but I reject this.
On 17 November 2021, the matter was set down for final hearing in June 2022. Shortly afterwards, Mr M negotiated the purchase of his home at Town B.
X was by now being exposed to tension between the two households, and was likely overhearing or being told things that upset her. On 20 December 2021 she punched the Mother in the stomach. Mr M asked her if somebody had asked her to do this - and she said the Father had. X knew she was being naughty, the question was a leading one and I do not accept that the Father had said this to X. However, X had likely overheard the Father or someone else in his household make a negative remark about the Mother’s pregnancy and may have been acting out. The same observation applies in relation to X’s statement to the Mother in January 2022 that “Dad said I’m going to be a cranky big sister and not help my little sister” [being a reference to baby N, then unborn].
X overheard or was told things in the Mother’s home too. In late February 2022, X told Ms G that she didn’t have to listen to her as she only had “one mum and one sister who was not born yet”.
In March 2022 the Father and Ms G moved in together; J purchased matching “best friend” necklaces for herself and X. They had become quite close.
On 16 March 2022 the parents started attending speech pathology for X as she had some developmental language delays. Her GP had assessed that she may have ADHD and she was on a waiting list for further assessment at Region AL Primary Care in City AH.
On 18 March 2022 the Father filed an Application in a Case seeking that a full Family Report be prepared for the upcoming hearing. His Application was dismissed.
On 27 May 2022 the Father and Ms G were engaged. They plan to marry in 2023 and, regardless of the outcome of this hearing, X’s participation in the wedding is agreed. In 2022 Ms G discovered that she is pregnant.
the law:
These parenting proceedings are conducted pursuant to the provisions of Part VII of the Family Law Act 1975 (“the Act”).
The objects and principles underlying Part VII of the Act are set out in s 60B.
Section 60CA and s 65AA of the Act provide that, when making a parenting order, the best interests of the child or children concerned are the paramount consideration. Section 60CC goes on to prescribe the mandatory “best interests” considerations to which the Court is obliged to have regard.
Relevantly, section 60CC provides 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.
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(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 extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(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); and
(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)if a family violence order applies, or has applied, to the child or a member of the child’s family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(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.
“Parental responsibility” is defined in section 61B of the Act as “all the duties, powers, responsibilities and authority which by law parents have in relation to children.” Section 61DA(1) of the Act creates a statutory presumption that, when making a parenting order, it would be in the children's best interests for the parents to be allocated equal shared parental responsibility. The presumption can be rebutted by evidence that the making of an order would not in fact be in the child’s best interests: s 61DA(3). Moreover, s 61DA(2) provides that the presumption is not to be applied at all in circumstances where the Court has reason to believe that a parent has engaged in either “abuse” of the child (as defined in s 4 of the Act) or “family violence” (as defined in s 4AB of the Act).
The making of an order for equal shared parental responsibility triggers the statutory pathway prescribed in s 65DAA of the Act, namely:
·subsection (1) requires the Court to first consider whether the child spending equal time with the parents would be in the child’s best interests and “reasonably practicable”. If the answer to both questions is “yes” then the Court must consider making an equal time order;
·if the Court does not make an equal time order, subsection (2) requires the Court to next consider whether the child spending “substantial and significant time” with the parents would be in the child’s best interests and “reasonably practicable.” If it is, then the Court must consider making such an order. Subsection (3) inclusively defines “substantial and significant time” as time with the child that falls on weekends and holidays, time that does not fall on weekends and holidays, time which enables the parent to be involved in the child’s daily routine and time which enables the parent and the child to be involved in mutually significant occasions and events;
·Subsection (5) defines “reasonable practicability” and requires the Court to have regard to: how far apart the parents live from each other; their current and future capacity to implement an equal time or substantial and significant time arrangement; their current and future capacity to communicate and to resolve difficulties implementing such an arrangement; the impact that such an arrangement would have on the child; and a catch-all, namely “such other matters as the Court considers relevant.”
In MRR & GR (2010) FLC 93-244, the High Court of Australia held that “reasonable practicability” is a jurisdictional requirement for the making of an order for equal time [s 65DAA(1)] or for substantial and significant time [s 65DAA(2)]. The Court must consider the reality of the situation facing the parents and the child; a practical feasibility assessment is required.
Relocation cases pose particular difficulties for the Court because usually both parents have sound and arguable reasons for either seeking or opposing the relocation. And in addition to the best interests considerations in s 60CC, the Court must also take into consideration the parents’ legitimate right to freedom of movement. Parents separate and their lives continue. Sometimes in order to live their best life, and to be the “happiest” and best parent they can be, a parent needs to move to a different location.
In Adamson & Adamson (2014) FLC 93-622, the Full Court observed that the right of parents to live and work where they choose should only defer to the paramount consideration of a child's best interests where those interests would be so adversely affected as to justify such interference. Even then, the interference is legitimate only to the extent necessary to avoid such adverse effects. The Court must respect each parent's fundamental right to exercise their respective rights to choose where they want to live and work, consistent with the child's best interests.
In Zahawi & Rayne [2016] FamCAFC 90, a differently constituted Full Court observed that all applications for parenting orders involve a situation that, axiomatically, is not in the children's best interests. What is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. Their Honours specifically referred to the observations of Gummow and Callinan JJ in U & U [2002] 211 CLR 232 at paragraph 92 of their Honours’ joint judgment:
The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents. Obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.
The Full Court went on to observe that, by reason of the proposed geographical separation of parents from their children, relocation cases often raised issues that were significantly more acute for both parents.
In U & U (supra), the High Court held that the Court is not strictly bound by the competing parenting proposals of the parties. Provided the parties are accorded procedural fairness, the Court may craft different orders if necessary to meet the best interests of the children.
applying the statutory pathway:
The parents agree that, whatever orders are made, there should be an order for equal shared parental responsibility. The ICL also agrees.
Notwithstanding the earlier family violence between the parents and some lingering tension and trust issues (particularly from the Father and his family towards the Mother), I believe that it would be in X’s best interest to make an order for equal shared parental responsibility. Put shortly, I consider that the parents could make it work effectively. [11]
I therefore propose to make an order for equal shared parental responsibility. Section 65DAA of the Act is therefore engaged. When weighing up the competing proposals, the first option I am required to consider is making an order for equal time in the local area (the Father’s proposal). In order to arrive at an outcome which is in X’s best interests, I will therefore weigh the advantages and disadvantages of an equal time order against the advantages and disadvantages of the proposed relocation.
BEST INTERESTS FINDINGS:
Many of the “best interests” considerations are overlapping. I will try to avoid unnecessary repetition in what follows.
PRIMARY CONSIDERATIONS
Section 60CC(2)(a):
The “meaningful” relationship between parent and child which is referred to in s 60CC(2)(a) refers to a relationship which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one: Mazorski v Albright (2007) 37 Fam LR 518 per Brown J.
Both parents presently have a meaningful relationship with X. An order for equal time will enable the Father to have the most meaningful relationship with X as such an order will enable the Father to be maximally involved in her schooling, her extra-curricular activities, her social occasions such as birthday parties etc, and her day-to-day life in general.
If X relocates, the Father’s opportunity for day-to-day interaction with her will effectively be lost. He submits that there is no substitute for that regular “physical” contact they presently enjoy; that even the regular electronic communication proposed by the Mother will be no substitute. There is some force in those submissions, particularly given X’s age.
I accept that the meaningfulness of the Father/daughter relationship will diminish in the event of relocation. But will the relationship between X and the Father still be meaningful as contemplated by s 60CC(2)(a)?
Given the geographical issues, CCE Ms S agreed that blocks of time (as per the Mother’s proposal) were the only arrangement that was going to be reasonable and practical. But in her view, such blocks of time, augmented by regular FaceTime, would still allow X to have a meaningful relationship with the Father. [12] I accept her evidence, particularly given that their relationship is already close, loving and well-established.
Section 60CC(2)(b) & (2A):
In my assessment, X is not at any relevant risk of being exposed to future abuse, neglect or family violence in the household of either parent.
ADDITIONAL CONSIDERATIONS
Section 60CC(3)(a):
X is too young to understand the issues at stake for her in this case; at this stage she is simply too young to express any view.
Section 60CC(3)(b):
X has loving and established relationships with both her parents; the Mother has always been her primary carer and seeks to continue in that role – albeit from a significant geographical distance.
X has well-established relationships with numerous other family members. On the maternal side, she lives with and adores her baby (half) sister N; she has developed a healthy “stepdaughter” relationship with Mr M. She has a good relationship with the maternal grandfather, the maternal step-grandmother and the Mother’s brother. She has developing relationships with the extended maternal family (including the Mother’s aunt and uncle at Town AB) and with Mr M’s extended family (including his sister at Town AB).
On the paternal side, X has developed a healthy “stepdaughter” relationship with Ms G, and sibling-like relationships with her children – particularly J. No doubt X is also eagerly anticipating the arrival of her baby (half) sibling next year.
X has also had a close involvement with the paternal grandparents throughout her life, particularly the paternal grandmother with whom she shares an especially close bond. She also has an established relationship with the Father’s sister Ms Q, her partner and the children in their household. X also has relationships with the maternal great-grandparents and with some aunts and uncles, numerous cousins, other extended family members and friends in the area.
The paternal family have regular dinners and get-togethers and it is obvious that X is a much-valued member of their family.
X no doubt also has friends at the daycare centre she attends for 2 days per week.
Section 60CC(3)(c):
Each of the parents have taken the opportunity to participate in X’s life, and in decision-making for her.
Section 60CC(3)(ca):
The Father pays child support as assessed by the Child Support Agency, but historically such amounts have been quite modest. In FY 2019 he paid a total of $851; in FY 2020 he paid a total of $1,208 and in FY 2021 he paid a total of $853. In more recent times he has been assessed at $243 per month which is a more realistic cost-sharing - but even so it only equates to about $8 per day. In addition, I accept that the Father has shared in some of X’s medical costs over the years, including speech therapy expenses. He also buys her clothing and other items from time to time.
The Father’s assessed child support reflects his income. It is evident that throughout X’s life the Mother has had to bear the brunt of her day-to-day living expenses. For example, the Mother pays X’s daycare fees.
Section 60CC(3)(d):
An equal time order will not give rise to any practical difficulties and expenses in terms of facilitating X’s relationship with the Father.
Significant practical difficulties and expenses do however arise in the event that X relocates to Town B.
The geographical distances involved are significant. The Mother’s proposal for handovers at Town E is genuine and a gesture of “goodwill” on her part; she will do the lion’s share of the driving. She should be given credit for this - but while manageable, handovers will not necessarily always be easy. Mr M will assist in looking after N if he is available; his mother will likewise assist if she is available. But there may be occasions when neither of them are available in which case N will have to stay with Mr M’s sister at Town AB, or travel the whole way in the car – a long trip for such a young child.
The Mother will be able to fund the travel costs, particularly given the limited number of trips per year and her own work prospects in Town B (discussed later). Moreover, Mr M will assist her with the costs if necessary. He receives a total income of $172,871 per annum (including superannuation of $19,887). He will be in a much better position to financially support the Mother, X and N if they all live together at Town B.
But even with handovers at Town E, the Father faces some travel issues. To begin with, he does not own a car. He would need to borrow Ms G’s car, or the paternal grandparents’ car - but I am confident that they would make their vehicles available as needed. The Father and Ms G have already talked about the need to upsize her car when their baby arrives; their plan is to swap cars with the paternal grandparents who have a 7-seater vehicle.
The Father, Ms G and the paternal grandmother all emphasised just how “difficult” it would be to make a car available for handovers at Town E. In my view, all of them exaggerated the difficulties involved. The paternal family is a close one; they have played an active role in X’s life and I am confident that as a family they would “make it work”. The Father ultimately conceded as much in the witness box.
The Father’s financial circumstances are somewhat modest. His weekly income is $963 and his expenses are $955. He does not own any significant assets; to fund this litigation he borrowed approximately $30,000 from his family.
But the Father can afford the fuel costs to and from Town E. In the witness box he accepted that he and Ms G’s combined monthly household income after tax was $2,500 and their expenses were about $2,000. On any view this is a modest surplus but it should be more than sufficient to fund the petrol costs associated with Town E handovers. Ms G would support such expenditure; while she and the Father keep separate bank accounts, they do share in the rent and household bills and in my view they would regard the fuel costs as one of those bills.
Moreover, although the paternal family are not obliged to fund fuel costs, I have little doubt that they would do so if necessary. In the grand scheme, the costs are modest and manageable.
The Father’s work commitments, and those of Ms G, also give rise to some practical issues. By way of background, the Father starts work at 6am Monday to Friday, finishing at 2.30pm Mondays, Tuesdays, Thursdays and Fridays and 12 noon Wednesdays. He also works some Saturdays from 4.00am to 7.30am when needed. Ms G works from 9am to 5pm Monday to Friday, plus special occasions as needed (for example when there are functions at her employer).
Their difficulty is their apparent requirement to work during school holiday periods between October and March - the busiest time of year for the Employer H. The Father’s employment agreement with Employer H (exhibit 5) relevantly states that the Father is:
“not permitted to take annual leave in any calendar year from the first of October to the first of March. Any leave request submitted will be denied.”
(my emphasis)
The Father’s affidavit annexed a letter from Employer H which is somewhat different. According to the letter, employees may take leave during Christmas and will be given the public holidays off but all other requests for leave in the period from 1 October to 31 March will be denied; leave will only be approved “for reasonable grounds”. It seems that there is a little more flexibility on offer to employees than the employment agreement suggests, although the end date for the “restricted leave period” (my expression) may be 31 March rather than 1 March.
Moreover, the Father only has four (4) weeks’ annual leave entitlement per annum. Although he accepted that he can take unpaid leave if necessary, I accept his evidence that he “needs to be paid”.
The inescapable fact is that the Father cannot personally take up all of the holiday time with X that the Mother proposes (around 9 weeks per annum). He can however be available around his work hours and I am confident that he would do what he can to maximise his personal availability. In short, he would still have substantial availability to spend quality time with X. In his absence, the Father’s family would be significantly involved with X and I have no doubt she would enjoy that. Although J and K usually attend vacation care during holidays when Ms G is at work, I am sure that the family would make whatever arrangements they could so that they saw each other as much as possible. In the short term, there will be maximum flexibility on offer as Ms G is planning to take 4 – 6 months’ maternity leave after the baby is born.
Overall I am satisfied that the Mother’s proposed handover arrangements at Town E are going to be practical and workable.
In closing, I accept that the Father probably could not travel to Town B himself on any sort of regular basis. He has no family or social connections there and any visits would likely be rare, brief and for special occasions. His economic circumstances would not likely permit any sort of regular trips.
I also accept that if the Mother was visiting the maternal grandfather at Town L, she would facilitate time between X and the Father. No practical issues arise for either parent; the Mother would make travel arrangements that suited her.
Section 60CC(3)(f) & (i):
There is some overlap between these two considerations and so I will deal with them collectively.
Each parent has the capacity to parent X; the Mother has been her primary carer. Ms G, Mr M and various other maternal and paternal family members also have the capacity to assist with X’s parenting.
In terms of parental attitudes, it is clear that their interpersonal relationship has at times been volatile. Moreover, there is presently a lack of trust at present.
I have already observed the Father was unduly critical of the Mother. In his affidavit he deposed that:
I have always wanted to have a working co-parenting relationship with [Ms Prentiss] in relation to [X], however, in my opinion, [Ms Prentiss] is very self-oriented and spiteful and does not allow a working, co-parenting relationship between herself, myself and [X] to take place. [13]
This mendacious assessment is at odds with the evidence and is frankly somewhat troubling. Fundamentally, the Mother has been willing and able to facilitate a meaningful relationship between the Father and X. She has shown a commitment to maintaining that relationship, including by electronic means, and I accept her genuineness in terms of her proposals to foster the relationship into the future.
The Father’s negative attitude (and that of his close family) towards the Mother does not augur well for an equal time arrangement. I am also somewhat troubled about the Father’s “overreaction” to the events of 30 August 2021. In my view he was overly influenced by the paternal grandmother’s emotions; a complaint to DCJ was unnecessary and unhelpful.
Section 60CC(3)(g):
X is a young and very active girl.
She has some health issues that require ongoing management wherever she lives.
The Town C / Region D is well serviced by medical practitioners. The Region AL Hospital is a major hospital servicing the greater City AH region, including Region D and Town C. Various specialist medical practitioners and allied health practitioners also service the region.
At Town B, there is no major hospital. The nearest major hospital is at City AM, just over 3 hours’ drive away.
What then are X’s medical and allied health needs?
Born with a medical condition, X is somewhat bow-legged although her past use of splints at night time has improved this somewhat. At present there are no orthopaedic interventions being considered but there are orthopaedic surgeons available in City AH if required. No such service exists in Town B and the closest services would appear to be in City AM.
X is very active; she may potentially have ADHD and has been on a waiting list for assessment by Region AL Primary Health Care in City AH. There are paediatricians available in City AH but no paediatrician at Town B. A paediatrician does visit City AN, City AM and City AO so the Mother would have to drive to one of those locations to access such services. Again, some driving is involved.
X has regular speech therapy; her speech therapist is based in the City AH region. It will be somewhat more difficult for her to obtain speech therapy in Town B at least in the short term. There are however services available in Town AB, about 1 ¼ hours’ drive away, which the Mother can access. But it needs to be looked at in perspective; the Mother already drives ¾ of an hour each way to access X’s current speech therapist.
X is somewhat pigeon-toed and she wears larger-sized socks inside-out as she finds the seams annoying. I am unsure whether this is a sensory issue or a podiatrist issue but there is a podiatrist that visits Town B.
X presently attends daycare each Monday and Tuesday at the Mother’s expense. I accept the Mother’s evidence that there is a daycare centre at Town B and that she is presently unsure whether there are any available places for X; she may have to go onto a waiting list there if necessary.
Section 60CC(3)(j) & (k):
I have already addressed the past family violence in this case.
I do not regard family violence as a significant consideration here. The AVO protecting the Father from the Mother has long expired and was not contravened.
Section 60CC(3)(d) & s 60CC(3)(m):
These two considerations also intersect and are conveniently addressed together.
I begin by observing that either a week-about order, or a relocation order, will result in significant change to X’s circumstances.
There are advantages to X of a week-about arrangement in terms of maximising/optimising her opportunity for involvement in the Father’s life, and with the paternal family and the other members of the Father’s household.
But there are disadvantages too.
For the whole of X’s life, the Mother has been her primary carer. Moreover, the Father’s work commitments are such that he has limited availability to get X ready for school in the mornings, to drop her off or to collect her at the end of school. All of these things will require some adjustment for X and in my view she would find it challenging.
Moreover, X’s maternal home circumstances would be much less than ideal. In a practical sense, the Mother would be raising X (and N) as a “single parent”. This would put significant strain on the Mother and on her relationship with Mr M – because while they have managed the geographical distances so far, they have done so in the hope that it will only be temporary. To dash their hopes by effectively condemning them to continue a long-distance relationship – particularly with a baby – would have a decidedly negative impact on them both, most significantly the Mother.
It simply would not be feasible for the Mother to consistently stay at Town B during her “week off” from X given the sheer amount of travel involved. Nor would it be feasible for Mr M to travel to Town L for all of his rostered days off. The travel required to continue to foster and nurture their relationship would be burdensome to say the least. It would put pressure on their relationship which each are anxious to avoid – particularly given they now have N to consider as well.
In a practical sense the Mother would be “outnumbered” to a very large degree by the paternal family, whose attitude towards her has already been noted. With her own father being absent from Town L for work much of the time, and Mr M at Town B, the Mother’s local supports on a day-to-day level would be limited.
In my assessment, the Mother would be devastated by such an outcome: she does not even want to think about the possibility of finding herself “stuck” at Town L in some sort of chronic holding pattern. The Father accepted that her mental health may be adversely affected. The Mother has suffered from some past depression, having been briefly prescribed anti-depressants in 2016. She said in the witness box that she had not been depressed for a long time, but she was clearly somewhat volatile and struggling at different times during her relationship with the Father and I consider that the long-term impact on her of being unable to relocate to Town B would be deleterious to her emotional wellbeing and in turn would likely impact X to some extent. When I add into that mix the Mother’s need to take care of baby N, and the inevitable travel that would be involved to continue facilitating her relationship with Mr M, it would be very difficult for the Mother indeed and I consider that it would inevitably have a negative impact on her parenting, as well as generally exacerbating the “unpleasantness” that exists between the Mother and the paternal family at times.
The Mother is presently reliant upon the maternal grandfather providing her with a home to live in. She is not in paid employment; she is presently fully occupied in caring for N and X. She receives modest child support. In a practical sense the Mother gets by each week on Centrelink Parenting payments and Family Tax Benefits. But I accept her evidence that some good friends of hers who have a business at Town B have offered her a casual administration job in their business which will assist her to manage financially. Obviously such employment is attractive to her.
In my view, if a week-about arrangement was ordered, the Mother’s distress and sadness would be palpable and would ultimately have an adverse impact on her parenting of X. The ICL submitted that a happy primary carer makes for a happy child and, while a generic submission such as this needs to be considered cautiously, it holds some force in the present case.
Could Mr M move to the local area? The Father contends that he can, and that it is a realistic option which should be explored for X’s sake.
Like each of the parents and Ms G, Mr M cannot be compelled to move to live in a place he does not wish to. He has lived in Town B his whole life. Though separated, both of his parents still live there; he has aunts and uncles there as well as various close friends. His sister, Ms AP, lives at nearby Town AQ with her partner and daughter. (He also has an older brother at City AM though he does not see much of him).
In an employment sense, it superficially appears to be an attractive option for Mr M to move to Town L and perhaps work on a fly-in, fly-out basis at Town B. But there is no relevant allowance payable to Mr M for the costs involved, and there is no evidence as to flight availability or costs. Mr M did not see it as a feasible option and I agree.
Could Mr M look for work in the Region AL– perhaps in one of the numerous worksites? Again, in a superficial sense this appears attractive.
However, not all “labouring work” is the same. Mr M works in a workshop. Although Mr M has significant skills and qualifications in the labouring industry, including working as a leading hand, training other staff and being qualified to use explosives, he has no experience working in the heavy machinery industry at all. He says that employment is different. But even if he could obtain a similarly-paying job in primary industry, I accept his evidence that in that case he would have to “start at the bottom of the ladder again”.
To put his evidence into perspective, Mr M is now 28 years old. Having worked shifts in the heavy labouring industry and achieved various qualifications, he says he is on track to be promoted to heavy machinery operator at Town B and from there his next promotion pathway would be to a shift supervisor. This is the “ideal” outcome which he has been striving for – as it involves working “standard” hours from Monday to Friday. I accept Mr M’s evidence that heavy labouring work takes a physical toll on him and that he does not want to be doing shift work long-term as it is too physically taxing. He is confidently working on a trajectory which will take him away from shift work.
There is no specific evidence before me as to the availability of labouring work in the Region AL, or the pay that might be on offer. Indeed, although Mr M very much wants to live with the Mother, X and N, he was genuinely unable and unwilling to commit to moving to the Town L region in the future. He could only commit to “thinking very carefully” about his options. I consider that if it was a straightforward option for Mr M to move, then he would already have done so.
I add here that while Mr M is technically qualified as a tradesman (having obtained that qualification in 2015), he does not presently work in that field, does not enjoy it and he says, quite earnestly, that he does not consider that he is particularly good at it. It is not a feasible option for him to simply “take up the tools” (as it were) of his old apprenticeship in the Region D region. Even if such work was available to him (about which there is no evidence) it would seem likely that he would be paid significantly less income than in primary industry although again there is a dearth of evidence about this.
Mr M’s lack of enthusiasm about leaving his high-paying job at Town B is entirely reasonable in the circumstances, particularly where he and the Mother are a couple and where she (and N) will be needing his financial support.
How would N fare with living at Town B? This would involve a much bigger adjustment for her than a week-about order. There are obvious disadvantages, most particularly the loss of her regular interaction with the Father and the Paternal family (and I include J and K in that description). Regular electronic communication would be helpful and would be facilitated - but it is not a complete substitute for regular physical time. There would be a “loss” to X in that sense, which will be more acute once Ms G’s baby arrives in January next.
But the advantages to X are also palpable. She would maintain her Mother as a much-loved primary carer but in much better circumstances where the Mother is emotionally supported, and where they live in their own home as a family unit.
An interesting s 60CC(3)(m) consideration in this case is the Father’s own mental health and his past drug issues. Put shortly, he fears that he will himself be “devastated” if X relocates. Given his past drug issues, he and his family hold some concerns about the possibility of relapse.
It is true that the Father has shown a past vulnerability in this regard. However, he now has significant support structures in places, primarily his relationship with Ms G and her children, and the fact that he and Ms G are marrying soon and have a baby on the way. He is not nearly as vulnerable as he was when he was a younger father trying to navigate a difficult relationship and co-parenting issues with the Mother.
Section 60CC(3)(l):
In my assessment, both parents will comply with Court orders. But if anything, an equal time order will create more scope for arguments, conflict and potential litigation.
CONCLUSION AS TO X’S BEST INTERESTS:
In Godfrey & Sanders [2007] FamCA 102, Kay J (sitting as the Full Court) said that:
The legislation requires that there be a primary consideration given to the benefit of the child having a meaningful relationship with both of the child’s parents but does not purport to describe how that meaningful relationship is best promoted in the circumstances of any one case. Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.[14]
In what is a finely balanced case, where there are significant advantages and disadvantages to X associated with each of the parents’ primary proposals, I am of the view that ultimately X’s best interests would be better served by her having the opportunity to continue to live in the Mother’s primary care, together with Mr M, and her little sister N, in the comfort and security of their own home at Town B. This is the environment in which X will be best placed to thrive. Though not optimal, X’s relationship with the Father (and paternal family members) will remain meaningful.
Given that an equal time order is not in X’s best interests, s 65DAA(2) requires that the Court consider making an order for “substantial and significant time”. To be fair to the Mother, the geographical distances make such an order impractical in any event. That there is no easy solution is evident from the Father’s own “fallback” minute (exhibit 11).
reasonable practicability:
Though they will pose some challenges, the Mother’s proposed orders are reasonably practicable. I have discussed practicality issues earlier and will not repeat myself.
conclusion and orders:
For the reasons set out herein I propose to make the orders sought by the Mother and the ICL, which specifically include her being able to attend the Father’s wedding celebrations in 2023.
Given that the Father will have X for the second half of the coming Christmas holidays, she has the maximum opportunity to meet the new baby. Though not ideal, I see no issue in X missing her first few days of school if the baby does arrive late given the significance of this event.
The orders are otherwise self-explanatory.
I certify that the preceding two hundred and nine (209) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Betts. Associate:
Dated: 11 November 2022
[1] See exhibit 8
[2] At that time, Ms S’ formal title was “Family Consultant”
[3] See exhibit 8
[4] See annexure “A” to the Mother’s affidavit
[5] Exhibit 10
[6] Nor does the paternal grandfather
[7] The Mother’s letter is annexure “B” to the Father’s affidavit
[8] The Father’s email is annexure “G” to his affidavit
[9] The Mother’s letter is annexure “H” to the Father’s affidavit
[10] The letter is annexure “M” to the Father’s Affidavit
[11] The parents’ capacity to communicate is also apparent from paragraph 129 of the Mother’s affidavit
[12] Exhibit 2, paragraph 21
[13] Paragraph 37
[14] See paragraphs 33-36 of his Honour’s reasons for judgment.
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