Calpin & Leigh
[2023] FedCFamC1F 767
•6 September 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Calpin & Leigh [2023] FedCFamC1F 767
File number: MLC 9080 of 2020 Judgment of: BENNETT J Date of judgment: 6 September 2023 Catchwords: FAMILY LAW- PARENTING – where short relationship of two years with serious and persistent family violence for last eighteen months of the relationship – both parents engaged in family violence as perpetrators – impossible and unnecessary to make findings about who initiated family violence – both charged with criminal offences in relation to family violence – where parents separated when child was three months old – where there is no prospect of parents being able to co-parent for the benefit of the child.
FAMILY LAW- PARENTING – where both parents have mental health and personality challenges – where mother more curious about and compliant with treatment – where husband consumes alcohol excessively – where father has restricted supervised time with child and not sufficiently motivated to comply with orders for testing for use by him of illicit substances or alcohol at abuse level – where husband has paid paltry amount of child support.
FAMILY LAW- PARENTING – where mother seeks to relocate to Country B where her family of origin live – where mother claims that she will have support of her family – where family support for mother is largely untested but more extensive relationship between child and father is aspirational – where child’s relationships with grandparents on both sides curtailed for different reasons.
FAMILY LAW- PARENTING – where expert evidence supports relocation – where relocation permitted to occur within six months – where time spent to continue to be supervised but for extended periods – where father is to travel to Country B to spend time with child prior to mother being required to bring child back to Australia.
INTERNATIONAL TREATIES – where 1996 Hague Child Protection Convention has entered into force between Country B and Australia and enables recognition of parenting orders made in Australia in Country B by operation of law and registration for enforcement subject to application being made.
Legislation: Family Law Act 1975 (Cth) ss 4AB(1), 60CC, 67DA & 65DAA Division: Division 1 First Instance Number of paragraphs: 262 Date of hearing: 3-4, 8-11 and 14 November 2022 Place: Melbourne (via MS Teams) Counsel for the Applicant: Ms Mallett SC Solicitor for the Applicant: Teak Legal & Consulting Counsel for the Respondent: Mr Scriva Solicitor for the Respondent: Bramham Lawyers Counsel for the Independent Children’s Lawyer: Ms Bonney Solicitor for the Independent Children’s Lawyer: Dinning & Co
Table of Corrections 1 December 2023 On cover sheet, ‘14 November 2022’ has been inserted as a date of hearing ORDERS
MLC 9080 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CALPIN
Applicant
AND: MR LEIGH
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BENNETT J
DATE OF ORDER:
6 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.All previous Orders with respect to the child X born 2020 be discharged.
2.The mother have sole parental responsibility for major long-term issues for X subject, where practicable, to:
(a)the mother providing written notice to the father of any major issues concerning X, the proposed decision to be made and invite the father to respond to the proposal in writing within 7 days; and
(b)upon receiving a written response from the father the mother consider the response, make the final decision and advise the father in writing within 14 days of the decision and the reasons for that decision.
3.X live with the mother.
4.That the mother, Ms Calpin, of the child X born 2020 be permitted to apply for an Australian Passport to enable the child to leave Australia notwithstanding that the father of the child has not signed the passport application form and furthermore the said child be permitted to leave Australia.
5.That pursuant to Section 8(1)(b) of the Australian Passports Act IT IS REQUESTED, that the Department of Foreign Affairs and Trade forthwith do all acts and things to issue an Australian passport in the name of the said child.
6.The mother keep the father informed as soon as practicable in the event of any hospitalisation, significant health issues or illnesses suffered by X together with the relevant particulars of the treatment received by X including the medications prescribed for him.
7.The mother keep the father updated in relation to any specialist appointments concerning X which relate to his welfare and development.
8.The mother be permitted to relocate to Country B with X.
9.The mother provide the father and the independent children’s lawyer with 30 days’ notice in writing of the date she intends to leave Australia and the father have an opportunity to farewell X prior to that date AND IT IS NOTED THAT there is no order entitling the father or any member of the father’s family to farewell X at the airport on his departure from Australia.
10.The mother inform the father and the independent children’s lawyer of the arrival of herself and X in Country B within 24 hours of arrival.
11.The mother and father do all acts and things necessary to facilitate X’s attendance at a play therapist as nominated by the independent children’s lawyer and subject to their attendance being required or desirable.
Prior to the Mother’s Relocation
12.Prior to the mother relocating to Country B with X:
(a)the father spend fortnightly supervised time at such place as is agreed for up to three hours on each occasion with X on such days and at such times as can be accommodated by Ms C or such other supervisor as can be agreed;
(b)the father be permitted to have members of the paternal family attend his supervised visits with X prior to the mother and X relocating to Country B;
(c)on any occasion when the father can attend X’s extracurricular lesson the father be entitled to do so (provided he notifies the mother not less than 48 hours in advance);
(d)the father spend time with X for additional supervised visits for up to 3 hours (to include the paternal family) on two occasions prior to the mother relocating to Country B;
(e)the father communicate with X each week via FaceTime for up to 20 minutes with the father to instigate and the mother to facilitate such communication and the mother ensure that her electronic device is switched on, fully charged, and within range;
(f)the father spend time or communicate for any other time as agreed between the parties in writing; and
(g)there be liberty to apply in relation to more precise orders for the supervision of the father’s time with X prior to relocation.
Upon the mother’s relocation to Country B
13.Upon the mother relocating to Country B, the father communicate with X twice per week on FaceTime for up to 20 minutes on each occasion at times agreed by the parents with the father to instigate and the mother to facilitate such communication and the mother ensure that her electronic device is switched on, fully charged, and within range.
14.Each parent provide to the other their email addresses for the purpose of communicating in relation to X only, including travel arrangements.
15.The mother provide updates relating to X’s health, welfare and development to the father on the first of March, June, September and December in each year via email and, no less frequently provide current photographs of X to the father electronically as well as at least two on X’s birthday and at Christmas.
16.The father send 5 photographs of himself to the mother no more than twice per year and the mother place at least one photograph at a time in a frame to be placed in X’s bedroom.
17.The mother at all times keep the father informed, in writing, of X’s current residential address in Country B and shall give the father 7 days’ prior notice, in writing, of a forthcoming change in that address.
18.The parents notify each other of their residential address and any changes thereto not less than 7 days prior to such change.
The father’s spend time with X in Country B and Australia
19.Until X attains the age of 5 years, the father spend time with X in Country B up to 4 hours per day supervised by an agreed member of the maternal family (and failing agreement supervision to be undertaken by the maternal Aunt) or as otherwise agreed between the parties.
20.The father spend time with X in Australia in 2025 and each alternate year thereafter for a 14 day period up to 4 hours in each day, with such time as to be supervised by a paid supervisor to be agreed between the parties subject to the following:
(a)The father confirms to the mother in writing that he is able to secure time away from work to spend time with X;
(b)the father attend for hair collection at an Australian Workplace Drug Testing Service (“AWDTS”) Clinic or nominee (namely D Service) for hair follicle drug and alcohol testing purposes that complies with the terms as set out in paragraph 1 of the Order made on 27 August 2021 (and as amended on 28 February 2022) and provides the mother with the results of such test; and
(c)the father has provided the mother with the funds for her accommodation in Australia pursuant to paragraph 34 herein.
21.Upon X attaining the age of 5 years, the father shall spend time with X as follows:
(b)in Australia; for up to 8 hours per day on each day that the mother and X are in Australia (excluding their days of travel) for a period not less than 2 weeks;
(c)in Country B; for up to 8 hours per day during any time the father is present in Country B - ensuring that that time does not interfere with X’s education;
(d)where time is in Country B, it be supervised by an agreed member of the maternal family (and failing agreement supervision to be undertaken by the maternal Aunt) or as otherwise agreed between the parties;
(e)where time is in Australia, it be supervised by a paid supervisor to be agreed between the parties.
22.The father’s time with X, whether in Australia or Country B, is subject to the following conditions:-
(a)the father producing a certified result for a hair follicle drug and alcohol test not less than 60 days prior to each spend time period; and
(b)those results are not indicative of excessive consumption of alcohol or contain a positive reading for illicit substances.
23.Prior to the father spending time with X in Country B he provide the Mother with not less than 60 days’ notice in writing of his intended dates of travel.
24.The mother ensure there is an appropriate family member available to supervise the father’s time with X in Country B pursuant to paragraph 19 herein and in the event that one is not available she be responsible for the costs of a professional supervisor.
25.The mother accompany X to Australia at least once per alternate calendar year for not less than a period of 14 days beginning in 2025 subject to the father having complied with the provisions in paragraph 21 of this Order and the father having spent time with X in the previous year in Country B (unless the mother agrees otherwise).
26.The mother provide the father with no less than 60 days’ notice of her intention to travel to Australia and the father shall confirm his availability to spend time with X within 14 days of receiving this notice.
Other Parenting Related Orders
27.The mother do all acts and things necessary to enable the Proper Officer of X’s school to provide to both parents all information ordinarily provided to parents including but not limited to school notices, information, newsletters, school reports and school photographs.
28.The parents each engage with mental health supports as recommended by their health care provider. For this purpose, the father attend upon a general medical practitioner as soon as possible to obtain an urgent mental health plan for himself.
29.The parents, within 30 days of these Orders, enrol in a post separation co-parenting course and, upon completion, provide certificate of same to the other parent.
30.In the event that the mother wishes to travel overseas or outside Country B with X, the mother provide the father with at least 7 days’ notice of the intention to travel together with (if any) copies of return tickets for X and a detailed itinerary providing addresses and telephone numbers for accommodation in which X will be staying and for the avoidance of doubt sole parental responsibility for X entitles the mother to make decisions in relation to travel and passport applications and where X will live without the consent of the father.
Costs Associated with Travel
31.Each party bear their own cost of travel as the travelling party.
32.Each of the mother and the father pay one half share of the costs of air travel to Australia for X with the father to reimburse the mother upon provision of the booked and confirmed air ticket.
33.The father be responsible for the cost of his own accommodation when travelling to Country B.
34.The parties be and are hereby equally responsible for one half share of the costs of reasonable accommodation for the mother and X when the mother travels to Australia with such costs to be paid to the accommodation provider 30 days prior to the mother’s travel to Australia.
Injunctions
35.The father be restrained from consuming alcohol to a limit above 0.05 in the 24 hours prior to any time he is to spend with X or during any time he spends with X.
36.The father be restrained from consuming illicit substances for 24 hours prior to as well as during any time he spends with X.
37.Each of the parties their servants and/or agents be and are hereby restrained by injunction from:-
(a)using threatening, abusive or denigrating words or behaviours towards or in the presence of X or allowing any other person to do so;
(b)abusing, belittling or otherwise denigrating the other parent to or in the presence of X or allowing any other person to do so; and
(c)exposing X to family violence;
(d)from discussing and showing documents pertaining to these proceedings with or in the presence of X other than the outcomes as provided by these Orders prior to X attaining the age of 18 years.
38.The mother be and is hereby restrained by injunction from causing, permitting or suffering X to be left unattended with the maternal grandmother in the event that the maternal grandmother is affected by alcohol.
Registration of Orders in Country B
39.The mother do all such acts and things as is necessary to cause this Order to be registered and/or rendered enforceable in Country B and the father sign any such documents as are required by the mother to facilitate the registration of this Order in Country B.
40.The mother has leave to contact the Hague Registrar in the Melbourne Registry – email …@... – for any assistance or documentation required from this Court by the Country B courts to effect the registration of this Order in Country B.
41.In the event of non-compliance by the father with paragraph 39 of this Order, a Registrar or Deputy Registry of the Melbourne Registry of the Federal Circuit and Family Court of Australia is hereby appointed under section 106A of the Family Law Act 1975 to sign or execute any such documents to be signed by the father as are required for the registration of this Order in Country B upon lodgement of such document and the filing of an Affidavit of a solicitor on behalf of the requesting party as to the said neglect or refusal.
42.IT IS RESPECTFULLY REQUESTED THAT in the event of future dispute between the parties about the parenting arrangements for X which comes before the Country B District Court, the Country B District Court recognise and enforce this Order.
43.The mother be responsible for advising the father and the independent children’s lawyer once the Order has been registered in Country B within 7 days of registration.
Procedural Orders
44.The Independent Children’s Lawyer be and is hereby discharged within 30 days of these Orders unless a Notice of Appeal is filed AND IT IS REQUESTED THAT Victoria Legal Aid give favourable consideration to the continuation of funding for the independent children’s lawyer for 30 days.
45.Pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.
46.There be liberty to the parties to apply in relation to the implementation of these orders and to do so by contacting my Associate – …@... – with a letter of request that includes the reasons for the request and that is copied to the other party and to any independent children’s lawyer.
47.In the event that a party exercises his or her liberty to apply, the court consider making an order for the re-appointment of the independent children’s lawyer ex parte.
48.Otherwise, the Amended Application for Final Orders of the mother filed 26 September 2022 and the Amended Response of the father filed 14 October 2022 be and is hereby dismissed and the matter be removed from the list of cases awaiting determination in the docket of the Honourable Justice Bennett.
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 Calpin & Leigh has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BENNETT J:
INTRODUCTION
The two year relationship between the mother and father was mired in family violence and concluded with the parents separating in mid-2020. The applicant mother and the respondent father seek parenting orders about their only child X, who is 3 years old. As her primary position, the mother seeks sole parental responsibility for X and to relocate X to Country B with X to maintain his relationship with the father through arrangements for the father to spend time with X first in Country B and then in Australia. The father’s primary position is to oppose the relocation of X to Country B. He seeks equal shared parental responsibility and to progress from the limited and fully supervised time he currently spends with X to fortnightly overnight unsupervised time.
On 15 December 2020 an order was made requesting that Victoria Legal Aid appoint an independent children’s lawyer to represent X’s interests in this proceeding. Ms Lauren Dinning commenced to act in that capacity on 2 February 2021. An Independent Children’s Lawyer is appointed to act for children within the meaning of Division 10 of Part VII of the Family Law Act 1975 (Cth) (“the Act”). Her role is to form an independent view, based on available evidence, of what is in the child’s best interests and then act in these proceedings in what she believes to be the best interests of the child.[1] She is not a legal representative retained by the child and she is not bound by any instructions from the child (or any of them).[2] The role of the Independent Children’s Lawyer is to deal impartially with the parties, to ensure that any views expressed by the child is fully put before the Court, to analyse documentary, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the Court’s attention. The Independent Children’s Lawyer is also under a specific duty to take steps to minimise for the child the trauma associated with proceedings,[3] and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is possible and in the best interests of the child to do so.[4]
[1] Family Law Act 1975 (Cth) s 68LA(2).
[2]Family Law Act 1975 (Cth) s 68LA(4).
[3] Family Law Act 1975 (Cth) s 68LA(5)(d).
[4] Family Law Act 1975 (Cth) s 68LA(5)(e).
The final hearing proceeded over seven days on the courts’ MSTeams platform when the parties were in rural Victoria and were restricted in movement due to flooding. Ms Mallett of Senior Counsel appeared on behalf of the applicant mother, Mr Scriva of Counsel appeared on behalf of the respondent father and Ms Bonney of Counsel appeared on behalf of the Independent Children’s Lawyer.
Division 4 of Part XI of the Family Law Act 1975 (‘the Act”) provides that unrepresented parties will not be permitted to personally cross-examine another party if there are allegations of family violence and, as is the case here, either party has been charged with or convicted with an offence involving violence or threat of violence involving the other party: s 102NA(1)(c)(i) of the Act. Parties who are not permitted to personally cross examine another party may retain private legal representation or apply to the Commonwealth Family Violence and Cross‑Examination of Parties Scheme (“the Scheme”) to obtain legal representation. The Scheme is not means or merits tested but applicants may be required to contribute to the cost of their representation. Applications are made through the relevant State or Territory Legal Aid Commission. The father had s102NA representation for the hearing under the scheme.
The government department responsible for the protection of children, when a parent or carer is unable or unlikely to protect the child from harm, became involved with this family due to safety concerns for X in 2020 and 2021. Until February 2021, the government department responsible for child protection in Victoria was known as the Department of Health and Human Services (“DHHS”). On 1 February 2021, DHHS was separated into two new departments and the new child protection department was named Department of Families, Fairness and Housing (“DFFH”). For ease of reference, I will refer to DHHS and its successor DFFH as “child protection”. Various reports and records of child protection have been put into evidence in this proceeding.
The parties retained a psychiatrist, Dr E, to assess both parents and provide expert evidence of each parent’s mental health. Dr E’s assessments were undertaken in May 2021 and are in evidence. This expert evidence is relevant to the parent’s capacity to care for X’s physical and emotional needs. Dr E was not required for cross examination by any party. I treat his evidence as unchallenged.
A family report was prepared by a Family Consultant, Ms F, and is in evidence. The assessment interviews were held in December 2021. I will discuss the report and Ms F’s cross-examination later in these reasons.
The evidence in this matter concluded on 11 November 2022. Final addresses were taken on 17 November 2022. In these reasons, reference to the time of the trial or final hearing is a reference to November 2022. The parties have been given notice that this decision was about to be delivered. None made an application to re-open his/her case to adduce evidence of anything that has occurred since I reserved this decision.
I have determined that the mother’s proposed relocation of X to Country B is the best outcome for X and that he will be able to maintain a meaningful relationship with the father by electronic communication and face to face time each year, first in Country B but ultimately in Australia.
THE ONUS OF PROOF AND FINDINGS OF FACT
Section 140 of the Evidence Act 1995 (Cth) provides the relevant test for the court’s assessment of evidence in this matter: the facts in issue are to be proved by the party with the persuasive onus on the balance of probabilities.
A statement of fact is a finding of fact.
THE LAW
The fundamental principle to be applied by the court in making any parenting order is to regard the best interests of the child as the paramount consideration. In determining what is in a child’s best interests, the Court must have regard to primary considerations and additional considerations in light of the objects and principles in s 60B.
The primary considerations for the court are set out in s 60CC(2) and are described as follows:
(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 –
with greater weight to be given to the need to protect child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Both primary considerations are prospective evaluations. Family violence was prevalent when the parents lived together and it remains an important issue in this case.
Family violence is defined by s 4AB(1) to mean “violent, threatening or other behaviour by a person that coerces or controls a member of a person’s family or causes the family member to become fearful.” The definition contains a number of examples of family violence and is expressed in wide terms.
Apart from being the primary consideration, family violence is significant under Pt VII of the Act in four respects which are relevant to this case. First, the need to protect a child from family violence is a primary consideration in determining what is in X’s best interests under s 60CC(2) and is to be given greater weight than the benefit to X of maintaining a meaningful relationship with both parents (s 60CC(2A)). Second, family violence is an additional consideration in s 60CC(3)(j) and (k) which requires the court to take into account any family violence involving the child or member of the child’s family and any family violence order that applies, or has applied, to the child or member of the child’s family. Third, where family violence has been identified, the court must, under s 60CG, make an order which is consistent with any family violence order and not expose a person to an unacceptable risk of family violence. Fourth, family violence is one of the bases on which to rebut the presumption under s 61DA(1), that it is in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child (s 61DA(2)).
The other primary consideration requires the court to consider whether a meaningful relationship between the child and both parent’s would be of benefit to the child. “Meaningful” does not mean optimal. It contemplates a relationship that is valuable, important or significant to the child.
Numerous additional considerations are set out in s 60CC(3). I need only have regard to the additional considerations which are relevant. The court must determine whether X’s best interests are met by the proposal of the mother and independent children’s lawyer or the proposal of the father or a different proposal which the parties have been given an opportunity to address. The evidence in this case focuses on four major issues. They are:-
(a)family violence,
(b)the relative capacity of each parent to provide for X’s needs, including the emotional and intellectual needs of the child and,
(c)if the mother is permitted to take X to Country B to live, the likely effect of changes to X’s circumstances; and
(d)the practical difficulty and expense of the father and X spending time together and communicating.
Parental responsibility in relation to a child means all the duties, powers, responsibilities and authority which, by law, parents have in relation to a child. Equal shared parental responsibility relates to decision making about ‘major long term issues’, which is defined in s 4 of the Act as follows:-
…issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:
a) the child’s education (both current and future); and
b) the child’s religious and cultural upbringing; and
c) the child’s health; and
d) the child’s name; and
e) changes to the child’s living arrangements that make it significantly more difficult for the children to spend time with a parent.
The implementation and mechanics of shared parental responsibility are conditioned by s 65DAC. Where two or more persons share parental responsibility, equally or in relation to any major long-term issue under a parenting order, they are required to make the decision jointly. The holders of shared parental responsibility are required to ‘consult the other parent in relation to the decision to be made about that issue’ and to ‘make a genuine effort to come to a joint decision about that issue’. These provisions mean that consultation and some discussion between the parties is required regarding major long-term decisions for which parental responsibility is shared.
The Act provides that when making a parenting order, such as the orders sought in this case, the court must apply a presumption that it is in the best interest of a child for the child’s parents to have equal shared parental responsibility for the child. Relevantly, the presumption will be displaced if there are reasonable grounds to believe that a parent has engaged in abuse or family violence or if the court is satisfied that it would not be in the best interests of a child for the child’s parents to have equal shared parental responsibility. If the presumption is displaced, the court must then consider parental responsibility at large and make an order that is in the child’s best interests having regard to the child’s best interests as assessed through the primary and additional considerations. Family violence is expansively defined in the Act.
If the court considers that it is in the best interests of the child for the parents to have equal shared parental responsibility, there are various mandatory considerations for the court in relation to equal, substantial and significant time with both parents: s 65DAA of the Act.
As to the balance of the parenting orders, the court must decide with whom X will live, if X is to live with the mother, whether that can be in Country B or whether X must remain living in Australia, spend time arrangements, and communication having regard to the best interests of the child as ‘the paramount decision’ and through the primary and additional considerations.
In relation to the relocation, I will consider the primary proposal of each parent, look at their secondary positions noting that the mother is the unchallenged primary carer who faces the prospect of caring for X in a country in which she does not want to live and away from her own family of origin.
DOCUMENTS RELIED UPON
The trial was run with an electronic court book using eBrief.
The mother relied upon:-
(a)her Outline of Case filed 27 October 2022;
(b)her Further Amended Initiating Application filed 26 September 2022;
(c)the affidavit of Mr G sworn on 11 December 2020;
(d)the affidavit of Ms H sworn on 28 June 2020 and filed 30 June 2021;
(e)her trial affidavit affirmed 26 September 2021 and filed 26 September 2022;
(f)the affidavit of Ms J (the maternal aunt) affirmed 26 September 2022 and filed 27 September 2022;
(g)the affidavit of Ms K (the mother’s mother/maternal grandmother) affirmed 3 October 2022 and filed 3 October 2022;
(h)the affidavit of Ms L, mental health social worker, filed on 11 October 2022; and
(i)her affidavit in reply affirmed and filed 25 October 2022.
The father relied upon:-
(a)His Outline of Case filed 14 October 2022;
(b)his Further Amended Response filed 14 October 2022;
(c)his trial affidavit affirmed and filed 14 October 2022;
(d)the affidavit of Ms M affirmed and filed 14 October 2022;
(e)the affidavit of Ms N sworn and filed 4 July 2022;
(f)the affidavit of Ms P filed 29 June 2022;
(g)his affidavit sworn and filed 19 July 2021;
(h)his affidavit sworn and filed 8 April 2021;
(i)his affidavit sworn and filed 7 April 2021;
(j)the affidavit of Ms Q filed 10 December 2020;
(k)the affidavit of Ms R filed 10 December 2020;
(l)the affidavit of Ms S affirmed 9 December 2020 and filed 10 December 2020;
(m)the affidavit of Ms M filed on 14 December 2020;
(n)his affidavit sworn and filed 7 December 2020; and
(o)his affidavit sworn and filed 28 September 2020.
The independent children’s lawyer relied upon:-
(a)the affidavit of Ms T filed 1 July 2021;
(b)the Response to s69ZW Order of 17 November 2020;
(c)the s67ZW Response of 7 July 2021;
(d)the affidavit of Dr E affirmed on 18 August 2021 and filed 19 August 2021;
(e)the trial affidavit of the mother affirmed 26 September 2021 and filed 26 September 2022;
(f)the Family Report of Ms F dated 21 January 2022; and
(g)the affidavit of Ms P filed 29 June 2022 filed by the mother.
The mother and her witnesses Ms L (mother’s mental health social worker), Ms J (the maternal aunt) and Ms K (the maternal grandmother) were required for cross-examination.
The father was the only witness in his case required for cross-examination.
Ms F, the Family Consultant was cross-examined on the final two days of the hearing.
The witnesses Ms M, Ms N, Ms P, Ms Q, Ms R, Ms S and Ms T were not required for cross‑examination.
There were numerous exhibits.
THE RELATIONSHIP
The mother is 30 years of age, was born in Country U and relocated to Country B at the age of six with her mother and sister. She is a Country B citizen. The mother arrived in Melbourne, Australia on a working holiday in 2017. She resides in City V, Victoria in transitional housing and remains in Australia on a permanent residence visa.
The mother is not currently employed outside of the home. She is in receipt of government benefits in the form of fortnightly parenting payments as well as family tax payments A and B. The mother has been in receipt of $871.50 fortnightly parenting payments since August 2020 having been accessed as eligible. The mother’s evidence was that prior to August 2020 she was unable to apply for government benefits in her own name due to her visa status. The mother declined to provide her address in open court due to safety concerns. The mother also receives financial support from her family in Country B.
The father is 33 years of age, was born in Australia and has a history of employment in agriculture. On the second day of the hearing the father received a letter of termination from his employer. At the time of the hearing, the father resided in the remote area of Town W, approximately 110km distance from City Y in Victoria. However that was likely to change given the cessation of his employment.
The parties met in 2018 when the mother commenced employment as a seasonal worker on a farm where the father worked. At the conclusion of the season, the parties commenced cohabitation. During the relationship the mother commenced the process for obtaining a partner visa. The parties did not marry.
X was born in 2020 and is 3 years old. X resides with the mother who is his primary carer. The family report writer, Ms F, notes that X is a happy and outgoing child, who was curious and inquisitive. At assessment, the writer reported no concerns in respect of X’s health and/or development.
The parties separated in mid-2020 when Victoria Police obtained a Final Intervention Order under state domestic violence laws against the father naming the mother and X as protected persons. The mother and X vacated the former family accommodation and for ten months following separation were living in crisis accommodation.
At the time of the trial neither party had re-partnered.
Since separation the father has been spending supervised time with X pursuant to orders of the Senior Judicial Registrar made on 15 December 2020. The father’s supervised time took place at the Z Contact Centre located in City Y with the cost of supervision met by the father. The contact centre in City Y was a two hour journey by car for the mother and X. Between early 2021 and March 2022 the father spent supervised fortnightly time with X for one hour. The father’s evidence was that his time with X was progressing well. In his affidavit of 7 April 2021 the father deposes:-
I have thoroughly enjoyed my special time with [X], albeit so limited. The mother has prevented me from exercising more contact and has also prevented the other members of my family from spending time with [X]. In my view there is absolutely no reason for this, and my mother and sisters are longing to see [X] and spend time with him.
I represent no threat to my son and love him very much.
The supervision reports prepared by Ms T, team leader at Z Contact Centre of visits from April 2021 to June 2021 indicate a progression from high vigilant supervised contact for two visits to low vigilant supervised contact for the remainder.
It is recorded in the supervision report by Ms T that in April 2021 there was a “high vigilant contact” between the father and child. The child was observed to be unsettled and crying when he entered the contact centre before he was greeted by the father. Despite the father trying to settle the child, he continued to cry, the child seeing his reflection in the mirror helped the child to stop crying. The father was observed to speak to the child in a calm tone and cuddled and kissed him and the child was reported to be comfortable with this contact. At the end of this visit the child began to cry again but was observed to be calm and settled once he was with the mother. A similar “high vigilant contact” was observed four days later where the child was crying throughout the supervised visit.
The following five supervised visits between the father and the child was recorded as “low vigilant” supervised contact in Ms T’s report. She records that the father and child were “engaging in play and talking” and the father was able to calm and settle the child during the visits. The child was also observed to cry when separated from the mother at the start of the supervised visits and when separated from the father at the end of the visits. Although, both parents were able to settle the child when he became upset.
On 22 March 2022 a further Contact Service Report was prepared by Family Relationship manager, Ms P in respect of supervised visits between July 2021 and March 2022. The supervised report was positive insofar as the father’s time with X was concerned. The manager identified the paternal family’s attendance at supervised visits to be an ongoing issue with the father’s requests being denied by the mother. The report writers were not required for cross‑examination.
The father’s time with X increased to two hours commencing March 22 until July 2022.
In July 2022 the Contact Centre advised the parents they would no longer be in a position to supervise X’s time with the father. From August 2022 to the time of the trial, the father’s time has been under the supervision of a paid child-contact supervisor, Ms C, located in Town AA. Town AA is a 30 minute drive from the mother’s residence. At the time of the final hearing, the parties resided approximately 85 kilometres from one another.
THE PARTIES’ RESPECTIVE PROPOSALS
The mother submitted a proposed minute of the orders sought as part of her primary application for relocation marked exhibit “M11”. The independent children’s lawyer supports the mother’s application. The mother seeks an order that she have sole parental responsibility, that X live with the mother and that she and X be permitted to relocate to Country B. The mother sought that prior to relocation the father spend weekly supervised time with X of up to three hours duration, be permitted to attend X’s extracurricular lessons and for FaceTime communication up to 20 minutes each week. The mother makes provision for members of the paternal family to be present at supervised visits and for an additional three hour visit with X, the father and paternal family at or around Christmas 2022/23 and X’s third birthday. I note that X’s third birthday has come and gone. I have assumed that the mother would still be agreeable to making X available for supervised time on two or three occasions, each of three hours duration before she and X leave Australia and to involve the father’s family members (subject to agreement by the supervisor). Following relocation the mother seeks there be FaceTime communication between the father and X twice per week for 20 minutes on each occasion. The mother’s primary proposal contemplates that the father will travel to Country B to see X and that, eventually, the mother will bring X to Australia for some holiday time with the father. Specifically, until X attains the age of 5 years, his time with the father take place in Country B for up to 5 hours per day, to be supervised by an agreed member of the maternal family or, failing agreement, the maternal aunt. The mother’s proposal provides for X’s to travel to Australia accompanied by the mother commencing in 2025 and each alternate calendar year thereafter for a 14 day period for up to 4 hours a day. The father’s spend time with X in Australia is subject to supervision by an agreed family member, the father returning a hair follicle test not indicative of excessive alcohol consumption or illicit substances and the father meeting half the costs of the mother’s accommodation in Australia. The mother’s proposed orders included a restraint on the father from consuming alcohol above the legal limit for driving a motor vehicle or consuming illicit substances in the 24 hours prior to spend time with X.
The mother submitted an alternate proposal in the event relocation is not permitted. It is a minute marked exhibit “M12”. If the mother cannot relocate, she still seeks an order for sole parental responsibility, that X live with her and that she and X be permitted to relocate to a residence within a 2 hour drive of Town BB. The mother seeks that X spend supervised time with the father each fortnight for up to three hours, that the father be permitted to attend X’s extracurricular lessons on occasion and communicate with X by FaceTime once a week for up to 20 minutes. The mother’s fall-back position makes provision for the parties to attend mediation with a view to increasing the father’s spend time subject to the father returning clear hair follicle drug and alcohol tests for six consecutive months and engaging with a psychologist for regular counselling. The mother seeks an order that she and X be permitted to travel to Country B once per calendar year to visit the maternal family.
The father’s primary proposal is set out in his Further Amended Response to Final Orders filed 14 October 2022. He opposes X going to live Country B. The father seeks that parental responsibility be shared equally between himself and the mother, that X live with the mother and spend unsupervised time with the father each alternate weekend from the conclusion of childcare on Friday until 5:00pm Sunday and one half of school holidays and special days. The father seeks an order for FaceTime communication to occur once per week for 30 minutes. The father’s orders make provision for international travel whilst X is in the care of either parent.
If X is permitted to live in Country B, the father seeks orders in accordance with his proposed alternate minute marked exhibit “F1”. Accordingly, the father seeks an order for equal shared parental responsibility. The father proposes that the mother travel to Australia twice per year and that the father spend time with X for a period of time appropriate to X’s age to be supervised initially by a member of the paternal family. The father proposes that his time with X progress to unsupervised overnight time upon the father demonstrating he does not pose an unacceptable risk to X in respect of his alcohol consumption. The father proposes X’s travel costs to be equally shared between the parents and the mother to be responsible for the costs associated with her own travel and accommodation. Further, the proposed orders would permit the father to travel to Country B once per year and undergo a urinalysis test for drugs and alcohol within 48 hours preceding any spend time period.
The independent children’s lawyer supports the mother’s primary position coupled with two further requirements. First, the parents doing all acts and things necessary to engage a play therapist for X (noting it was suggested by Ms F as a means for the father to strengthen his relationship with X and learn to better engage X). Second, an order requiring the father to attend upon a general medical practitioner as soon as possible to obtain an urgent mental health plan for himself.
It should be noted that, in Australia, school holidays are generally for two weeks in April which coincide with Easter, two weeks in late June/early July, two weeks in September and long summer vacation from around 19 December until 28 January. In Australia, X would commence school in February 2025.
SOME BACKGROUND AND HISTORY OF FAMILY VIOLENCE
The parent’s cohabitation was for only two years. The parents met in 2018, commenced cohabitation the following month and X was born in 2020. The parents separated in 2020 when was X was only 3 or 4 months old. The severity of family violence over such a short relationship leads me to conclude that the parents’ relationship was highly conflictual to a degree that I would describe as toxic and consistently violent.
The mother deposed that some months prior to meeting the father she had an unplanned pregnancy resulting in an abortion. The mother received a contraceptive implant which was subsequently removed in the first few weeks of entering into the relationship with the father. The mother deposes that the father would insist he does not like using condoms and on one occasions, while in Adelaide, the mother alleges the father removed the condom without the mother’s consent.
The mother deposes that in the early stages of the relationship she believed the parties shared a “good intimate connection”. The mother goes on to depose that she noticed the father engaging in “flirtatious conversations” with other women which the father denied. The mother deposes that the father had pornographic images of women, including images of his former partners, saved on his phone. The father maintained he was not aware the images were still on his phone. Further, the mother deposes that the father had paid subscriptions to pornographic content. The mother deposes that the father’s interest in pornography was “a common source of arguments” between them. On the contrary, the father deposes that he did not watch pornography during the relationship and instead that the mother “was always in the mood to be intimate” to the extent that he would “deny her advances”.
In 2018 the father punched a hole in the bedroom door when the team he supports lost a sporting final. The father alleges that the mother punched holes in the walls in anger.
The mother deposes that the first significant incident of family violence occurred towards the end of 2018 whereby she alleges the father held her down and choked her. The father denies ever choking the mother.
In late 2018 the parties travelled to Country B to visit the maternal family. It was during this visit that the father first met the maternal family and travelled to Country CC for an extended weekend. The maternal grandmother paid for the mother and father’s airplane tickets.
In early 2019 police attended the family home following a report by the mother’s friend who overheard the parties arguing over the phone. The mother told police she had thrown a piece of chicken at the father and that the father responded by grabbing her by her hair, dragging her along the floor and hitting her head into the ground repeatedly. The mother claims that she blacked out and suffered a blood nose as a result. The father gave a different account claiming that the mother hit him in the nose with a frozen chicken and that he pinned the mother to the ground to restrain her from continuing to throw X’s baby formula in the bin. Victoria Police issued a family violence safety notice and an IVO was applied for naming the mother as an affected family member and the father as the respondent. The father was removed from the property and later charged with an offence. He pleaded guilty and received a good behaviour bond.
The following day the father returned to the property ahead of the paternal family arrival to spend time with the mother and father. The father’s eldest sister Ms M filed an affidavit on 17 October 2022 deposing to the mother laughing off the incident which occurred the day prior in the presence of the father and the paternal family. Ms M was not required for cross‑examination. I accept her evidence. The fact the mother made light of the violence does not detract from its negative impact on the child. Mr G, a friend and witness of the mother’s deposes in his affidavit filed 11 December 2020 having observed redness and swelling to the mother’s eye whilst on a video call with the mother in the early hours of the day of the incident. Mr G was not required for cross-examination. I accept his evidence.
In early 2019 Victoria Police attended on the home after receiving a report from the mother. The parties had been arguing when the father began packing personal items to leave the home for the night. The mother called emergency services and during the call removed the father’s sunglasses from his head in an attempt to prevent the father from leaving. The father had left by the time the police arrived and the mother discussed with police the possibility of leaving the relationship. The father returned home during the mother’s conversation with police and informed police the mother was suffering from a “mental health disorder” and possibly “bipolar”. Police referred the mother to mental health services which led to the mother engaging the services of Ms DD at EE Health Service. There was no further police involvement arising from this incident.
Later that month police were called to attend upon the parties’ residence following reports of a verbal argument which resulted in a pot plant being thrown on the ground. The father filmed the mother during the incident, something he claims he occasionally did for his protection. The mother deposes that she was trying to encourage the father not to leave and when he refused she picked up and threw a pot plant on the ground next to a car parked nearby to the father’s car. The father deposes that the mother picked up the pot plant and was intending to throw it at his car until she noticed the father was filming. The father left the residence and later returned. The father reported that when he returned the mother punched him, scratched him and ripped his shirt. The police report further records that the mother hit the father in the head with an object, threw the father’s phone on the ground causing it to break, hit the father’s belonging with an object causing a piece to break off and punched a hole in the wall of the lounge room. The mother deposes she accidently hit the side of the father’s head with an object when she was aiming for his phone in an attempt to stop him recording. The mother claims the father pushed her backwards and she grabbed on to the father, ripping his shirt in the process. The mother deposes that she punched or scratched at the father. The father reported the incident to police who issued a family violence safety notice against the mother. The mother was charged with offences in relation to the incident. The mother accepted a diversion order. The father claims to have recordings of the incidents. No such recordings were put into evidence.
In the same month the mother disclosed to a social worker at EE Health Service symptoms of depression as well as thoughts associated with suicidal ideation. The mother was prescribed medication which she claims “assisted a little”. In mid-2019 the mother had an incident of misusing medication.
The mother remained engaged with the social worker at EE Health Service in the second half of 2019 and in the later part of her pregnancy. The mother claims that during the course of these sessions she made disclosures about the alleged violence perpetrated by the father as well as a desire to leave the father.
The mother deposes that in 2019 the father forced her to operate a tractor when she was suffering from nausea as a result of her pregnancy.
The mother deposes that during her pregnancy the father told her that having sex with her was like “throwing a sausage down a hallway”, referencing the amount of sexual partners the mother has had. The father does not address this incident in his affidavit.
The mother alleges that in 2019 the father forced her out of his vehicle, requiring her to sit in a way where he would speed and slam on the breaks in an attempt to make the mother fall out. The father’s deposes that he was attempting to remove himself from the argument by driving away and that the mother climbed into the vehicle to prevent the father from leaving.
The mother deposes to a further incident occurring in 2019 where the father pushed her on the bed and tried to poke her in the eyes, squeeze her face and choke her. The mother claims that she was injured as a result of the altercation. The father denies that he choked the mother and deposes that the only time he was remotely close to her neck was when she was coming at him in a “violent rage” and he was holding her back from her shoulders. He also deposes that he would also push her away when she was “swinging” punches at him.
The mother alleges, and the father denies, that in 2019 the father punched her in the stomach while she was pregnant. The mother deposes that the incident moved her to purchase a plane ticket to return to Country B. The mother did not ultimately use the ticket. The father recalls the mother purchasing a ticket but claims it was a common occurrence after the parties would argue. The father admits to transferring funds out of the parties shared account to prevent the mother from purchasing the tickets and would return the money when matters had calmed down. He denied punching the mother’s stomach and deposes that “he would never dream about doing such things”.
On a trip to Town FF in 2019 to visit the paternal family the mother claims she informed the father that she wanted to end the relationship. The mother deposes that during the trip, which occurred during the early stages of the mother’s pregnancy, the father grabbed her hair and threw her into a wardrobe. The mother deposes that she experienced bleeding in the days following and claims the father refused to accompany her to be medically accessed. The mother was assessed the following day and an ultrasound showed no cause for concern associated with the pregnancy. The father deposes that the mother did not tell him that she was bleeding and, if he had known, he would have taken her to the hospital. However, from what he understood the mother wanted to leave because she was not enjoying herself and it was the next day that she saw bleeding and they went to the hospital.
The mother deposes that on a subsequent trip to Town FF and following an argument with the father she purchased a bus ticket to Melbourne with the intention of ending her relationship with the father. The mother claims she was unable to leave when the father locked her belongings in the car. The mother deposes that the father’s step mother was present for the incident and was the one who drove the mother to purchase the train ticket. The father deposes that the mother never locked her bags in the car. He says that he followed the mother and “smoothed everything over” and the mother came back with him on her own accord.
In mid-2019 a mental health nurse at GG Medical Centre indicated to the mother she may meet the diagnostic criteria for either Borderline Personality Disorder or Post Traumatic Stress Disorder. This is not a diagnosis.
The mother claims that on another trip to Town FF in 2020 she observed the father had spent $800 of savings set aside for the child, on online gambling. The mother deposes that she attempted to leave by driving away but that the father grabbed her hand with the keys and did not allow her to leave. The mother claims that she began crying and that the father’s sister intervened telling the father to let the mother go which he did. The father’s eldest sister, Ms M, deposes in her affidavit of 12 October 2022 that she did not observe the father becoming aggressive towards the mother but that the mother demanded the keys, began to cry and walked off. The father’s younger sister, Ms S, who was also present deposes in her affidavit of 10 December 2020 that the allegation by the mother was a complete fabrication. Ms S was not required for cross-examination. The father does not address this incident in his affidavit. I accept the evidence of the father’s sisters over the mother’s evidence.
The mother claims that during a verbal argument whilst she was heavily pregnant in 2020 the father said words to the effect of “you deserve a bullet in your head” and proceeded to point a firearm at the mother. Further, the mother deposes she heard what she believes to have been the click of the trigger. She deposes, “I don’t think that [the father] had checked the [firearm] before this incident, but I know that he didn’t usually leave bullets in the [firearm]”. The father was charged criminally in relation to the incident between him and the mother involving a firearm. The offences were downgraded to a plea of another offence. In his affidavit filed 7 December 2020 the father denies the allegations. The father deposes in his affidavit filed 7 April 2021 that on the adjourned date the charges were “withdrawn by police as they were unsupported by the evidence”. In any event, the father was placed on a good behaviour bond with no conviction and was fined. He deposes:-
I believe these charges were filed against me by the mother in an effort to bolster her case for relocation out of the jurisdiction and to prevent me from spending time with [X].
The mother deposes she remains concerned about the father’s access to firearms. Annexed to the mother’s affidavit is an image, uploaded to Facebook in 2021, of a friend of the father’s Ms HH holding a firearm. Mr G, a friend and witness of the mother’s, made an affidavit on 11 December 2020 deposing that the mother had told him of the incident involving the firearm and that he had encouraged the mother to leave the relationship. The father deposes that the firearm was stored up high in the walk-in robe in the bedroom and he denies pointing the firearm at the mother. The father denies ever threatening to kill the mother and stated that the mother threatened on a number of occasions to tell such a story to the police.
X was born in 2020. The mother recalls that, in the hospital immediately following X’s birth, the father “tormented her” by rolling his crib so that it was out of the mother’s reach. The mother further deposes that on the first night after X’s birth the father would yell at X to “shut up” when he would cry. The father denied that he rolled the child away from the mother to torment her. He says in his affidavit that his bed was at a distance from the mother and the child stayed in the middle at all times. Although he deposes that it is possible that he had the child closer to him so that he would look after X as he did all of the child’s feeds from a bottle and also wanted to give the mother a break. He denied saying that baby should “shut up” and deposes to attending to X when he cried.
Ten days after X’s birth the mother deposes that the father grabbed one of the mother’s arms while she was holding X with the other and twisted her arm behind her back, forcing her into a cupboard. The mother recalls contacting a family violence service helpline following this incident.
Around two months later the mother made the disclosure to a midwife at EE Health Service which prompted the involvement of Child Protection.
The mother deposes to an incident in 2020 when the father had fallen asleep with X in the bed with him. The mother claims she returned from expressing milk to find X “under the duvet cover”, “gasping for air”. The mother expressed her concern with X sleeping in the bed with the father having regard to the prevalence of Sudden Infant Death Syndrome. The mother claims the father insisted that she “stop nagging him” and that he would “continue to have [X] in the bed with him if he wanted to”. The father denied that he ever intentionally harmed the child and the allegations made by the mother are upsetting.
The mother further deposes to the father yelling in X’s face to “shut up” and slightly shaking him at times when he would become unsettled.
The mother deposes to an incident in 2020, some two months after X’s birth, whereby she alleges the father stuck his foot into her in order to keep the mother on the ground. The mother’s evidence was that the father’s step mother was present in the guest room when this incident occurred. The father denies the family violence in his affidavit.
The mother deposes to another incident in 2020 whereby the father dragged the mother by her hair around the house and pushed her face into the floor until she handed over the car keys. The mother notes that this incident occurred whilst the father’s step-mother was asleep in the guest bedroom. The mother is not aware if the father’s step mother heard the altercation but in any event the father’s step mother did not raise it in discussions with the mother. The father’s step mother, Ms Q deposes in her affidavit of 10 December 2020 that she did not witness the father being angry of violent towards the mother in the 14 day period she visited the parents in 2020. Indeed, the step mother’s evidence was that she was “shocked” to learn that the parties were later ending their relationship. The father’s step mother was not required for cross-examination. I accept the step-mothers evidence including where it conflicts with the mother’s evidence.
The mother deposes to the parties having an argument whilst X was sleeping in his bassinet beside the parent’s bed. The mother alleges that the father climbed on top of her, pushed his hand down on her face and choked her until she could not breathe. The mother claims that she was able to free herself by pocking her fingers into the father’s face/eyes/nose. The father deposes that he felt awful for the “mean things” he said to the mother during the relationship which he regrets but denied the serious allegations of physical violence because they did not happen. He says that he struggled to deal with conflict and has since reflected and learned from his “bad” choices.
In May 2020 the mother began attending regular appointments with Ms L, social worker located in City V.
In 2020 the mother was prescribed medication for anxiety and depression by a general practitioner in City V.
The parties separated in mid-2020 when the mother left the home taking X with her. The parents did not reconcile.
Following separation, the mother commenced proceedings on 21 August 2020 with an application for spousal maintenance which was later discontinued. On 2 September 2020 the mother amended her then application seeking, inter alia, that she have sole parental responsibility of X, that X reside with the mother and that the mother be permitted to relocate with X to Country B. On 28 September 2020 the father filed a response to the mother’s amended application seeking, inter alia, that the parents have joint responsibility for X, that X live with the mother and spend time with the father.
In late 2020 the father applied for an interim intervention order against the mother in the Magistrates Court. X was less than one year old. The allegations the father makes against the mother in the application include but are not limited to:-
…being punched and scratched, she threatened to make up stories to the police to get me in trouble, e.g. putting holes in walls to say that is where I put her head and saying I held a gun in her face (which she has since done).
The matter was returnable before the City Y Magistrates Court in late 2020. The father’s application was ultimately discontinued.
Along with the specific incidences deposed to the mother alleges, generally, that the father:-
(a)would regularly lock her in or out of rooms within the home they shared;
(b)the father would purchase her gifts following an assault as a means of apologising;
(c)would regularly threaten to drag the mother out of the house naked, chain her to a tree and lock the door;
(d)would regularly lock the car and take the keys preventing the mother from leaving the home; and
(e)would tell the mother to kill herself and that if she didn’t that he would, or words to that effect.
On 7 December 2020 the father filed an affidavit responding to the mother’s allegations contained in her 24 November 2020 affidavit as follows:-
I wish to state that the violence in our relationship was perpetrated not by me but by the applicant herself, who now chooses to ignore that and make false allegations against me. During our relationship the Applicant was prone to violent outbursts, screaming fits, damaging out property and assaulted me on several occasions. Examples of these are on occasion where;
a. I had to lock myself in the bedroom to get away from [the mother] who was in a violent rage.
b. The Applicant approaching my personal vehicle with a heavy pot plant preparing to throw it at me until she realised I was filming her with my phone-
c. ripping my shirt and hitting me with [an object] and then punching me in the head
d. Punching holes in the walls of our home and telling me that is where she would tell Police I put her head
e. Attempting to smash [a belonging] with a heavy [object]
f. Smashing the front door and the roller doors. I have photos of the damage done to property by her.
In respect of the parties’ dog, the mother alleges that the father’s conduct towards the dog was at times “cruel”. In particular, she alleges the father would kick him, drag him by his ear, tail or back legs, rev the car engine to scare him and on occasion point his firearm at him knowing the noise would scare him. The mother deposes that in her view the dog “bore the brunt of [the father’s] aggression”. The father in his affidavit of October 2022 denies treating the dog poorly. In particular, the father denies pointing a firearm at the dog.
The mother has consulted a Mental Health Social Worker, Ms L, for counselling. The mother relied on the evidence of Ms L. Ms L is not a single expert witness. She is a person (not a medical practitioner) who has provided treatment to the mother within the meaning of rule 7.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
On 25 November 2020 an affidavit was filed with the court annexing a report by Ms L, the mother’s social worker. Ms L is an Accredited Mental Health Social Worker in the employ of JJ Psychology located in City V. The mother attended nine sessions with Ms L between January and November 2020. Ms L report was prepared based on the mother’s self-reporting her behavioural responses. The mother was accompanied by X and presented “with a neat appearance”, “participated well” and “followed through with treatment expectations and goals”. As for the interactions between the mother and X, Ms L observed:-
My observations of their interactions show no indication of poor bonding, impatience or intolerance demonstrated by [the mother] towards [X]. In fact, the opposite has been observed with [the mother] being attentive to [X’s] needs, responding with patience, love and care and [X] reciprocates with smiles and is a calm baby.
Ms L reports that the mother disclosed to her incidents of verbal and physical violence perpetrated by the father, as follows:-
[The mother] has disclosed numerous occasions where [the father] has physically held her down and tried to choke her to the point, she is not sure if she passed out. In […] 2020, [the mother] reported whilst heavily pregnant [the father] punched her in the stomach, on another occasion when [X] was ten days old where [the father] twisted [the mother’s] arm and pushed her into the wall while she was holding [X]. [The mother] informed the writer of an incident in […] 2020 where [Mr Leigh] said to her “you deserve a bullet in the head” and then got his [firearm] and pointed it at [the mother] and pulled the trigger, [the mother] reported feeling horrified as she heard the click of the [firearm] and was relieved when she discovered it was not loaded. [The mother] admits to on many occasions acting in a violent manner as a reaction to the violence perpetrated by [the father] to protect herself.
The father deposes, in response to the report of Ms L, that the mother had lied to and manipulated Ms L in relation to the allegations of family violence in an effort to bolster her application for relocation.
Ms L did not support a diagnosis of perinatal depression or symptoms or signs of a mood or personality disorder. The writer opined that:-
[the mother] is demonstrating high levels of depression, anxiety and stress and severe symptoms of post-traumatic stress disorder. I believe her symptoms are consistent with the potential impacts of family violence and with her disclosures of family violence to myself and the police statement.
Ms L was cross-examined on the first day of the final hearing. Ms L noted a reduction in the mother’s symptoms. When asked what might have contributed to the reduction in the mother’s symptoms, Ms L agreed that it may have been the knowledge that the father didn’t know her address, the restrictive travel because of Covid-19, medication, support services and having support with her expenses.
Under cross-examination Ms L was asked if based on her observations the mother gives her any reason to not believe that if she relocates to Country B, the maternal grandmother would not support her. Ms L stated that the mother did not give any indication that she was lying and she believed that the mother and maternal grandmother had improved on their relationship.
Ms L gave evidence that the mother reacts differently based on when she appears to be triggered emotionally. Ms L said that the mother presented as calm and happy and was recently observed to be zoning out, but explained that this was a common experience for individuals suffering from trauma.
Ms L agreed that the mother would feel safer if there is a distance between her and the father but that does not mean she is motivated to avoid the father as she has expressed that the child needs to have a relationship with the father but she is fearful of being too close to him.
I accept Ms L’s evidence to the extent that she is qualified to express those opinions. Ms L is not qualified to diagnose mental illness. I accept that expertise extends to identifying behaviour that would be assessed by a psychologist or psychiatrist.
As indicated, child protection had involvement with the family between 2020 and 2021 due to safety concerns for X. There were reports by child protection in evidence before me. Notably, no child protection officers were called as witnesses or required for cross-examination. I regard the evidence emanating from that source as not challenged and I draw on it for these reasons.
In early 2021 the father updated his profile picture to an image of X, in breach of the IVO that was in place. The mother reported the incident and the father was charged for breaching the IVO and was fined.
On 7 May 2021 the mother caused her lawyer to write to the father’s lawyers requesting an update on the dog’s wellbeing. The father claims he did not respond to the request as he felt frustrated that the mother had withheld X.
In mid-2021 the father’s sister created and shared to her Facebook account a GoFundMe page to cover the father’s legal fees. The fundraiser was described as follows:-
Hi all, my name is [Ms S] and I’m fundraising for my brother who had his son taken away just over a year ago. [X] was well cared for and has so many loving family members around him but unfortunately in a desperate attempt to take [X] to [Country B] his mother has elicited a very long and drawn out custody battle. [The father] has had to sell some of his possessions and utilise all his savings and is not eligible for legal aid so he had had to pay for solicitors to this point which had all but broken the bank. Unfortunately hard working Aussies are not eligible for any legal aid so please, please dig deep so that we can bring out boy home and end this nightmare for [the father] and our family.
On 27 August 2021 interim orders were made requiring, inter alia, that the father attend for hair follicle testing, the mother to continue attendance upon Dr KK, psychiatrist, and her Mental Health Social Worker, the father to attend upon Dr LL for counselling specialising in family violence and provide a report for same, the parents to use AppClose for communication, to keep the other parent advised of all medical appointments for X, were granted leave to issue subpoenas to DFFH, and the matter was placed in the list of cases awaiting allocation for a final hearing.
Pursuant to interim orders of 27 August 2021 the mother was referred to Dr KK, psychiatrist. The mother deposed that her treating psychologist believed the mother was not suffering from a personality disorder but had not proffered another diagnosis. The mother did not file any evidence from Dr KK.
The mother claims that in July 2022 whilst leaving the contact centre the father swerved his car. The mother has a video recording of incident which was recorded on her dash camera and played in court. The father was charged with a further breach of the IVO. The matter was returnable before the Magistrates Court in late 2022. The video was viewed a number of times during the hearing. The swerving was not easy to observe. I discerned the father’s hand to move on the steering wheel so that the car veered slightly towards the mother’s parked car. The court does not know the outcome of the criminal charges.
Both parents acknowledged to the Family Consultant that the relationship consisted of high levels of conflict and volatility, however they provided disparate accounts as to who was the primary aggressor. The Family Consultant notes that the mother made allegations of significant and enduring family violence perpetrated by the father during their relationship and informed her that it included physical abuse, emotional abuse, and threatening abuse including intimidation with a weapon and threats to kill her. The father denied these allegations and maintained that there were periods of high-conflict during the relationship and acknowledged that it could escalate to incidents of family violence where he needed to physically restrain the mother to protect himself.
It is recorded in the Family Report that both parents have vastly different accounts of family violence and the mother was observed to be genuinely fearful of the father and the idea of leaving the child with him without supervision. Although, the Family Consultant opines that it is possible that the mother’s account of family violence has potentially been exaggerated, there is validity in her claims with some details of the abuse being reflective of high lethality risk factors. When considering the father’s response to the family violence allegations, the Family Consultant observed the father to lack insight into his violent relationship and to place the sole responsibility for the violence on the mother (despite acknowledging that he had engaged in some violent behaviours). The Family Consultant opines that the father’s narrative of some of the violent incidents were largely minimised and it suggested to the Family Consultant that the father identifies other acts of violence as not as problematic or a cause for concern. The Family Consultant expressed the view that, if this is the father’s attitude towards violence, it is highly concerning and places a likelihood of this occurring in the future when he is frustrated or provoked. It was the Family Consultant’s opinion that, ultimately, the father did not demonstrate any accountability for the family violence that had occurred when the relationship was intact.
The Family Consultant is of the view that although the family violence between the parties has decreased since separation, any interaction or communication between the parties is likely to pose challenges and without strict boundaries around their interactions it could escalate to further violence.
Both parents engaged in family violence against the other to the detriment of themselves, the other parent and X. The further evidence of the single expert witnesses’, to which I will come shortly, concludes that the father bears a higher degree of responsibility for family violence than does the mother. They find that there were factors which mitigated against the mother’s behaviour. That accords with my impression that it does not in any way excuse the mother’s behaviour.
The family violence was so pervasive that no useful purpose is served by attributing blame to one parent over the other. I am satisfied that the family violence was of such magnitude that there is no prospect of the parents being able to share parental responsibility in a way that is beneficial to X. I find that the presumption in favour of joint parental responsibility is rebutted.
EXPERT EVIDENCE
The single expert witnesses in this case are the Family consultant and Dr E, the consultant psychiatrist. Their evidence straddles all relevant matters and is of assistance to the court in its assessment of the parties’ proposals and in determining what outcome is in X’s best interests.
Family Consultant Ms F
The Family Consultant interviewed the parties via video on 16 December 2021 and due to the Covid-19 lockdown there was no observations with the child. At that time, the child was living with the mother and spent supervised time with the father at a contact centre which was occurring for one hour per fortnight. The mother was not working and was in receipt of a single parenting payment and family tax payments. The father lived on a property where he was employed.
When interviewed, the mother proposed that she be permitted to relocate to Country B with the child and expressed a commitment to ensure that communication between the child and father be maintained with FaceTime and some travel time in the future.
When interviewed, the father proposed that the child remain in the primary care of the mother and the child’s time with him build up to one night per week and that this time ideally be unsupervised. He also expressed that he wants the child to spend time with him every weekend and possibly more during the holiday periods.
When considering drugs and alcohol, the mother acknowledged to the Family Consultant that she had historical, social marijuana use, however has denied any use since the birth of the child. She took issue with the father’s alcohol consumption, which she reported was in excess and impacted his capacity to contain and manage his anger. Although, the father denied that he consumes alcohol to excess, he expressed that he previously drank alcohol more regularly, however indicated this was not a problematic amount.
The mother informed the Family Consultant that she was suffering from depression and anxiety during the parties’ relationship which was exacerbated by being in a rural and isolated area without a support system. At the time of the interview, the mother was seeking treatment through a psychiatrist three times a month and her community mental health worker. The father informed the expert that he had been experiencing an occasional low mood and anxiety and he was also seeking treatment through a psychiatrist.
It is recorded in the Family Report that the mother said that she had been granted permanent residency which made many services and supports available to her, but informed the Family Consultant of her desire to relocate to Country B. The mother explained that she would be able to provide the child with increased stability and raise him with the support of her family. It is recorded that the mother plans to initially reside with her sister in Country B whilst looking for an appropriate accommodation for her and X.
When the Family Consultant asked the mother if she would relocate to Country B without the child the mother replied “definitely not” expressing that she was X’s mother, and there was no one in Australia that would appropriately provide him with care. It was recorded that this line of questioning caused the mother to become agitated and she was observed to be distressed which, the Family Consultant opines, may have been due to the idea of her remaining in Australia long-term.
It is recorded that the mother acknowledged to the Family Consultant that X has had a disruptive life since birth due to the parent’s “highly volatile and abusive” relationship which was followed by a significant period of time in a refuge, and then moving to government transitional housing. She further stated that the relationship was “scary and extremely abusive”. The mother informed the Family Consultant that she has attempted to keep the child safe, but she is worried about the emotional impacts that this may have had on him. The mother repeated to the Family Consultant that the father would be violent regularly, pull her hair and hold her on the ground, smash her head into the wall, and choke her on numerous occasions including when she was pregnant. She also alleged that the father on one occasion pointed a firearm at her and pulled the trigger.
It was observed by the Family Consultant that when the mother was discussing the family violence incidents, her presentation was in contrast to the conversation at times and it is recorded that the mother laughed and described the incidents in a lively and playful manner. The Family Consultant observed that the mother described the incidents in a non-consistent manner such that some events were described with extensive and expansive detail and others were with little or vague detail. Although the expert opined that this could be due to some of the mother’s memories having dulled or sharpened due to trauma, as well as her feeling uncomfortable or anxious when talking about these incidents with the expert.
In his affidavit in reply the father denies drinking “excessively” and maintains:-
I have never played any form of building towers with empty drinks; it doesn’t appeal to me. Statements like this confirm to me that [the mother] does indeed fabricate things.
When cross-examination the father was asked about the cotton eye joe video and if there was similarities between that and stacking beer cans. In this regard, the father disagreed and stated that it was a challenge on the internet but agreed that he was inebriated and probably had about 10 beers. The cotton eye joe challenge is a drinking game where drinking cans are placed in a circle and a person stands in the middle and steps on the cans to a tune.
The mother deposes that the father had told her he had in the past used illicit substances. The mother deposes that during the relationship she observed the father abusing prescription medication, often combining the medication with alcohol.
Pursuant to court orders made 27 August 2021, the father was required to submit himself for hair follicle testing. In September 2021 the father’s hair follicle sample produced a positive result for excessive alcohol consumption. He deposes:-
The weekend before the test I was […] with mates […] and we had a big long weekend. As stated earlier, my alcohol intake was also a means of dealing with my stress and anxiety, but that is something I have worked on. I am by no means dependent and can go weeks without a drink.
In his affidavit filed 7 December 2020 in response to allegations that the father had used and/or abused substances including illegal substances, he deposes:-
I am very anti-drugs, especially as I lost a friend to methamphetamine. I have been randomly drug tested at work on many occasion and passed every one of them I hold a very senior position with our company and would never jeopardise that by taking any form of illegal substance. I am more than willing to undertake a drug screen or even a hair follicle test. These allegations of being violent and drug-taking are utterly false, untrue and very hurtful.
Later in his affidavit in reply filed 23 October 2022 the father admits to having smoked marijuana in the past but did not enjoy it. The father further admitted to using prescription medication at the beginning of the proceedings to ease symptoms of anxiety and depression but denies taking the medication during the relationship. The father admits to taking another prescription medication for an injury amounting to one packet every three months.
The mother deposes to having completed a SafeCare program, an in-home parenting program run by WW Health Service and a “Bringing Up Great Kids” course run by the local council.
The mother also received group based training whilst in refuge accommodation around women who have experienced family violence.
Ms N, Counselling Clinician at ZZ Health Service prepared a support letter dated 15 June 2022 confirming the father’s attendance in seven counselling sessions.
The father participated in a Men’s Behaviour Change Program between October 2021 and April 2021, having participated in 20 sessions. The father also completed a Co-Parenting Course.
The father was cross-examined on subpoenaed notes from the Men’s Behaviour Change Program which show the father omitting certain information. Under cross-examination the father was asked about the questionnaire that he filled out in the course of the program where he was asked if he has ever withheld sex as a punishment. In his affidavit the father denies that he has ever done so but in the questionnaire he answered that he has “occasionally”. Under cross-examination the father maintained he had withheld sex as punishment.
Despite the Men’s Behaviour Change Program recording that the father spoke of the mother in a disrespectful manner, the father denied that he spoke disrespectfully. The father failed to provide the program with details of the incidents of violence between himself and the mother and he omitted information in an effort to make himself look better. His ability to engage properly in the program is limited by the honesty with which he answered questions.
Maturity, sex, lifestyle and background (including culture and traditions) of the children and either parent
The mother is a Country B citizen and has been living in Australia on a visa. The father has demonstrated a disregard to X having a connection to his Country B culture and remained dismissive of the child learning or using Country B words. The father reported to the Family Consultant that the mother has been ‘prioritising’ teaching X Country B language over English and is critical of the mother. It is appropriate that X learn Country B language. I am satisfied that the mother will promote X’s proficiency in English.
Attitude to the child and responsibilities of parenthood demonstrated by each parent
It is a paltry amount to assist the mother. The mother has been responsible for the financial support of X. The current rate of child support, as accessed, is $177 per week according to the mother. In the two and a half years between separation and the hearing the father paid the sum of $1,225 in child support of which $800 was paid after the mother made her trial affidavit complaining about no reasonable child support. By comparison, the father spends considerable amounts of disposable income on alcohol. In cross-examination by Counsel for the mother the father admitted to having spent $3,000 at hotels in the 5 months prior to the final hearing although says that only $2,000 of that was on alcohol and the rest was on food.
The amount paid by the father for X’s support up till the final hearing was paltry. Not only did the father spend excessive amounts of money on alcohol he took a holiday to Region PP including paying for another person. During this time the mother was in emergency accommodation, unable to apply for social security payments due to her immigration status and with no source of income. The father’s lack of monetary support reflects poorly on his attitude to X and to the mother and on his responsibilities as a parent.
X has been exposed to family violence and has experienced disruption to his life from relocating with the mother to a refuge and then securing independent housing. With reference to the Family Report, the father “did not demonstrate an ability to be accountable for the family violence that did occur [during the relationship]…and it is unlikely that he views his own behaviour as problematic and in needing [sic] of change”.
The father’s alcohol consumption remains a concern as hair follicle test results in October 2021 indicated that the father’s alcohol use was at “excessive consumption”. The father has failed to undergo a further hair follicle test to address the possibility of having an Alcohol Abuse Disorder. Testing would be necessary if the father aspires to spend unsupervised time with the child. The father has participated in Men’s Behavioural Change program and engaged with a generalist counsellor trained in family violence.
The mother seeks regular mental health supports and have participated in the SafeCare program, “Bringing Up Great Kids” and attended support group model work. The mother acknowledges the child’s exposure to family violence and maintains that she has attempted to leave the relationship and separate from the father through purchasing plane and bus tickets. Post-separation the mother has engaged in parenting programs, services and supports. The mother’s evidence is that she has tried to develop a stable and predictable routine for X by enrolling him in extracurricular classes.
It is the mother’s case that despite the father completing the Men’s Behaviour Change program and attending counselling sessions, there is insufficient evidence that the father has managed lifestyle changes. The father has been charged with breaches of the IVO that is in place for the mother and X’s protection and prioritising an overseas holiday and expensive car loan over paying for a further hair follicle test. She also contends that the father continues to behave in an intimidating manner.
Family violence relating to the children or a member of the children’s family
The parties’ relationship was violent and the extent to which the family violence occurred and who initiated the violence is disputed. There have been mutual intervention orders between the parents and the family violence allegation by the mother caused Child Protection to intervene resulting in her relocation to a women’s refuge.
I have dealt with family violence in detail earlier in these reasons. Save for the first six months of the relationship, family violence was a constant occurrence. Unfortunately I cannot be satisfied that much has changed.
Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the child
The uncertainty of the father’s alcohol abuse remains a risk for the child in terms of his parenting capacity and the supervised time the father has spent with the child remains untested. The father’s time can be increased “in accordance with [the father’s] capacity to fulfil a parental role and [X’s] developmental needs and tolerance levels in separation from his primary parent.” The orders proposed by the mother and the independent children’s lawyer will allow for a progression of the father’s spend time relationship with X which is consistent with his age and development. The father has had extensive time to make changes to provide for a more meaningful relationship with the child but he has failed to do so. He has also failed or neglected to improve his relationship with the mother. It is likely that there would need to be further litigation regarding the living arrangements, parenting orders and further intervention orders if there is a delay in the mother’s relocation. I am satisfied it would not be in X’s best interests to prevent the mother from relocating in the hope of the father becoming more involved in X’s life including complying with necessary drug testing.
There is some ambiguity around supervision arrangements for the father’s time with X pending the relocation of the mother and X to Country B. I have drawn the orders to provide for the supervisor to be as agreed. Obviously, in the absence of agreement and subject to having relevant evidence before it, the court will make orders about the identity of the supervisor and the cost of supervision. I have reserved liberty to apply in this respect and that liberty to apply can be exercised with a minimum of formality to ensure that any dispute can be resolved quickly and X can continue to see his father, and hopefully the father’s family, up until the time he departs for Country B.
It was submitted by Counsel for the father that the father’s time with X should not be expressed merely in terms of being supervised. In short, it should say when supervision can cease. He submitted “[w]hat would be fairer if the Australian court could make contingent orders as to what would be required for the father to be able to progress and for the mother to be required to allow the father to progress.” The difficulty is that I do not know when supervision can cease and it would be and it is impossible to access that time having regard to X’s best interests. If X remains habitually resident in Australia the father can reinstitute proceedings in this court based on a change of circumstances which would most conceivably, include solid evidence that he has ceased to consume alcohol excessively and irresponsibly. If X relocates to Country B, he will be habitually resident in Country B and Country B will be the state with preeminent jurisdiction to make parenting orders in relation to X. It will be up to the courts in Country B to judge whether the father has the capacity to have unsupervised time with X. However, if in exercising that jurisdiction that the court’s in Country B want any form of cooperation from this court, they should ask me …@..., or either of the other two Hague Network Judges, our Chief Justice the Honourable Justice William Alstergren …@... or Justice Jillian Williams …@.... There are also Articles 30 and 31 of the 1996 Convention.
It was submitted by Counsel for the father that supervision by the maternal aunt was problematic given her low opinion of the father’s responsibilities to parenting. However, Mr Scriva did not have instructions to propose any other supervisor. He submitted that time between the father and X should simply be unsupervised in Country B. I do not accept that submission. First, the parents would have been living in separate countries and the mother will have little familiarity with what the father’s lifestyle has been back in Australia in terms of alcohol consumption and the like. Whilst the father has to return satisfactory hair follicle tests, they are not conclusive of whether supervision should still be required. There is the issue of the father’s negative attitude to the mother. There is also the issue of whether the father may attempt to leave Country B with X. Mr Scriva responded to the last point to saying he would only do so to come back to Australia which is, of course, no consolation to the mother.
I have requested that the independent children’s lawyer not be discharged immediately upon delivery of this decision and that they remain for at least 30 days. My impression is that the continued involvement of the independent children’s lawyer for a short time following delivery of this decision will be the most economical way of avoiding further protracted proceedings about matters in dispute, such as supervision.
Any other fact or circumstance
The mother’s proposal to go to live in Country B puts her and X in a situation which the mother considers is optimal and which there is ample evidence before the court to satisfy me is preferable to the manner in which the mother now lives. That is, in temporary housing without secure employment or a realistic ability to obtain employment and without any family support. In considering a relocation case at this I take into account the mother’s freedom of movement as a relevant consideration.
CONCLUSION
I am satisfied that the parents are ill-equipped to, and cannot, co-parent X. The father, more so than the mother, cannot put aside his feelings of anger and resentment towards the mother and recognise that X needs parents who can tolerate one another before he can have a meaningful relationship with both parents which will be beneficial. I am satisfied that it is in X’s best interests for the mother to have sole parental responsibility.
The father’s concession that X should remain in the mother’s primary care is not so much an endorsement of the mother but a realisation that he has no prospect of succeeding with a residence application. I accept the Family Consultant’s view that relocation of X to Country B in likely to be beneficial because it will put a considerable distance between the parents. I appreciate that the parents will have to communicate over time to be spent between X and the father but that will be once or twice a year, not each weekend or alternate weekend.
I accept that the mother will foster a relationship between the father and X, providing that she thinks it is safe to do so. Her attitude in that regard since separation has been reasonable. I do not believe that the mother’s family will discourage or undermine X’s relationship with the father. Their evidence about the father’s personal deficiencies, which is set out above, was given frankly and honestly rather than with malice.
I am satisfied that prior to separation the parental dynamic was a violent and conflicted one that had enormous potential to harm X psychologically and emotionally. Post separation, I predict that as X grows older, the father will have little or no tolerance for X’s relationship with or positive feelings for the mother. That will be difficult for X and a source of conflict between him and the father. Of course the father may change his behaviour and attitudes but there is no sign of that at the moment.
The mother’s mental health is likely to be better in Country B than if she remains in Australia. I am satisfied that it is more important and beneficial for X to have a healthy and supported primary carer than to aspire for X to have a meaningful relationship with both parents. There is no goodwill to build on. Both parents have limitations. That is not to say that relocation will make a meaningful relationship between X and the father impossible. I have confidence in the mother’s resolve to promote a relationship between X and the father particularly if the mother is removed from the father’s environment.
The mother’s proposal for relocation to Country B is to be preferred over the father’s proposal that the mother and X remain in Australia. Relocation will provide the mother with material and emotional support which will foster stability for X and the mother. The expert evidence is that the mother is psychologically vulnerable and will benefit from support. How well the mother’s family will work together is untested. However, by comparison, the father having a more extensive relationship with X is, at the moment, aspirational. The father has failed to undergo tests for drugs and excessive alcohol use when he well knew that satisfactory test results would be a pre-condition to him having expanded time with X. He remains very poorly disposed to the mother. The father recognises that X should remain in the mother’s primary care but gives every indication that he does not value her parenting of X. It appears that the father cannot put to one side the anger and resentment that he feels towards the mother and concentrate on what is best for X.
I find that the mother is likely to have a greater and better capacity to parent X if she can do so in Country B.
Because the mother has sole parental responsibility I am relieved from considering the appropriateness of shared, substantial and significant time pursuant to s 65DAA of the Act. I am satisfied that the orders provided by the mother and the independent children’s lawyer in relation to the father’s time with X both in Australia and in Country B are satisfactory. Counsel for the father did not propose an alternative set of orders for time and communication post relocation. The father’s time remains supervised. The expert evidence about the need for supervision is compelling, not just as to content but also having regard to the fact the expert evidence was available to both parties and their advisors well ahead of the hearing. Accordingly, it was open to either party to address the deficiencies or areas of concern identified by the experts.
I will not make the order sought in relation to either parent being entitled to travel outside Australia or Country B with X on giving notice to the other, as each parent and the independent children’s lawyer propose. The mother is entitled to do so anyway by virtue of having sole parental responsibility. It is not necessary or appropriate for enable the father to do likewise whilst all his time is being supervised including by the mother’s family in Country B.
For the above reasons I make the orders set out at the commencement of these reasons for decision.
There will be liberty to apply in relation to implementation of this order not only in terms of enforceability in Country B but so that the order, as pronounced, reflects what these reasons have said that I will do, consider is appropriate and what I have found is in X’s best interests. Liberty to apply in relation to implementation is not an invitation for either parent to reargue the case but can address the matter which requires clarification or has been omitted by inadvertence.
I certify that the preceding two hundred and sixty-two (262) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett.
Associate:
Dated: 6 September 2023
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