Carrieri & Steenkamp
[2023] FedCFamC1F 609
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Carrieri & Steenkamp [2023] FedCFamC1F 609
File number(s): MLC 13556 of 2020 Judgment of: STRUM J Date of judgment: 25 July 2023 Catchwords: FAMILY LAW – PARENTING – RELOCATION – Where the mother seeks to relocate the child’s residence from metropolitan Melbourne to regional Victoria – Where the child is nearly four years of age – Where the mother is originally from regional Victoria and her family and support networks are located there – Where the father and the paternal family reside in metropolitan Melbourne – Where the father seeks for the child and the mother to remain living in metropolitan Melbourne and a progression for the child to spend equal time with each parent – Where the mother seeks sole parental responsibility over matters relating to health and education – Where the father seeks equal shared parental responsibility – Where the father and paternal family have engaged in behaviour that belittles the mother and maternal family – Where the father unashamedly and without any justification views himself and his family as superior to the mother and her family – Adverse inferences drawn from father’s failure to adduce evidence from his family members – Where the parents are unable to co-parent effectively – Relocation allowed – Sole parental responsibility for matters of health and education granted to the mother. Legislation: Evidence Act 1995 (Cth) ss 55, 140
Family Law Act 1975 (Cth) ss 4(1), 4AB, 60B, 60CA, 60CC, 61C, 61DA, 64B, 65DAA, 65DAC, 69ZT, 121
Family Law Regulations 1984 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 8.15(3)(e)
Cases cited: AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
Anderson & Salinos [2022] FedCFamC1F 976
Asher & Wilkinson (2020) FLC 93-945; [2020] FamCAFC 44
Britt & Britt (2017) FLC 93-764; [2017] FamCAFC 27
Chappell & Chappell (2008) FLC 93-382; [2008] FamCAFC 143
Doherty & Doherty [2016] FamCAFC 182
Eddington & Eddington (No 2) (2007) FLC 93-349; [2007] FamCA 1299
Franklyn & Franklyn [2019] FamCAFC 256
Goode v Goode (2006) FLC 93-286; [2006] FamCA 1346
Hall & Hall (1979) FLC 90-713; [1979] FamCA 73
Height & Rhett [2010] FMCAfam 1268
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
KB & TC (2005) FLC 93-224; [2005] FamCA 458
Kennedy v Kennedy [2010] FamCAFC 195
Love v Henderson (1996) FLC 92-653
Mallory & Mallory [2019] FamCAFC 221
Masoud & Masoud (2016) FLC 93-689; [2016] FamCAFC 24
Mazorski & Albright [2007] FamCA 520
McGregor & McGregor (2012) FLC 93-507; [2012] FamCAFC 69
Mulrooney & Cooper [2023] FedCFamC1F 273
Newlands v Newlands [2007] FamCA 168
Pavli & Beffa [2013] FamCA 144
Sampson & Hartnett (No 10) (2007) FLC 93-350; [2007] FamCA 1365
Sayer & Radcliffe and Anor [2012] FamCAFC 209
Sherif & Sherif [2012] FamCA 215
Sitwell & Sitwell [2014] FamCAFC 5
Stadler & Blau [2017] FamCA 452
Taylor & Barker [2007] FamCA 1246
U v U (2002) 211 CLR 238; [2002] HCA 36
Ulster & Viney (2016) FLC 93-722; [2016] FamCAFC 133
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Division: Division 1 First Instance Number of paragraphs: 327 Date of hearing: 8–10 and 21 February 2023 Place: Melbourne Counsel for the Applicant: Mr Duckett Solicitor for the Applicant: Costanzo Lawyers Counsel for the Respondent: Ms Isaacson Solicitor for the Respondent: Lander and Rogers ORDERS
MLC 13556 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR CARRIERI
Applicant
AND: MS STEENKAMP
Respondent
ORDER MADE BY:
STRUM J
DATE OF ORDER:
25 JULY 2023
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
PARENTAL RESPONSIBILITY
2.The mother have sole parental responsibility for all matters relating to the health and education of the child X born 2019.
3.With regard to matters concerning the health and education of the child:
(a)the mother provide to the father in writing details of and information in relation to any proposed decision not less than 21 days prior thereto, save in the case of emergency;
(b)the father be at liberty to provide a response and any feedback to the mother in writing in relation thereto, for her consideration, within 7 days thereafter; and
(c)the mother thereafter notify the father in writing of her decision within 7 days thereof, save that, in the event of emergency, she advise him of any decision made and provide him with details thereof and information in relation thereto, as soon as reasonably practicable after making such decision.
4.Save as provided by Order 2, the father and the mother otherwise have equal shared parental responsibility for the child.
RELOCATION
5.Upon providing the father with 60 days' notice in writing, the mother have leave to relocate the residence of the child to (or in the immediate vicinity of) City B in the State of Victoria.
CHILD'S LIVING ARRANGEMENTS
6.The child live with the mother.
PROVISIONS FOR CHILD TO SPEND TIME AND COMMUNICATE WITH PARENTS
7.Pending relocation, the child spend time with the father as follows:
(a)each week from 5.30 pm Tuesday until 5.30 pm Wednesday;
(b)each alternate weekend, from 5.30 pm Friday until 5.30 pm Sunday, commencing on the Friday a fortnight after the child last spent weekend time with the father;
(c)on the birthdays of each of the child and the father (should same not otherwise fall during the father's time with the child pursuant to Orders 7(a) or 7(b) hereof):
(i)on a weekday - from 3.30 pm until 6.00 pm;
(ii)on a weekend - for a period of 5 hours as may be agreed between the parties in writing and in default of agreement, between 9.00 am and 2.00 pm;
(d)from 12:00 pm on the eve of Fathers' Day in 2023 until 6.30 pm on Fathers' Day in 2023 (should same not otherwise fall during the father's time with the child pursuant to Orders 7(a) and 7(b) hereof).
(e)from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in 2023 (with the child to spend time with the mother from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day in 2023);
(f)from 5.30 pm on Easter Saturday until 5.30 pm on Easter Monday in 2024 (with the child to spend time with the mother from 5.30 pm on the eve of Good Friday until 5.30 pm on Easter Saturday in 2024);
(g)at such further or other times as may be agreed between the parties in writing.
8.In the event that the child is spending time with the father on the following occasions prior to relocation, such time be suspended to enable the child to spend such time with the mother:
(a)from 12.00 pm on the eve of Mothers' Day in 2024 until 6.30 pm on Mothers' Day in 2024;
(b)on the birthdays of each of the child and the mother:
(i)on a weekday - from 3.30 pm until 6.00 pm;
(ii)on a weekend - for a period of 5 hours as may be agreed between the parties in writing and in default of agreement, from 9.00 am until 2.00 pm;
9.For the purpose of the child spending time with the father pursuant to Order 7 (and, with the mother, pursuant to Orders 7(e), 7(f) and 8), changeover occur as follows:
(a)on Tuesdays and Fridays - at McDonald's Suburb D, Victoria;
(b)on all other occasions - at McDonald's Suburb C, Victoria; or
(c)at such other location as may be agreed between the parties in writing.
10.Commencing upon relocation, the child spend time and communicate with the father:
(a)in the first weekend of each four-week period - from 6.30 pm on Friday until 6.30 pm on Sunday (or until 6.30 pm on Monday, if it is a Victorian gazetted public holiday);
(b)from the child's fourth birthday, the father be at liberty to extend his time with the child pursuant to Order 10(a) to commence at the conclusion of childcare/kindergarten/school on Friday until the commencement of childcare/kindergarten/school on Monday (or 9.00 am if a non-school day), provided that such time be spent in the vicinity of City B;
(c)in the third weekend of each four-week period - from 7.30 pm on Friday until 3.30 pm on Sunday;
(d)by Facetime, at times agreed between the parties in writing and in default of agreement, each Tuesday and Thursday between 6.00 pm and 6.30 pm (with the father to initiate the Facetime communications to the mother's mobile telephone number and the mother to facilitate such communications);
(e)from 12.00 pm on the eve of Fathers' Day until 6.30 pm on Fathers' Day provided that, if the father spends such time in the vicinity of City B, he be at liberty to extend such time until the commencement of childcare/kindergarten/school on Monday (or 9.00 am if a non-school day);
(f)from 4.30 pm on Christmas Eve until 12.00 pm on Boxing Day immediately following relocation and each alternate year thereafter (with the child to spend time with the mother from 4.30 pm on Christmas Eve until 12.00 pm Boxing Day in each other alternate year);
(g)from 12.00 pm on Good Friday until 12.00 pm on Easter Monday immediately following relocation and each alternate year thereafter (with the child to spend time with the mother from 12.00 pm on Good Friday until 12.00 pm on Easter Monday in each other alternate year);
(h)on the birthdays of each of the child and the father (should same not otherwise fall during the father's time with the child pursuant to Orders 10(a), 10(b) or 10(c) hereof):
(i)on a weekday - from 3.30 pm until 6.00 pm;
(ii)on a weekend - for a period of 5 hours as may be agreed between the parties in writing and in default of agreement, between 9.00 am and 2.00 pm–
provided that such time be spent in the vicinity of City B;
(i)at such further or other times as may be agreed between the parties in writing.
11.For the purpose of the child spending time with the father:
(a)pursuant to Orders 10(a), 10(e), 10(f) and 10(g), changeover occur:
(i)at the petrol station at E Street, Town F in the State of Victoria (situate at the corner of G Street, Town F) at the commencement and the conclusion of the father's time; or
(ii)at such other location as may be agreed between the parties in writing.
(b)pursuant to Order 10(c), changeover occur:
(i)at McDonald's Suburb C at the commencement and the conclusion of the father’s time; or
(ii)at such other location as may be agreed between the parties in writing.
12.For the purpose of the child spending time with the father in the vicinity of City B pursuant to Orders 10(b), 10(e) and 10(h):
(a)the father provide the mother with not less than 7 days' notice in writing of his intention to spend such time with the child and, for the avoidance of doubt, if the father fails to provide such notice:
(i)the time contemplated in Order 10(b) occur in accordance with order 10(a) and changeover occur in accordance with Order 11(a)(i);
(ii)the time contemplated in Order 10(e) occur only from 12.00 pm on the eve of Fathers' Day until 6.30 pm on Fathers' Day and changeover occur in accordance with Order 11(a)(i);
(iii)the time contemplated in Order 10(h) not occur;
(b)if the father provides notice in accordance with Order 12(a), changeover occur as follows:
(i)at the child's childcare/kindergarten/school on a childcare/kindergarten/school day;
(ii)at McDonald's City B on a non-childcare/kindergarten/school day; or
(iii)at such other location as be agreed between the parties in writing.
13.In the event that the child is otherwise due to spend time with the father on Mothers' Day, time:
(a)conclude at 6.30 pm on the eve of Mothers' Day; or
(b)be suspended between 6.30 pm on the eve of Mothers' Day and 6.30 pm on Mothers' Day -
as may be applicable.
School holidays
14.The child spend time with the father during childcare/kindergarten/school holiday periods as follows:
(a)from the time the child commences childcare/kindergarten which provides for term holiday periods in 2024:
(i)during the term 1 holidays - for three consecutive nights, commencing at 5.00 pm on the Monday in the first week of the said holidays until 12.00 pm on the following Thursday;
(ii)during each of the term 2 and term 3 holidays - for four consecutive nights, commencing at 5.00 pm on the Monday in the first week of the said holidays until 12.00 pm on the following Friday;
(iii)during the 2024/2025 long summer holidays - for periods of four consecutive nights in each alternate week of the said holidays, commencing at 5.00 pm on the Monday in the first week of the said holidays until 12.00 pm on the following Friday and in each alternate week thereafter;
(b)from the time the child commences his preparatory year at primary school in 2025:
(i)during each of the term 1 and term 2 school holidays - for five consecutive nights in the first week of the said holidays, from 5.00 pm on Monday until 12.00 pm on Saturday;
(ii)during the term 3 school holidays - for six consecutive nights in the first week of the said holidays, from 5.00 pm on Monday until 12.00 pm on Sunday;
(iii)during the long summer holidays in 2025/2026 - for two separate periods of seven (7) consecutive nights, on dates to be agreed in writing between the parties and in default of agreement:
A.from 12.00 pm on 2 January 2026 until 12.00 pm on 8 January 2026; and
B.from 12.00 pm on 16 January 2026 until 12.00 pm on 23 January 2026;
(c)from the time the child commences Grade 1 in 2026:
(i)for one half of all school term holidays on dates to be agreed in writing between the parties and in default of agreement the first half thereof;
(ii)for one half of the long summer holidays, for periods of seven consecutive nights in alternate weeks;
(d)as and from the time the child commences Grade 2 in 2027:
(i)in each of the school term holidays - for a period of nine consecutive nights on dates to be agreed in writing between the parties and in default of agreement, from the conclusion of the school term on Friday at 6.30 pm until 12.00 pm on the Sunday of the first full week of the term holidays; and
(ii)for one half of the long summer holidays.
15.In the event that the father’s time with the child at Easter coincides with the first term school holidays, the latter time be configured to include the former time, notwithstanding any other provision of these orders.
16.For the purposes of the time to be spent by the child with the father during childcare/kindergarten/school holidays referred to in Order 14:
(a)Unless otherwise provided herein, such holidays are deemed to commence:
(i)at 3.30 pm on the final day of childcare/kindergarten/school for the term 1, 2 and 3 holidays;
(ii)at 12.00 pm on 28 December in each calendar year for long summer holidays;
(b)unless otherwise provided herein, all such holidays (including term holidays and long summer holidays) are deemed to conclude at 12.00 pm, three days prior to the commencement of the next term and, notwithstanding anything to contrary in these orders, the child thereupon return to live with the mother until the commencement of the new term;
(c)changeover is to occur:
(i)prior to relocation (if applicable) at McDonald's Suburb C;
(ii)subsequently to relocation, at the petrol station at E Street, Town F (situate at the corner of G Street, Town F) at the commencement and the conclusion of the father’s time or such other location as may be agreed between the parties in writing.
17.From the time the child commences childcare/kindergarten which provides for term holiday periods in 2024, his fortnightly time with the father pursuant to Orders 7(b), 10(a), 10(b) and 10(c) thereafter be suspended during childcare/kindergarten/school holidays and, save as otherwise provided:
(a)the child's cycle of spending time with the father resume at the beginning of each new term as though the holidays had not occurred; and
(b)for the avoidance of doubt, the allocations and structure of weekend arrangements for the child to spend time with the father not be changed without prior written agreement between the parties.
Other
18.The parties forthwith implement the "Our Family Wizard" communication application (or such other communication application or other method of communication as may be agreed between them in writing) in respect of all written notifications / communications pursuant to these orders, any day-to-day communications concerning the child or arrangements for the child save that, in the event of emergency, the parties communicate by text message or email.
19.Each party inform the other, as soon as reasonably practicable, of any serious injury or illness sustained by the child while in his/her care.
20.Each party inform the other in writing of any change of:
(a)residential address - at least 21 days prior to any such change; and
(b)email address and /or mobile telephone number forthwith upon such change.
21.The mother advise the father in writing of any extracurricular activities in which the child is enrolled, within seven days of any such enrolment.
22.Each party facilitate communication between the child and the other party at the child's request.
23.Each party be at liberty to:
(a)attend childcare/kindergarten/ school events to which parents are usually invited to attend;
(b)obtain, at his/her expense, from the child's childcare, kindergarten and school, newsletters, school photographs, reports and like correspondence usually provided to parents and access to the school's intranet system;
(c)attend individually parent/teacher interviews, separately from the other.
24.The father, by himself, his servants and agents, be and is hereby restrained from:
(a)leaving the child in the care of or otherwise coming into contact with his sister, Ms H;
(b)from cutting the child's hair without the prior written consent of the mother; and
(c)for the avoidance of doubt, causing the child to attend at any childcare, kindergarten or school other than as enrolled by the mother.
25.The parties, by themselves, their servants and agents, be and hereby are restrained from:
(a)denigrating the other parent, and any member of his/her family, to or in the presence or hearing of the child, or allowing or abiding the child to remain in the presence of any other person so doing;
(b)discussing these proceedings with or in the hearing or presence of the child or allowing or abiding the child to remain in the presence of any person so doing; and
(c)showing the child any court document or other document relating to these proceedings or allowing or abiding the child to remain in the presence of any other person so doing.
Travel
26.The parties sign all documents and do all acts and things required from time to time to ensure that the child has a current passport, such passport be held by the mother at all times unless otherwise agreed in writing.
27.Each party be permitted to travel with the child, within the Commonwealth of Australia, during his/her time with him, subject to:
(a)the travelling party providing to the other party not less than fourteen days prior written notice of his/her intention to travel with the child and the proposed dates and destination thereof; and
(b)the travelling party providing to the other party, not less than seven days prior to departure, copies of the itinerary, including return flight and accommodation details, in respect of the proposed travel, and contact telephone numbers at each destination.
28.All extant applications be otherwise dismissed and removed from the docket of the Honourable Justice Strum.
AND THE COURT NOTES THAT:
A.Pursuant to s 62B of the Family Law Act 1975 (Cth), information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
B.Pursuant to s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.
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 the pseudonym Carrieri & Steenkamp has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
STRUM J:
INTRODUCTION
The applicant father, Mr Carrieri, and the respondent mother, Ms Steenkamp, are unable to reach agreement with respect to parenting orders pursuant to the Family Law Act 1975 (Cth) (“Act”) for the child of their relationship, X, born 2019 and presently aged nearly 4 years. Financial issues were resolved on the first day of the trial, when orders were made in the terms of a minute of orders by consent.
These proceedings were initiated by the father, who filed an Initiating Application on 9 December 2020, following the mother unilaterally relocating to City B in the State of Victoria with the child in late 2020. The most recent iteration thereof, his second further amended Initiating Application was filed on 28 November 2022. The mother filed initially a Response to Initiating Application on 18 December 2020 and, most recently and relevantly, a third further amended Response to Initiating Application on 12 December 2022.
Shortly prior to trial, in his case outline, the father provided a minute of orders sought. On the first day of the trial, the mother tendered a minute of orders sought and, on the last day thereof, she tendered a revised minute of orders sought (Exhibit W-17).
The principal issues for determination by me are, in summary, whether the parties should have equal shared parental responsibility, as the father seeks, or the mother should have sole parental responsibility for the child's health and education; whether the mother should be permitted to relocate the child with her from metropolitan Melbourne to City B in regional Victoria; and the amount of time to be spent between the father and the child. The father opposes the relocation of the child from metropolitan Melbourne and seeks to spend time with him, increasing on a graduated increase to week-about time by the time he attains the age of five years in September 2024. Clearly, the issues of where the child lives and the time to be spent with the father are inter-dependent. Unusually, the orders sought by the father do not contemplate what time he seeks to spend with the child if, contrary to his case, relocation is permitted. Similarly, the orders sought by the mother do not contemplate what time the father should spend with the child if, contrary to her case, the child is to continue to reside in metropolitan Melbourne.
For the reasons that follow, I will order, in summary, that the parties have equal shared parental responsibility for the child, save in respect of his health and education, for which the mother will have sole parental responsibility; the child live with the mother and she be permitted to relocate with him to or in the vicinity of City B; and the father spend time with the child, including in the first and third weekend of each month, the first such weekend in City B or Melbourne, at his election, and the third such weekend in Melbourne.
BACKGROUND
A joint agreed chronology was tendered and, save where otherwise indicated, forms the basis of the relevant background to this matter hereunder.
The father was born in 1984 and the mother was born in 1984. They commenced cohabitation in late 2016 and they were married in late 2018. The child was born the following year. On the child's first birthday, , the father left the former matrimonial home in Suburb J, at the request of the mother, and went to stay at his parents' home, nearby in Suburb C. The following day, the mother moved to City B with the child, where her extended family lives; namely, her mother, her step-father and her sister. The mother asserts that separation occurred on that date. The father asserts that he was not then aware that their separation was to be final. However, the precise date of separation is immaterial for present purposes.
In late 2020, Victoria Police filed an application for an interim Intervention Order against the father, for the protection of the mother and the child. The following day, on what is agreed by the parties to have been a “full no contact Interim Intervention Order (with the usual exceptions)” [sic] was granted. Some weeks later, arrangements were implemented between the parties for the father to spend time with the child in City B. I am satisfied that, by that time, at the latest, the parties had separated. They were divorced in late 2022.
Between late 2020 and early 2021, the father travelled to City B to spend time with the child over 10 weekends. However, as recited above, on 9 December 2020, he initiated these proceedings, seeking then only final and interim parenting orders. On the first return thereof, on 5 January 2021, a Senior Judicial Registrar made interim orders, inter alia, requiring the mother to return the child's residence to within a 20km radius of the former matrimonial home in Suburb J; providing for the child to spend time with the father, initially only during the daytime and increasing to overnight once per fortnight from his second birthday; providing for the parents to have equal shared parental responsibility; requiring the father to undertake a men's behaviour change course; and restraining the father from leaving the child in the unsupervised care of Ms H, one of his two sisters. For reasons which will become apparent, the husband's sister is relevant to these proceedings but, unusually, for reasons which were not explained by the father, he did not call her to give evidence.
In mid-2021, a final intervention order was made against the father, which expired in mid-2022. It is common ground, from the joint chronology, that in August 2021, the father “acknowledge[d] responsibility” for two contraventions of the intervention order and chose to be dealt with pursuant to the diversion option offered to him. He was required to make a charitable donation of $300.00 and to be of good behaviour, for a period of six months, until early 2022.
In mid-2021, the child broke his leg whilst in the father's care. Upon being returned to the mother's care, she took him to hospital. The incident was investigated by the Department of Families, Fairness and Housing and the Sexual Offences and Child-Abuse Investigation Team and was deemed by them to be accidental, such that no further action was required to be taken.
In mid-2021, the mother commenced employment at K Centre in Suburb D. Again, for reasons which will become apparent, the mother's employment at that centre, which is presently ongoing, is relevant.
On 24 November 2021, a Family Report dated 25 September 2021, prepared by Mr L, a Family Consultant appointed pursuant to reg 7 of the Family Law Regulations 1984 (Cth), was released to the parties (“first Family Report”).
On 1 February 2022, the Senior Judicial Registrar again made interim orders, inter alia, providing for a graduated increase in the father's time with the child, by early March 2022, to each alternate weekend from 5.00 pm on Friday until 5.00 pm on Sunday and each week from 7.45 am on Tuesday until 4.00 pm on Wednesday.
On 18 February 2022, the mother filed an Application for Review of those orders and, on 21 March 2022, Austin J ordered in their place, inter alia, that the child spend time with the father each alternate weekend from 9.00 am on Saturday until 5.00 pm on Sunday and each week from 5.00 pm on Tuesday until 5.00 pm on Wednesday. Since then, the child has spent time with the father on this basis.
A further Family Report was prepared by Mr L dated 25 November 2022 (“second Family Report”).
The trial before me proceeded over four days, on 8-10 and 21 February 2023.
EVIDENCE
In addition to his documents referred to above, the father also relevantly relied at the final hearing upon his trial affidavit filed 28 November 2022 and his reply affidavit filed 19 December 2022. Affidavits of his parents were also filed; however, as they related solely to financial issues, in the result, they were not required for cross-examination. I note that his parents were present in Court with him during the course of the hearing. As with his sister, Ms H, no evidence was adduced from them in relation to parenting issues. For reasons which will also become apparent, they too are relevant to these proceedings but, similarly unusually, and again for reasons which were not explained by the father, he did not call them either to give evidence.
In addition to her documents listed above, the mother also relevantly relied at the final hearing upon her trial affidavit filed on 12 December 2022, her further updating affidavit sworn on 3 February 2023 and filed with leave of the Court on 8 February 2022 and affidavits of her mother, Ms N, and her sister, Ms M, both filed 12 December 2022.
Evidence was also given by Mr L, in the form of his two family reports annexed to his affidavit filed 30 January 2023, in respect of which he was cross-examined on behalf of both parties.
Pursuant to s 140 of the Evidence Act 1995 (Cth), the standard of proof in this case is the balance of probabilities, That section provides:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)the nature of the cause of action or defence; and
(b)the nature of the subject?matter of the proceeding; and
(c)the gravity of the matters alleged.
The parties' affidavits exhaustively set out their accounts of history of their relationship and various parenting disputes. I have read and considered that affidavit evidence and do not propose to repeat it at length in these reasons. It is not necessary for a trial Judge to refer to every piece of evidence or argument presented during a trial.
In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said:
…A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case.
In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385 - 386, Mahoney JA said this:
It is not the duty of the judge to decide every matter which is raised in argument.
…
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard… Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…
CREDIT & OTHER OBSERVATIONS
This is a case in which, save for specific issues which are addressed hereunder, credit did not loom large. Generally, I am able to determine the case issue by issue, on my assessment of the evidence of the parties, the mother's witnesses and of the Family Report writer, Mr L, without resorting to findings of credit. The principal exception is the evidence of the father in relation to the involvement of his sister, Ms H, and his parents in the dispute between the mother and him, to which I refer below, and his failure to adduce evidence from them. Given his evidence that he enjoys a close and supportive relationship with all three of them; that he lives with his parents, affidavits of whom were filed in relation to financial but (surprisingly) not parenting issues and they were present in court with him; and that he regularly sees his sister, who lives nearby in Suburb O, for the reasons proffered in greater detail below, I infer that their evidence would not have assisted him. No other explanation was proffered for his failure to call them to give evidence in support of his parenting application and make them available for cross‑examination on behalf of the mother.
I found the mother, her mother and her sister all to be reliable historians in their evidence, which was not materially shaken in the limited cross-examination of each them. They gave their evidence in a forthright manner, making concessions where appropriate, and without rancour. They were all cross-examined relatively briefly and to not much effect: the mother for less than two hours; the maternal grandmother for less than 20 minutes; and the maternal aunt for less than 10 minutes. Quite properly, counsel for the mother saw no reason to re-examine them.
Conversely, I found the father to be defensive and combative in his presentation and evidence, reluctant to make appropriate concessions and demeaning in his attitude towards the mother, unable to say much that was genuinely positive about her. This was notwithstanding his proposal that they have equal shared parental responsibility (without exception) for the child and that they eventually spend equal time, on a week-about basis, with him.
Amongst the matters which gave me concern about the father and his ability (or, rather, inability) to co-parent with the mother, in circumstances where he seeks equal shared parental responsibility and equal time, was his evidence, from which he at no stage resiled, that:
(a)he considers the mother to be a “psychopath”, “narcissistic” and, at times, “coldhearted”;
(b)he believes the mother should be gaoled for what he asserts (but I do not find) to be perjury by her (notwithstanding that, even on his application, the child should live primarily and then equally with her);
(c)he does not believe the child feels love from the mother or that she cares about him;
(d)he questions the bond between the child and the mother, who has been his primary carer;
(e)in his opinion, the mother's family is “flawed”, in comparison to his, inter alia, because her parents are divorced;
(f)he thinks that the mother “comes from a pretty terrible broken home” and that she had a “terrible upbringing”;
(g)he believes there to be a “massive” difference between the mother's family and his, including because he asserts (contrary to the evidence) that the members of her family do not “help each other out”;
(h)he believes the mother's application to relocate with the child is merely a “bargaining chip” and that her wish to relocate to City B is in order to keep him away from the child;
(i)he believes that the mother has engaged in “father alienation” and, therefore, child abuse;
(j)he believes the mother “has no values”; and
(k)the idea of the child living in City B is “pretty atrocious” to him.
Having read the affidavits of the mother, maternal grandmother and aunt and listened carefully to their evidence, as well as observed their demeanour, in the course of cross-examination, I do not accept any of the allegations set out in the preceding paragraph.
THE FATHER’S CASE
The applicant father, in his case outline filed prior to the commencement of the final hearing, as well as more extensively in his written closing submissions (tendered as Exhibit H-3), which his counsel addressed orally at the conclusion of the trial, identified the issues for determination as being:
(a)whether it is in the best interests of the child to relocate to City B;
(b)whether it is in the best interests of the child to “allow the Mother freedom of movement within Greater Melbourne”;
(c)whether it is in the best interests of the child to allow the mother to relocate to City B for the commencement of the child's schooling in 2025;
(d)whether it is in the best interests of the child for his time with the father to progressively increase from four nights per fortnight, as is currently the case , to an equal shared care arrangement;
(e)whether the presumption of equal shared parental responsibility is rebutted;
(f)whether the child should spend substantial and significant time with the father; and
(g)the location for change-overs at the commencement and conclusion of the parties' time with the child.
The father submits that it is not in the child's best interests to relocate to City B with the mother because, rather than increasing to equal time, as he seeks, the child's time with him will be reduced from four nights per fortnight, as is currently the case, to (he contends) likely only one overnight per fortnight because of what he says will be the approximate travel time between his residence in Suburb C and City B, such that their time together will not be substantial and significant. This, he submits, will result in their relationship being “significantly diminished and harmed”. Further, he submits that the mother's proposed relocation to City B is not in the best interests of the child because (so he contends) it will bring no discernible benefits to the child, other than being in close proximity to the maternal grandparents and aunt and her children. He points to the fact that the mother has not secured any employment in the Region P area. Further, he submits, albeit without evidence, that he would not be able to secure employment in City B or the Region P area and that, inter alia, for this reason, it is not reasonably practicable for him to relocate outside the greater Melbourne area. His case is that he wishes to remain living close to his place of employment, extended family and friends, yet he opposes the mother's desire to do likewise. Rather, he proposes that the mother be “granted freedom of movement to live wherever she chooses within Greater Melbourne”, which would allow her to live substantially closer to City B, within reasonable travel time of both his residence in Melbourne and her parents' residence in City B.
In cross-examination, the father said:
…I've visited [City B] a few times… I got to meet people at the local IGA, because I was staying at a […] motel while I was there. I got to talk to IGA people. I talked to people at the service station, and the message that I got from them was this is not a great place, because it's hard to find work. It is riddled with drugs. This has come from local people that I met in [City B], and then, when I - and obviously, because of the pickup and drop off location being at the [City B Police Station], I was privy to seeing what was in the [City B Police Station], and it was littered with family violence stuff all over the walls.
(Transcript 10 February 2023, p.12 lines 15-23)
I give no weight whatsoever to the father's opinions and hearsay evidence in the preceding paragraph as being, in any way, evidence of the truth. I do, however, give weight thereto as evidence of his state of mind, including his troubling and misplaced sense of superiority, insofar as his family and he are concerned, over the mother and her family.
In the alternative, although no order to this effect is sought by the father, he submits that is open to the Court to decide that the mother be granted leave to relocate to City B in time for the commencement of the child's schooling in 2025, which would allow for the relationship between the child and him and his extended family to further develop and strengthen. In this regard, he also submits that a delay in relocation would allow for the maternal grandfather and family to “overcome the very significant emotional and logistical challenges presented by the maternal grandfather battling [illness]”. He submits that, in the interim, it would not be in the child's best interests to live for any period of time under the same roof as the maternal grandfather because he and the maternal grandmother will be “undergoing all of the pressures of multiple treatments and all that entails”. In the circumstances, he submits it is not in the best interests of the child “to live in such close proximity (under the same roof) as a household undergoing such understandably significant trauma”.
In relation to his application for an increase in the time the child spends with him, the father submits that the time the child has been spending with him since the orders made on 21 March 2022, namely, four nights per fortnight, has progressed well and that “[w]hen the child spends time with the Father the child does so at the paternal grandparents [sic] residence (where the Father currently resides) and the child spends 'quality time' with the paternal grandparents and the paternal aunties [sic]”. However, the term “quality time”, which is all too frequently used by litigants and lawyers in this jurisdiction, is not a term of art. It is, at best, conclusionary in nature and should be supported by particularised evidence. I refer further below to the paternal grandparents and aunt, Ms H, and their apparent negative attitude towards the mother.
Insofar as, contrary to the mother's case, the father submits that the presumption in relation to equal shared parental responsibility is not rebutted, he submits this is so “because he has not abused the Child or committed Family Violence towards the Child or the Mother (noting section 61DA of the Act)”. However, irrespective of s 61DA(2), that submission ignores s 61DA(4) of the Act. That latter subsection provides that the presumption (in s 61DA(1)), namely, that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child, may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
The father submits that, if the mother's application to relocate with the child to City B is granted, it would reduce the time currently spent by the child with him (four nights per fortnight) “to just one or two overnights each fortnight”. That is not necessarily so. The father's evidence is that he has not made any serious attempts, or even mere enquiries, in relation to the availability of employment for him in or near City B which could enable him to continue spending at least the same amount of time there as he currently does in Melbourne. He is currently employed as a manager for a business in Suburb Q and deposes that he has flexibility in that employment. He did not himself give or otherwise adduce any evidence, for example, from a recruitment consultant, as to the availability or otherwise of employment possibilities for him in or near City B. I assess his evidence overall as being to the effect that he simply does not wish to move to City B or, more broadly, Region P, even if such a move would enable him to maintain (or possibly increase) the time he currently spends with the child. Rather, he does not wish to be physically and geographically separated from his parents and sisters, with whom I accept he has a close relationship. As Hayne J said in U v U (2002) 211 CLR 238 at [175]:
When one parent (for whatever reason) wishes a child who is, or is to be, resident with that parent to move to a place distant from the other parent, it should not be assumed that that other parent cannot, or should not, contemplate moving to be near the child. There may be (and for all that is known, in this case there was) compelling reason for that other parent (here, the father) not to move, but it would ordinarily be expected that these reasons would be explored in evidence and the validity of any assumption that the other parent will not move would be examined. Just as, in this case, the mother was asked what she would do, if she could not have the child reside with her in India, so too it might have been expected that the father would be asked what he would do, if the mother were to have the child reside with her in India. Such questions should not be treated as mere forensic tests of parental devotion, to which only one answer is seen as being satisfactory proof of being a loving parent. Rather, they are no more than a prelude to a deeper inquiry about where the best interests of the child may lie and what arrangements will best serve those interests.
There is, therefore, a logical inconsistency, at paragraph 27 of the father's written closing submissions, that:
[i]f the Mother's application for the Child to relocate to [City B], [Region P] is granted, it would not be in the best interests of the Child as the Father will be prevented from progressively increasing his substantial and significant time with the Child meaning any possibility of the Father spending equal time with the Child to strengthen and develop a meaningful relationship will be hindered.
The mother's application to relocate will only be granted if it is in the child's best interests. Further, if it is granted, it does not inexorably follow that the father will be prevented from spending the same, or even increased time with the child. Rather, it may be the father who, himself, will prevent this from occurring. I am not satisfied, on the evidence, that the father could not relocate to City B or, more generally, Region P, nor am I satisfied that the mother's proposal that the child spend each alternative weekend with the father, from Friday evening until Sunday afternoon or evening (and possibly even Monday morning, if the father so elects), would be unworkable. The father's evidence (at paragraph 72 of this reply affidavit filed 19 December 2022) is that his “work arrangements are flexible”. In respect of one of those weekends, the mother's proposal is that changeover occur in Town F, which is approximately equidistant between the father's place of residence in Suburb C and City B. In respect of the other of those weekends, her proposal is that she deliver the child to and collect him from Suburb C. True it is that her proposal would entail a reduction in the father's time with the child; however, as Brown J said in Mazorski & Albright [2007] FamCA 520 (“Mazorski & Albright”) at [26], in relation to the primary consideration required by s 60CC(2)(a) of the Act, namely, the benefit to the child of having a meaningful relationship with both of the child's parents, “meaningful”, when used in the context of “meaningful relationship”, is synonymous “significant”, “important”, “of consequence” and “valuable to the child” and is a qualitative adjective, and not a strictly quantitative one.
The father tendered a print-out from Google Maps, which was received into evidence, in respect of the route from Suburb C, where he presently lives and in the vicinity of which he proposes to continue to live, to City B (Exhibit H-2). The print-out suggests that it was printed on (Wednesday) 8 February 2023 (which was the first day of the trial) at 7.03 pm and that the “[f]astest route now due to traffic conditions” (emphasis added) was hundreds kilometres and would take over 2 hours. Whilst of general assistance, in that it is illustrative, it is nevertheless of limited assistance due to obvious variables such as the day and time of travel. Further, if the father were to choose to live in metropolitan Melbourne but nevertheless closer to City B, such as on the fringe thereof, it would shorten the distance and time for the child and him. The evidence is not that he cannot do so; rather, it is that he does not wish to do so, as it would involve distancing himself from his parents and sisters. He was unable to explain, to my satisfaction, why he would prioritise them over his child. He also seemed oblivious to the fact he criticises the mother for seeking to do likewise.
THE MOTHER’S CASE
The mother, who is the respondent, seeks sole parental responsibility for the child in relation to his health and education, subject to her keeping the father informed of her decisions in this regard and giving him the opportunity to provide feedback prior to a decision being made. Further, she seeks an order that, upon providing the father with 60 days’ notice, she “be permitted to relocate the residence of the child to City B or surrounding suburbs” thereof. In Wagstaff & Wagstaff [2022] FedCFamC1A 119 at [12], Aldridge and Jarrett JJ noted that such language was the subject of criticism by the High Court in AMS v AIF (1999) 199 CLR 160 (“AMS v AIF”)at [188] (per Kirby J) at [217] – [218] (per Hayne J). Their Honours continued at [15], saying that “[t]o this must be added the consideration that orders requiring a parent, as opposed to the children, to live in a particular place are rare”. In AMS v AIF at [188], Kirby J said that:
…it would be preferable that such references to “permission” to relocate be avoided. The word has a tendency to distract attention from the jurisdiction actually being exercised. … To treat the determination of the residence of the child, and the connected issue of custody, as dependent upon the giving or withholding of “permission” to a parent to relocate his or her residence may divert attention from the child’s welfare, to the competing needs and demands of the parents in conflict.
Given the way in which this case was conducted by the parties, I do not need to resolve whether such an order is an aspect of parental responsibility, rather than ancillary to an order that the child live with the mother or even, possibly, a positive injunction. See Sampson & Hartnett (No 10) (2007) FLC 93-350 at [58] per Bryant CJ and Warnick J.
Section 64B(1)(a) of the Act provides that a parenting order is an order made under Pt VII of the Act dealing with a matter mentioned in subsection (2). Section 64B(2) stipulates with what a parenting order may deal including, relevantly, for present purposes:
(a) the person or persons with whom a child is to live;
(b) the time a child is to spend with another person or other persons;
(c) the allocation of parental responsibility for a child;
…
(e) the communication a child is to have with another person or other persons;
…
(i)any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
Whilst orders are often sought to the effect that the parent with whom a child is to live have leave or, as the mother in the present case seeks, “be permitted” to relocate, such an order might be said to be an aspect of the allocation of parental responsibility for a child. Indeed, the phrase “major long-term issues” (albeit in the context of equal shared parental responsibility) is defined in s 4(1) as meaning:
…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:
…
(e)changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.
However, analogous to the reasoning of Kay J in Love v Henderson (1996) FLC 92-653, I am of the view that an order that a parent, which whom a child lives, be permitted or have leave to relocate the place of residence of the child is sufficiently ancillary to, and can therefore be categorised as, an order that a child live with that parent.
In relation to the mother's application for sole parental responsibility with respect to the child's health and education, she submits that the presumption of equal shared parental responsibility in s 61DA(1) of the Act does not apply, by reason of s 61DA(2)(b). This is because, she asserts, there are reasonable grounds to believe that the father has engaged in family violence. That term is defined in s 4AB(1) as meaning “violent, threatening or other behaviour by a person that coerces or controls a member of that person's family (the family member), or causes the family member to be fearful”. Section 4AB(2) provides that examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
The mother points to the fact that, on application by Victoria Police, an intervention order was made against the father, in favour of the mother and the child as the protected persons, which was made final in mid-2021 for a period of 12 months and, as noted above, the father was subsequently charged with two contraventions of that order and entered into a Diversion Plan which required an admission of guilt in relation to the breaches.
The mother also points to her assertion that, since separation, the father has engaged in ongoing intimidating, harassing, controlling and derogatory behaviour towards her, as well as refused to share information and communicate with her in relation to day-to-day and long-term matters relating to the child, the evidence in relation to which I consider below.
However, irrespective of whether I find s 61DA(2)(b) to be engaged, s 61DA(4) provides that the presumption of equal shared parental responsibility in s 61DA(1) of the Act may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
The mother was born 1984 in the Region P area, in which City B is situate, and grew up there. Her mother, Ms N, and stepfather, Mr S, whom she regards as her father (having been in a relationship with her mother since she was approximately six years of age), have resided in City B since 2006. Her sister, Ms M, and family live in Town FF, on the outskirts of City B. The mother seeks to return to the City B region with the child, to raise him with the support of her family there. She deposes that she does not have a strong support network in Melbourne and that she has a strained relationship with the father's family, from whom she asserts she has been offered no support. Although on notice of the mother's allegations regarding the lack of support from, and her strained relationship with, the father's parents (who were present in court with him during the trial) and his sisters, the father inexplicably did not adduce any evidence from them in an endeavour to rebut these allegations. She points, inter alia, to the fact that, in response to the question posed to the father by Mr L, and referred to in his first Family Report, as to what his family had done to make her feel safe and respected, he merely responded that “there was an IVO in place”. However, that Intervention Order was not against his parents or his sister.
The mother's case is that her support network in City B, comprised of her immediate family members, will maximise her well-being and happiness and, in turn, will positively impact upon the quality of care provided to the child. Moreover, her stepfather having been diagnosed with illness, she wishes to be close to her family during this time. In addition to such emotional support, she will have the benefit of being able to reside with her mother and stepfather, at least initially, thus providing her with financial support. She also wishes the child to be well settled in his new environment, and to develop friends there, before he commences primary school in 2025.
Insofar as the father alleges, in opposition to the mother's relocation to City B with the child, that the maternal grandmother and step-grandfather drink alcohol to excess and smoke marijuana and that the mother told him that her biological father was “the local drug dealer in [City B]”, these allegations are denied. The mother and maternal grandmother were not cross‑examined in relation thereto and there is no corroborative evidence thereof. I do not and cannot find these allegations established. Indeed, in the circumstances, the father's allegations in this regard border on the scandalous.
Insofar as the father alleges (at paragraphs 221 and 222 of his reply affidavit) that the mother and the child do not have a close relationship with her family in City B, not only is this denied by her and contrary to the evidence of her mother and her sister, but they were not cross‑examined in relation thereto. Further, insofar as he alleges that, contrary to the mother's evidence, the maternal grandmother will be unable to assist her to the extent to which she deposes and from which she asserts the child and she will benefit, by reason of the recent diagnosis of Mr S, that was denied by the maternal grandmother and her evidence in relation there was not shaken in cross-examination. Whilst I accept that the maternal grandmother will, inevitably, be pre-occupied, both physically and emotionally by her husband's ill-health, I accept that it will not be such as to materially detract from her ability to assist the mother and the child were they to relocate to the City B region and to live with her, at least initially.
Insofar as the father alleges (at paragraph 186 of his reply affidavit) that he is committed to the child, inter alia, “respecting women”, the woman closest to him now and in the years until, at least, he attains the age of 18 years, is his mother. However, the father's expressed views of her, including to the Family Report writer, in cross-examination and in relation to the “V Business” social media presence, suggest otherwise.
Similarly, insofar as he asserts (at paragraph 250 of his reply affidavit) that he is “not hostile” to the mother, the evidence to which I refer herein, suggests otherwise.
Like the father, the mother tendered a print-out from Google Maps, which was received into evidence, in respect of the route from Suburb R, in Melbourne, where she proposed he could live, in order to be geographically closer to the child, to City B (Exhibit W-16). Unlike the father's print-out, the day and time of the mother's print-out it is not apparent from the face of that document. Without these details, the two print-outs are not readily comparable and all the more so because the former is based upon Suburb C and the latter upon Suburb R. The mother’s print-out suggests that the “[f]astest route now due to traffic conditions” (emphasis added) was more than 150 kilometres and would take more than 2 hours. However, that said, the difference in the two driving times is less than half an hour.
The mother's case was not, in my view, materially shaken in any respect in the cross‑examination of her mother, her sister or her or undermined in closing submissions.
EVIDENCE OF THE FAMILY REPORT WRITER
In Hall & Hall (1979) FLC 90-713 at 78,819 - 78, 820, the Full Court said:
In view of the comments in this case as to the weight to be given to a Family Report, we feel it may be helpful to make certain observations which we stress are of a general nature.
(a)There is no magic in a Family Report. A Judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the Judge is abdicating his responsibilities. In Wood (1976) FLC 90-098 at p. 75,447; Harris and Harris (1977) FLC 90-276; (1977) 29 F.L.R. 285.
(b)Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a Judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the Judge has found them consistent with the rest of the body of evidence before him.
(c)While the counsellor's views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor.
(d)Hence, the counsellor's assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong; or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character from that which the counsellor has accepted.
(e)Sometimes the Family Report will necessarily be neutral. While the court will be assisted by a positive view, there will be many cases where the counsellor, quite properly, will conclude that the child's welfare will be equally well served, or, regrettably in some cases, equally ill served by either party.
(f)Whether the report contains a positive recommendation, or whether it be neutral; whether the report is accepted by the Judge or whether it is not; the report will still serve the court well and assist the court's investigation. A counsellor, therefore, need not be disturbed if a recommendation is not accepted because the court has had the advantage of much more material and much more examination in depth than was available to the counsellor.
(g)It follows that in some cases it may be desirable to question counsellors about the bases of their recommendations. Indeed, there will clearly be some cases where a practitioner would be failing in his duty to his client if he did not seek to test the recommendations of the counsellor in the light of instructions given to that practitioner. To cross-examine a counsellor is to do no more than to test an expert witness in the same way as any other expert witness may be tested or challenged. Naturally, the decision to cross-examine carries with it the usual hazards involved in cross-examining any witness but more particularly an expert.
(h)Where there is proper reason for cross-examination, the court will be assisted and, we have no doubt, so will the counsellors. No expert should cavil at any questioning of his role or the foundations of his opinions. We consider that it is always a valuable opportunity for the counsellor himself to examine and test his own methods under critical investigation. We draw attention to an article by Mrs. A. Marshall, Director of Court Counselling Sydney Registry – “Social Workers and Psychologists as Family Court Counsellors within the Family Court of Australia''. The article appears in the March 1977 edition of Australian Social Work, vol. 30 No. 1, p. 9 and at p. 11 appears the passage:
“Family Law reg. 117 provides for the cross-examination of a counsellor in relation to the Report. It is seen as an advantage by counsellors that they can in this way be held accountable for the Report.”
(i)Finally, and most importantly, and as a matter of public policy, no party should leave the court with a belief that justice has not been done because an opportunity to test part of the evidence has been denied. In the case of Harris (supra) Fogarty J. said at FLC p. 76,474; F.L.R. p. 289:
“It is in my view inimical to the proper workings of the Court and in particular to the proper carrying out of the functions of a welfare officer that it might be thought by practitioners or litigants that welfare officers or their reports occupy some special or privileged position before the Court unchallenged or unchallengeable but yet perhaps decisive of the issue. Custodial proceedings still basically fall to be determined by the Court in accordance with the traditional system of determining cases. Where a welfare report is delivered which contains either factual matters or matters of opinion which a party desires to challenge but is not permitted to do so that party may be pardoned for feeling that justice has not been seen to be done.”
Similarly, in M. and M. (1978) FLC 90-429 at p. 77,182; (1978) 30 F.L.R. (Notes) at p. 562, Marshall S.J., in adopting the views of Fogarty J. set out above, stated:
“If the contents of such a report are not open to challenge by cross-examination the Court would leave itself open to the criticism of conducting a trial `by report' rather than on the whole of the evidence.''
This Court is in full agreement with the views set out above.
More recently, in Kennedy v Kennedy [2010] FamCAFC 195 at [77], the Full Court stated:
It must be remembered that while the recommendations of a report writer are of considerable weight ultimately it is the role of the judicial officer, who has the advantage of hearing all the evidence, and assessing the demeanour of parties and their witnesses, to determine what is in the best interests of a child. The role of the report writer was discussed by the Full Court in Hall & Hall (1979) FLC 90-713 at 78,819, and approved by subsequent Full Courts (see D & P [2006] FamCA 170 and Andrew & Delaine [2009] FamCAFC 182; Friscioni & Friscioni [2010] FamCAFC 108; Malak & Mairie [2010] FamCAFC 170).
The Family Report writer, Mr L, was cross-examined over the course of about two hours by counsel for both parties. I found his evidence, both in his two family reports and in cross‑examination thereon, to be relevant and of assistance in forming my ultimate conclusions. Whilst his views coincide with mine, it is not because they have been accepted axiomatically but because I have found them consistent with the body of the other evidence before me.
First Family Report
The first Family Report was prepared by Mr L, about one year after the commencement of these proceedings, pursuant to an order made by Macmillan J on 26 August 2021. At the time of this report, the mother had returned with the child from City B and was living in the former matrimonial home with the child. The child was spending time during the day with the father and this had not progressed to overnight time. Mr L made the following relevant observations.
At paragraph 25, in relation to a men's behavioural change program, Mr L reports that:
When seen, [the father] was up to week 7 of a 20 week course. He did not consider he should be doing this course but note he was doing so to appease [the mother], He noted that no one other than [the mother] thought he needed to do the course. He commented that the course has little relevance to him.
Given his deprecatory views of the mother, his opinion that he did not consider he should be doing the program demonstrates a lack of insight on his part and is consistent with his generally held view that the situation in which the parties and the child find themselves is all of her doing, with little or no blame ascribable to him.
At paragraph 69, Mr L reports that:
[In late] 2020 [the father] had this then lawyers correspond with [the mother] seeking that she put the former family home up for rental given she was living in [City B]. [The mother] saw this as [the father] agreeing to her remaining in [City B] with [the child]. Lawyers duly corresponded seeking to establish a regime of time spent in [City B].
It is difficult to reconcile that father's denial that he did not, initially, acquiesce to the mother's relocation with the child to City B the previous month with his request that the make the former matrimonial home available for rent. It begs the rhetorical question: where were they to go, if they were to return to Melbourne?
It does not appear, from the evidence, that the father gives any credence whatsoever to the mother's wish to relocate with the child to City B. Mr L reports (at paragraph 114 of his first report) that the father “stated that he considered that [the mother] was 'withholding [the child] as a bargaining chip to hurt me'”. It was not put to Mr L in cross-examination that the father had not said this, or words to similar effect. However, there was nothing in the mother's evidence, including in cross-examination, which could lead me to so conclude. To the contrary, I find the mother's desire to relocate with the child to be genuine and founded primarily upon her wish to be closer to her family there and to enjoy their support, including in circumstances where it is not forthcoming from the father or his family.
At paragraph 119, Mr L reports that the father, in relation to the mother's family of origin:
…spoke of [the mother's] mother noting that she had had a poor upbringing in comparison to his parents. …and the man she married had been a drug dealer. …He understands that [the mother's] biological father 'by all accounts is a deadbeat, is now […] in his mid 70's, has been married four times and has kids everywhere. He noted that, as a child, [the mother] moved 12 or 13 times around Region P and stated, 'I look at [the child] and don't want the same.'
These views about the mother's family are consistent with the father's evidence about them, both in his affidavits and in cross-examination. They are redolent with a misplaced sense of superiority of his family and himself over the mother and her family. I have referred to some of the father's views about the mother and her family above. Another example was the father's evidence in cross-examination that, unlike the mother's family:
…my family are together… where I come from, we don't litigate like this. We don't get involved in disputes, we support each other, there's a big difference between my family and your client's family. Massive difference.
(Transcript 10 February 2023, p.9 lines 15-19)
He continued, saying that the mother's family:
…they have a - it's just me and me only, I will take what I can get mentality. They don't help each other out. They're not supportive, they don't help each other, and the only reason [the maternal grandmother] is here is because there's litigation and money involved.
(Transcript 10 February 2023, p.9, lines 22-25)
These allegations were not put to any of the mother nor the maternal grandmother or aunt and, having carefully read their affidavits and attentively listened to their evidence and observed their demeanour in cross-examination, I reject the evidence of the father regarding them set out in the preceding two paragraphs. Further, insofar as the father alleges that the members of his family do not “get involved in disputes”, given at least his sister's prima facie involvement in the V Business social media presence, to which I refer below, I do not accept that to be entirely truthful.
The father complained to Mr L (at paragraph 118 of his first report) that that the mother had “disrespected” his parents but without any particulars, let alone justifying ones, of how and why he asserted this to be so. Other than on the father's uncorroborated evidence, there is nothing to suggest that the mother and her family are not decent people who have at least as much to offer the child as the father and his family.
Similarly, at paragraph 122, Mr L reports that:
[The father] gave all this information about [the mother's] family as a comparison to his stable loving supportive family unit that have not experienced separation. In his view, he clearly believed that [the mother] was flawed as a result of having been raised in such a setting.
It is trite to recall that, despite his assertions regarding his parents and sister, he did not adduce any evidence from them in relation to parenting issues and I was unable to form any view about them (unlike the mother’s mother and sister), other than to infer (as I explain below) that their evidence would not have assisted his case.
Insofar as the father told Mr L (at paragraph 123) that “he and his family should not be excluded from [the child’s] life”, that was the impression he conveyed to the Court at trial, namely, that the issue for him is a binary one and that, should the mother be allowed to relocate with the child to City B, his family and he would, in his mind, indeed be so excluded. He seemed unable to comprehend that that this might not be inevitably so; that quantity (of time) is not necessarily co-extensive with quality (of the relationship); and that he could ameliorate any negative impact of relocation, including (but not limited to) by him relocating to - or closer to - the City B region. Indeed, at paragraph 129, Mr L reported that:
When asked if he would consider moving if [the mother] was allowed relocate [the child] to [City B] he made it abundantly clear that this was not an option as his family and networks are all based in Melbourne.
It is noteworthy, in my view, that the father did not refer there to any alleged inability to relocate by reason of his employment.
At paragraph 128 of his first report, Mr L reported that:
In essence [the father] made it clear that he would oppose relocation to [City B] and would continue to seek increased time with [the child] until he considered that he was having significant and substantial time with him sufficient to maintain their close bond and to allow him to have a close and loving relationship with his extended family.
(Emphasis added)
This is borne out at paragraph 174 of Mr L's first report, to which I refer below.
In respect of the mother, Mr L reported at paragraph 131 that:
…she noted that life as she had expected has not occurred and noted she was busy juggling the care of [the child], working full time, living away from her family support base in [City B] and managing separation, litigation and [the child's] time with [the father]. In all, [the mother] gave the impression that she feels overwhelmed at times.
That too was the impression she gave me in her oral evidence.
Mr L reported at paragraph 133 that it was clear to him that the mother “considered that she would have had a different experience of separation had she been permitted to remain in [City B] with [the child]”. The passage of time since that observation, in September 2021, has borne that out.
At paragraph 135, Mr L reported that the mother:
…gave every indication that she had felt she had not been heard or respected in the relationship and again gave every indication that she considered that [the father] and his family had not considered her views. She indicated that she had, at times. been overwhelmed by [the father's] intensity.
That intensity was glaringly apparent to me in my observations of the father in the witness box and I readily accept that the mother, at times, has felt overwhelmed thereby.
Mr L reported (at paragraph 149) that the mother “made it clear that she would prefer to live in [City B]” and “lamented that she was some distance from her support network”. Further, the concept of equal time, as sought by the father, “kept her locked away from her support base” and that “separation had made her aware of how isolated she was in Melbourne” (at paragraph 153). She vehemently denied that she was withholding the child as a bargaining chip, as claimed by the father (at paragraph 154). Mr L reported that, in respect of the father's parents, the mother “gave indication that she found them overwhelming at times” (at paragraph 155) and that “she felt overwhelmed by [the father's] ferocity post separation and felt intimidated by his family also travelling to [City B] every time he did” (at paragraph 156).
Mr L reported (at paragraph 157) that the mother disagreed with many of the claims the father made with regard to her family of origin and her childhood experience and that she did not identify her childhood as having been flawed, as the father alleged. Rather, she ascribes this to the father's “overall value base and general bias against her family”. Further, he reported (at paragraph 162) that the mother “feels vulnerable living so close to [the father's] family”. As I have observed elsewhere, given that the father was on notice since, at least, September 2021, of the mother's allegations regarding his family, it is all the more remarkable that he did not see fit to adduce any evidence from any of them in support of parenting issues.
Given the child's age, Mr L understandably did not interview him. However, he observed that the child “seemingly enjoyed the company of both parents” (at paragraph 163) and that he was “appropriately bonded/attached to both and enjoyed the company of both parents. As may be expected, he tended to seek out [Ms Steenkamp] when distressed” (at paragraph 166). Further, the child gave Mr L every indication that he was meeting his milestones and that it was apparent that he required his parents to provide for him both emotionally and practically (at paragraph 167), such that the report writer did not hold any concerns (I would interpolate, at that stage) about the child in the care of either parent; rather “[t]he issue was clearly an adult issue of the time that he spends and their differences of view” (at paragraph 168).
In Mr L's evaluation of the matter, as it stood in September 2021, the mother clearly wanted to be able to relocate to City B, had been disappointed and distressed that she had been required to return to Melbourne and, “[w]hilst she can survive in Melbourne, she considers that [the child] and she would have a better lifestyle if they could relocate” (at paragraph 171).
In his assessment of the parties in September 2021, Mr L at paragraph 174:
… observed a sense of power imbalance between [the father] and [the mother]. [The father] can come across as insistent and determined and it is considered that these values are what have driven him to be as successful as he identifies. Interestingly, his capacity to bring [the mother] along seems to have failed.
Those observations are consistent with my assessment of the father evidence, including in cross-examination at trial.
At the time that the first Family Report was written, Mr L suggested that the conflict between the parents might settle with time and that they might benefit from family therapy and/or discuss issues relating to the child with an independent third party.
At paragraph 178, he “considered that, should [the mother] wait until [the child] is five to relocate she may well reconsider her options prior to this time and remain living in Melbourne especially if things between her and [the father] settle” (emphasis added). As will become apparent from his second report and his evidence in cross-examination, that has not occurred.
At paragraph 183, Mr L noted that:
…there is merit in [the mother's] claim that she is isolated from family in Melbourne and feels surrounded by [the father's] family. Ideally, she may be embraced by his family and made feel [sic] safe and respected. This may go a long way to the final decision [the mother] makes in regard to where she ultimately wants to live.
Further to the authorities referred to above, the applicable legal principles were accurately and succinctly summarised by Williams J in Anderson & Salinos [2022] FedCFamC1F 976:
32Relocation cases are determined in the same manner as all parenting cases, namely by following the statutory framework set out in the Family Law Act 1975 (Cth) (“the Act”) to determine what orders are in the children's best interests.
33The following principles may be discerned from the authorities including: AMS v AIF (1999) 199 CLR 160, A v A: Relocation Approach (2000) FLC 93-035, U v U [2002] HCA 36, Taylor & Barker [2007] FamCA 1246, Morgan & Miles [2007] FamCA 1230:
(a)there is no discrete category of relocation cases;
(b)the child's best interests are the paramount, but not the only consideration in relocation cases;
(c)a parent who seeks to relocate need not show compelling reasons, but must adduce evidence which enables a court, on balance, to find a parenting order permitting location is in the best interests of the child;
(d)the court must evaluate the competing proposals, considering the advantages and disadvantages for the child's best interests for each proposal;
(e)neither party bears an onus to establish that a relocation or a continuation of an existing regime is in the child's best interests;
(f)the child's best interests must be weighed and balanced with the “right” of freedom of movement of the parent who proposes to relocate, but that right must defer to the child's best interests.
I turn therefore to the competing proposals of the parties and the advantages and disadvantages for the child's best interests of each of those proposal.
At the conclusion of the trial, the orders sought by applicant father remained unchanged from those set out in his case outline, filed shortly prior to commencement thereof. In summary, he seeks that:
(a)The parties have equal shared parental responsibility for the child.
(b)The child live with the mother.
(c)The child spend time and communicate with the father:
(i)until he attains the age of four years on 19 September 2023:
(A)each week, from 5.00 pm on Tuesday until 5.00 pm on Wednesday;
(B)each alternately weekend, from 5.00 pm on Thursday until 5.00 pm on Sunday;
(ii)upon attaining the age of four years, each alternate week from 5.00 pm on Wednesday until 5.00 pm on the following Tuesday;
(iii)upon attaining the age of five years in 2024, each alternate week from 5.00 pm on Wednesday until 5.00 pm on the following Wednesday;
(iv)upon commencing school in 2025, for one half of the school holidays, on a week-about basis;
(v)at Christmas and Easter, on the child's birthday and on Fathers' Day (with reciprocal time on Mothers' Day); and
(vi)as otherwise agreed between the parties.
(d)Change-over occur at Mc Donald’s Suburb C or at such other location as may be agreed between the parties in writing.
(e)Each party keep the other informed of his/her residential and contact details, any serious injury or illness sustained by the child in his/her care and any medical appointments for the child (with each party being at liberty to attend same).
(f)Each party be authorised to communicate with all medical and allied health practitioners for the child.
(g)The child attend for any general medical appointments at one of two clinics in Suburb O, save in the case of emergency.
(h)Various injunctions.
(i)The child attend Y School kindergarten in Suburb C in 2023 and 2024 and, commencing in 2025, a primary school within the Suburb C, Suburb O or Suburb EE area.
(j)Orders in relation to extra-curricular activities for the child.
(k)The parties be permitted to liaise with the child's kindergarten, school and extra‑curricular activity providers; to receive communications therefrom (including reports and photographs); and to attend thereat on occasions normally attended by parents.
(l)The parties renew the child's passport, to be retained by the mother.
(m)Orders in relation to interstate travel with the child during each party's time with him.
The father also sought orders that the mother be restrained from relocating the child's residence to a suburb not further than 20 km away from his residence and that she attend upon a health professional to assist the child and her to wean him from breastfeeding. Sensibly, in closing submissions, he abandoned the restraint, although I take his application for same, until its belated abandonment, as further evidence of the father attempting to control the mother. Further, in closing submissions, I was not addressed in relation to the issue of breastfeeding and I will not make an order in relation to it.
The father did not specify what orders he seeks for time with the child in the event of his relocation.
At the conclusion of the trial, a minute of amended orders sought by the respondent mother was tendered. In summary, albeit drawn in poor and confusing form, she now seeks that:
(a)The mother have sole parental responsibility in relation to the health and education of the child, subject to: providing the father with details and information in relation to such issues; the father being at liberty to revive feedback and a response in relation thereto; and she then providing him with details and information in relation to the decision made by her. Whilst the minute is otherwise silent in relation to parental responsibility, it was made clear that she proposes the father and she equal shared parental responsibility.
(b)The child live with the mother.
(c)The mother be permitted to relocate the residence of the child to, or in the vicinity of, City B upon providing the father with 60 days' notice.
(d)Until the mother and the child relocate, the child spend time with the father:
(i)each week, from 5.30 pm on Tuesday until 5.30 pm on Wednesday;
(ii)each shall alternate weekend, from 5.30 pm on Friday until 5.30 pm on Sunday;
(iii)at Christmas and Easter, on the birthdays of the father and the child and on Fathers' Day (with reciprocal time on the mother's birthday and Mothers' Day).
(e)Until the mother and the child relocate, changeover occur:
(i)on Tuesdays and Fridays at McDonald's Suburb D;
(ii)on Wednesdays and Sundays and other occasions at Mc Donald’s Suburb C; or
(iii)at such other location as may be agreed between the parties in writing.
(f)When the mother and the child relocate, the child spend time with the father:
(i)for the first weekend in each four-week period, from 6.30 pm on Friday until 6:30 pm on Sunday (or 6.30 pm the following day if it is a Victorian gazetted public holiday) and, from the child's fourth birthday, the father be at liberty to extend such time to commence at the conclusion of child-care/kindergarten/school on Friday until the commencement of child-care/kindergarten/school on Monday (or 9 AM if a non-school day), provided that such extended block of time take place in City B or the vicinity thereof;
(ii)for the third weekend in each four-week period, in Melbourne from 7.30 pm on Friday until 3.30 pm on Sunday;
(iii)by FaceTime each Tuesday and Thursday between 6.00 pm and 6.30 pm or as otherwise agreed;
(iv)at Christmas and Easter and on Fathers' Day.
(g)When the mother and the child relocate, changeover occur:
(i)on the first weekend in each four-week period and Fathers' Day and at Christmas and Easter - at the petrol station at E Street, Town F; and
(ii)on the third weekend in each four-week period - at Mc Donald’s Suburb C, with the mother to deliver the child thereto and collect him therefrom.
(h)In the event the father elects to extend his time with the child on the first weekend in any four-week period:
(i)he provide the mother with seven days' notice in writing via a communication application; and
(ii)changeover occur at the child's child-care/kindergarten/school or, on a day when he does not attend, at McDonald's City B.
(i)The child spend time with the father during school holiday periods:
(i)in 2024:
(A)during the first term holidays, for three consecutive nights commencing at 5.00 pm on Monday until 12.00 pm on Thursday in the first week thereof;
(B)during the second and third term holidays, for four consecutive nights commencing at 5.00 pm on Monday until 12.00 pm on Friday in the first week thereof; and
(C)during the 2024/2025 long summer holidays, for four consecutive nights commencing at 5.00 pm on Monday until 12.00 pm on Friday in the first week thereof and in each alternative week thereafter;
(ii)in 2025, when the child commences school:
(A)during the first and second term holidays, for five consecutive nights commencing at 5.00 pm on Monday until 12.00 pm on Saturday in the first week thereof;
(B)during the third term holidays, for six consecutive nights commencing at 5.00 pm on Monday until 12.00 pm on Sunday in the first week thereof; and
(C)during the 2025/2026 long summer holidays, for two separate periods of seven consecutive nights on dates to be agreed and, in default of agreement, from 2 - 8 and 16 - 23 January 2026;
(iii)in 2026:
(A)for one half of the school term holidays, and in default of agreement the first half thereof;
(B)for one half of the long summer holidays in 2026/2027, in alternating weeks;
(iv)in and from 2027:
(A)for a period of 9 consecutive nights in all school term holidays, and in default of agreement from 6.30 pm on the first Friday until 12.00 pm on the second Sunday; and
(B)for a period of 14 consecutive nights, commencing on 2 January 2028.
(j)In respect of school holiday periods, change-over occur at the petrol station at E Street, Town F unless otherwise agreed in writing.
(k)Orders providing for notification in the event of serious injury or illness and change of residential address and contact details, communication between the parents, communication between the child and the parents, in relation to attendance at and receipt of information from the child's child-care/kindergarten/school, passport and domestic travel.
(l)Injunctions including, in particular, against:
(i)leaving the child in the care of or bringing him into contact with the father's sister, Ms H; and
(ii)publishing and/or disseminating any information or documents on social media relating or purporting to relate to the parties the child or these proceedings.
The mother's proposal, both in relation to the child relocating to City B with her and in relation to the time to be spent by him with the father, is supported by and largely consonant with (if not, in fact, somewhat more generous that) the recommendations of the Family Report writer. I accept those recommendations, as they are substantially consonant with my findings in relation to the evidence of each of the parties and the maternal grandmother and aunt.
In summary, the mother's proposal is that the child live with her in City B and spend as much time as is reasonably possible with the father in those circumstances, whereas the father's proposal is that the child live with the mother, that she be restrained from relocating the residence of the child outside of the Melbourne metropolitan area and, that by September 2024, when the child attains the age of five years, he spend each alternate week with him.
Having found that the parents are fundamentally unable to co-parent, primarily because of the father's attitude towards both the mother and co-parenting with her, I do not accept that his proposal is or, in the circumstances, could possibly be in the child's best interests. I accept that the mother will be happier and have greater support from her immediate family in City B and that this will be in the child's best interests. Given my findings in relation to her family support in City B, I am ultimately untroubled by the fact that she has not yet sought or secured employment there.
For good reason, the father's proposal for a graduated increase in his time with the child, culminating, in about 14 months' time, in week-about time, is not supported by the Family Report writer and I do not find it to be in the child's best interests. Unlike the father, by the close of the evidence and prior to final submissions, the mother was sufficiently attuned to the expert evidence of the Family Report writer to be child-focused and to amend her proposal to accord therewith, if not more so. In particular, she now proposes that, in respect of one of four weekends, she will deliver the child to and collect him from the father in the vicinity of the area where he presently lives and proposes to live in the future. In respect of the second weekend in that four-week period, she proposes to share the driving with the father and to effect change over at a location approximately equidistant between their respective places of residence in City B and metropolitan Melbourne. However, from the time the child is four years of age, in a few months' time, she offers the father the possibility of extending his time with the child by spending that second weekend in City B with him and collecting him from child-care, kindergarten or school on Friday afternoon and returning him thereto on Monday morning. This will provide him with some opportunity, which he professes to seek, to be involved in the child's education. Given his evidence in relation to the on-going flexibility of his employment, which has been manifest from the time he has spent with the child each week from Tuesday evening until Wednesday evening, there is no reason why he ought not be able to avail himself of the additional time offered by the mother.
I also take into account the fact that, other than the father's desire to live near his immediate family, from whom he elected to adduce no evidence in relation to parenting matters, he proffered no evidence as to why he could not move to, or at least closer to, City B. He speculated that he would not be able to find work there but did not even make any enquiries as to whether this would be in fact so.
I have taken into account the fact that the mother's proposal will not only preclude the increase in time sought by the father but will entail a reduction in the time he currently spends with the child. However, I am further satisfied that the additional weekend time proposed by her, if the father wishes to avail himself thereof, together with the graduated additional holiday time proposed by her, will to some degree ameliorate that reduction.
Not only did the father's proposal remain unchanged at the close of the evidence, deaf to the evidence of the Family Report writer which was unshaken in cross-examination by his counsel, but at no stage did he proffer any orders for time to be spent by him with the child should relocation be permitted. At most, in closing submissions, his counsel submitted that he would not oppose the mother's proposals that she be responsible for delivery to and collection from Melbourne in one alternate weekend; that the parties share same in the other alternate weekend, by effecting change-over at the mid-way location suggested by her; and that he have the option of spending an additional night with the child, albeit in City B, in that other alternate weekend. In the circumstances, given that I have accepted that the child's best interests are best served by the mother's proposal that he relocate with her to City B, the orders she proposes for time to be spent between the father and the child on alternate weekends are unopposed by him, in the sense that he has not put forward an alternative proposal. Accordingly, I shall make orders for the father to spend time with the child on alternate weekends substantially in accordance with those proposed by the mother. The Family Report writer did not suggest that, pending relocation, if ordered, there be any increase in the father’s time with the child, nor did the father submit that this should occur, in the short term, if same were to occur.
The only order sought by the father in relation to school term and long summer holidays is that, upon the child commencing school in 2025, he spend one half of the school holidays with each parent, on a week-about basis. I have set out above the expert recommendation of the Family Report writer, and the mother's proposal substantially accords there with. She proposes that:
(a)in 2024 - the child spend time with the father for three consecutive nights in the first term school holidays, for four consecutive nights in the second and third term school holidays and for periods of four consecutive nights in each alternate week in the 2024/2025 long summer school holidays;
(b)in 2025 - when the child commences school, he spend time with the father for five consecutive nights in the first and second term school holidays, for six consecutive nights in the third term school holidays and for two separate periods of seven consecutive nights in the 2025/2026 long summer school holidays;
(c)in 2026 - the child spend time with the father for one half of the first, second and third term school holidays and for one half of the 2026/2027 long summer school holidays in alternating weeks; and
(d)in 2027 and thereafter - for nine consecutive nights in all school term holidays and 14 consecutive nights in the long summer school holidays.
With one exception, the mother's proposal accords with the graduated increase recommended by the Family Report writer. Indeed, I note that in and from 2027, the mother proposes that the child spend time with the father for nine consecutive nights in all school term holidays, rather than one half thereof as the father seeks, which will afford him somewhat more time. In circumstances where the child is still young and has not spent more than two nights with the father, away from the mother, I find that the father's proposal, namely, that commencing in 2025 the child immediately progress to alternating weeks with him, is not in the child's best interests. Even on the mother's proposal for 2024 and the 2024/2025 long summer holidays (noting that neither party proposes the child spend holiday time with the father in 2023 or the 2023/2024 long summer holidays), the child will only have spent time with the father, and away from her, for a maximum of four consecutive nights at a time during school holidays. Given the evidence of the Family Report writer, I consider an immediate progression in 2025 from four to seven nights not to be in the child's best interests.
The exception to which I refer is the mother's proposal that, in and from the 2027/2028 long summer school holidays, the child spend only 14 consecutive nights in such holidays with the father, whereas she proposes that in the preceding such holidays in 2026/2027, the child spend time with the father for one half thereof, albeit in alternating weeks. By the 2027/2028 long summer school holidays, the child will be more than eight years of age, and no reason was proffered by the mother why it would not be in his best interests, by then, to spend approximately one half of those school holidays with the father. Indeed, the evidence of the Family Report was that, by about this time, the child could spend one half of the long summer school holidays, in one block, with the father and I shall so order, albeit commencing each year on a date slightly earlier than that proposed by the mother, so as to effect an approximately more equal division.
In respect of Christmas, the father proposes that the child spend time with him:
(a)from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in 2023 and each odd‑numbered year thereafter; and
(b)from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day in 2024 and each even‑numbered year thereafter.
The mother agrees with the father' proposal in this regard, whilst the child and she remain in Melbourne, pending their relocation to City B, and I shall so order in respect of the Christmas period in 2023. Notwithstanding the form of the mother’s orders, the case proceeded upon the basis that the child will be relocated to City B sooner, rather than later, and I shall make orders on this basis.
As I have observed above, the father's proposal in respect of Christmas does not contemplate the relocation of the child to City B. The mother's proposal in this regard, is that in respect of the first Christmas after relocation, the child spend time with the father from 6.30 pm on Christmas Eve until 12.00 pm on Boxing Day and in each alternate year thereafter. Whilst, on this scenario, the child will only spend time with the father in respect of Christmas in each second year, so too will the mother. This also accords with the father's proposal in respect of Easter, to which I refer in the following paragraph. Given the distance between the parties' respective places of residence then, I do not consider it is in the child's best interests to spend time on Christmas Day being driven between them. In the circumstances, I shall make orders in respect of Christmas Day that substantially accord with the mother’s proposal, save that time shall commence at 4.30 pm to accommodate travel.
In respect of Easter, the father seeks that the child spend time with him from 12.00 pm on Good Friday until 12.00 pm on Easter Monday “commencing 2023 and each odd numbered year thereafter”. The mother's proposal in this regard, whilst the child and she remain in Melbourne, pending their relocation to City B, is that the child spend time with the father:
(a)in 2024, and each even-numbered year thereafter, from 5.30 pm on Easter Saturday until 5.30 pm on Easter Monday; and
(b)in 2025, and each odd-numbered year thereafter, from 5.30 pm on the eve of Good Friday until 5.30 pm on Easter Saturday.
I shall accede to the mother’s proposal in respect of Easter in 2024, if relocation has not by then occurred. Again, the father's proposal in respect of Easter does not contemplate the relocation of the child to City B. The mother's proposal in this regard is unchanged from that proposed by her in respect of Easter prior to relocation. Given the distance between the parties' respective places of residence then, the father's proposal will see the child's time at Easter being interrupted only every second year. In the circumstances, I will make the order sought by the father, save that, as Easter 2023 has passed, his first alternate Easter will be in 2024.
In respect of Fathers' Day, the father seeks that, if the child is in the mother's care, he spend time with him from 5.00 pm on the eve thereof until 8.00 am the following Monday. The mother proposes that, prior to relocation, the child spend time with the father from 10:00 am until 5.30 pm on Fathers' Day and, thereafter, from 12.00 pm on the eve thereof until 6.30 pm that day. I see no reason why the mother’s latter proposal is not in the child's best interests even prior to relocation. It will allow for a maximisation of their time together on this special day. Subsequent thereto, I consider a blend of the parties' respective proposals to be in the child's best interests. There is no reason why time should not commence at the earlier time proposed by the mother, namely at 12.00 pm on the eve of Fathers' Day. In the event that the father wishes to spend Fathers' Day in Melbourne, with his family, I shall order that time conclude at 6.30 pm that day, as the mother proposes. In the event that the father wishes to spend Fathers' Day in (or in the vicinity of) City B, I shall order that time conclude the following day at the commencement of child-care/kindergarten/school or 9 AM if it is not a day on which the child attends child-care/kindergarten/school.
The father, understandably, seeks that the child spend time with him on his (that is, the child's birthday), in summary, on a day when the child attends child-care, kindergarten or school, from the conclusion thereof until 7.00 pm, and on a day when he does not attend thereat, for a minimum period of six hours. However, again, this is predicated upon the mother and the child living in metropolitan Melbourne. The mother proposes that, pending relocation, time be spent between the child and the father on their birthdays between 3.30 pm–6.00 pm on a weekday or, for a period of four hours as may be agreed or in default thereof between 9.00 am–1.00 pm on a weekend. Albeit that the father does not (or has omitted to) seek time with the child on his own birthday, I shall give him the opportunity to do so. Further, pending relocation, I shall make an order for time slightly more generous than the mother proposes but slightly less than he seeks. I shall also make an order that he may spend such times with the child in City B, upon the provision of not less than seven days’ notice in writing to the mother.
In respect of such special occasions, there should be reciprocal provisions in favour of the mother, as she proposes, and I shall order accordingly.
The father proposed that all change-overs occur at McDonald’s Suburb C or such other location as the parties may agree. However, that was predicated upon the mother and child continuing to reside in the general vicinity thereof. The mother proposes that, pending relocation, save as may otherwise be agreed in writing, changeover occur on certain occasions at McDonald’s Suburb C and on other occasions at McDonald's Suburb D. Pending relocation, I shall accede to the mother’s proposal, given her changeover proposal following relocation. The mother further proposes that, following relocation, on the alternate weekends when the child spends time with the father in metropolitan Melbourne, she deliver him to and collect him from McDonald’s Suburb C, and on all other occasions change over the effected at the petrol station at E Street, Town F. In closing submissions, counsel for the father welcomed this proposal and I shall order accordingly.
Each party seeks orders that the other inform them of any change of residential address at least 21 days prior to such change and of email address and/or mobile telephone number forthwith upon such change and I shall order accordingly.
Each party seeks orders that the other party immediately inform him/her of any serious injury or illness sustained by the child while in the other party's care and I shall order accordingly.
Insofar as the father seeks orders that the child attend upon only two specified general medical practitioners, at Y School kindergarten in Suburb C in 2023 and 2024 and thereafter that a primary school within the Suburb C, Suburb O or Suburb EE area, this issue is otiose insofar as I have already determined that the mother will have sole parental responsibility in relation to issues concerning the education of the child. Further, whilst not sought by the mother, given the father's conduct on the first day of the trial, I consider it to be in the child's best interests that an order be made restraining the father from causing the child to attend at any child-care, kindergarten or school other than those at which he is enrolled by the mother. It is clearly not in the child's best interests for there ever to be a re-occurrence of that which occurred that day.
The father seeks orders that, in summary, he be kept informed of any medical appointments scheduled for the child, be at liberty to attend same and be authorised to communicate with all treating medical and allied health practitioners for the child. Given my findings in relation to the inability of the parents to communicate and co-parent effectively and that that I have already determined that the mother will have sole parental responsibility in relation to issues concerning the health of the child, I will not make the orders the father seeks. The issue is sufficiently covered by the orders governing the mother’s exercise of her sole parental responsibility in relation to the child’s health.
Both parties seek substantially the same orders in relation to the child's passport and interstate travel by them with him and I shall substantially order accordingly.
At paragraph 19 of her minute the mother seeks an order that the parties forthwith implement the My Family Wizard application. The father’s orders are silent in this regard. This order was not addressed by any submissions made by counsel for the father. They are reasonable orders given the inability of the parties to communicate effectively and will be made.
Both parties seek a plethora of injunctions. They both seek non-denigration injunctions and injunctions restraining the other from discussing these proceedings with or in the presence or hearing of the child and I shall order accordingly. Further, the mother seeks, effectively, that both parties be restrained from showing the child any court document or other document relating to these proceedings or allowing such document to be accessible to him. Such an order is clearly appropriate and not opposed by the father and I shall make a further injunction to this effect.
The father seeks injunctions in relation to smoking in the presence of the child and exposing the child to any person who is consuming or in any way affected by alcohol or illicit drugs. Whilst this was the subject of complaint by the father in his affidavit material and to the Family Report writer, it was not the subject of cross-examination or submissions on his behalf at trial and is denied by the mother. In the circumstances, whilst clearly not in the best interests of the child to be exposed, at least, to persons consuming or affected by alcohol or illicit drugs, I decline to make such injunctions. Further, insofar as the father seeks an injunction that the parties each be restrained from being accompanied by any third parties at changeover, that was not the subject of any submissions by his counsel and, given the changeover will often be effected at some distance from the parties' respective places of residence, or that of the mother, such a restraint may be impracticable. Moreover, in those circumstances, one or other of the parties may wish to be accompanied by a family member or, in the fullness of time, possibly a new partner on those drives. There is no basis to make such an injunction, save for the following matter.
The mother seeks injunctions restraining the father from leaving the child in the care of, or bringing him into contact with, his sister, Ms H, and from publishing and/or disseminating (by himself, his servants and agents) any information or documents on social media, including but not limited to Instagram, Facebook, Twitter or other like social media platform, relating to or purporting to relate to the parties, the child or these proceedings. Insofar as the injunction in relation to Ms H is concerned, I refer to my findings in relation to her above, in circumstances where the father, on notice that the mother sought such an injunction, failed to adduce any evidence from her. I am satisfied that it is not in the child's best interests to be exposed to this paternal aunt, given my findings as to the views expressed either by her or on behalf of the father. Insofar as the non-publication/non-dissemination injunction is concerned, what is sought to be proscribed might, on one view, be said to go beyond s 121(1) of the Act, which prohibits the publication or do dissemination of “any account of any proceedings, or of any part of any proceedings under this Act” (emphasis added) that identifies a party thereto and certain other persons. However, an injunction will not be granted simply for the purpose of preventing a breach of that section, other than in special circumstances: Sitwell & Sitwell [2014] FamCAFC 5. Further, notwithstanding my considerable criticism of and concern about the V Business social media posts, whether by the father and/or by Ms H, it cannot be said that they purport to relate to the parties, the child or these proceedings in a way that identifies them. In the circumstances, notwithstanding that the father in closing submissions did not address such an injunction, I decline to grant it.
Lastly, insofar as the mother also seeks an injunction restraining the father (by himself, his servants and agents) from cutting the child's hair without her prior written consent, this is a matter which the mother complains has occurred on occasion in the past, is not denied by the father and such injunction was not the subject of opposition by the father in his counsel's closing submissions. In the circumstances, although de minimis in my view, I shall grant the injunction.
I certify that the preceding three hundred and twenty-seven (327) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strum. Associate:
Dated: 25 July 2023
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