Carrington and Hollings

[2019] FCCA 2130

FEDERAL CIRCUIT COURT OF AUSTRALIA

CARRINGTON & HOLLINGS [2019] FCCA 2130

Catchwords:
FAMILY LAW – Parenting – relocation – whether child is able to maintain a meaningful relationship with both parents after relocation – relocation allowed – recording of conversations – injunctive order – recording not allowed.

Legislation:

Commonwealth of Australia Constitution Act 1900 (Imp)

Family Law Act 1975 (Cth), s.60CC

Applicant: MS CARRINGTON

Respondent: MR HOLLINGS

File Number: DNC 409 of 2018

Judgment of: Judge Young

Hearing date: 14 June 2019

Date of Last Submission: 14 June 2019

Delivered at: Darwin

Delivered on: 14 June 2019

REPRESENTATION

Counsel for the Applicant: Ms Farmer

Solicitors for the Applicant: Withnalls Lawyers

Counsel for the Respondent: In person

Solicitors for the Respondent: In person

ORDERS

1. That the parties have equal shared parental responsibility for the child, [X], born … 2013 (“the child”).

2. That forthwith the Mother be permitted to relocate the child’s residence to within 50 kilometres of Town B.

3. That following the child’s relocation, the Interim parenting Orders made 22 October 2018 be discharged.

4. That the parties spend time with the child during school holidays as agreed between the parties and failing agreement as follows:

   (a)For all of the Term 1 school holidays in each year with the Mother;

   (b)For all of the Term 2 school holidays in each year with the Father;

   (c)With the Father for the first half of the Term 3 school holidays in even numbered years and with the Father for the second half of Term 3 school holidays in odd numbered years and with the Mother for the second half of the Term 3 school holidays in even numbered years and with the Mother for the first half of Term 3 school holidays in odd numbered years;

   (d)With the Mother for the first half of the Term 4 school holidays in even numbered years and with the Mother for the second half of Term 4 school holidays in odd numbered years and with the Father for the second half of the Term 4 school holidays in even numbered years and with the Father for the first half of Term 4 school holidays in odd numbered years;

   (e)In the event the Father visits Area C of New South Wales, the Father may spend additional time with the child as follows:

   (i)That the Father provide the Mother with not less than 10 days written notice of the intended time spent;

   (ii)That during the time spent, the child attend all extracurricular and schooling activities unless agreed for the child to travel;

   (iii)Provided the Mother has not previously notified the Father earlier than receipt of the Father’s notice referred to in a paragraph 4(c)(i) herein of her intended time or special event with the child;

   (iv)That the time spent shall not occur during the Mother’s school holiday time;

   (v)That any time spent shall not include any of the days of significance unless otherwise agreed; and

   (vi)That the time spent is to occur on no more than 1 occasion in any school term and totals a maximum time spent of 7 consecutive nights.

   (f)On the basis of the preconditions set out at 4(e)(i) to (vi) herein, the child may spend up to 7 nights each school term with the Father and such time shall not be cumulative pursuant to the timer at Order 4 herein.

5. In the event the Father is unable to spend time with the child pursuant to Order 4(d), the Father shall notify the Mother not less than 30 days prior to the intended time and the child shall remain with the Mother.

6. That for the purposes of time spent, the child shall travel unaccompanied during all travel and the parties shall pay for the child’s airfare travel as follows:

   (a)The Mother shall book and pay for all and any school holiday travel in each year;

   (b)The Mother shall provide the Father a copy of the itinerary and tax invoice as soon as possible after booking including charges relating the child travelling unaccompanied;

   (c)The Father shall within 14 days reimburse the Mother one half of the airfare costs to the Mother’s nominated account.

7. That time spent be suspended on the following days of significance and the child shall spend time with the parties if in the same geographical location as follows:

   (a)With the Mother for 4 hours on the Mother’s birthday being, ,,,;

   (b)With the Father for 4 hours on the Father’s birthday being, …;

   (c)With the Mother for 4 hours on Mother’s Day;

   (d)With the Father for 4 hours on Father’s Day;

   (e)For not less than 2 hours on the child’s birthday being, …; and

   (f)With the Mother for not less than 2 hours on [D]’s birthday being, ….

8. In the event the Father relocates to the Town B area, [X] is to spend time with the Father during school terms each alternate week commencing after school or pre-school on the second Wednesday of the school term to before school the following Monday and in each alternate week thereafter, and in such event, Order 4(e), 4(f), 5 and 6 herein will be discharged.

9. That the child be permitted to travel interstate or overseas during the time he is due to spend time with his respective parties in accordance with Order 4 herein provided the travelling party provides the non-travelling parent the following:

   (a)At least 14 days written notice of any travel; and

   (b)Copies of itinerary for the travel including the address/contact details for the accommodation where [X] will spend the majority of his time during the travel.

10. That the child be permitted to communicate with the party he is not spending time with by telephone or FaceTime each Wednesday and Sunday between 4:00pm and 5:00pm (Eastern Standard Time), and on days of significance, including Christmas Day, the child’s birthday, the party’s birthdays and Father's Day.

11. That the parties are to notify the other party of their contact details, including phone number, email and residential address, and notify of any change within 3 days of such change occurring.

12. That the parties will keep each other promptly informed as to any emergency, illness or medical concerns in relation to the child in a timely manner and if there are any matters of any urgent nature, the party who has the child will notify the other party immediately.

13. That each party shall be entitled to obtain copies of the child’s healthcare records and discuss matters in relation to the child with any healthcare professional and each party shall sign any necessary documentation/authorities to ensure this information can be freely disclosed to each party.

14. That the parties do all things necessary to obtain a passport for the child including but not limited to:

    (a)The Mother will prepare the necessary passport application and once the application is completed and signed by the Mother, the mother will provide the applications to the Father for his completion;

    (b)The Mother will meet the costs of the child’s passport application; and

    (c)The Mother will retain possession of the child’s passport unless required by the Father for the purpose of international travel.

15. That each party be restrained from denigrating the other party or the party’s partner or members of that party’s family in the presence of or within the hearing of the child or any of them and each party remove the child from the hearing of anyone else who may be denigrating the other party or that party’s partner or family.

16. That both parties shall in all relevant documents refer to the child by the last name “Hollings”.

17. That an injunction issue and the parties shall be restrained from recording any conversations that occur between the Mother and the Father.

18. Pursuant to Section 65DA(2) and Section 62B of the Family Law Act 1975, the particulars of the obligations of these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 409 of 2018

MS CARRINGTON

Applicant

And

MR HOLLINGS

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a parenting matter concerning [X] who is six years old. The mother wishes to relocate with [X] and her husband, Mr Carrington, to live in Town B. The father, Mr Hollings, opposes the mother’s relocation.

3. The question of relocation is really, in a sense, the only matter in dispute because Mr Hollings, at least in his formal orders, did not suggest any other orders were the present arrangements to continue, that is, that [X] spend five nights a fortnight with him and the balance of nine nights with his mother. The mother’s position is that if she is permitted to relocate to Town B and Mr Hollings follows, then the same arrangements continue.

4. The dispute in that sense is straightforward, although the authorities make it clear that there is no special category of “relocation case”. The resolution of any parenting case, including a relocation case, is dependent upon the matters in Part VII of the Family Law Act, sometimes called the legislative pathway, particularly section 60CC and section 65DD.

5. The areas of factual dispute in this case fell into five separate areas. First, the mother has remarried to Mr Carrington and they have a newborn child who is only a few months old. She says that her husband, Mr Carrington, who moved to Darwin some four years ago to work as a tradesman for Employer E, has found it difficult to find work as a result of the wind down of the Employer E in Darwin and it is necessary, if he is to continue to support his family, that he find work in another part of Australia.

6. Secondly, the attraction of Town B to the mother is that she has family in the region or not too far away. It appears from the evidence that she has expressed a wish to relocate to that part of New South Wales since the time of separation but the matter has not come to a head until now.

7. In the third area of dispute, the mother also says that she has a difficult relationship with the father and that according to her he is confrontational and aggressive. She says that that attitude taken by the father is stressful for her and, in substance, undermines her parenting capacity as the primary carer for [X].

8. The father denies that he is like that and much of the evidence in the case really turned on that issue. Whether or not the evidence is determinative is another matter. I am not satisfied it is.

9. The next area of dispute, the fourth area, I said “area of dispute” but I think I should use the description “subject area of evidence”, was the father’s assertion that he and [X] have an excellent relationship. In fact, that was not in dispute and it is clear from the evidence that [X] is loved and cherished by both of his parents and has an excellent relationship with both of his parents.

10. The fifth area of dispute concerned the father’s assertion that he cannot easily relocate to Town B where the mother is proposing to go because he would have to give up his present job as a public servant in the Northern Territory. It is necessary that I make some factual findings about those matters before I continue.

11. In relation to the first area, perhaps the first and second area are conjoined but the assertion by the mother that it is necessary for her husband, Mr Carrington, to relocate to find work is, I am satisfied, correct.  Mr Carrington gave evidence that he first came to Darwin some four years ago to work for Employer E. He gave evidence to me that he worked for a number of employers, all working for Employer E.

12. There has been, it is apparent from his evidence which was unchallenged, some periods of unemployment, relatively short, it would appear, a few weeks at the most but he was then again able to obtain work. However, in 2019, his employment as a tradesman with Employer F, a company working with Employer E, was terminated. 

13. He gave evidence that he had sought work in Darwin and had communicated with or telephoned a number of, mostly, trade companies. He said that he has contacted about 20 companies in Darwin and he found none of them were taking on employees. That evidence was not challenged and I accept Mr Carrington’s evidence that he is now finding employment in Darwin difficult to obtain.

14. The next area of evidence concerned the relationship between the father and the mother. The mother asserted, as I said, that the father has been confrontational and aggressive over a long period and she felt that it was difficult for her to continue to deal with that, particularly where there was a weekly changeover or a fortnightly changeover of [X], and she found it was undermining her capacity as a parent. That view was supported significantly by Mr H, a family consultant who prepared a private report. He concluded on the basis of his interview with the father, particularly, according to Mr H, from the father’s, critical attitude towards the mother, lack of trust and general poor view that the mother’s view was likely to be correct. The father, I am satisfied, does have a somewhat poor view of the mother and at times his language appears to have been aggressive and confrontational.

15. Some of the conversations, if not all of the conversations, between the father and the mother have been recorded by the mother over time using her mobile telephone. The transcript of those recordings or some of the transcript of those recordings has been put in evidence. The father said, and I accept that, there have been probably “tons and tons” of occasions on which the mother could have recorded him and there appear to have been a handful of occasions referred to in her evidence. Nevertheless, those handful of occasions have, on some occasions, been illustrative.

16. I am thinking of in particular the incident that was called the “flip out” incident which occurred in April 2017 when [X] was, according to the expectation of the father, to be at preschool and the father had knocked off work early and expected to pick [X] up from preschool and he was not there. The father was upset that [X] was not where he expected to be and the transcript of his remarks directed to the mother were, in my view, confrontational and aggressive and completely inappropriate. The fact is at that time there were no orders in place. The child was apparently spending time with the maternal grandparents and the mother and while it would have been perhaps helpful had the mother notified the father that [X] was going to be late to preschool or childcare, in my view, the father’s response was not justified.

17. It is a difficult matter to assess how common the style of speech and the tone apparent from that recording was evident in conversations between the mother and the father. As I have said, there are really only a couple of instances in evidence where the father has conducted himself in that manner. Presumably if there were others, the mother, who appears to have recorded almost all of those occasions, would have been in a position to give evidence about them in the same way that she has given evidence about the flip out incident by producing a transcript.

18. I am inclined to think that the conduct of the father has been on occasion, as the mother complains, confrontational and aggressive. I am not satisfied that it is a constant part of the dynamic between the two parents but what I am satisfied has been a constant dynamic is the father’s lack of trust in the mother and his conviction that she is dishonest about a variety of things, including her motivations for a relocation. I have very little doubt that constant exposure to such an atmosphere is difficult for the mother and is likely to be a stressful and unpleasant experience for her. Whether or not that in itself would justify a relocation, I doubt.

19. The next area, of course, is where there is no dispute, and that is that the parties agree that [X] has an excellent relationship with both parents.

20. The next area of dispute concerns the father’s evidence that he cannot easily relocate to Town B because he would have to give up his present job. The father said that he had made one enquiry about employment in Employer H in New South Wales and he was told that because of the demand for work or employment as a public servant in New South Wales that he would likely be, in effect, in quite a long queue. In effect, it could be some considerable time before he found work or he found permanent work in Employer H.

21. He told me that he had not made any other enquiry in New South Wales about employment. He also said that he had formed the view that employment in New South Wales, particularly Employer H, would be difficult to him to obtain based on conversations he had had with other public servants who had formerly worked in Employer H. The father’s evidence, therefore, about his employment prospects in New South Wales was very limited. He said that, given that he is 43 years old, has no particular trade or skill behind him, he is likely to find employment difficult. Whether that is the case I do not know.

22. It appears the father has been substantially in full employment for many years. He worked for the Employer J as a public servant. His career with Employer K has been a relatively short one. I am not sure precisely how long it has been but it would appear no more than three years, perhaps less, as he told me that he was working for Employer J for approximately the first two years of [X]’s life, who was born in 2013. So I am not satisfied that the father is unable to relocate to Town B and obtain employment. 

23. Turning to the matters in the Family Law Act that I have to have regard to, the so-called legislative pathway, the best interests of the child are paramount in making parenting orders. The High Court has, however, made it clear in a number of cases that the child’s best interests are not the only interest and in a series of cases has established that one of the factors that must be taken into account by a Court is a parent’s right to freedom of movement within Australia under our Constitution.

24. The Family Law Act says that the best interests of the child are a paramount consideration in making a parenting order or parenting orders and the primary considerations in determining what is in a child’s best interests are set out in section 60CC(2), that is:

    (a)     The benefit to the child of having a meaningful relationship with both of the child's parents; and

    (b)     The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

    Fortunately, in this case (b) is not an issue. So the primary consideration is the benefit to the child of having a meaningful relationship with both of the child’s parents.

25. In the context of this case the mother, in effect, says that the child can continue to have a meaningful relationship with his father by visiting his father in Darwin for school holidays in the event that the father chooses not to relocate to Town B himself. If the father chooses to relocate to Town B then the current arrangements will continue, that is, that the child will spend five nights a fortnight with the father. In the circumstances of this case, I am satisfied that the child can have a meaningful relationship with his father under either scenario.

26. “Meaningful” in the context of section 60CC(2) is “meaningful in all of the circumstances” and it does not mean that the child must continue to spend the most time with either parent that is possible. It means that there ought to be an optimal arrangement that allows a child to continue with a meaningful relationship. That may mean, and often does in this court, that a child will spend holiday time with one parent while the parents continue to live interstate.

1. In the case of a six year old, that is, a child who is not at a sensitive developmental stage, I am satisfied that [X] is capable of having a meaningful relationship with, in this case, his father if he needs to travel for holidays. It may not be the most desirable arrangement for this child and I consider the most desirable arrangement is that both parents live in the same area so that the present arrangements can continue.

2. The question is whether, in circumstances where the mother has expressed a wish which, I am satisfied, is reasonable and justified to move to New South Wales. Of course, a relocating parent does not have to provide a good reason but in this case I am satisfied there is a good reason and I might say that I am not satisfied there is a good reason why the father cannot move to Town B should he so choose.

3. There are additional considerations in section 60CC(3) I should address:

   a)The child had not expressed a view.

   b)The nature of the relationship of the child with each of the child’s parents and any other person:  the only evidence has been about the nature of the child’s relationship with each parent and, as I have said, it is agreed that the relationship is excellent and both parents cherish and love this child.

   c)The extent to which each of the child’s parents have taken, or failed to take, the opportunity to participate in making decisions about major long-term issues, spending time with the child and communicating with the child: there has been no evidence in this case to suggest anything other than both parents being thoroughly interested in this child’s life and discharging their responsibilities as parents in the best way they can.

   ca)    The question of maintenance: there was no evidence about that.

   d)The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his parents or any other child: the evidence focused on the impact of any separation between [X] and his father.  I am satisfied that if there were to be a separation between [X] and his father so that, for example, he spent school holiday time only with his father, I am satisfied that that is not in [X]’s best interests. However, having regard to the finding I have made, which is that I consider the mother’s proposal to relocate to Town B is an appropriate one and, indeed, is a pressing need, given my finding about the need for Mr Carrington to seek employment, the issue about whether or not there is a separation is very much dependent upon the decision Mr Hollings himself makes.

   e)The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis: I am satisfied that if the mother relocates to Town B and the father decides not to follow that will substantially affect the child’s right to maintain personal relationships with, in this case, his father.  The parties have reached an agreement about the machinery of travel and the sharing of expense should the father remain living in Darwin and [X] and his mother relocate to Town B.

   f)The capacity of each of the child’s parents to provide for the needs of the child, including emotional and intellectual needs: I am satisfied that both parents can provide for the emotional and intellectual needs of the child.  As I have already noted, it is not proposed that there be any disturbance in the current arrangements which provide for the mother to be the primary carer of [X].

   g)The maturity, sex, lifestyle and background of the parents was not an issue that was the subject of evidence in this case or relevant.

   h)The child is not an Aboriginal or Torres Strait Islander child.

   i)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents: I am satisfied that both parents are highly conscientious parents and, as I have already noted, cherish this child and, to the best of their respective abilities, are devoted to the highest standard of parenthood. There have been criticisms of the father made by the mother in relation to his style of interaction with her and while I am satisfied that there is some substance to that, I think that is in the overall picture a relatively minor blemish on the responsibilities of parenthood demonstrated by the father. I certainly do not doubt that he is a responsible parent.

4. Any family violence involving the child or a member of the child's family: the family consultant expressed the view that some of the complaints of the mother constituted family violence within the terms of the Act and, as I understood the family consultant’s evidence, the particular matter he was referring to was an incident that has been subsequently referred to as the flip out incident when the father was said to have yelled abusively at the mother. There was definitely an incident and the transcript of that incident shows the father using very offensive language. At paragraph 119, the mother said that following that event, and what she described as the father’s threatening manner and exchange, she was frightened, shaken and subsequently had trouble sleeping.

5. She subsequently went to a doctor and the doctor reported the incident under mandatory reporting provisions. I do not know what she told the doctor. I do not know what was reported by the doctor. There is in fact very little evidence about that. As far as I can see, that is the only occasion when the mother has said that she was frightened by the father’s conduct.

6. The definition of family violence in the Family Law Act it is as follows:

   For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family … or causes the family member to be fearful.

7. Some examples of family violence are given: assault, stalking, repeated derogatory taunts, damaging property and so on. The question of whether or not there has been family violence depends entirely upon whether or not there has been violent, threatening or other behaviour, in this case, that has caused the mother to be fearful.

8. The transcript of the conversation reproduced by the mother in her affidavit certainly indicates that there was offensive language used but there is no mention of violent behaviour. I do not see a suggestion of threatening behaviour, although there may be other behaviour which causes a party to be fearful.  At paragraph 119, she refers to the father’s “threatening manner” but there is no detail about the threatening manner that was adopted.

9. I have a reservation about the mother’s credibility and it flows from this point: in her affidavit she asserted that the father had said that her husband, Mr Carrington, might be a paedophile and she nominated the conversation where that occurred. This conversation was recorded by Mr Carrington and a transcript of the conversation included in his affidavit.

10. At paragraph 38 of Mr Carrington’s affidavit, the relevant part of the transcript of the conversation between the father and Mr Carrington reads as follows: the father was complaining that he barely knew Mr Carrington and he was being expected to deliver [X] to Mr Carrington in circumstances where the mother was elsewhere, possibly interstate. What Mr Hollings has recorded as saying is as follows:

    …I do not know who you are, where you are going … I am sure you are not a paedophile or anything, but I simply do not know, you know -

11. In my assessment, the mother, who admitted that before she swore her affidavit she had listened to that recording, had no justification for the assertion made in her affidavit that Mr Carrington had told her that the father had described him as a person who might be paedophile. In evidence, Mr Carrington was vague about what may have been said and, as I understood his evidence, he certainly did not make any unequivocal assertion that the father had said that to him. In my view, what the mother said in that affidavit was unfortunate.

12. I asked her about it and she said initially that what she said was one interpretation of the words. I do not think this is a question of interpretation of words. She then said that it was “my truth”. I do not accept that there is a “my truth” or a “your truth”, not in this court or any other court. The regrettable result of that is that I am not satisfied that I can accept everything the mother says uncritically and the consequence is that I am not satisfied that what she has said in a vague way about the “threatening manner” of the father during the flip out incident constitutes family violence.

13. As far as I know, there is no family violence order that applies. The matters under l) and m) are not relevant for the present purposes. As the parties have agreed on shared parental responsibility, it is necessary to address the factors in section 65DAA. The first consideration under subsection (1) is whether the Court must consider an order for a child spending equal time with the parents. In my view, that is not appropriate and neither party seeks that.

14. Substantial and significant time under subsection (2): I am satisfied that an order for substantial and significant time is appropriate. That being my finding, there is a necessity to consider under subsection (5) the reasonable practicality of that. I am satisfied that there is reasonable practicality to that if the parents are living in the same place and, of course, there is agreement about what should happen if the parents continue to live in the same place which satisfies the requirements of substantial and significant time. So I do not need to consider those matters in any detail.

15. Which returns to the starting point, the question of relocation. The mother is the primary carer of this child. I am satisfied that there are genuine and indeed pressing reasons relating to Mr Carrington’s employment as to why she should be permitted to relocate to Town B along with [X] and her husband. I am not satisfied that there is any practical impediment to the father relocating to Town B as well. It seems to me it follows from those findings that an order permitting the mother to relocate with [X] should be made and that is the order I make.

16. The orders that have been agreed on have been provided to me. There was disagreement about recording conversations. I will give some brief reasons for making the order I have. I consider the recording of conversations between parents is generally a repellent activity, though on some occasions it could well be justified. In this case, whether it is justified or not cannot be answered unambiguously because part of it has led to a dent in the mother’s credibility although I have also used it to make some findings against the father. Nevertheless, I think that in general terms, the practice of recording conversations leads to hostility and suspicion, exactly what the parents in this case do not need. That is the reason I am making an injunctive order prohibiting it.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 2 August 2019