Carter & Hicks
[2022] FedCFamC2F 202
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Carter & Hicks [2022] FedCFamC2F 202
File number(s): LNC 906 of 2020 Judgment of: JUDGE TURNBULL Date of judgment: 2 March 2022 Catchwords: FAMILY LAW – PARENTING – relocation – unilateral relocation – family violence – social isolation – where children now reside in South Australia with the mother – where father remains resident in Tasmania – where the parties have maintained daily video calls – where parties do not have sufficient funds for frequent interstate travel – application for injunction preventing the mother from bringing the children into contact with their maternal grandfather Legislation: Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 61C, 61DA, 65DAA
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)
Cases cited: AMS & AIF [1999] HCA 26; 199 CLR 160
Bennett & Bennett [2001] FamCA 462
Blatch v Archer (1774) 98 ER 969
Bondelmonte & Bondelmonte [2017] HCA 8; 259 CLR 662
Briginshaw & Briginshaw [1938] HCA 34; 60 CLR 336
CDJ & VAJ (No 1) [1998] HCA 67; 197 CLR 172
Cole v Whitfield [1988] HCA 18; 165 CLR 360
Collu & Rinaldo [2010] FamCAFC 53
Dundas & Blake [2013] FamCAFC 133
Fitzroy & Fitzroy [2009] FamCA 954
Flanagan & Handcock [2000] FamCA 150
Godfrey & Sanders [2007] FamCA 102
Goode & Goode [2006] FamCA 1346
Groth & Banks [2017] FamCA 3
Hill & Weston [2021] FedCFamC1F 174
Jones v Dunkel [1959] HCA 8; 101 CLR 298
Koyroyshs & Koyroyshs [2020] FamCA 626
Lavell & Lavell [2012] FamCA 34
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
Morgan & Miles [2007] FamCA 1230
MRR & GR [2010] HCA 4; 240 CLR 461
Robertson & Sento [2009] FamCAFC 49
Shalhoub v Buchanan [2004] NSWSC 99
Tabac & Kelmer [2016] FCCA 1937
U & U [2002] HCA 36; 211 CLR 238
Withers & Russell [2016] FamCA 793
Wordsworth & Wordsworth [2021] FedCFamC1A 28Other materials: Explanatory Memorandum, Family Law (Shared Parental Responsibility) Bill 2005 (Cth) Division: Division 2 Family Law Number of paragraphs: 295 Date of last submission/s: 19 October 2021 Date of hearing: 7 & 19 October 2021 Place: Burnie Counsel for the Applicant: Mr J Petersen Solicitor for the Applicant: Petersen Legal Counsel for the Respondent: Ms C Henderson Solicitor for the Respondent: Walker Henderson Lawyers ORDERS
LNC 906 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CARTER
Applicant
AND: MS HICKS
Respondent
ORDER MADE BY:
JUDGE TURNBULL
DATE OF ORDER:
2 MARCH 2022
THE COURT ORDERS THAT:
1.Ms Hicks (‘the Mother’) and Mr Carter (‘the Father’) have equal shared parental responsibility for X born in 2015, Y born in 2017, and Z born in 2019 (‘the children’).
THE COURT FURTHER ORDERS THAT, WHILST THE FATHER LIVES IN TASMANIA:
2.The children live with the Mother.
3.The children spend time with the Father in Tasmania as follows:
(a)for the first seven (7) nights of the children’s first, second and third term gazetted school holidays, with such time to commence on the first Saturday of such holidays and for the children to return to the Mother on the following Saturday;
(b)in 2022, and each alternate year thereafter, from 20 December until 10 January the following year;
(c)in 2024, and each alternate year thereafter, from 10 January until 31 January of the same year; and
(d)at all other times as agreed in writing by the parties.
4.The children spend weekend time with the Father in South Australia as follows:
(a)from Saturday 10:00am until Sunday 5:00pm;
(b)at dates agreed in writing by the parties; and
(c)with such time to occur on the proviso that the Father gives the Mother not less than fourteen (14) days’ written notice of any proposed visit by him to South Australia for this purpose.
5.The children communicate with the Father as follows:
(a)by Facebook Messenger or any other electronic communication on Tuesdays, Thursdays and Sundays of each week between 5:00pm and 5:45pm;
(b)if the children are not otherwise in the Father’s care, by Facebook Messenger or any other electronic communication, for a maximum duration of 45 minutes, on the children’s birthdays, the Father’s birthday, Father’s Day, Christmas Day and Easter Sunday at times to be agreed but failing agreement at 4:00pm; and
(c)at all other times as agreed in writing between the parties.
6.To effect the arrangements set out in Orders 3 and 4 above:
(a)in relation to time pursuant to Order 3, the Mother will purchase the children’s flights from Tasmania to South Australia;
(b)in relation to time pursuant to Order 3, the Father will purchase the children’s flights from South Australia to Tasmania;
(c)in relation to time pursuant to Order 3, the Father will notify the Mother no later than twenty eight (28) days prior to any scheduled visit to confirm that he will have the children for that visit and that he will be exercising that time;
(d)in relation to time pursuant to Orders 3 or 4, the Mother and the Father will provide to each other, in a timely manner, all documentation and information whatsoever which is relevant for the purposes of the children’s travel between Tasmania and South Australia, including flight itineraries and travel requirements; and
(e)in relation to time pursuant to Order 4, the Father will bear his own travel expenses.
7.Notwithstanding any other Order, the children will communicate with the Mother while in the Father’s care pursuant to Order 3 by Facebook Messenger or any other electronic communication:
(a)on Tuesdays, Thursdays and Sundays of each week between 5:00pm and 5:45pm; and
(b)on the children’s birthdays, the Mother’s birthday, Mother’s Day, Christmas Day and Easter Sunday, for a maximum duration of 45 minutes, at times to be agreed but failing agreement at 4:00pm; and
(c)at all other times as agreed in writing by the parties
THE COURT FURTHER ORDERS, TO MAKE PROVISION FOR THE POSSIBILITY OF EQUAL TIME IN THE FUTURE, THAT:
8.Alternatively to Orders 2-7 above, the children will live in a week-about equal time arrangement if the Father relocates to South Australia:
(a)within two (2) years from the date of these Orders; and
(b)to a residence within 60 kilometres’ travel distance of the children’s home at the relevant time.
9.If all requirements of Order 8 above are satisfied, the children will:
(a)live with their parents on a week-about, alternating basis from Monday at 3:00pm until the following Monday at 3:00pm;
(b)spend Christmas Day with the Father in even numbered years from 3:00pm on Christmas Eve until 3:00pm on Christmas Day;
(c)spend time with the Father in odd numbered years from 3:00pm on Christmas Day until 3:00pm on Boxing Day;
(d)spend Christmas Day with the Mother in odd numbered years from 3:00pm on Christmas Eve until 3:00pm on Christmas Day;
(e)spend time with the Mother in even numbered years from 3:00pm on Christmas Day until 3:00pm on Boxing Day;
(f)unless otherwise in the Father’s care, spend Father’s Day with the Father from 10:00am until 5:00pm;
(g)unless otherwise in the Mother’s care, spend Mother’s Day with the Mother from 10:00am until 5:00pm;
(h)spend three (3) hours of their birthdays, at times agreed between the parties, with the parent with whom they are not resident at that time;
(i)communicate with the parent with whom they are not resident by Facebook Messenger or any other electronic communication on Tuesdays, Thursdays and Sundays of each week between 5:00pm and 5:45pm; and
(j)otherwise spend time with and communicate with their parents as agreed in writing by the Mother and the Father.
THE COURT FURTHER ORDERS, IN RELATION TO THE CHILDREN’S IN-PERSON TIME WITH THE FATHER, THAT:
10.It is a condition precedent to any in-person time between the Father and the children that he undertake, and complete, an accredited anger management course and provide the Mother with documentation evidencing his completion of the same.
THE COURT FURTHER ORDERS THAT:
11.Both parties are to immediately advise the other of any medical emergencies involving the children whilst the children are in their care.
12.The Mother provide the Father with the children’s regular school reports and school photographs, and provide the children’s school(s) with all necessary authority to allow the Father to obtain all and any information regarding the children.
13.These Orders be sufficient authority for both parents to attend any school, day-care or extracurricular events to which parents would ordinarily be invited to attend from time to time, and for the purposes of the Father’s attendance he will provide the Mother with notice of his intention to attend any event 48 hours prior to the event.
14.The Mother and the Father keep each other informed of any medical or health issues the children have, and shall provide particulars of any treating doctors or allied health professionals to each other and provide such health professionals with all necessary authority to allow both parents to obtain all and any information regarding the children.
15.Both parties are restrained from denigrating or criticising the other party in the hearing or presence of any of the children, and shall ensure that the children are removed from the vicinity of any other person who denigrates or criticises the other party.
16.The Father and the Mother be and are hereby restrained from physically disciplining the children.
17.All extant Orders be discharged.
18.All extant Applications be dismissed.
THE COURT NOTES THAT:
A.Pursuant to s 62B and 65DA(2) of the Family Law Act 1975 (Cth), the Court has attached to these published Orders information about family counselling services, family dispute resolution services and other resources available to help the parties adjust to the consequences of these parenting Orders, as well as the consequences of contravening an order of the Court.
B.In the event that the Father relocates to South Australia, but does not comply with sub-paragraphs (a) or (b) of Order 8 above, then the parties will attend community-based mediation to negotiate the ongoing parenting arrangements in those circumstances.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Carter & Hicks has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE TURNBULL
INTRODUCTION
Mr Carter (‘the Father’) commenced proceedings against Ms Hicks (‘the Mother’) on 7 December 2020 in the Federal Circuit Court of Australia.
These proceedings concern the following children of the relationship:
·X born in 2015 currently 6 years of age (‘X’);
·Y born in 2017 currently 4 years of age (‘Y’); and
·Z born in 2019 currently 2 years of age (‘Z’).
These Reasons refer collectively to X, Y and Z as ‘the children’.
On 25 January 2021 his Honour Judge McGuire, as he then was, ordered on an interim basis that the children communicate with the Father at all reasonable times through Facebook Messenger and that the Mother facilitate the same. His Honour further ordered that the Father’s communication with the children was conditional upon the Father not using Facebook Messenger to abuse or harass the Mother, or to contact her otherwise than to communicate with the children.
On 11 February 2021 his Honour made further interim orders allowing the Mother to remain in Adelaide with the children. The orders also provided that the children be able to contact and communicate with the Father by Facebook Messenger ‘as often as is reasonably available and at times as agreed between the parents’.
On 1 March 2021 his Honour ordered pursuant to s 102NA of the Family Law Act 1975 (Cth) (‘the Act’) that neither party may themselves cross-examine the other party. Those orders also confirmed that the Father’s video calls were to occur at 7.00 p.m.
The matter proceeded to final hearing on 7 October 2021 in Burnie. Final submissions were received on 19 October 2021 in Launceston by telephone.
The Father has not spent any physical time with the children since separation, but continues to enjoy daily video calls which sometimes last up to an hour.[1]
[1] Affidavit of Mr Carter, 27 September 2020, [53]; Affidavit of Ms Hicks, 21 June 2021, [70].
BACKGROUND
The Father, born in 1986, is currently 35 years of age. He works at Employer B in Town C as a factory hand for one shift per week.
The Mother, born in 1993, is currently 28 years of age. She is not presently in paid employment, and receives approximately $800.00 per week in government payments.[2] The Father revealed under cross-examination that he pays the Mother approximately $16.00 per fortnight by way of child support.
[2] Affidavit of Ms Hicks, 21 June 2021 (n 1), [72].
The parties have had four children together. In addition to X, Y and Z, the parties were also parents to D born in 2018 (‘D’).
D passed away in 2018, aged five weeks. It is clear that both parties were, and continue to be, affected by the lamentable circumstances of D’s passing.
Timeline
The parties met in 2014. They were both studying in South Australia at this time.
Cohabitation commenced in mid-late 2015.[3] The parties’ first family home was located in Town E about 75 kilometres east of Adelaide.
[3] Affidavit of Mr Carter, 27 September 2020 (n 1), [8]; Affidavit of Ms Hicks, 21 June 2021 (n 1), [5]. The parties agree that they moved into their home at Town E prior to the birth of their first child X.
The parties relocated to Tasmania in 2018. The Mother alleges that the Father told her that he had found his ‘dream job’ and that, on this basis, he misled her into relocating to Tasmania.[4] The Father, on the other hand, says that they mutually decided to relocate for reasons not including actual or prospective employment in Tasmania.[5]
[4] Affidavit of Ms Hicks, 21 June 2021 (n 1), [10].
[5] Affidavit of Mr Carter, 27 September 2020 (n 1), [10].
Upon their relocation the parties moved into a house in F Street, City G. They resided in F Street, City G until July 2019.
The parties then moved from City G to Town H — a small Region R township situated 44 kilometres from the closest regional centre, City J.
The Mother says that following D’s death she wanted to return to South Australia, yearning for the support of family and friends. She says that the Father opposed her return to South Australia, and that he threatened to kill her if she attempted to remove the children from Tasmania.
Further, the Mother claims that the Father socially isolated the family. On her account, he did not want her or the children to interact with members of the Tasmanian communities in which they lived, including other children.[6]
[6] Affidavit of Ms Hicks, 21 June 2021 (n 1), [20], [30].
The parties’ relationship appears to have been blemished by family violence to one degree or another. Each party’s affidavit reveals a different recollection of the nature and extent of family violence. As such, the issue of family violence was prominent during these proceedings. Both parties were extensively cross-examined about this issue.
The Mother alleges a history of family violence as perpetrated by the Father. The family violence alleged includes verbal threats,[7] financial control[8] and physical assaults.[9] She says that the children witnessed the family violence that she describes in her affidavit.[10] She further alleges that the Father drank alcohol and consumed marijuana regularly, and that his habits in this respect increased significantly from when they first moved to Tasmania.[11]
[7] Ibid [21], [25].
[8] Ibid [21].
[9] Ibid [23], [25].
[10] Ibid [26].
[11] Ibid [29].
The Father denied the family violence allegations as put by the Mother. He describes an incident of family violence on 10 September 2020 in which a conversation between the parties took a ‘sharp turn’. He says that both parties had been drinking and that the Mother first became violent towards him, punching him in the face and shoulders. He says that he pushed her away, and that he thinks X may have witnessed him doing so.[12] He clarified under cross-examination that the Mother fell after he pushed her but that he was unsure whether she was hurt.
[12] Affidavit of Mr Carter, 27 September 2020 (n 1), [13].
The Mother, on the other hand, says in relation to the incident on 10 September 2020 that the Father became violent during an argument. In the Mother’s affidavit she says that the Father dealt a number of hits to her chest and that he pushed her as she leant over to pick up a phone. This, in her account, caused her to hit her head and her hip.[13]
[13] Affidavit of Ms Hicks, 21 June 2021 (n 1), [33].
While the parties differ in their account of the 10 September 2020 incident itself, they agree that police attended their home. Further, they agree that the police took no further action — the Father says that he spoke to police about what had occurred and the Mother confirms the same. Further, the Mother says that she told the police that they ‘had a disagreement but everything was fine now’ in fear of the Father’s reaction after the police left.[14]
[14] Ibid, [38]; Affidavit of Mr Carter, 27 September 2020 (n 1), [14].
It was on 10 September 2020 that the parties separated on a final basis. Both parties’ case outlines confirm the same in their chronologies.
Later in the evening of 10 September 2020, following the incident of family violence, the Mother removed herself and the children from the Town H property. The Mother travelled from Town H to Hobart with the children and departed for Adelaide from Hobart Airport.
The Mother accepts that she decided to return to South Australia with the children unilaterally, without consulting the Father. Her affidavit sets out the context in which she says she made that decision:
“40. I left without talking to Mr Carter because this had been going for multiple years, he had to no concern for the safety and wellbeing of myself or our children and discussing our departure again seemed pointless as we were never able to come to a decision of when it could happen.”
The Father’s affidavit states that the Mother and the children have moved residences at least seven times since returning to Adelaide.[15] The Mother did not dispute that her and the children moved a lot at this time, but said during cross-examination that it would have been five or six times instead of over seven times. The Father claims that frequently moving residences has not created a stable environment for the children.[16]
[15] Affidavit of Mr Carter, 27 September 2020 (n 1), [85]-[95].
[16] Ibid [85].
In relation to the purportedly unstable accommodation arrangements, the Mother clarified, during cross-examination that her frequent moves should be viewed in their proper context. Namely, the context created by the need for her to leave Tasmania quickly and without accommodation organised. Several moves upon her return to South Australia involved house-sitting, or temporarily moving in with someone until she could take up occupancy at a property for which she had signed a lease. By reference to this context, she denied that the children were subject to uncertain living arrangements at this time. Further, Family Consultant Ms K (‘Ms K’) says that the Mother indicated uncertainty as to whether she should settle her living arrangements. Her uncertainty in this respect was due to the possibility of being ordered by this Court to return to Tasmania, in accordance with the practical reality of the orders sought by the Father upon commencing these proceedings.[17]
[17] Family Consultant Ms K, Child Dispute Conference Memorandum to Court, 4 February 2021, [19].
In July 2021 the Mother and her father, Mr L, signed a 12-month lease for a property in Town M. The Mother and the children continue to occupy that property.
The Mother says that the children are now well settled in Adelaide. They are, in her account, happy children with greater confidence and enhanced social skills. The children have also reconnected with both of their parents’ extended families all of whom reside in Adelaide.[18] The children and members of their extended family alike continue to build and benefit from their time together.[19]
[18] Affidavit of Ms Hicks, 21 June 2021 (n 1), [52].
[19] Ibid [56]-[57].
The Father does not accept that the children are settled to the extent claimed by the Mother. He fears that the children are not only unsettled, but that they are unsafe in the Mother’s care and around the Mother’s family and friends.[20] This includes the Father’s concerns about the children being left with or exposed to Mr L and the Mother’s uncle, Mr N. The Father says that Mr L and Mr N have extensive criminal records, including drug-related crimes.[21] The Father’s application for an injunction in respect of Mr L and Mr N is addressed at the conclusion of these Reasons.
[20] Affidavit of Mr Carter, 27 September 2020 (n 1), [20]-[22], [34]-[36].
[21] Ibid [34].
Further, the Father expresses concern in his affidavit as to the Mother’s step-father, Mr O. There are, in the Father’s account, allegations of child sexual abuse against him in relation to another child in the family.[22] While the Father’s affidavit sets out his concerns in this regard, no submissions were received about the injunction as sought against Mr O in the Father’s application for final orders.
[22] Ibid [21].
Further, the Father alleges that the children have been injured in the Mother’s care and have been exposed to violence from the Mother’s former partner, Mr P.[23] The Father has, as a result, called the police on several occasions to conduct welfare checks.[24] These welfare checks are so commonplace that X has expressed an ambition of becoming a police officer.
[23] Ibid [28].
[24] Ibid [33].
The Father also alleges that, since separation, the Mother has disrupted his contact with the children.[25]
[25] Ibid [32], [36].
In relation to the children’s schooling, the Father complains that the Mother did not enrol X in school for a period of eight months upon her return to South Australia. The Mother countered the Father’s concern in this respect by saying that, by reason of his reclusive and asocial nature, he did not allow X to be enrolled in school while they lived in Tasmania. Under cross-examination, the Father explained that X did not attend school at this time due to COVID-19 restrictions and work commitments. I note that X was six years old in 2020.
X and Y are now enrolled at, and attend, Town M Primary School. It is uncontentious between the parties that both children are progressing well at school.
ORDERS SOUGHT
The Father’s Initiating Application expresses the orders sought in the following terms:
1.That the Mother and the Father have equal shared parental responsibility for the children X (born in 2015), Y (born in 2017) and Z (born in 2019) (“the Children”);
2.That the Children live with the Mother and the Father on a week-about basis;
3.That the Children spend time and communicate with the parties on special occasions on an equal rotating basis to be particularised prior to trial;
4.That the parties be and are hereby restrained from the consumption of alcohol exceeding a blood alcohol reading of 0.05% whilst exercising care of the Children;
5.That the Mother be and is hereby restrained from denigrating the Father in the presence or hearing of the Children, or permitting or causing any third party to do so;
6.That the Mother be and is hereby restrained from permitting or causing the Children to be in the presence of the paternal stepfather;
7.That the Mother pay the Father’s reasonable and incidental costs of and to this Initiating Application;
8.Such further or other Order as the Honourable Court may see fit.
The Father’s position changed during final submissions. His ultimate proposal, in summary, is that:
(a)In the event that both parties live in the same state, the Father seeks an equal time arrangement;
(b)Alternatively, if the Mother and the children remain in South Australia and the Father remains in Tasmania, the Father proposes that the children spend time with him as follows:
(i)for three weeks in the summer holidays; and
(ii)for the entirety of all other holidays; and
(iii)Video calls with the children be maintained at least three times per week, and preferably every day.
The Father’s proposal does not explicitly seek that the Mother return to Tasmania with the children, nor does it acknowledge the possibility of him relocating to South Australia. Words to that effect are not present. It is, however, a necessary incident of an equal week-about time arrangement that the parties live in the same state. The Father concludes his affidavit by saying the following:
“102. I live in a regional area, do not have the financial means or desire to relocate to South Australia and it is not practical for children of this young age to travel easily.”
During cross-examination the Father said that, if he was to move back to South Australia to live closer to the children, he would need approximately another eighteen months to save funds sufficient to do so.
The Father’s ultimate proposal also sought that the children’s travel costs be shared between the parties if time occurs pursuant to paragraph (b) above. If, however, the Father is to spend time with the children during school terms, he proposed that he meet the costs of this time himself.
The Mother, in her Further Amended Response, sought the following orders:
1.That the Mother Ms Hicks have sole parental responsibility for X born in 2015, Y born in 2017 and Z born in 2019 herein referred to as “the children”.
2. That the children live with the Mother.
3.That the children spend time and communicate with the Father Mr Carter whilst living in Tasmania as follows:
(a)By Facebook Messenger or any other electronic communication as agreed on Tuesday. Thursday and Sunday at 5pm of each week.
(b)By Facebook Messenger or any other electronic communication as agreed on the Children’s Birthdays, the Father’s Birthday, Father’s Day, Christmas Day and Easter Sunday at times to be agreed but failing agreement at 4pm.
(c)The Mother shall pay for and arrange for the children to travel to Tasmania during the long summer school holidays and the children shall spend day visits with the Father from 10am until 5pm for not less than 7 days during those holidays.
(d)For weekend time in South Australia for day visits from 10am until 5pm at dates and times to be agreed between the parties with the Father to give the Mother not less than 14 days’ notice of any proposed visit to South Australia.
(e)At all other times as agreed between the parties.
4.That the Mother notify the Father of any medical emergencies involving the children as soon as reasonably practicable.
5.That the Mother provides the Father with the children’s regular school reports, school photographs once the children are of school age.
6.That the Mother shall keep the Father informed of any medical, health issues the children have and shall provide particulars of any treating doctors or allied health professionals to the Father as soon as reasonably practicable.
7.That the Father be hereby restrained from denigrating the Mother to and in the presence of the children.
8.That the Father be hereby restrained from being under the influence of alcohol whilst caring for the children.
9.That the Applicant Father pay the costs of and incidental to this application.
During final submissions the Mother’s position also changed. Her ultimate proposal is, in summary, that:
(a)The parties have equal shared parental responsibility for the children;
(b)In the event that the Father lives in Tasmania, the children are to spend one half of three of the four school holiday periods in Tasmania, with the children’s travel costs to be shared between the parties; and in this arrangement:
(i)The Father spend weekend time with the children in Tasmania and South Australia during school terms, at the Father’s expense, on 14 days’ notice;
(ii)Video calls are to be reduced to three times per week; or
(c)In the event that the Father lives in South Australia, the children live in an equal time, week-about arrangement; or
(d)If the Mother and the children are required to return to Tasmania, the Mother and the children will reside in the City G area, and the Father will spend alternate weekends and one half of school holidays with the children (the reason being that the travel time between City G and Town H is approximately two hours); and
(e)The Father’s physical time with the children is not to commence until he completes a recognised anger management course.
As for point (e) of the Mother’s final proposal above, Mr Petersen on behalf of the Father indicated during final submissions that the Father will undertake an anger management course.
The parties also agreed that neither of them will physically discipline the children. Both parties agreed to an order to this effect.
The parties’ agreement as to the anger management course and injunction against physical discipline will be incorporated into this Court’s final orders in these proceedings.
DOCUMENTS RELIED UPON
The Father relied upon the following documents:
·Initiating Application filed 7 December 2020;
·Affidavit of Mr Carter filed 27 September 2020;
·Notice of Child Abuse, Family Violence or Risk filed 7 December 2020;
·Child Dispute Conference Memorandum to Court, produced by Family Consultant Ms K and dated 4 February 2021;
·Section 67ZA Notification – Notice of Risk Response filed 25 February 2021; and
·Exhibit ‘F1’, being immunisation records tendered 7 October 2021.
The Mother relied on the following documents:
·Further Amended Response filed 30 September 2021;
·Affidavit of Ms Hicks filed 21 June 2021;
·Notice of Child Abuse, Family Violence or Risk filed 3 February 2021;
·Child Dispute Conference Memorandum to Court, produced by Family Consultant Ms K and dated 4 February 2021;
·Section 67ZA Notification – Notice of Risk Response, filed 25 February 2021;
·Exhibit ‘M1’ being a letter from the Tasmania Health Service addressed to Ms Hicks and dated 25 February 2021, and tendered on 7 October 2021; and
·Exhibit ‘F1’ being immunisation records tendered 7 October 2021.
EVIDENCE
The Father
The Father was cross-examined by Counsel for the Mother, Ms Henderson.
He was generally a good witness, though I found his evidence wanting in relation to the Mother’s allegations of family violence.
As explained further at paragraph 130 of these Reasons, he met a number of her allegations with somewhat evasive answers. Those allegations include that he spat in the Mother’s face, threatened to push her off a wall, and verbally abused her. Notably, the Mother alleged that the Father threatened to kill her — the Father, again, answered vaguely to this allegation.
With respect to the Father’s propensity to regularly call the police requesting welfare checks, he displayed a lack of insight as to how his conduct affects the children.
I was, however, impressed by the Father’s communication with the Mother and the children. He has maintained a largely good level of communication with the Mother, and typically communicates with the children every day. His efforts in this respect substantiate that he wishes to maintain a relationship with his children. The parties’ cooperation indicates that the Mother supports, and will continue to support, the Father in doing so.
The Father, clearly affected by the sudden departure of the Mother and the children, gave evidence calmly and answered questions directly. This is notwithstanding some deficiencies in his evidence with respect to the family violence as alleged by the Mother.
The Mother
The Mother was cross-examined by Counsel for the Father, Mr Peterson.
As explained further at paragraphs 144-148 of these Reasons, the Mother was questioned about threats purportedly made by Mr L to the Father. I am somewhat concerned about her evidence in this respect.
In relation to the Mother’s evidence generally, she was an impressive witness who answered questions directly. She was cross-examined at length regarding issues of family violence and maintained her position throughout.
As foreshadowed earlier, I am also impressed by the Mother’s efforts towards maintaining the Father’s relationships with each of the children. She has done so notwithstanding her concerns about family violence.
Further, the Mother made generous concessions with respect to the children’s time with the Father. Her concession of an equal time arrangement if the Father resides in South Australia, and an increase in her original proposal for his time if he lives in Tasmania, are clear examples. The Mother’s position as to the Father’s time is, however, subject to her need for reassurance in relation to his anger management.
Family Consultant Ms K’s Child Dispute Conference Memorandum
Ms K provided a Child Dispute Conference memorandum in February 2021 (‘the CDC Memorandum’) and was not required for cross-examination.
I accept Ms K’s observations contained within the CDC Memorandum. I note, however, that Ms K did not meet with the children for the purposes of preparing that document for the Court. The nature of the CDC process necessarily, and considerably, limits the weight which this Court may give to Ms K’s evidence in the CDC Memorandum.
The CDC Memorandum also, at its outset, explains that the information contained therein is also limited due to regular interruptions by the children during the interview process. Ms K explains in the CDC Memorandum that the Mother made child care arrangements with her sister which ultimately fell through.
Ms K recommended that there be a Family Report ordered if the matter proceeded to trial.[26] A Family Report was not ordered.
[26] Family Consultant Ms K, Child Dispute Conference Memorandum to Court, 4 February 2021 (n 17), [51].
The content of the CDC Memorandum largely reflects the parties’ evidence as presented at trial. The memorandum particularises other allegations of neglect made by the Father which were not included in his affidavit or mentioned at trial.[27] None of these other purported incidents are inconsistent with his evidence as at the final hearing.
[27] Ibid [18], which sets out the Father’s account of Y allegedly escaping the parties’ home in Tasmania, while under the Mother’s supervision, and ending up around a highway; [21], which sets out the Father’s concerns of the Mother ‘running around’ after her younger sister instead of looking after the children, which does not expressly appear in his affidavit; [39], in which the Father’s concerns about the children’s behaviour appear stem not only from the Mother’s parenting, but also from the heat in South Australia.
The Mother’s position as reported in the CDC Memorandum was, and remains, that she is prepared to co-parent with the Father if he ever returns to South Australia. Her proposed orders upon final submissions, at paragraph 44(c), reflects the same.
The observations within the CDC Memorandum are further noted in paragraphs 150-151 and 192 of these Reasons. I accept those observations, though I again note their limited evidentiary weight.
Ms K’s main concerns, as informed by her observations, were the parties’ mutual allegations of family violence and the Mother’s claims of social isolation.
PARENTING ORDERS — THE LAW
This Court must craft and consider the terms of a parenting order with regard to the best interests of the children as a paramount consideration.[28] I am not bound by the terms proposed by the parties and — subject to ss 61DA and 61DAB of the Act — may create parenting orders as I think are proper for the children in the circumstances.[29]
[28] Family Law Act 1975 (Cth), s 60CA.
[29] Ibid s 65D(1).
What, however, guides this Court’s assessment of the children’s best interests? Once the children’s best interests are ascertained, how does the Act ensure that parenting orders reflect them as a paramount consideration?
The objects of part VII of the Act, and the principles underlying these objects, indicate the Act’s aspirations in this respect (emphasis added):
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
…
(4) An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
Part VII of the Act, to give effect to these aspirations, carves a legislative pathway. The pathway has a number of substantive stepping-stones which may be legitimately and properly followed in various forms.[30]
[30] Withers & Russell [2016] FamCA 793, [315]-[318] at which Watts J confirms that there is no preferred approach, there being ‘more than one suggested pathway through the legislature’.
While there is no ‘preferred’ pathway, the description in MRR & GR [2010] HCA 4; 240 CLR 461 remains authoritative and informative:
6 Part VII of the Act (ss 60A-70Q) concerns children. It was substantially amended in 2006 by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). Section 60B(1) of the Act provides that it is an object of the Part to ensure that the best interests of children are met, inter alia, by "ensuring that [they] have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child". Section 60CA requires that a Court must regard the best interests of the child as the paramount consideration when deciding to make a particular parenting order in relation to a child. The considerations necessary to be taken into account in determining what is in a child's best interests are listed in s 60CC.
7 Section 65D(1) provides that the Court may make such a parenting order as it thinks proper, subject to the provisions of ss 61DA and 65DAB. Section 61DA(1) requires the Court to apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child. Section 65DAB requires the Court to have regard to any parenting plans entered into between the parties and is not relevant in this case.
8 Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the Court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents." (Emphasis added.)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (para (a)) but the Court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the Court is obliged to:
"(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
9 Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the Court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents". [31]
[31] MRR & GR (2010) 240 CLR 461, [6]-[9] (French CJ, Gummow, Hayne, Kiefel and Bell JJ).
I am bound to follow the pathway in part VII of the Act in determining parenting orders in the children’s best interests. I shall do so consistently with their Honours’ description in MRR & GR above.
The table below breaks down the manner in which these Reasons follow the pathway, and provides paragraph numbers for each analytical or determinative stepping-stone.
Assessment / determination pursuant to legislative pathway Family Law Act provision Paragraph number/s Assessment of the children’s best interests 60CC(2), (2A), (3) 88-217 Determination of the children’s best interests 218 Applicability of presumption of equal shared parental responsibility 61DA(1), (2) 224-229 Determination as to whether an order for equal shared parental responsibility is in the children’s best interests 233 Applicability of requirement to have regard to parenting plans 65DAB 234 Assessment of whether equal time arrangement is in the children’s best interests and reasonably practicable 65DAA(1)(a), (b); 65DAA(5) 240-253 Determination as to equal time order 65DAA(1)(c) 254-256 Assessment of whether substantial and significant time arrangement is in the children’s best interests and reasonably practicable 65DAA(2)(a), (b); 65DAA(5) 257-263 Determination as to substantial and significant time order 65DAA(2)(c) 264-265 Conclusion as to the terms of parenting orders 266-279 ‘Relocation cases’ — not a ‘special category’ of parenting orders
A relocation case does not, by the mere fact of relocation being in issue, open up a specific avenue by which the case must be determined. In the words of Boland J in Morgan & Miles [2007] FamCA 1230:
72. … The Act does not treat “relocation” cases as a special category of parenting orders. In that respect the amending Act has effected no change to the law.
73. It is also undisputed that in determining a parenting case where one party wishes to relocate the child’s best interests remain the paramount, but not sole, consideration.[32]
[32] Morgan & Miles [2007] FamCA 1230, [72]-[73]. See also Fitzroy & Fitzroy [2009] FamCA 954, [16].
I must follow the legislative pathway as applicable to parenting orders generally, as set out above in MRR & GR. Watts J in Withers & Russell [2016] FamCA 793 confirms the same (emphasis added):
“318.Proposals for relocation are not to be seen in isolation. The Court’s task is a holistic one, where the respective proposals of the parties are compared and the advantages and disadvantages to the child are weighed so that ultimately an order is made in the child’s best interests.”[33]
[33] Withers & Russell (n 30), [318]. See also U & U (2002) 211 CLR 238, [42] at which their Honours remark that the trial judge ‘fell into error in not separately evaluating the proposals of each parent’ and that ‘this was a fundamental error of the kind that, in other fields of jurisprudence, is identified as a constructive failure to exercise discretion’. Their Honours do not suggest that the parties’ proposals be compartmentalised and assessed with respect to each s 60CC factor, instead saying that a trial judge must separately evaluate each party’s proposal in relation to the child’s best interests as a whole.
While relocation cases are not carved out as ‘special’ orders, they do enliven a unique balancing act for any judicial officer tasked with their determination. A coercive order concerning a parent’s living arrangements between States plainly interferes with the terms of s 92 of the Constitution (emphasis added):
92. Trade within the Commonwealth to be free.
On the imposition of uniform duties of customs, trade, commerce and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.
…[34]
[34] Cole v Whitfield (1988) 165 CLR 360, 393 (Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ), in which the High Court explains that the freedom of trading and commerce is fundamentally different to the freedom of intercourse, saying that ‘there is no reason in logic or commonsense for insisting on a strict correspondence between the freedom guaranteed to interstate trade and commerce and that guaranteed to interstate intercourse’. See also the discussion of Gleeson CJ, McHugh and Gummow JJ in AMS v AIF (1999) 199 CLR 160, 177-179 with respect to Cole v Whitfield and subsequent jurisprudence, and in relation to the legitimate bounds of legislative power and the need to exercise discretionary power proportionately to the objects of the legislation.
Harper J in Hill & Weston [2021] FedCFamC1F 174 helpfully summarises the principles, considerations and inherent tensions regarding relocation applications as follows:
120. A parent is entitled to live where they choose, and need not demonstrate “compelling reasons” to live where they propose to live: AMS v AIF (1999) 199 CLR 160; U v U [2002] HCA 36; (2002) 211 CLR 238 (“U v U”); Adamson & Adamson [2014] FamCAFC 232; (2014) 51 Fam LR 626 at [65]and [66]. However, since the best interests of the children are paramount, and whatever weight should be accorded to a right of freedom of mobility of a parent, it must defer to the paramount consideration: U v U at [89].
121. However, parental responsibilities can inherently restrict choices made by a parent. In Zahawi & Rayne [2016] FamCAFC 90, at [47] the Full Court noted:
“All applications for parenting orders before the Court involve a situation that, axiomatically, is not in the children’s best interests. What is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents’ proposals embraced in competing applications involve, again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children’s best interests. Concomitantly, Gummow and Callinan JJ said in U v U [(2002) [2002] HCA 36; 211 CLR 238 [92]]:
...The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred. [footnote omitted]”
122. In Franklyn at [27] to [28], the Full Court has explained the applicable law as follows:
“27. There is an inherent tension between, on the one hand, separated parents being able to establish new homes wherever they like and, on the other, their restraint by injunction from living too far apart to avoid any impingement of their children’s ability to retain meaningful relationships with both parents. The conflict is between the best interests of the children to know and have regular personal contact with each parent and the interests of the parents to enjoy a high measure of freedom of movement which is not lost by reason only of their parental responsibility for the children (see AMS v AIF (1999) 199 CLR 160 (“AMS v AIF”) at 196, 206, 207–208, 210). The tension at the intersection of those conflicting interests is even greater when an order is sought, not just to restrain one parent’s move further away, but to compel the parent who has already moved away to return and establish a new residence closer to the other parent.
28. While the children’s interests are paramount, their interests are not the sole determinant of parenting orders under Part VII of the Act (AMS v AIF at 207, 225, 230; U v U [2002] HCA 36; (2002) 211 CLR 238 (“U v U”) at 282). Parents enjoy as much freedom to live where they please as is compatible with their obligations pertaining to the children (see AMS v AIF at 223 –224, 231 –232; Sampson and Hartnett (No.10) (2007) FLC 93–350; Zanda & Zanda (2014) FLC 93–607 at [132]–[136]). Only when the children’s welfare would be adversely affected must a parent’s right to freedom of mobility defer to the paramount consideration of the children’s best interests (see U v U at 262 ).”
123. The form of the order is important. In Ember & Assadi [2013] FamCAFC 107 (“Ember”) at [60], after citing the passage from Sampson at [58] and [59] (set out above) the Full Court said:
“We consider that these pronouncements are as definitive as they need to be to be relied on as identifying the source of power, although we consider that it may well be more appropriate to invoke s 65D and s 68B than s 114(3). In any event, what is overlooked in this appeal is that there was no order made by the Federal Magistrate specifically requiring the Mother to relocate. The relevant orders are Orders 2, 3 and 4, and plainly they were made in the context of where the children should live, not the parents. They require that the Mother ensure the children relocate to New South Wales within eight weeks, and that the children live with the Mother. Understandably these orders would not be workable if the Mother did not move, but it is readily apparent that they do not direct her to move. In that format at least we are satisfied that the Court has the power under s 65D and s 68B of the Act to make those orders.”
124. Parenting proceedings involving relocation must follow the legislative pathway. It is clear that relocation cases are to be determined as any other parenting case: Fitzroy and Fitzroy [2009] FamCA 954 at [16]; Morgan & Miles [2007] FamCA 1230; (2007) 312 FLR 114 at [72]; Sayer & Radcliffe& Anor [2012] FamCAFC 209; (2012) 48 Fam LR 298 at [47] and [48]. Any exercise of a power to restrain the Mother from relocating is governed by the considerations applicable in any parenting case.[35]
[35] Hill & Weston [2021] FedCFamC1F 174, [120]-[124].
Any parenting order which limits the rights or freedoms of a parent must do so only to the extent necessary in pursuance of the children’s best interests. Kirby J reasoned in AMS & AIF [1999] HCA 26; 199 CLR 160 that:
144. … a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a Court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides. If it were otherwise, a universal rule would be established whereby the custodial or residence parent (usually the mother) would virtually always be obliged to reside in close proximity of the other parent (usually the father) so as to facilitate contact between the latter and the child. There is no such universal rule.[36]
[36] AMS v AIF (n 34), [144].
In essence — and in the familiar language of proportionality with respect to s 92 of the Constitution — are the terms of a coercive order ‘no more than incidental and necessary consequences of the [Family Law Act]’s permissible operation’?[37]
[37] Ibid [162] (Kirby J).
Judge Stewart in Tabac & Kelmer [2016] FCCA 1937 helpfully lists the applicable principles, which I extract below:
a) that the child’s best interest remain the paramount but not the sole consideration (Morgan & Miles [2007] FamCA 1230);
b) that a parent wishing to move does not need to demonstrate “compelling” reason (Morgan & Miles [2007]);
c) “the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement” (Morgan & Miles [2007]);
d) “There can be no dissection of the case into discrete issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be “permitted””(Paskandy & Paskandy [1999] FamCA 1889);
e) “…the proper approach to be adopted in a relocation case is a weighing of competing proposals, having regard to relevant s 68F(2) [now s 60CC] factors, and consideration of other relevant factors, including the right of freedom of movement of the parent who wishes to relocate, bearing in mind that ultimately the decision must be one which is in the best interests of the child” (Bolitho and Cohen [2005] FamCA 458).[38]
[38] Tabac & Kelmer [2016] FCCA 1937, [112].
Ultimately, the decision turns on the best interests of the child.
STANDARD OF PROOF
I note briefly before embarking upon the s 60CC factors that all facts in issue in these proceedings must be proved on the balance of probabilities. A fact in issue is ‘proved’ if I am reasonably satisfied, on the evidence, that it is more likely than not that the fact existed or occurred in the manner ultimately determined.
The Evidence Act 1995 (Cth) sets out the applicable standard:
140 Civil proceedings: standard of proof
(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. [39]
[39] Evidence Act 1995 (Cth), s 140.
Dixon J, as he then was, also remarked upon the standard of proof for civil proceedings in Briginshaw & Briginshaw [1938] HCA 34; 60 CLR 336, which remain relevant and authoritative:
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.[40]
[40] Briginshaw & Briginshaw (1938) 60 CLR 336, 361-3 62.
Unless applicable legislation prescribes a different standard of proof, I must ground my assessment of the children’s best interests in facts of which I am persuaded on the balance of probabilities.
SECTION 60CC — WHAT IS IN THE CHILDREN’S BEST INTERESTS?
The task of this Court under s 60CC is, in a broad sense, described in Collu & Rinaldo [2010] FamCAFC 53:
345. … it remains necessary that the Court should "consider, weigh and assess the evidence" on each of the relevant matters, and then "indicate" the relative weight the Court attaches to each of those matters, and "how all of those matters balance out”[41]
[41] Collu & Rinaldo [2010] FamCAFC 53, [345] (May, O’Ryan and Strickland JJ).
There is often overlap between factors contained within s 60CC. Their Honours note in Collu & Rinaldo that starting with the additional considerations in s 60CC(3), instead of the conventional starting point of the primary considerations under s 60CC(2), may be neater.[42] While I acknowledge the utility of that approach I shall instead address the primary considerations first, to which I will then refer back in the event of overlap.
[42] Ibid [335].
Primary considerations
Section 60CC(2)(a) — the benefit to a child of having a meaningful relationship with both of the child’s parents
The Act does not define ‘meaningful’. Characterising a meaningful relationship between a child and their parent is, necessarily, an individualised assessment.
The Full Court in McCall & Clark [2009] FamCAFC 92 endorsed the explanation of ‘meaningful relationship’ as given by Brown J in Mazorski & Albright [2007] FamCA 520:
26. What these definitions convey is that "meaningful", when used in the context of "meaningful relationship", is synonymous with "significant" which, in turn, is generally used as a synonym for "important" or "of consequence". I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.[43]
[43] Mazorski & Albright [2007] FamCA 520, [26]; McCall & Clark [2009] FamCAFC 92, [115].
A ‘meaningful relationship’ does not, however, have to be an ‘optimal relationship’. Kay J’s remarks in Godfrey & Sanders [2007] FamCA 102 more fully state this position:
36. It seems to me that the final conclusion reached by the Federal Magistrate that the proposed relocation would jeopardise the relationship between the children and their father to an unacceptable extent was not at all consistent with the evidence that was before the Federal Magistrate. Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.[44]
[44] Godfrey & Sanders [2007] FamCA 102, [36].
Both parties’ evidence at trial indicated that the children have a meaningful relationship with both of their parents. As stated earlier in these Reasons, I am impressed with both parties’ efforts in maintaining daily contact between the children and the Father since the Mother’s unilateral relocation to South Australia.
The Mother accepts that it is important for the children to maintain a relationship with the Father. Her actions in facilitating video calls indicate that she earnestly holds this view. Further, she states in her affidavit that the children are happy when they speak to their Father over the phone.[45] To his credit, the Father has maintained the routine of daily video calls. As such, I accept that the Mother wishes for the children to have an ongoing relationship with the Father, and that for them to do so is in their best interests.
[45] Affidavit of Ms Hicks, 21 June 2021 (n 1), [70].
The Mother proposes equal time in the event that the Father moves back to Adelaide. This leads me to infer that she accepts that the Father has sufficient parenting skills to care for the children in such an arrangement. Prior to separation the Father was involved in the children's lives and participated in their care, though the Mother disputes his claim that they contributed equally in this respect.[46] Both the Father and the Mother were unemployed, and the family appears to have largely kept to itself.
[46] Ibid [7].
I note that the parties maintain concerns about one another shielding the children from harm. The Mother’s proposal is caveated by a requirement that the Father complete an anger management course before spending extensive physical time with the children. As stated earlier, the Father agrees to undertake that course.
Despite the conflict as between the parties, there is no suggestion that the children do not deeply love their parents. Regular contact between the children and the Father has successfully maintained a relationship, albeit different from when the children lived in Tasmania. Notwithstanding the regular video contact, Mr Petersen submitted that the children’s continued absence from Tasmania will affect their meaningful relationships with the Father. On this point I note, as extracted above in Godfrey & Sanders, that the Act does not authorise the relocation of children solely in pursuance of the highest quality of relationship which may be achieved between parent and child. The Act promotes a meaningful relationship as weighed against other aspects of a child’s best interests.
The children already have a meaningful relationship with the Father, as developed and maintained post separation through daily video calls. With appropriate parenting orders in place, those relationships can be enhanced and developed irrespective of where the children live.
I further note the Father’s own alternative proposal, as set out at paragraph 39(b) of these Reasons. If the children do not return to live in Tasmania, he proposes a considerable amount of time with the children over school holidays, and in sub-paragraph (c) also proposes that video calls occur at least three times per week. I am confident that, if the children remain in South Australia, his alternative proposal will maintain and enhance the meaningful relationships which already exist between himself and his children.
The children will benefit from maintaining a meaningful relationship with both of their parents. Further, the children will spend physical time with their Father regardless of the outcome of these proceedings. Naturally, physical time — this having not occurred for over one year — will enhance their relationship.
While neither party wish to relocate, both confirm that they will relocate if ordered to do so. This is not a concession by either party, but a statement of reality. Regardless of where the children ultimately reside, both parties expect that they will spend as much time with the children as is appropriate. Any parenting orders made by this Court will ensure that the children maintain and build upon their relationship with their Father, and that they maintain their strong connection to their Mother.
Section 60CC(2)(b) — the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
I note at the outset of the analysis with respect to s 60CC(2)(b) the operation of s 60CC(2A) of the Act:
(2A) In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (2)(b).
In assessing the children’s best interests, I am to give greater weight to the need to protect them from physical or psychological harm resulting from subjection or exposure to family violence, abuse or neglect. If there is any conflict between a ‘meaningful relationship’ and the risk of physical or psychological harm in the manner described in s 60CC(2)(b), my approach must be precautionary and protective.
Both parties allege that they were the victim of family violence as perpetrated by the other party, and both describe behaviours which fit the definition of family violence.
Section 4AB of the Act defines family violence as follows:
(1) 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 (the family member), or causes the family member to be fearful.
(2) 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.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b) seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c) comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d) cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
The Mother’s experience of family violence is, in Ms Henderson’s submission, a central issue for determination in this case. Ms Henderson submitted that the Mother’s evidence is clear and descriptive, and that it explains why she needed to flee Tasmania.
There is not a great deal of evidence to corroborate the Mother’s allegations of family violence. I was, however, referred to Exhibit M1 — the letter from Ms Q dated 25 February 2021.
Exhibit M1 reads as follows:
To Whom it May Concern
RE: Ms Hicks DOB 1993
As requested on the 25th February 2021, I am writing in my capacity as Senior Social Worker Region R Hospital and can confirm the following:
· Ms Hicks was an inpatient of Region R Hospital Maternity Ward –2019 for birth of her fourth child.
· Ms Hicks attended 3 appointments with me during admission.
· Initial assessment was conducted following a phone call from Ms S (Mother) with concerns for her Daughters [sic] wellbeing stating Ms Hicks experiencing cohesive [sic] and controlling behaviours from partner, Mr Carter.
· During assessment Ms Hicks confirmed that she agreed with some of her Mothers [sic] concerns —
o Mr Carter encouraged a move to Tasmania stating he had a job in the area and when the family arrived no secure employment had been found in the state.
o Mr Carter isolated her from family and friends with the move and discouraged contact.
o Mr Carter would not let Ms Hicks receive counselling support following SIDS death of their child nor will allow it now.
o Mr Carter continues to lie to Ms Hicks.
· During assessment Ms Hicks stated that she did not want to break her family up and Mr Carter showed lots of good qualities along with the bad.
· I provided brief psychological education regarding types of family violence and introduced support avenues including local Family Violence Counselling office. Referral was declined but Ms Hicks stated she would keep the service in mind.
· Ms Hicks consented to concerns re family violence behaviours being passed along to the Extended Care Midwifery team which provide postnatal follow up.
· Ms Hicks consented to staying in hospital over the weekend for continued support especially regarding previous SIDS death of 5-week-old child and anxiety re infancy safety. This was offered to Ms Hicks as staff were concerned that she would receive limited emotional support at home and be discouraged from professional support if it was needed in the child’s first days.
· Ms Hicks participated in two further appointments during admission but declined further social work or mental health interventions.
Ms Henderson submitted that, at a minimum, Exhibit M1 corroborates that the Father behaved coercively and in a controlling manner towards the Mother around the time of Z’s birth in late 2019. The letter sets out that the initial concerns were raised by Ms S, the Mother’s own mother. It further confirms that the Mother allowed these concerns to be relayed to the Extended Care Midwifery team.
If ordered to return to Tasmania, Ms Henderson submitted, the Mother and the children will once again be isolated and without support from extended family. This places the Mother and the children at a higher risk of harm in the event that the Father returns to coercive, controlling or otherwise violent behaviour.
Mr Petersen, on the other hand, submitted that I should accept the Father’s denials of the family violence allegations made against him. The Father’s position is, in effect, that the Mother raises the allegations to conveniently justify the unilateral relocation of herself and the children. In his view, the incidents of family violence are better explained as the Father protecting himself from the Mother during intoxicated arguments. Further, Mr Petersen submitted that the Court should be concerned about the lack of corroborative evidence from Tasmania Police or other agencies.
The Mother makes significant allegations against the Father, including:
·spitting in her face;
·financial control;
·squeezing her foot and choking her in September 2020;
·hitting her chest a number of times during their altercation on 10 September 2020;
·pushing her on 10 September 2020 causing her to injure her head and hip;
·locking her out of her home during winter, while she was pregnant;
·throwing things at her; and
·threatening to harm and kill her.[47]
[47] Ibid [21]-[38].
The Mother further restates her concerns in her notice of child abuse, family violence or risk, adding that the children were subjected to physical and psychological violence from the Father:
1. While living with their father, our children were not allowed any social interactions with any children other than their own siblings.
2. The father refused to allow X to attend Kindergarten, which he had been due to start in January 2020
3. X and Y were continuously put into Nappies even though they were more than capable of using the toilet, since returning to South Australia, they have both completely stopped using nappies and are toilet trained, however i do worry that Z will be held back during the process if he was to return to the father.
4. Due to the lack of social interaction with other children, X and Y have a tendency to “play rough” and will not learn how to interact with other children appropriately if they are isolated once again.
5. The fathers [sic] constant alcohol abuse is apparent to the children, as they already had learnt which drinks were “Daddy’s Drinks” and not for anybody else to touch. I believe they are at risk of following the same path if they were to continuously observe his addiction.
6. Y has a self soothing method of sucking on her fingers or hair, when the fathers [sic] continuous discipline did not change her method, he shaved her head completely. Her confidence vanished. Since returning to South Australia, she is now comfortable and confident and occasionally sucks on her fingers or hair while tired, I worry that the father would take it upon himself to try and stop what he sees as “bad behaviour”.[48]
[48] Notice of Child Abuse, Family Violence or Risk, 3 February 2021, 10.
Mr Petersen challenged the Mother’s allegations on the basis that there is no record with Child Safety Services (CSS). Further, Mr Petersen put that there was no record of the Mother reporting matters of family violence to the police. It seems to be accepted, however, that a neighbour — Ms T — called the police to the matrimonial home on 10 September 2020.[49]
[49] Affidavit of Ms Hicks, 21 June 2021 (n 1), [36].
The Mother maintained her position with respect to family violence throughout cross-examination. She accepted that she did not inform hospital staff, nor the police about physical incidents of family violence. She spoke to a Senior Social Worker within the Tasmanian Health Service, Ms Q, about the Father’s controlling behaviour. That letter is extracted at paragraph 108 above. As evidenced by Exhibit M1, the Mother authorised Ms Q to pass that information onto the Extended Care Midwifery team. There is no evidence to confirm that Ms Q did, in fact, pass on that information in the manner authorised by the Mother.
Mr Petersen further cross-examined the Mother about the contents of two section 67ZA notifications filed with the Court by CSS. These documents were lodged with the Court on 17 December 2020 and 25 February 2021, and confirm that the children first came to CSS’s attention after D’s death. I presume this was a routine investigation, and note that no reference to family violence is made in the entries regarding D’s death.
Both documents from CSS show a record from 11 September 2020, which reads as follows:
“11/09/2020 – Concerns that the mother and children are fleeing family violence perpetrator (father) in secret. Family successfully moved interstate. Police notified and assistance given by police to safely board plane…”[50]
[50] Child Safety Service, Section 67ZA Notification – Notice of Risk Response, 25 February 2021.
Mr Petersen pointed out that the apparent involvement of police in the Mother’s departure was omitted from her affidavit. It follows, in Mr Petersen’s submission, that the Mother’s evidence regarding family violence generally should be treated with suspicion. Potential corroborative evidence for either account — the Tasmania Police file — was not subpoenaed.
The Mother was asked about the circumstances which led her to leave Tasmania for South Australia. She confirmed that she did so on advice from her aunt. She said that her aunt spoke with a police officer in South Australia who advised her that the Mother could return with the children if she so wished, and that it was not illegal for her to do so. The Mother’s aunt then relayed that advice, after which time the Mother began planning her departure.
The Mother further confirmed that her sister provided her with sufficient funds to leave Tasmania. She denied that she was drinking heavily on the night of her departure or was affected by alcohol while driving to Hobart Airport.
The evidence indicates that the Mother was planning (either tentatively or definitively) to relocate for a period of time prior to the day upon which she left Tasmania with the children. She had spoken to her aunt about the possibility of doing so, and had some logistics of her departure planned ahead of time. It is unclear whether the incident on 10 September 2020 was the final motivation for the Mother to put her plans into action. The evidence of secretly pre-planning her relocation does, however, corroborate that she was afraid of telling the Father that she was going to leave Tasmania. Her actions in this respect are also consistent with her allegation that the Father threatened to kill her if she ever left.[51]
[51] Affidavit of Ms Hicks, 21 June 2021 (n 1), [14].
Mr Petersen challenged the Mother about other aspects of family violence, including the incident earlier in September 2020 in which the Father allegedly squeezed her toe. The Mother had spoken to a neighbour, Ms U, about that incident after it occurred. Mr Petersen asked the Mother why she did not call Ms U as a witness to corroborate her evidence. In response the Mother clarified that, if called, Ms U could only give evidence about what she was told by the Mother. As such, the Mother said that she did not think Ms U was a relevant witness because she did not witness the incident. That is, in my view, a reasonable explanation.
The Mother was questioned, and maintained her position, about the risk the Father poses to the children when he is angry. In this respect she was referred to her complaint of the Father shaving Y’s head in response to her habit of sucking on her hair, to which the Mother did not consent. The Mother also alleges that the Father has hit X, and maintained that allegation under cross-examination.
As for the Mother’s allegations in general, there is some corroborative evidence. The Father did not challenge that after the incident on 10 September 2020 the Mother called her friend Ms T, and that Ms T was concerned enough to contact the police. Further, the Father does not challenge that the police arrived at their home in Town H to ensure that the Mother and the children were safe. As stated above, Exhibit M1 also confirms that the Mother (as well as her own mother) reached out to a social worker about the Father’s coercive and controlling behaviour around the time of Z’s birth. Neither alleged physical violence at this time.
The Mother’s allegations throughout her affidavit and her answers during cross-examination are generally consistent. I generally prefer her evidence in relation to family violence.
The Father was also cross-examined about issues of family violence.
Ms Henderson questioned him about the Mother’s allegations against him, including that he threatened to kill her, that he pushed her over, and that he used abusive language towards her. He confirmed that on 10 September 2020 he and the Mother had been drinking, saying that this had been a common occurrence since D’s death in 2018. He agreed that he pushed the Mother, though qualified that it was in self-defence because she was trying to attack him. He said that he could not recall if she was hurt in the process. The Father also said that it is possible that he called the Mother a ‘whore’ and a ‘slut’ during heated discussions, but said further that he too suffered verbal abuse from her. He denied ever calling her a ‘baby killer’ or a ‘murderer’, and said that he ‘did not recall’ ever threatening to kill her. Further, he denied that he behaved in a coercive and controlling manner. Instead, he said that the Mother made most of the decisions in their relationship and that he stood back and allowed her to do so even if he disagreed with her decision.
After agreeing that he pushed the Mother on 10 September 2020 the Father was asked whether he had ever spat in her face. He said that he did not ‘see himself doing that’. Further, he denied squeezing the Mother’s toe. He did, however, agree that he grabbed her foot in response to her attempt to kick him in the head. He denied outright that he attempted to choke the Mother, and said that he could not ‘recollect’ whether he yelled at her that he wanted to push her off a retaining wall.
With respect to the alleged violence towards the children, the Father denied that he was ever maliciously violent towards them. He agreed that he did at times, and in the context of a joking game, flick X’s ear and leg. The Father said that he did not do so with malevolent intent. He said that both parties had physically punished the children, but that the usual method was to put the children in ‘time out’ or to remove a toy. He said that he would agree to an order that he cannot physically discipline the children or allow anyone else to do so.
I was unconvinced by some of the Father’s answers about the allegations of family violence. I find it hard to accept that he is genuinely uncertain as to whether he has threatened to kill his spouse, or spat in his spouse’s face — such behaviour would be difficult to forget, unless a perpetrator’s memory is affected by drugs or alcohol. If the Father believes to the best of his recollection that he did not threaten the Mother’s life or spit in her face, why would he obfuscate his answers to these allegations? In light of the Father’s somewhat furtive evidence in this respect, I am of the impression that he has understated the extent of some of his behaviour towards the Mother.
As discussed earlier in these Reasons, an order for equal shared parental responsibility must be made if the presumption in s 61DA(1) is not excluded under subsections (2) or (3) and not rebutted under subsection (4). The presumption in s 61DA(1), from the fact of its applicability, ‘conditions the Court’s power to make parenting orders’ by making operative the provisions of s 65DAA.[78] There is no analogous presumption of equal shared care — the concept of time in parenting cases is distinct from the concept of responsibility.[79] This being the case, the words of s 65DAA only refer to cases in which an order for equal shared parental responsibility will be made regardless of whether the presumption applies. I am, therefore, bound to consider whether equal time (or, alternatively, substantial and significant time) is in the children’s best interests and if the same is reasonably practicable.
[78] Koyroyshs & Koyroyshs (n 71), [87].
[79] Morgan & Miles (n 32), [53].
As for the mechanics of s 65DAA itself, once enlivened by an ultimate equal shared parental responsibility order, the High Court in MRR & GR explains as follows (emphasis added):
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (“if it is”) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.[80]
[80] MRR & GR (n 31), [13]. I note also Miley & Miley [2021] FedCFamC1A 62, [22]-[23], in which Strickland J confirmed the operation of ss 65DAA(1) and 65DAA(2), regarding equal time and substantial and significant time respectively, as requiring a primary judge to make jurisdictional findings as to the child’s best interests and reasonable practicability before making an order pursuant to ss 65DAA(c) or 65DAA(2)(e).
In essence, s 65DAA is concerned with the feasibility of care arrangements between separated parents for their children. To gauge this, s 65DAA imposes ‘discrete and conjunctive’ points for judicial determination with respect to equal time and, alternatively, substantial and significant time.[81]
[81] Wordsworth & Wordsworth [2021] FedCFamC1A 28, [11].
Equal time
Before I can order equal time pursuant to s 65DAA(1)(c), I must be satisfied that such an arrangement is both in the children’s best interests and reasonably practicable within the meaning given in s 65DAA(5).[82]
[82] MRR & GR (n 31), [19].
Is an equal time arrangement in the children’s best interests?
The Father’s primary position is that the children should return to Tasmania, and that they should spend time with their parents in an equal time arrangement. The Mother’s evidence indicated that, if ordered to return to Tasmania, she would live in City G — some two hours from the Father’s current residence in Town H. She proposed that, in those circumstances, there should be an alternate weekend arrangement for the Father to spend time with the children during school terms.
If the Mother returns to Tasmania, her financial circumstances will be limited. The Mother will in all likelihood continue to rely on government payments, and the Father pays only $8.00 per week in child support. Re-establishing herself and the children in Tasmania will be expensive. Further, the Mother will need transport to facilitate time with the Father. That will be a further cost.
Importantly, the Mother’s family support will no longer be readily available to her if she relocates to Tasmania. The Mother and children will once again become socially isolated. In this environment, as I have found, there is an increased risk of parental conflict and family violence. Social isolation and household tension negatively impacts the parties’ ability to effectively communicate. The parties must communicate effectively to ensure the children’s needs are met in an equal time arrangement. They do currently communicate at a reasonable level, given recent history. There remains, however, some communication issues and a lingering degree of distrust. Further, the parties are not living in the same State. Their communication must, therefore, accommodate the difficulties that come with co-parenting by distance. The Mother feels a greater level of support now than she did in Tasmania. In the last throes of their relationship the parties’ communication had deteriorated significantly — their relatively stable current circumstances and available support mitigates the risk of this occurring again.
The parties’ present outlooks and communication efforts lead me to find that, if the Father moves back to South Australia, it is in the children’s best interests to spend time with their parents in an equal time arrangement. Of course, if the Father does not relocate to South Australia, I am not satisfied that it is in the children’s best interests for them to live in an equal time arrangement. Such an order would disrupt their life in South Australia.
Is an equal time arrangement reasonably practicable?
Section 65DAA(5) requires me to consider whether, in addition to being in the children’s best interests, an equal time arrangement is reasonably practicable.
Region R Tasmania and Adelaide are a significant geographic distance apart, and bridging the expanse between them requires a flight or an unfeasibly long drive. To arrange that kind of travel would not only be time-consuming and disruptive, but it would be impossibly expensive. The parties’ current level of communication, while it is by no means perfect, is sufficient as to not require equal time as to maintain the children’s meaningful relationships with both of their parents.
Given the uncertainties and other problems as outlined above, I find that it is not reasonably practicable for an equal time arrangement to be put in place if the children and the Mother return to Tasmania.
By contrast the Mother proposes that, if the Father returns to South Australia, there should be an equal time arrangement conditional upon his completion of an anger management course. In making this proposal, the Mother concedes that the Father can provide for the children’s physical, emotional and intellectual needs, and that he is ultimately a good parent with whom she can communicate and work effectively.
This is perhaps an unexpected position for the Mother to take. As shown throughout these Reasons, she makes a number of allegations against the Father in relation to abuse and family violence.
Notwithstanding the parties’ fraught history and the Mother’s allegations, she feels that an equal time arrangement will work in South Australia. She feels more settled and supported there, and it appears that in her new environment she feels more capable in communicating with the Father. In this respect, her affidavit evidence is informative:
68. Tasmania is a beautiful state and the perfect place to holiday, but I do not believe it is a good fit for our family. I felt the need to leave the state so that we could receive support during one of the most difficult times in my life, to take the children back there would be to take them from all the support they have now grown used to and will long for once returning. We did not have friends, family or schooling while living in Tasmania and in Town H they did not even have neighbours to get a moments interaction with anybody other than myself and Mr Carter.[83]
[83] Affidavit of Ms Hicks, 21 June 2021 (n 1), [68].
The Mother’s ability to cooperate with the Father will be enhanced if she feels safe and settled. She has found such an environment in South Australia, being settled near her family and friends. The Father agreed under cross-examination that the parties communicate reasonably well about medical and educational issues despite the geographical and personal distance between them as parents.
My hope is that, once these proceedings end, their communication will improve even further. That being said, I will include a non-denigration clause in the ultimate orders. By injuncting the parties against denigrating each other, that order will promote mutual respect in their relationship. I will also order that the Father attend an anger management course. It is hoped that this too will assist him in improving his communication skills with the Mother.
If the Father were to live in South Australia, I assume that he would live close to the children’s home. Any order for equal time will be conditional on him living within 60km of children’s home.
Conclusion with respect to equal time
I find that, in the event that the Father does relocate to South Australia, it is in the children's best interests and it is reasonably practicable that they live in an equal time arrangement. That is, however, on the proviso that the Father relocates within 60 kilometres of the children’s home and does so within the next two years. The Father’s evidence was that he would need up to eighteen months to save sufficient funds to relocate from Tasmania.
I note that the requirement for the Father to relocate to within 60 kilometres of the children’s home is not to restrict his freedom if he does choose to relocate. It is included in the ultimate order to ensure, to the best of my ability, that any equal time arrangement is feasible with respect to travel time and expense.
As I cannot determine with any certainty the nature of the children’s best interests too far into the future, it is appropriate to impose a two-year time limit after which any equal time order takes effect. Leaving such an order open-ended could result in the arrangements so ordered not being in the children’s best interests at the relevant time.
Substantial and significant time
I note at the outset that the ultimate orders will include a provision with respect to equal time subject to the conditions set out above. As such, the words of s 65DAA(2)(b) make it appear as though this aspect of the enquiry may not be necessary. Notwithstanding any semantic incongruities in this particular case, I shall address s 65DAA(2) in any event as it is relevant to the terms of the orders as a whole and the contingencies therein.
The enquiry under s 65DAA(2) is not confined to answering whether substantial and significant time is in the children’s best interests and reasonably practicable. This subsection further requires that this Court interrogate, pursuant to s 65DAA(3) or s 65DAA(4)
andat my discretion,[84] why any time proposed would be substantial and significant for the children.[84] Hill & Weston (n 35), [154]-[157], extracting several authorities explaining the operation of s 65DAA(3) and s 65DAA(4).
Is a substantial and significant time arrangement in the children’s best interests?
For reasons already stated above, it is also in the children’s best interests and reasonably practicable for the children to live in a substantial and significant time arrangement if the Father relocates to South Australia. This is similarly on the proviso that he lives within 60 kilometres of the children’s home.
If the Father relocates to South Australia, and lives relatively close to the children, they will be able to spend time with him on a variety of days and occasions. This includes weekdays and weekends, both inside of school terms and in holiday periods. The Father will have a chance to be involved in the children’s everyday routine. If he does so I am confident that he will undertake his responsibilities with care and communicate effectively with the Mother.
If the Father remains in Tasmania, it is also not in the children’s best interests to have substantial and significant time with the Father. To facilitate such an arrangement would disrupt the children’s established routine, and unsettle their established and developing social connections.
Is a substantial and significant time arrangement reasonably practicable?
If the Father relocates to South Australia on the provisos as discussed, and for the reasons already given at paragraphs 245-253, it is reasonably practicable for there to be a substantial and significant time arrangement.
As explained above with respect to equal time, the Father remaining in Tasmania creates difficulties in sharing care of the children. This is also the case with respect to substantial and significant time. For the reasons explained at paragraph 246-247 of these Reasons, a substantial and significant time arrangement would also be unwieldy, impractical, and in any event of prohibitive cost to the parties. The Father will nevertheless in these circumstances have as much time, in as many ways, as possible.
Conclusion with respect to substantial and significant time
I have found that, if the Father returns to live in South Australia, it is both in the children’s best interests and reasonably practicable, for there to be a substantial and significant time arrangement.
On the other hand, if the Father remains in Tasmania a substantial and significant time arrangement is neither in the children’s best interests nor is it reasonably practicable.
Conclusion with respect to the children’s living arrangements and time with their parents
As foreshadowed throughout these Reasons it is my view that, in accordance with the objects and principles in the Act, the children should not be ordered to return to Tasmania.
Justices Gummow and Callinan in U & U [2002] HCA 36; 211 CLR 238 remarked upon the nature of parenting and relocation:
89. … whatever weight should be accorded to a right of freedom of mobility of a parent, it must defer to the expressed paramount consideration, the welfare of the child if that were to be adversely affected by a movement of a parent.[85]
[85] U & U (n 33), [89].
Further, Murphy J remarked in Fitzroy & Fitzroy [2009] FamCA 954 that:
18. [t]he tyranny of this country's … distances has frequently been commented upon. Intact families dealing with the exigencies of raising children — particularly those living outside the major population centres — will frequently undertake a drive of many hours for the purposes of facilitating sporting, cultural and educational opportunities for their children. Such sacrifices are the stuff of parenting.[86]
[86] Fitzroy & Fitzroy (n 32), [18].
The practical effect of ordering the children’s return to Tasmania would be to order the Mother’s return as well. Her freedom of movement — or more relevantly, her freedom not to move — is a worthwhile consideration in this regard, albeit not the paramount consideration.
I have assessed each party’s proposal in accordance with ss 60B, 60CC and 60DAA. As a result, I conclude that it is in the children’s best interests (pursuant to s 60CA) for them to remain resident with the Mother in South Australia, and for them to spend time with the Father for one half of each school holiday period and one weekend per school term. Video calls will continue three times per week.
If the Father relocates to within 60 kilometres of the children’s home within a period of two years he will, with the Mother’s consent, spend equal time with the children.
If I were to impose the Father’s primary proposal upon the children I would be removing them from an environment in which they are settled and happy. They have in their new environment reconnected with their paternal and maternal families and X and Y have become established and made friends at school. Worse still, to remove them from South Australia would be to send them into an uncertain future that is likely to once again lead to social isolation, parental conflict and potentially family violence. I will not make orders that could subject the children to such a life.
The parties must together tackle, in the words of his Honour in Fitzroy & Fitzroy, the ‘tyranny of distance’. With the Father in Tasmania and the Mother and children in South Australia, they will have to undertake a significant effort to maintain the children’s relationships with the Father. Further, the parties will both have to spend more time and money keeping the wheels on any arrangements formed on the basis that they will live in separate states than they would otherwise have to if they both resided in the same State. Nevertheless, I am confident that the parties can develop a functional co-parenting arrangement from this Court’s ultimate orders with respect to the children. The authorities strongly indicate that parenting encompasses various sacrifices and the parents’ desires or intentions as to their own living arrangements must yield to what this Court assesses to be the children’s best interests in accordance with the Act.[87] That being the case, I cannot disrupt the children’s lives and impose upon the parties the incidental impracticalities of ordering their return to Tasmania.
[87] Ibid [215].
Holiday time
The Father proposes that, if not ordered to return to Tasmania, the children should spend time with him for the entirety of each school holiday period and for one half of the Christmas/New Year holidays. The Mother proposes that, in those circumstances, the children spend time with the Father for three of the four gazetted school holiday periods.
The children will spend considerable time with the Father during their school holidays.
It is in the children’s best interests to spend time with their Father as often as possible, but I must ensure that any arrangement to this end is feasible for the parties. Neither party has sufficient funds for frequent flights between Adelaide and Tasmania. There is a danger that one or both of them will not be able to afford the airfares if the order provides for too many scheduled arrangements.
To achieve the most time feasibly possible, I will order that the children spend time with the Father for one half of the Christmas/New Year holidays, all of the June/July holidays, and one half of all other gazetted school holiday periods.
The Father will purchase the children’s fare to Tasmania and the Mother will purchase the return fare. The Father will also confirm, no later than 28 days prior to any scheduled visit, that he can accommodate the children and will be exercising that scheduled time.
In all of the circumstances of this case it is, in my view, appropriate for the Father’s time to commence in the school holidays at the conclusion of term 1. It is also appropriate for the children to be in the Father’s care for Christmas day in 2022, since they were in the Mother’s care for Christmas 2020 and 2021.
THE FATHER’S INJUNCTION APPLICATION
The Father sought an injunction, pursuant to s 68B, that the Mother be restrained from bringing the children into contact with Mr L and Mr N. Mr Petersen did not make any submissions in support of such an order at the conclusion of the hearing.
The case authorities clearly indicate that exercising injunctive power requires a Court to identify the specific power relied upon, and exercise that power within the scope provided. Section 68B provides that an injunctive order may be made, among other reasons, for the personal protection of a child or children. In essence, any exercise of judicial discretion in making a coercive order must be proportionate to the legislative purpose of promoting the children’s best interests.
I must determine, therefore, whether the evidence supports the need for an injunction in the terms sought for the children’s personal protection.[88] To make an injunctive order without sufficient evidence is, of course, to stray beyond the boundaries of s 68B of the Act and make a plainly ultra vires order. There must be an evidentiary link between the restriction on the Mother’s freedom to see members of her family and the need to protect the children, thereby promoting their best interests.
[88] CDJ & VAJ (No 1) (1998) 197 CLR 172, [83]-[87] (McHugh, Gummow and Callinan JJ), at which their Honours discuss the paramountcy principle and its operation with respect to injunctions under the Act. Their Honours conclude at [87] that, while the words of a provision may not directly invoke the contents of s 60CA as part of the test for using a discretionary power, the children’s best interests is nevertheless a factor to which a Court should turn its mind. This is, as expressed by their Honours at [86], the ‘constant shadow of the paramountcy principle’. See also the remarks of his Honour Kirby J at [192] with respect to the use of judicial discretion in a manner ‘consistent with the longstanding parens patriae jurisdiction of the Courts’. Further discussion of the test for s 68B injunctions in Flanagan & Handcock [2000] FamCA 150, [9]-[18]; Bennett & Bennett [2001] FamCA 462, [30]-[31].
The Father is not seeking a positive obligation to relocate the children as an injunction for the children’s protection, owing to their purportedly unsettled or unsafe environment as created by the Mother’s family members and ex-partner. He is simply seeking that the Mother be prevented from bringing the children into contact with Mr L.
The High Court authority of AMS v AIF [1999] HCA 26; 199 CLR 160 remains authoritative, and has considerably informed subsequent jurisprudence (emphasis added):
191. … to impose upon a custodial (or residence) parent the obligation to demonstrate "compelling reasons" to justify relocation of that parent's residence, with consequent relocation of the residence of the child, is not warranted either by the statutory instructions to regard as paramount the welfare of the child or by the practicalities affecting parents. Parents enjoy as much freedom as is compatible with their obligations with regard to the child. The freedom continues, including with respect to their entitlement to live where they choose. At least in the case of a proposed relocation within Australia, the need to demonstrate "compelling reasons" imposes on a custodial parent an unreasonable inhibition. It effectively ties that parent to an obligation of physical proximity to a person with whom, by definition, the personal relationship which gave rise to the birth of the child has finished or at least significantly altered.[89]
[89] AMS v AIF (n 34), [191] (Kirby J).
The Mother’s affidavit and oral evidence expressed that she and the children derive much benefit from the support offered by, and time spent with, their extended maternal and paternal families in South Australia.
The Father expressed concern about Mr L and Mr N, the Mother’s uncle. His concerns revolve around their significant criminal histories. The Mother became emotional while she addressed the Father’s concerns — her father had served his time, had turned his life around, and now provides significant support to her and the children. She rejected any suggestion that Mr L poses a risk to the children. Further, she said that in any event the children are not brought into contact with Mr N.
No evidence was produced to establish that Mr L or Mr N pose an unacceptable risk to the children. Neither the evidence nor the submissions particularise the risks — in terms of nature, scale or any other characteristic — purportedly posed to the children. This being the case, the Father has not shown how any purported risk can be mitigated nor has he established that a s 68B injunction is required for the children’s personal protection. Mr L’s threat (as perceived by the Father) just prior to the trial is somewhat of a concern, but that evidence in itself does not establish that Mr L poses a risk to the children.
I cannot, and will not, restrict the Mother and the children’s freedom to interact with Mr L on the evidence before me. That evidence, beyond a finding of a threat being made, is limited to the mere fact of Mr L’s historic criminal convictions. To injunct the Mother in the manner sought by the Father would, in a way, be to punish her and the children in respect of deeds for which Mr L has already been convicted and served a sentence. Such an order would conflict not only with the children’s best interests, but with basic sentencing principles.
Further, an injunction prohibiting contact between Mr L and the children would be neither just nor convenient. This is because the Mother and Mr L have signed a lease together in Town M, and live in the leased property with the children. Considering the lack of evidence as to the risk he poses, I cannot baselessly make an order which would disrupt their living arrangements.
There is no probative evidence regarding Mr N, and I make no findings regarding any risk he may pose to the children.
The Father also raised a concern regarding her former partner Mr P, whom he accuses of hitting X during a video call. The Mother said under cross-examination that she is no longer in a relationship with Mr P. Further, she says that Mr P did not hit X as claimed. Instead, he simply put out his hand to stop X from blowing out the candles on a birthday cake.
The evidence is not sufficient for me to find the Father’s allegation against Mr P proved.
In any event, I am confident that the Mother would not allow any person to harm the children.
CONCLUSION
The circumstances of this case are particular and sensitive, yet hopeful and forward-looking.
Whether or not the parties end up residing in the same State once again, the orders I will make will promote the children’s best interests. This is not only in terms of the responsibilities of, and time spent with, both parents — the orders also aim to promote a continuing co-parenting relationship based on effective communication and mutual respect.
I certify that the preceding two hundred and ninety-five (295) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Turnbull. Associate:
Dated: 2 March 2022
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