CARVER & SANSFORD

FEDERAL CIRCUIT COURT OF AUSTRALIA

CARVER & SANSFORD

[2020] FCCA 863

Catchwords:
FAMILY LAW – Parenting – parental responsibility - relocation – family violence – where both parents have psychological vulnerabilities – whether the mother ought to be permitted to relocate to Adelaide with the parties’ four-year-old son.

Legislation:

Family Law Act 1975 (Cth), ss.4AB, 60CA, 60CC, 61B, 61DA, 64B, 65DAA

Cases cited:

Cowley v Mendoza [2010] FamCA 597

Heath & Hemming (No.2) [2011] FamCA 749

Mazorski v Albright [2007] FamCA 520

Tait & Dinsmore [2007] FamCA 1383

Taylor v Barker [2007] FamCA 1246

Applicant:

MS CARVER

Respondent:

MR SANSFORD

File Number:

DGC 595 of 2018

Judgment of:

Judge Small

Hearing date:

13 November 2019

Date of Last Submission:

16 November 2019

Delivered at:

Melbourne

Delivered on:

20 April 2020

REPRESENTATION

Counsel for the Applicant:

Mr Testart

Solicitors for the Applicant:

Testart Family Lawyers

Counsel for the Respondent:

Mr Jackson

Solicitors for the Respondent:

Davine Shanahan Fitzpatrick and Associates

Counsel for the Independent Children's Lawyer:

Ms Hamilton

Solicitors for the Independent Children's Lawyer:

Victoria Legal Aid

ORDERS

All previous parenting orders in relation to the child X born in 2016 (“the child”) are hereby discharged.
The parents shall have equal shared parental responsibility for the child.
The child shall live with the mother.
Until 31 December 2021, the mother is hereby restrained by injunction from relocating the child’s place of residence more than 100 kilometres from the father’s home, save that if the father should move more than 100 kilometres from the mother, the mother shall not be required to move within 100 kilometres of the father’s new place of residence.
From 1 January 2022, the mother shall be permitted to relocate the child’s place of residence to Adelaide, South Australia, subject to:
(a)her providing to the father documentary evidence of the following facts by 30 November 2021:
i.That the mother has been accepted as a student in a course of study at a university in Adelaide for the 2022 academic year, and has completed all preliminary enrolment tasks required to be completed by 30 November 2021;
ii.That the child is enrolled in a primary school in the metropolitan area of Adelaide to begin on the first day of the 2022 school year;
iii.That the mother has signed a lease covering the whole of the 2022 school year for a house or apartment containing at least two bedrooms in the metropolitan area of Adelaide;
and
(b)Her compliance with her obligations under paragraph 7 hereof such that no contravention applications have been proven against her by 30 November 2021.
If the mother does not comply with the provisions of paragraph (5) hereof, then the provisions of paragraph (4), save for the words “Until 31 December 2021”, shall continue indefinitely.
Until 31 December 2021, the child shall spend time with the father as follows:
(a)During school/kindergarten terms, on alternate weekends from 5:00 p.m. on Friday to 5:00 p.m. on Sunday, or Monday if the Monday is a public holiday, with such weekends to coincide, as far as is reasonably practicable, with the father’s time with the child’s siblings B and C;
(b)During school/kindergarten term holidays in 2020 on alternate weekends from 5:00 p.m. on Thursday to 5:00 p.m. on Tuesday following the pattern set by paragraph (7)(a) hereof;
(c)For one week in the school/kindergarten term holidays in 2021 by agreement, and failing agreement from 5:00 p.m. on the last day of school to 5:00 p.m. on the day one week later;
(d)During the long summer holidays in 2020-2021 for two periods of one week by agreement between the parties, and failing agreement from 6:00 p.m. on Boxing Day 2020 to 6:00 p.m. on 2 January 2021, and from 6:00 p.m. on 16 January to 6:00 p.m. on 23 January 2021;
(e)From 5:00 p.m. on the day before Father’s Day each year to 5:00p.m. on Fathers’ Day, and if Mothers’ Day falls on a weekend when the child would usually be spending time with the father pursuant to these Orders, then the father’s time shall conclude at 5:00 on the day before Mothers’ Day;
(f)At other times by agreement between the parties in writing.
During the long summer holidays in 2021-2022, the child shall spend time with the father:
i.If the mother will be moving to Adelaide in January 2022, from 6:00 p.m. on the day after the last day of the school year to 6:00p.m. on New Year’s Eve 2021, and where this sub-paragraph conflicts with other orders for Christmas time, the provisions of this sub-paragraph shall take precedence;
ii.If the mother will be moving to Adelaide in January 2022, by telephone, Skype, Zoom, FaceTime or other electronic means between 6:00 p.m. and 6:30 p.m. on each Tuesday and Saturday in January 2022, with the father to place the call to a number or electronic address provided by the mother, and the mother to ensure that the child has access to a fully-charged telephone, tablet or computer, that he is available to take the call, and that he is afforded privacy during the call;
iii.If the mother will not be moving to Adelaide in 2022, for two periods of no more than ten days by agreement between the parties, and failing agreement, from 6:00 p.m. on New Year’s Eve 2021 to 6:00 p.m. on 10 January 2022 and from 6:00 p.m. on 20 January to 6:00 p.m. on the Monday prior to the commencement of the 2022 school year;
(b)At other times by agreement between the parties in writing.
The child shall otherwise spend time with the father in the long summer holidays:
(a)in 2022-2023 for one period of two weeks by agreement between the parties and failing agreement from 6:00 p.m. on New Year’s Day to 6:00 p.m. on 15 January 2023;
(b)from and including 2023-2024 for half of each of the long summer holidays by agreement between the parties, and failing agreement, the first half in odd-numbered years and the second half in even-numbered years, and for the purposes of this order, the long summer holidays shall be deemed to commence at the conclusion of school on the last day of the school year and to conclude at 6:00 p.m. on the Sunday before the commencement of the next school year;
Should the mother move to Adelaide in compliance with paragraph (5) hereof, the child shall spend time with the father as follows during school terms from the commencement of the 2022 school year:
(a)On no less than one weekend of each South Australian school term by agreement, and failing agreement the fifth weekend, from the conclusion of school on Friday to 6:00 p.m. on Sunday, with the first two such weekends in 2022 to be spent in the Adelaide area, and thereafter in a city/town of the father’s choosing;
(b)by telephone, Skype, Zoom, FaceTime or other electronic means between 6:00 p.m. and 6:30 p.m. on each Tuesday and Saturday that the child is not in the father’s care, with the father to place the call to a number or electronic address provided by the mother, and the mother to ensure that the child has access to a fully-charged telephone, tablet or computer, that he is available to take the call, and that he is afforded privacy during the call;
and
(c)At other times by agreement between the parties in writing.
In the event that the mother does not move to Adelaide, from the commencement of the 2022 school year, the child shall spend time with the father each alternate weekend during school terms from 5:00 p.m. on Friday to 5:00 p.m. on Sunday, or Monday if the Monday is a public holiday, with such weekends to coincide, as far as is reasonably practicable, with the father’s time with the child’s siblings B and C.
On special occasions the child shall spend time with the father:
(a)Subject to the provisions of paragraph 8(a) hereof, from noon on Christmas Eve to 3:00 p.m. on Christmas Day in even-numbered years, and from 3:00 p.m. on Christmas Day to 6:00 p.m. on Boxing Day in odd-numbered years;
(b)For the child’s birthday each year if the mother relocates to Adelaide by Skype, FaceTime, Zoom or other video-based electronic means on the child’s birthday between 8:00 a.m. and 8:15 a.m. and between 6:00 p.m. and 6:15 p.m. each year;
(c)For the child’s birthday if the mother does not relocate to Adelaide:
(i)from the conclusion of school on 10 February, or 4:00 p.m. if not a school day, to the commencement of school on 11 February, or 10:00 a.m. if not a school day, in even-numbered years; and
(ii)from the conclusion of school on 9 February, or 4:00 p.m. if not a school day, to the commencement of school on 10 February, or 10:00 a.m. if not a school day, in odd-numbered years;
(d)at such other times as the parties might agree in writing.
The child’s time with the father pursuant to paragraph (11) hereof shall suspend during all school holiday periods and shall recommence after the school holidays as if the holidays had not intervened.
Changeover shall take place:
i.While the mother lives in Region D or the Region E of the Melbourne metropolitan area, at the McDonalds restaurant closest to the mother’s home at the commencement of time, and at the McDonalds restaurant closest to the father’s home at the conclusion;
ii.If the mother moves to Adelaide, in the baggage collection area of Adelaide Airport at the commencement of time, and at the McDonalds restaurant closest to the mother’s home at the conclusion.
Save in the case of emergency, the parties shall communicate with each other using an application such as “2houses” or “My Family Wizard” and the subscription costs of such application shall be borne by the father.
The parties shall keep each other informed as to their respective residential addresses and contact telephone numbers at all times, save that neither shall attend at the other’s address without first having obtained the other’s consent in writing.
Each party shall notify the other as soon as practicable in the event of the child suffering any serious illness or injury while he is in their respective care, and each shall authorise any medical or dental practitioner who treats the child to communicate and consult with the other parent.
Each party shall advise the other of any medication prescribed for the child while he is in their respective care, including the dosage and frequency prescribed, and each shall ensure that such medication travels between their houses with the child, and that any such medication is taken in accordance with its prescription.
The mother shall authorise any school, kindergarten or extra-curricular activity in which the child is enrolled to provide to the father at his expense all information, notices, photographs, reports and like materials, and he shall be named as a contact person in the records of such school or organisation in the event of any emergency involving the child.
Both parties and their partners shall be at liberty to attend any school functions, extra-curricular activities or events to which parents are usually invited, and the father shall inform the mother of his intention to attend such a function or event no later than 48 hours prior.
The parties are hereby restrained by injunction from:
a)Administering any form of physical discipline to the child;
b)criticising, insulting, belittling, or otherwise denigrating the other or any member of the other’s family or household in the presence or hearing of the child, and from allowing him to remain in the presence or hearing of any third party who is engaging in such conduct;
c)discussing these proceedings or any issue the subject of these proceedings, in the presence or hearing of the child, save to explain the effect of these parenting Orders to him, and from allowing him to remain in the presence or hearing of any third party who is engaging in such conduct;
d)interrogating the child about his time with the other parent and from allowing any third party to do so; and
e)allowing the child to access, read or have read to him any portion of the Court’s Reasons for Judgment in this matter.
Before issuing further proceedings for parenting orders, the parties shall attend upon a Family Dispute Resolution Practitioner and make a genuine attempt to resolve any dispute between them.
The order of Judge Small made on 21 November 2018 appointing the Independent Children’s Lawyer is hereby discharged.
All extant applications are otherwise dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

DGC 595 of 2018

MS CARVER

Applicant

And

MR SANSFORD

Respondent

REASONS FOR JUDGMENT

Introduction

This is a parenting matter between Ms Carver (“Ms Carver” or “the mother”) and Mr Sansford (“Mr Sansford” or “the Father”).
There is one child of the relationship, namely X born in 2016 (“X or “the child”).
X lives with his mother and spends time and communicates with his father pursuant to Interim Orders made by consent after the trial of this matter on 15 November 2019.
The Mother seeks Orders that she have sole parental responsibility for X, that the child live with her and that she be permitted to relocate to Adelaide with him.
The father seeks equal shared parental responsibility for the child, and that the mother be restrained from relocating his residence more than 100km from the father’s residence. He accepts that X ought to remain living with his mother but seeks Orders for substantial and significant time with X.
The issues to be decided in this case are:
A.Whether the mother ought to have sole Parental Responsibility for X, or whether that responsibility ought to be shared equally between the parents;
B.Whether the mother ought to be permitted to relocate to Adelaide with the child;
C.If the mother is permitted to relocate to Adelaide with the child, what kind of time should the child spend with his father?

Background

Ms Carver was born in 1997 and is currently 23 years old. Ms Carver currently lives in Town F and supports herself with government benefits.
When she was just 12 years old, her family lost their home in a deliberately lit fire in the 2009 “Black Saturday” bushfires. Six weeks later, her father died from lung cancer.
After her relationship with her mother and her twin sister broke down, Ms Carver left home to live with her grandparents for a short time before leaving school at 17 when she was in Year 11. Her relationship with her mother and her twin sister has been difficult since early in her adolescence.
After she left her grandparents’ home, she was hospitalised in the psychiatric ward of the G Hospital for three days after expressing suicidal ideation.
She met Mr Sansford several months after her release from hospital when she was 17 and he was 30 years old.
Mr Sansford was born in 1983 and is currently 36 years old. He currently lives in Town H. At the time of trial, Mr Sansford was reportedly unable to work and was in receipt of Transport Accident Commission (“TAC”) payments following a serious motor vehicle accident in 2018.
He lives with his mother as her carer, and told the Court that she suffers from ongoing psychiatric issues as a result of workplace bullying and is unable to work.
The parties currently live a distance of 60 Kilometres apart, taking about 45 minutes to drive between their houses.
The parties commenced living in the home of the father and paternal grandmother in 2014 and conducted a brief and uncommitted relationship from 2014 until June 2015. The mother left the shared home on 1 June 2015.
X, who is the parties’ only child together, was born in 2016. X currently lives with Ms Carver, and Mr Sansford spends time with X on alternate weekends and during school holidays, and on special occasions such as Christmas and Fathers’ Day.
Final Hearing was listed on the Town J circuit on three occasions before finally commencing in Melbourne on 13 November 2019, when the matter ran for 3 days. The mother, father and Independent Children’s Lawyer were all represented by counsel.
Witnesses at trial included the mother, the father, and Ms K, the Family Report writer who filed two Family Reports in this matter (“Ms K”).
Following the conclusion of evidence and after hearing submissions from all parties, I reserved my decision on 15 November 2019.

Issues, Evidence and the Law

It is not possible to refer to every fact and/or matter raised in the trial of these proceedings and nor is it necessary to do so. The parties should understand that I have had regard to the whole of the evidence, including my notes and the transcript of the trial, and if I have not referred to a particular fact or matter it does not mean that I have not considered it.
First, Ms Carver seeks Orders that she have sole parental responsibility for X.
Mr Sansford seeks orders that there be equal shared parental responsibility.
The Independent Children’s Lawyer also submits that the parents should equally share parental responsibility for X.
An Order for parental responsibility is a “parenting order” pursuant to s64B(2) of the Family Law Act 1975 (Cth) (“the Act”).
The law in relation to parenting orders is found in Part VII of the Act.
S.61DA states as follows:
(1)   When making a parenting order in relation to a child, the court must 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.
Note:    The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)    The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)    abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)    family violence.
(3)    When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)    The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
So, if there are reasonable grounds to me to believe that either parent has engaged in child abuse or family violence, then the presumption of equal shared parental responsibility does not apply, and the question of parental responsibility is to be decided on the basis of whether equal shared parental responsibility would be in the children’s best interests.
That is because Section 60CA of the Act states that in contemplating making any parenting orders, the Court must take the best interests of the child or children as its paramount consideration.
In this case, the mother accuses the father of persistent coercive and controlling behaviour, in that he demanded sex in exchange for favours and sent her abusive and offensive text messages both during cohabitation and after separation.
Examples of that behaviour are found in her trial affidavit affirmed and filed on 1 May 2019 and include Mr Sansford:
·    refusing to sign entries in her driver’s logbook so that she could progress towards obtaining a driver’s licence unless she had sex with him
·    belittling her and telling her that she was “crazy” as she was taking antidepressant medication
·    telling her that “all men treat women badly” and that “nobody would treat her as well as him” after belittling and abusing her
·    refusing to drive her to work appointments at short notice unless she had sex with him
·    telling her that she had a bad reputation in the local area, and that she had no real friends, and those who she thought were her friends “talked behind her back”
·    telling her that if she left him, she would have nowhere to go
·    telling her that her previous bad experiences with men were her fault
·    leaving or threatening to leave her in remote places if she did not have sex with him
·    falsely telling her that she had been assaulted by a group of men on an occasion when she was intoxicated and could not recall events, and that the assault had been reported to the police
·    accusing her of having affairs with other men
·    breaking her mobile phone so that she had no way of communicating “with the outside world” unless she borrowed his phone, in which case she had no privacy.

Ms Carver complains that Mr Sansford manipulated her into a sexual relationship with him, using the age and power differential between them, although she also says that she understood from the beginning that their relationship would be sexual.
Her allegations of such incidents are both general and specific, and include a distressing account of being left at a petrol station late at night, with Mr Sansford refusing to come back and collect her unless she performed oral sex on him.
She further alleges that after separation, Mr Sansford harassed her by sending multiple text messages to her after she had asked him to stop, some of those messages being offensive in nature.
Her allegations are, for the most part, corroborated by text messages between the parties before and after separation which are attached to Ms Carver’s affidavit material.
At trial, Ms Carver was steadfast in her adherence to those allegations and I am satisfied that those experiences are real for her.
Mr Sansford disputes the allegations and says that, while he did send the text messages referred to at trial (or at least that he “must have” sent them if counsel had copies), that they were all sent in jest, or that he was responding to Ms Carver’s behaviour at the time.
I note that s61DA(2)(b) does not require me to make an actual finding that family violence has occurred in deciding whether the presumption applies, but only that I be satisfied that there are reasonable grounds to believe that family violence has occurred.
On the basis of the above evidence, I am so satisfied, and therefore the presumption of equal shared parental responsibility does not apply in this case. I will return to the issue of family violence later in these Reasons.
In those circumstances, I must now determine whether it is in the child’s best interests for an equal shared parental responsibility order to be made.
As the child’s best interests are also the basis of the other issues the Court must determine, I will deal with the law and the evidence in relation to them at this stage of my deliberations, and in relation to all three issues to be decided.
Section 60CC sets out 16 separate factors which the court must consider when it is considering orders that might be in a child’s best interest.
The first two considerations are called “primary considerations” and are found in s.60CC (2) which reads:
(2)    The primary considerations are:
(a)    the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)    the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The meaning of the term “meaningful relationship” has been addressed in several cases that have come before this Court and the Family Court of Australia.
In an oft quoted passage from the judgment of Brown J in Mazorski v Albright [2007] FamCA 520, Her Honour said, at paragraph 26:
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 quantitative one.
In other words, the meaningfulness of the relationships between a parent and a child is measured not by the amount of time they spend together, but on the quality of that time.
In Tait & Dinsmore [2007] FamCA 1383, Cronin J said, at paragraph 170:
To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child… Those adjectives mean that children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate to others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship.
So the meaningfulness of a child’s relationship with his/her parents is enhanced when a parent provides a role model for the child and teaches the child by example what it is to be a citizen, a family member and a parent.
If what the mother says about the father’s violent and abusive behaviour is true, he has not provided a particularly positive role model for X, and the reverse is also true, because each party accuses the other of behaviour that falls within the definition of family violence in s.4AB of the Act. As I have stated, I will return to the issue of family violence later in these Reasons.
There is no evidence to say that X is neglected in any way in either parent’s care, but in addition to the family violence the mother says was perpetrated against her by the father, the mother alleges that the child is at an unacceptable risk of emotional, and perhaps physical abuse in the father’s care.
It is her evidence that a few days after X came home from his time with the father on 10 February 2019, he woke with nightmares, saying that “his teddies were going to kill him”, and that his father had said “I’m going to kill you”. Ms Carver deposes that X had made that statement in his “angry voice, like the person who had said that to X had yelled at him”. She says that later on that same day, X had been “walking around the house, strumming his toy guitar and singing ‘kill, kill, kill, killing, killing, killing””.
The mother deposes that she was “incredibly concerned about X’s disclosures” and that she had gone to his Maternal and Child Health Nurse for advice. She says that the Maternal and Child Health Nurse had referred her to “L”, a local counselling service, and that when she told L about what X had said, Ms M from that organization had accompanied her to the Town J Police Station, where she had made a statement. It is Ms Carver’s evidence that the police had advised her not to make X available for his time with Mr Sansford in future and that they had “encouraged me to seek an Intervention Order (IVO) against Mr Sansford”.
She applied for and was granted an Interim Intervention Order on 15 February 2019, after stating, in the Application and Summons for the Intervention Order that:
On Thursday 14^th February my son X told me that his Dad was going to kill him. X was playing with his teddies and said “My teddies said they are going to kill me”. When I asked where he heard that word he said “Dad” and “Dad said I’m going to kill you”. I was very concerned and distressed. I saw the Maternal Health Nurse who referred me to L Counselling. Mr Sansford has unsupervised time with X and I am worried about X’s safety. I have contravened the Family Court (sic) orders today by not sending X for visitation.
The mother then stopped all time between X and his father from that day.
The matter came back to Court about three months later in the May 2019 sittings at Town J, where the parties signed interim consent orders for X’s time with his father to recommence, but for that time to be supervised. That was the situation when the matter came before me for trial in November 2019.
Under cross-examination by counsel for the Independent Children’s Lawyer, Ms Carver said that she still held those fears for X’s safety with his father, despite the second Family Report having said that X showed no fear of Mr Sansford.
She was then asked why, if that were the case, had she now agreed to consent orders that would see X spend extended and unsupervised time, including overnight time, with his father, and the following exchange took place:
Ms Carver: My concerns are still there. My – the advice I have been given is that overnight time and unsupervised time will happen regardless – that that’s in X’s best interests to try that, and that’s what is going to happen.
I found that answer most unsatisfactory and rather self-serving given her persistent claim that X is at risk in his father’s care.
Counsel went on:
Counsel for the Independent Children’s Lawyer: And so the reason I’m asking you about this is that the father’s material and family report material raise concerns about whether you will promote the relationship between X (sic in transcript) and his father. And so in order to do that in overnight time, you really need to have done something about those concerns that you have for X’s safety. Don’t you agree?
Ms Carver: I’m not sure what the – that I need to have done something.
Counsel: Yes. That in order for the court to be satisfied to have confidence that you will keep sending X to spend time with his father, the court would need to know that you will do that.
Ms Carver: I have never contravened a court order, and I would not contravene a court order.
Counsel: Well, there were court orders for time when you were concerned for X’s safety.
Ms Carver: Yes. I was advised by the police on that occasion not to send him, so that was the reason.
A few minutes later, after counsel had shown Ms Carver the Affidavit of Ms N (see paragraphs 89 to 91 below), which she said she had not read before, the following exchange took place:
Counsel for the Independent Children’s Lawyer: Does that give you any confidence in relation to concerns for X’s safety?
Ms Carver: I’ve had no concerns since the time has been supervised. I know that X has been safe while it has been supervised.
Counsel: So in looking forward, though, in relation to it being unsupervised, you can see that that’s recommended by the family report writer?
Ms Carver: Yes.
Counsel: Did those observations give you any confidence in relation to your concerns?
Ms Carver: Partly, yes.
Counsel: In what way?
Ms Carver: Well, X has had the opportunity to form a safe relationship with his father.
Counsel: Do you accept that?
Ms Carver: Yes.
Counsel: That that is what has taken place?
Ms Carver: Yes.
Counsel: And so does that allay some of your concerns?
Ms Carver: Some, yes.
Counsel: Enough that you would say to this court under oath that you would promote that relationship?
Ms Carver: Yes, I would.
Counsel: Unless there were (protective) concerns for X?
Ms Carver: Yes, yes.
Mr Sansford’s response to this allegation was that the mother had entirely “made up” the incident about him telling X that he would kill him. He said at trial that he had attended the police station to ask about the complaint and the police had told him “that they could tell he (X) had been coached.”
When he was asked by the mother’s counsel why Ms Carver might have made up that incident, he said:
She goes up and down like a yo-yo. I don’t know. It’s just anything is possible with Ms Carver.
He did say, in answer to further questions, that if X had indeed said something concerning like that, Ms Carver was right to have taken the steps she had, and that he too would have done something about it if he had heard X say such things. He said he did not know what was happening at the time other than that some kind of allegation had been made against him and his time with X had been stopped.
Ms K, under quite vigorous cross-examination by counsel for the mother, said that she did not think that X was at risk in the father’s care for two main reasons: first, that none of the professionals consulted by Ms Carver – the Maternal and Child Health Nurse, the counsellor at L, or the police – had made a notification to the Department of Health and Human Services (Child Protection) authorities, despite the fact that all of those people are, as mandatory reporters, obliged by law to make such a notification if they believe a child is at risk; and second, because she saw no signs of fear in X when he was in his father’s presence at either observation session, and that if he had been abused in any way, he would have been afraid of Mr Sansford.
Ms K said:
The mother is highly anxious and I – because of her anxiety and her presentation, whatever it’s about, I think that there’s a propensity perhaps, maybe a risk that the mother misinterprets normal behaviour in the child as something concerning, and I couldn’t find any independent evidence or reports that X was displaying behaviours that the mother was reporting on. So if these behaviours are occurring other than at the mother’s home, I guess I wanted to know about it.
Ms K said that the apparent fact that none of the professionals had thought it necessary to make a notification to the Child Protection authorities “made me question the legitimacy of it, I suppose”.
Counsel for the mother took Ms K to the statement in the second Family Report that “her (the mother’s) behaviour is theatrical and designed to elicit a particular response from the audience”. When he asked what she had meant by that statement, Ms K replied:
I suppose it’s – it’s an approach. It’s an observation. A protective response – people present as vulnerable in order to get people to help them. You know, people with certain personality types – you know, often associated with borderline personality traits. It’s – it’s designed to elicit a protective response, for someone to, you know, help them out, to care for them.
During the trial, when she was sitting in the body of the Court, Ms Carver looked very vulnerable. She sat still, with her eyes lowered, and appeared dejected and frightened.
When she was in the witness box, however, it was almost as if she were a different woman. She was clear, assertive, articulate and appeared confident of her position and her responses.
The difference was quite remarkable, and while I am convinced by all the evidence that Ms Carver has lived a very difficult life since the tragic events of 2009, I was not convinced of her “vulnerability” in the sense of her presentation while sitting in the body of the Court.
She is no doubt vulnerable in that she has developed some traits, perhaps in self-defence, which cause her to seek attention in the hope that she will be “looked after”, or that people will agree to her requests or proposals, but I am not satisfied, on the balance of probabilities, that she genuinely believes that X is at risk in his father’s care.
I do believe that Ms Carver genuinely believes herself to be at risk from Mr Sansford, based on her experience of living with him, and on some of his behaviour since separation, but I cannot find, on the evidence before the Court, that X is at an unacceptable level of risk in the care of his father.
Section 60CC(2A) of the Act states that in applying the primary considerations, the court must give greater weight to the need to protect a child than to the benefit to the child of having a meaningful relationship with both parents.
That is, while I must make orders which allow for meaningful relationships between X and both his parents to flourish, my main concern must be to ensure that he is protected from any harm caused by being exposed to abuse, neglect or family violence.
S.60CC(3) then sets out 14 “Additional considerations” as follows:
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
As X is only four years old, and was three at the time of the Family Report interviews, he was not interviewed at that time.
Therefore, we do not know from any independent source what his wishes are, although the mother says that he expresses reluctance to visit his father.
In any event, even if he had expressed his clear wishes, he is too young to have those wishes given any great weight.
(b)the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
Not unsurprisingly, both parents claim to have a close, warm and loving relationship with X, but there are two other witnesses who have observed X: Ms K, who saw him twice with each parent; and Ms N, the person engaged by the Transport Accident Commission to assist Mr Sansford with some of his daily activities, and who effectively supervised the time Mr Sansford spent with X during the period between May and November 2019 (“Ms N”).
Ms K describes X as being “happy, secure and comfortable” in his mother’s presence in her first Family Report dated 8 November 2018 (“the first Family Report”), and she notes that the mother was able to soothe the not-quite-three-year-old when he “protested about being separated from his mother” for his observation session with his father.
The same Report states that X had “settled easily in his father’s care” and that there was a “familiar and bonded relationship” between father and son.
In her second Family Report, dated 29 October 2019 (“the second Family Report”), Ms K again states that X “was observed to be happy, comfortable and confident” in both his mother’s and his maternal grandmother’s care. She says that “it is apparent that X has formed a close and connected relationship” and a “close and loving relationship” with his mother.
Again he had found it “difficult to separate from the mother”, but again, Ms Carver had “ably assisted X to enter the room where Mr Sansford was waiting”.
X is stated to have also been “happy and comfortable in Mr Sansford’s company” from the outset of the observation session, and to have “engaged in excited conversation” with him.
Ms K states that it was apparent that “a close and loving relationship” has formed between X and his father.
At trial, Ms K stated that she did not observe X to be at all afraid of the father, and that the relationship between him and his father had progressed between the first and second observation sessions, which were held about a year apart, despite their time having been suspended for three months during that year.
She said that it had been “quite touching” to observe the development in that relationship, and agreed with counsel for the Independent Children’s Lawyer that the relationship was “close”, “comfortable” and “bonded”.
She was very clear that X had not exhibited any signs of fear of his father, and when challenged that she might not see the trauma alleged by the mother, she stated in forthright manner: “I know a traumatised child when I see one”.
I found Ms K’s evidence very helpful, as she was able to explain the reasons and bases of her evidence, and although willing to shift a her opinion a little when appropriate, for instance when taken to evidence she had been unaware of, she was unable to be shaken on any salient point.
Ms N affirmed an affidavit in support of Mr Sansford, that Affidavit being affirmed and filed on 1 November 2019.
It is Ms N’s evidence that, during their times together, “X cuddles up with his father, teases him and they exhibit a loving and caring close bond relationship.”
She deposes that X has never shown any sign of being afraid of Mr Sansford, and that she has never observed Mr Sansford “being abusive in any way” towards any of his three children, including C and B, who are often in his care when X visits.
She says that X has often asked to stay longer, including “sleepovers”, with Mr Sansford and that Mr Sansford “has never shown any anger or irritation towards X even when comments made by X must have hurt his feelings.” Such comments have included “Daddy’s (sic) don’t love their little boys, only Mummies do”.
I note that Ms N was not required for cross-examination and I accept her evidence in its entirety.
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
To date, it has been Ms Carver who has made the major decisions about X’s life. It is she who decided not to send him to childcare, it is she who had him immunised, and it is she who has decided that she wishes him to live in Adelaide.
Ms Carver has not, to date, included Mr Sansford in any of those decisions, save that there were some negotiations about her proposed move to Adelaide, but she did invite him to the hospital to meet X shortly after his birth.
There appears to be no evidence before the Court about who decided on X’s name, but I note that his surname is “Carver” and not “Sansford” or even “Carver-Sansford”.

Ms Carver is X’s primary carer and she has taken every opportunity to spend time with him. Indeed, I infer from the evidence before the Court that, until orders for overnight time were made by consent at the end of the trial, X had never spent a night away from her.
Mr Sansford has taken many steps to ensure that he spends time and communicates with X, by participating in mediation before these proceedings began, and by participating fully in these proceedings, which were initiated by Ms Carver.
He has persisted through times when Ms Carver has twice stopped his time with X for several months, and he seeks orders that would allow X to develop his relationship with Mr Sansford into the future.
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
Ms Carver’s evidence is that Mr Sansford paid minimal child support for X until he obtained work in early 2018. He has since then paid pursuant to assessments made by Services Australia (Child Support), formerly the Department of Human Services (Child Support).
Mr Sansford’s evidence is that he was offering financial support for X from his birth, but that Ms Carver “appeared to largely resent my offers” and that, in December 2016, she had sent him a text message saying “Ok, I don’t need anything. Please stop asking”. I note that Ms Carver’s evidence (paragraph 43 of her Affidavit affirmed 21 April and filed 22 April 2018) is that she did not make an application for a Child Support Assessment until June 2017.
At the time of trial, as he had been receiving TAC benefits of about $1,000 per week as a result of his car accident in 2018, he was paying child support of about $281 per month.
However, it was his evidence at trial that those benefits had been for 18 months only and they were about to stop. He was not sure what he would be receiving from 8 November 2019, but said that it would not be as much as $1,000 per week. That will doubtless have an effect on his child support obligations.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
This is a major consideration in this case when the Court is considering the mother’s proposal that she be permitted to move to Adelaide, which would separate him from his father, from both of his grandmothers, and from his half-siblings, B and C.
At trial, Ms K was asked what the effect might be on a child as young as X if he were to move so far away from his father at this stage of his life.
Her evidence was very clear:
The mother presents as vulnerable. There doesn’t appear to – for whatever reason she finds it difficult to support ongoing time between the child and the father, and at X's young age he will struggle to retain a memory of his father if no time occurs. So if they go to South Australia, for example, and time was limited to two or three occasions a year, X's relationship with his father would not survive. It's too far.
And later :
For X to develop a healthy identity, he needs to be loved and know that he's lovable. For that to occur, X needs to experience a loving relationship, a regular loving relationship with both parents, you know, unless there's a clear risk. For the distance - certainly Adelaide distance - once a month would be untenable for these parents. I don't think they could manage it financially or practically, because it hasn't been happening at the moment. You know, it has been disrupted.
When she was asked how old X would need to be before he would be able to hold his memory of his father, Ms K said:
If X’s time with his father had been uninterrupted and supported and increased to overnight time within the last six months, what I sought with X and the father (in the first Family Report), that X would manage next year.
Ms K said that, had it not been for the interruptions to X’s time with his father between December 2016 and May 2018, and between January and May 2019, he might have been able to hold the memory of his father and their relationship now, but that:
If interruption – ongoing interruptions in time occur, the risk is that X will – without a developmental explanation, if it just happens without any warning for X, (1) he could feel that his father has abandoned him, or (2) he would be at risk if the mother is projecting risk onto him, that X is at risk, then, of embracing the mother’s view that he is at risk in the father’s care. So the damage would be to the relationship between the child and the father.
Given the history of the matter, where the mother has, on two occasions, stopped X’s time with his father without notice, Ms K was not confident that it might not happen again, stating that that would be particularly difficult for X if he were living in Adelaide.
She was in no doubt at trial that if X were separated from his father at this stage in his life, the effect of that separation would be detrimental to their relationship, and to X’s sense of self.
X has lived with his maternal grandmother at times when the mother has done so, but there is no evidence before the Court of the nature of their relationship, save for a passing comment by Ms K that X appeared comfortable and relaxed in her care while the mother was being interviewed, or of the effect on him of being separated from her. I note, in that regard, that while the maternal grandmother was present in Court as a support for Ms Carver, she filed no affidavit material in the proceedings and was not called as a witness.
Nor is there any evidence of the effect on him of being separated from his paternal grandmother or his half-siblings B and C, although the father says that the three siblings have become close.
There is the evidence of Ms K that when he came into the observation room to be observed with his father for the second Family Report, X immediately and excitedly asked whether B and C were there.
Ms K told the Court that she would support the continuation of that sibling relationship for X, although she had not observed or interviewed either B or C for either of her two Family Reports in these proceedings.
It is therefore likely that being separated from them would cause X some concern.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
Again, this is relevant to the mother’s proposal that she and X move to Adelaide, although the father told the Court that he intended to move out of his mother’s house and into his own house at some unclear future time, so that this issue might arise even if the mother is not permitted to relocate X’s place of residence to Adelaide.
Mr Sansford told the Court that he would likely move to a house in the general area where he now lives, saying that he prefers town life to that of the city.
If the father moves to somewhere relatively close to where he is now, and the mother is not permitted to relocate to Adelaide with X, the practicality and cost issue is not particularly relevant as the parties currently live 60 kilometres and 45 minutes apart.
However, if the mother moves to Adelaide, the practical difficulty and cost of X retaining and developing his relationship with his father come to the fore.
Adelaide is approximately 828 kilometres and 9 hours’ drive from Town H, where the father now lives.
It is the father’s evidence that the injuries he suffered in the car accident in 2018, which resulted in the other driver losing his life, include an injury to his spine that makes it impossible for him to sit for long periods and thus to drive for long distances. That is why Ms N has been engaged by the TAC to be his driver and assistant.
That fact alone makes the prospect of an 18-hour return drive to see his son a particularly onerous one for the father. The cost of petrol in that case would also be significant, although the mother would need to pay a share of that cost.
If he chose to fly to Adelaide, he still would need to travel the one-and-a-half hours to Melbourne Airport to catch a plane to Adelaide, and find parking at Melbourne Airport, so that it would take him about half a day to get there and half a day to get back. If he is employed in the future, that would mean he might only get to see X for about 24 to 30 hours in any weekend when he travelled to Adelaide.
In the overnight period between the second and third days of trial, Ms Carver obtained some information about the cost of Mr Sansford flying to Adelaide.
It was put from the bar table by her counsel on the last day of trial that one return airfare from Melbourne to Adelaide can be obtained for about $216. Counsel said that car hire in Adelaide would cost $143 for the Friday, Saturday and Sunday; that the mother is prepared to provide X’s car seat for the weekend to save the father the $60 cost of hiring one; and that a motel room with two beds would cost around $169 for two nights.
The mother was also prepared, said her counsel, to refund the child support money she receives from Mr Sansford to pay for his airfare.
None of that information envisages the possibility of X travelling to the father’s home to spend time with him.
At no time in her affidavit material, or under re-examination by her counsel at trial, had the mother ever provided any detail whatsoever in relation to her proposal that she move to Adelaide and the father see X in school holidays.
That she did so only in time for her counsel to provide that information from the bar table as part of his final submissions, with that proposal being for X to see his father on one weekend during each school term as well as in school holidays, does not give the Court any confidence that she has genuinely thought through the real practical and economic implications for the father’s time with X, for either party, if she moves to Adelaide.
(f)the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
There is no doubt that both parents are capable of caring for X in the material sense. He is housed, fed and clothed appropriately, and the only criticism one might make of the mother’s parenting in terms of X’s social development is that she had not, at the time of trial, enrolled him in childcare or kindergarten. It was her evidence that she intended to do so in 2020.
It is in the area of X’s emotional needs that the Court has some concerns.
Dr O, the psychiatrist who prepared psychiatric assessments for both parents in these proceedings (“Dr O”), describes the mother’s presentation on the day he interviewed her as “timid and tearful” and “anxious and apprehensive” (report attached to the Affidavit of Dr O affirmed on 30 July and filed on 13 August 2019).
It was Dr O’s opinion that Ms Carver “presents as a young vulnerable woman with limited social supports”, but that while she reported anxiety at times, he saw no evidence of a major depressive disorder.
Dr O’s opinion is that Ms Carver exhibits the borderline personality traits of “self-harm” and “instability in relationships”, but he says that can be explained by her personal history.
He states:
Given the amount of stress that she is under, her young age, her relative lack of social supports, her lack of personal resources, she is coping reasonably well.
He notes her psychiatric admission at the age of 17, and that she was seeing a psychologist at the time of interview.
At the conclusion of the section of the psychiatric assessment report headed “Opinion: Ms Carver’s Mental Health”, Dr O writes:
On the whole, the information available indicates to me that Ms Carver has been resilient in the face of her past trauma and current stressors. It is appropriate that she seeks psychological supports.
Under the heading “Risk”, Dr O writes:
I did not identify any immediate risk issues that Ms Carver poses to herself or others including her son. At times of intense stress Ms Carver’s (sic) is at risk of experiencing an exacerbation of identified borderline personality traits which would impact her capacity to parent.
Under the heading “Capacity to Parent”, he says:
Based on the information available to me, Ms Carver’s mental health does not currently compromise her ability to look after her son. It is important Ms Carver continues to seek treatment for borderline personality traits. A deterioration in her mental health could impair her functioning, including her capacity to function optimally as a parent.
Dr O states no opinion about whether Ms Carver ought to be permitted to relocate, but states clearly that “I do not consider moving to Adelaide essential to Ms Carver’s recovery”.
In relation to Mr Sansford, Dr O describes his presentation as “relaxed” and “quite nonchalant”. He sets out Mr Sansford’s history, including the major car accident in 2018 in which the other driver died, and records Mr Sansford as saying “the car crash was the hardest thing I had to deal with”. Mr Sansford told him that he was taking anti-depressant medication as a result of Post-Traumatic Stress Disorder experienced as a result of the accident.
Dr O says that it is “appropriate that he seeks psychological treatment for his injuries”.
Dr O then goes on:
I did not find any evidence of a recurrent depressive disorder. I did not find any evidence of a major mental illness such as psychosis. I did not find evidence to support a diagnosis of personality disorder.
The clinical evidence indicates Mr Sansford has mild to moderate PTSD for which he is currently seeking appropriate treatment.
Dr O did not find that Mr Sansford poses any immediate risk to himself or to X, but states that it is important that he continues to seek treatment for his PTSD, as, like Ms Carver, “a deterioration in his mental health could impair his capacity to function optimally as a parent”.
He recommends that Mr Sansford attends a Men’s Behaviour Change Program if the Court finds that he “took advantage of Ms Carver’s vulnerable circumstances”.
I note that Dr O was not required for cross-examination at trial and that therefore his evidence stands unchallenged.
Ms K states in her first Family Report that “both Ms Carver and Mr Sansford exhibit some psychological vulnerabilities” and that their “capacity to communicate and collaborate on behalf of X is impaired”.
Nevertheless, she recommends that they retain equal shared parenting responsibilities for X.
Ms K also spoke to Mr P, Mr Sansford’s treating psychologist, who told her that “if the mother and X move away… he (Mr Sansford) would be devastated,” with potential impact on his recovery.
I have already set out in some detail the incident of X reportedly saying that his father would kill him, and the steps taken by Ms Carver as a result of her concerns about that “disclosure”. If, as Ms K appeared to believe at trial, Ms Carver took X to the police station so that he could make a statement to that police, that indicates a certain lack of insight into X’s needs, but that belief was not interrogated at trial.
Mr Sansford reported to Ms K that X sometimes says things to him like: “You are black and I don’t like black people; you stink; Mum says babies don’t love their Daddies only their Mummies; Mum said you don’t love me”; and other similar comments.
I note that Ms N corroborates that evidence.
It is almost inconceivable that a child of X’s age would have thought up such concepts himself, and I can only infer that he has heard those statements at home, as he does not attend childcare.
That evidence does not give me confidence in Ms Carver’s capacity to meet X’s emotional needs, as the two Family Reports of Ms K and the evidence of Ms N describe a close and loving relationship between Mr Sansford and X. If X is hearing statements that do not align with his lived experience of his father, that could have deleterious effects on his mental health in later life, as he could come to believe that he cannot trust his own experience.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
Neither of these parties impresses as being particularly mature, and indeed the mother’s presentation is described as follows in the second Family Report:
22. In contrast to her previous confident disposition, at this follow up interview, Ms Carver (aged 22 years) presented as timid and vulnerable. She walked bent over and with a shuffle. During her interview, Ms Carver had one hand on her stomach and the other hand on her forehead. For the main, she kept her gaze downward and spoke in an almost whisper. Ms Carver informed that she was unwell, but she was vague about the nature of her health problem. She was offered the opportunity to postpone the assessment until she felt better, however, Ms Carver stressed her desire and capacity to continue the interview. When Ms Carver was asked to expand upon her views and preferences, she adopted an assertive and confident manner.
I note that that presentation, in both its forms, is congruent with my impression of her at trial as set out in paragraphs 67 to 71 above.
If she has been denigrating Mr Sansford to her son as is alleged, then she displays a particular immaturity that may damage X’s ability to participate in mature relationships as he grows up.
That is particularly relevant as Ms Carver alleges that Mr Sansford’s “gaslighting” behaviour, in relation to the assault that never took place, had caused major setbacks in her mental health. In other words, she knows what it is to have one’s experience denied by someone close, but she cannot see that comments like those she has clearly made to X might damage him in the same way.
Ms Carver’s desire to move to Adelaide, where she knows no-one save for an aunt she has met only once or twice, and in circumstances where her plans for that move are vague to say the least, also displays a certain immaturity.
Mr Sansford, too, has shown some behaviours that do not reflect well on his maturity.
The text messages annexed to Ms Carver’s affidavit material, which Mr Sansford conceded at trial were sent by him, display a childish and manipulative view of adult relationships that does him no credit at all.
Despite his parents’ shortcomings in this context, X is reported to be reaching all his developmental targets and is a delightful child by all accounts.
There do not appear to be any cultural matters of relevance in this case.
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
There is no evidence before the Court to indicate that X has any Aboriginal or Torres Strait Islander heritage.
(a)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
The mother’s attitude to the child, and to her responsibilities as his parent, is one of love, commitment and protection, although there is some evidence that she sees him as “mine”.
Ms K describes her in the First Family Report as being “dismissive of the father and his role in X’s life historically and in the future”, and that is certainly borne out in her desire to relocate X to a place that would make it much more difficult for X to maintain his close and loving relationship with his father.

However, when cross-examined at trial, Ms Carver was insistent that she supported X’s relationship with the father, and that she would ensure that the relationship was maintained in the future.
That evidence does not sit well with Ms Carver’s having ceased X’s time with his father for considerable periods on two occasions, and despite her insistence, her evidence in this regard did not ring true.
Mr Sansford’s attitude to X and his parenting responsibilities is also one of love and commitment. He has also ensured that X has met and developed a warm and close relationship with his half-siblings, B and C.
(a)any family violence involving the child or a member of the child's family;
This issue, too, is a major one in this case.
I have set out some of the evidence about family violence earlier in these Reasons when discussing the primary task of the Court being the need to keep X safe.
As then stated, much of the evidence from Ms Carver about offensive and harassing text messages sent to her by Mr Sansford is supported by copies of those text messages which were annexed to her affidavit material.
That fact was used to great effect in her counsel’s cross-examination of Mr Sansford, who was forced to admit, time after time, that he had sent those messages.
Of course, he did not see those messages as being examples of family violence as he said many were sent as a “joke”, although they were not read as such by Ms Carver, nor I must say, by me.
The majority of the text messages accepted as his own by Mr Sansford at trial certainly fall under the definition of family violence set out in s.4AB of the Act.
However, the issue is less clear in circumstances where there is no corroborative evidence and the evidence of the parties is in direct conflict.
Ms Carver’s evidence is that Mr Sansford subjected her to coercive and controlling behaviour throughout their short relationship, and that he took advantage of her vulnerability in asking her to stay at his mother’s house.
She deposes, in her Trial Affidavit affirmed and filed on 1 May 2019, that he had sent her “countless text messages… reiterating his offer of accommodation” after they met, that he bought her cigarettes and alcohol, and gave her some of his narcotic painkiller tablets to “lure (her) into his home”.
She says that it was he who instigated their sexual relationship and that he used that relationship to control her daily life.
Ms Carver alleges that he took advantage of her vulnerability, and that while she understood that the relationship would probably become sexual when she accepted his offer of accommodation, Mr Sansford had turned the sexual aspect of the relationship into a weapon by insisting on her performing sexual acts as a prerequisite to him providing favours for her.
Some further examples of the behaviour to which she was allegedly subjected include:
·    Threatening “to leave me and the vehicle that I owned at a hotel in Suburb Q (roughly 100 kilometres from our home in Town H) in the middle of the night after I refused to have sex with him. As I did not have my driver’s licence at that time I had no way of getting myself and the car home without Mr Sansford’s help”.
·    Threatening “to leave me at the home of a mutual male friend to ‘let him rape me’ as Mr Sansford had formed the opinion that I had flirted with that person”.
·    Taking photographs of her while she was undressed without her knowledge or consent.
·    Pretending that he was about to rape her and saying that he was merely “teaching me to defend myself against men”.
It is her evidence that her abusive relationship with Mr Sansford has contributed significantly to her psychological vulnerabilities, although given her history, she concedes that she was already at some risk when they met.
Her abhorrence and fear of Mr Sansford as a result of his coercing and controlling behaviour is a major reason for Ms Carver’s wish to relocate away from the Region D area as she says that the area holds too many negative memories for her.
At trial, Ms Carver underwent cross-examination by counsel for the father and counsel for the Independent Children’s Lawyer.
Counsel for the father does not appear to have asked her any questions at all about her allegations of family violence, other than some quick questions about the text messages sent to her by the father, to which she replied that both the content and the process of sending the messages had been abusive as far as she had been concerned.
Counsel for the Independent Children’s Lawyer, too, asked no questions of Ms Carver about the alleged family violence perpetrated upon her by her father.
Mr Sansford says that it was Ms Carver who instigated the sexual relationship, and he implies in his affidavit material that he was almost a passive participant. I am unconvinced by that evidence.
At trial, he conceded that he had known that Ms Carver was considerably younger than he was, although it was his evidence that he thought she was 19 rather than 17 when the parties met in 2014.
What he did not know at that time was the detail of her personal, emotional and psychiatric history, which included the loss of her family home in the 2009 bushfires and the death of her father only six week later. He was also unaware when the parties met that Ms Carver had spent a few days in the psychiatric ward of the local hospital only months earlier, after she had expressed suicidal ideation.
Mr Sansford denies Ms Carver’s evidence, saying that she was a willing participant in their sexual relationship and that he had behaved generously towards her during the relationship.
Under cross-examination by counsel for the mother at trial, Mr Sansford admitted that he had been charged after an incident between him and his former partner, Ms R, who is the mother of B and C.
He had been charged with assault by kicking, assault with an instrument, unlawful assault, intentionally destroying property, and recklessly causing injury, but the first three charges had been withdrawn when he pleaded guilty to the last two.
Mr Sansford’s description of that incident sought to place the blame entirely on his former partner, and he seemed to think that there had been nothing untoward about throwing a chair at her and breaking her mobile phone, albeit that he claimed that he had done so when she “tried to stab me as I was walking out the door with my son”.
I found his attitude to the whole issue of family violence to be most unsatisfactory, despite the fact that he had completed a court-ordered Men’s Behavioural Change Program as a result of that incident, and could tell me, when asked, about what he had learned from that program. He simply did not appear to understand that his actions towards Ms R constituted family violence, and I did not gain the impression that he was willing to see his own behaviour in that light.
When I look at the whole of the family violence evidence, and especially when I note that Mr Sansford did not initially accept the evidence of the text messages as having been abusive, I find it more likely than not that Ms Carver’s allegations of abuse, and of controlling and coercive behaviour are correct, and that therefore she was subjected to acts of family violence throughout the relationship.
I certainly accept that Ms Carver genuinely believes herself to be a survivor of family violence as a result of her relationship with Mr Sansford, and that that experience has had a profound effect on her life.
(a)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
The only family violence order made between these parties is that obtained by Ms Carver as a result of her concerns about X allegedly telling her that his father had told him he would kill him in February 2019.
An Interim Intervention Order was made against Mr Sansford on an ex parte basis on 15 February 2019, and I note that only Ms Carver, and not X, is stated as an Affected Family Member.
A twelve-month Final Intervention Order was apparently made in August 2019, but I can find no copy of it in any of the parties’ affidavit material, nor is it in the Trial exhibits.
The Court does not, therefore, have any information as to its conditions or the circumstances under which that order was made, and no evidence of any breaches of that order was led at trial.
(a)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
It was Ms K’s view that this matter ought not to conclude with this hearing, as X will not have had enough time to consolidate his relationship with his father if the Court allows Ms Carver to relocate to Adelaide now.
However, it was also Ms K’s evidence that X would be able to cope with that change and retain his relationship with his father after another couple of years, provided that the time between them was consistent and frequent during those years.
This matter has been in the Court system for two years and the parents and X deserve some certainty so that the parents can plan their futures.
Therefore these Orders, which provide some choice to the mother, are intended to be the final orders made in these proceedings between the parties.
(a)any other fact or circumstance that the court thinks is relevant.
There is no other fact or circumstance that the court thinks is relevant to the decisions to be made in these proceedings.

Decision: Issue A

These parties do not get on. They do not communicate well, and that is not likely to change in the near future.
Nevertheless, it is a very serious matter to completely exclude a parent entirely from the major decisions about a child’s life, and that is especially significant in circumstances where the mother has prevented X from seeing his father for two significant periods of his short life.
Nothing the mother said at trial about her support for the relationship between X and the father gave the Court confidence that the mother actually supports that relationship as a visceral belief, and I gained the impression that Ms Carver was only agreeing to more time and overnight time because she perhaps thought that would assist her application to relocate to Adelaide.
I have no confidence that without an order for equal shared parental responsibility, Mr Sansford would be more than a “weekend and holiday Dad” for X, and on the basis of all the evidence before the Court, I find that it is in X’s best interests for me to make an order to that effect.
However, noting the history of the matter, and especially my finding of family violence, I will make an order that all communication between the parents happens via a parenting application such as 2Houses or My Family Wizard so that they do not need to communicate directly other than in emergencies.

Decision: Issue B

The mother wishes to move with X to Adelaide. She says that she and her mother visited there in 2016 and decided to move there together with X.
It is her evidence that the maternal grandmother sold her property in Region D in order to facilitate the move, but later changed her mind and bought property in another area of the same region.
The mother provides no real evidence of any practical planning or even researched knowledge about how or where she would live in Adelaide, save that she has been accepted as a student for a course of study at University.
She says she needs to leave Region D because that region holds terrible memories for her, including, but not at all limited to memories of the abusive relationship she had with Mr Sansford. I accept that evidence.
The expert evidence is that X’s relationship with his father would suffer irreparable damage if X were to move to Adelaide at this time in his life.
However, Ms K did say that if X were to continue to have the opportunity to develop his current warm and loving relationship with his father for the next couple of years, he might well cope with a subsequent separation from him, as he will be older, and able to both hold his memory of his father and to have the capacity to engage with him by electronic means.
I am conscious that Ms Carver, despite impressing the Court as lacking in maturity and insight, has the right of freedom of movement, and at one level, ought to be able to live where she pleases, as long as X’s relationship with his father is able to continue.
It is pertinent to say at this stage that while there is much talk about “relocation cases” in the family law arena, it is well settled law in Australia that cases involving applications to relocate a child’s place of residence are not to be decided on any different principles than any other parenting case. In particular, it is not the case that the question of relocation is to be decided before any other parenting orders can be made. See Taylor v Barker [2007] FamCA 1246, per Bryant CJ and Finn J at [53]; Cowley v Mendoza [2010] FamCA 597, per Murphy J; Heath & Hemming (No.2) [2011] FamCA 749 per Kent J at [101].
In other words, such cases are to be treated as parenting cases which have a relocation component to them.
Ms Carver is X’s undisputed primary carer and she has decided, for whatever reasons, that she wishes to live in Adelaide.
Therefore, when I consider all the evidence, and the relevant statutory and legal principles, I find that it is in X’s best interests for him to remain in the Region D region until the end of 2021, when I will allow Ms Carver to relocate with him to Adelaide if she still wishes to do so.
That will give him and his father two years from the completion of the trial to consolidate and solidify their relationship, so that if X moves, he will have the ability to hold that relationship in his memory and have it continue to develop.
That time period will also give Ms Carver time to properly plan the move so that Mr Sansford can have some confidence about where X lives and goes to school if he relocates.
I will make orders that the move, if any, takes place in the month or so before X begins school, as that will be less disruptive than if the move occurs during the school year.

Decision: Issue C

As already noted, the parties signed interim consent orders on 15 November 2019.
Those Orders provided for X to live with his mother and spend an increasing regime of time with his father, including overnight time.
They also provided for special occasions, some well into the future, as well as ancillary orders providing for both parents to be involved with X’s school, and some injunctions to protect X from any remaining acrimony between his parents.
Those orders did not, of course, provide for X to spend time with his father if he and his mother were to move to Adelaide, so I will need to craft orders that follow the spirit of the interim consent orders while allowing for the distance between the parties should the mother relocate.
Based on Ms K’s evidence about what X might be able to manage, I have decided that, if X lives in Adelaide, he should spend at least one weekend per term, and most of the school term holidays with his father, with the long summer holidays being shared.
It was Ms Carver’s evidence at trial that she could ensure that X sees his father on one weekend per term, although her proposal, even at the end of the trial, was for all school term time between X and Mr Sansford to take place in Adelaide.
As X grows, he will be able to take fuller advantage of electronic communications to keep in touch with his father, but for the foreseeable future, given the mother’s obvious reluctance, I will make an order for him to communicate with Mr Sansford twice per week by such means while he is in his mother’s care. That situation will reverse when he is in his father’s care.

Conclusion

Both these parents are vulnerable people: the mother because of her personal history and personality traits, and the father because of his PTSD and physical injuries resulting from his car accident.
That makes the co-parenting relationship difficult enough, and the history of family violence between the parents does not assist them to parent in a co-operative manner.
Nevertheless, X’s right is to be cared for and kept safe in both parents’ care, and I have attempted to craft Orders that will ensure that he retains that right into adulthood.

I certify that the preceding two-hundred and thirty-four (234) paragraphs are a true copy of the reasons for judgment of Judge Small

Date: 20 April 2020

[2020] FCCA 863

20 April 2020

Key Legal Topics

Areas of Law

Family Law

Statutory Interpretation

Legal Concepts

Injunction

Jurisdiction

Procedural Fairness