Casely & Casely
[2021] FCCA 2009
•26 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Casely & Casely [2021] FCCA 2009
File number(s): PAC 2682 of 2019 Judgment of: JUDGE NEWBRUN Date of judgment: 26 August 2021 Catchwords: FAMILY LAW – interim parenting – Mother seeking order to relocate children’s residence interstate – proposed order not made – best interests of children Legislation: Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC, 61DA, 65DAA Cases cited: Goode & Goode (2006) FLC 93-286
Marvel & Marvel (No 2) [2010] FamCAFC 101
Eaby & Speelman [2015] FamCAFC 104
Salah & Salah [2016] FamCAFC 100
Cimorelli & Wenlack [2020] FamCAFC 58
Banks & Banks [2015] FamCAFC 36Saif & Saif [2020] FamCA 119
Number of paragraphs: 104 Date of last submission/s: 6 August 2021 Date of hearing: 6 August 2021 Place: Parramatta Solicitor for the Applicant: Mr Wong The Respondent appeared in person Solicitor for the Independent Children's Lawyer: Ms Cole ORDERS
PAC 2682 of 2019 BETWEEN: MS CASELY
Applicant
AND: MR CASELY
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
26 AUGUST 2021
PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.That the Mother’s Application in a Case filed 3 June 2021 be dismissed.
2.Suspend Orders 4, 5, 6, 7, 8, 9, 10, and 12, of the Court’s interim parenting Orders of 24 May 2021, pending the resumption of supervisory changeover services by the B Contact Service.
3.Changeovers will be at the Suburb C McDonald’s and will be effected by the Mother delivering the children to the Father’s nominee at the beginning of the time, and collecting the children from the Father’s nominee at the end of time.
4.Fourteen days prior to the call over date the parties are to file and serve:
(a)Any Amended Application;
(b)Any Amended Response;
(c)Any Amended Financial Statement;
(d)A single, consolidated trial Affidavit relevant to their case; and
(e)Any Affidavits by supporting witnesses upon which they rely.
5.No party shall be entitled to rely on any Affidavit material not filed and served in accordance with these directions without leave of the Court first had and obtained.
6.Twenty-one days prior to the Final Hearing the parties are to notify the Family Report or Child Dispute Conference Memorandum writer (“writer”) of the dates for Final Hearing and advise them that they are required for the purposes of cross examination.
7.In the event that no such notice is given to the writer or the writer is not available, the Family Report or Memorandum will be admitted into evidence without cross examination, subject to any objection.
8.The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.
9.The matter is listed for call over and possible allocation of a hearing date at 9.30am on 12 November 2021.
10.Seven days prior to the compliance check, each solicitor with the carriage of the matter (or if a party is not legally represented that party himself/herself) is to file and serve an affidavit of compliance setting out the following:
(a)Confirming the matter is ready to take trial dates;
(b)Confirming the trial directions have been complied with;
(c)Confirming that all other directions readying the matter for trial have been complied with;
(d)If there is non-compliance the reasons for the non-compliance;
(e)Why a costs order should not be made against the party who has failed to comply with the Court’s directions; and
(f)Annexing the jointly completed Call-Over sheet.
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 under the pseudonym Casely & Casely is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
CALL OVER SHEET – TO BE COMPLETED JOINTLY
Matter Name:
File Number:
Matter type: Property / Children
Hearing type: Defended / Undefended
Estimate of hearing time (days) Date Application first filed Has the matter been not reached previously? If so, what date/s or is the matter part heard? Number of witnesses Issues for Determination Have the parties attended FDR/Mediation? If so when? Yes / No
When?
Has Counsel been briefed? Yes / No
Who?
Counsel’s available dates?
(Please note that Court dates are limited and it is unlikely that dates can be accommodated).
COMPLIANCE
Have trial directions been STRICTLY complied with?
If no – please answer the following questions.
Yes / No Has all evidence now been filed? Yes / No If No, what is outstanding? REASONS FOR JUDGMENT
JUDGE NEWBRUN:
This interim hearing relates to the children X born in 2016 and Y born in 2018 (“the children”).
The Mother, on an interim basis, seeks Orders, inter alia, that she be permitted to relocate the children from their place of residence in the Region D of Sydney to a location on the Region E, Queensland, that is no more than a 30 km radius from the Region D. As to live with/spend time with arrangements, she seeks Orders, inter alia, that the children live with her, and that the children spend supervised time with the Father, if the Father remains in Sydney, during the first week of each Queensland school holiday period for 7 days, with such time to be supervised by paternal family members.
The Father opposes the Mother’s proposed interim relocation Orders.
On 13 May 2020, the Court made interim parenting Orders, inter alia, that the children live the Mother; that the children spend time with the Father on a graduating basis leading to, after a period of three months, the children spending time with him each Saturday from 9:30 AM to 5PM, and each Thursday from 1 PM to 4:30 PM; on a without admissions basis the Father’s time with the children to be supervised by the paternal grandmother, or if impracticable, an alternative supervisor agreed in writing by the parties and the ICL. The Father was ordered to submit to hair strand drug testing on one occasion, and the Mother was ordered to undergo chain of custody CDT testing for the detection of alcohol use within 48 hours of a written request issued by the ICL, with such tests to occur no more frequently than once in each two months.
On 24 May 2021, Senior Registrar Crawford made interim parenting Orders, inter alia, suspending certain time-with Orders (relating to the children spending time with the Father) from the Court’s Orders of 13 May 2020 and ordered that the children spend unsupervised time with the Father at specific times provided that he remains living with the paternal grandmother. It was ordered that the children’s time with the Father occur on a graduated basis and that after three months they spend time with him each Saturday from 9:30 AM to 4 PM. Changeover was ordered to be facilitated by a Contact Service. The Father was ordered to remain engaged with his GP and treating psychiatrist and follow and comply with their directions. It was ordered that the balance of the Orders of the Court of 13 May 2020 remain in force including drug and alcohol testing in restraints, and the Mother complying with the reasonable recommendations and directions of her treating medical practitioners.
The Mother relied upon her:
(a)Application in a Case filed 3 June 2021;
(b)Notice of Risk filed 13 June 2019;
(c)Affidavit filed 30 July 2021;
(d)Affidavit of Ms F filed 30 July 2021;
(e)Affidavit of her sister Ms G filed 30 July 2021;
(f)Case Outline dated 6 August 2021;
(g)Tender bundle;
(h)Family Report dated 11 January 2021.
The Father relies upon his:
(a)Affidavit filed 23 June 2021;
(b)Affidavit of Ms H filed 2 August 2021.
The ICL relied upon her Case Outline filed 5 August 2021 and the following documents, which together became Exhibit B:
(a)Hair follicle test results of Father 10 April 2021;
(b)2 sets of CDT test results for the Mother dated 14 August 2020 and 24 February 2021;
(c)Letters from Suburb J Medical Centre subpoena from Dr K dated 28 February 2020 and from Dr L dated 10 May 2021.
The ICL submitted that it is in the best interests of the children to live with the Mother and spend time with the Father in accordance with the current interim parenting Orders, as amended on 24 May 2021, until the proceedings can be heard on a final basis.
The following documents became Exhibits:
(a)Exhibit A: Family report dated 11 January 2021 and Child Dispute Conference Memorandum dated 17 December 2019;
(b)Exhibit B: the above documents relied upon by the ICL.
AGREED FACTS UNLESS OTHERWISE STATED
The Mother is aged 40 years. The Father is aged 42 years.
The parties separated in 2015.
Between 21 May 2020 and 16 July 2020, the Mother alleges the Father missed 4 out of 17 visits. She alleges that between 16 July 2020 and 23 January 2021, the Father would have attended about half of the changeovers. The Mother alleges that the children did not spend any time with the Father from 23 January 2021 through to 19 July 2021.
The Mother refers to the second interim parenting hearing held on 24 May 2021. She alleges that the first changeover at the B Contact Centre was scheduled for 12 June 2021. She alleges that after the second schedule contact was postponed the Contact Centre closed due to the Sydney outbreak (of Covid).
The Mother alleges that she facilitated Skype contact on two occasions. She alleges that when the lockdown lengthened, she decided that she could not continue with the Skype contact because she felt uncomfortable with the video calls.
The Mother alleges that her contract with Employer M expired on 30 June 2021. She alleges she is currently unemployed. She alleges that she is a student. She alleges that she has received a TAFE scholarship and “this week” she commenced study for a Diploma through open learning.
The Mother alleges that she applied for several positions after being advised that her contract with Employer M would not be extended. She alleges she was not successful in securing an interview and it seemed to her that there “are few employment opportunities in Sydney for me right now.”
The Mother alleges that her lease in relation to a property in the Region D expires in August 2021 and she has no income to pay for her rent.
The Father alleged to the family report writer that he was now a tradesman.
The family report writer refers to the parties having separated in 2018.
RELEVANT LEGAL PRINCIPLES
The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode (2006) FLC 93-286.
In Marvel & Marvel (No 2) [2010] FamCAFC 101 the Full Court of the Family Court of Australia (Faulks DCJ, Boland and Stevenson JJ), discussed the problems associated with making findings on disputed evidence as follows:
[120] As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
…
[122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123] Later, at [100] their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
Of this, the Full Court in Eaby & Speelman [2015] FamCAFC 104 said at [19]:
As would be immediately apparent, this approach enables the Courtto appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.
In Salah & Salah [2016] FamCAFC 100, the Full Court said:
[37] It is very common in interim parenting proceedings to see factual disputes which cannot be determined without the evidence being tested in the context of a trial. His Honour recognised this and indeed at [14] referred to “the usual pathway as highlighted in Goode & Goode (2006) FLC 93-286”. A paragraph relevant to this appeal in the Goode decision is as follows (at 80,901):
[68]… the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
The Full Court in Cimorelli & Wenlack [2020] FamCAFC 58 said:
[80] In interim hearings, where the evidence remains untested, disputed facts cannot be the subject of definitive findings, but simply because material facts have been put in issue does not mean the contested evidence must or should be ignored, since such evidence may have a significant bearing upon the determination of orders which promote the children’s best interests ([Salah] at [35]-[45]; Eaby & Speelman (2015) FLC 93-654 at [18]-[19]). Despite the limitations which constrain findings at interim hearings, aside from those “couched with great circumspection”, certain provisions within Part VII of the Act direct judges to consider risks which are pertinent to the welfare of children and their carers (for example: ss 60B(1)(b), 60CC(2)(b), 60CC(3)(j), 60CC(3)(k) and 60CG). It would constitute an error of law to ignore the statutory mandate and, correctly, the primary judge did not ignore it.
[81] Naturally, the concept of risk encompasses the possibility of harm, not just the probability of harm (M v M (1988) 166 CLR 69). The primary judge was conscious of the need to evaluate the available evidence to determine whether or not it capably vindicated the submissions made by both the Father and the ICL that the Mother poses a tangible risk of psychological harm to the children. Her Honour’s finding that the evidence did do so was appropriately circumspect and does not foreclose the issue being revisited at final trial, when the evidence will be properly tested. Her Honour was obliged to resolve the issue at an interlocutory stage, albeit provisionally rather than definitively, because it underpinned the parties’ contest over the children’s residence.
The Court also refers to the decision of the Full Court of the Family Court of Australia in Banks & Banks [2015] FamCAFC 36, especially at paragraphs 46 to 52.
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting Orders.
In deciding whether to make a particular parenting Order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3), and in this regard the Court refers to Banks & Banks above.
As to relevant legal principles relating to interim relocation applications, the Court respectfully refers to Foster J’s discussion of relevant legal principle in Saif & Saif [2020] FamCA 119 at paragraphs 78-79 as follows:
[78] Relocation is but one aspect of parenting. It falls to be determined in the best interests of the children.
[79] Recently in Franklyn & Franklyn [2019] FamCAFC 256 the Full Court took the opportunity to review the applicable principles in the context of the subject interim relocation appeal. The Full Court said at [27] – [28]:
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.
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] FamCA 1365; (2007) FLC 93-350; Zanda & Zanda [2014] FamCAFC 173; (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).
The best interests of the children
Section 60CC considerations
(2)(a) (the benefit to the child of having a meaningful relationship with both of the child’s parents:a primary consideration)
In Saif & Saif [2020] FamCA 119, above, Foster J stated:
[95] The reality is, in the context of this interim hearing, that the Court is obliged to have regard to the maintenance and promotion of the children’s relationships with both parents. A relationship may be less than optimal but nonetheless meaningful: (Godfrey & Sanders [2007] FamCA 102 at [33]-[36]; Sigley & Evor (2011) 44 Fam LR 439 at [182]).
[96] In Mazorski v Albright [2007] FamCA 520, Brown J considered ordinary definitions of the term “meaningful” and observed:
[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.
[97] In McCall & Clark [2009] FamCAFC 92 at [121] the Full Court accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
At the outset, the Court should state that in relation to the determination of this interim relocation issue, the Court has taken into account the evidence and recommendations of the family report writer, and the evidence of the family consultant at the Child Dispute Conference held on 16 December 2019, whilst acknowledging that the family report and the Child Dispute Conference Memorandum remains untested. The Court acknowledges that the relocation issue was not dealt with in detail by the family report writer or the family consultant, whilst the Court observes that the family report writer had recommended that the children be restricted from living further than a one hour drive from the Father’s current address.
The children spent time with the Father after and pursuant to the Court’s Orders of 13 May 2020, with the Father, according to the Mother, allegedly missing at least several of those ordered visits up to about mid July 2020. Thereafter and up to 23 January 2021, it is alleged by the Mother that the Father spent time with the children for about half of the ordered visits. The Father, for his part, alleges that there were occasions when the Mother did not turn up at changeover and he missed visits with the children without notification.
The family report writer observed that when arranging report interviews (interviews took place in late October 2020, mid December 2020, as well as telephone interviews in early January 2021) both parents advised that the Father had not been spending time with the children with each party blaming the other, saying that the other had not attended changeover. Later, in the family report, the family report writer stated that the Mother had told her that since engaging in the family report process, the Father had re-engaged with the children. She had told the family report writer that the parties are both being flexible, that the Father now tells her if he cannot attend and she has arranged make up time. She had stated that the Father attended X’s Christmas concert. She had stated that she had offered for the children to spend extra time with the Father on Christmas Day.
The children have not spent time with the Father since 23 January 2021.
At the mention of these proceedings on 16 February 2021, the Father informed the Court that supervised time with the children had not occurred following January 2021 because the paternal grandmother was no longer able to supervise his time with them (see page 1 of Mother’s Case Outline). He alleges, in his Affidavit filed 23 June 2021, that he has applied to have the paternal grandmother removed as supervisor of his time with the children due to inconsistency in her availability; he alleged that the paternal grandmother was required to attend to the paternal grandfather’s medical care and that the paternal grandmother herself had her own health issues.
There is a significant suggestion, on the material before the Court, that following the Court’s interim Orders of 24 May 2021, which Orders included an Order that changeover occur through the B Contact Centre (or another Contact Service agreed between the parties and ICL in writing), the aforesaid Contact Centre became unable to provide supervisory changeover services due to Covid, resulting in the children being practically unable to spend time with the Father pursuant to the Court’s interim orders of 24 May 2021.
The children have a meaningful relationship with the Mother and will benefit from a continuance of that relationship. There is a significant suggestion on the material before the Court that the Mother has been the children’s primary carer from birth to date.
On the material before the Court, there is a not insignificant suggestion that pre-separation the children enjoyed a meaningful relationship with the Father but that this relationship has dissipated to some extent since that time. As stated by the family report writer, the many disruptions to the time that the children have spent with the Father will have impacted their attachments to him. In this context, the family report writer had stated that this means that, although the children may enjoy the Father’s company now, they have not experienced enough time with him, and experienced him providing them nurturance to have developed a strong, secure relationship. The family report writer had stated that during the initial contact with each parent there were counter allegations about the other not attending changeover, and that has disrupted the attachment process with the Father.
The family report writer had noted that the Mother had stated that she would consider an equal time arrangement by the time the youngest child Y starts school. The family report writer had stated that it was impossible to determine what sort of parenting arrangement would suit the children by that time. She had stated in this context that at best, an arrangement that would assist the children to develop secure attachments with both parents by that time (when Y is five years old) is all that can be reasonably expected. She stated that if the children do consistently spend increasing time with the Father and his care is warm and nurturing and the parenting relationship improves, equal time might be considered then.
The Mother had stated to the family report writer that both children love the Father. At the family report interviews, when the children were observed with the Father and the paternal grandmother, the children, inter alia, both sought to sit on the Father’s lap. The family report writer stated that the youngest child appeared to enjoy the attention he had from both parents and appeared comfortable in their care. The interaction between the children and the Father appeared to be generally positive.
The family report writer had stated that it was important for the children that the Father has an opportunity to participate in the decisions that affect them (this is in the context of the family report writer discussing parental responsibility) albeit recommending that the Mother have sole parental responsibility for the children. Ultimately, the family report writer recommended that the children live with the Mother and spend time with the Father:
(a)every second weekend from after childcare on Friday to 4 PM Saturday and from after childcare every Tuesday until Wednesday morning, no later than 10AM;
(b)after Y turns three (which is in 2021) every second weekend from after childcare on Friday to 4 PM Sunday and from after childcare every Tuesday until Wednesday morning, no later than 10 AM;
(c)after Y turns four, the children spend time with the Father every second weekend from after childcare on Friday to before childcare on Monday and from after childcare on one day until no later than 10 AM;
(d)after Y turns five years, the parties seek the support of an agency such as N Counsellors to explore the possibility of equal time, or continue with this arrangement.
The family report writer stated that it was recommended that once the eldest child X starts school, both children spend one week in the end of term one, two and three school holidays with the Father and two one-week periods in the Christmas school holidays until Y is in Year 1, and then alternative weeks until Y is in Year 3 and then half of the Christmas school holidays.
The family report writer recommended that the Orders state that the Father can access information from the children’s schools, doctors and extracurricular activities and that he can attend events that the children participate in.
Again, the family report writer had recommended that the children be restricted from living further than a one hour drive from the Father’s current address.
The Court takes into account the evidence and recommendations of the family report writer. It is apparent that if the Mother is permitted to relocate with the children to the Region D, the family report writer’s recommended time between the children and the Father will become impractical to facilitate. Should the children only spend time with the Father on the quite limited basis proposed by the Mother if she is permitted to relocate the children’s residence to the Region D, there is a significant prospect that the re-establishment of the children’s meaningful relationship with the Father in a timely fashion will be detrimentally affected.
In the context of the children potentially re-establishing their former meaningful relationship with the Father, the Court takes into account the particularly young ages of the children and the submissions of the ICL in this context.
The Mother alleges that should she be permitted to relocate the children to the Region D, the Father’s time with the children will not decrease taking into account, in particular, that the children are not currently having contact with the Father and have not seen him in person since 23 January 2021. However, the parties have agreed at this interim hearing to now conduct changeovers at McDonald’s Suburb C, with a view to addressing the present non-facilitation by the Contact Centre of supervisory changeovers services (whether or not relocation is permitted by the Court). Accordingly, the Court would assess that there is a significant prospect that the children’s time with the Father in Sydney can now practically resume and be facilitated pursuant to the Court’s Orders of 24 May 2021.
On the material before the Court, at this interim stage, the Court would assess that the children would benefit from the re-establishment of their former meaningful relationship with the Father provided it is safe for them to do so. The Court’s interim Orders of 24 May 2021 provided safeguards for the children to spend time with the Father, including the Father living with the paternal grandmother.
The Court gives significant weight to this meaningful relationship primary consideration and regards it as particularly important at this interim hearing, and which consideration tends not to support relocation.
(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.
The Court refers to the Mother’s allegations of family violence perpetrated against her by the Father during the relationship as recounted, inter alia, by the Mother to the family report writer. The Father alleges that the Mother’s allegations of physical family violence are not a true representation of their relationship. He alleges that during the parties’ marriage there were occasions of verbal arguments, although there was never any domestic or family violence. He makes his own allegations against the Mother of alleged emotional abuse towards him by her. He is critical of the Mother for what he perceives to be the Mother’s unreasonable unwillingness to consistently facilitate time between the children and himself.
The Mother had told the family consultant at the Child Dispute Conference on 16 December 2019 that she had been diagnosed with generalised anxiety disorder and was consulting a psychiatrist for medication. She had stated that she now consults a psychologist but stated that she is now managing well because there was no family violence.
The Mother told the family report writer that she does not have any concerns about the children’s safety when with the Father when he is living with the paternal grandmother; the Court observes that the Court’s interim parenting orders of 24 May 2021 provide, inter alia, that the children spend unsupervised time with the Father at certain times, on a graduating basis, provided that the Father remained living with the paternal grandmother. The family report writer observed that the Father lives with the paternal grandmother in Suburb O, and the Father confirmed this position with his Affidavit allegation that he resides with the paternal grandmother to assist her in her medical care. The Mother told the family report writer that the Father treats the paternal grandmother well.
The family report writer had stated that the Mother had indicated to her that her relationship with the Father had been less problematic since they began direct contact.
The family report writer refers to the parties’ long history of police involvement in relation to conflict between them. She refers to the police being concerned that verbal arguments between the parties would escalate and their application for an AVO for the Mother’s protection. In this context, the family report writer states that this may also have been a protective factor for the Father in terms of prevention. The family report writer stated that the AVO has prevented the Father knowing where the Mother lives, and this has meant that arguments are not occurring in or near the children’s home. She observes that there have not been any reports of abuse occurring during handovers, however both parents reported that there had been aggressive or abusive emails between after changeovers. She refers to the conflict remaining at a high level and the continuing concerns of each party about each other’s alcohol use.
The Mother alleges that being physically far away from the Father on the Region D would most likely minimise any future incidents of domestic violence and aggression, and as such would also likely minimise the children’s exposure to this. The Court has not overlooked the Mother’s psychologist’s assertion of 22 July 2021 supporting the Mother’s proposed move to Queensland in this context.
In the Mother’s Affidavit filed 30 July 2021, she alleges, with some particularity, a history of alleged family violence perpetrated against her by the Father. She alleges that most recently she has been on the receiving end of numerous emails from the Father full of animosity and insults. She alleges that as a result, she has found communicating with the Father to be very difficult. Again, the family report is dated 11 January 2021 and refers to family report interviews having occurred in late October 2020, mid December 2020, and telephone interviews in early January 2021. It refers to subpoenaed documents from about mid October 2020, including subpoenaed documents from the NSW Police. Annexed to the Mother’s aforesaid Affidavit are email messages between the parties, involving some disputation, on Christmas Day 2020, early and late January 2021, and in some of these messages the Father is, inter alia, quite critical of the Mother. The Mother, in a lengthy email message to the ICL on 24 January 2021, alleges, inter alia, the Father’s animosity towards her has increased in email communications, and in this lengthy email she refers to her intention to apply for a relocation order for the children. It is trite to observe that whether or not the Mother is permitted to relocate the children’s residence to the Region D, the parties would retain an ability, practically, to conduct email communications with each other (see the Court’s Order 19 of its Orders dated 24 May 2021).
The Court observes that since the release of the family report, the family report being dated 11 January 2021, the Mother does not specifically allege physical face-to-face violence perpetrated against her by the Father, apart from one alleged instance where the Mother was yelled at by the Father from outside her car at a Saturday changeover shortly prior to 24 January 2021. The Father, for his part, disputes that he has made any offensive comments towards the Mother during changeover. The Court takes into account that the Father’s partner Ms H, who alleges she has been in a relationship with the Father for 13 months, has never witnessed any aggressive behaviour or drug use by the Father as alleged by the Mother. Nevertheless, the Court is prepared to accept that the Mother may possibly feel less anxious in relation to the Father by geographically living further away from him with the children.
The Father alleges that the Mother has a significant alcohol consumption problem. He alleged to the family report writer that the Mother does not need a lot of alcohol to become drunk.
The family consultant at the Child Dispute Conference on 16 December 2019 had noted that the Mother had acknowledged that one night, when the child Y was around two weeks old, she had drank way too much and that this was allegedly a wake-up call for the Mother, and that she started seeing a counsellor, and reinstituted medication for anxiety. The family consultant noted that the Mother had said that she had only drank too much on one occasion. The Mother denied to the family consultant ever having a problem with alcohol, but had stated that she believes that her problem had been anxiety and stress.
The family report writer noted that the Mother had acknowledged to her that she had a drinking problem. The Mother alleged to the family report writer that she does continue to drink a couple of glasses of wine but only if she has a babysitter for the children and that she has allegedly turned her life around now. The Mother had told the family report writer that she had been caught driving under the influence of alcohol; the family report writer had referred to this incident occurring in late April 2019. The family report writer had referred to police records indicating that in late September 2019 the police had attended the Mother’s home and found the Mother barely conscious due to alcohol consumption. The family report writer had stated that the Mother blames the Father for her alcohol abuse.
The family report writer stated that significant risk has been identified in relation to the Mother’s alcohol abuse. The Court refers to the family report writer’s discussion of the Mother’s alcohol use, in particular from paragraphs 102 to 105 inclusive. The family report writer had stated that the Mother, during the report process, continued to tend to blame the Father for her use of alcohol and minimised her alcohol abuse. The family report writer stated that it was of concern that the Mother had stated that she continues to consume alcohol.
The Mother caused her friend and neighbour Ms F to swear an Affidavit. Ms F alleges, inter alia, that she has known the Mother for about 12 months and that she has never seen the Mother with an alcoholic beverage, nor has she ever observed the Mother to be under the influence of alcohol. Whilst these allegations are taken into account by the Court, Ms F’s alleged observations of the Mother do not encompass the time that the Mother spends, for example, in her own home and away from Ms F.
The family report writer had discussed the Father’s alleged use of drugs and alcohol, and the Court refers to those discussions. The Court takes into account the Father’s partner Ms H’s allegations that she had not observed drug use of the Father as per the allegations of the Mother. The Court takes into account the Father’s allegations that he has passed three hair follicle drug tests that he has been required to take; in this context the ICL asserts that the Father recently provided a sample for hair follicle testing which test results dated 10 April 2021 returned a negative for the drug is tested.
The family report writer had stated it was unclear whether either parent currently uses drugs or consumes alcohol to the point where the children would be at risk in their care. She stated, inter alia, that historically the parties have monitored each other’s drug and alcohol use, and that if the children do continue to spend time with each parent, this could be a protective factor; the Court takes this view of the family report writer into account at this interim hearing.
Despite the Mother’s allegations as to her rehabilitation in relation to alcohol usage and her negative CDT testing through Court Orders (and in this regard the ICL asserts that she made two requests for CDT testing from the Mother on 11 August 2020 and 22 February 2021 with the Mother providing the ICL with photographs of results she described as “normal” and as not supporting recent or ongoing excessive alcohol use) and the allegations of Ms F, the Court remains concerned in relation to the history of the Mother’s alcohol use, and the Court again takes into account the discussions and concerns of the family report writer in this regard.
The family report writer discussed each parties’ mental health. She referred to both parties experiencing anxiety and depression.
The Mother had told the family report writer that she was diagnosed with generalised anxiety in her early 20s. She stated that she resumed taking medication after an incident in September 2019 when police were called to her home after she had consumed alcohol. She alleged that her medication was managed by a psychiatrist who referred her to a psychologist for ongoing therapy. The family report writer had stated that the Mother had self medicated with alcohol which can lead to more significant physical and mental health problems. She stated that it was important for the Mother to continue to consult a cognitive behavioural therapist to continue to help her understand events and thought processes that promote depression and substance misuse and learn ways to modify her thoughts and behaviour. The Court observes that the Mother annexes to her Affidavit the short report from a psychologist referring to the Mother attending counselling since 2 June 2021. It refers to the Mother having some ongoing sessions booked.
The family report writer had referred to the Father’s medical records in relation to his presentation of a Cluster B personality disorder, being characterised by, inter alia, overly emotional or unpredictable thinking or behaviour. She had referred to this behaviour being noted during the report process. However she had stated that during the face-to-face interview the Father was more focused and able to talk about the children, and was polite and mostly cooperative. The Court also takes into account the contents of the letters from Suburb J Medical Centre from Dr K, psychiatrist, dated 28 February 2020 and from Dr L, psychologist, dated 10 May 2021.
This primary consideration, in all the circumstances discussed above, perhaps tends to favour relocation, but not significantly so, and again, as discussed above, the Mother’s more contemporary complaints and allegations against the Father in respect to the Father relate to hostile email communications rather than ongoing significant physical face-to-face violence, and the family report writer thought it was possible that with the Mother remaining living in Sydney with the children, the parties could both monitor each other’s respective illicit drug and/or alcohol usage.
Section 60CC(3) additional considerations
(3)(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
The children are too young to express a relevant view.
(3) (b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
The Court refers to its discussions above under the meaningful relationship primary consideration. The children would appear to have positive relationships with the paternal grandmother, with the Court acknowledging that it would appear that the children have not been able to spend time with her for a considerable period (it would appear that the children only spend time with her when they are spending time with the Father).
The Father’s alleged new partner Ms H alleges that she has a positive relationship with the children.
The children, should the Mother relocate with the children to the Region D, may have less practical ability to spend time with the paternal grandmother compared to their ability to spend time with her if living in Sydney, although the Court notes the ill health of the paternal grandmother.
The Mother and her sister Ms G allege that the children have positive relationships with Ms G. Should the children not relocate to the Region D, there is a significant suggestion on the material before the Court that they could maintain their relationship with Ms G through FaceTime calls.
The Mother alleges that the children have a close relationship with her brother Mr P who lives in Sydney. The Father alleges that a sister of the Mother, Ms Q also lives in Sydney. The Father alleges that both the Mother’s brother, Mr P, and Ms Q have children. The Mother alleges that although her siblings (although apparently not including Ms G) have been helpful, they have their own lives and so the physical support they provide her is minimal as they live far away.
This consideration tends not to support relocation but not significantly so.
(3)(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child
The parties are in dispute at this interim hearing in relation to which party is predominantly to blame for the Father’s lack of regular and consistent time spent with the children post separation.
The Father alleges that this year he has been unable to spend Court ordered time with the children by reason of the unavailability of the paternal grandmother to supervise his time with the children and in more recent times, and since the Court’s Orders of 24 May 2021, the inability of the Contact Centre to supervise changeovers. The Mother alleges, inter alia, that she offered the Father other supervisory options such as a change of supervisor or supervision at a professional contact centre on many occasions.
It would appear that the Mother has been making the major decisions for the children, at least since separation to date.
Subject to the above, both parents would appear to have taken, or sought to have taken, such opportunities.
This consideration is probably neutral as to relocation.
(3)(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
The parents would appear to have maintained the children when the children were in their respective care, however, there is a significant suggestion on the material before the Court that the preponderance of the children’s care, timewise, has been provided by the Mother. The Mother alleges that the Father’s financial support post separation has been unsatisfactory. The Father’s payment of formal child support, according to the Mother, has only recently begun with him paying the minimum of $36 per month in child support.
(3)(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The Court refers to the meaningful relationship primary consideration discussed above, including the contents of the family report; again, should the children be permitted to relocate with the Mother to the Region D, there is a significant prospect that the re-establishment of the children’s meaningful relationship with the Father will be detrimentally affected.
(3)(e) The practical difficulty and expense of a child spending time with and communicating with the 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
Should the children’s residence be relocated to the Region D there is likely to be practical difficulty and expense in the children spending time with the Father, including pursuant to the Court’s interim parenting Orders of 24 May 2021.
(3)(f) The capacity of each of the child’s parents; and 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
Again, the parties are in dispute at this interim hearing in relation to which party is predominantly to blame for the Father’s lack of regular and consistent time spent with the children post separation.
The Court also refers to its discussions above under the need to protect primary consideration in relation to the issue of family violence, and alleged illicit drug and alcohol abuse.
Otherwise, the parties would appear to have such capacities.
(3)(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
The children appear to be progressing and developing well.
(3)(h) If the child is an Aboriginal child or a Torres Strait Islander child: 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 the likely impact any proposed parenting order under this Part will have on that right
Not applicable.
(3)(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
The Court refers to its discussions above under the meaningful relationship and need to protect primary considerations.
Otherwise, the parents appear to have demonstrated appropriate attitudes.
(3)(j) Any family violence involving the child or a member of the child's family.
The Court refers to its discussions above under the need to protect primary consideration.
(3)(k) 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: the nature of the order; the circumstances in which the order was made; any findings made by the Court in, or in proceedings for, the order; any other relevant matter.
An initial AVO had been taken out by police, alleged by the Mother, in March 2018. An AVO was made for the protection of the Mother against the Father and which was in place until June 2021; the Mother had alleged that the AVO had been taken out in reference to a breach of the first AVO. The Father alleged that the AVO was put in place after the parties argued about the sale of their property and that the Mother had the AVO extended. As to this additional consideration, the Court refers to its discussion under the need to protect primary consideration.
(3)(l) 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.
These are interim proceedings.
(3)(m) Any other fact or circumstance that the Court thinks is relevant.
The Mother seeks the Court’s permission, on an interim basis, to relocate the children’s residence to the Region D area, which is opposed by the Father.
The Court now addresses, to the extent that it has not been previously addressed in the Court’s consideration of s 60CC factors, the advantages and disadvantages in respect to the relevant proposals of the parties.
Turning first to the Mother’s proposals.
The Mother alleges numerous advantages to the children in relocation being permitted (again, the Court has already discussed previously in these Reasons aspects of the Mother’s asserted advantages of moving to the Region D), inter alia, as follows:
(a)She alleges that she will have a lot more family involvement and physical and emotional support from her sister Ms G who does not have children of her own.
In relation to this allegation, the Court queries the extent to which Ms G can practically provide such physical assistance to the Mother in circumstances where Ms G alleges herself, at least by inference, that she is quite busy juggling her various business ventures. And the Court also observes, in this context, the Mother’s allegations that to date, the Mother’s care of the children in Sydney has been most satisfactory. Nevertheless, the Court is prepared to accept, based on Ms G’s allegations, that the Mother may well receive some helpful assistance from Ms G in relation to the children.
As to emotional support from the Mother’s sister, this may well be the case and be helpful to the Mother, however the Court does observe that the Mother has been receiving counselling assistance in Sydney, and the Court refers to the family report writer’s discussion in relation to the Mother receiving professional mental health support.
(b)She alleges that she will have much less financial pressure living on the Region D which will make her anxiety more manageable. In this context, the Mother refers, inter alia, to her sister Ms G offering her work income.
In relation to this allegation, as submitted by the ICL, it is unclear, on the material before the Court, as to whether or not the Mother could work for her sister in Sydney, online or remotely, running the sister’s social media accounts. As to the cost of living being less onerous in the Region D, there is little material before the Court on this issue other than the Mother’s allegation.
Further in this context, the Mother alleges that there are few employment opportunities in Sydney for her “right now”, which suggests that the Mother’s employment opportunities in Sydney may positively increase in the not too distant future.
(c)The Mother alleges that her lease expires in August 2021 and she has no income to pay for her rent. In this context she alleges that she will, at least initially, move in with her sister on the Region D. There is material before the Court suggesting the Mother has an investment property in Queensland. In this context, in the Mother’s email to the ICL on 24 January 2021, she alleges that she will be able to own her own family home (in Queensland), which allegation is supported by her sister’s similar allegation. There is no material before the Court relating to the financial circumstances pertaining to the Mother’s investment property in Queensland including any available rental income from this property or otherwise. And again, it is not clear to the Court as to whether or not the Mother could work for her sister online or remotely whilst remaining living in Sydney thus earning income and being able to rent further premises in Sydney.
(d)The Mother alleges that her health has been poor of late and that her GP has informed her that a warmer climate would be the best option to improve her breathing in relation to her asthma. The Court observes there is no health professional material before the Court relating to this issue. And there is no health professional material before the Court relating to the Mother’s allegation that she worries that she will be at increased risk of contracting the Covid virus by reason of her alleged poor respiratory health. The Mother adduces no significant health professional material as to whether or not she remains at risk of physical harm if she was to be vaccinated against Covid by reason of her alleged poor respiratory health.
(e)The Mother alleges that on completion of her diploma she will return to work in the health care sector in the Region D being allegedly the retirement capital of Australia. The Mother adduces no significant expert employment material relating to increased chances of obtaining employment in this sector on the Region D as opposed to Sydney.
Turning to the Father’s position opposing relocation not previously addressed under s 60CC:
(a)The Father alleges that a possible disadvantage to the children in permitting relocation is that with potential Covid restrictions in relation to interstate travel, the Mother’s proposed limited time between the children and the Father if relocation is permitted may not be able to be reliably facilitated. The Court would assess that this is a real possibility, at least in the short term.
(b)The Father alleges that his entire family all reside in Sydney and can offer support (which, by inference, if relocation was permitted, would not be available).
(c)The Father alleges that he is not in a position to follow the Mother and children to Queensland if relocation is permitted giving reasons. His partner Ms H makes allegations in her Affidavit supporting these allegations of the Father.
(d)There is force to the ICL’s submission that there is little evidence before the Court about the logistics and practicality of the Mother’s proposed relocation, including the timing and the cost and availability of flights, particularly in the current Covid pandemic. There is a lack of material before the Court as to how the Mother would meet the cost of travel should relocation be permitted.
On balance, the Court is of the view, evaluating the above considerations under section 60CC of the Act, and other matters discussed above, and having regard to relevant legal principle, that it will not be in the best interests of the children to permit the Mother to relocate their residence to the Region D at this interim stage.
The Court is of the view that it will be in the best interests of the children to remain living with the Mother in Sydney and that they spend time with the Father pursuant to the Court’s Orders of 21 May 2021.
It will be in the best interests of the children that the changeover now occur in accordance with the ICL’s proposed Order 4 in Annexure C to the ICL’s Case Outline; such changeover location will facilitate the children spending time with the Father pursuant to the Court’s Orders of 24 May 2021.
SUMMARY
Evaluating the above discussed considerations under section 60CC of the Act, and other matters discussed above, the Court is of the view at this interim stage that it will be in the best interests of the child to make the following interim parenting Orders:
1.That the Mother’s Application in a Case filed 3 June 2021 be dismissed.
2.Suspend Orders 4, 5, 6, 7, 8, 9, 10, and 12, of the Court’s interim parenting Orders of 24 May 2021, pending the resumption of supervisory changeover services by the B Contact Service.
3.Changeovers will be at the Suburb C McDonald’s and will be effected by the Mother delivering the children to the Father’s nominee at the beginning of the time, and collecting the children from the Father’s nominee at the end of time.
4.Fourteen days prior to the call over date the parties are to file and serve:
(a)Any Amended Application;
(b)Any Amended Response;
(c)Any Amended Financial Statement;
(d)A single, consolidated trial Affidavit relevant to their case; and
(e)Any Affidavits by supporting witnesses upon which they rely.
5.No party shall be entitled to rely on any Affidavit material not filed and served in accordance with these directions without leave of the Court first had and obtained.
6.Twenty-one days prior to the Final Hearing the parties are to notify the Family Report or Child Dispute Conference Memorandum writer (“writer”) of the dates for Final Hearing and advise them that they are required for the purposes of cross examination.
7.In the event that no such notice is given to the writer or the writer is not available, the Family Report or Memorandum will be admitted into evidence without cross examination, subject to any objection.
8.The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.
9.The matter is listed for call over and possible allocation of a hearing date at 9.30am on 12 November 2021.
10.Seven days prior to the compliance check, each solicitor with the carriage of the matter (or if a party is not legally represented that party himself/herself) is to file and serve an affidavit of compliance setting out the following:
(a)Confirming the matter is ready to take trial dates;
(b)Confirming the trial directions have been complied with;
(c)Confirming that all other directions readying the matter for trial have been complied with;
(d)If there is non-compliance the reasons for the non-compliance;
(e)Why a costs order should not be made against the party who has failed to comply with the Court’s directions; and
(f)Annexing the jointly completed Call-Over sheet.
I certify that the preceding one hundred and four (104) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 26 August 2021
0
17
0