Cassells and Leach

FEDERAL CIRCUIT COURT OF AUSTRALIA

CASSELLS & LEACH

[2017] FCCA 2847

Catchwords:
FAMILY LAW – Children’s issues – relocation to an unspecified place – nature of child’s relationship with both parties.

Legislation:

Family Law Act 1975 (as amended), ss.60B, 60CA, 60CC(2) & (3), 61DA & 65DAA

Applicant:

MS CASSELLS

Respondent:

MR LEACH

File Number:

ADC 735 of 2007

Judgment of:

Judge Mead

Hearing dates:

12, 13, 14 October & 17 November 2016

Date of Last Submission:

17 November 2016

Delivered at:

Adelaide

Delivered on:

22 November 2017

REPRESENTATION

Counsel for the Applicant:

In person

Solicitors for the Applicant:

N/A

Counsel for the Respondent:

In person

Solicitors for the Respondent:

N/A

Counsel for the Independent Children's Lawyer:

Ms H. Tinning

Solicitors for the Independent Children's Lawyer:

Legal Services Commission of South Australia

ORDERS

That all parenting orders made with respect to the child X born (omitted) 2006 (“X”) be discharged.
That the mother have sole parental responsibility for the said child.
That the mother be restrained and an injunction is hereby granted restraining her from changing the permanent residential address of X such that it is greater than twenty (20) kilometres from the Adelaide General Post Office.
That X spend time with the father as follows:
(a)From 9:00am to 5:00pm on Saturday each week commencing 25 November 2017, up to and inclusive of Saturday 5 May 2018;
(b)As and from Saturday 12 May 2018 from 9:00am Saturday to 9:00am Sunday each week, up to and inclusive of Saturday 3 November 2018, subject to the terms of paragraph 4(c) hereof;
(c)That the time referred to in paragraph 4(b) be extended to 5:00pm on the Sunday on each alternate Sunday during the July and September/October school holidays in 2018;
(d)Commencing on Saturday 10 November 2018 from 9:00am Saturday to the commencement of school on the following Monday in each alternate week (extended to the commencement of school on the Tuesday in the event of a long-weekend);
(e)That the time referred to in paragraph 4(d) hereof be extended during school holiday periods commencing in December 2018 and each school holiday thereafter as follows:
(i)During the Christmas 2018/19 school holiday period and the April, July and September/October school holiday periods in 2019, to 5:00pm on the following Tuesday;
(ii)During the Christmas 2019/20 school holiday period and the April, July and September/October school holiday periods in 2020, to 5:00pm on the following Thursday; and
(iii)Commencing in the Christmas 2020/21 school holiday period and each school holiday period thereafter, to 9:00am on the following Saturday.
That SAVE AS TO handovers that occur at the commencement of a school day, all handovers be effected by way of the mother delivering X to outside the father’s residence at the commencement of X’s time with the father and by way of the father returning X to outside the mother’s residence at the conclusion of that time.
That both parties enrol in the ‘Kids Are First’ and ‘Circle of Security’ courses within twenty-one (21) days of the date of this order and complete such courses within nine (9) calendar months of the date of the making of this order, and provide to the other of them a copy of the Certificate of Completion of same.
That the mother enrol X into (and the father sign all such documents as may be necessary to enable her to do so) the ‘Banana Splitz Program’ within twenty-one (21) days of the date of this order and ensure that he attend at the same program as soon as a place is available for him in that program.
That in the event that either party proposes to travel interstate with X during the time that he is in their care (NOTING THAT the father is not permitted do so until such time as X commences spending time with him pursuant to this order for the period from Saturday morning to the commencement of school on Monday) they shall provide not less than two (2) weeks’ notice to the other party of their intention to travel, with the notice to include all relevant details such as departure/return dates, times and flight numbers if applicable and contact details during the period of proposed travel.
That both parties do all such things and sign all such documents as shall be necessary from time to time to ensure that X has an Australian passport, with the said passport to be retained by the mother.
That both parties be at liberty to travel overseas with X for a period not in excess of four (4) calendar weeks at times as agreed between the parties or in default of agreement as ordered by this court, with the father to be restrained from undertaking such overseas travel until the commencement of the 2021 school year unless otherwise agreed by the mother.
That the order for the appointment of the Independent Children’s Lawyer made herein be discharged.
That all extant applications be otherwise dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 735 of 2007

MS CASSELLS

Applicant

And

MR LEACH

Respondent

REASONS FOR JUDGMENT

Introduction

On 2 December 2008 final orders were made by consent detailing the parenting arrangements for X born (omitted) 2006. At that time X was not quite three years old.
On 10 November 2009 the mother filed a further initiating application seeking to be able to take X to (country omitted) between 28 November 2009 and 2 March 2010 in circumstances where the father had not consented to that course of action. On the first return date being 13 November 2009 the application was dismissed with the consent of the mother.
On 10 March 2015 the mother filed an application seeking an urgent order to enable her to relocate with X to Canberra. By order of 21 December 2015 the parties competing applications were listed for trial on 12 October 2016. The matter commenced on that day and continued on 14 October 2016. Final submissions were adjourned to 17 November 2016.
X was aged not quite elven years old at the time of trial. The applicant mother Ms Cassells and the respondent father Mr Leach were both unrepresented at trial, but X was represented by an Independent Children’s Lawyer.
On 14 November 2016 the applicant, by solicitors Cruze Legal, filed an application seeking to adjourn the hearing on 17 November 2016, for the trial to resume in or about January 2017 and for the wife to be able to reopen the proceedings. The application was opposed and after hearing argument on 17 November 2016 the application was dismissed.
The applicant mother was represented by counsel for the purposes of the adjournment application on 17 November 2016.
Submissions were then adjourned to 18 November 2016 and judgment was reserved. I apologise to the parties and X for the delay in this judgment.
The first witness in the trial was Family Consultant Ms C. She was cross-examined by counsel for the Independent Children’s Lawyer and by each of the parties with the father’s cross-examination being very limited.
Prior to either of the parties being called the court explained the usual procedure involving each of the parties directly cross-examining the other of them and also being cross-examined by the Independent Children’s Lawyer.
In circumstances where both parties were self-represented and where there is very poor communication between the parties, the court discussed the possibility of each of the parties only being cross-examined by the counsel for the Independent Children’s Lawyer with the trial concluding by way of addresses from each of the parties and counsel for the Independent Children’s Lawyer.
This course of action was approved by both of the parties and counsel for the Independent Children’s Lawyer and accordingly the trial proceeded in that manner.

Background

In the mother’s initiating application filed 10 March 2015 she sought permission to relocate to Canberra with X and “change to current arrangements in order to travel to live interstate and suspension of final orders from 2 December 2008 and parenting plan from November 2009”. The first return date for the application was 18 May 2015.
On 13 May 2015 the applicant mother filed an amended initiating application seeking to discharge all previous final orders with respect to parenting issues, such that X be able to decide what time he would spend with his father.
On 4 June 2015 the respondent father filed a response to the mother’s initiating application together with an affidavit in support.
On an interim basis the father sought a resumption of time with X pursuant to the orders of December 2008, with time thereafter to be spent with X on Thursdays from after school until 8:00pm, on alternate weekends from the conclusion of school Friday to the commencement of school Monday and, upon X commencing secondary education, for X to live with the parties on a week-about basis.
He also sought to spend time with X for half of all of the school holiday periods (week-about over the Christmas period) as well as on special occasions such as Christmas Eve, Christmas Day and Boxing Day, Easter, Father’s Day and on X’s, his and his other children’s birthday’s.
He sought specific orders in relation to handover arrangements, and orders restraining the parties from enrolling X in a religious based primary and/or secondary school and travelling interstate and overseas with X without significant prior notice.
On a final basis he sought the same orders.
The orders of 2 December 2008 provided for the parties to have shared parental responsibility for X and for X to live with the mother. They provided for X to spend time with his father on Wednesdays from 3:00pm to 8:00pm, from 3:00pm Saturday to 9:00pm Sunday in each week and other times as agreed.
They provided for handovers outside the Coles supermarket at (omitted) Shopping Centre, except at 8:00pm on Wednesday’s when handover was to be at the mother’s sisters workplace at (omitted).
The order provided for the father to be at liberty to spend additional time with X on three occasions for two consecutive nights and three days in one calendar year to occur over weekends, with the father to provide the mother twenty one days’ notice in writing of his intention to take that time and providing for the suspension of the child’s time with the father on the following weekend if that occurred.
It was clear from the affidavits filed by the mother on 10 March 2015 and on 13 May 2015 and by the father on 3 June 2015 that significant problems had arisen in terms of X spending time with the father in accordance with the terms of the 2008 order, with the parties having from time to time agreed variations to the order but ultimately those variations seemingly resulting in X spending less and less time with his father.
On the first return date on 18 May 2015, a child inclusive conference was ordered pursuant to section 11F of the Family Law Act 1975 (as amended). The matter was adjourned to 19 June 2015 and a memorandum of the meeting was provided to the court by Family Consultant Mr P.
X, who at that time was nine years and five months old, was described by the family consultant as being generally calm, friendly and confident. He was also described as articulate, thoughtful and organised in his provision of information. He described to Mr P being very distressed about an incident at his school in April 2015 when both of his parents were present and his father telephoned the police who attended at the school.
X told Mr P that he had stopped spending time with his father earlier in the year because of being exposed to frequent arguments between the father and his partner and to the partner’s anger. He also expressed concern about the amount of time and attention given to him by his father when he was in his household.
X described missing his time with his father and enjoying that time when he wasn’t exposed to arguments and lack of attention. He said that if those concerns were addressed he would like to spend time with his father three times a fortnight for up to five hours at a time.
The father was described by Mr P as being concerned about the lack of time that X would spend with him under such an arrangement but was able to focus on the issues raised by X.
The mother was described as being dismayed at X’s expressed views to Mr P as to the time he could spend with his father, and expressed concern as to time with his father impacting on X’s church activities and on his relationship with her.
The parties were still in dispute at the hearing on 19 June 2015. The court ordered:
1.That until further order X born (omitted) 2006:
a)live with his mother;
b)spend time with his father
i.from the conclusion of school to 8:00pm on Thursday of each week with the father to ensure that X completes any homework he has that evening;
ii.from 9:00am to 1:00pm each alternate Saturday commencing 27 June 2015.
2.That until further order handovers that do not occur at school on a Thursday from the classroom or (omitted) occur as follows:
a)at 8:00pm Thursday at (omitted) Church, ((omitted));
b)on Saturdays from the mother’s home at the commencement and conclusion of the time.
3.That the father use his best endeavours to ensure that while X is in his care he receives as much “one-on one” time with his father as possible.
4.Directions and interim issues including the necessity for a Family Assessment Report be adjourned to 28 September 2015 at 9:30am.
5.That on or before 21 September 2015 each party file and serve one affidavit only not to exceed three pages in length as to the progress of X’s time with his father.
At the next hearing on 28 September 2015, a Family Report was ordered. The matter was further adjourned to 21 December 20015 to await the publishing of the Family Report and to consider the appointment of an Independent Children’s Lawyer.
On 23 November 2015 the mother filed a further amended application seeking to be able to relocate to Canberra or such other location in Australia where she could obtain employment. She proposed that if she remained in Adelaide, X spend time with his father in accordance with his wishes or, in the event that she relocated, that he spend time with his father in Adelaide for one week of each of the school holidays.
On the adjourned hearing an Independent Children’s Lawyer was ordered. The order of 19 June 2015 was varied such that X’s time with his father was continued only on the Saturday in circumstances where the Thursday afternoon/evening time was impractical due to the father’s employment. The matter was then otherwise listed for trial on 12 October 2016. On 10 February 2016 orders were made for the preparation of trial affidavits.
Both parties were self-represented at trial, with the mother having the assistance of a (language omitted) interpreter. The Independent Children’s Lawyer Mr Kent of the Legal Services Commission briefed Mrs Tinning of counsel for the trial.
The mother’s trial affidavit was filed on 7 September 2016 and the father’s on 23 September 2016. The mother’s affidavit in response was filed on 30 September 2016.
The issues in dispute at trial from the mother’s point of view were very ably addressed by her in submissions on 18 November 2016. She identified the issues as follows:
a)Parental responsibility;
b)Relocation;
c)Handovers;
d)X’s time with his father; and
e)X travelling overseas.
From the father’s point of view, although his submissions were much more limited he was able to clearly inform the court in final submissions that his main concern was the lack of encouragement on the part of the mother to assist X to continue to experience what he, the father, considered to be the close bond they had shared since X’s birth.
He was of the view that time should be ordered to compensate for time that X had missed with him in addition to the orders sought in his application.
The father was also anxious that X’s relationship and bond with the father’s “new family” be supported and strengthened.

Family Assessment Report

The expert report before the court for the purposes of trial was prepared by Family Consultant Ms C and dated 10 December 2015.
Ms C interviewed both of the parties as well as X. She observed X with each of his parents.
She also interviewed the father’s partner Ms M, and observed X with Ms M and her and the father’s children A aged three and a half years at the time and B aged eighteen months.
Ms C observed X with the mother’s two friends Mr E and Ms H, who accompanied the mother to the appointments. They were interviewed briefly.
Ms C also obtained information from X’s school as to his presentation at school.
Ms C recommended in her report that the mother’s application to relocate not be supported, and that there be orders that X live with the mother and spend time with the father on alternate weekends as well as special days and half of school holidays. She expressed concerns about the parenting capacity of both parents, the conflict between them and recommended that they undertake appropriate parenting courses.

Relevant Legal Principles

Part VII of the Family Law Act 1975 (as amended) provides the legislative framework within which the court determines the parties competing parenting proposals. Section 60B(1) sets out the objects of the Act as regards children’s orders, namely to ensure that the best interests of the children are met by:-
a)ensuring that the children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the child; and
b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
c)ensuring that the children receive adequate and proper parenting to help them achieve their full potential;
d)ensuring that parents fulfil their duties and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying the object are set out in Section 60B(2) and provide that, except when it is or would be contrary to the child’s best interests:-
a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;
b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
d)parents should agree about the future parenting of their children; and
e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The best interests of the child are the paramount consideration in determining whether to make a particular parenting order. [1] To determine the best interests of a child the court must consider the factors set out in section 60CC(2) and (3) of the Act.
[1] Section 60CA
Section 61DA of the Family Law Act 1975 (as amended) provides that 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’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with that parent has engaged in abuse of the child or family violence, and may be rebutted if the court is satisfied that it would not be in the child’s best interests for the child’s parents to have equal shared parental responsibility. [2]
[2] Section 65DA(1)(2)(4)

In the event that an order is made for equal shared parental responsibility, the court must consider whether it is in the child’s best interests to spend equal time with each of his or her parents and whether it is reasonably practicable for this to occur. [3]
[3] Section 65DAA(1)
If the court determines that such an order is not in the child’s best interests, it must consider whether it would be in the child’s best interest to spend substantial and significant time with each parent and whether that is reasonably practicably. [4]
[4] Section 65DAA(2)
The Act defines what is meant by substantial and significant time, [5] and specifies that the court must have regard to certain issues when deciding whether orders are reasonably practicable. [6]
[5] Section 65DAA(3)
[6] Section 65DAA(5)
All of those issues must be considered in this case against the backdrop of the requirement that the parenting order the court makes must be in X’s best interests, as determined in accordance with the provisions of Section 60CC of the Act, being mindful of the objects of the Act and the principles underlying those objects.
This case involved an application for relocation. As was made clear by the Full Court in B & B (1997) FLC 92-755 at p84,194:
“Relocation cases are not a separate category within the Family Law Act…each is a case under Part VII relating to the best interests of the children but within a particular context and,…is to be determined in accordance with the principles contained in that Part.”

Section 60CC(2) – Primary Considerations

a) the benefit to the child of having a meaningful relationship with both of the child’s parents.

It was clear by the time of trial that the parties were in significant dispute as to the benefit of X having a meaningful relationship with each of them.
The mother’s proposal involved a discharge of existing orders providing for X to spend regular time with his father, and in lieu an order providing for X to spend time with his father in accordance with his wishes so long as she and X remained living in South Australia.
It was her position that in the event that she was permitted to relocate with X that X spend time with his father during school holidays.
In cross-examination the mother said that she could cover the cost for two visits by X to Adelaide to spend holiday time with his father, and would be prepared to allow the father to spend time with X on two other occasions during the year during holidays wherever she and X may be living if she relocated.
In final submissions the mother’s position was that she had no issue, if she relocated with X, with him visiting his father for school holiday visits on four occasions and that she could pay for four visits. She submitted that the father could also visit X as he chose wherever they were living.
At the time of trial it was common ground that X had not spent overnight time with his father since about February 2015. It was the mother’s position that X did not want to spend overnight time with his father.
When asked by the Independent Children’s Lawyer in cross-examination how she thought she would be able to persuade X to get on a plane to travel to Adelaide to spend time with his father for a week at a time in those circumstances, she replied that she never thought that X would only see his father two times a year but rather thought it would be more often. She was unable to give any definite answer to how she would persuade X to travel to Adelaide for holiday time including overnight time regardless of whether the visits occurred twice a year or more often.
As well as the mother seeking to be able to relocate with X either interstate or to a country region of South Australia in the event that she secured employment there, the mother sought an order for sole parental responsibility.
The mother filed two affidavits for the purposes of trial, the first on 7 September 2016 and the second, in answer to the father’s trial affidavit, on 30 September 2016.
In her first trial affidavit she deposed to conflict between X and his father regarding events or activities that X wanted to undertake that were not agreed to by the father. She expressed concern about a lack of flexibility on the part of the father with respect to X’s needs and wishes and to X being very cross on occasions with his father.
She deposed to X complaining about how he was treated in the household of the father, including behaviour that made him feel sad, angry and humiliated.
She deposed to arguments arising between X and his father in relation to X’s attendance at church camps, and concern regarding the father ensuring that X attend for his sport commitments.
She deposed to X finding a “fixed timetable” for time spending with his father very inconvenient.
In the affidavit filed 30 September 2016, she deposed to the father only seeking to re-establish overnight time with X to avoid child support obligations. She again referred to X’s wish to have flexibility with respect to his time with his father to enable him to attend events important to him such as birthday parties, camps and to not attend when he was ill.
The mother deposed to wanting to try to make things better for X. She expressed her view that the father was not being genuine in terms of wanting to establish overnight time, and to having declined her offer in that regard. It was her case that the father’s only intention was to inconvenience the mother.
The mother deposed to X’s alleged unhappiness with the father’s wife and their two children and to being unhappy with the way the father’s wife treats their children.
The order proposed by the father was that X, who by the time of trial had not spent overnight time with his father for over eighteen months, continue to spend time with him on Thursdays from 3:15pm to 8:00pm in accordance with previous orders and further time with him every second weekend from after school Friday until the commencement on school Monday, week-about during school holidays and week-about on a permanent basis once X commenced at high school.
The orders proposed by the mother would have the potential of X spending very little time with his father, particularly in circumstances where the responsibility for spending time with the father would rest on X’s very young shoulders. The situation would be exacerbated in the event that the mother and X were not physically proximate to the father in the event the mother relocated with X.
The orders proposed by the father would, on the face of them, be more likely to ensure that X had the benefit of having a meaningful relationship with both parents.
The court must determine whether it is beneficial for X to have a meaningful relationship with both parents.
The mother’s case consisted, to a very significant degree, of complaints about the father in terms of his emotional capacity to relate to X, his lack of consideration for X’s social, sporting and religious commitments and his alleged attempts to avoid financial commitment and responsibility for X.
She had little, if any, positive comments to make about the father either in her interviews with the court expert Family Consultant Ms C, in her trial affidavits or in cross-examination.
Overall, the father was less critical of the mother, and conceded that on occasions X may have been exposed to disagreements between he and his partner which would not occur in the household of the mother where X and the mother are the only occupants. He was somewhat bemused about X’s complaints about being bored in his household and thought that in terms of X wanting to go to social and church activities there basically had to be a balance.
He conceded that X had made complaints to Ms C about some behaviours in his household, mainly relating to the younger children and the relationship between the father and his wife, but overall considered that although some accommodations may need to be made for X that X enjoyed his time in his father’s household.
The only independent evidence before the court to assist in the assessment of the relationship between X and each of his parents were the interview between X and Ms C and the observation of interaction between X and his mother and X and his father, step-mother and siblings.
X reported to Ms C that he didn’t really like going to his father’s because he wasn’t fun and didn’t do much with him. He also referred to missing something at his mother’s when he went to see his father and gave examples of church camps twice a year. He described to her that he felt much closer to his mother than to his father and that he was not comfortable sleeping at his father’s home. He referred to the fact that he thought he wouldn’t miss his younger brother and sister if he relocated with his mother.
Family Consultant Ms C reported in paragraph 49 of the Family Report that:
“X gave the impression of being a sad and burdened boy and his responses in interview lacked spontaneity and conviction. He seemed guarded and difficult to engage on family related topics but was open and chatty on other subjects, such as school or church activities.”
In paragraph 51 she reported:
“X became evasive when asked how often he was witness to his parents open conflict and would not be drawn on this issue other than to reiterate that he had never seen his parent’s being friendly to each other”
In paragraph 53 Family Consultant Ms C reported
“…X was clearly guarded and seemingly unable to expand on his rationale for wanting less time with his father beyond stating:
“it’s not very fun”
or”
“it’s boring”
He gave the impression that his strong attachment to his mother and his heightened awareness of her pressing desire to relocate for work purposes underpins his thinking in regard to the issue of him spending time with his father rather than any direct or overt coaching by the mother.”
In Family Consultant Ms C’s observation of interaction between X, his father, step-mother and siblings in paragraphs 54 to 56 of her report, she reported in paragraph 56:
“The overall sense was of relaxed and comfortable interactions consistent with warm familial relationships, albeit with periods of inertion or disquiet, more so between X and his father than between X and his step-mother and sister.”
She referred in paragraph 54 of the report to awkwardness and unease on the part of X to which the father seemed oblivious.
In paragraph 55 she referred to some interaction between X and his step-mother and to a light hearted interaction with C his sister.
In paragraphs 57 and 58 of her Family Report Family Consultant Ms C referred to her observations of interaction between X and his mother and Mr E and Ms H.
In paragraph 57 she reported:
“X remained in close physical proximity to his mother throughout the session, at times leaning against her or protectively placing a hand on her shoulder, content to hold this positon and not involve his mother in any games or activity, with the mother seemingly oblivious to X’s obsequious stance.”
In that same paragraph Ms C referred to her impression “that X is very protected of and aligned with his mother.”
She referred in paragraph 58 of her report to the mother conversing with X and Mr E & Ms H as if X was an adult, but referred to the mother’s love for X being very evident and to the warmth of her tone and her attentiveness to his mood.
She went on to say in paragraph 58:
“Clearly the mother is X’s primary source of nurturing which is not surprising given that she has been his primary caregiver since he was eleven months old. As such the mother is likely to wield considerable influence over X, who would not want to do anything to jeopardise this relationship for fear of being abandoned by his mother in the event she moves interstate to pursue job opportunities.”
The mother and the father were clearly in very high conflict at the time of trial. Ms C referred in paragraph 67 of her report to both parents having unrealistic expectations in respect to X.
In paragraph 68 she referred to the very important relationship between X and his younger siblings and to how those relationships will be enhanced by regular time together. She expressed concern in that same paragraph about X perceiving that his father is disinterested in him and that the father “sees him as a pawn to be used in the dispute between his mother.”
In paragraph 71 Ms C referred to X needing both parents in his life. She expressed concern about him being placed in a position of conflicted loyalty.
Ms C also reported in paragraphs 59 and 60 of her report to observations by staff at (omitted) Primary School, attended by X, as to his increasing withdrawal and quiet demeanour in the latter part of 2015 and to them providing him with pastoral support.
In paragraph 60 Ms C reported
“recent reports of X’s presentation at school include that:
“He is very tired…exhausted…not sleeping…worrying…he’s always wanted to go to Canberra but says he will miss his dad and his younger sister and brother…his mother is very isolated…his father offers him a family…he is a young man taking on an adult problem””
The Independent Children’s Lawyer and both parties had an opportunity to cross-examine the expert.
Although there was much discussion about the need for the father to become more emotionally attuned to X and pick up on his emotional signals, to accommodate his views and wishes, and although the mother pressed the Family Consultant on the issue of how she reached her conclusions and essentially put to her that she was not listening to X or to the mother, Ms C was not minded to change her view.
She expressed that view to be that unless X’s relationship with his father was supported, the mother’s proposals would result in X spending insufficient time with his father such that there was a possibility that the relationship between X and his father and his paternal family would break down all together.
Taking these matters into account, I accept the submissions of the Independent Children’s Lawyer namely that it is to X’s benefit to have a meaningful relationship with both of his parents. I find that that does not accord with the mother’s view, and find if her application to be able to relocate was granted there would a very real possibility that X would spend little time with his father and his father’s family to his detriment.
By the same token, the father’s application, if granted, would certainly support X having a meaningful relationship with his mother but would result in changes to X’s day-to-day care that X may find very difficult to manage in circumstances where he clearly views his mother as meeting his needs more than does his father.

b) the need to protect the children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence

Following upon the parties separation in December 2006, the mother sought emergency housing in domestic violence sheltered accommodation with X.
The mother reports to Ms C, as outlined in paragraphs 29, 30, 31, 32, 34 and 35 of the Family Report, that she had been subjected to coercive control, behaviour designed to isolate her, physical violence, serial infidelity, verbal, emotional and financial abuse by the father. In addition, she told Ms C that X had experienced his father and step-mother fighting and being the subject of his step-mother’s anger whilst in the household of his father in 2014 and 2015.
The mother annexed to her trial affidavit of 7 September 2016 a letter from a clinical psychologist Dr B. This was in relation to her attendance on him in 2004 when, according to the mother’s report to Ms C, she left the father and went into supported accommodation through the domestic violence service at a motel for some two weeks. The letter was dated 7 July 2008, the author was not available for cross-examination and the father was of course self-represented.
In circumstances where that two week separation did not seem in dispute and where it predated X’s birth, I do not propose to rely on any material in that report.
The mother otherwise did not depose personally to any issues of domestic violence in her affidavit of 7 September 2016 but did depose in that document to X feeling threatened and emotionally manipulated by the father as set out in paragraph 10.
The mother also reported to Ms C an incident that occurred at X’s school in September 2014. The father attended at X’s school on that occasion to try and enforce the 2008 order providing for X’s time with him, but X refused to leave with him and the police were then called. The incident was clearly very distressing for X.
The majority of the father’s trial affidavit was taken up with a description of activates X had enjoyed with the father and his family and his concerns about having to effectively negotiate with X as to whether he would spend time with him, when that time would be spent and to his concerns as to the impact the lack of time was having on their relationship.
In the mother’s responding affidavit filed 30 September 2016 she deposed in paragraph 10 to the father making X feel teased and mistreated in his household.
Both parties were cross-examined by the Independent Children’s Lawyer. Neither were cross-examined about allegations of coercive control and violence of any form as between them in their relationship. I am mindful however that the parties separated as long ago as December 2006, that the parties now have very little contact or communication at all and I find that there is no basis for concern as to X being subjected or exposed to physical harm through abuse, neglect or family violence.
I find that X was significantly distressed by the police attending at his school when the father unwisely attempted to enforce an existing court order. Such an incident in all likelihood had a part to play in X’s ongoing reluctance to spend time with his father.
The father was cross-examined about X being exposed to fights between he and his wife. It was common ground that the father’s wife and the mother had been able to manage quite civil conversation and communication over a significant period of time.
The father conceded in cross-examination that X would certainly have been exposed to arguments between he and his wife. It was his evidence that he and his wife were not engaged in “fights” so much as disagreements and he conceded that X would have heard raised voices on at least a couple of occasions. He denied that they ever swore at each other and rather said that X may have heard some “aussie” swear words if one or other of them was upset.
It was his view that in circumstances where X lived with his mother he would have no real exposure to or understanding of disagreements between spouses. I am satisfied that he understood X’s concerns.
The father conceded that his wife had yelled at X but said it was only on one occasion in either 2011 or 2012. He said in cross-examination that he had taken X home after school on a Thursday, that he usually had a chiropractic appointment on Thursday at 6:00pm and that sometimes X went with him. It was his evidence that on that occasion X stayed at home and he asked his wife to prepare a sandwich for X, which she did.
He said that at X’s request his wife had prepared a second sandwich but when he requested a third she said no and he became very upset. He said that both his wife and X told him about the argument and that they were both upset. He said that no food was taken away from X, and that he had spoken with the mother on the day about the issue and his partner had apologised to X. He said everything calmed down after that and the allegations were not renewed until the mother filed her application.
It was the father’s evidence in response to questions from the Independent Children’s Lawyer that X, who has known his partner since he was three years old, has a “bit of a bond – is good connection” with his wife and that his wife is welcoming and very happy every time X is in their household.
I consider that it would be important for the father to ensure that as far as possible X was not exposed to serious arguments between he and his wife whilst X is in the household.

I am concerned as to possible psychological harm to X arising from his mother’s attitudes to his father and to the question of his relationship with his father. I consider however that those concerns are better addressed when assessing the capacity of the parents to provide for children’s need including their emotional and intellectual needs.
Taking those matters into account, I am satisfied that any orders that I make with respect to X’s time with his father and his mother do not need to incorporate provisions to provide X from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
I am satisfied however that X would be grateful if his parents could learn to put aside their differences and communicate effectively and respectfully so that the emotional burden he clearly carries could be minimised.

Section 60CC(3) – additional considerations

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.

The only real objective evidence before the court at the time of trial as to X’s wishes, his maturity and his level of understanding is contained in the Family Report dated 10 December 2015, prepared by Family Consultant Ms C. X was not quite ten years old at the time of preparation of the report.
The mother reported to Ms C, as described in paragraph 33 of the report, to X starting to grow up by the beginning of 2014 and wanting to do activities that he was not able to do when he was in the care of his father. She said his reluctance to spend time with his father was exacerbated by being exposed to disputes between his father and his wife and to X feeling isolated as a result of no longer being the centre of his father’s attention.
These issues were discussed in paragraph 34 of the report and in paragraph 35 the mother told Family Consultant Ms C of the incident at X’s school when the father attempted to enforce court orders with the assistance of the police which further, according to the mother, alienated X.
X was described by Family Consultant Ms C in paragraph 49 of the report to smiling very rarely during the interview and that:
“ X gave the impression of being a sad and burdened boy and his responses in interview lacked spontaneity and conviction. He seemed guarded and difficult to engage on family related topics but was open and chatty on other subjects such as school or church activities.”
X reported to Family Consultant Ms C that he didn’t like going to his father’s very much because his father wasn’t much fun and didn’t do much with him. He also complained that when he was with his father he missed things that were happening at his mother’s, but only referred to missing church camps. X described feeling very close emotionally to his mother and to feeling less comfortable in his father’s household and to being bored in his father’s household.
The observation of interaction between X and his father and father’s family as reported in paragraphs 54 to 56 inclusive of the report indicated a more relaxed and comfortable interaction between X and his step-mother and siblings than as between X and his father, leading Family Consultant Ms C to report to in paragraph 54 “…there were prolonged silences during which X would glance furtively or awkwardly at the TV screen where a movie was playing, whilst the father seemed oblivious to X’s unease.”
X reported to Ms C that he wanted to move away with his mother, that he wouldn’t miss school friends and that he could stay with his father during school holidays. He told Ms C he did not think he would miss his siblings much but that he rather liked having a sister.
Ms C had the opportunity to speak with the school that X attends and they reported that his demeanour during 2015 had changed such that he had become unhappy having previously been a lovely boy and a model student. The school reported that X spent a lot of time worrying, expressing a desire to go to Canberra but worrying that he would miss his father and younger sister and brother. The school were at that time providing X with emotional support.
In paragraph 62 of her report, Family Consultant Ms C noted that “X’s alignment with his mother and concomitant withdrawal from his father was very evident during the course of this assessment, both in interview and observations.” It was her opinion that such a situation had arisen because of X’s exposure to conflict between his parents.
X is a young boy. He has been in the primary care and for significant periods in the sole care of his mother since his parents separated when he was just under twelve months of age. His mother has not re-partnered since separation. She was accompanied to the interviews with the Family Consultant by Mr E and Ms H, both of whom were interviewed briefly by Ms C.
She reported on those discussions in paragraph 38 of the Family Report. They reported to Ms C that the mother and X are quite isolated, that X’s friends at Sunday School were the only friends that he had outside of school and that “90% of her [the mother’s] social activity is X…she’s very socially isolated.”
Ms C reported Mr E & Ms H as telling her that X is very protective of the mother and that in their view “seeing his dad interrupts his time with her so X makes it out that he is having a bad time with his father.”
They further reported to Family Consultant Ms C that the mother’s isolation and limited social network resulted in her not being in the position to discuss parenting issues with other mother’s and being unable to say “no” to X. These issues are referred to in paragraph 39 of the report.
The mother referred in her discussions with Family Consultant Ms C to a litany of complaints that X makes to her about spending time with his father.
I find that X is far more emotionally bonded to his mother than to his father. It is obvious that X has the mother’s complete and undivided attention whilst he is living in her household, whereas in the household of his father he has to share his father’s time and affection with his step-mother and his two young siblings.
I find that X would carry with him a sense of responsibility for his mother’s happiness. That is understandable in circumstances where his mother’s happiness directly translates to his own happiness and sense of security. I have no doubt that X has expressed to his mother the various complaints she reports both in her affidavit evidence and in her conversations with Family Consultant Ms C.
I am equally satisfied that the mother treats every negative comment made by X as to what occurs in his father’s household or how he feels about his father and their relationship as “gospel” and that she does not challenge X in relation to these issues in any respect whatsoever. Her responses to X are of course coloured by her negative attitude towards the father with respect to whom she was unable, in her evidence or in cross-examination, to make any positive comment or assessment whatsoever.
The father annexed to his trial affidavit filed 23 September 2016 a series of photographs of X with him and with his step-mother and siblings on various outings. The interaction between X and his father illustrated by those photographs belies to some extent complaints he makes of his father to his mother and to the Family Consultant.
In the mother’s trial affidavit filed 7 September 2016, she deposed in paragraphs 13 and 14 to X allegedly being teased in his father’s household by his step-mother in relation to having a girlfriend and to the mother ringing the father to complain about the issues and about X feeling humiliated with the father replying, according to the mother, “if X does not like something that we say to him, well, he has to learn to just put up with it.”
She went on to depose to the father hanging up on her and then sending her an SMS text message later in which he told that she had to stop interfering in his life and stop aggravating small situations and needing to get X to understand the importance of a father and letting X enjoy life with him.
None of this evidence is surprising and I accept the mother’s evidence in relation to that particular incident. Unfortunately, it is of course illustrative of the overall concern expressed by the Family Consultant with respect to X’s relationship with his father suffering because of his alignment with his mother.
I am quite satisfied that the conversation to which the mother refers in the father’s household was a light-hearted conversation in respect of which X would have been much assisted by the mother supporting the father and stressing that the conversation had been in fun and that X need not feel upset or humiliated.
X is likely to experience significant difficulties in his relationships with his peers and other people if his mother does not assist with regulating his emotions to and reactions to comments made by other people. By the same token, if X’s relationship with his father was stronger and more secure, it would be unlikely that he would become so upset about such a light-hearted issue and further, if his father saw that he was becoming upset as a result of the teasing by his step-mother, it would be appropriate for him to not only support his wife but also emotionally support X.
I accept the opinion expressed by Family Consultant Ms C in paragraph 66 of her Family Report. She said in that paragraph:
“Observations of both parents also raised series concerns about each parent’s ability to parent X effectively. On the one hand, the father seemed to lack skill in interacting with X, especially in conversation as evidenced by the long silences between them at times and by X’s sideways glances at the television screen in an effort to distract himself and not be “bored” by such seemingly disinterested interactions with his father. Such awkwardness or inaptitude by the father is likely to result in X seeing that his father lacks interest in him other than as a reason to engage in conflict with his mother about him. Indeed, the deficits in the father’s ability to engage meaningfully with X gives greater substance to X’s claims that he has “no fun” and is “bored” at his father’s. The mother on the other hand appeared to lack parental boundaries such that she seemed to relate to X as an adult which might explain X’s strong sense of protectiveness towards her and his seemingly ‘parentified’ (‘man of the house’) behaviours in this regard. Reports of the mother’s social isolation and apparent reluctance or lack of confidence to extend her adult social connections re-enforces the view that the mother relies on X to meet these needs and is likely to heighten X’s sense of not wanting to be apart from his mother…”
I find that X, in circumstances where each of his parents exhibit behaviour with respect to their parenting that is challenging for him, is left in the unenviable position of trying to negotiate through his childhood without any balanced guidelines. This was very apparent from the comments Family Consultant Ms C gleaned from X’s school.
I find that little weight can be attached to X’s views in these circumstances, although I am satisfied that overall they indicate that a cautious approach should be taken with respect to orders for time for X to spend with his father, with such orders needing to be supportive of his relationship with his father but mindful of the importance that he attributes to his relationship with his mother.

b) the nature of the relationship of the child with:

each of the child’s parents; and

any other persons (including any grandparent or other relative of the child).

I have already referred to X’s exceedingly close relationship with his mother. I am concerned that to some extent that relationship involves X feeling responsible for his mother’s emotional wellbeing. There is no doubt that X has, for all of his life, been primarily reliant on his mother for almost all aspects of his care.
I find however that notwithstanding X’s expressed views about time with his father he has certainly enjoyed time spent with his father, with his step-mother and with his siblings and that he has the capacity to continue to enjoy that time if his father improves his capacity to be more sensitive to X’s emotional needs and begins to demonstrate that increased sensitivity to X. X is not as emotionally well-connected to his father as he is to his mother. He does not have a firm secure emotional attachment to his step-mother or his siblings.
Nevertheless, I find that X has enjoyed his time in his father’s household on many occasions and that spending regular time in that household will be to X’s benefit. In the father’s household X becomes one of a family of five, which circumstance will assist X in his ability to develop relationships in a household where he is not the centre of attention. This however will take time, and it dependent on the father being sensitive to and encouraging of X’s development in this regard. I find that the father will need some assistance in learning those skills and that it will be necessary for him to attend at a parenting course.
X has always relied on and no doubt will continue to rely on his mother for all significant practical aspects of his day-to-day care but it is to be hoped that as time passes and X spends more regular time in his father’s household, with his father being more sensitive to his emotional needs, that this role will become increasingly shared by both of his parents.

c) the extent to which each of the child’s parents has taken or failed to take the opportunities:

to participate in make decisions about major long term issues in relation to the child;

to spend time with the child; and

(iii) to communicate with the child.

There is no doubt that the mother has taken most of the decisions regarding X’s day-to-day care and long-term issues including education, I am satisfied that the father has been less diligent in that regard than the mother. I accept the mother’s evidence that on occasions she would have preferred him to take more of a role in that regard, particularly when X was younger.
I find that the father has attempted to take the opportunities available to him to spend time with X but that problems have arisen in that regard leading to X spending less than optimal time with the father. I note however that it is the mother who is the applicant in these proceedings and not the father.

ca) the extent to which each of the child’s parents has fulfilled or failed to fulfil the parents obligations to maintain the child.

In the mother’s trial affidavit she deposed to the father misrepresenting his income to the Child Support Agency so as minimise his child support liability. There is no doubt that in the years since separation there has been ongoing conflict between the parties about the father meeting his appropriate child support obligations and on occasions the parties have found themselves in dispute in relation to that issue with the Child Support Agency.
The best objective evidence however before the court at the time of trial in relation to child support liabilities and the payment of those liabilities was annexure “8” to the father’s affidavit filed 23 September 2016.
That document was a copy of the child support payer transaction statement for the period 28 March 2007 to 12 September 2016. Over that period there had been total debits of $57,149.37 and total credits of $56,357.49, leaving a child support debt as at 12 September 2016 of $791.88 comprised of $687.08 of maintenance debt and $104.80 of a late payment penalty debt.
It was the mother’s case that the father had underestimated his income in the latter part of 2015 and that the true position was not likely to be addressed until after the father had filed his 2016 taxation return.
I find that although the issue of child support has been a source of contention between the parties and although the father may have attempted to minimise his liability on occasions the matter had been remedied to a significant degree by the time of trial and would be further remedied if required upon the filing of the father’s 2016 financial statement.
I do not accept the mother’s opinion as deposed to in her trial affidavit that the father’s motive in seeking to spend additional time with X is merely designed to avoid his child support obligations. I find that the father genuinely wishes for X to spend time with him and benefit from involvement in the father’s family life and I find no evidence to support the mother’s assertions.

d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any:

either of his or her parents; and

any other child, or other person (including any grandparent or other relative of the child) with whom she or he has been living.

The mother seeks to be able to relocate with X to such place either in country South Australia or interstate where she may gain employment.
It was the mother’s evidence in cross-examination that in December 2015 she had commenced working in a temporary position and in February 2016 had commenced a casual position as an (occupation omitted) pursuant to a contract. It was her evidence that her hours varied according to whether or not the business was busy, but that generally she worked somewhere between 20 and 30 hours per week.
She gave evidence that her income was $27.00 per hour before tax and that sometimes she worked after school hours.
At the time of trial her employment had not been reviewed with her employer.
In answer to questions from counsel for the Independent Children’s Lawyer, she said that her employer had made no suggestions of being unhappy with her work and to the contrary in fact had expressed that they were pleased.
The mother gave evidence in cross-examination that she was still keen to be able to move interstate if a better job was available to her than was available in Adelaide and stressed that her Adelaide job at the time of trial was only casual. She was asked if she had spoken with her employer about the possibility of full-time employment and replied that she had not because it was a small business and the time was not right.
She was asked whether since February 2016 she had applied for any permanent (occupation omitted) positions in Adelaide and said she had not because she had a job and wanted to get experience as she thought that was why it was hard to get a job in the first place.
When it was put to her that she just wanted the opportunity to go anywhere in Australia she agreed that she did but also that included country South Australia.
The mother was cross-examined at length by the Independent Children’s Lawyer about the reality of her proposals whereby if she took employment and moved with X interstate he could come back and spend holiday time with his father. In circumstances where the mother conceded that X had spent no overnight time with the father for some one and a half years, and that the overnight time had stopped specifically because he was unable to get food from the fridge because of being yelled at by his step-mother, I am not satisfied that the mother’s proposal is realistic.
The mother said that from the time of that incident X “switched off” and when it was put to her that she had simply accepted his position she replied that that was not the case and that X was really upset.
When the mother was asked who made the decision that resulted in X stopping spending overnight time with his father she said that it was a decision “WE” had to come to because X was so upset and inconsolable and “how can I drag him to go to a place where he is ill-treated.” When she was asked what she meant by the use of the word ‘we’, she said we were all affected.
It was put to the mother that the father had not told X to stop coming and spending overnight time with him and she replied that X was “just so stressed.”

She was asked if she had involved X in the decision and she said that it was her decision but that it was forced on her.
The mother was asked whether she had simply accepted the position that X had adopted, namely that he had did not want to go to his father’s anymore. The mother repeated that X was so upset and miserable that she was unable to force him to go to a place that made him like that and it had put her in a position where she had to stop the time.
She was asked whether she had told X that he had to go and see his father and accept the rules in his father’s household, that the incident may have happened and he may have been upset but those were the rules by which he had to abide. She replied that she had always told him to go back but she agreed that she had not challenged X in that regard.
She was unable to give any real answer as to how she anticipated she would be able to persuade X to get on a place and travel to Adelaide to spend time with his father for up to a week during school holidays when he had spent no overnight time with his father since February 2015.
The mother was asked in cross-examination whether since February 2015 she had told X that she would like him to spend overnights with his father. She replied that she had not said that and that she didn’t have to say what she wanted because she was happy for him to stay with his father and grandparents and had even offered additional days but the father had never wanted extra time.
The mother agreed that X should not be the one to decide when he was comfortable to have overnight time with his father. When she was asked whether she though X’s wishes should be built into any order, she replied that the order she would like was something where the time was built up gradually so that the relationship between X and his father would get better.
When it was put to her that that could not happen if she was going to relocate interstate with X, she replied that if she was interstate the situation would be forced on X and there would be no other option except for him to spend overnight time with his father during school holidays. She was asked whether X wanted to stay with his father overnight at the time of trial and she replied that he did not.
For the reasons to which I have previously referred, I am concerned that the mother has adopted any attitudes expressed by X at face value and not challenged him at any level whatsoever. This has left X in the unenviable position of taking full responsibility for decisions about his parenting at a very young age when he cannot possibly be expected to understand the long-term ramifications of decisions he makes.
In submissions it was the mother’s position that the reason that she was offering for X to spend time overnight with the father if she relocated but not if she was living here was that the relocation was not happening immediately and that she had a responsibility to protect her son.
She submitted, quite correctly, that the father had never applied to the court for orders even if time with X had been missed. It was her position that X needs a good and respectful environment in the father’s household and she was of the view that that would happen prior to her and X potentially relocating.
It was her position that it was not good for X’s mental health if he did not want to go and spend time in his father’s house and she was concerned as to her options if X was distressed and upset and didn’t want to go but she was faced with complying with an order of the court.
It was her position that mothers are unable to cope with seeing their children upset and that the father had minimised his wife’s behaviour in circumstances where, in her view, X knows what he wants, he doesn’t like his step-mother and his step-mother does not like him.
It was the mother’s position that she had always cooperated with the father in terms of changes that he sought to the time X spent with him and I accept her submission in that regard.
She submitted that she wanted X to have access to a mobile phone, to the internet, to a tablet and like devices regardless of which household he was in.
It was very clear from the mother’s submissions that she was not minded to adopt the position of X being required to conform with the rules in each of his parents households, but rather supported him completely if he had any complaints about the father’s household.
At the time of trial the mother’s proposals for X’s time with his father were as follows:
·October 2016 to October 2017 – one week 9:00am Saturday to 2:00pm, next week 9:00am Saturday to 9:00am Sunday.
·November 2017 to October 2018 – one week 9:00am Saturday to 8:00pm, next week 9:00am Saturday to 9:00am Sunday.
·During school holiday time to be extended to 8:00pm Sunday.
·November 2018 to October 2019 – one week 9:00am Saturday to 8:00pm, next week 9:00am Saturday to 9:00am Sunday plus: during long-weekends time to be extended up to Monday 2:00pm providing the father takes X to Sunday school.
·November 2019 to October 2020 X could stay up to seven days after Christmas Day.
The father’s proposals were as follows:
·October 2016 to April 2017 – 9:00am Saturday to 9:00am Sunday each week. Time extended to 12 noon Monday during school holidays.
·Some extension for public holiday weekends.
·April 2017 to October 2017 – 9:00am Saturday to 5:00pm Sunday each week. Time extended to 12 noon Monday during school holidays.
·Some extension for public holiday weekends.
·October 2017 – 9:00am Saturday to the commencement of school Monday each alternate weekend. During school holidays time be extended to 12 noon Monday.
·Some extension for public holiday weekends.
These proposals which were tendered to the court by the father during the trial proceedings contrasted somewhat with the orders that he sought in his response.
It was obvious from the father’s answers in cross-examination that he had limited time during the week to spend with X as a result of his work commitments and that that was unlikely to change in the future. In answer to a question from the court he said however, that if X stayed with him overnight on a Sunday he would be able to take him to school on the Monday.
The Independent Children’s Lawyer proposed that X spend time with the father for a twelve month period from October 2016 from 9:00am Saturday to 9:00am or later on Sunday of each weekend and that during school holidays that time be extended to 12 noon on the Monday.
Thereafter the Independent Children’s Lawyer proposed that X spend time with the father from 9:00am Saturday to the commencement of school on Monday in each alternate week, with the time be extended to 5:00pm on Tuesday during school holiday periods.
The Independent Children’s Lawyer also proposed an increase in school holiday time such that the alternate weekend time conclude at 5:00pm on Thursday, commencing in the 2018/19 Christmas school holidays and commencing in the 2019/20 Christmas school holidays the time conclude at 9:00am on the following Saturday, a period of seven days.
I find that X would best manage the time with his father if there was a graduated increase in that time such that initially it occur weekly for lesser time periods and then within a period of twelve months move to alternate weekends so that X has the opportunity to spend free weekends with each of his parents.
The proposals of both parties and the Independent Children’s Lawyer all address that issue and I consider that each of the proposals is reasonable.
There is no doubt that X’s time with his mother at church is important to her and to X. I find that X’s best interests would be met by the orders accommodating that to the extent that they are able without significantly impinging on his time with his father and the benefits he will get from strengthening that relationship.
I find that in the event of the mother relocating away from Adelaide or its environs with X the mother’s expectations that X would manage a week away from her care in the father’s household during school holidays, with no regular ‘short’ time spending in between is unrealistic. I make that finding particularly in circumstances where X is well aware that his mother will do everything possible to support any wishes he expresses.
I find that such a situation would result in an overall diminishing of the quality of the relationship between X and his father, which currently already faces some challenges that need to be addressed by both parties.
I find that such an outcome would, from X’s point of view, attract a very real risk that the relationship with his father would break down altogether.

e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

I am satisfied that both the mother’s and the father’s proposals and indeed the proposal of the Independent Children’s Lawyer with respect to time spending arrangements if the mother and X remain living the metropolitan area of Adelaide do not result in any practical difficulties or unreasonable expenses.
In the event however, that the mother was to move interstate for her employment, there is no evidence before the court of the income that the mother would be likely to earn in those circumstances and her proposal that X spend time with his father for seven days during each school holidays is unrealistic both as to the likelihood of X agreeing to such an arrangement and as to the mother’s capacity to meet such cost.
I am satisfied that the father, who is supporting his wife and two young children, has limited financial resources and would be unlikely to be able to afford travel expenses.
I am also concerned that such an order would result in X spending most of the time with his step-mother and his siblings due to his father’s evidence as to his work commitments.

f) the capacity of:

each of the children’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.

I am satisfied that both parents love X.
I am satisfied that both parents can provide for X’s physical needs.
I am satisfied that the mother has attended well to X’s educational needs and it is clear that the father has had little involvement in this aspect of X’s life.
In addition she has ensured that X engage in sporting activities which the father has also, at some level, participated in but not to the extent of the mother.
I have concerns however about the capacity of each of the parents to provide for X’s emotional needs. I find that the father has a somewhat remote relationship with X compared to that of the mother and note that the parties present with significantly different personalities, with the father much more reserved and less expressive than the mother.
In cross-examination the father indicated that he was aware of the issues of concern in that regard raised by the Family Consultant. He confirmed his preparedness to engage in appropriate courses to assist him to understand the needs of children of X’s age and to better be able to respond to X at an emotional level. The reality is that if the father does not seek assistance in relation to these issues he runs the risk of X continuing to feel somewhat marginalised in his household and being resistant to spending time with him.
That situation is exacerbated by my findings earlier herein as to the mother simply being either unwilling or unable to challenge X in any way with respect to what he may or may not want to do from time to time, particularly with respect to his relationship with his father, or to provide guidance to X as to managing life in two different households one of which involves learning to live in a family with four other people.
Both parents seemed amenable to ensuring that X attended at the ‘Banana Splitz’ program, which I am satisfied will be to X’s benefit and which I intend to order in the event that this has not yet occurred.
I accept that English is not the first language of either the mother or the father but I am satisfied, having observed them during the proceedings, that they are sufficiently fluent in the English language to be able to attend at and hopefully benefit from the post-separation parenting communication course ‘Kids Are First’ and the ‘Circle of Security’ parenting course.
I am satisfied that to a significant degree, although the father has sought to have X spend time with him, he has not pursued that at the level one might expect in circumstances where X’s time with him was significantly diminished over time. Further, he has been content to leave to the mother the primary parenting role with X, including attending to his educational, sporting and extra-curricular activities. In short, the father has had a somewhat passive approach to assisting in the parenting of X and X is well aware of that circumstance.
The mother may rightfully feel somewhat ‘short changed’ by the father’s attitudes, particularly with respect to issues of child support, which have resulted in dispute between the parties. However, she also illustrates a lack of understanding about the importance of supporting a relationship between X and his father with whom, as I have said previously, I am satisfied he has very nice times on occasions.
The relationship between X and his siblings is also a very important and long-term relationship and likewise needs to be supported.
X will only progress well and be relieved of the burdens under which he is labouring at this time with respect to the conflict between his parents if both of his parents accept their role in causing the situation in which X now finds himself and commit to individually addressing their respective short comings that cause X to be burdened as described by his school.
I am satisfied that both parents have this capacity but I am concerned as to either of them being prepared to commit to the level that is required to assist X.

g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant.

X is an only child. He is a boy shortly to become a young man and will benefit from the ability to have balanced input from his father and his mother to maximise his ability to develop into a well-balanced and capable member of the community.
Both of his parents are from (country omitted). He has the added benefit of having the ability to enjoy his cultural traditions with each parent as well as sharing their lives in the Australian community, in particular his mother’s religious life which he clearly enjoys.
He is still young enough to be able to enjoy a relationship with his siblings and I am satisfied both from the observations in the Family Report and the photographs attached to the father’s trial affidavit that these are relationships that X enjoys.

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.

This factor is not relevant in these proceedings.

i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.

For all of the courts concerns about the mother’s lack of support for X’s relationship with his father, it is undoubtedly the case that she has an excellent attitude otherwise towards X and has attended diligently to the responsibilities of parenthood, including prime responsibility for X’s physical, educational and emotional upbringing and development. I have already referred however to my concerns as to the mother’s seeming inability to support X’s relationship with his father and to promote that relationship with X.
I am satisfied that the father, although he has played a far less significant role in X’s day-to-day life to date, loves X and has a more realistic expectation of X in terms of X learning to adjust to life in a household that does not just consist of himself and a devoted mother but also a step-mother and siblings.
There is no doubt that X does not consider that his father indulges his wishes to the extent X would like, but I find that it is also reasonable that X on occasions feels emotionally unsupported by his father.
X’s right to have a relationship with his father is of course subject to such a relationship being in X’s best interest. There is no doubt in my mind that such a relationship is in X’s best interests, but to a significant degree it is in the hands of the father to convince X of that and to ensure that X feels an important part of the father’s household such that he develops a genuine desire to spend time in his father’s household. This will be assisted by his mother making it clear to X that he is not responsible for her happiness or providing her with company.
The father’s attitude to financial responsibility for X is also a cause of some concern, with particular reference to X’s dental needs, which effectively the father expected the mother to manage.

j) any family violence involving the child or a member of the child’s family.

I have already referred to these issues earlier herein and I do not consider that this is a matter where the court needs to be concerned about issues of family violence, taking into account historical aspects of those matters.

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;

(iii)any evidence admitted in proceedings for the order;

any findings made by the Court in, or in proceedings for, the order; and
any other relevant matter.

This factor is not relevant in these proceedings.

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.

It is to be hoped that whatever orders the court makes the parties will not engage in further litigation, taking into account the best interests of X and the very real need to protect him from being the source of ongoing litigation. To do otherwise would continue to subject X to feelings of conflicted loyalty and insecurity which would not be in his best interests.

m) any other fact or circumstance the Court thinks is relevant.

The mother’s further amended application did not relate to issues of interstate or overseas travel or passports, and the father sought that for the purposes of overseas and interstate holidays there be reasonable notice given each to the other of them in that regard.
The mother in her final submissions sought that the parties sign documents necessary for a passport as both of the parties have family in (country omitted) and both of the parties and X have travelled to (country omitted).
I am satisfied that this issue should be dealt with so as to avoid unnecessary further proceedings.
The father proposed that if a party intended to travel interstate with X, they give the other party two weeks’ notice and overseas travel should be preceded by three months’ notice. He proposed that the notice include all relevant details such as departure/return dates, times and flight numbers.
It was the father’s proposal that the parent with whom X was to travel was responsible for all travel costs, that that parent be able to solely determine the itinerary or travel plans and that in relation to overseas travel any documents needed to be signed by the other parent be so signed and provided to the travelling parent two months prior to the proposed travel.

He further proposed that the period of travel be no greater than six weeks.
In circumstances where neither party has any firm proposals for overseas travel and where the orders that I intend to make will not result in extended time periods for X to spend with his father, I find the only appropriate way to make orders that provide for overseas travel will include a provision that the travel needs to be agreed between the parties. If that results in one party or the other having to institute further proceedings and those proceedings contain an application that is reasonable, then of course there is a likelihood of costs orders being made against the unsuccessful party.

Parental Responsibility

Parental responsibility is defined in section 61B of the Family Law Act[7] as follows:
“In this part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.”
[7] Family Law Act 1975 (as amended)
Section 65DAC of the Act sets out the effect of a parenting order that provides for shared parental responsibility. The section is in the following terms:
“This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.”
Section 65DAE makes it clear that there is no need for parents to consult on issues that are not major long term issues. That section is in the following terms:
“If a child is spending time with a person at a particular time under a parenting order, the order is taken not to require the person to consult a person who:
(a) has parental responsibility for the child; or
(b) shares parental responsibility for the child with another person;
about decisions that are made in relation to the child during that time on issues that are not major-long term issues.
Note: This will mean that the person with whom the child is spending time will usually not need to consult on decisions about such things as what the child eats or wears because these are usually not major long-term issues.”
The most common issues that arise that require joint decisions to be made involve schools attended by children, observation of particular events, activities or customs that arise from particular religious and/or cultural beliefs and major health issues arising from serious ill health or accident.
The applicant mother seeks an order for sole parental responsibility. She submitted that she has effectively been X’s sole parent since birth and that many of the decisions about his day-to-day life have been left to her.
It was her submission that the father had not sought to have positive input into issues concerning X’s school, medical treatment and the like and that when X broke a front tooth in his father’s care in November 2015, the father rang her and asked what to do as he had no idea. Accordingly she made arrangements with the father’s wife and gave her details to the dental clinic as the ‘follow up’ person.
She submitted that the father has never been involved in anything to do with X’s school and that in the past efforts to have X spend additional time with the father when, for example, she had university studies met with refusal.
The mother does not consider that she and X’s step-mother can communicate well, notwithstanding evidence in the report of Family Consultant Ms C that would suggest to the contrary. I refer in particular to the matters raised in the Family Report of Ms C in paragraph 47 of her report.
The father did not seem supportive of fostering a mutually respectful line of communication between the mother and his present wife and clearly expressed to the Family Consultant that he had no confidence that the mother would not effectively try to cause trouble between he and his wife.
The father sought an order for equal shared parental responsibility which was support by the Independent Children’s Lawyer.
I accept the evidence of the mother that she has been primarily responsible for all aspects of X’s life since birth.
Although the father complains effectively of the mother ‘shutting him out’ of a significant role in X’s life and although there is certainly evidence that would support an argument that the mother did not actively support X’s relationship with his father, by the same token it is abundantly clear that the father has been less than proactive with respect to ensuring that his relationship with X is maintained.
I accept the mother’s submission that the father has never taken any proceedings to enforce orders of the court and of course comes to these proceedings as the respondent.
I am satisfied that this is not a matter where X’s best interests would be met by his parents having equal shared parental responsibility.
They do not communicate well and the father has left issues of education and health, which are the major parental responsibility items to the mother. There is no evidence to suggest that the mother has been other than diligent in that regard or has attempted in any way to exclude the father from X’s education or health issues. I find that the father has been content to leave those matters to the mother for the first ten years of X’s life and that it is X’s best interests for the mother to continue to have sole parental responsibility for X, now to be evidenced by an order in that regard.
I find that the father loves X and sincerely wishes to have a meaningful relationship with him. I also find that he is content to leave the day-to-day care and management arrangements for X’s development in the hands of the mother.

Conclusion

This is a matter where both of the parents love X and where I find that it is in his interest to have a close and meaningful relationship with both of his parents.
X’s parents separated when he was very young. Since that time his mother has been almost solely responsible for both is day-to-day care and major issues concerning his education and health.
I find for the reasons given that the father has been content to leave that role to the mother and has not actively sought redress in relation to the ever diminishing time that X spent with him as the years went by.
Nevertheless, I find that the father would dearly love X to enjoy not only a meaningful relationship with him, but with his step-mother and his siblings and to form part of his household on regular occasions.
I accept that the mother has become less inclined to support that position over the years partly as a result of what she has perceived as the father’s lack of commitment to X both in terms of time and financial support but also because of her own particular personality and the inevitable close relationship that she and X have formed in circumstances where she has not re-partnered during X’s lifetime and where her lifestyle is relatively quiet and home-based.
I do not find however that she keeps X in any form of isolation but rather ensures he attend at school regularly, at his sports commitments and at church, including church camps and Sunday school.
X’s parents live very different lives and it is not easy for him to adjust to these differences, particularly the different expectations of him in each of his parents households.
X is well aware that his mother will not challenge him in any way and to some extent that ‘his wish is her command’ particularly with respect to time spending with his father.
X clearly finds it difficult at times to adjust to life in a household where he is one of five and where, with young siblings in the household, there is a greater expectation of him to fit in with the demands of life in a busy household and on occasions to deal with disputes between his father and step-mother. These are not issues with which he has to grapple in any way in his mother’s household.
I find that X’s best interests will be met by spending regular time with his father on a weekly basis over the next five to six months during the day only and then for the six months thereafter for twenty four hour periods each weekend. Thereafter, I find that X should spend time with his father on alternate weekends from the conclusion of school Friday to the commencement of school Monday (or Tuesday in the event of a long-weekend). I find that it is in his best interests to have some extra time in school holidays in 2018 but at a limited level.
Taking into account the father’s evidence as to his work commitments, I find that the proposal of the Independent Children’s Lawyer with respect to an extension of time during school holiday periods to be appropriate.
I intend to make orders for the parents to attend at post separation and parenting courses if they have not already done so and for X to attend at ‘Banana Splitz’ if that has not already occurred.
The mother sought an order for handovers to occur at a children’s contact service. The mother’s evidence was that by the time of trial she had been able to afford to re-register and run her motor vehicle. I find that it is in X’s best interests for the mother to deliver X to the father outside of his premises at the commencement of X’s time with him and for the father to return X to the mother outside of her residence at the conclusion of that time.
At the time that the orders involve time commencing at the conclusion of school, Friday handovers on the Fridays other than during school holiday times can occur at school. When the conclusion is extended to the Monday morning, again handovers can occur at school other than during school holiday time.
With handovers outside of each other’s residence there is no need, taking into account X’s age, for either party to come into contact with the other in that X can simply exit the motor vehicle and go into the house of the other parent.
For these reasons I make the following orders.

I certify that the preceding two hundred and sixty seven (267) paragraphs are a true copy of the reasons for judgment of Judge Mead

Date: 22 November 2017

[2017] FCCA 2847

22 November 2017

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Remedies