CHAMBERS & HEEREN

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHAMBERS & HEEREN

[2019] FCCA 1230

Catchwords:
FAMILY LAW – Equal shared parental responsibility – living arrangements – instability of living arrangements – intra-state relocation – meaningful relationship with both parents – best interests of the child.

Legislation:

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

Applicant:

MR CHAMBERS

Respondent:

MS HEEREN

File Number:

DGC 962 of 2017

Judgment of:

Judge McNab

Hearing date:

27 and 28 February and 28 and 29 March 2019

Date of Last Submission:

29 March 2019

Delivered at:

Dandenong

Delivered on:

10 May 2019

REPRESENTATION

Counsel for the Applicant:

Mr Gates

Solicitors for the Applicant:

Connley McInnes Lawyers Pty Ltd

Counsel for the Respondent:

Ms Renwick on 27 and 28 February 2019

Solicitors for the Respondent:

KHQ Lawyers on 27 and 28 February 2019

Counsel for the Independent Children's Lawyer:

Ms Glaister

Solicitors for the Independent Children's Lawyer:

Madison Branson Lawyers

ORDERS

The Applicant Father (‘the father’) and the Respondent Mother (‘the mother’) have equal shared parental responsibility for [X] born 2011 (‘the child’) save that the father shall have sole parental responsibility in relation to any mental health or counselling treatment or service to be provided to the child
The child live with the father.
The child spend time and communicate with the mother as follows:
(a)In the event the mother resides less than 60 km from the father’s residence, then:
(i)during school term periods:
A.from after school Friday until the commencement of school Monday commencing 10 May 2019 and in each alternate week thereafter with the mother to collect the child from the school on the Friday and to deliver the child to the school on the Monday; and
B.on the alternate week from the end of school Thursday until the beginning of school Friday with the mother to collect and return the child to school;
(ii)for 9 nights in the first and third school term holiday as agreed and failing agreement to commence from the conclusion of the last day of school before the holiday, with the time to conclude at 3.30pm on the last day;
(iii)for 7 nights in the second term holidays as agreed and failing agreement to commence from the conclusion of the last day of school before the holiday, with the time to conclude at 3.30pm on the last day;
(iv)during the long summer holidays for the first 3 weeks in odd numbered years and for the last 3 weeks in even numbered years save that the child to be returned to the father’s care for at least 3 nights before the commencement of the school year;
(v)the child shall spend the Mother’s Day weekend in the mother’s care and the Father’s Day weekend in the father’s care;
(vi)for Christmas as agreed and failing agreement the child shall spend from 3.30pm 24 December to 3.30pm 26 December in odd numbered years in the mother’s care and [X] shall spend that period in the father’s care in even numbered years;
(vii)By telephone or skype as agreed and in default of agreement each Tuesday and Thursday between 6 and 6.30 pm; and
(viii)As further or otherwise agreed
(b)In the event the mother is resident in Victoria more than 60 km from the father’s residence
(i)during school term periods, from after school Friday until 5pm Sunday commencing 10 May 2019 and in each alternate week thereafter;
(ii)for 10 nights in the first and third school term holiday as agreed and failing agreement to commence from the conclusion of school on the last day before the holiday, with the time to conclude at 3.30pm on the last day;
(iii)for 7 nights in the second term holidays as agreed and failing agreement to commence from the conclusion of school on the last day before the holiday, with the time to conclude at 3.30pm on the last day;
(iv)during the long summer holidays for the first 3 weeks in odd numbered years and for the last 3 weeks in even numbered years save that the child to be returned to the father’s care for at least 3 nights before the commencement of the school year;
(v)the child shall spend the Mother’s Day weekend in the mother’s care and the Father’s Day weekend in the father’s care;
(vi)for Christmas as agreed and failing agreement the child shall spend from 3.30pm 24 December to 3.30pm 26 December in odd numbered years in the mother’s care and [X] shall spend that period in the father’s care in even numbered years;
(vii)By telephone or skype as agreed and in default of agreement each Tuesday and Thursday between 6 and 6.30 pm; and
(viii)As further or otherwise agreed.
For the purpose of changeovers pursuant to order 3(a) that do not occur at the child’s school, the child shall be returned to the other party at change-over time being 3:30pm (unless otherwise stated in order 3(a)):
(a)at McDonald’s Town B, if the child is with the mother; and
(b)at McDonald’s in Town C (55 kms from Town B), if the child is with the father.
For the purpose of changeovers pursuant to order 3(b), changeover shall occur at the child’s school on school days and for changeovers which occur during periods the school is not operating then changeover shall occur (unless otherwise stated in order 3(b)) at 3:30pm at an agreed midpoint between the parent’s residences or in default of agreement, at the Town D McDonalds.
The parents be at liberty to use agents known to the child to effect changeover.
The mother and the father shall keep each other advised of any serious illness or injury to the child as soon as practicable including providing contact details of any medical practitioner providing treatment for the child and both parents be permitted to consult with the child’s doctors or dentists at their own expense if any.
The mother and the father do all acts and things to enable a passport be issued for the child.
The father shall hold the child’s passport and he shall make the child’s passport available to the mother in a timely manner in the event the mother wishes to travel overseas with the child and the mother shall return the child’s passport to the father at the conclusion of her trip.
The mother and the father be permitted to travel overseas with the child during periods the child is resident in their respective care on condition;
(a)they provide to the other parent not less than 28 days’ notice of the travel;
(b)they provide proof of purchase of a return airline or travel ticket for the child to the other parent in a timely manner; and
(c)they provide to the other parent an itinerary of the trip including where practicable telephone contact details.
The mother and the father be at liberty to attend all school events to which parents are normally invited to attend including but not limited to parent teacher interviews, school concert or award nights and working bees, if the event allows attendance at separate time such as parent teacher interviews the parents shall where practicable arrange to attend at separate times.
Until further order, the father, his servants and agents be and are hereby restrained by injunction from
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the mother, and
(b)discussing these proceedings,
to or in the presence or hearing of the said child or any of them and from permitting any other person so to do.
Until further order, the mother, her servants and agents be and are hereby restrained by injunction from
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the father; and
(b)discussing these proceedings,
to or in the presence or hearing of the said child or any of them and from permitting any other person so to do.
The mother and the father download and utilise a computer application such as “my mob” to note matters relevant to the welfare and ongoing care of the child.
The order appointing the Independent Children's Lawyer be discharged.
All extant applications be otherwise dismissed and the matter be removed from the Courts list of pending cases.

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

FEDERAL CIRCUIT COURT

OF AUSTRALIA

AT DANDENONG

DGC 962 of 2017

MR CHAMBERS

Applicant

And

MS HEEREN

Respondent

REASONS FOR JUDGMENT

Introduction

This proceeding relates to parenting arrangements for [X] born 2011 (“the child”). The parents have been unable to reach agreement on her living arrangements and have been involved in Court proceedings since 2 March 2017.
The central controversy of this matter is where the child shall live. A particular issue is the number of times the mother has moved residence, and whether these changes of residence have been in the child’s best interests.

Background

The parent’s, their relationship, and their relationship with the child

The Respondent mother (born 1981 and aged 37) and the Applicant father (born on 1973 and aged 45) commenced a relationship in 2008 and began cohabiting in Town B in July 2010. The parties separated in about August 2012, with the mother remaining in the party’s home in Town B. The father moved in with the paternal grandmother (who also live in Town B).
The mother has three children:
a)[Y] born 1999.
b)[Z] born 2005; and
c)[X] born 2011.
Mr E is the father of [Z] and he resides in Town B.
Since separation, the mother has relocated multiple times:
a)in September 2015 the mother relocates from Town B to Town C (55 kms from Town B);
b)on 25 January 2017 the mother relocates from Town C to Town F Town F (280 kms from Town B);
c)in December 2017, the mother relocated from Town F to Town C; and
d)on 20 May 2018 the mother relocates from Town C to Town F.
The reason for these moves are discussed below.
The mother has had primary care of [X] until orders were made by the Town B Magistrate’s Court on 26 June 2018. Despite the mother’s changes of residence and her having primary care, the child spent regular time with the father. The father’s evidence is that the child spent time with him as follows:
a)54 out of 127 nights in the period from 25 August 2012 to 31 December 2012;
b)for 141 nights between 1 January 2013 and 31 December 2013;
c)for 128 nights from 1 January 2014 to 31 December 2014;
d)for 113 nights from 1 January 2015 to 31 December 2015;
e)for 110 nights from 1 January 2016 to 31 December 2016.
In 2013 the father met his now wife Ms G and they began to live together in February 2015. They married on … 2015.
On … 2016 the father and Ms G had a baby, [H].

Issues raised in this proceeding

September 2015 relocation

In September 2015 when the mother relocated to Town C, the father spent alternative weekends with [X]. She was enrolled in and attended a local primary school in Town C.

January 2017 relocation

On 25 January 2017 the mother advised the father that she was moving to Town F and unilaterally suspended time and communication between the father and child.
The father filed an application for a Recovery Order on the Town B Magistrates Court on 2 March 2017. Interim consent orders were made on 7 March 2017 by the Town B Magistrates Court for the proceedings to be transferred to the Federal Circuit Court with a family report to be prepared at the father's costs. This family report was prepared by Ms I and released on 5 May 2017. The interim consent orders also provided:
[3] That the child spend time and communicate with the Father as follows:
a. on each alternate weekend as follows:
i. on the first weekend from 8.00pm Friday to 2.00pm Sunday, with the mother to drop off and collect the child with changeover to occur at Restaurant J in Town B; and
ii. on the second weekend from the conclusion of school Friday to 6.00pm Sunday, with the father to collect and return the child with changeover to occur at the Restaurant K in Town F.
The matter was listed for mention in the duty list in the Federal Circuit Court in Dandenong on 9 May 2017. At this hearing final orders were made by consent which provided, amongst other things (emphasis added):
1. That the Mother and Father have equal shared parental responsibility for the child [[X]…].
2. That the child live with the Mother
3. That the child spend time and communicate with the Father as follows:
a. On each alternate weekend as follows:
i. on the first weekend from 8.00pm Friday to 2.00pm Sunday, with the Mother to drop off and collect the child with changeover to occur at the Restaurant J in Town B; and
ii. On the second weekend from 4.00pm Friday to 6.00pm Sunday, with the Father to collect and return the child with changeover to occur at the Restaurant K in Town F
[…]
12. The Mother be restrained and injuncted from relocating from Town F without Court Order or the Father's written consent.
Consequent upon those orders, the mother arranged for the child to attend the local primary school close to her residence in Town F.

December 2017 relocation

In December 2017, the mother moved from Town F to Town C, taking [X] and [Z] with her. The mother cohabitated with her partner, Mr L whom she had been seeing since late 2014. She gave evidence that the romantic relationship between her and Mr L ended by the end of January 2018.
On 14 January 2018 the mother was taken to the emergency department of the Hospital M (‘the Hospital’). Her subpoenaed medical files states that she presented as having taken an overdose of Mr L’s diazepam.

May 2018 relocation

On 20 May 2018 the mother relocates back to Town F after advising the father of her intention to move on 29 March 2018.
On 18 June 2018 the father files an application for a Recovery Order in the Magistrates Court at Town B. On 26 June 2018 this Recovery Order was made by the Magistrates Court in Town B with interim orders for the child to live with the father and spend time with the mother.
In July 2018 the father moved into a new home in Town B with his wife, [H] and [X].

Preparation for this hearing

The parties utilised the Family Dispute Resolution Services in August 2018. However, the parties were unable to successfully resolve matters.
On 24 September 2018 Judge Hartnett made interim orders for a second family report to be conducted. This report was prepared by Ms N and released to the parties on 6 February 2019. The parties also consented to undergoing psychiatric assessments.
The matter was set down for two-day trial commencing 27 February 2019.
The matter proceeded to be heard on 27 February 2019 with the mother being represented by counsel and solicitors. The matter did not finish on 28 February 2019 and was consequently adjourned part heard to 28 March 2019. The hearing took a further two days.
Prior to 28 March 2019, the mother’s legal representatives informed the Court of their intention to withdraw as practitioners. The court granted their application and the mother represented herself at the resumption of the hearing on 28 March 2019.

Proposals of the parties:

When the hearing resumed on 28 March 2019 after being part-heard, the mother informed the Court that she had been contemplating moving back to Town C. She proposed this on the basis that it is in the best interests of [X] and [Z] as [X] and [Z] would be closer to both of their parents (with the mother being closer to Town B where [X] resides, and [Z] being closer to his father who also lives in Town B).
The mother’s plan as presented to the Court was that she and [Z] would live in a house that is currently rented by Mr L. Mr L would not be present in this house as he was moving in with his partner but he would remain on the lease. The mother would be funding this situation by working for Mr L who has been considering expanding his business. At the current time, Mr L is a tradesman but gave evidence he hopes to expand his business by engaging independent contractors.
As a consequence of the mother’s plan to move from Town F to Town C, the father and the Independent Children’s Lawyer handed up alternative proposals on the final day of hearing. The mother did not hand up an alternative proposal but did make oral submissions on the final day.
The father’s amended proposal is that:
1. That the Father and Mother have equal and shared parental responsibility for the child [X] born 2011 (“the child”).
2. That the child live with the Father.
3. That the father have sole parental responsibility for the child in respect of medical/health and education decisions regarding the child save that:
a. The Father inform the Mother in writing prior to making such decisions.
b. The Father to consider the Mother’s written response received within 7 days of the Fathers writing to making such decision or within 2 hours if a serious medical emergency is required.
[…]
5. That the child spend time and communicate with the Mother as follows:
a. On each alternate week as follows:
i. for 3 nights from the end of school day on the Friday until the beginning of the school day on the Monday following, with the mother to collect the child from school on the Friday and deliver the child to school on the Monday morning.
[…]
b. On the other week as follows:
i. For 1 night from the end of school on Thursday until the beginning of school on Friday with the mother to collect and return the child to school.
[…]
11. If the Mother relocates further from Town B than 65kms from the Town B Post Office, then the Mother will relinquish during the term time with the child and have school term holiday time and Christmas holiday time only with the child as set out above.
The Independent Children’s Lawyer’s amended proposal is:
1. The Mother and the Father have equal shared parental responsibility for the child [X] born 2011 save that the Father shall have sole parental responsibility in relation to any mental health or counselling treatment or service to be provided to the child
2. The child live with the Father
3. The child spend time and communicate with the Mother as follows:
A. In the event the Mother is resident no more than 60 km from the Father’s residence
a) During school term periods, from after school Friday until the commencement of school Monday commencing [date] and in each alternate week thereafter
[…]
B. In the event the Mother is resident in Victoria more than 60 km from the Father’s residence
a) During school term periods, from after school Friday until 5pm Sunday commencing [date] and in each alternate week thereafter
[…].
As stated, the mother did not hand up a proposed order. However, she made oral submissions that equal shared parental responsibility should be ordered. She submitted that she was willing to move to Area O so that she can take an active part in [X]’s life. Accordingly (and unlike her original proposed orders), the mother seeks to have an order for equal spend time. She also stated that she wishes to enrol [X] in counselling with a counsellor or psychologist.

Evidence at Trial

The father relied upon the following documents:
a)Affidavit of the father’s Evidence in Chief filed 5 February 2019;
b)Affidavit of the father filed 18 June 2018;
c)Affidavit of the father filed 21 September 2018;
d)Material subpoenaed from:
i)Hospital M;
ii)Department of Health and Human Services, Victoria;
iii)Department of Human Services, Commonwealth;
iv)Primary School P;
v)Parkwood Green Medical Centre;
vi)Caroline Storti;
vii)Town B 545 Primary School;
viii)Victoria Police;
ix)Medical Centre Q; and
x)Town B Dental Service.
The mother relied upon the following documents:
a)Response to Initiating Applicant filed 26 June 2018;
b)Affidavits of Dr R, Consultant Psychiatrist filed on 22 February 2019;
c)Trial affidavit of Ms Heeren filed on 13 February 2019;
d)Affidavit of Ms T, psychologist filed 14 February 2019;
e)Affidavit of Mr U filed on 13 February 2019;
f)Affidavit of Mr L filed on 12 February 2019; and
g)Affidavit of Ms V filed on 13 February 2019.

The Independent Children’s Lawyer relied on the evidence in the affidavits of:
a)Family Report released 6 February 2019 prepared by Ms N;
b)Affidavit of Dr R filed 22 February 2019 (relating to the father); and
c)Affidavit of Dr R filed 22 February 2019 (relating to the mother).

The father’s evidence

The father filed a lengthy affidavit sworn 3 February 2019 (‘the father’s trial affidavit’). The father’s trial affidavit summarises the background of his relationship with the mother. The father’s trial affidavit also outlines the arrangements that have been in place prior to the orders of May 2017 and the arrangements in place since March 2018 when orders were made for [X] to live with him and spend time with the mother.

January 2017 relocation

The father's trial affidavit also explains his rationale for agreeing to the orders of May 2017 for the child to live with the mother in Town F. It is clear from his evidence that he read the family report of Ms I and had taken into account the findings and recommendations made in this report. At [62] of the father’s trial affidavit he states that:
Ultimately, I accepted Ms I’s opinion at paragraph 19, that at that stage, there was no compelling reason to remove [X] from the mother’s care provided that she agreed to facilitates the ongoing relationship between [X] and I and complied [with] the orders made and in particular with Clause 12 injuncting her from relocation without court order or my written consent.

December 2017 relocation

On 24 October 2017 the mother notified the father that she was planning to move to Town C. The father agreed to this move subject to further moves being contingent upon his approval: [66] of the father’s trial affidavit. Despite the mother moving to Town C, and thus closer to Town B, at [64]-[68] of the father’s trial affidavit he recounts his concern that the decision was also indicative of the mothers unstable thinking. He was concerned that it showed her inability to prefer [X]'s interests over her own and that the mother’s frequent relocation was not in [X]'s best interests.
On 28 November 2017 the parties entered into a Parenting Plan, which varied the orders made on 6 September 2017, agreeing to the relocation from Town F to Town C on the condition that:
the mother be restrained and injuncted from relocation from the Town C area, without Court Order or the Father's written consent.
This condition was also included in a parenting plan that the parties consented to on 23 December 2017. In accordance with this agreement, the mother relocated Town C around Christmas 2017.

May 2018 relocation

On 29 March 2018 the father gave evidence that he received an email from the mother stating, amongst other things, that she was relocating to the Town F area over the Easter holidays. The father was concerned this was not in the child’s best interests as she had just recently transitioned from the school in Town F to the school in Town C. The father did not agree to her moving again as was his right under the previously mentioned orders.
The father then filed an application for a Recovery Order in the Town B Magistrates Court on 18 June 2018. The Town B Magistrates Court made an order on 26 June 2018 that stated:
1. That paragraphs 2, 3 and 12b of the orders made 6 September 2017 be suspended
2. That the child […] live with the father.
3. That the child be enrolled in and attend Town B Primary School
[…]
7. That the respondent mother spend time and communicate with the child:
(a) From 3.15pm Friday to 3.15pm Sunday each alternate week;
The Magistrate also ordered a Recovery Order for the child.
The mother called into question the father’s capacity to parent effectively, particularly with him working variable hours as a security guard. The father has given evidence of the time he has spent with [X] since she began living with him on 26 June 2018. The father testified that his work is flexible. Under cross examination he gave evidence that despite his work commitments, he would be present at dinner time and would put the child to bed. I accept the evidence of the father in this regard. He came across as a committed parent that has been able to balance his parental obligations to his daughter and his work duties.
The paternal grandparents also gave evidence in relation to their role in the child’s life. Both grandparents impressed the Court as people who are primarily interested in the well-being of [X] and [H] and were available to assist the father and his wife in the care of the children. I do not accept that they have failed to cooperate with the mother in relation to family events or worked to obstruct the relationship between the mother and [X]. Both the paternal grandparents were measured in their responses to questions asked in cross examination. Their active role in the child’s life in the past 12 months is evidence of their commitment and value to the child’s life.
The father's wife, Ms G, also gave evidence by way of an affidavit sworn on 25 January 2019 and by oral testimony. Ms G is aged 35 and was born in Country W. She came to work in Australia in May 2013 and met the father around December 2013.
The father and Ms G lived together in the paternal grandmother's house in Town B in February 2015 and married on … 2015. They have been living in their own home in Town B since October 2018. I accept Ms G’s evidence that she loves and cares for [X] and has sought to shield [X] from the effects of court proceedings. I accept her evidence that she has not discussed the mother or court proceedings with [X].
Ms G also gave evidence of the father’s work commitments and how the father comes home during work hours to put [X] to bed. Her evidence did not strike me as being rehearsed and there were sufficient differences in detail between her evidence and the father's evidence to suggest that they had not discussed her evidence.
The evidence placed before the Court by the father indicates that the father’s household is a stable and loving one. It is clear that the father cares for his daughter and, alongside assistance from his wife and his parents, that [X] is well looked after. The school reports from the Town B Primary School indicate that [X] is doing well at school, is happy and is achieving good results notwithstanding the disruptions and distractions in her life.
The mother through cross examination sought to suggest that the father was previously involved in taking steroids. She relied on a letter dated 16 October 2012 which terminated Mr Chambers’ employment as a security guard for allegedly having high levels of testosterone in his bloodstream. The father denied that the elevated presence of testosterone was a result of illegal steroid use and said that he had been prescribed testosterone. He also said that he had not contested the unfair dismissal of his employment because he did not enjoy working as a security guard and therefore did not seek either reinstatement or compensation and instead obtained alternative employment. Those explanations do make sense.
I do note that there is no evidence that the father associates with people who may place [X] in danger nor of any police involvement in the father’s life.
The Independent Children’s Lawyer also tendered into evidence a report from Dr R (a psychiatrist). Dr R’s report expressed the view that the father did not suffer from a psychiatric illness.

The mother’s evidence

The mother relied upon her affidavit sworn 13 February 2019 (‘the mother’s trial affidavit’). The mother’s trial affidavit sets out her account of the relationship between her and the father and includes events which occurred prior to the matter coming to court in 2017.
At [39] of the mother’s trial affidavit, the mother alleges she moved from Town C to Town F in January 2017 because of:
the constant abuse from Mr Chambers and the bullying from [the paternal grandmother] was causing me significant stress. I felt intimidated and I did not feel that I was able to live my life. I was being criticised in relation to everything I did for [X].
It is plain from her evidence that there has been a significant break down in her relationship with the father to the extent that communication is very difficult, indeed, fraught.
The mother’s relationship with the paternal grandparents is also poor. The mother has made allegations that they have bullied her. I do not, however, accept that this has occurred. The mother’s own evidence on this point is inconsistent, deposing that she had invited the father and the grandmother to Christmas despite being bullied by them:
In December 2016, [the paternal grandmother] asked when Mr Chambers could spend time with [X] at Christmas. I told her that we had plans to spend time with my family in Town F for Christmas that year. To avoid conflict, I extended an invitation to Mr Chambers, [the paternal grandmother], Ted and their family to join my family on Christmas day. This invitation was rejected by [the paternal grandmother] on behalf of Mr Chambers and their family.
It is difficult to accept the mother’s allegations of bullying when, on her own evidence, she extended such an invitation.
At [60]-[65] of the mother’s trial affidavit she gives evidence of her move from Town F to Town C in December 2017. She asserts at [62] that she considered moving back to Town C so that [X] would be closer to the father as this may help “alleviate some of the pressure I was feeling from” the father.
The mother gave evidence that upon emailing the father indicating that she may move to Town C, he (at [62]) “refused to grant me permission to move unless I signed a document stating that I would not relocate out of Town C with [X] without his consent or permission of the Court”.
After signing the document, the mother moved to Town C and into a house with her then partner, Mr L.
The mother’s romantic relationship with Mr L ended in mid-January 2018 and in May 2018 she moved from Town C back to Town F. She gives evidence at [66] that this is not due to her relationship breaking down, rather:
I found [the father’s] behaviour so difficult to manage that I felt I could no longer continue to live in Town C or in Area O. I also found it difficult living so far away from my family support in Town F … Eventually [the father’s] harassment became too much for me to handle.
The mother’s time in Town C (between December 2017 and May 2018) is punctuated by an incident where she was admitted to the Hospital for an overdose. In her oral evidence the mother claimed to have consumed around 7 sleeping tablets (diazepam). She also related this claim to Dr R. Her claim to have taken only 7 tablets is in contrast to the Hospital notes which recorded that she had consumed around 50 tablets. The mother denies this number, explaining that the reference to 50 tablets is a reference to the number of tablets in the bottle.
The mother has sought to downplay the significance of her overdose in her evidence. It receives brief mention in the mother’s trial affidavit at [84]-[85]. It is accepted, however, that this incident was not treated as a suicide attempt by the Hospital, rather, as being indicative of the mother being overwhelmed by the circumstances she found herself in (her relationship with Mr L having failed, and not being able to move to Town F without the father’s consent).
Returning to the mother’s fear of the father, it is notable that no evidence was produced to support a finding that the father is a risk to the mother. There has been no evidence to substantiate her claims that she is unable to reside in Town B, let alone Area O. Further, her claim is in direct contrast to her proposal made late into the trial that she relocate to Town C (which is within Area O) in order to facilitate her time with [X].
The mother has given evidence that she now attends a psychologist for therapeutic counselling in order to develop coping strategies to deal with anxiety and stress. She asserts that her stress is mainly due to these proceedings. The mother was examined by Dr R whose report was released on 28 January 2019. I quote selectively from under Dr R’s heading ‘Opinion and Recommendations’:
1. In my opinion, [the mother] has suffered from an adjustment disorder with depressed mood and anxiety in the context of difficulties in the relationship and the court process.
2. I do not find she has significant evidence of this condition at present.
[…]
6. She should, of course, refrain from taking unprescribed benzodiazepines. I do not see a current indication for prescribing these or any other psychotropic medication.
7. Her current counselling is appropriate and should continue.
8. I do not see any major impediments from a mental health point of view to her care of the child.

Family Report

A family report was ordered by Judge Hartnett on 24 September 2018. Ms N, a family consultant of considerable experience, prepared a family report following interviews with the mother, the father, his wife Ms G, and [X]. The report, dated 30 January 2019, is a comprehensive document which helpfully summarises the history of the arrangements between the parties and the relevant family background. I note that no issues were raised during Ms N’s evidence in relation to the background history of the matter.
Ms N identified the risk factors under the headings of ‘Family Violence and Abuse’, ‘Child Safety and Wellbeing’, ‘Alcohol and Substance Use’ and ‘Mental Health’.
Under ‘Family Violence and Abuse’ at [14] she noted:
Counter allegations made by both parties engaging in abusive and aggressive behaviours particularly prior to separation. Maternal allegations made of harassing behaviours by the father when the maternal family lived in Town C.
Under ‘Child Safety and Wellbeing’ at [15] she noted:
Concerns identified by both parties in respect to the emotional impact upon [X] both pre and post separation. Paternal concerns raised in relation to [X] being at risk of physical and sexual abuse by her brother [Z] aged 13 years, these allegations [being] denied by the mother.
Under ‘Alcohol and Substance Use’ at [16] she noted:
Concerns alleged in this area by the father and denied by the mother.
Under ‘Mental Health’ at [17] she noted:
Paternal concerns raised in this area in relation to maternal mental health. Note is made that the parties have attended for psychiatric assessment.
In relation to the issues in dispute identified during assessment Ms N stated between [18]-[21]:
There are continuing and identified issues in relation to parental communication and decision making with lack of agreement in relation to future parenting arrangements, both parties proposing that [X] live in their primary care.
The issue of maternal compliance with court orders particularly in relation to relocation matters.
Serious paternal allegations made in relation to [X]’s safety in the presence of her brother, [Z] aged 13 years.
The emotional impact upon [X] in respect to her particular family circumstances and changed primary care with consideration to be given to any views expressed by this child and future parenting arrangements that are in her best interests.
Ms N also gave oral evidence at the hearing. Her evidence was carefully considered and she plainly had a clear knowledge of the material that she had to consider for the purpose of making report and there was certainly no suggestion that she was aligned to one particular party or position.
In relation to the adult relationships, Ms N identified that there had been a clear breakdown in the capacity of the adults to communicate in relation to [X].
Ms N described [X] at [34] as:
appropriately presented on the day of the interviews impressing as a well-cared for child. [X] was described as healthy and achieving normal developmental milestones for her chronological age
Ms N continued at [35], that “[X] impressed as a friendly, bright, engaging and verbally expressive girl”.
[X] is reported as describing a loving relationship with both her mother and father. In relation to her brother [Z], [X] sates, at [37], that [Z] was:
a good brother, he lets me play with him, sometimes he is nice to me and sometimes he is mean, sometimes he hurts me and it isn’t an accident and he says rude stuff, this makes me feel sad.
This opinion appears to be the extent of the comments made by the child in relation to [Z] as recounted to Ms N.
Ms N also recounted the father's view that [X] loves her mother and wants to spend time with her. Ms N notes that the father believes that [X] has also developed a positive relationship with his wife and [H].
A notable observation of Ms N was the lack of interaction between the father and the mother. Ms N noted that the parties did not engage in greetings or come into contact on the day of the interviews. Their lack of cordiality is evidenced in their divergent views on [Z]: Ms N noted that the sibling relationship between [X] and [Z] constituted a major difference of parental opinion and she considered that the court would benefit from further information in relation to [Z] including a report from his treating psychologist. Ms N stated at [50] that:
the comments made by [X] in relation to [Z] and his behaviour towards her require acknowledgement with a requirement for [the mother] to be sensitive to these concerns and to intervene appropriately in order to ensure [X]’s safety and well-being whilst in maternal care.
Ms N was aware of the many considerations that must be taken into account when making recommendations of who [X] should live with. Ms N outlines these circumstances at [51]:
She [[X]] has experienced a major change in her living arrangements and relationship with each parent from June 2018. It appears that [X] has been able to settle into paternal care without major difficult and Mr Chambers appropriately meeting her needs. However this situation is complicated by a significant reduction in respect to maternal time, this acknowledged by [X] to be an issue for her. There are additional practical challenges given the geographical distance between the parental home locations in Town F and Town B, this directly impacting on the opportunity for [X] to spend additional time in maternal care. It is considered that [X] requires stability in her living arrangements and will benefit from exposure to parental conflict and strongly held personal views of the other parent. It is acknowledged that [X] has a developed bond with her mother, this parental relationship being significant for her. However some caution is required in changing [X]’s living arrangements at this time necessitating another change of school and further upheaval.
After considering due consideration, Ms N, at [52]-[58] and [60], recommends:
That [X] remain at this time in paternal primary care.
That [X] continues to have the opportunity to spend regular and planned time in maternal care continuing the current arrangements with further consideration to be given to additional maternal time when possible during school terms and school holiday periods, both in Town F and the Town B areas.
That [X] not be exposed to parental conflict or negative views in respect to the other parent or extended family
That the parties exchange information in respect to [X] by text messaging or email
That [X] not be subject to verbal, physical or sexually inappropriate behaviours by the parties or other family members.
That the mother continue to engage in counselling with her current Psychologist.
That the Court be provided with a report from [Z]’s [sic] treating Psychologist in order to more fully understand any behavioural challenges of this young adolescent.
That consideration be given to the parties [to engage] in a Parenting Orders Program…

Mother’s proposed relocation to Town C

During her oral testimony, Ms N was informed of the mother’s proposal that the mother relocate to Town C (55 kms from Town B), live in the house rented by Mr L and that he would employ her.
When asked about the mother’s proposal for equal shared time between the two households, Ms N was not inclined to agree that equal shared time was appropriate in this case. She expressed this opinion because of the already fraught parental relationship and the likelihood that requiring the parties to cooperate would further exacerbate the situation. Ms N did not believe that the requisite level of cooperation could be achieved by the parents at this time and therefore recommended against such orders being made.

Ms N did recommend that if the move to Town C occurred, the mother’s proximity to [X] would allow the mother and [X] to spend more time together (a desire [X] expressed previously).

Consideration

In making a parenting order (s 64B of the Family Law Act 1975 (Cth)),[1] the Court must regard the child’s best interests as the paramount consideration: s 60CA and s 65AA. Accordingly, I must consider the factors in section 60CC to determine what is in the child’s best interest.
[1] All references to sections of an Act are a reference to the Family Law Act 1975 (Cth) unless otherwise attributed.
This analysis will enable me to determine whether the presumption of equal shared parental responsibility is maintained consistent with section 61DA.
I will then consider the child’s living arrangements pursuant to section 65DAA.

Best Interests of the Child

s 60CC(2) – Primary Considerations

s 60CC(2)(a) – the primary considerations are: (a) the benefit to the child of having a meaningful relationship with both of the child’s parents

The orders proposed by the Independent Children’s Lawyer (subject to minor amendments) will allow the mother to maintain her strong bond with her daughter whilst providing [X] with a stable home environment. It is undoubtedly in [X]’s best interest to spend time with both her parents as they both clearly love and care for her. [X] has also expressed this desire clearly to Ms N.
If the mother does move back to Area O this will be beneficial for her relationship with [X]. The decrease in distance between [X]’s home in Town B and the mother will enable greater involvement in [X]’s life.
If the mother does not relocate, the orders remain appropriate given the need to retain stability in the child’s life and her connection with the mother.

s 60CC(2)(b) – the primary considerations are: (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

In my view the orders proposed by the Independent Children’s Lawyer (subject to minor amendments) are those that are most likely to protect the child from physical or psychological harm, from being subjected to abuse, neglect, or family violence and will also benefit the child by having a meaningful relationship with both of her parents.

s 60CC(3) – Additional Considerations

s 60CC(3)(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 child has clearly expressed the view that she wishes to spend time with both parents. Ms N noted the child saying that her current time with the mother was “not enough” and that she feels “good, calm, comfortable and calm” living with her mother.
The child says similarly positive things about her current living arrangement – that it was “good, Ms G is nice and funny and she buys me gifts”. She also noted that her home environment is “just right” and that “I feel, good, calm and happy”.
The child was unequivocal that all members of her family were important to her.
I am satisfied that the orders proposed by the Independent Children’s Lawyers (subject to minor amendments) give expression to the child’s view.

s 60CC(3)(b) – the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)

The orders reflect the close relationship that she has with each of her parents and also enables her to continue her relationship with both her maternal and paternal grandparents.

s 60CC(3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child

There have been periods when the father has not spent time with the child but only because the child has been withheld from him. It is evident that both parents wish to participate in the long-term decisions in relation to the child.

s 60CC(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

There has been no failure on the part of the parents to fulfil their obligations to maintain the child.

s 60CC(3)(d) – The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

The arrangements that these orders give effect to, to a significant extent, have been in place since the orders of 26 June 2018.
The child continues to maintain a relationship with each of the parents and with her maternal siblings ([Z] and [Y]) and her paternal sibling ([H]). It has not been suggested the arrangements proposed by the Independent Children's Lawyer will undermine any of those relationships in a significant way. Rather, it is likely that if the mother does move to Area O, she will increase her (and her other children’s) time with [X], thus improving their relationship.

s 60CC(3)(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;

The Independent Children’s Lawyers proposed orders mean that the child will regularly communicate with each of her parents. In the event that the mother moves to Town C or to Area O, this is likely to beneficially affect the child's ability to maintain personal relations with her mother. If relocation does not occur (and the mother stays in Town F), the child will still be in a position to have regular and meaningful contact with her mother.

s 60CC(3)(f) – the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;

The father made pointed criticisms of the mother's capacity to care for the child, pointing particularly to the mother's attendance at the emergency section of Hospital S. He further alleged alcohol abuse and that the mother has been on the phone and texting while driving. On balance, however, neither parent lacks the capacity to care for the child. The difficulties that the mother has experienced are reflective of the stress that she has been under – resulting from her relationship failing and her attempts to uphold her responsibilities as a parent whilst working and undergoing extensive travel.
However, for the reasons set out below at [103]-[112] I do have concerns that the mother tends to act impulsively and this is reflected in the regular relocations.
From the evidence put before this court and the evidence of how the child has been developing in the father’s care, I am confident the father is up to the task of looking after the child.

s 60CC(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;

Subject to what I have stated at [103]-[112], there is no issue in relation to the maturity or the lifestyle choices of either parent such that their maturity of lifestyle choices interfere with their capacity to care for the child.

s 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

There is no issue in relation to the attitude of either parent towards the child or to their responsibilities as parents that would impact on their capacity to care for their daughter.
An issue that was raised by affidavits and in trial was the mother’s attitude to her son [Z], particularly in regard to [Z]’s relationship with [X]. Without making a finding as to the father’s allegations, the Ms N noted the child’s concerns and the mother’s response. Ms N stated at [50] of her report that:
the comments made by [X] in relation to [Z] and his behaviour towards her require acknowledgement with a requirement for [the mother] to be sensitive to these concerns and to intervene appropriately in order to ensure [X]’s safety and well-being whilst in maternal care
The father had obtained a report from [Z]’s psychologist. He is receiving assistance for what appears to be difficulty in concentrating on tasks at school but there is no indication that he has been or will be a danger to [X]. The mother should be aware of the issues raised by the report and be mindful of [X]’s safety and wellbeing while in her care.

s 60CC(3)(j) – any family violence involving the child or a member of the child’s family

There have been allegations of family violence which are historical. I am of the opinion that these allegations do not impact the child and do not affect my consideration of this matter.

S 60CC(3)(v) –any other relevant matter

I have particular concerns about the mother's expressed arrangements to relocate to Town C and live in the house rented by Mr L and to become his employee. The mother was very vague about the employment arrangements between herself and Mr L. She was similarly vague as to the amount of rent that she would be required to pay and the security of her tenancy.
Mr L gave evidence by telephone (his attendance at court being impracticable as he was employed on a job a significant distance from the Court). Mr L gave evidence that he intended to allow the mother to reside in the house that was rented under his name and that he would be moving in to live with his girlfriend. Mr L confirmed to the court that he had not confirmed that such a situation was appropriate with the landlord.
Mr L stated that he would pay the mother a wage of $1,000 per week (after tax), although he had not discussed the wage or hours she was to work. Mr L gave evidence that he thought highly of the mother’s work skills and that she would be an asset to the administration of his business.
Mr L does not currently employ any other people and there is no guarantee that this venture will be a success. Despite Mr L appearing sincere in his desire to help the mother, I have real concerns about the reality of these particular arrangements. These plans have all the hallmarks of a significant decision being made on the run. I make these observations whilst being aware that Mr L is earning significant revenue through his current endeavours (between $4,000 and $6,000 per week). He will, however, have to pay tax, GST and presumably the costs of providing the services in his business as a plumber and gas fitter.
If the arrangements work for the benefit of the mother and Mr L that is a good thing. However, I am cautious about whether the arrangements can be made to work in the mid- to long-term.
The mother may be able to move to Town C and support herself separately of Mr L. The mother is currently working as a cleaning contractor and she gave evidence that she may be able to establish herself in that capacity in Town C or its surrounds.
I think it is good thing for her to live closer to Town B both for her and [X]. The travel between Town F and Town B is onerous for everyone concerned. However, she must be realistic about the arrangements that she makes that have an impact on her children.
I am in agreement with the recommendations made by the Ms N that the best interests of [X] are for her to remain in the primary care of the father. I am persuaded that the inability of the parents to communicate effectively at the best of times and as the mother’s proposed living arrangements are vague and uncertain, it would not be in the child’s best interests to order equal shared time.
The child living primarily with the father provides for stability in terms of the child’s living and school arrangements, and also allows the mother to settle into whatever work arrangement she wishes to make if she does locate to Area O.
The father proposes that, if the mother lives more than 65km from Town B, that the mother would spend no time with [X] during the term time (other than skype or telephone or other electronic communication). I do not believe this would be in [X]’s best interests having heard Ms N’s evidence that [X] would miss the mother terribly if she did not see her regularly during the school term.

Conclusion of s 60CC factors

I do not accept that it is in the best interests of the child for her to spend equal time with each parent. The parents lack any ability to cooperate and their inability to communicate effectively means that equal shared time is likely to be attended with significant conflict. This will not be in the best interests of the child.
The evidence before the court and the submissions made by the Independent Children’s Lawyer is that [X] needs stability in her life. I am confident that the orders proposed by the Independent Children’s Lawyer (subject to minor amendments) enable this.
I note that the mother has acted impulsively in the past, having moved many times which cannot be to the benefit of her children. I do not consider this to have been in [X]’s best interest, as she clearly needs stability as she has started school.
It is also clear that the father offers a stable and loving household that will be able to provide [X] with the stability she needs.
I am of the view that the spend time arrangements proposed by the Independent Children’s Lawyer (subject to minor amendments) are appropriate in these circumstances. Their proposed orders minimise the chance of parental conflict while also maximising the time the child spends with each parent.

Shared Parental Responsibility

As with all parenting orders, I am bound by s 61DA(1) to:
[…] apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
I accept the submissions made by the Independent’s Children’s Lawyer that it is in the best interest of the child that both the mother and father have equal shared parental responsibility. Both parents clearly love [X] and want to provide what is best for her.
The parties are, however, in dispute over whether the child needs, or whether it is appropriate, for her to receive counselling. The mother gave evidence that she believed that it is appropriate for the child to undergo counselling or have access to counselling to deal with matters arising from this proceeding or generally. However, there is no evidential basis that the child is in need of counselling whether by way of a counsellor or a psychologist. To have the child engage in such services as a matter of course is in my view not in the best interests of the child. The mother seemed to be insistent that the child undergo counselling notwithstanding that she did not put up any particular reason why that was appropriate.
I therefore accept, consistent with the submissions made by the Independent Children’s Lawyer, that equal shared parental responsibility should be limited in relation to any mental health or counselling treatment or service to be provided to the child.
In summary, the mother and father shall have equal shared parental responsibility save that the child can only receive a mental health or counselling treatment or service with the consent of the father.

Living Arrangements

s 65DAA – Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

As I have determined that it is not in the child’s best interest to spend equal time with the parents, I must consider s 65DAA(2):
(2) Subject to subsection (6), if:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
For the reasons set out above, it is clear that the child spending substantial and significant time with the mother is in the child’s best interest.
I have amended the proposed orders of the Independent Children’s Lawyer as a consequence of this. The orders now include a provision that (should the mother relocate within 60km of the father’s residence), the mother will have alternating weekends with the child, will spend time one night with the child during the other week and also have extensive holiday time. The mother will also be able to call the child twice a week, take the child on overseas holidays, and attend school events. This arrangement will enable the mother to be involved in the child’s daily routine.
If the mother does not relocate to Area O (or within 60km of Town B), considerations of distance and their effect on [X] become more important. In such a case, it is untenable for the child’s life in Town B to be disrupted by extensive travel and the mother will not have time with the child during the other week. She will, however, spend time appropriate to the distance – weekend time every two weeks, extra time during the holidays, important events and telephone communication (and access to school events should the mother be capable of travelling the distance).

Conclusion

For these reasons the court will make orders on the terms proposed by the Independent children's lawyer (subject to minor amendments) which are set out above.

I certify that the preceding one hundred and twenty-seven (127) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 10 May 2019

[2019] FCCA 1230

10 May 2019

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction