Cloakes and Heinz and Anor
[2019] FCCA 11
•15 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CLOAKES & HEINZ & ANOR | [2019] FCCA 11 |
| Catchwords: FAMILY LAW – Parenting – dispute between Mother, Father and Paternal Grandmother – risk of harm considerations arising out of violence and drug use – whether child should live with Mother in Brisbane – Orders in best interests of child. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: MRR v GR [2010] HCA 4 Sayer&Radcliffe [2012] FamCAFC 209 |
| Applicant: | MS CLOAKES |
| First Respondent: | MS HEINZ |
| Second Respondent: | MR CLOAKES |
| File Number: | WOC 231 of 2017 |
| Judgment of: | Judge Altobelli |
| Hearing dates: | 5-6 November 2018 |
| Date of Last Submission: | 6 November 2018 |
| Delivered at: | Wollongong |
| Delivered on: | 15 January 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gould |
| Solicitors for the Applicant: | Johnson Horsley Lawyers |
| Counsel for the First Respondent: | Mr Steward |
| Solicitors for the First Respondent: | Dawson Lawyers |
| Counsel for the Second Respondent: | Mr Reeves |
| Solicitors for the Second Respondent: | Williamson Isabella Lawyers |
| Counsel for the Independent Children's Lawyer: | Mr Ford |
| Solicitors for the Independent Children's Lawyer: | Acorn Lawyers |
ORDERS
Within 7 days of the date of these Orders, the Mother and Paternal Grandmother do all things necessary to enable the Child to transition into the Mother’s care.
The Child live with the Mother.
Subject to the provisions regarding consultation and communication in Order 4 below, the Mother have sole parental responsibility for the Child [X], born …2013, except in relation to the following:
(a)Any decision to change the Child’s name; and
(b)Any decision to change the Child’s residence that would result in the Child residing geographically further away from the Region 1 than he is currently residing.
The Mother communicate and consult with the Father and the Paternal Grandmother as early as possible prior to making any long-term decisions regarding the Child, and for the purpose of consultation with the Father, communication in writing or by text message is sufficient.
Notwithstanding the provisions of Order 3 above:
(a)The Mother shall be responsible for the daily care, welfare and development of the Child while he is living with her; and
(b)The Paternal Grandmother shall be responsible for the daily care, welfare and development of the Child while he is spending time with her and the Father.
The Child spend time with the Paternal Grandmother and the Father as follows:
(a)From 9:00am until 4:00pm on one Sunday each calendar month, as agreed between the Mother and the Paternal Grandmother;
(b)Commencing from the term 1 school holiday period in 2019, for one half of each school holiday period, with such time to take place in the first half in odd-numbered years and the second half in even-numbered years;
(c)If Easter does not fall during the school holidays, from the conclusion of school on Easter Thursday until 3:00pm on Easter Monday in 2020, and each alternate year thereafter; and
(d)At such other times as agreed between the parties in writing.
The Paternal Grandmother be present to supervise the Child’s time with the Father in Order 6 above.
To facilitate the Child spending time with the Paternal Grandmother and the Father in Order 6 above, the following shall apply:
(a)At the commencement of the Child’s time with the Paternal Grandmother and the Father, the parties shall meet at Sydney Airport at the pick-up/drop off point and the Mother be responsible for delivering the Child to Sydney Airport;
(b)At the conclusion of the Child’s time with the Paternal Grandmother and the Father, the parties shall meet at Brisbane Airport at the pick-up/drop off point and the Paternal Grandmother be responsible for delivering the Child to the Mother at Brisbane Airport;
(c)The parties shall ensure they or another agreed person personally accompany the Child on all flights to and from Sydney Airport until such age as the Child is allowed to travel as an unaccompanied minor in accordance with the relevant airline’s rules of travel.
(d)Each party will provide to the other a copy of the travel itinerary not less than 14 days prior to the commencement of the other’s time.
The Mother take all reasonable steps to ensure the Child communicates with the Father by way of Facetime or telephone calls on the occasions the Child is not spending time with the Paternal Grandmother and Father as follows:
(a)Each Wednesday at 6:00pm;
(b)On the Child’s birthday between 5:00pm and 6:00pm;
(c)At such other times as agreed between the parents.
The Mother take all reasonable steps to ensure the Child communicates with the Paternal Grandmother by way of Facetime or telephone calls on the Child is not spending time with the Paternal Grandmother and Father as follows:
(a)Each Monday and Wednesday at 8:00am;
(b)Each Saturday at 9:00am;
(c)On the child’s birthday between 5:00pm and 6:00pm;
(d)At such other times as agreed between the Mother and the Paternal Grandmother;
with such calls to be initiated by the Paternal Grandmother.
The Mother be restrained from consuming drugs or any illicit substances in the presence of the Child or be in any way effected by them whilst the Child is in the Mother’s care or control.
The Father be restrained from consuming alcohol, drugs or any illicit substances in the presence of the Child or be in any way effected by them whilst the Child is in the Father’s care or control.
In the event of Childhood illness or emergency, the party with whom the Child is with, contact the other parent forthwith to inform them.
The Mother, Father and Paternal Grandmother shall keep the other party informed at all times of their residential address and contact telephone number and inform the other party within 2 days of any change.
For the purpose of these Orders, communication by writing includes text messages.
The Paternal Grandmother and the Father be restrained from leaving the Child unsupervised with the paternal uncle, Mr A.
IT IS NOTED that publication of this judgment under the pseudonym Cloakes & Heinz & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 231 of 2017
| MS CLOAKES |
Applicant
And
| MS HEINZ |
First Respondent
| MR CLOAKES |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This case is about [X], born …2013. [X] will be 6 years old by the time these Reasons for Judgment are published. These Reasons explain why the Court has decided that [X] should live with his mother, and spend time with his paternal grandmother and father.
Background
The Applicant in this case is [X]’s paternal grandmother. She is 63 years old and lives in the Region 1 region of New South Wales. She is a medical professional. [X]’s paternal grandmother has been very actively involved in his life. She is clearly a significant person for [X]. Since December 2016, over two years ago, [X] has been in his paternal grandmother’s care almost continually. [X] has been very fortunate to have her in his life.
[X]’s mother is the First Respondent in this case. She is 25 years old and works as a tradesperson in a business. She lived most of her life in the Region 1 region of New South Wales, but in January 2017 moved to Queensland, initially with [X], but when I made an order for [X] to be returned to the paternal grandmother’s care in April 2017, the Mother remained there. She lives in a Brisbane suburb and appears to be very well supported by her brother, and his family.
[X]’s mother has had a very difficult life. Her childhood was less than ideal. As she grew up, and into adulthood, she struggled with the use of illicit drugs, mental health issues, and she was in a very violent relationship with [X]’s father. When [X] was born, he tested positive for illicit drugs. This was because his mother had been using throughout the pregnancy. The Mother’s case is that she moved to Queensland because she wanted to start a new life, away from the Father, and away from the drug culture of which she was a participant in the Region 1 region. Her case is that she has turned her life around. It is common ground that all of the Mother’s drug tests in recent history do not evidence a continued drug use by the Mother. A more significant issue, however, was the risk of relapse for the Mother.
[X]’s father is the Second Respondent. He is 27 years old, is currently unemployed but is looking for an apprenticeship, and lives in the Region 1. He too has had a difficult life which has involved drugs, alcohol, violent behaviour, and mental health issues. He has spent extensive periods in gaol during [X]’s life. Even the Father concedes that his relationship with the Mother was a violent one, but he characterises the violence differently to the way the Mother does.
The competing proposals
The Applicant Paternal Grandmother proposed Orders that would see that [X] remain in her care. She proposed that parental responsibility be shared between the Mother, the Father, and herself. [X]’s time with the Father would be as agreed between them. [X]’s time with his mother would be for one half of New South Wales school holidays, as well as electronic communication. The duration and frequency of [X]’s time with his mother would depend on whether she remained living in Queensland, or returned to the Region 1. The Paternal Grandmother also made an alternate proposal in the event that [X] should live with his mother. Her proposals for [X] to spend time with her depended on whether the Mother remained in Queensland, or returned to the Region 1. The Paternal Grandmother’s proposed Order is reproduced in the first schedule to these Reasons.
The Mother’s proposal was that [X] live with her and she have sole parental responsibility. It was clear from the Orders she sought, as well as her own evidence, that she intended to live with [X] in Queensland, and that she would not be returning to the Region 1 area, irrespective of the outcome of this case. The Mother proposed that [X] spend time with the Paternal Grandmother and Father one weekend each month and during half the school holidays. Bearing in mind that this would involve travel for [X], the Mother proposed a number of Orders in this regard. The Orders sought by the Mother are also reproduced in the first schedule to these Reasons.
[X]’s Father proposed that there be an order for equal shared parental responsibility for [X] between the parents and the Paternal Grandmother. He proposed that [X] continue to live with the Paternal Grandmother, and spend time with him as agreed between them, or failing agreement, on the second of each three weekends from after school on Friday to before school on Monday, as well as each Wednesday after school, and periods during the school holidays. He made a similar proposal in respect of [X]’s time with his mother. The Orders sought by the Father are also reproduced in the first schedule to these Reasons.
Towards the end of the evidence in the hearing, the Independent Children’s Lawyer indicated to the Court, through his Counsel, that the Independent’s Children’s Lawyer supported the Mother’s proposal, save for the introduction of overnight time between [X] and his father. No separate Minute of Order was provided.
It is clear, therefore, from the competing proposals set out above that the Court needed to decide where [X] would live, both in terms of which of the parties to this case, as well as the geographical location. The Court would also need to decide how much time [X] would spend with each of the important adults in his life.
The evidence
The Paternal Grandmother relied on the following documents:
a)Initiating Application, filed 1 March 2017;
b)Notice of Risk, filed 1 March 2017;
c)Affidavit of Ms Cloakes, affirmed and filed 30 October 2018;
d)Affidavit of Mr A, affirmed and filed 30 October 2018; and
e)Affidavit of Ms B, affirmed and filed 30 October 2018.
The Mother relied on the following documents:
a)Response, filed 13 April 2017;
b)Notice of Risk, filed 13 April 2017;
c)Affidavit of Ms Heinz, affirmed and filed 31 October 2018; and
d)Affidavit of Mr C, sworn and filed 30 October 2018.
The Father relied on the following documents:
a)Response, filed 1 November 2018;
b)Affidavit of Mr Cloakes, affirmed and filed 30 October 2018; and
c)Affidavit of Ms D, affirmed and filed 30 October 2018.
The deponents of each of the above affidavits were cross-examined. In addition the Family Consultant was cross-examined.
The following documents were tendered as exhibits:
a)Family Report, dated 20 August 2017;
b)Documents produced pursuant to subpoena to NSW Police;
c)Copy of provisional ADVO 2013 against Mr Cloakes; and
d)Four photographs identified by the Respondent Father.
The applicable law
The applicable law is found in Part VII of the Family Law Act (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) 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; and
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.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(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);
(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;
(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;
(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;
(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;
(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;
(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;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(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:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(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;
(m) any other fact or circumstance that the court thinks is relevant.
In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The parties characterised this case as a relocation case. A useful statement of the applicable law in these cases is found in the decision of the Full Court of the Family Court of Australia in Sayer&Radcliffe [2012] FAM CAFC 209 at paragraphs 47 to 54. The Court agrees, and reproduces this extract;
[47] It is a now well established principle that, whilst some special requirements may apply, relocation cases are guided and judicial officers bound by the same legislative pathways as other parenting cases under the Act. In other words, relocation is not to be treated as a discrete issue in the making of parenting orders (see Morgan and Miles (2007) FLC 93-343 at paragraphs 72 to 73, Palmer & Hammer (No 2) [2011] FamCAFC 196 at paragraph 28).
[48] A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider the competing proposals of both parents (see Palmer & Hammer (No 2) paragraph 76; Morgan and Miles paragraphs 80 to 81). It is not simply a matter of comparing the relocating party’s proposal against the status quo and allowing or denying relocation. Rather the Court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway.
[49] The provisions of the Act which form that legislative pathway have been reproduced at length by this Court many times (Taylor v Barker (2007) 37 Fam LR 461, Morgan and Miles (supra), Adams & Randall (2011) FLC 93-482). It is sufficient for current purposes to identify and summarise those sections contained in Part VII of the Act which govern decisions about children, and consider statements of the High Court and of this Court which guide their application in the context of relocation cases:
Ÿ Section 60B – Objects of Part and principles underlying it
Ÿ Section 60CA – Child’s best interests paramount consideration in making a parenting order
Ÿ Section 60CC – How a court determines what is in a child’s best interests
Ÿ Considerations relevant to relocation include:
ú Primary considerations: meaningful relationship with both parents
ú Additional considerations:
- nature of child’s relationship with parents and other persons
- extent to which parent has taken or failed to take opportunity to participate in decision-making, spend time and communicate
- likely effect of changes in child’s circumstances including effect on child of any separation from either parent, other child or other person with whom they have been living
- practical difficulty and expense of a child spending time and communication with a parent and whether that will substantially affect child’s right to maintain personal relations with both parents on a regular basis
- capacity of each parent and any other person to provide for the needs of the child
ŸSection 61DA – Presumption of equal shared parental responsibility when making parenting orders
ŸSection 65DAA – Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances (where an order for equal shared parental responsibility has been made, and such time is in the best interests of the child and reasonably practicable)
ŸSubsection 65DAA (5) – Factors the Court must have regard to in determining reasonable practicability:
(a) How far apart parents live
(b) Parents’ current and future capacity to implement an arrangement for equal or substantial and significant time
(c) Parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing arrangements
(d) Impact arrangements would have on the child
(e) Such other matters the Court considers relevant.
[50] The legislation therefore requires multiple layers of consideration, but does not provide express guidance as to the order in which such matters are to be considered, or what weight is to be attached, other than to commence with the presumption of equal shared parental responsibility and what follows from that decision.
[51] The operation of the legislation in relocation cases has been expressly considered by the High Court in MRR v GR (2010) 240 CLR 461, an appeal from an order of a Federal Magistrate refusing to allow relocation. In joint reasons for judgment, the Court (French CJ, Gummow, Hayne, Kiefel and Bell JJ) summarised the effect of the legislation and concluded that orders for equal or substantial and significant time are to be guided by the practical feasibility of such time, not merely its desirability. Their Honours said (pages 464-465, 467):
(6) Part VII of the Act (ss 60A-70Q) concerns children. It was substantially amended in 2006 by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). Section 60B(1) of the Act provides that it is an object of the Part to ensure that the best interests of children are met, inter alia, by “ensuring that [they] have the benefit of both of their parents having a meaningful involvement in their lives, to the maxiMum extent consistent with the best interests of the child”. Section 60CA requires that a court must regard the best interests of the child as the paramount consideration when deciding to make a particular parenting order in relation to a child. The considerations necessary to be taken into account in determining what is in a child’s best interests are listed in s 60CC.
(7) Section 65D(1) provides that the Court […] may make such a parenting order as it thinks proper, subject to the provisions of ss 61DA and 65DAB. Section 61DA(1) requires the Court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child. […] Section 65DAB requires the Court to have regard to any parenting [2012] FamCAFC 209 Reasons Page 21 plans entered into between the parties and is not relevant in this case.
(8) Sub-section (1) of s 65DAA is headed “Equal time” and provides: “If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.”
(Emphasis added.)
Sub-section (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the Court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the Court is obliged to:
“(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.”
Sub-section (3) explains what is meant by the phrase “substantial and significant time”.
(9) Each of sub-ss (1)(b) and (2)(d) of s 65DAA requires the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”.
…
(15) Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
(Footnotes omitted. Emphasis added in bold.)
[52] In this case an order for equal shared parental responsibility was made. The orders for time the children have with the father were on an ever increasing basis beginning with 9.00am to 12.00 noon on Saturday, fortnightly to 9.00am to 5.30pm on a Saturday, fortnightly. After May 2012 the time was to include a Wednesday from 2.30pm to 5.30pm. Short periods of time were provided for on special days including Christmas. These orders were hardly substantial and significant time. No reasons were given connecting the orders about time with the father and the order for equal shared responsibility.
[53] There can be no doubt that the decision the Federal Magistrate was required to make was very difficult. All relocation decisions are difficult, not the least because of the serious ramifications involved for the parents and the children. Clarification and guidance has been provided by decisions of this Court. We refer to the approach outlined in Starr & Duggan [2009] FamCAFC 115 (Boland, Thackray & Watts JJ) where their Honours said:
APPROACH TO APPLICATIONS INVOLVING RELOCATION OF A CHILD
33. The core principle consistently referred to in all appellate decisions involving challenges to parenting orders (including where an order for relocation is sought) is the “paramountcy principle” found in s 60CA. That is, a court must regard the best interests of the child as the paramount, but not sole, consideration.
34. The interplay between the paramountcy principle, the objects of the Act and the principles underpinning those objects is described in Goode & Goode (2006) FLC 93-286.
35. In McCall & Clark the Full Court referred (at paragraphs 58 to 60) to explanations given in other relocation cases of the order in which relevant provisions in Part VII may be applied when determining a parenting application. Their Honours (Bryant CJ, Faulks DCJ and Boland J) went on to explain (at paragraphs 61 and 62) that it will often not be an academic exercise to consider whether a child should spend equal time with both parents, as such an order is likely to be sought by a non-relocating parent.
36. The Full Court also pointed out that in seeking to address all of the relevant provisions of the legislation it is inevitable there will be “dual consideration” of some matters. This is so because consideration of the s 60CC factors does not take place in a vacuum and those factors will need to be assessed in the context of the competing proposals. Some of the matters to be considered under s 60CC(3), for example the likely effect of any change in the child’s circumstances and the practical difficulty and expense of a child spending time with a parent, must also be considered when applying s 65DAA, especially s 65DAA(5).
37. Thus the appellate decisions determined after the commencement of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) have set out a framework which a judicial officer may follow when determining applications for parenting orders, including an order that a child be permitted to relocate.
38. However, it is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:
• first make findings concerning the relevant s 60CC factors;
• then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
• then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.
39. Section 65DAA will provide a useful framework to consider the advantages and disadvantages, not only of the equal time and substantial and significant time scenarios, but also other outcomes which may be in the child’s best interests, including the proposal to relocate.
[54] The requirement to clearly rather than inferentially follow the legislative pathway in relocation cases was confirmed recently by this Court in Heaton & Heaton [2012] FamCAFC 139 (Coleman, Ainslie-Wallace and Ryan JJ). Their Honours said:
32. His Honour was first required to determine the children’s best interests by reference to the well known “primary” and “additional” factors referred to in s 60CC in the light of the competing proposals of the parents, that is, the father remaining in Sydney and the mother wishing to move with the children to Port Macquarie. Although the mother’s “fall back position” of remaining in Sydney to stay with the children required consideration, we consider that in elevating that concession to the status of a proposal resulted in his Honour’s failure to adequately evaluate her application to relocate and misapplication of the section.
33. It is only in this way that his Honour could have properly considered all of the relevant factors to come to a determination of the children’s best interests.
34. His Honour was then obliged to consider the provisions of s 65DAA(1).
35. As the plurality of the High Court said in MRR v GR (2010) 240 CLR 461 at page 466:
Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of the order… A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist…
36. Their Honours continued:
His Honour treated the answer to the first mentioned question, whether it was in the best interests of the child to have equal time with each parent, as determinative of whether an order should be made. His Honour did not consider, as he was obliged to do, whether it was reasonably practicable in all the circumstances…
37. We regretfully conclude that his Honour erred in his determination of the issue of equal shared time. By conflating the disparate issues of “best interests” and “reasonable practicability” the Federal Magistrate’s reasons for judgment do not demonstrate substantive, if not formal, adherence to the legislative pathway. As is apparent from a reading of them, with respect to his Honour, his consideration of each issue was vitiated by its dependence upon conclusions or assumptions with respect to the other issue. His Honour was required to first consider whether equal time was in the children’s best interests pursuant to s 60CC. If he concluded that it was, it was then necessary to consider the parties’ competing proposals and determine whether equal time was reasonably practicable. He did not do this.
38. These errors are such that the appeal must succeed. As the High Court said in MRR v GR (supra), the determination of both of the questions in s 65DAA(1) provide the source of jurisdictional power to make the order to which the section refers. It is not sufficient to argue that although his Honour’s findings do not follow that “pathway” when read as a whole, inferentially, it may be said that he made the determinations required of him in s 65DAA.
39. It is unnecessary for us to consider whether, generally, a “slavish” pursuit of the “legislative pathway” is not essential.
(Emphasis added in bold)
The evidence of the Family Consultant
Family Consultant Ms E prepared a Family Report dated 20 August 2018, which was released to the parties on the next day. This was based on interviews that were conducted on 30 July 2018. In addition, by the time Ms E gave evidence, she had also been provided with the trial affidavits and any further relevant documents.
The Court will deal with Ms E’s evidence first. The reason for this is that her evidence is the only independent and expert evidence in this case. In discussing her evidence, the Court will make observations drawn from the totality of the evidence that was before the Court. Ultimately, the Court will conclude that it accepts the evidence of the Family Consultant.
The Family Consultant set out some non-contentious background issues. Thus [X] lives with his paternal grandmother, and in her home also resides Mr A, the Father’s brother and [X]’s paternal uncle. The Father was not living in his mother’s home, but nearby. He had re-partnered. The Mother was not currently in a relationship. [X] was enrolled at kindergarten in a primary school in the Region 1. [X] had been spending time with his mother one weekend each month, in the Region 1, with his Mother travelling down from Queensland. This included overnight time. [X] had also spent time with his mother in Queensland for four nights during the July school holiday period. The parents had grown up together in the Region 1, attending the same high school, and forming a relationship in 2012. [X] was born seven weeks prematurely in 2013. At the time the parents lived with the paternal grandmother. When [X] was about 6 months old, his father was incarcerated for three years and eight months. During this period [X] and his mother lived in the homes of the paternal grandmother and maternal grandmother, as well as in independent housing for a period. In February 2017, the Mother took [X] to Queensland and lived with her brother, [X]’s maternal uncle, Mr C, and his partner, Ms F, and their three children.
It was common ground that during the relationship between [X]’s parents, there was physical and verbal abuse. The precise nature of that violence will be discussed below. In short, however, the Mother contended that it was coercive and controlling violence, whereas the Father contended that the violence was both mutual and reactive.
It is common ground that during the relationship between [X]’s parents they were significantly involved in the consumption of illicit drugs. Both parents have criminal records, with the Father’s substantially longer than the Mother’s.
The Family Consultant noted a number of issues in dispute, all of which will be discussed below. At paragraph 23, however, she identified that [X] was experiencing grief and loss in relation to his mother.
When the Family Consultant met with the Paternal Grandmother, the latter acknowledged a number of important matters which are summarised at paragraph 26 of the report:
Ms Cloakes acknowledged that, when Ms Heinz was ordered by the Court to hand [X] over to her, [X] was “upset to leave” Ms Heinz. She said that Ms Heinz told [X] that he was having a holiday with his grandmother. Ms Cloakes said that she knows [X] loves his mother as most children do, and that she knows [X] would prefer to live with Ms Heinz. She said that Ms Heinz is a “good Mum” when she is not drug affected. Ms Cloakes said that she assumed care of [X] because she considered him to be at risk and that Ms Heinz was also of this opinion. She said that her “gut” told her to take care of [X] and that she felt it was her responsibility as a grandparent to “step in”. Ms Cloakes said that, since [X] has been in her care, he has flourished and become “more outgoing” whereas previously he was “risk-averse”. Ms Cloakes said, however, that she does not want to deprive [X] of his mother, and that if a Judge considers [X] to be safe with Ms Heinz, she would be happy for him to return to her care. Ms Cloakes said that she would ensure [X] retains his relationships with the paternal family, should he return to Queensland to live with Ms Heinz. She said “I will make it happen”.
Whilst the Court found the Paternal Grandmother to be the person who has played the most significant constructive role in [X]’s life, and was in some respects a most impressive witness, the Court does not accept the evidence she gave in cross-examination in which she disagreed with the Family Consultant’s record of what she told her. It is more likely than not, the Court concludes, that the Family Consultant’s record is correct.
The Family Consultant met with the Mother. The Mother gave her a history of the difficult, indeed dysfunctional family life she experienced. Her mother’s partner who lived in the family home from when she was about 12 years old was murdered outside the family home. The family home was a place in which family violence was perpetrated, her mother used illegal drugs, and her younger half-siblings were removed from her mother’s care by the Department of Family and Community Services. Her mother, i.e. the maternal grandmother, was making progress in abstaining from illegal substances and was hopeful to have her children returned to her care.
The Mother explained her drug history as follows:
Ms Heinz said that she began using illegal drugs at the age of 14 or 15 years, at first using only cannabis but later methamphetamine, which she claimed she was introduced to by Ms Cloakes. She said that, although cannabis was her “drug of choice”, she used methamphetamine when she socialised. Ms Heinz said that she considers her use of illegal substances to be directly related to her experiences of family violence from Mr G, and later, from Mr Cloakes. Ms Heinz said that, during the pregnancy with [X], she abstained from using methamphetamine but continued to use cannabis as it alleviated her pregnancy-related nausea. Ms Heinz said that, since re-locating to Queensland in 2017, she has remained drug-free.
The Mother’s insight into her own turbulent life is an important issue for the Court. At paragraph 33, the Family Consultant records what the Mother told her in this regard:
Ms Heinz spoke of living a chaotic and turbulent life from a young age, a pattern that she said she has only recently been able to break. She said that, due to the dangers within her maternal family home, including the presence of Mr G and her mother’s use of illegal substances and mental health issues, it was often unsafe for her to reside there. She said that she frequently moved between the home of her mother and that of her father. Ms Heinz said that, when she entered the relationship with Mr Cloakes, and became pregnant with [X], it seemed like a relatively safe option to reside with him in the home of Ms Cloakes. She said, however, that Ms Cloakes’ home also contained many risks, including the sale of illegal drugs and other criminal activity by Mr Cloakes, and also allegedly by his brother, Mr A. Ms Heinz claimed that Ms Cloakes has always been aware that her sons are involved in the sale of illegal drugs and other criminal activity.
The Mother then provided an extensive history to the Family Consultant about the difficulties she experienced as a young mother in a household that she described as being violent, and which involved drug use, and allegedly sale by the Father.
The Mother reported to the Family Consultant that she decided to relocate to Queensland in January 2017 as she was, in effect, escaping the violence perpetrated by [X]’s father who was about to be released from prison. She described herself as being mentally and emotionally exhausted and needing to leave the Town A area
in order to become drug free and provide a safer, healthier home for [X]. She said that she knew [X] would grow up to criminal activity and drug using culture, and that she knew the only way to break the cycle was to move away in order to prevent [X] from being conditioned into the same lifestyle as his Father.
[Family Report, paragraph 40]
The Family Consultant met with the Father. He seemed to express genuine regret about having spent the majority of [X]’s young life in prison [Family Report, paragraph 42]. Referring to his own criminal record, the Family Consultant records at paragraph 44:
Mr Cloakes said that he was imprisoned for the supply of illegal drugs, being in possession of illegal firearms and multiple driving offences. He said, however, that he is happy to be transparent about his past. He said “I’ll put all my stuff on the table”. Mr Cloakes said that he regrets much of his past behaviours and actions, but that his time in prison taught him the value of life and family. He said that he used his time in prison to improve himself, and that he undertook various training courses, including a parenting course. He said “I know I’ve made mistakes, but I done my time and got out”. When it was put to him by the Family Consultant that Ms Heinz claimed he has since been incarcerated again, Mr Cloakes agreed and confirmed that he recently served a brief sentence for driving unlicenced. He said that he had previously been disqualified from driving for a period of 40 years, which he said made him unmotivated to refrain from driving. He said, however, that he recently discovered that he is able to re-apply for his drivers’ licence after four years, if he complies with the disqualification, and that recovering the right to drive is one of his goals now.
The issue of the Father’s continued drug use was another important issue for the Court. The Family Consultant records what the Father said in this regard, at paragraph 45 of the report:
Mr Cloakes said that, although he used cannabis from a very young age, around 13 or 14 years, he did not use methamphetamine until he was about 18 years old. He said that, initially, he did not like “Ice”. Mr Cloakes said that, although he used drugs whilst incarcerated, he is now “clean” and no longer uses any illegal drugs. He described his time using methamphetamine as being “all over the shop” and said “I can’t do it anymore”. Mr Cloakes said that he is strongly motivated to “stop using” and to get his life “back on track”. He said he looks forward to getting a job and renting his own house.
The different perspectives in relation to the family violence allegations are presented at paragraphs 51-53 of the report:
51. Ms Cloakes said that, during the relationship between Mr Cloakes and Ms Heinz, she observed the two to argue constantly, including engaging in physically aggressive arguments. She claimed that the aggression between them was “equal” and “went both ways”. Ms Cloakes’ affidavit states that, in February 2013, police intervened when Mr Cloakes behaved aggressively toward Mr A, resulting in an AVO protecting Mr A.
52. Ms Heinz alleged that Mr Cloakes was a violent, abusive and controlling partner who, on many occasions, strangled her to a point where she almost lost consciousness. She alleged that Mr Cloakes, punched and slapped her frequently, and said that she “almost always” had visible bruises all over her body. She alleged that Ms Cloakes was aware of the violence she experienced at the hands of Mr Cloakes, but that she “turned a blind eye” and did nothing to help her, even though [X] was being exposed to it. Ms Heinz alleged that, not only did Ms Cloakes fail to acknowledge Mr Cloakes’ violence, but that she often enabled it by taking the side of Mr Cloakes and by identifying strongly with Mr Cloakes’ point of view. Ms Heinz alleged that Ms Cloakes was also often a target for Mr Cloakes’ violence.
53. Mr Cloakes said that the violence between him and Ms Heinz was “tit for tat” and that he often warned Ms Heinz to stop hitting him or he would “break his own rule” about “not hitting women”. It is noted that, in his affidavit, Mr Cloakes states that he engaged in “violent and threatening behaviour” which he deeply regrets. He states that, although Ms Heinz was quick to anger and argue, he also was.
The recorded interview between [X] and the Family Consultant is recorded at paragraphs 54-57 and provides some insight into [X]’s perspective on the matters before the Court:
[X] (aged five years and six months) presented as an engaging child with a cheeky sense of humour. [X] said that he loves Star Wars, and playing video games and that he likes watching a Netflix series called “…”.
[X] said that his “Nan” takes care of him in his current home environment, but that “Nan is a bit boring”. He said “Nan thinks it’s better down here [meaning in New South Wales as opposed to Queensland]. [X] described his father as “sometimes good, sometimes bad” and said that he enjoys it when his father plays games with him, but that sometimes, his father “lays on the lounge”. He said he does not know what his father’s opinion about Queensland is. [X] said that “it’s a little bit good to see Daddy, but sometimes Nan doesn’t let me be with Daddy”. [X] said that he likes his “Uncle Mr A” and sometimes sleeps or watches television in Uncle Mr A’s bed. He said, however, that he does not like it when Uncle Mr A tries to force him to try new foods. He said “he sometimes forces me to eat”.
[X] appeared very sad when talking about Ms Heinz, whom he described as “a good Mummy”. [X] drew a picture of himself with Ms Heinz in which he is holding Ms Heinz’s hand. He said that he does not see his mother much which, he said, is “bad”. He said that Ms Heinz “thinks it’s better up there [Queensland]”. When asked what he thinks, [X] said “I think it’s better up there too”. [X] said that when he and his mother lived in Queensland during the first part of 2017, it was “fun” and that he has a secret hiding place in Queensland. He said “I want to stay with my Mum and go to school up there”. [X] said that he makes it clear to Ms Cloakes that he wants to be with his mother. He said “I tell her every day I want my Mummy”. [X] said that “when I snuggle with her [his mother] it’s so warm!”. He said that he misses his mother very much, and that “every day she comes down I give her a big hug and kiss, more than infinity hugs, that’s how much I miss her”.
When asked if he has a message for the Judge, [X] said “I want to live in Queensland with my Mum, tell her I really want to live with her”.
The Family Report records her observations of the interactions between [X] and the important people in his life. This will be reproduced in full:
60. [X] was observed with Ms Cloakes and Mr A. [X] hugged Ms Cloakes and smiled at her, making eye contact. Mr A took a lead role in playing a game involving toy soldiers with [X], and did not consult [X] about what he wanted to play. [X] appeared slightly awkward with his uncle and made very little eye contact with him. Mr A told [X] that “sometimes soldiers get squashed by buildings during wars” before dropping wooden blocks onto the soldiers that [X] had arranged on the floor. He enthusiastically told [X] to have the soldiers shoot each other and taunted [X] in a derisive tone, saying “you probably want to play with the baby bottle”. [X] appeared upset when his uncle broke the structure he was making with the blocks. [X] appeared to try to ignore his uncle and to want Ms Cloakes to participate more in the game. Ms Cloakes played a minimal role in the observation and mostly watched the other two, appearing content for Mr A to take a more prominent role.
61. [X] was observed with Ms Heinz. Initially, the two continued with the toy soldier game which was still on the floor. [X] used a gentle voice to explain to his mother how to play with the soldiers. He smiled frequently at Ms Heinz, making regular eye contact with her, and the two were observed to engage in continuous reciprocal conversation. [X] suggested that they pack the soldiers away and do something different, and the two cooperated to put the soldiers away and start a game with the doll’s house. [X] sat in close proximity to his mother, leaning in toward her as they discussed the doll’s house dolls. [X] then went to the doll’s pram and replaced a doll with a teddy bear which he wrapped in a blanket, saying “I’ll be the big brother” and “it’s alright Mummy”. [X] listened intently while Ms Heinz showed him how to strap a doll into the toy car capsule, and told [X] that he was once so small that he would fit in the toy capsule. [X] hugged and kissed Ms Heinz. The two then took the dolls for a walk around the observation room. [X] smiled confidently up at his mother while walking the dolls. When [X] appeared to tire of the dolls, Ms Heinz noticed and asked him “what are you thinking of doing now?” after which, [X] transferred his attention to the Lego. The two cooperated to build a Lego structure and consulted with each other about whether certain pieces would fit or not. When Ms Heinz offered [X] a particular piece of Lego, he responded by saying “Thank you Mummy I love you” and hugged and kissed her enthusiastically. The two then packed up the Lego at [X]’s suggestion and began drawing on the white board. [X] encouraged his mother by saying “Come on Mummy” while dancing excitedly and bouncing up and down. [X] copied the butterfly his mother drew on the board and appeared very proud of himself.
62. [X] was observed with Mr A who re-arranged the chairs in order that they could sit together at the white board. He asked [X] what he should draw to which [X] replied “a tall tower in New York”. [X] then suggested they play Hang Man to which Mr Cloakes responded “what’s that?” Mr A did not pay full attention to [X] but instead focused his concentration on drawing a clown face, without checking to see how [X] was responding. [X] drew on the white board and repeated himself several times and tapped his father on the shoulder in order to get his attention. Mr Cloakes said to [X] “I found you a bike. Did I tell you?”. [X] answered “No. I’m never riding a bike”. Mr Cloakes then argued, saying that they “should get the bike” to which [X] responded by saying “Don’t want to” before withdrawing from his father and playing by himself. [X] attempted to engage his father with the puppets, saying “What’s this puppet show?” then “can we play with this puppet show?” and appearing frustrated when Mr Cloakes continued drawing the clown face. Eventually, after [X] said “Dad, this is your puppet” Mr Cloakes responded to him and made an attempt to play with the puppets. [X] laughed and appeared happy. The two soon began playing separately alongside each other again, paying little attention to each other.
Ms E’s evaluation commences at paragraph 65. She observed that despite early challenges and a complex family dynamic, [X] appeared to be healthy and making sound developmental progress. He was surrounded by a range of adults who have an interest in his well-being. The Family Consultant was concerned, however, about [X]’s sense of grief and loss regarding his mother. The Family Consultant expressed concerns about the risk allegations raised by both the Mother, and the Paternal Grandmother. She was concerned about [X] not appearing to have developed a sound relationship with his father.
Paragraph 70 is important, in providing a professional insight into the impact on the parenting capacity of both parents of their history of drug abuse:
Regarding the parents’ misuse of illegal substances, neither Mr Cloakes nor Ms Heinz dispute this. Both disclosed a concerning history of drug use and drug-seeking behaviour that would have almost certainly compromised their parenting. It is likely that the drug use of the parents prevented them from developing adequate care-giver sensitivity and the capacity to provide appropriate responses to [X]’s needs. It would appear that the presence in [X]’s life of Ms Cloakes may have ameliorated some of the negative effects of the parents’ drug use. It is very positive to note that both parents report cessation of substance misuse, and it would appear that both parents have the capacity to reflect on their past activities and behaviours. At the time of the Family Report interviews, both parents spoke with pride about moving on from previous patterns of self-destructive behaviour. Both appear to consider themselves to be more settled, healthier and happier than when [X] was born, which is highly commendable. Ms Heinz’s insight into her substance misuse and experiences of family violence, and how these may have impacted on [X], was very positive to note. Mr Cloakes’ increased insight into his previous violent and criminal behaviour is also commendable. It may be useful for the parents to undergo drug testing in the future. It may benefit Mr Cloakes’ parenting to attend a men’s behaviour change course in order to develop increased insight into the possible harm to children of witnessing family violence, and to reinforce his newfound values about the importance of family. Such a program is probably available in the Catholiccare Town A office.
At paragraph 71, the Family Consultant makes observations about the Mother’s decision to relocate to Queensland:
Ms Heinz’s decision to re-locate to Queensland in order to avoid Mr Cloakes and to cease using illegal drugs would appear to be a considered one, and an important protective factor. It should be noted that it is not unusual for people to re-locate in an effort to recover from destructive lifestyles involving substance misuse. This is because, for many people, their drug-using habits become linked with their peer group or community, and therefore remaining in that community creates triggers that can lead to relapse. Ms Heinz’s decision to allow herself the greatest chance to cease using drugs would have improved her parenting and therefore benefitted [X]. It is the opinion of the Family Consultant that Ms Heinz believed she was acting in [X]’s best interests by re-locating to Queensland.
The Court observes that the Mother was closely cross-examined about her motives for relocating to Queensland, and wishing to remain there. The Court accepts that the Mother’s move to Queensland was, in fact, motivated by acting in the best interests of [X], particularly in terms of moving herself, and [X], away from a drug culture. The Court accepts this is probably not the only reason for her move, but was the main reason.
The Family Consultant observed that from [X]’s perspective, his main concern was to be reunited with his mother, irrespective of where she was living. The benefit to [X] of living in Queensland was, therefore, associated with him living with his Mother in Queensland. [X] would benefit from any improvement in the well-being of his Mother, including her reported increased sense of safety and well-being, improved health, etc., since moving away from her community of origin. Indeed, the Family Consultant notes at paragraph 72:
Ms Heinz’s opinion is that, should [X] remain in his current environment, his risk of being involved in substance misuse and criminal activity is greater than if he were to leave it. This is a valid concern given what is known regarding intergenerational patterns of social issues such as family violence, substance misuse and other criminal activities. It less clear, however, and impossible to predict, if this would be the case with [X]. In [X]’s case there are some protective factors involved should he remain living in his current community, namely, the presence of Ms Cloakes, Ms H and his maternal uncle, Mr J.
The Family Consultant acknowledged of course that relocation to Queensland for [X] would disrupt a significant relationship with the Paternal Grandmother. The role of the Paternal Grandmother would become essential should either of [X]’s parents relapse into their former drug using habits, or if the Father were incarcerated again.
The Family Consultant acknowledged that relocation to Queensland would mean that the Father has a far less chance of developing a stronger relationship with him, notwithstanding what the Family Consultant thought were genuine efforts by both the Mother, and the Paternal Grandmother to overcome the problem of distance.
The Family Consultant recognised that a possible compromise was the Mother returning to the Town A area. This would address [X]’s apparent sense of grief and loss over his mother but it would mean he could retain his relationships with his paternal grandmother and his father. It would mean there would be no change to his school. Nonetheless, the Family Consultant acknowledged that this would compromise the Mother’s sense of safety and well-being, and this would likely negatively affect her parenting. The Family Consultant also referred to
… the real concern that Ms Heinz would be more at risk of relapsing and engaging in substance misuse should she return to her community of origin.
[Family Report, paragraph 76]
The Family Consultant recommended that [X] live with his mother, provided she continues to abstain from illegal drug use. [X] should spend time with his father and paternal grandmother as much as is feasible, depending on where the Mother lives, and provided the Father abstains from illegal drug use.
Ms E was cross-examined. It is important to note that she gave evidence after the Paternal Grandmother, Mother and Father, but before the other witnesses in this case, including Mr A, the paternal uncle. The paternal uncle’s evidence about risk issues in the Paternal Grandmother’s household will become important.
Counsel for the Independent Children’s Lawyer explained to Ms E that as a result of the evidence of the Paternal Grandmother and both parents, the Mother’s allegations about family violence perpetrated by the Father, in the Paternal Grandmother’s home, and with her knowledge, was much clearer. Ms E explained that if the Court accepted the Mother’s version of the evidence of family violence, and if the Court accepted that the Paternal Grandmother had the opportunity to intervene but did not do so, it would raise concerns about her parenting capacity. Ms E acknowledged that the Mother had always asserted to her that the Paternal Grandmother was aware of the violence, but had not completely admitted it. Thus, the Family Consultant opined, if this evidence is accepted it undermines the protective capacity of the Paternal Grandmother. She also agreed that it might indicate that, even in her own home, she was not able to control the activities that occurred there.
In cross-examination, the Family Consultant emphasised the importance of the Paternal Grandmother being present during the Father’s time with [X], particularly if the Court accepted the Mother’s allegations about the seriousness of the violence that she experienced. Her concern was if the Father was the perpetrator of violence, the parenting of violent perpetrators tend to be rigid and authoritarian, and this was a risk factor to be mitigated by supervision. The Family Consultant explained she would be most concerned about unsupervised overnight time between [X] and his father.
In cross-examination by Counsel for the Mother, the Family Consultant explained that the Mother presented as resilient in terms of overcoming past adversity, including drug abuse, all of which gave rise to confidence in her parenting capacity. Once again, Ms E expressed concerns about the Paternal Grandmother’s protective capacity if the Court accepted evidence suggesting that not only had the Father violently assaulted the Mother on at least one occasion, including the use of strangulation, but that when the Paternal Grandmother intervened, the Father had hit her. If this was the case, the Family Consultant opined, it suggested that the Paternal Grandmother’s will could be overborne by the Father.
In cross-examination by Counsel for the Father, the Family Consultant agreed that the Mother’s move to Queensland potentially led to loss of support systems then available to her, but then explained that it also provided fewer stresses in her life. In any event, the Mother seemed to have a new support system in place. It would not be easy, however, to be a sole parent. There would always be the risk of relapse into drug use. Changing schools for [X] would be disruptive, because it has been a stable factor in an otherwise relatively unstable life.
The Family Consultant appeared clearly uncomfortable with the Father’s Counsel’s depiction of the violence as being situational and reciprocal. She maintained that the risk of harm to [X] was so great, that his time with his father needed to be supervised. She accepted that [X]’s relationship with his father would be affected by a reduction in their contact to no more than once a month, but the Family Consultant suggested that electronic communication could mitigate this.
The Family Consultant was extensively cross-examined by Counsel for the Paternal Grandmother. There was some criticism of the methodology used by Ms E, particularly as regards the presence of Mr A at certain times. The Court does not accept that these issues undermine the opinions expressed, and recommendations made. Ms E rejected the contention that the Mother was undervaluing the role that the Paternal Grandmother had played in [X]’s life. She noted, however, that the Mother had expressed some concerns about risk issues in that household. The Court notes, as will be discussed below, those concerns had a firm foundation.
The Family Consultant was taken to the Mother’s family violence allegations. She accepted that if the Court found that the Paternal Grandmother did not ring the police during a particularly violent incident, because the Mother did not want her to do so, her view was that the Paternal Grandmother should have nonetheless sought police intervention. Counsel suggested that this was unrealistic. Ms E accepted the possibility of this, but reminded the Court that the Paternal Grandmother was an experienced medical professional not unaccustomed to violent situations (a matter the Paternal Grandmother herself acknowledged in evidence).
There was extensive cross-examination about the Mother’s financial capacity to meet the needs of [X], should he be in her fulltime care. Whilst the Family Consultant accepted that it would be stressful that the mother’s parenting in the context that she contended for was untested, and that there would be the possibility of relapse, it was nonetheless her view that it was in [X]’s best interests for that to occur. Ms E readily accepted that the Mother was in the early stages of recovery, even if she had been abstinent for 18 months.
Counsel for the Independent Children's Lawyer revisited the issue of the Father’s family violence against the Mother, putting various COPS entries to Ms E. Ms E explained that if the Court accepted this evidence, it suggested the Father had a propensity to express himself with violence, and this merely added to her concerns about whether the Paternal Grandmother could adequately control her own son, as well as emphasising the need for [X]’s time with his father to be supervised.
After listening to the evidence given by the Family consultant in cross-examination, and moreover having regard to the totality of the other evidence before the Court, the Court accepts the Family Consultant’s evidence. In particular, the Family Consultant appreciates the reality of the risk of relapse into drug use by the Mother but nonetheless considered the best outcome for [X] was to live in his mother’s care. As the remaining evidence will demonstrate, such are the Court’s concerns about the Paternal Grandmother’s protective capacity, there is least risk in the Mother’s household.
Meaningful relationship
[X] has a meaningful relationship with his mother, and paternal grandmother. He probably has a meaningful relationship with his father. There is no doubt that [X] would benefit from having a meaningful relationship with both his parents and the Paternal Grandmother. The Court is satisfied that each of the proposals advanced will address the need for [X] to have a meaningful relationship with the significant people in his life. Even if the Mother’s proposal is accepted, both the Father and Paternal Grandmother have strongly signalled a commitment to continuing their involvement in [X]’s life, and the Mother’s proposal for time and communication between [X] and his family and Paternal Grandmother appears adequate. In all of the circumstances, this consideration is not determinative on the facts of this case.
Risk of harm to [X]
The court is satisfied from all the evidence that the only significant risk of harm to [X] in his mother’s household is relapse into her former drug use. The evidence is clear, however. She has been abstinent for at least 18 months. She has changed her life. She has moved away from the people, and the geographical area, which seems to have nurtured and prolonged her former dysfunctional life. Separation from the father was the first step. Moving to Queensland was the second step. She seems well-supported by her uncle, and his family in Queensland. Mr C was an impressive witness. He had opened his home, and indeed his life and that of his family, and welcomed the mother in. He seemed fully appraised of the mother’s past problems. He openly acknowledged that he had grown up and lived in the Region 1 area and was familiar with its drug culture. Thus, he asserted, and the court accepts, that he would know what to look for if the mother reverted into drug use. He was an impressive witness.
Conversely, the Court finds that there is a risk of harm to [X] by continuing to remain in the household of the Paternal Grandmother. The full extent of the risk issues in the Paternal Grandmother’s household only became fully apparent during the evidence of Mr A, the father’s brother, who lives with his mother (the Paternal Grandmother). His affidavit was supportive of the Paternal Grandmother’s position. He described the nature of his relationship with [X], which appeared positive. He described, for example at paragraph 17, how he ensured that [X] was properly supervised at times when the Paternal Grandmother was sleeping during the day on weekends after she had finished a night shift. On the issue of his own drug use, he explained at paragraph 20 that he had used illicit drugs in the past, but never in the presence of [X], and would never do so. He deposed: “I am now abstinent from drug use and committed to not consuming illegal drugs.” He categorically denied the Mother’s allegations in her trial affidavit that he not only used ice, but supplied ice and other drugs from his home. At paragraph 22, he explains that his mother, the Paternal Grandmother, does not like illicit drugs and has made her position clear to him, and to the Father, over the years.
Notwithstanding his sworn evidence in his affidavit, in cross-examination he revealed that the last time he used ice was about a month ago. He gave evidence on 6 November 2018. His affidavit was sworn 30 October 2018. He accepted the proposition put to him in cross-examination that he was an ice user for a period of 12 years, ending the month before he gave evidence. He denied obtaining the drug from his brother, but then explained: “…other people as well”. But Counsel clarified to the effect: “So sometimes from your brother, and sometimes from others?” Mr Cloakes responded yes. He was asked how often he purchased drugs from his brother and he explained it was very rare. He could not explain the last time he obtained from his brother. But when pressed, he explained that it was about three months ago. When asked whether his brother (the Father in this case) was using ice when he obtained the drug off him three months ago, his answer was “...not for a while ago…”. He ultimately accepted it was probably 2017, after he got out of the jail. Mr Cloakes also accepted that both Mr Cloakes, and his brother, used ice at a time when he was living at home with both the Paternal Grandmother and his brother. He agreed.
It is important to observe that Mr Cloakes presented as a disarmingly honest witness. The evidence he gave, of course, was quite inconsistent with that of the Father, who denied drug use, or involvement in drug supply. It becomes increasingly harder to not draw the inference that the Paternal Grandmother knew, or should at least have known, about the use of the drug ice by both her sons during periods when [X] was in her care, and they were present in the household.
The cross-examination moved onto the topic of the violence between the Mother and Father. Mr Cloakes agreed that he was in the home when it occurred. He described what he saw as both parents pushing and punching each other. He agreed that he was aware of an incident in which the Father pulled out a gun one night. He insisted, however, that he did not see the Father trying to choke the Paternal Grandmother. He did attempt to intervene, however, and explained that the Father turned on him, and then he left. He confirmed that he saw the Father hold up a gun. He recalls that the police attended the premises and found drugs, which the Father later agreed were his drugs. He agreed that he knew that the Father stashed his drugs in his bedroom, and had been doing so for some time. He agreed that that was the case in 2013, and it was in the bedroom in which [X] slept. Mr Cloakes also agreed that he had lost his licence for 18 months for driving whilst under the influence of ice, and indeed that it was not the first time that his licence had been suspended. Mr Cloakes also accepted that sometimes there were physical fights between his brother and himself. It was not a frequent thing, but happened more than once, even when the Paternal Grandmother was present in the home. Indeed, Mr Cloakes agreed that there were times when [X] was there as well. When asked whether anyone had tried to intervene to stop the fighting between Mr Cloakes and his brother, Mr Cloakes explained that “…mum got in the middle of us”. He explained that his mother threatened to kick them out of the house, and to call the police. Indeed, she threatened this every time there was an argument with his brother, but she neither kicked them out of the house, nor called the police.
It was put to Mr Cloakes by Counsel that, in fact, he minded [X] when the Paternal Grandmother was asleep, or was tired from work. He agreed. The Court notes that this evidence is different to that which Mr Cloakes gave in paragraph 17 of his affidavit.
There is no reason to doubt the evidence given by a person such as Mr Cloakes who is clearly supportive of the Paternal Grandmother’s proposal, and who made statements against his own interest. But Mr Cloakes’ evidence raises serious concerns about risk issues for [X] in the Paternal Grandmother’s household.
A number of important relevant matters emerged from the Paternal Grandmother’s cross-examination. In cross-examination for the Mother, the Paternal Grandmother explained that it was not appropriate for [X] to live with his father as he was “…still getting his life sorted out… and building a relationship with his son.” She was invited to agree that [X]’s father still had some issues in relation to drug use. The Paternal Grandmother explained: “Not that I am aware of…” It is important to recognise that the Paternal Grandmother’s position was that she was not aware of drug problems that her son, [X]’s father, continued to experience. The issue for the Court is at least twofold: was the Paternal Grandmother being disingenuous in her statement, and even if she was not, is it the case that she is unaware of the real nature and extent of activities both in her home, and of those who occupy or visit her home, which constitute a risk of harm to [X]?
The Paternal Grandmother was asked about her knowledge of a police report of an incident that occurred at her home on 24 June 2018. She was not aware of this incident, she professed. Details of the incident are contained in the COPS entry relating to this date. It refers to events which occurred at the home of the Paternal Grandmother and, of course, of [X]. Insofar as the COPS entry refers to the Father, he is referred to as “POI 2”, so he clearly was not the main protagonist in this event. 24 June was a Sunday. According to the Mother’s evidence, it was not a day when she was spending time with [X]. A reasonable inference to draw in all of the circumstances is that [X] was present in the home on that day. He may, or may not, have been in the care of the maternal grandmother. The events in question appear to have occurred outside of the home. The COPS record refers to a triple-0 call and that on arrival, a POI 1, whose identity is unknown, was standing at the top of the driveway of the property and he was questioned about his possession of a knife. The police observed POI 1 to be very agitated, scattered and highly furtive, pacing back and forth, speaking very quickly and rapidly. The record indicates he was well known to police. He was searched, but no weapon was located. The record then states:
The POI admitted being on a seven day ICE (amphetamine) bender. The POI appeared to be highly paranoid and delusional.
It goes on to record that the POI was known for his violent and dangerous behaviour. The record continues:
Police spoke with the occupants at …, who the POI was visiting. Both occupants declined to speak to police about why the POI was there or what he was doing or what he was saying. POI 2 and 3 are in a de facto relationship and stay together at the …location together. POI 2 is well-known to police for serious criminal offences within the Region 1.
Family violence
The Court must consider family violence, and it has done so in its reasons above. The Mother’s relationship with [X]’s father was a violent one. She may well, at times, have been a participant in that violence. More often than not, the Court finds, that she was the victim of very serious physical violence including strangulation.
Orders in the best interests of [X]?
The totality of the evidence considered by the Court leads it to conclude that it is in the best interests of [X] that he live with his mother and that she decide where [X] lives, provided that it is no further away from the Region 1 region of New South Wales than where she currently lives in Suburb P, a Brisbane suburb. There is a risk of harm to [X] where he presently lives in the Paternal Grandmother’s home. [X] should proceed into his mother’s care within seven days, so that he can prepare to start school where his mother decides.
The Mother sought an order for sole parental responsibility, but with obligations to consult and communicate with the Father in relation to the issues stipulated in her proposed order. The alternative proposals involved equal shared parental responsibility including the Paternal Grandmother. The Court concludes that the Mother should, indeed, have the benefit of an order for sole parental responsibility in relation to [X], but this should not entitle her to change his name, or to change his living arrangements beyond the geographical parameters identified above. In addition, the Mother will be obliged to communicate and consult about decisions (where practical in advance) with both the Father and the Paternal Grandmother. It is important for both of them to be kept “in the loop”. Consultation and communication with the Paternal Grandmother will probably be far easier than with the Father. Given the dynamics of the parental relationship, the Mother will be required to do no more than communicate in writing, or by text message, with the Father. The communication between the Mother and the Paternal Grandmother seems quite good. The presumption of equal shared parental responsibility has been rebutted, because of the evidence referred to earlier in these Reasons about risk of harm considerations in the Paternal Grandmother’s household, and the Father’s family violence.
The Court will make Orders for [X] to spend time with the Paternal Grandmother and Father, broadly in accordance with the Orders proposed by the Mother. This means that the Paternal Grandmother must be present to supervise [X]’s time with his father. The Orders for communication are appropriate. The other Orders proposed are also child focussed and in [X]’s best interests.
I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 15 January 2019
Schedule One
Minute of Order proposed by the Applicant Paternal Grandmother
FAMILY LAW ACT 1975
IN THE FEDERAL CIRCUIT COURT OF AUSTRALIA
AT WOLLONGONG
No. WOC231 of 2017
BETWEEN
MS CLOAKES
Applicant
AND
MS HEINZ
First Respondent
AND
MR CLOAKES
Second Respondent
AND
INDEPENDENT CHILDREN'S LAWYER
Minute of Orders Sought by Applicant Paternal Grandmother
That the Paternal Grandmother shall share parental responsibility with the Mother and Father for the child, [X] born …2013 (“[X]”).
That [X] shall live with the Paternal Grandmother.
That [X] shall spend time with the Father as agreed upon between the Paternal Grandmother and the Father.
That [X] shall spend time with the Mother as follows:
a.Firstly, as agreed upon between the Paternal Grandmother and the Mother from time to time;
b.For one half of the NSW school holidays at the end of Terms 1, 2 and 3 each year.
c.For two weeks in the December/January NSW school holidays each year, as agreed, but in the absence of any agreement from midday on 1 January each year for two consecutive weeks, and if the Mother proposes that such time take place in Queensland then the Paternal Grandmother shall deliver [X] to the Mother at Sydney Airport Domestic Terminal at the start of that period the mother shall return [X] to the Paternal grandmother at Sydney Airport Domestic Terminal at the end of that period.
d.By telephone, FaceTime or other social media App as agreed upon or at any reasonable time before 8.00pm.
e.In the event that Mother’s Day does not coincide with a weekend that [X] would otherwise be spending time with the Mother pursuant to these Orders, from 6.00pm on Friday immediately preceding Mother’s Day until 6.00pm on Mother’s Day.
f.In addition to Orders 4(a) to (e), in the event that the Mother remains living in Queensland:
i. During school term every four weeks from after school on Friday until 6.00pm on Sunday. To facilitate such time, the Paternal Grandmother shall deliver [X] to Sydney Airport Domestic Terminal to meet the Mother at 6.00pm on Friday and the mother shall return [X] to the Maternal Grandmother at the same venue at 6.00pm on Sunday;
ii. In the event that the Mother is prepared to travel to the Region 1 to spend time with [X] during school term, every four weeks, at which time the Mother shall collect [X] from the home of the Paternal Grandmother by 4.00pm on the Friday and shall return him to the same address at 6.00pm on Sunday.
g.In addition to Orders 4(a) to (e), in the event that the Mother relocates to the Region 1 to an address less than 30 minutes’ travel time from Suburb O, then the child shall spend time with the Mother and the Father as follows:
i. On a 3-weekly rotating basis, from after school on Friday until before school on Monday as follows:
(1)With the Mother in Week 1;
(2)With the Father in Week 2; and
(3)With the Applicant Paternal Grandmother in Week 3.
ii. With the Mother, from after school each Wednesday until 6.30pm.
iii. With the Mother for three hours on [X]’s birthday in the event he is not otherwise spending time with the Mother.
iv. For one half of the NSW school holidays at the end of Terms 1, 2 and 3 each year.
v. In lieu of Order 4(c), for two weeks in the December/January NSW school holidays each year, as agreed, but in the absence of any agreement from midday on 1 January each year for two consecutive weeks.
vi. In the event that Mother’s Day does not coincide with a weekend that [X] would otherwise be spending time with the Mother pursuant to these Orders, from 6.00pm on Friday immediately preceding Mother’s Day until 6.00pm on Mother’s Day, and that the Mother and the Paternal Grandmother shall do all things described in (f)(i) above to facilitate [X] spending time with his mother on the Mother’s Day weekend.
vii. To facilitate changeovers pursuant to Order 4(g), the mother shall collect [X] from the Paternal Grandmother’s home at the start of those periods and return him to the same venue at the end of each period.
h.In the event that the Court makes Orders which provide for [X] to live with the Mother in the Region 1, then the child shall spend time with the Paternal Grandmother as follows:
i. On a 3-weekly rotating basis, from after school on Friday until before school on Monday as follows:
(1)With the Mother in Week 1;
(2)With the Father in Week 2; and
(3)With the Paternal Grandmother in Week 3.
ii. With the Paternal Grandmother, from after school each Wednesday until 6.30pm.
iii. With the Paternal Grandmother for three hours on [X]’s birthday in the event he is not otherwise spending time with the Paternal Grandmother on his birthday.
iv. For one half of the NSW school holidays at the end of Terms 1, 2 and 3 each year.
v. For two weeks in the December/January NSW school holidays each year, as agreed, but in the absence of any agreement from midday on 1 January each year for two consecutive weeks.
That in the event that the Court makes Orders which provide for [X] to live with the Mother in Queensland, then the child shall spend time with the Paternal Grandmother as follows:
a.For one half of each Queensland school holiday period at the end of Term 1, 2 and 3. To facilitate such time, the Paternal Grandmother shall travel to Brisbane Airport, at her cost, at the start of that period, and the Mother shall deliver [X] to the Paternal Grandmother at that location, at a time nominated by the Paternal Grandmother. At the end of such period, the Paternal Grandmother shall return [X] to the Mother at the same venue, at the Paternal Grandmother’s cost.
b.For three weeks in the December/January Queensland school holidays each year, as agreed, but in the absence of any agreement from midday on 1 January each year for three consecutive weeks. To facilitate such time, the Mother shall deliver [X] to the Paternal Grandmother at Sydney Airport Domestic Terminal, at the Mother’s cost, at the start of that period, and the Paternal Grandmother shall return [X] to the Mother at that location, at a time to be nominated by the Mother, at the end of that period.
The Court notes that [X] will also spend time with the father during this period, as agreed between the father and the Paternal Grandmother.
c.During school term, on two occasions each term, from 6.00pm on Friday until 6.00pm on Sunday, in the Region 1, as nominated by the Paternal Grandmother in writing. To facilitate such time, the Mother shall deliver [X] to the Paternal Grandmother at Sydney Airport Domestic Terminal, at the mother’s cost, at the start of that period, and the Paternal Grandmother shall return [X] to the Mother at that location, at a time to be nominated by the Mother, at the end of that period.
d.During school term, in addition to the time specified in Order 5(c), if the Paternal Grandmother elects to travel to Queensland to spend time with [X] for the weekend, then provided the Paternal Grandmother provides the mother with 28 days’ notice, the mother shall deliver [X] to the Paternal Grandmother at Brisbane Airport on Friday evening and shall collect [X] from her at the end of that period on the Sunday evening, at times nominated by the Paternal Grandmother.
e.By telephone, FaceTime or other social media App as agreed upon or at any reasonable time before 8.00pm, including but not limited to:
i. The Paternal Grandmother’s birthday each year (…);
ii. The child’s birthday each year (…);
iii. On Christmas Day each year.
That the Mother be restrained by injunction from leaving the child in the unsupervised care of the Maternal Grandfather.
That the Mother and the Father are restrained by injunction from:
a.Consuming alcohol in excess in the presence of the child or consuming alcohol in excess in the 12 hours before and during any period the child spends time with them;
b.Using any illicit drugs;
c.Taking prescription drugs in excess of or less than their prescribed dosage;
d.Allowing the child to remain in the presence of any person who has consumed alcohol to excess, illicit drugs at all, or prescribed mediation other than in accordance with the relevant prescription;
e.Denigrating the other party or members of another party’s family to the child or in the presence of the child or at all;
f.Allowing the child to remain in the presence of any other person denigrating another party or members of any other party’s family;
g.Physically disciplining the child; and
h.Allowing any other person to physically discipline the child.
For a period of six months from the date of these Orders, the Mother and the Father shall each undertake (by provision of urine screen in accordance with the Australian/NZ Standard 4308:2008 or any subsequent approved standard) urinalysis for drug screening at their own cost within 48 hours of receipt of a request to do so by the Independent Children’s Lawyer. For the purposes of this order, any unrepresented party is to inform and keep the Independent Children’s Lawyer informed of their mobile phone number, email address and facsimile number (if available) within 24 hours of any changes to these details.
That the mother and father shall each provide to the requesting party a copy of any urinalysis for drug screening report obtained within 24 hours of receipt of the report.
10. That after the expiration of six months, the request referred to in Order 8 may be made by the Paternal Grandmother, for a further period of 12 months, and the provisions of Order 8 requiring the Mother and the Father to submit to urinalysis, and Order 9, shall continue for that further period.
Minute of Order proposed by the First Respondent Mother
FAMILY LAW ACT 1975
IN THE FEDERAL CIRCUIT COURT OF AUSTRALIA
AT
No. WOC231 of 2017
BETWEEN
MS CLOAKES
(Applicant)
and
MS HEINZ
(First Respondent)
And
MR CLOAKES
(Second Respondent)
INDEPENDENT CHILDREN'S LAWYER
DRAFT MINUTE OF ORDERS
IT IS ORDERED
That the Mother have sole parental responsibility of the child, [X], born …2013 (the “Child”) in relation to the long term issues including:-
a)The Child’s education (both current and future); and
b)The Child’s health
on condition that:
a)The Mother will endeavour to contact the Father in writing and provide his views about any such issue;
b)The Mother shall endeavour to consult with the Father with regard to any such issue;
c)The Mother and Father will make a genuine effort to come to a joint decision about such issue;
d)If no agreement is reached between the parties then, within fourteen (14) days the Mother shall make the final decision and advise the Father, in writing of the decision about such issue; and
e)This limitation shall not apply if there is a question of emergency in which case the Mother has the sole responsibility.
This order for sole parental responsibly does NOT give the Mother sole responsibility as to questions of major long term issues about the Child’s name and/or changes to the Child’s living arrangements to outside the Commonwealth of Australia, without the consent of both parents or order of a court exercising jurisdiction under the Family Law Act.
That notwithstanding the provisions of order 1:
a)The Mother shall be responsible for the daily care, welfare and development of the Child while he is spending time with her; and
b)The Paternal Grandmother shall be responsible for the daily care, welfare and development of the children when he is spending time with her and the Father.
That the Child live with the Mother in Suburb P Queensland commencing at the end of Term 4 2018.
That the Child spends time with the Paternal Grandmother and the Father as follows:
a) From 9:00am to 4:00pm Sunday, on one weekend not more often than one weekend, every month, subject to Order 4(d);
a) From term one school holidays 2019, one half of each term school holidays, the Paternal Grandmother having the first week in odd years and the second week in even years subject to order 4(d);
b) If Easter does not fall in the school holidays then at Easter time with the paternal grandmother and father from the conclusion of school on Thursday until 3pm on Easter Monday 2020 and each alternate year thereafter;
b) That the Paternal Grandmother is present to substantially supervise time between the Child and the Father.
c) At any other time as may be agreed in writing between the parties..
That to facilitate the arrangements in paragraph 4, the following shall apply:
a)At the commencement of the paternal grandmother and fathers time, the parents shall meet at the Sydney Airport at the pick-up/drop off point and the mother be responsible for delivering the child to Sydney Airport
b)At the conclusion of the paternal grandmother and fathers time the parties will meet at the Queensland Airport at the pick-up/drop off point and the father will be responsible for delivering the children to the mother at Queensland Airport.
c)The parties shall ensure they or another agreed person personally accompany the child on all flights to and from Sydney until such age as the child is allowed to travel unaccompanied minors per the relevant airline’s rules of travel.
d)That each party will provide to the other a copy of the travel itinerary not less than 14 days prior to the commencement of the other’s time.
That the mother takes all reasonable steps to ensure the child communicate with the father by way of face time or telephone calls on the occasions the father does not have the child in his care as follows:
a)on Wednesday at 6:00pm;
b)on the child’s birthday between 5:00pm and 6:00pm; and
c)at any other time as agreed between the parents.
That the mother takes all reasonable steps to ensure the child communicate with the paternal grandmother by way of face time or telephone calls on the occasions the paternal grandmother does not have the child in her care as follows:
a)Monday and Wednesday at 8:00am and Saturday at 9:00am;
b)on the child’s birthday between 5:00pm and 6:00pm;
c)at any other time as agreed between the parents;
d)the calls to be initiated by the Paternal Grandmother.
That the Mother not consume drugs or any illicit substances in the presence of the child or be in any way effected by them whilst the Child is in the Mothers care or control.
That the Father not consume alcohol, drugs or any illicit substances in the presence of the child or be in any way effected by them whilst the Child is in the Fathers care or control.
That in the event of childhood illness or emergency the parent with whom the child is with, do contact the other parent forthwith to inform them.
That the Mother, Father and Paternal Grandmother shall keep the other party informed at all times of their residential address and contact telephone number and inform the other party within two days of any change.
For the purpose of these orders, writing includes text messages.
That the Child is not to be left in the sole care of the paternal uncle Mr Cloakes.
Minute of Order proposed by the Second Respondent Father
That the parties shall have equal shared parental responsibility for the child [X] born …2013.
That the child live with the Paternal Grandmother.
That the child spend time with the Father at times as agreed between the Father and the Paternal Grandmother, but failing agreement as follows:
3.1.On the second of each three weekends, from after school (or 3.00pm if not a school day) Friday to before school (or 9.00am if not a school day) Monday;
3.2.Each Wednesday from after school (or 3.00pm if not a school day) to 6.30pm;
3.3.For three block periods of up to 7 nights during school holiday periods at times as nominated by the Father not less than 28 days in advance;
3.4.On Father’s Day: from 9.00am to 6.00pm;
3.5.On the Father’s birthday: from 9.00am to 6.00pm;
3.6.On the Child’s birthday: from 2.00pm to 6.00pm with the Paternal Grandmother; and
3.7.At Christmas:
3.7.1.In 2018, and each third year thereafter: from 2.30 pm Christmas Day to 5.00 pm Boxing Day; and
3.7.2.In 2019, and each third year thereafter: from 9.00 am Christmas Eve to 2.30 pm Christmas Day.
That the child spend time with the Mother at times as agreed between the Mother and the Paternal Grandmother, but failing agreement as follows:
4.1.On the third of each three weekends, from after school (or 3.00pm if not a school day) Friday to before school (or 9.00am if not a school day) Monday;
4.2.For five block periods of up to 7 nights during school holiday periods at times as nominated by the Mother not less than 42 days in advance;
4.3.On Mother’s Day: from 9.00am to 6.00pm;
4.4.On the Mother’s birthday: from 9.00am to 6.00pm;
4.5.On the Child’s birthday: from 9.00am to 2.00pm; and
4.6.At Christmas:
4.6.1.In 2019, and each third year thereafter: from 2.30 pm Christmas Day to 5.00 pm Boxing Day; and
4.6.2.In 2020, and each third year thereafter: from 9.00 am Christmas Eve to 2.30 pm Christmas Day.
That the time between the child and the Mother pursuant to Orders 4(a), (c), (d), (e), (f) ad (g) be contingent upon the child spending such time with the Mother in the Region 1.
Unless changeover of the child coincides with the conclusion of school, changeovers are to occur at the Paternal grandmother’s residence.
Each party is to facilitate the child communicating with the other parent by telephone, facetime or other electronic means at any time the child requests to do so.
Each party is to keep the other party informed of his or her residential address and notify the other party of any change to the residential address at least fourteen (14) days in advance of any change.
Each party is to keep the other party informed of a contact telephone number, and notify the other party of any change to the contact telephone number at least forty eight (48) hours in advance of the change.
Each party is to keep the other party informed at all times of the names and address of any treating medical practitioner or other health professionals who treats the child and is to authorise those practitioners to provide the other party with all information that they are lawfully able to provide about the child and to communicate with the other party in relation to the treatment of the child.
Each party is to inform the other party as soon as reasonably practicable of:
11.1.any medication prescribed for the child while the child is in the party’s care; and
11.2.any medical, dental or health appointment which is scheduled for the child while the child is in the party’s care.
Each party is to inform the other party as soon as is reasonably practicable if the child is hospitalised at any time or is required to attend with a medical professional to seek emergency medical treatment.
Each party is authorised by this Order to receive directly from the child’s school or other places of education a copy of all school reports for the child, school photos (at the cost of the party requesting the photos), school newsletters, and other documents normally provided to parents.
Each party is restrained by injunction from:
14.1.Consuming alcohol in excess in the presence of the child or consuming alcohol in excess in the 12 hours before and during any period the child spends time with them;
14.2.Using any illicit drugs;
14.3.Taking prescription drugs in excess of or less than their prescribed dosage;
14.4.Allowing the child to remain in the presence of any person who has consumed alcohol to excess, illicit drugs at all, or prescribed medication other than in accordance with the relevant prescription;
14.5.Denigrating the other party or members of another party's family to the child or in the presence of the child or at all;
14.6.Allowing the child to remain in the presence of any other person denigrating another party or members of any other party's family;
14.7.Physically disciplining the child; and
14.8.Allowing any other person to physically discipline the child.
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Natural Justice
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Procedural Fairness
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Remedies
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