Como & Poole
[2022] FedCFamC2F 15
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Como & Poole [2022] FedCFamC2F 15
File number(s): DGC 4341 of 2020 Judgment of: JUDGE BURCHARDT Date of judgment: 18 January 2022 Catchwords: FAMILY LAW – Parenting – mother unilaterally relocating from Melbourne to Queensland with 4 year old child during currency of the proceeding – father seeking that mother be compelled to return to Victoria – presumption of equal shared parental responsibility not applicable because of father’s violence – mother’s decision to relocate impetuous but nonetheless justified – desirability of child having meaningful relationship with the father and his family (including half sibling) – orders made for father to spend supervised time with the child in Queensland. Legislation: Family Law Act 1975 (Cth) Cases cited: A v A (2000) FLC 93-035
Goode & Goode [2006] FamCA 1346
Rice & Asplund (1979) FLC 90-725
U & U [2002] HCA 36Division: Division 2 Family Law Number of paragraphs: 40 Date of last submission/s: 12 January 2022 Date of hearing: 11 & 12 January 2022 Place: Dandenong Counsel for the Applicant: Mr Chislett Solicitor for the Applicant: Pentana Stanton Lawyers Counsel for the Respondent: Mr Korke Solicitor for the Respondent: V M Family Lawyers Advocate for the Independent Children's Lawyer: Ms Macgregor Solicitor for the Independent Children's Lawyer: Macgregor Barristers And Solicitors ORDERS
DGC 4341 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR COMO
Applicant
AND: MS POOLE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BURCHARDT
DATE OF ORDER:
18 JANUARY 2022
THE COURT ORDERS THAT:
1.All previous Orders be discharged.
2.The child X born in 2017 live with her mother.
3.The mother have sole parental responsibility for the child.
4.The mother make enquiry, within 7 days of the date hereof, and notify the father’s lawyer and the Independent Children’s Lawyer of a name and contact details of a Children’s Contact Service in the State of Queensland in relatively close proximity to her address.
5.Within 21 days each of the parents make application to a Children’s Contact Service in the State of Queensland, in relatively close proximity to the mother’s address, for the father to spend time and communicate with the child X in the State of Queensland on a supervised basis.
6.Upon a place becoming available for the father to spend time and communicate with X in the State of Queensland, the father do spend time and communicate with X on a supervised basis, in the State of Queensland for between 2 and 4 hours once every 3 or 4 weeks, depending upon the availability of the supervisor and the availability of the father to travel to the State of Queensland.
7.The father meet all costs associated with travelling to the State of Queensland for the purpose of spending time with X and otherwise meet all expenses associated with traveling to and from the State of Queensland.
8.In the event the father complies with paragraph 6 of these Orders, he be permitted to make further Application to this Court and I declare that the case of Rice & Asplund [1978] FamCA 84 would not apply to such an Application.
9.All extant Applications be otherwise dismissed.
10.The order appointing the Independent Children’s Lawyer be discharged.
THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Como & Poole has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Revised from TranscriptJUDGE BURCHARDT
This is a parenting dispute about a young girl called X who was born in 2017. The father was born in 1995, and I note that when he filed his first affidavit, he was not even sure of the mother’s date of birth. She was born in 1996. The parents met in 2016 at a nightclub and commenced cohabitation in May 2016. They separated on 8 August 2019. In addition to X, the mother also has another child, B, who was born in, 2020, the father also has another child C, who was born in 2021.
C’s mother, Ms D, has an intervention order against the father following assaults, which are revealed and disclosed by the subpoenaed police materials. Following separation of the parents in early August 2019, the father returned some days later in August to collect what he described in evidence as his “stuff”. What happened thereafter is disputed, but no less than some 10 police officers attended and the father was placed involuntarily in a psychiatric hospital. In September 2019, the father attempted to initiate mediation but the mother refused. He was issued a section 60I certificate in January 2020. There had, however, been involvement with what was then the Department of Health and Human Services, and the section 67Z response dated 8 January 2021 relevantly asserts as follows:
The father, throughout Child Protection Intervention displayed limited insight into the protective concerns, denied many of the reported incidents and took no responsibility for his actions and the impact on X. Due to the significant concerns for X, physical and emotional harm were substantiated with the father being assessed as the person responsible for harm. The case was closed as the mother was assessed as acting protectively, had remained separated from the father and was engaged with Police in relation to ongoing breaches of the Intervention Order.
A little bit further on the same page, the report continued:
There is a clear and identified pattern of the father breaching the Intervention Order which directly impacts on the safety and wellbeing of X and the mother.
The father was charged with breaches of the intervention order which ultimately led to a community corrections order. His application in this Court was filed on 9 December 2020, some 16 months after separation. The reasons for that delay are disclosed in his first affidavit at paragraph 34 where what he said, having noted the issuing of the section 60I certificate in January 2020, as follows:
Since then, I have been focusing on myself and making sure I was in the right mental and physical state to reconnect with my daughter. I have been doing everything ordered by the courts and what my Case Worker has recommended of me. I believe X will be missing me, given the close relationship we previously had, and know now is the right time to begin time together again.
The matter returned to Court for the first return on 20 April 2021 and interviews were ordered for 21 April 2021. The 11F report relevantly says as follows at paragraphs 32 to 33 and 35:
The father also stated that 95 % of what the mother had said in her affidavit was a lie and that he did not do any of the things that the mother alleges. He states he is not the person that the mother makes him out to be.
The father states that all he wants is to have time with X and to rebuild a relationship with her. He accepted that any such plan would need to be very slow, but appeared to struggle with insight into how this may be difficult for X and may impact on her.
The father appeared to lack a clear plan or struggle with expression of a clear plan, and, as stated, appeared to lack insight into how a four year old may manage such a situation.
Paragraphs 50 to 57 of the report continued:
The mother paints a picture of a highly abusive and toxic relationship that has traumatised not only herself but also X. X experiences seizures and also night terrors indicative of trauma and it would appear the mother is working with professionals to assist X as well as address her own well-being.
The father denies the majority of the mother’s allegations and questions the validity of the mother’s account of X’s seizures as well as her night terrors.
The writer remains concerned of this delegitimising in what appears to be the face of DFFS assessment and other material which may be presented.
The father also appears to offer a simplistic picture of starting supervised time that may well take into account his needs but fails to take into account X’s vulnerability and the potential impact of a reintroduction on her mental health/wellbeing at this time.
The writer is also concerned about potential re-traumatising of the mother and how this may impact on her parenting of X and of B.
Therefore, if the father is to continue his application at this time, the writer would suggest that further assessment would be needed before any decisions were to be made.
As part of this assessment, the writer would suggest the Court consider a psychological evaluation of the father as well as input from X’s psychologist.
The Court may also consider a family report that would gather more information from those involved in X’s care.
On 22 April 2021, orders were made by the Court following argument. They included an order for sole parental responsibility to the mother, no time for the father and psychological reports to be funded by Victoria Legal Aid. Additionally, an independent children's lawyer was appointed. On 28 June 2021, the matter returned with the independent children's lawyer onboard and the matter was set down for an interim defended hearing on 13 October 2021. In the meantime, on 10 August 2021, Dr E provided her report on the mother. The points that emerged from this report that are relevant, in my view, are these: The mother has, and has always had, a very close relationship with her own mother, who has been living in Queensland for some time. She was terrified of the father. She thought the father was bringing this case simply to hurt her. She said that X was vomiting for two days after the 11F interviews and the FNSA assessment assessed the mother as low risk. The report noted that the mother wanted to exclude the father entirely from her own life and that of X.
In September 2021, the mother moved unilaterally to Queensland where she lives with her mother in a property, having seven acres of land and five bedrooms. The mother, her own mother, another brother of the mother and the two children live there. Unsurprisingly, the father brought an application in a case seeking that the mother return to Victoria. That, on 13 October 2021, led to the listing for trial at an urgent date in January, which has, of course, taken place.
On 11 October 2021, Dr E produced her report on the father. The interview showed that the father had been a violent child who had been expelled from three schools as a result. He had had a car accident in 2017 and has not worked since, he is in receipt of a disability support pension. During the relationship, he was resentful about supporting the mother and X and, as a result, not having any money for himself. Dr E noted that the father had been violent to a subsequent partner and his time with C was then being supervised by the DHS and he denied all physical violence to the mother. At paragraph 22, the following was noted:
Mr Como claimed that he was not coping with the absence of a relationship with X. He indicated that he spends most of his time in bed watching television or playing video games. It seemed however, that this was similar to his behaviour when X was in his care.
Paragraph 30:
Based on the balance of strengths and needs on the FSNA, the likelihood that X will be exposed to neglect or abuse in Mr Como’s care was rated as Moderate-High. Parenting risk appeared to relate to his capacity to moderate his emotions and respond appropriately in his interactions with others.
Paragraph 34:
Parental risk evaluation identified Mr Como’s parental risk to be moderate-high, with ongoing concerns related to exposing X to physical and/or verbal aggression. He presented with limited insight into potential parenting difficulties, and had not been able to demonstrate through reflection or behaviour change learnings from previous intervention. Consideration of Mr Como’s time with X being supervised is recommended.
Against that background, the issues in this case – although not necessarily in this order – obviously include whether the mother should live in Queensland or Victoria, the issue of parental responsibility, which logically comes first under the statutory pathway, what time, if any, the father should spend with X, and whether final or interim orders should be made.
I approach the matter in the light of the statutory pathway, as illuminated by the decision of the Full Court of the Family Court in Goode & Goode [2006] FamCA 1346 at [65], which makes it clear that the Court’s first consideration must be the issue of parental responsibility. The presumption of equal shared parental responsibility must be applied unless there has been abuse of the child or family violence. It may also be rebutted if it is not in the child’s best interests.
Turning to the evidence given about this, the father has consistently denied any violence, although he did concede in his interview with Dr E yelling and slamming doors during the relationship. The mother has alleged significant verbal abuse along the lines of being called a “fat slut” and the like. The mother has alleged that the father caused X to fall off a bed by restraining the mother from assisting X in December 2017. The mother alleges that the father threw toys at X and I refer to paragraph 29 of her trial affidavit, which reads as follows:
Sometimes I didn’t know what made Mr Como angry, it could be something as simple as X’s toys being on the floor or that I was distracted and not giving him my full attention. When Mr Como started yelling, he would stand over me and scream into my face, X would cry, shake her head and say “No” and “Stop”. When Mr Como yelled at X, he would also stand over her and scream, she would cry and crawl or run to me for comfort. There were times I had to intervene when Mr Como was angry, he would be yelling and swearing at X, calling her a “fucking idiot”, and saying “you little shit”, I would pick her up and take her into another room to remove her from the situation.
The mother has also made allegations about an incident in May 2019 in the following terms in paragraph 37 of her trial affidavit:
On 26 May 2019 I had gone shopping for groceries and Mr Como sent me a text message saying that X “won’t shut up” and he was “about to go nuts”, I realised that he was not coping with X and told him I was coming to get her. He then sent me a video of X hysterically screaming, it appeared as though he had thrown her on the floor, she was laying on her back on the floor holding her head and screaming. X had dropped her bowl of coco pops and Mr Como got angry, he was yelling ‘for no reason, she trash’s the fucking house’. I recognised X’s screams as the same scream she has when she has been physically hurt. I immediately messaged Mr Como again saying I was coming home, and he returned my message saying he had left her outside with the dogs and that he was “done with kids”. When I arrived home, X was upset and clingy, she ran to me and wouldn’t let me go.
Subsequently, as I earlier indicated, on the night of 13 to 14 August 2019, the father was arrested when the 10 policemen attended. The father’s evidence about this incident was telling. He had broken the TV in the mother’s house. In his evidence, he appeared to suggest that this was of no moment because the television had been originally obtained from his brother. He denied violence and misconduct generally on that occasion, although he admitted that a hole was punched in the wall of the premises. He was quite unable to explain why as many as 10 police attended, but he was vivid in his complaint. He said it was always a one-sided thing and said that the police, essentially, always took her side and that, “I couldn’t hold it anymore.” I note that there has been a similar incident involving Ms D where, on his own admission, he swung a car door into her because he was really angry and smashed her car. He also admitted, but not straight away, a violent fight with his brother, Mr F, when the mother was present.
The mother’s evidence, by way of contrast, was clear and direct. The father would push X away and tell her to fuck off. She stuck to her affidavit evidence about the assault on the night of 13 to 14 August 2019 and, likewise, her evidence about X rolling off the bed and the subsequent seizures. She said that her memories of August 2019 still traumatise her, as does the eight-second video of X crying on the floor.
My findings about these matters are relatively straightforward. The mother’s version of the events is entirely consistent with the objective police materials. The father was, indeed, jailed for 19 days. He has numerous other convictions for either assaults or breaches of the intervention order and it appears he has a number of pending charges, not all of which he was able to explain. The mother was an entirely believable witness and, regrettably, the father was manifestly not, save to the extent that he made concessions. I have no doubt whatever, in the face of the objective materials from the police and the oral evidence I have heard, that the father verbally abused the mother, calling her a “slut” and the like. I accept the mother’s version about X rolling off the bed. I have no doubt that the father abused X and told her to fuck off and I accept that the eight-second video shows the harrowing events the mother described. He concedes that he was yelling and slamming doors to Dr E and he undoubtedly physically assaulted the mother in August 2019.
The presumption, accordingly, is plainly not applicable and even to add to that, parental communications are non-existent. Plainly, the mother must have, on an ongoing basis, an order for sole parental responsibility. That brings us back to the decision of the Full Court in Goode & Goode at [65], and what the Court said at subparagraphs 10 and 11 was this:
10.When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11. The child’s best interests remain the overriding consideration.
That brings us to section 60CC of the Family Law Act 1975 (Cth). I commence with subsection (2), which details the primary considerations to which the Court must have regard and these are, of course, first, the benefit to the child of having a meaningful relationship with both of the child’s parents and, second, the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. Pursuant to section 60CC(2A), in applying the considerations set out in subsection (2), the Court is to give greater weight to the considerations set out in paragraph (2)(b). Here, obviously, the mother is opposed to the child having a meaningful relationship with the father, which the father seeks, and the Independent Children's Lawyer supports the father. It is not necessary at this stage to say more about those issues because it’s appropriate to turn to subsection (3), which set out the additional considerations.
Pursuant to section CC(3)(a), the Court is to consider 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. X has expressed no views; she is too young to do so. The mother says, however, in substance, that X is very affected by her own views and points to the response to the 11F interviews, which she would infer would have reflected her own distress at that procedure. Whether that is truly so or not remains, to an extent, unknown but, certainly, X has not expressed any meaningful views of her own.
Pursuant to section 60CC(3)(b), the Court is required to consider the nature of the relationship of the child with each of the child’s parents and other persons. The child is clearly bonded closely with the mother, who has always been her primary carer, and it would seem, to the extent that the material has revealed the matter, also with B. She has no memory of the father and the mother does not mention him. What the mother said in evidence, and it was believable, was that X has no clear idea of any of them – by which I presume she meant the father’s family – except Ms G and her daughters. As I understand the matter, that is a sister of the father, but if I am wrong, nothing turns on that. It does not appear that she has any recollection of C, although I have seen photographs of the two children apparently happily together.
Section 60CC(3)(c) requires the Court to consider the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child and to spend time and communicate with the child. In this regard, the father’s evidence is, in part, inconsistent. In his affidavits, he said he had a close relationship with X and was heavily involved with her, but in his evidence in relation to the eight-second video, he said that he had never looked after her before on his own and, indeed, he needed help but the mother went out, which made him really angry. The mother’s evidence is far more believable. The father was resentful during the relationship about money, as he disclosed to Dr E. He was not heavily involved with X and, indeed, on occasions, pushed her away and abused her when she irritated him. The child was solely breastfed. The mother was clearly the primary carer.
The father’s position about his desire to be involved in X’s life has been, in a sense, more nuanced. He failed to do anything after the section 60I certificate – until December 2020. His own affidavit makes it clear that this did not arise primarily as a result of delays caused with accessing Legal Aid. Even now, he says he cannot afford to travel to Queensland, leaving aside the restrictions presently in place as a result of his CCO which will continue for some time yet. This is, of course, contrasted with the fact he says he can afford private supervision through the help of his family. The clear impression he gave me was that he wants the mother in Victoria and for him that is about it. He is not entirely clear that he would go to Queensland to see her if she remains there.
Pursuant to section 60CC(3)(ca), the Court is required to consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child. The mother has done her best. The father pays, at most, $20 per month child support. I accept the mother’s evidence that he does not always even pay that. I also accept, of course, that he is not employed and is on a pension, although he lives with his mother and has that advantage, presumably, but he has said in his evidence that money is not a problem so long as he can see X. His attitude towards the mother is entirely accusatory. He went so far as to suggest, through his Counsel, that the mother has deliberately and, as it were, by forgery falsified texts that she has appended to her affidavits. An assertion I roundly reject. The father, in my view, will only help the mother unless he gets everything as he wants it.
Pursuant to section 60CC(3)(d), the Court is required to consider the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person with whom she has been living. Obviously, any separation from the mother would be traumatic for X. To his credit, the father admits that it would be scary for X to see him. Clearly, any time at all with the father will be severely distressing for the mother. She could scarcely bear even to be on the same screenshot with him. There is no formal or independent evidence that the mother suffers from PTSD as she asserts, but I have no doubt that she is still traumatised, as she has said, by the events to which she refer in her evidence. Any upset of the mother may well flow through to X, as appears possibly to have been the case following the 11F interviews. I do not overlook, in this regard, the effect of separation from C. I accept, in principle, it is desirable that X have a relationship with her half-sibling.
Section 60CC(3)(e) requires the Court to consider the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expenses will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis. In the context of this case, this is, of course, a major issue. Neither parent has much money, although, as I have said, the father has indicated that he is likely to get help from his family. Queensland is a long way away and, clearly, any time with the father would be much easier to arrange and to foster if the mother was in Victoria. I will return to this aspect of the matter when I deal with the discrete issue of relocation.
Section 60CC(3)(f) requires the Court to consider the capacity of each of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs. The mother clearly can provide for X’s needs, subject to her difficulty in promoting a relationship with the father. The father is markedly deficient in this regard. He clearly has very limited insight. He was unable to cope with X on his own, apparently on the only time when this ever occurred.
Subsection 60CC(3)(g) requires the Court to consider the maturity, sex, lifestyle and background, including lifestyle, culture and traditions, of the child and either of the child’s parents and any other characteristics of the child that the Court thinks are relevant. The child is four and appears, subject to some health issues which are under investigation, to be progressing well. To an extent, both parents have deficits. The mother has conceived two children, apparently both unplanned, very early into non-established relationships. She entered on parenthood at a very young age. She would appear to be impulsive in a general way, as illustrated by those matters and also by the way in which she moved to Queensland. Nonetheless, she presented well in giving her evidence and is seeking to establish a qualification that will enhance her prospects for work. She also expressed a mature and considered view of compliance with the Court’s orders, even if the outcome was difficult or distasteful to her.
The father did not present as well. He struck me as self-centred. He lives at home with a mother who clearly loves him dearly. His attitude towards work and his parental responsibilities I have already commented on. His personality is well-illustrated by Dr E’s report. He is immature and prone to violence.
Subsection 60CC(3)(h) is not relevant. Subsection 60CC(3)(i) requires the Court to consider the attitude to the child and responsibilities of parenthood demonstrated be each of the child’s parents. I have already dealt with this. The mother has an appropriate attitude but has this desire completely to exclude the father. The father has deficits to which I have referred.
Subsection 60CC(3)(j) requires the Court to consider any family violence involving the child or a member of the child’s family. Obviously, this is an important matter in this case. It is clear, as I have already detailed, that there has been family violence. The father has been violent on a serial basis at school in his young adulthood, as disclosed to Dr E, and with two of his partners. While these are serious matters, it is not necessary to do more than note them to this extent. Likewise, pursuant to section 60CC(3)(k), there is an intervention order in place. This is in no way surprising given the background. Once again, although it is important, it does not require further emphasis. Subsection 60CC(3)(l) requires the Court to consider whether it is preferable to make final or interim orders, which is a matter, of course, to which I shall return. Subsection 60CC(3)(m) requires the Court to consider any other relevant matter.
This brings us – bearing in mind that I have already dealt with parental responsibility – to the first of the remaining three issues. Namely the question of relocation. I make the following points. The mother has obtained an order for sole parental responsibility in earlier proceedings on an interim basis. Her evidence is that she thought, as a result of this, that she was permitted to relocate. She did not even consult her solicitors. The Independent Children's Lawyer is critical of this, but in the ultimate, says that the Court should accept this as a fait accompli. The father says the mother should return to Victoria. It should be noted that no formal order of the Court prohibited relocation. The mother acted impulsively and candidly admitted this in her evidence.
My own conclusions would be that I am not as convinced as the independent children's lawyer is of the mother’s perceived perfidy in moving in the way that she did. Her financial circumstances in Victoria were clearly very difficult. The father’s history of violence and stalking, at least as the mother would see it, was plainly relevant. The mother has always been very close to her own mother. Her financial circumstances are clearly much better living with her mother in Queensland. It is possible that the children’s health may be somewhat better in Queensland, given some of the matters they have suffered from. It should be remembered that cases like U & U [2002] HCA 36 and A v A (2000) FLC 93-035 established that it is not necessary for the mother, or other prospective parent who wishes to move, to establish an entitlement to move. Rather, the question is the child’s best interests.
Obviously, there is a flat side to the mother’s decamping to Queensland. It makes it far more difficult for X to see the father and, of course, his family and, I emphasise again, C. Nonetheless, it is clearly wholly impracticable to force the mother to return to Victoria. The toll, both emotional and financial, on the mother would be just too great. This would clearly flow on to X. I am simply not prepared to order the mother to return to Victoria. While her decision to move to Queensland was plainly impetuous, the financial and emotional considerations that drove her to do it were, in my view, reasonable. X’s circumstances in Queensland, financially and accordingly otherwise, are likely to be far better. The mother should remain in Queensland.
As I say, I have already dealt with the question of parental responsibility. This brings us to the question of time with the father. I am concerned that the effects upon the mother of any order for time being spent by X with the father, but to her credit, the mother says she will obey Court orders and that evidence was given convincingly and I accept it. The effect of the mother’s proposal is that X would spend no time with the father, no time with C and no time with the father’s family. I note that the father’s mother is on affidavit deposing to her affection and love for X. The total exclusion of the father is not in X’s best interests, despite the father’s disgraceful prior conduct. He has now undertaken a number of courses and is still undertaking a further one. It appears he has had some benefit from this, but it would seem more so that he has still much to learn.
I propose to make the orders 2, 3 and 6 sought by the Independent Children's Lawyer, which have a net effect of enrolling the parties at a contact centre – not a private supervisor – in Queensland. This will take time, but it will provide the opportunity for the father to spend time with X. Contrary to the position of the Independent Children's Lawyer, I see no basis why the mother should pay any of it. The proposal that she do so has something about it of a punishment, as it were, for the mother for relocating, but I do not think that is an appropriate way to look at the matter. We are concerned with X’s best interests.
The father contributes virtually nothing to the costs of the child, which have been entirely met by the mother. He should pay for his travel to Queensland. Given the likely amount of time that a contact centre would initially make available, he will not need to stay overnight unless he chooses to do so. He has been given the opportunity to step up. He says he has money to afford private supervision in Melbourne. He can use such funds to fly him to Queensland and stay there if need be. The time at the contact centre itself is likely to be cheap. I am not prepared to order professionally supervised time in Queensland. There has been no meaningful information put to the Court as to its availability or suitability and, in any event, it is not entirely clear the father will take up the time, in any event. In my view, the time should be made at a supervised contact centre in Queensland.
That brings us to the final issue: the question of final or interim orders. Clearly, the orders made should be final. The mother was observably stressed by her participation in this proceeding. It is in X’s best interests that this stress is removed. The way forward for the father is clear. He should register with the contact centre, save his money for his airfares and go. However, while I am proposing to make final orders to remove the uncertainty and stress for all of the parties, and most particularly for the mother, I will order that the father not face a Rice & Asplund (1979) FLC 90-725 objection if he makes further applications seeking to move to further and/or unsupervised time. In other words, if he takes up the opportunity that these orders will give him and it goes well, then he will be in a position to make the application to the Court.
I do not think it is appropriate to build in a further trial and/or a family report. The way forward for the father is clear. If he takes it up – and I hope he does, obviously – then he can come back when he is in a position to do so. So unless I have missed anything, I will give the parties a short while to consider the matter and come back to me. I propose to make orders 3, 4 and 6 of the Independent Children's Lawyer’s minute, which have the net effect of enrolling the parties at the contact centre in Queensland and I propose to make a further order that the father not face a Rice & Asplund objection in the event that he seeks further and/or unsupervised time and, of course, I would make an order discharging the appointment of the Independent Children's Lawyer.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt. Associate:
Dated: 19 January 2022
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