Dean & Dean
[2022] FedCFamC1F 763
Federal Circuit and Family Court of Australia
(DIVISION 1)
Dean & Dean [2022] FedCFamC1F 763
File number(s): MLC 7370 of 2020 Judgment of: HARTNETT J Date of judgment: 7 October 2022 Catchwords: FAMILY LAW – CHILDREN – Best interests – Relocation – Where the mother sought orders to relocate with the child to Country B – Where the father sought orders restraining the mother’s relocation with the child to Country B – Where the child’s primary attachment is to the mother – Where the child is aged three years – Where the child spent no time and then supervised time with the father on two occasions a week until July 2022 – Where the child spends time with the father two days a week with the substantial attendance of the paternal uncle, aunt or grandmother – Where the child communicates with the father via FaceTime – Where the mother has resided in Australia for approximately twelve years – Where there are findings of family violence committed by the father – Where the presumption of equal shared parental responsibility is rebutted – Where the mother shall have sole parental responsibility of the child – Where the mother and child are permitted to relocate to Country B in late 2023 – Where the orders are to be registered in a court of competent jurisdiction prior to such relocation in Country B – Where the mother will pay for the child to travel to Australia to facilitate time with the father – Where the father can travel to Country B – Where the child shall communicate with the father via FaceTime or other electronic communication weekly. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4(1), 4AB, 60B, 60CA, 60CC, 61DA, 65AA, 65D, 65DAC
Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children arts 24, 26
Cases cited: Adamson & Adamson (2014) FLC 93-622
AMS v AIF (1995) 199 CLR 160
Bell & Nahos [2016] FamCAFC 244
Blinko & Blinko [2015] FamCAFC 146
Bolitho v Cohen (2005) FLC 93-224
Hepburn & Noble (2010) FLC 93-438
M & M (1988) 166 CLR 69
Malcolm v Monroe (2011) FLC 93-460
McCall v Clark (2009) FLC 93-405
Mulvany & Lane (2009) FLC 93-404
R & C [1993] FamCA 62
U v U (2002) 211 CLR 238
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Zahawi & Rayne [2016] FamCAFC 90
Division: Division 1 First Instance Number of paragraphs: 162 Date of hearing: 14 – 15 July 2022; 18 – 19 July 2022; 26 August 2022 Place: Melbourne Counsel for the Applicant: Mr Lethlean Solicitor for the Applicant: Nevett Ford Counsel for the Respondent: Ms Stavrakakis Solicitor for the Respondent: VM Family Lawyers Counsel for the Independent Children's Lawyer: Mr O’Connell Solicitor for the Independent Children's Lawyer: Victoria Legal Aid ORDERS
MLC 7370 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR DEAN
Applicant
AND: MS DEAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HARTNETT J
DATE OF ORDER:
7 OCTOBER 2022
THE COURT ORDERS THAT:
1.All previous orders concerning X born 2019 (“the child”) are discharged.
2.The mother have sole parental responsibility for all “major long-term issues” (as defined in s 4(1) of the Family Law Act 1975 (Cth)) in respect of the child.
3.In exercising sole parental responsibility in accordance with Order 2 above:
(a)the mother shall provide the father with at least 14 days’ prior written notice by email of her intended decision (save for in the event of a medical emergency);
(b)the father be at liberty to respond to the mother by email within seven days of the written notice providing his comments and/or proposal with respect to the intended decision;
(c)the mother shall give due consideration to the father’s comments prior to making the intended decision and advise the father in writing of the outcome of the decision; and
(d)in the event that the father fails to respond to the mother, she is at liberty to make the intended decision without input by the father and shall inform the father of the outcome of the decision following the expiration of 14 days from the date of the written notice.
4.The child live with the mother.
5.The mother is restrained from relocating the child’s residence outside Australia until 1 September 2023, such relocation being conditional upon her filing in the Court and serving upon the father an affidavit verifying (with documentary evidence) she has:
(a)requested a decision from a court of competent jurisdiction in Country B about the recognition of these orders in Country B pursuant to Article 24 of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children signed at The Hague on 19 October 1996 (“the Child Protection Convention”); and
(b)obtained from a court of competent jurisdiction in Country B a declaration of registration and enforceability of these orders in Country B pursuant to Article 26 of the Child Protection Convention.
6.The mother is restrained from relocating the child’s residence a distance greater than 20 kilometres from the father’s current residence whilst the mother is residing in Australia and until 1 September 2023.
7.Upon the child’s residence being relocated to Country B, the mother is restrained by injunction from relocating the child’s residence from Country B.
8.Until 1 September 2023, the child spend time with the father as follows:
(a)until 26 October 2022, with a responsible adult, being one of the paternal uncle, paternal grandmother, or paternal aunt, in substantial attendance during face-to-face time:
(i)each Saturday from 9.00am to 5.00pm;
(ii)each Tuesday from 3.30pm to 6.30pm;
(iii)each Friday, by FaceTime at 5.00pm for up to 30 minutes with the father to initiate the call to the mother’s phone and the mother to facilitate the call; and
(iv)such other time as may be agreed between the parties in writing;
(b)from 26 October 2022 until 31 December 2022:
(i)each alternate week from 8.00am to 4.00pm on Saturday and 8.00am to 4.00pm on Sunday save for Christmas Day 2022 when the child shall spend time with the father from 9.00am to 1.30pm;
(ii)each Tuesday from 3.30pm to 6.30pm;
(iii)each Thursday, by FaceTime at 5.00pm for up to 30 minutes with the father to initiate the call to the mother’s phone and the mother to facilitate the call; and
(iv)such other time as may be agreed between the parties in writing;
(c)commencing 1 January 2023:
(i)from 10.00am on 2 January 2023 until 6.00pm;
(ii)from 10.00am on 4 and 5 January 2023 until 6.00pm; and
(iii)from 10.00am on 8 February 2023 until 6.00pm;
(d)commencing 11 February 2023:
(i)each alternate week, from 5.00pm on Friday to 6.00pm on Saturday, with such time to be extended to 6.00pm on Sunday on the weekend commencing 8 April 2023.
(ii)each week from 3.30pm on Tuesday until 6.30pm until Tuesday 11 July 2023 when such time shall extend to 9.00am on Wednesday;
(iii)from 10.00am on 27 August 2023 to 6.00pm on 29 August 2023;
(iv)from 12 noon to 8.00pm on 31 August 2023;
(v)each Thursday, by FaceTime at 5.00pm for up to 30 minutes with the father to initiate the call to the mother’s phone and the mother to facilitate the call; and
(vi)such other times as may be agreed between the parties in writing;
(e)on the child’s birthday in 2023, from 8.00am to 1.00pm; and
(f)the child be at liberty to communicate by telephone with the parent they are not spending time with at any reasonable time upon request of the child and the carer parent will facilitate such telephone communication.
9.Commencing upon the child’s relocation to Country B and from 1 September 2023 the child spend time with the father as follows:
(a)on one occasion in each calendar year to be no more than 12 months apart, with the first occasion being prior to 1 September 2024, in Australia, and for the purpose of this time:
(i)until the child turns ten, the mother will travel with the child to Australia;
(ii)for the first two years, the child spend three blocks of no more than three consecutive nights with the father with the remaining time to occur as daytime only from 8.00am to 6.00pm, and the child and the mother remain in Australia for at least 14 days;
(iii)thereafter, until the child turns eight, the child spend two blocks of five consecutive nights with the father with the remaining time to occur as daytime time only from 8.00am to 6.00pm, and the child and the mother remain in Australia for at least 14 days;
(iv)thereafter, until the child turns ten, the child spend two blocks of six consecutive nights with the father with the remaining time to occur as daytime time only from 8.00am to 6.00pm, and the child and mother remain in Australia for at least 14 days;
(v)upon the child turning ten, the child be permitted to travel to Australia unaccompanied and spend a maximum period of 14 days with the father or such other and further time as may be agreed in writing between the parties; and
(vi)the cost of travel to Australia be borne by the mother.
(b)on no more than four occasions each calendar year in Country B, and for the purpose of this time:
(i)the father be at liberty to spend time with the child for a maximum of 14 days on each occasion or such other and further time as may be agreed in writing between the parties;
(ii)for six months after 1 September 2023, the maternal grandmother or maternal uncle be in substantial attendance during any time spent with the child and time occur in C Town from 10.00am until 5.00pm on each day of time spent as applicable to the first five days. Thereafter for the remaining up to nine days the child spend two blocks of two consecutive nights with the father and one block of three consecutive nights;
(iii)thereafter, for the following two years, the maternal grandmother or maternal uncle be in substantial attendance for the first day of time spent with the child and the father spend no more than three blocks of two consecutive overnights with the child with the remaining time to occur as daytime time only from 8.00am to 6.00pm on each day of time spent;
(iv)upon the child commencing school, the child spend two blocks of no more than five consecutive nights with the father with the remaining time to occur as daytime time only from 8.00am to 6.00pm on each day of time spent;
(v)upon the child turning ten, the child spend up to ten consecutive nights with the father with the remaining time to occur as daytime only from 8.00am to 6.00pm on each day of time spent; and
(vi)the father’s time will not occur during any more than two school holiday periods in any calendar year.
(c)the child communicate with the father via videoconference, FaceTime or telephone each Tuesday, Thursday and Sunday at 8.00am GMT (6.00pm AEST) for up to 30 minutes on each day upon the mother and child relocating to Country B, or as otherwise agreed between the parties in writing; and
(d)the child be at liberty to communicate by telephone with the parent they are not spending time with at any reasonable time upon request of the child and the carer parent will facilitate such telephone communication.
10.All changeovers in Australia shall occur at the front entrance of Suburb D community centre, E Street, Suburb D, or otherwise as agreed in writing between the parties.
11.The mother be permitted to travel with the child to Country B for a period of four weeks from 6 January 2023 until 6 February 2023 during which time the mother will facilitate the child communicating with the father by FaceTime or Zoom or other electronic means on three occasions each week, at times agreed between the parties, with the mother to initiate the call to the father’s phone or email address.
12.IT IS REQUESTED THAT the Family Law Watchlist Order made on 19 October 2020 currently in force at all points of arrival and departure in the Commonwealth of Australia be suspended in its operation from 4 January 2023 to 8 February 2023 and that the mother, MS DEAN born 1982 is permitted to take the child X born 2019 out of the Commonwealth of Australia in accordance with Order 11 herein.
13.The name of the child, X born 2019, be removed from the Family Law Watchlist currently in force at all points of arrival and departure in the Commonwealth of Australia on 31 August 2023 AND IT IS REQUESTED THAT the Australian Federal Police give effect to this order by removing the child’s name from the Family Law Watchlist as at 31 August 2023.
14.Both parties do all things and sign all documents necessary to renew the child’s Australian passport as required and the child’s Australian passport to remain in the possession of the mother.
15.The parties, their servants and agents be and are hereby restrained by injunction from:
(a)abusing, insulting belittling, rebuking or otherwise denigrating each other or their family to or in the presence and/or hearing of the child and from permitting anybody else to do so;
(b)discussing these proceedings with the child or in his presence and/or hearing and from permitting anybody else to do so;
(c)physically disciplining the child or permitting anybody else to do so; and/or
(d)utilising the child to pass messages between the parents or any other family members.
16.Each party shall notify the other of any medical emergency, illness or injury suffered by the child whilst in their respective care warranting medical treatment, including providing full particulars of the treatment received by the child and the name and contact details of the treatment provider, and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the child.
17.The mother shall authorise and request the principal of any school attended by the child to provide to the father, at his expense, copies of all school reports, school notices, school photograph order forms and all information ordinarily provide to parents relating to the child, at the expense, if any, of the father.
18.A copy of the Family Report of clinical psychologist, Ms F, dated 22 April 2022 be provided to any medical or allied health professionals involved with the child or either of the parties.
AND IT IS ORDERED, BY CONSENT, THAT:
19.All communication between the parties, save for emergencies, to be via the parenting application AppClose.
20.Each party shall forthwith inform the other, and keep the other informed within 48 hours of any change thereto, in writing of their respective current residential address, mobile telephone number and email address.
21.As soon as practicable, the father do all such things necessary to complete a Men’s Behavioural Change Program and provide the mother with a copy of the certificate of completion.
AND IT IS FURTHER ORDERED THAT:
22.Pursuant to s 65DA(2) and s 62(B) of the Family Law Act 1975 (Cth), particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
23.The Independent Children’s Lawyer is discharged upon the latter of the determination of any appeal or the expiration of the applicable appeal period.
24.Otherwise, any and all other outstanding applications under Pt VII of the Family Law Act 1975 (Cth) are dismissed.
AND THE COURT NOTES THAT:
A.The parties intend to continue to independently engage with a psychologist on a fortnightly basis for a minimum of 6 months, or as otherwise recommended by the psychologist.
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 the pseudonym Dean & Dean has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J
Introduction
On 9 July 2020, the father commenced parenting proceedings under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) in the Federal Circuit Court (now Division 2 of the Federal Circuit and Family Court of Australia) seeking final and interim orders in respect of X (“the child”) born 2019. The interim orders sought were for equal shared parental responsibility; for the child to live with the mother; and for the child to spend time with the father each Tuesday and Thursday for half an hour; and each Saturday and Sunday from 9.00am to 5.00pm with time increasing to overnight time from 1 September 2020.
The mother informed the father by her Response filed 2 October 2020, that she wished to relocate with the child to Country B. The child was then aged 15 months. He had been aged almost 12 months at separation.
The mother was born in 1982 in City G, Country H and was 39 years at trial. The mother has resided in Australia since early 2011 and in mid-2017 was granted Australian citizenship. The mother is currently employed as a manager at KK Company, she is in good health, save she suffers from anxiety.
The father was born in 1975 in Australia and was 47 years at trial. The father is currently employed as a contractor to J Company. The father is in good health, save he sees a psychologist for historic mental health issues.
The parties met in or around 2011 or 2012 in City K, Western Australia. They commenced cohabitation on the mother’s evidence, in early 2013, and on the father’s evidence, in late 2013. The parties married in late 2016. In mid-June 2020, the parties separated with the father moving out of the rented former matrimonial home (“FMH”).
On 19 October 2020, a Senior Judicial Registrar refused the father’s interim application to spend time with the child. The interim orders otherwise provided that the mother have sole parental responsibility; that the child live with her; that the father undertake a hair follicle drug test; that a Family Report be prepared; and that the child be placed on the Family Law Watchlist.
On 16 December 2020, interim consent orders were made between the parties providing for the child to commence spending professionally supervised time with the father. Such time commenced in January 2021, and continued with slight variation as to time and to allow for partial supervision by the paternal uncle in one period of time a week until 19 July 2022, when, with the trial part heard, I made interim orders by consent providing for the child to spend time with the father each Wednesday and Saturday, with a designated adult to be in substantial attendance, and otherwise for the child to communicate with the father by FaceTime each Tuesday and Friday for up to 30 minutes.
On 26 August 2022, when the matter resumed, and at its conclusion, to progress matters pending the delivery of judgment, consent orders were made permitting the mother and child to travel to Country B for a four week holiday in early 2023; allowing the father to have Christmas with the child in 2022; and for the child to spend time with the father as follows:
a.For a period of 3 months, with a responsible adult, being one of the paternal uncle, paternal grandmother or paternal aunt, in substantial attendance during face-to-face time:
i. Each Saturday from 9.00am to 5.00pm;
ii. Each Tuesday from 3.30pm to 6.30pm;
iii.Each Friday, by Facetime at 5.00pm for up to 30 minutes with the Father to initiate the call to the Mother’s phone and the Mother to facilitate the call;
iv. Such other time as may be agreed between the parties in writing;
b. Thereafter, for a period of 3 months:
i.Each alternate week, from 8.00am to 4.00pm on Saturday and 8.00am to 4.00pm on Sunday;
ii. Each alternate Tuesday (in the off week) from 3.30pm to 6.30pm; and
iii. Such other time as may be agreed between the parties in writing.
The orders the Court shall make to resolve the parenting proceeding differ from those proposals put by the parties before the Court, but are closest to those put forward by the mother and in part the Independent Children’s Lawyer (“ICL”). At the conclusion of the trial, the ICL tendered a Proposed Minute of Orders dated 26 August 2022. The ICL’s proposal lay somewhere in between those of the parties, but of particular significance, did not provide for the mother and child to relocate. The ICL did, however, propose for the mother to have sole parental responsibility and for the mother to travel overseas. The father also did not object to the mother and child travelling annually to Country B.
The mother sought final orders that the child live with her; she have sole parental responsibility for the child; she be permitted to relocate with the child to Country B; and that the child be removed from the Family Law Watchlist. If the mother was permitted to relocate, she sought orders that the child communicate with the father on Tuesday, Thursday and Sunday; spend time with the father on one occasion each calendar year in Australia and on no more than four occasions each calendar year in Country B; and with the child’s time with the father be supervised by a family member, either the paternal uncle, Mr L (“the paternal uncle”) in Australia, or maternal grandmother or maternal uncle if in Country B. If the mother was not permitted to relocate, she sought orders that the child spend increasing time with the father with such time to be supervised by a family member for six months and thereafter be unsupervised. The mother however conceded the father’s position on 26 August 2022 in the manner described in [8] above. The mother also sought an order that the Family Report of Ms F, a clinical psychologist, (“the single expert”) dated 22 April 2022 be provided to any medical or allied health professionals involved with the child or either of the parties.
The father sought final orders restraining the mother from relocating with the child from Australia and that the parties have equal shared parental responsibility for the child. He agreed that the child should live with the mother and spend time with him. The father agreed to his time being subject to the substantial attendance of the paternal uncle, the paternal aunt, or grandmother for a further time, but otherwise sought that the child’s time with him not be subjected to any conditions. He sought a gradual increase in duration of time without a substantial attendance condition from late November 2022, and for overnight time to be introduced. Counsel proposed this start sometime following the conclusion of the trial progressing to holiday time and extended overnight time.
The parties will consent to an order that the father complete a Men’s Behavioural Change Program and for all communication between the parties to be via the parenting application AppClose. They shall keep each other informed as to their contact details.
Material relied upon
The father relied upon the following:
(1)Further Amended Initiating Application filed 3 May 2022;
(2)his trial affidavit filed 5 April 2022;
(3)his outline of case filed 3 May 2022;
(4)affidavit of Ms M, the father’s mother, filed 5 April 2022;
(5)affidavit of Ms N, the father’s sister, filed 5 April 2022;
(6)affidavit of Mr L, the father’s brother-in-law, filed 5 April 2022; and
(7)affidavit of Mr O, the father’s treating psychologist, filed 15 December 2020.
The mother relied upon the following:
(1)Response to Final Orders filed 13 November 2020;
(2)her affidavits filed 20 April 2022, 16 July 2021, 20 November 2020, and 2 October 2020;
(3)her outline of case filed 3 May 2022;
(4)Notice of Risk filed 2 October 2020;
(5)affidavits of Ms P, the mother’s mother, filed 19 April 2022 and 18 November 2020;
(6)affidavit of Mr Q, the mother’s brother, filed 19 April 2022;
(7)affidavit of Ms R, the mother’s friend, filed 6 October 2020; and
(8)affidavit of Ms S, a clinical psychologist, filed 19 April 2022.
The final proposal of the mother was contained within her Updated Minute of Proposed Final Orders dated 26 August 2022.
The parties and the ICL relied upon two Family Reports of the single expert, clinical psychologist Ms F, as contained in the single expert’s affidavits filed 2 May 2022 and 16 December 2020. Those Family Reports were dated 22 April 2022 and 14 December 2020.
The ICL also relied upon the Victoria Police records of the father and a case summary document filed 4 May 2022.
The parties also relied upon those documents tendered as exhibits by each of them.
Legal principles
Proceedings which involve relocation “are no different from other applications for parenting orders” and are to be determined in the same manner in which all parenting proceedings are determined.[1] That is, by following the legislative framework set out in the Act to determine what is in the best interests of the child. As was stated by the Full Court of the Family Court of Australia (“Full Court”) in Zahawi & Rayne [2016] FamCAFC 90:
48.….the issues in a “relocation case” are, by reason of the proposed geographical separation of parents from their children, often significantly more acute and all the more so in cases of proposed international relocation. And, of course, that same factor will usually render more acute the burden or burdens to be borne by one parent or the other, including restrictions on their freedoms.
[1] U v U (2002) 211 CLR 238; Zahawi & Rayne [2016] FamCAFC 90 at [48].
There is no onus in relocation cases for a party who wishes to relocate with the subject child of the proceeding to establish “compelling reasons” for relocating.[2] The Court may consider, however, the availability of family support in terms of emotional, financial and childcare support balanced against the parties’ respective proposals and weigh that consideration accordingly.[3]
[2] U v U (2002) 211 CLR 238, 261; Malcolm v Monroe (2011) FLC 93-460 at [83]; AMS v AIF (1999) 199 CLR 160 at 191. Affirmed in Adamson & Adamson (2014) FLC 93-622 at [65]-[66].
[3] McCall v Clark (2009) FLC 93-405 at [131]–[135]; Hepburn & Noble (2010) FLC 93-438 at [43], [49] – [64].
The Court is not bound by either party’s proposals.[4] The Full Court in Bolitho v Cohen (2005) FLC 93-224 said as follows:
85.The requirement to look beyond the proposals of the parties highlights the fundamental difference in litigation involving the welfare of a child, and ordinary inter parties litigation. This unique requirement may necessitate a trial Judge crafting orders which are outside the proposals presented by either party, subject to the caveats expressed by Hayne J [in U v U]. This task requires a trial Judge to afford the parties procedural fairness by indicating and inviting comment on changes to the parties’ own proposals, for example, by way of additional or different contact to that proposed by the relocating party, or a limitation to a period of restraint in removing a child from its present geographical location.
[4] U v U (2002) 211 CLR 238.
Section 60B of the Act sets out the principles and objects of Part VII of the Act, which guide the making of orders in respect of children. Pursuant to s 65D of the Act, the Court has the power to make such parenting orders it deems proper. In doing so, the paramount consideration is the best interests of the child.[5]
[5] Family Law Act 1975 (Cth) ss 60CA, 65AA.
The 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, contained in s 61DA of the Act, does not apply in certain circumstances.[6] If the presumption of equal shared parental responsibility does apply, or the Court is otherwise satisfied on the evidence that it is in a child’s best interests to make an order for equal shared parental responsibility, then the Court must consider whether it is in a child’s best interests and reasonably practical to spend equal time with each parent or, if not equal time, whether it is in a child’s best interests and reasonably practical for a child to spend substantial and significant time with each parent.
[6] Family Law Act 1975 (Cth) ss 61DA, 61DA(2).
Where there are reasonable grounds to believe that a parent has abused a child the subject of the proceeding or another child of that parent’s singular household at the time or engaged in family violence, as defined in s 4AB of the Act, the presumption is rebutted.[7] Further, the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility.[8]
[7] Family Law Act 1975 (Cth) s 61DA(2).
[8] Family Law Act 1975 (Cth) s 61DA(4).
To determine the best interests of the child, “the Court must consider the matters set out in subsections (2) and (3)” of s 60CC of the Act.[9] Sections 60CC(2) and 60CC(2A) of the Act set out the primary considerations as follows:
[9] Family Law Act 1975 (Cth) s 60CC(1).
(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).
Section 60CC(2)(a) of the Act requires the Court to weigh up the benefit to the child of having a relationship with both parents. In doing so, the Court must give primary consideration as to whether there is an unacceptable risk of physical and/or psychological harm to the child in spending time with either parent.[10] Upon establishing the existence of an unacceptable risk, the Court must then determine whether that risk “is able to be sufficiently managed or ameliorated”.[11]
[10] M & M (1988) 166 CLR 69 at [25].
[11] Blinko & Blinko [2015] FamCAC 146 at [83] referring to R & C [1993] FamCA 62.
The Court must also consider the additional considerations under s 60CC(3) of the Act, as far as they are relevant to this proceeding.
In Mulvany & Lane (2009) FLC 93-404 it was observed by Finn, May and Thackray JJ that:
76. It is important to recognise that the miscellany of "considerations" contained in ss 60CC(2) and (3) is no more than a means to an end. Self-evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child's best interests.
77. It needs also to be remembered that the importance of each s 60CC factor will vary from case to case…
(Emphasis in Original)
Whilst the additional considerations as set out in s 60CC(3) must be considered by the Court, specific reference to each and every one of those considerations is unnecessary in these reasons.[12]
[12] Mulvany & Lane (2009) FLC 93-404. at [77].
Statements of fact in these reasons are findings of fact on the balance of probabilities.[13] It is not necessary in these reasons for judgment to comment upon the entirety of the evidence including the evidence of each witness, nor to comment on every exhibit tendered. However every piece of evidence relied upon by the parties has been read and carefully considered by me.[14]
Best Interests - Primary considerations
[13] Evidence Act 1995 (Cth) s 140
[14] Bell & Nahos [2016] FamCAFC 244 at [28]; Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62].
Section 60CC(2)(a)
The child’s primary attachment is to his mother who has been the child’s primary carer since birth. It was the single expert’s evidence that the child has a “very close, secure bond” with the mother, being a closer attachment to the mother, than the father.[15] This was not contested by the father, who, by the orders he sought, accepted that the child would remain in the primary care of the mother.
[15] Family Report dated 22 April 2022.
The father, however, viewed the mother as trying to exclude him from the child’s life. His evidence was that the mother did not have the child’s best interests at heart.[16] This was in the context of the desired relocation. The father, otherwise, did not doubt the mother’s ability to care for the child and acknowledged the mother was a good teacher.[17]
[16] Transcript 14 July 2022, p.10 lines 1 – 5.
[17] Transcript 14 July 2022, p.10 line 6.
The child has a developing relationship with the father. The single expert observed that the father had formed a close bond with the child in the year preceding the trial, despite the limited time the child and father spent together. An increase in time, on the evidence of the single expert, would strengthen this bond and provide the father with a greater parenting role, rather than him being a visitor in the child’s life. It was further the evidence of the single expert that the father is devoted to his son, and his parenting skills have improved exponentially as he seeks to be the best role model and parent he can for his child. That evidence is accepted by the Court.
The single expert was further of the opinion that the father was more likely to promote, facilitate, and support a positive and meaningful relationship between the child and other parent. In my view, whilst this in isolation could be correct, the context of the family violence perpetrated by the father upon the mother, which has affected her promotion of the relationship between the father and child until such time as the child’s safety has been assured, cannot be ignored.
The father’s evidence, that the mother has “ongoing difficulties in promoting the relationship between the father and [the child]”, suffers from the same difficulty.[18]
[18] Father’s Case Outline filed 3 May 2022, p.3.
Clinical psychologist, Ms S (“Ms S”) provided psychological therapy to the mother in accordance with the initial recommendations of the single expert in relation to the mother’s parenting capacity and level of psychological distress. Ms S’s evidence was that the mother had shown a “great deal of appreciation” of the child’s developing positive relationship with the father, and the father’s effort to facilitate that relationship.[19] It was her evidence, however, that for the mother to further progress she now needed “to gain some actual information, for her own assessment and judgment, about the father’s capacity.”[20]
[19] Transcript 19 July 2022, p.371 line 36 to p.372 line 10.
[20] Transcript 19 July 2022, p.372 lines 2 – 5.
The mother’s evidence, which I accept, was that she supports a relationship between the child and his father provided that the child’s physical and emotional safety is preserved. The mother acknowledged that the child’s relationship with the father has “developed and strengthened during these proceedings”. [21] Her evidence was further that she keeps photographs of the father in her home for the child to see. The Updated Minute of Proposed Final Orders sought by mother would see the child spend an increased amount of time with the father, including unsupervised time. There is no evidence of the mother speaking ill to the child about the father, or being anything other than protective of the child and supportive, to the extent she could be at differing times, of the relationship between the child and his father.
[21] Mother’s Case Outline filed 3 May 2022, p.4
I am satisfied that the mother is supportive of the child maintaining a meaningful relationship with the father for so long as the father continues on his present trajectory with behaviours that do not present any risk to her and/or the child.
It was uncontested that the child now has a meaningful relationship with his father. The child, on the mother’s evidence, “adores” the father and it is uncontested that the child derives benefit from his meaningful relationship with his father for so long as it promotes his physical and emotional safety.
Section 60CC(2)(b)
It was the mother’s evidence that the father has perpetrated family violence upon her and has exposed the child to family violence.[22] It was the mother’s position that the father has caused her to experience significant fear and anxiety such that to require her to remain in Australia will have an ongoing adverse psychological impact on her, and adversely affect her ability to care for the child.[23]
[22] Mother’s Case Outline filed 3 May 2022, p.4.
[23] Mother’s Case Outline filed 3 May 2022, p.4.
Risk of physical abuse
The father has a history of violent offences including assault and recklessly causing injury.[24] In early 2008, the father punched another patron at a hotel to the ground whilst intoxicated. The father received a good behaviour bond in 2008 in respect of this offending.[25] In late 2010, the father was involved in a road rage incident. The father was jailed for that offending.[26]
[24] Exhibit R1 – R3.
[25] Exhibit R3.
[26] Exhibit R2.
The father acknowledged his criminal history. The father’s more recent and concerning behaviours have been directed toward the mother as described hereafter. There are no allegations that the child is at risk of physical abuse from his father.
Risk of exposure to family violence
The mother made allegations of ‘family violence’ perpetrated upon her by the father including physical abuse, verbal abuse, and controlling and threatening behaviour which she contended satisfied the wide definition of the term as set out in s 4AB of the Act. Whilst the father denied having perpetrated “ongoing” family violence against the mother,[27] he conceded some of the mother’s claims. Additional to those conceded matters, was other evidence given by the mother of ‘family violence’ as defined by the Act including physical assaults perpetrated upon her by the father, some of which are described hereafter. The mother was in respect of her evidence as to these matters a more credible witness. Her evidence did not contain the inconsistencies that were present in the father’s evidence.
[27] Father’s affidavit filed 5 April 2022, paragraph 82.
Over the course of the litigation, the father has made some partial concessions in relation to the allegations made by the mother. The father, in his first affidavit filed in the proceeding in 2020, conceded he slapped the mother. In late 2020, the father further acknowledged to the single expert to “pushing [the mother] at the neck onto the couch”.[28] The father described these two incidents to the single expert as:
·slapping the mother “in the face on one occasion when [the child] was…one-month-old when [the mother] stormed up to him and grabbed [the child]” from him; and
·him having “pushed her at the neck onto a couch when she grabbed a knife and taunted him”. He denied “he grabbed her around the neck as she alleged.”[29]
[28] Family Report dated 22 April 2022, paragraph 5.
[29] Family Report dated 14 December 2020, paragraph 14. Family Report dated 22 April 2022, paragraph 5.
The father’s treating clinical psychologist, Mr O, (“Mr O”) gave evidence that initially the father denied, or did not recognise, the impact of his admitted actions on the mother. Mr O was of the view then, and remains of the view, that the father:[30]
…has to own the fact that his language has been inappropriate at times, and he has to own the fact that he has created fear and terror, concern, worry, doubt, confusion in his partner.
[30] Transcript 18 July 2022, p.262 lines 10-13.
Mr O’s further evidence was that the father historically would either deny family violence as perpetrated by him upon the mother or acknowledge it, but blame the mother for its occurrence instead of taking responsibility for his own actions.[31] Mr O considered the father now has a “greater sense of responsibility; a greater opportunity for self-reflection”;[32] that the father no longer “held the level of acrimony that he started with”; and that the father expressed “a desire to work with [the mother]”.[33] Mr O observed that the father has been able to acknowledge that the mother is a good mother to the child and “has never doubted her ability to look after [the child]” despite any other feelings the father has had, or continues to have, toward the mother.[34]
[31] Transcript 18 July 2022, p.262 lines 32-33.
[32] Transcript 18 July 2022, p. 262 lines 34-35.
[33] Transcript 18 July 2022, p 276 lines 18-31.
[34] Transcript 18 July 2022, p. 275 lines 15-24.
The father made admissions to the single expert and acknowledged at trial that the parties had arguments where he said “fucking”, “bitch”, and “cunt” to the mother,[35] and that those expressions had at times occurred in a threatening context and/or a context, which caused the mother to be fearful. He also admitted that in late 2014, when he became angry with the mother who had plans to go out with some friends, he told her to “fuck off back to Country H” and mocked her when she started to cry by calling her a “fucking sook” and a “fucking spoilt cunt”.[36] The father recognised at trial that such expressions, such as appear in this paragraph, could be considered domestic violence; could make a person feel worthless; that the mother suffered from being called such things; and that he was sorry.[37]
[35] Transcript dated 14 July 2022, p. 34 lines 25-30, 40. See also Family Report dated 14 December 2020.
[36] Mother’s affidavit filed 20 April 2022, paragraph 62. Transcript 14 July 2022, p.35.
[37] Transcript 14 July 2022, p.120 lines 25 – 45.
Whilst the father made some concessions, it is necessary in these reasons to canvas those and other episodes of family violence as alleged by the mother, which lead to my finding that the mother has been subject to some very frightening episodes of family violence as perpetrated by the father.
In early 2014, following a night out, the father became aggressive and shouted at the mother whilst in a taxi. The mother’s evidence was that the father had an argument with the taxi driver upon the taxi driver asking the father to get out and, as a result, the parties made their way home separately. The mother said as to the balance of that night:[38]
I was woken at around 5.00am by the sound of shattering glass, and I ran downstairs and saw [the father] standing inside the kitchen beside the patio doors, surrounded by broken glass. ….[the father] immediately started shouting at me, blaming me for not answering my phone to open the front door…. I saw a broken patio chair lying on its side outside the smashed door.
[38] Mother’s affidavit filed 20 April 2022, paragraph 57.
In early 2016, the father called the mother names such as “fucking cunt” and “psycho bitch” and told the mother to cancel their wedding. This was in the context of a discussion had between them about the father having taken drugs to their engagement party in late 2015.[39] The mother had been upset at the engagement party and was upset in the discussions regarding it. In late 2016, the mother discovered the father was using a prohibited substance at the parties’ wedding reception. When the mother expressed her hurt and concern later that night, the father called her a “fucking psycho cunt” and told the mother she had ruined their wedding.[40]
[39] Mother’s affidavit filed 20 April 2022, paragraph 62.
[40] Mother’s affidavit filed 20 April 2022, paragraph 64.
The father denied having ever used the word “psycho”; denied taking drugs at their wedding; and alleged that the mother told him to cut his wrists later that night,[41] an allegation denied by the mother. I do not accept the father’s evidence and accept that of the mother as to what occurred on that evening. The father was intoxicated and drug affected. He acknowledged that the wedding was an unhappy occasion, his own evidence being that “things happened at the wedding which [he] will get blame[d for]”.[42]
[41] Transcript 14 July 2022, p.124 lines 10 – 11.
[42] Transcript 14 July 2022, p.49 lines 33 – 34.
In late 2016, the parties attended marriage counselling with Ms T (“Ms T”) as a consequence of the events at the parties’ wedding. Ms T told the father ‘not to come back’ at the parties’ first session with her.[43] That same year, the father commenced seeing Mr O, who was recommended by Ms T. Mr O notes that he first saw the father for “ongoing counselling for depression”, and his provisional diagnosis of the father was for mental health issues (arising from his childhood relationship with his father), and other disorders.[44]
[43] Transcript 14 July 2022, p.116 line 12.
[44] Affidavit of Mr O filed 15 December 2020.
In mid-2017, the mother wrote in her diary that the father’s anger scared her, and that the father was “like a ticking time bomb ready to explode at any moment”.[45]
[45] Exhibit ICL1.
The father conceded at trial, that he “grabbed [the mother] around the neck”. The father however alleged this occurred in 2015 and that the mother had a knife in her hand.[46] It was the father’s evidence that the mother “wasn’t going to do anything with [the knife]” and that he grabbed the knife out of her hand. The mother’s evidence was that the incident of the father grabbing her neck occurred in or around late 2017. The incident as described by the mother, was put to the father in cross-examination. He responded that the mother “exaggerated” the incident. The father further said that:[47]
She had a knife in her hand. I grabbed the knife out of her [hand]. I did – wrongly, I did grab her around the neck, pushed her onto the sofa on the ground. I didn’t threaten to take her or stab her. That’s not my game. ….stab someone or threaten them up the bush [sic].
[46] Transcript 14 July 2022, p.46 lines 30 – 38. Transcript 14 July 2022, p.123. In his affidavit filed 5 April 2022, at [111] the father stated that the mother “grabbed a knife from the kitchen and said that she was going to kill me. This was over a trivial dispute.”
[47] Transcript 14 July 2022, p.46 lines 35 – 40.
There was no knife on the mother’s evidence. The mother’s evidence as to the totality of what occurred on that occasion was as follows:[48]
[In late 2017], I tried to talk to the [father] about the fact that he had spent all his wages on […]. He got angry and pushed me against the bedroom wall. He put his hands around my throat twice and strangled me, leaving bruises on my neck. He screamed that he was going to stab me and told me I do not know who he knows and [that he] could take me to the bush and kill me. He threw me onto the bed and punched my leg hard twice. I got away and ran to the garage and locked myself in the car, and the Husband was banging on the windows.
[48] Mother’s affidavit filed 20 April 2022, paragraph 74.
The father subsequently accused the mother by text in late 2017, that she was the source of a number of problems.[49] The mother’s response to the father’s text, and the mother’s diary entry in late 2017,[50] were consistent with the mother’s version of this incident. The father denied strangling the mother, and stated that he never saw any bruises on the mother as alleged by her.
[49] Mother’s affidavit filed 20 April 2022, annexure MD8.
[50] Exhibit ICL1 and Exhibit A2.
In 2018, the mother found a large kitchen knife under the front seat of the parties’ car. The mother’s evidence was that she asked the father why there was a knife in the car. He became “very defensive and angry”, whilst referring to several incidents of carjacking that had occurred in Melbourne.[51] The father denied driving the car in which the knife was found, but thereafter conceded he may have been in the car at some time, and that in respect of the knife, he “might have used it for cutting something”. Otherwise, he did not know why the knife was in the car.[52]
[51] Mother’s affidavit filed 20 April 2022, paragraph 78.
[52] Transcript 15 July 2022, p.167 lines 26 – 28, lines 45 – 47.
Following the child’s birth, and in mid-2019, the mother claimed the father became angry with the child who was not finishing his bottle quickly enough so that the father could watch Rugby League. The father’s response to this evidence was that the mother was exaggerating.
In late 2019, on the mother’s evidence, the father pushed her against a wall and hit her “hard across the face, twice, with an open hand, causing [her] ears to ring”.[53] The mother’s evidence was that the child must have heard the commotion as he started crying. The mother subsequently tried to leave the house with the child but the father “physically prevented” her from doing so.[54] The father conceded at trial that the child “probably” heard the incident. He went on to say he should not have “slapped” the mother, and that he was “sorry”.[55] He further admitted that he did not want the mother to “run off” and that he had “tried to walk in front of her” to stop her departure.[56] At this time, the father had been seeing his clinical psychologist, Mr O, for approximately four years.
[53] Mother’s affidavit filed 20 April 2022, paragraph 84.
[54] Mother’s affidavit filed 20 April 2022, paragraph 84.
[55] Transcript 14 July 2022.
[56] Transcript 14 July 2022, p.40.
I find that the mother’s allegations of family violence as perpetrated upon her by the father and set out in the above paragraphs are proven on the balance of probabilities. The father was an unreliable witness as to these matters, giving contradictory evidence at times. I accept in the midst of this he made some critical concessions, namely that he had slapped the mother, grabbed her around the neck and used inappropriate language toward her. All of these matters fall within the definition of ‘family violence’.
In late 2019 or early 2020, the father commenced to attend JJ Support Service. The father’s evidence in his trial affidavit was that:[57]
…in a bid to get away from these traumas [he] would go out and drink too much, take drugs and […]. I would then be grumpy and angry as a person for a few days thereafter, especially if I had lost a significant amount of […].
[57] Father’s affidavit filed 5 April 2022, paragraph 150.
The father acknowledged at trial that at times he spent too much money and that the mother took action, such as controlling some of the parties’ funds, to ensure the family unit had the necessary funds to meet their expenses. This was a further source of friction between the parties.
In mid-2020, the mother contacted LL Family Services for advice, as she was scared that the father was going to hurt her and/or the child and did not know what to do. The mother’s evidence was that she had a support worker at LL Family Services and that at that time she first contacted them she “loved [her] husband very much, and to know that the abuse that he was putting me through was wrong” was hard.[58]
[58] Transcript 19 July 2022, p.353 lines 42 – 47.
On 13 or 14 June 2020, the father moved out of the FMH.
In mid-2020, the Victoria Police applied for a Family Violence Intervention Order (“IVO”) against the father on the mother’s behalf. Both the mother and child were listed as affected family members. In mid-2020, the father consented without admissions to a final IVO.
The father’s evidence was that following the parties separation he has “done the work to be a better dad, better person, live a better life, be there for [the child], be there for [the mother]”.[59] In late 2020 he reported to the single expert that “people are afraid of [his] temper, sometimes [his] temper explodes and [he] completely loses control, and that [he] threaten[s] to hurt people”.[60]
[59] Transcript 14 July 2022, p.41 lines 6 – 8.
[60] Family Report dated 14 December 2020, paragraph 114.
In late 2020, the mother attended Victoria Police and made a statement alleging a breach of the IVO by the father. The mother was stopped at traffic lights and the father was crossing the road one car’s length in front of her. The mother alleged that the father approached her vehicle, put his hands on the bonnet of her car, said words along the lines of “you’re fucked in the head” and signalled that she was crazy.[61] The maternal grandmother confirmed in her evidence that the mother called her whilst at the police station in a distressed and crying state.
[61] Mother’s affidavit filed 20 April 2022, MD13.
Victoria Police reviewed CCTV footage in respect of this alleged incident and reported as follows:[62]
[V Café] provided footage of the incident which depicts the accused crossing [U Street], one car in front of the […]vehicle. Whilst walking, the accused appear to notice the victim when he is approximately one-30 car-length away, and removes his headphones from his ears and waves in a non-aggressive manner. The accused continues walking east on [U Street], past the passenger side of the […] vehicle, and there are barricades along the footpath where patrons from [V Café] were seated.
The footage then depicts the accused step onto the footpath and start walking west on [U Street] towards [W Health Centre]. The accused appears to look 45 back at the […] vehicle, and puts his hands in the air and shrugs his shoulders before making an unknown comment towards the […] vehicle. The accused has then continued west on [U Street] to enter [W Health Centre]. The […] vehicle can be seen driving west on [U Street] towards the [Suburb Z Police Station].
[62] Mother’s affidavit filed 20 April 2022, MD13.
Victoria Police deemed this a “chance encounter” and that only some of the mother’s allegations were supported. The father received a Diversion Order in early 2022. Following the diversion, the mother wrote in her diary “it’s crazy how your mind thinks one thing under stress”.[63]
[63] Exhibit ICL1.
The single expert, when cross-examined by counsel for the father about this episode, agreed that the mother may have been overwhelmed, and her perception distorted due to the levels of anxiety she was then experiencing. Alternatively, the single expert described a scenario where the mother may have been motivated to present her situation in a particular way to achieve a certain outcome pertaining to the father.[64]
[64] Transcript 26 August 2022, p.413 lines 16-18.
Ms S was not of the view that the mother acted malevolently. It was her evidence that the mother is very fearful of the father, and that the mother’s recollection may be a reflection of her emotional distress in seeing the father.[65] I accept Ms S’s evidence.
[65] Transcript 19 July 2022, p.373, lines 15-21.
In mid-2021, the mother applied to extend the IVO for an additional 12 months. By this time, the child was having supervised time spent with the father and some electronic communication.
In late 2021, the child, aged two, was on a FaceTime call with the father (I note the mother had set up a play area and fixed the phone camera so that the father could see the child). The father became agitated asking the child if he was alone. The mother’s evidence was that the father then stated to the child that someone needed to call the police, and that “she’s [the mother] a fucking idiot”, before he disconnected the FaceTime call.[66] The mother was subsequently contacted by the Suburb Z Police Station. She informed the police that she was indeed at home with the child. The father denied swearing, as asserted by the mother, saying his nephew AA was present. It was the father’s evidence that he was worried for the child and thought something may have happened to the mother. He claimed he had repeatedly asked words to the effect of “is your mother there” before saying someone needed to call the police.[67] The father acknowledged that AA was becoming anxious whilst this dialogue was occurring.[68] I accept the mother’s evidence as to what occurred on this occasion. The father’s lack of ability to contain himself, and general behaviour including in particular contacting the police, did not benefit the child nor the father’s nephew, AA. It was conduct bereft of insight, and targeting, aggressively, the mother.
[66] Mother’s affidavit filed 20 April 2022, paragraph 169.
[67] Transcript 14 July 2022, p.28 lines 36 – 37 and p.29 lines 18 – 20.
[68] Transcript 14 July 2022, p.28 lines 33 – 34.
In late 2021, the father consented without admissions to an IVO for a further 12 months.
In late 2021, the child became upset during a FaceTime call with the father. Whilst the mother was comforting the child, the father became angry and loudly said “stop manipulating him for fucks sake”; “for fucks sake stop fucking telling him shit”; and “Jesus Christ you fucking…”.[69] The mother terminated the call. The father’s initial evidence at trial was that he had never sworn in front of the child.[70] However, he admitted that in relation to this incident, that he had said “stop effing manipulating him”; that he had indeed said “fuck”; and that his tone and choice of words were “not appropriate” in front of the child.[71]
[69] Mother’s affidavit filed 20 April 2022, paragraph 171.
[70] Transcript 14 July 2022, p.21, lines 43 – 45.
[71] Transcript 14 July 2022, p.31 lines 30 – 45.
The father reported to the single expert that FaceTime was “awkward” and “uncomfortable”.[72] The father admitted that he asked the child if he was being coached on one occasion, and that he had recorded his FaceTime calls with the child, but had not informed the ICL or the mother that he was doing so. The father’s evidence was that he was protecting himself. He claimed he has since deleted those recordings, and accordingly they were not made available to the other party or the ICL, and nor did they form any part of the evidence before the Court.
[72] Family Report dated 22 April 2022.
I prefer the evidence of the mother as to the content of these FaceTime calls and demeanour of the father during them and reject the evidence of the father. The father had not at trial initiated another FaceTime call with the child since 21 December 2021.
It was the mother’s evidence that the ongoing denial of, or acceptance in part but with blame to be apportioned to the mother, of significant family violence by the father, is indicative of the father’s refusal to accept responsibility for his actions during the relationship and since separation. The father’s stance also leads to his lack of understanding of her mental health difficulties, and his characterisation of her seeking to take the child to Country B as alienation of him, and “child abuse”.[73]
[73] Transcript 15 July 2022, p.139, line 14.
The Court accepts that the father does not want the relationship between the parties to be conflictual. However, it was not disputed that the parties’ relationship continues in that vein at the present time, and there is little ability to communicate effectively.
The father completed a truncated Men’s Behaviour Course and regularly attends upon his clinical psychologist, Mr O. The father completed an Anger Management Course in late 2020. Despite this, the mother’s evidence at trial was that she did not believe that the father understood the impact of his violence toward her, and the impact his words and actions have had on her, and the child.
The evidence supports my finding that the child needs protection into the future from exposure to family violence between his parents, as instigated by the father.
Risk of neglect
The father and the mother both consumed alcohol occasionally to excess, and on occasion took recreational drugs, during their relationship, the mother far less so, admitting that she had used a prohibited substance twice in 2013 or 2014. The father’s evidence was that the last time he consumed recreational drugs was in late 2019.[74] The father had a clear problem with his drug use, with subsequent anti-social behaviour.
[74] ICL’s Case Outline filed 4 May 2022, p.4.
The father asserted the mother suffers from “depression”.[75] It was the single expert’s evidence that the mother “presents with [various mental health issues] due to marked distress that is disproportionate to the severity or intensity of the stressor.”[76] She agreed in cross-examination that the mother’s mental health issue is in response to the mother’s fear of the father, and that if the stressor is ongoing the mental health issue will remain.[77] Ms S disagreed with the single expert’s opinion that the mother’s mental health issue was due to a disproportionate response to stressors, and instead gave evidence that the mother’s response was normative for the intensity of the stressors before her.[78] Further, that such stress is normal given the ongoing litigation. I prefer the evidence of Ms S given the family violence as suffered by the mother, which was continuing in the form of verbal abuse up until as recently as late 2021.
[75] Father’s affidavit filed 5 April 2022, paragraph 47.
[76] Family Report dated 22 April 2022, paragraph 145.
[77] Transcript 26 August 2022, p.406 lines 3-10.
[78] Transcript 19 July 2022, p.375 lines 5 – 26.
The mother’s anxiety was heightened upon seeing the father’s criminal record after the initial Family Report.[79] The mother did not have any prior knowledge of the father’s criminal history. The mother’s evidence was that upon learning of his history, she felt “complete and utter disbelief” that the father had lied and been dishonest with her, and was frightened.[80]
[79] Family Report dated 22 April 2022, paragraph 145.
[80] Transcript 19 July 2022, p.358 lines 36 – 39.
Prior to trial, the mother’s evidence was that “X is reluctant to go to his father’s home and will say, “no daddy” immediately prior, but admittedly becomes excited once there”.[81] The mother acknowledged, however, that this might stem from the child sensing her anxiety.[82]
[81] Family Report dated 22 April 2022, paragraph 41.
[82] Family Report dated 22 April 2022, paragraph 51.
The father presented to the single expert “[mental health issues]”.[83] These issues were deemed by the single expert to be “vulnerabilities” which did not “significantly impact” on the father’s functioning.[84] The single expert further noted that:[85]
[The father]’s responses indicate that his motivation for treatment is in the average range. His responses suggest that he is satisfied with himself as he is, that he is not experiencing marked distressed and that as a result he sees little need for change in his behaviour. …
[83] Family Report dated 22 April 2022, paragraph 139.
[84] Family Report dated 22 April 2022, paragraph 139.
[85] Family Report dated 22 April 2022, paragraph 115.
The single expert’s evidence was:[86]
The risk…of the child being exposed to abuse or neglect in the father’s care has reduced and is now rated low to moderate. This risk will likely increase if the father discontinues therapy, fails to maintain the gains he has made, and his […] relapses.
The mother presents with a low risk of exposing the child to abuse or neglect…, but it is likely that this risk will increase if she does not promote, facilitate, and support the child to have meaningful relationship with the father. It is possible that due to her own childhood experiences, in which her father abandoned her, that she does not adequately value the father’s role in the child’s life.
[86] Family Report dated 22 April 2022, paragraphs 141 – 142.
Mr O was not of the opinion that the father had “[mental health issue]” nor [mental health issue]” as was opined by the single expert. Mr O proposed to apply a Counselling Model to the father’s future counselling, which he described as a behavioural approach to counselling designed to challenge the behaviour of denial or minimisation to teach the skills to avoid abuse and violence, for “men to be better men”. Mr O referred to the father’s lack of disclosure to the mother of his traumatic childhood and criminal history “by not talking about it; by denying its existence; by not telling her certain things” was an attempt by the father to protect the mother.[87]
[87] Transcript 18 July 2022, p.259, lines 10-17.
The evidence indicates that the father’s parenting capacity has significantly improved. That was, of course, off a very low point. It was Mr O’s evidence that:[88]
[The father’s] understanding for his own experience was very limited at the start about [sic] therapy. The experience and awareness that he’s owning, what’s happening to himself, has improved throughout the time that we’ve been working together. And, consequently, his capacity for empathy, or accurate empathy, in times gone by was very poor, and as he started to understand his own experiences he has been able to start to project that onto others and, indeed, improve his own awareness for other – the impact of his behaviour on other people. …
[88] Transcript 18 July 2022, p.263 lines 18-25.
The single expert observed the father to be “extremely attentive, responsive, devoted and capable of meeting the child’s basic needs”.[89] However, the “mother’s parenting skills are more advanced, [she] is more attuned to the child’s emotional needs, and the child has formed a primary attachment to the mother”.[90] The single expert was of the view that “although the [father] is more emotionally stable at present, the mother’s mental health issues would likely resolve if she moved to [Country B]”.[91] If the mother remained in Australia, the single expert noted that she would have concerns regarding the mother’s anxiety, which is presenting in the child who is having sleep issues, and that it would remain ongoing, impacting the child.[92]
[89] Family Report dated 22 April 2022, paragraph 140.
[90] Family Report dated 22 April 2022, paragraph 147.
[91] Family Report dated 22 April 2022, paragraph 147.
[92] Transcript 26 August 2022, p.406 lines 25-30.
Ms S was of the opinion that the mother’s mental health would deteriorate and be compromised if she were not permitted to relocate to Country B. She stressed that the mother had been living in the hope of being with her family since the litigation commenced.
The evidence of both the single expert and Ms S as stated above support the mother and child’s relocation. It is in the child’s best interests to have an emotionally available and happy mother.
Acknowledging the mother’s concerns, in part, it was the father’s evidence that the child is safe and secure in his care, that he would “never ever put him in danger” and that he wants the mother to know this.[93]
[93] Transcript 14 July 2022, p.56 lines 28 – 31.
It is not disputed by any party that it is crucial that the father continue his therapy with Mr O, and continue on his current trajectory. Whilst the mother’s mental health difficulties may be alleviated by a move to Country B with the child, but be exacerbated should she be required to remain with the child in Australia, there is no suggestion that the child would be at risk of harm through neglect by the mother. The evidence establishes that the need to protect the child from this risk in the father’s care could re-surface if the father fails to continue to engage with therapy and fails to continue on his now successful trajectory. This is important in the context of the very young age of the child, who will be dependent on parental care for many years to come.
Best Interests - Additional considerations
Not all of the additional considerations set out in s 60CC(3) of the Act were relevant to the proceeding. Only those relevant are addressed.
Section 60CC(3)(a) any views expressed by the children
At the time of the second Family Report, the child was two and half years old. The father asserted that the mother had coached the child prior to the assessment by the single expert.[94] There is no evidence supporting that assertion. The mother in fact argued that the child was only three years old, and too young to provide any views.[95] I do not place any weight on the views of the child given the child’s age.
[94] Family Report dated 22 April 2022, paragraph 101.
[95] Mother’s Case Outline filed 3 May 2022, p.4.
Section 60CC(3)(b)(i) the nature of the relationship of the child with each of the child’s parents
I have already addressed the nature of the child’s relationship with each of the parties under s 60CC(2)(a) of the Act.
Section 60CC(3)(b)(ii) the nature of the relationship of the child with other persons
It was not contested that both the extended paternal and maternal family love the child and that the child would build loving relationships with each of them over time.
Following the parties’ separation on 13 or 14 June 2020, the mother, assisted by the paternal uncle, arranged for the extended paternal family to celebrate the child’s first birthday at her home. The mother’s friend Ms R (“Ms R”) also attended. The parties agree the event was “frosty”.[96] It was the mother’s evidence that the father referred to her as “playing the victim” and called her derogatory names in front of the paternal family, who did not take any action to stop the father. This was denied by the paternal family. Ms R’s evidence, which I accept, she being a truthful witness, was that the father and the paternal aunt were swearing at the party. The celebration ended abruptly when the mother, feeling the situation untenable, announced that the child had a doctor’s appointment.[97] The extended paternal family commenced to leave. The paternal aunt left the home but returned to confront the mother about her decision that the father not see the child at that time. The paternal aunt swore at the mother in front of the child.[98] The paternal aunt accepted that she could have come across as intimidating to the mother, given the circumstances. The mother began crying and asked the family to leave. The paternal grandmother, who was also in attendance at the child’s first birthday, gave evidence that she saw nothing untoward amongst the family members nor was she of the view that the father was agitated at any time. Her evidence was implausible.
[96] Father’s affidavit filed 5 April 2022, paragraph 218. Mother’s affidavit filed 20 April 2022, paragraphs 109 – 118.
[97] Mother’s affidavit filed 20 April 2022, paragraph 115.
[98] Transcript 18.7.2022, p.213, lines 25 – 40.
Following this incident, the paternal aunt sought to organise a time with the mother for her to see the child. The mother sent a text message response saying:[99]
Morning, [Ms N]. We have plans for the next two weekends. I’m also extremely uncomfortable to have you around [X] and I at the moment due to your shouting, swearing, name calling, threats and aggressive outburst last Sunday. [X] and I should not be exposed to that level of aggression from a family member. Your mum is more than welcome to message me to make arrangements to catch up.
[99] Affidavit of Ms M filed 5 April 2022, p.24.
The mother did make plans to meet the paternal grandmother so that she could spend time with the child but the State of Victoria went back into COVID-19 lockdown, which prevented any time occurring.
At the commencement of the trial, the mother had not had any communication with the paternal grandmother since August 2020. The paternal grandmother considered that the mother acted out of spite when she stopped the child’s time with the paternal family. I do not accept that characterisation by the paternal grandmother. I accept Ms S’s evidence at trial, namely that the mother has never presented as spiteful, vengeful, or derogatory, but rather demonstrated some compassion for the father. The mother acted in a way she believed promoted the child’s best interests.
Following orders providing for the paternal uncle to supervise time between the child and the father, the child has had regular contact with the extended paternal family, particularly the paternal uncle and the paternal grandmother.
It was the mother’s evidence at trial that the child mostly talked about his father and the paternal uncle, but rarely talked about the paternal grandmother (who the child calls nanny), AA, BB (AA’s brother) or the paternal aunt. The mother did not challenge, however, that the extended paternal family loved the child and were developing a good relationship with him. The mother accepted that if the child were to remain in Australia, he would benefit from an increased relationship with the paternal family.
The child has had a limited opportunity to develop a relationship with the maternal grandmother in Country B, due to COVID-19 travel restrictions (which commenced in March 2020) preventing the mother from travelling to Country B and the grandmother from travelling to Australia. In 2019, the mother and child had spent approximately three months in Country B due to the maternal grandfather’s ill health.[100] The maternal grandfather passed away in late 2019. It was the mother’s evidence to the single expert that her mother and brother formed a close bond with the child during this time, which has been supported by regular FaceTime calls.[101]
[100] Father’s affidavit filed 5 April 2022, paragraph 50.
[101] Family Report dated 22 April 2022, paragraph 53.
The father did not dispute the good relationship between the child and the maternal family. He described the maternal uncle as “a peaceful quiet sort of guy” who would occasionally get into “a dark mood”. [102] It was further his evidence that the maternal uncle has a mental health disorder. This was denied by the mother who stated that the maternal uncle suffers from anxiety. I prefer the mother’s evidence, she being a more credible witness who has considerable knowledge as to her brother’s health.
[102] Transcript 15 July 2022, p.172.
The maternal grandmother was supportive of the child maintaining a relationship with the father and at trial gave evidence that she would assist in facilitating the child’s time with the father if the mother and child were to relocate to Country B. She would be willing to provide support to the father during any stay by him in Country B. The maternal grandmother was an impressive witness with a warmth and practicality about her. She and the mother have clearly a close and abiding affection for each other and the child. The child has a good relationship with her.
Section 60CC(3)(c) the parents opportunity to participate in decision making, spend time and communicate with the child
The mother has been responsible for all decisions affecting the long-term welfare and development of the child since separation. The father has expressed a desire to be further involved in the decision making process in relation to the child.[103]
[103] ICL’s Case Outline filed 4 May 2022, p.5.
Following the parties separation, the child spent no time with the father from 13 June 2020 until the interim orders were made on 16 December 2020, approximately 6 months. At the recommencement of the child’s time with the father, the father was shocked by the child’s development, and the child appeared stunned and confused. According to the single expert, these reactions may have been an indication of the damaged bond between child and father.
The interim orders of December 2020 provided for the father to communicate with the child twice per week via FaceTime upon the child turning two years of age. The orders also provided for a progression of professionally supervised time commencing with a one-hour period for 12 consecutive weeks, then two periods of one hour a week for 12 consecutive weeks followed by two periods of two hours per week. Upon commencing the two periods of one hour a week, the father immediately requested that the two periods be combined to a single two-hour period each week. The mother agreed.
Upon the child turning two, the father delayed the commencement of the FaceTime calls with the child for approximately a month and at trial had not initiated a FaceTime call with the child since 21 December 2021.[104] It was the father’s evidence as stated to the single expert that he does not like FaceTime as he is a “hands on parent”.[105] It is undisputed by the parties that the child’s FaceTime calls with the father facilitated by the mother were problematic and unsuccessful.[106] However, it seems that the child’s age, being only two years of age at the time they commenced, in addition to the father’s behaviour, was why the FaceTime calls were unsuccessful. I am satisfied that as the child grows and is able to talk with the father more, and accepting that the father will be responsibly constrained, that FaceTime will be more productive and enhance the relationship between the child and the father.
[104] Mother’s Case Outline filed 3 May 2022, p.5.
[105] Family Report dated 22 April 2022, paragraph 96.
[106] ICL’s Case Outline filed 4 May 2022, p.5.
Following the making of consent orders on 19 July 2022, the child spent time with the father supervised by the paternal grandmother or paternal uncle from 9.00am to 5.00pm each Saturday and 3.30am to 6.30pm each Tuesday. At the resumption of the trial on 26 August 2022, that time was progressing well as supported by the mother.
Section 60CC(3)(ca) the fulfilment of the parent’s obligations to maintain the children
The mother works three days a week as a manager earning approximately $74,000 per annum. She provides significant financial support for the child. If the mother was working full-time, she could earn approximately $115,000 per annum and could potentially earn a bonus of $2,000. The mother however has chosen to be more available to the child in his infancy.
The mother cannot afford to lose her job in the context of her financial provision for the child.
The father is employed as a contractor and earns approximately $100,000 per annum. The father pays child support as assessed. In July 2022, the father’s evidence was that he paid $259 per month (approximately $64 per week). He anticipated that the amount would increase to $600 per month.[107] The father stated he would contribute more financially if the child remains in Australia.
[107] Transcript 14 July 2022, p.17, lines 28 – 31.
Both parties have struggled financially because of their legal costs. They have both borrowed funds from their respective mothers to enable them to continue to engage lawyers.
At the commencement of the trial, the father was paying for a professional supervision service in the sum of $190 each week. It was the father’s evidence that he would be in a significantly better position to contribute to further costs of the child, as necessary, if weekly professional supervision fees were removed. The mother’s position was that professional supervision could cease, but that there should be adult in substantial attendance, being a member of the paternal family. Professional supervised time ceased with the making of consent orders on 19 July 2022.
The mother reported to the single expert her concerns about the child’s speech and ear pulling. The mother took the child to a General Practitioner, and specialists. Due to a two year wait for surgery the mother decided to opt for private surgery and the child had surgery in mid-2021. The mother received financial assistance from the maternal grandmother, but was out of pocket more than $2,000. The father was advised by the mother of the child’s medical needs. The father did not offer to contribute to the costs.[108]
[108] Family Report dated 22 April 2022, paragraph 49.
The financial need to maintain the child has fallen primarily to the mother.
If the mother were to relocate to C Town, Country B, she would obtain a job in City DD (which is just over one hour from C Town) or in CC Town (which is just under one hour from C Town). The mother, currently in Australia, has a working commute of just over one hour, when not working from home. Remote work, or flexible work, is a more feasible option for the mother in Country B, due to more favourable policies there regarding flexible work arrangements. The mother would have extensive support provided by her mother in the care of the child, and in the provision of some initial accommodation.
It was the mother’s evidence that she would be in a better financial position to support and maintain the child in Country B, and to purchase a home for she and the child than if she remained in Melbourne. The Court accepts the mother’s evidence.
Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances
The parties currently live approximately seven kilometres apart, the mother in Suburb Z and the father in Suburb EE, allowing the child to spend time with the father with minimal disruption to the parties’ respective routines.[109]
[109] ICL’s Case Outline filed 4 May 2022, p.6.
It was the evidence of the ICL that it is apparent that the child has established a routine of spending face-to-face time with the father on a weekly basis.[110] The ICL submitted that the child’s relationship with the father would be adversely impacted by any reduction in his time with the father, and the change in the means by which this relationship can be fostered.[111]
[110] ICL’s Case Outline filed 4 May 2022, p.5.
[111] ICL’s Case Outline filed 4 May 2022, p.6.
The mother’s evidence was that the child’s relationship with the father has strengthened since separation, such that any impact of the relocation will be able to be addressed through the maintenance of regular video contact and scheduled visits. The father disputed this. His evidence was that the child’s relationship with him would not be adequately supported and developed by FaceTime. The father found FaceTime to be awkward and uncomfortable. He is a “hands-on Dad” and “not a phone person”.[112] Both Mr O and the single expert agreed that the father benefitted from a hands-on, face-to-face format when interacting with the child and struggled with verbalisation. Accordingly, the single expert recommended that phone applications which enabled the child and father to engage in activities, such as a development-learning application suited to the child’s age, rather than talking, would be beneficial in a FaceTime context.
[112] Transcript 14 July 2022, p.9 lines 32-33.
On the father’s own evidence, the child “loved” the FaceTime calls he had with the paternal grandmother and paternal aunt in 2021, and responded well to that mode of communication. The child has also had successful video calls with the mother’s family. Despite any difficulty purported, the consent orders made on 19 July 2022 and 26 August 2022 both provided for the child to communicate with the father each week for up to thirty minutes. I am satisfied that the child can partially foster his relationship with the father by continued communication via FaceTime. The single expert’s evidence was that FaceTime would be crucial for strengthening the relationship between the father and child, [113] if the child were in Country B.
[113] Transcript 26 August 2022, p.403 lines 7-9.
The mother’s proposed relocation with the child to C Town, Country B, where the maternal grandmother and uncle live, would be a significant geographical change in the child’s circumstances and would impact significantly on his ability to spend face-to-face time with his father.
The maternal grandmother is from Country B, and the mother’s grandparents were from Country B. Whilst the mother has never lived in Country B (she grew up in Country H and went to university there), the mother travelled to Country B with her family during her childhood. The mother has a friend who lives in C Town, who has a child of similar age. The mother has visited her family in Country B seven times since 2004, with the father accompanying her on three occasions. In 2019, the child travelled with her to Country B.
The mother’s evidence was that the impact on her psychological and emotional health of being required to remain in Australia, in the context of the father’s family violence, would negatively interfere with her ability to care for the child.[114] The mother is lonely and isolated in Australia, and has felt unsupported by the paternal family although she agreed at trial that in the future she may be able to rely on the extended paternal family to assist her. In Country B, she will have the increased support and sense of safety and security that the maternal family can provide to her. She will also be removed from the father’s orbit, enabling her to better parent.
[114] Mother’s Case Outline filed 3 May 2022, p.6.
The father initially considered moving to Country B. The father’s position has changed as “his life is in Australia, including his new partner and family so he cannot leave.” [115] The father assists in looking after his nephew, AA, and asserted that he “sort of took over the father role” as the paternal aunt’s former partner was an absent father in AA’s life.[116] The paternal aunt has the support of her new partner, Mr L, (of five years) who indicated to the Court that AA is like a son to him. The father has, on the evidence, been a good and kind uncle to AA. He is a supportive brother to his sister, and son to his mother. The father has taken AA on interstate trips, to the basketball in the summer, and the football. The father does not spend as much time with BB as he does with AA, but again he is available to assist his sister. They are close.
[115] Family Report dated 22 April 2022, paragraph 104.
[116] Transcript 14 July 2022, p.11.
The father also has a new partner, of 17 months, but on his evidence, this relationship would not prevent him from going to reside in Country B.[117] The father does not live with his partner.
[117] Transcript 14 July 2022, p.12.
The father’s evidence was that it is “not in [the child’s] best interests to take him away from his family in Australia”.[118] He considered the mother wished to hurt him by taking the child away.[119] It was his evidence that he “can’t go off and have another child” at his age of 47 years and that the mother told him Australia would be the child’s “home forever”.[120] It was the father’s evidence that the mother’s proposal for relocation would result in the severing of relationships that the child has developed with the father’s family, and which the child appears to enjoy and derive benefit from.[121] He stated to the single expert that the child would be fed negativity by the mother and her family.[122] I do not accept that the mother acts in any way to hurt the father and nor do I accept the child would be ‘fed negativity’ by the mother and/or her family members. The evidence in fact is that the mother does not denigrate the father to the child, and indeed supports the contrary view.
[118] Family Report dated 22 April 2022, paragraph 104.
[119] Transcript 14 July 2022, p.19.
[120] Transcript 14 July 2022, p.10 lines 42 – 47.
[121] Father’s Case Outline filed 3 May 2022, p.4.
[122] Family Report dated 22 April 2022, paragraph 104.
In a move to Country B, the child’s relationship with the father, and the extended paternal family, can continue, though in a less satisfactory way, as the mother proposes regular FaceTime or video calls between the child and the father, and for the child to spend time with the father each year in both Australia on one occasion, in relation to which the mother and child will travel to and from Australia, and in Country B when the father will travel to and from Australia on up to four occasions each year. Whilst the relationship between the father and child will not be as fulsome as if the child lived in Australia and was able to spend greater and more frequent periods of time with the father, the relationship can still be meaningful. The maternal family, in particular the maternal grandmother, are supportive of the child’s relationship of the father. The father has never had an issue with the maternal grandmother. The child would be able to maintain a relationship with the paternal family via FaceTime in the same manner as the child currently does with the maternal family, and otherwise during the child’s visits to Australia. Additionally, it was the paternal grandmother’s evidence that she would have the funds to visit the child in Country B by using some of the money she received from her husband’s estate. I accept however, this would not occur frequently.
There was no evidence before the Court that the mother “won’t bring [the child] back” to Australia for visits, or not allow the child to talk to the father as claimed by the father at trial.[123] The mother has not breached any Court orders and has continued to facilitate the child’s time with the father in accordance with the orders to date. Indeed, she has consented to orders providing for a progression of that time. Both the mother and father proposed a gradual increase in the child’s time with the father if the child was to remain residing in Australia, to include unsupervised and overnight time. The supervision notes also point to a supportive (of the child’s relationship with the father) mother. For example, “the mother appeared pleased that [the child] had a good visit, accepted the gifts well and said, ‘I want [the child] to have fun and enjoy his visit.’”[124]
[123] Transcript 14 July 2022, p.12.
[124] Transcript 14 July 2022, p.61 citing the Supervisor’s Report, p.12.
The mother was agreeable to a delayed relocation so that the child could start school at FF School in C Town in late 2023, when X will be four years and four months old. This would be a program equivalent to kindergarten in Australia. If the child were to remain in Australia, he would commence primary school in early 2025. The mother’s evidence was that to her knowledge the child’s education would be very similar if in Country B or in Australia. In the event the relocation were to occur in 2024, the mother accepted that the child would attend kindergarten in Australia; that she would endeavour to remain in her current job; and would continue to engage with psychological support. The mother appreciated that the child would benefit from more time with the father given the child’s age before they relocate, but I find such delay, added to her already experienced delay, would not assist the resolution of her mental health difficulties.
Additionally, the evidence of the single expert was that there is little difference between the child relocating at four or five years of age, and that the research indicates that the attachment process between children and parents mostly takes place up to three years of age. Her evidence was further that, provided the child forms a strong bond with the father, the relationship between them is less likely to be damaged provided regular contact is maintained and the move is successful. The single expert opined that it would be preferable for the mother not to relocate, if there were not a high level of confidence that such relocation would be successful and in the best interests of the child.[125]
[125] Transcript 26 August 2022, p. 404, lines 43–46.
The Court accepts that if the child relocates with the mother to Country B, that the father will be sad and hurt. Mr O was of the opinion that the father would cope, but that the father “would struggle immensely with having to create new meaning in his life” because the father has positioned the son as the most important thing in his life. [126] The Court is required to look to the promotion of the child’s best interests however, and on the facts of this case, as one part, to consider whether the mother’s wish to reside with the child in Country B adversely affects the welfare of the child. I do not find that to be so. The mother will have close family support including the provision of financial and child minding support, and importantly have emotional support from her mother. These are important matters in the weighing of the parties competing applications, and support my finding that the relocation would be successful and in the best interests of the child.
Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
[126] Transcript dated 18 July 2022, p.268–269.
The mother acknowledged that any orders permitting the child to relocate to Country B will have a significant practical and financial impact, but purported that the benefit to the child will outweigh any such difficulties.[127]
[127] Mother’s Case Outline filed 3 May 2022, p.6.
The father’s evidence was that he does not have any money to travel to Country B four times a year for at least “a couple of years” until he pays off his legal fees and loans.[128] He has an outstanding taxation debt of approximately $63,000 consisting of approximately $28,000 in personal tax and $40,000 owed by GG Company, his business; he owes $64,000 to his mother, which was used to cover his legal fees; $6000 to a mate; and $28,000 to HH Company which has an interest rate of 15 per cent.
[128] Transcript dated 14 July 2022, p. 62 lines 11, 14-15.
The mother’s financial position is day-to-day, and difficult. She too has borrowed funds. The mother asserted that she would be in a significantly better financial position if she were permitted to relocate to Country B with the child, as she will be able to earn a comparable income to that earned in Australia while receiving the benefit of a much lower cost of living. This will put her in a position to be able to purchase a house (something she is unable to do to should she remain in Australia) and receive the benefit of family assistance and support in the care of the child whilst she is at work. I do not accept the father’s evidence that the maternal grandmother “is in her 70s thus unlikely to be able to offer significant support”.[129] I accept the maternal grandmother will provide emotional and practical support. Additionally, the maternal grandmother has provided financial support to the mother including loaning the mother money to pay her legal fees in the sum of $110,000. The maternal grandmother gave evidence was that she could further assist the mother to buy a vehicle, and could pay rent for the mother for an initial interim period, if the mother was to relocate to Country B.
[129] Family Report dated 22 April 2022, p. 42 paragraph 103.
I find the mother will be in a financial position, given the above, to travel with the child, at her cost, to and from Australia once each year. I find the father, now on an increased income, and with further time to repay his debts prior to any departure of the mother and child to Country B, will be able to travel to Country B on up to four occasions each year.
Section 60CC(3)(f) the capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
It was the evidence of the single expert that both parents are capable of meeting the child’s basic needs and prioritising the child’s best interests, but the mother’s parenting skills are more advanced.[130] The single expert considered the mother more attuned and responsive to the child’s emotional needs and was a confident and competent parent who is more adept at guiding, teaching and stimulating the child’s learning and development.[131] The Court accepts that evidence.
[130] Family Report dated 22 April 2022, p. 66, paragraph 147.
[131] Family Report dated 22 April 2022, p. 66 paragraph 147.
The single expert observed that the mother presented with good parenting skills, strong support from her mother and brother in Country B, professional help-seeking behaviour, good life skills and an ability to provide for the child’s basic needs.
The mother’s capacity to care for the child has nevertheless been impacted by the anxiety caused by her experience of the father’s family violence,[132] which has caused her ongoing anxiety and stress.[133] Both the single expert and Ms S reported that the mother’s mental health concerns are likely to be exacerbated if she is constrained to remain living in Australia with the child.[134]
[132] Mother’s Case Outline filed 3 May 2022, p.6.
[133] ICL’s Case Outline filed 4 May 2022, p.6.
[134] ICL’s Case Outline filed 4 May 2022, p.6.
Ms S’s evidence was further that:[135]
…[the mother’s] caregiving capacity has been predicated on the hope that she will gain the psychological, emotional, material support that she perceives as being crucial to her ongoing capacity to provide [the child] with what she already has. And from what she has described in terms of some of the stressful incidents and the periods when, for example, there has been difficult times….she has been able to – to bring herself back to her caregiving capacity. This has been predicated, though, on –on knowing that she will have support for herself as much as for [the child] when and if she’s able to relocate to [Country B]. So the long-term impact for the child, I see as being definitely related to the – the mental health of the mother and the ongoing positive caregiving of the mother …. The mother’s mental health and caregiving capacity, from my point of view – it – it is – takes precedence at this point.
[135] Transcript 19 July 2022, p.381 lines 10 – 30.
The father reported to the single expert that he was concerned about the child being exposed to the mother’s mental health issues. He referred to the mother as “possessive and wanting to make him pay for separating which he believes stem from childhood experiences” and was concerned for the environment the child resides in.[136] At no stage however has the father sought to remove the child from the care of the mother, nor has he provided for the emotional, intellectual and other needs of the child in like manner to the mother who has done so to a very competent level.
[136] Family Report dated 22 April 2022, paragraph 102.
The father’s capacity to provide for the needs of the child has improved. The mother’s evidence at trial was that the sessions the father has with Mr O has been a good thing. She appreciated that working with a psychologist is beneficial for the father, but maintained her concern as to the father’s behaviours including as recently as late 2021. The mother’s evidence was that she would continue to work through her anxieties but that she could not simply forget the father’s previous behaviours.
The father has received support from his sister’s partner, Mr L, whom the father says has been aiding him to build confidence and develop parental skills.[137] Initially, the single expert observed that the father “lacked basic parenting skills, attuned responsiveness and an understanding of the needs and cues of a child of [the child’s] age” and that the father required support.[138] In the most recent Family Report, the single expert observed that “although parenting may not come naturally to the father, his efforts to understand the child’s needs, attentiveness, and responsiveness, were excellent” and that the father appeared to be extremely supportive to the child.[139]
[137] Family Report dated 22 April 2022, paragraph 94.
[138] Family Report dated 22 April 2022, page 54.
[139] Family Report dated 22 April 2022, page 55.
The mother contends that the father has a limited capacity to provide for the emotional and psychological needs of the child given the behaviour and attitude of the father that the child has been exposed to, both in person during the relationship and since separation, as well as during FaceTime calls. The mother contends the father struggles to prioritise the needs of the child over his anger and resentment toward herself. The evidence supports those contentions.
Section 60CC(3)(g) the maturity, sex, lifestyle (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
As referred to in the paragraphs above, the father has a significant history of antisocial behaviour including gambling, criminal violence and drug history. The father recognised that his childhood exposure to police raids, criminal behaviour, family violence and drug use did not model appropriate parenting.[140] The father described having behavioural issues whilst at school, drinking at the age of 16, and taking drugs from around the age of 20. The father’s own parents separated due to the paternal grandfather’s poor treatment of the paternal grandmother, including calling her a “dog” and other inappropriate names. [141] The father described there being no love from his own father.[142] Despite the father’s poor childhood and history, he has been dedicated to self-improvement, devoted to his son and desperate to be involved in his son’s life. The father wishes for the child to remember him “as a great dad and not some alcoholic bum”.[143]
[140] Family Report dated 22 April 2022, paragraph 119.
[141] Transcript 14 July 2022, p.95 lines 27 – 34.
[142] Transcript 14 July 2022, p.93 lines 12, 29.
[143] Transcript 14 July 2022, p.101 lines 41 – 42.
It was the evidence of the single expert that the father has demonstrated a positive attitude toward the possibility of personal change, the value of therapy and the importance of personal responsibility. The father’s “engagement in therapy and programs has been excellent, as have the outcomes of this treatment”.[144] The father has not engaged in illicit substance use for over two years; has produced a negative hair follicle drug test on 21 October 2020; and last … in early 2021. Regular exercise has helped the father cope with the urges he has previously struggled with.
[144] Family Report dated 22 April 2022, paragraph 138.
It was the evidence of the single expert that the father continues to present with antisocial personality traits including impulsivity, irritability, disinhibition, quick-temperedness, and effective lability, but these issues present as vulnerabilities rather than current concerns that are significantly impacting his functioning.[145] The other evidence before the Court supports the evidence of the single expert.
[145] Family Report dated 22 April 2022, paragraph 139.
Section 60CC(3)(j) and (k) family violence
The findings in respect of family violence have already been made and discussed in the context of s 60CC(2)(b).
Conclusion
In accordance with the earlier findings of family violence by the father, pursuant to s 61DA(2) of the Act the presumption of equal shared parental responsibility does not apply. Despite this, it is still possible for the Court to make an order for equal shared parental responsibility if it were in the child’s best interests. The evidence before the Court does not support that conclusion.
I am satisfied that shared parental responsibility as is envisaged by the Act in s 65DAC would be difficult for the mother in the circumstances. The parties are unable to, or have limited ability to, communicate effectively and are unable to co-parent. The single expert’s evidence demonstrates that the mother’s anxiety, whilst maybe disproportionate, is heightened by the father. The mother has had sole parental responsibility since orders were made by a Senior Judicial Registrar on 19 October 2020. As the undisputed primary parent, the mother will be granted sole parental responsibility for all major long-term issues in respect of the child provided that she provide the father with notice of her intended decision, considers his response, and informs the father of her decision in writing.
The child will continue to live with the mother, as agreed between the parties.
The central issues for determination by the Court is whether the mother should be permitted to relocate to Country B and how much time the child should spend with the father.
The mother has a right to live where she chooses subject to that choice not being adverse to the promotion of the best interests of the child. It is clearly in the best interests of the child that he remain in the primary care of the parent who is more attuned to his financial, emotional, intellectual and physical needs and whose parenting capacity far exceeds that of the other parent, despite the other parent more recently acquiring a capacity for limited periods. The parenting capacity of the mother needs to be supported in the child’s best interests. That can be done by making provision for the mother to live where she chooses.
To ensure the consolidation of the child’s relationship with the father, the child should remain living in Australia in close proximity to his father’s residence for a further period to conclude on 31 August 2023 when the child will be aged 4 years and 2 months. The mother and child will be able to relocate their residence to Country B as from late 2023. In the period between now and late 2023 next year the child shall spend increased amounts of time, unsupervised, with the father as is appropriate to his age, the history of the spend time arrangements, and need for a strengthening of his bond with his father so that the lengthier periods of time between which the father and child can physically spend time with each other can be accommodated to some extent by the child.
Given the parties inability to communicate and the father’s desire to be able to converse with the mother about the things the child does in his care that she would not be aware of, such as the child saying “Daddy, motorbikes. Daddy, go-carts”,[146] which appear to be things of interest to the child, it would be in the child’s best interest that the parties communicate via the parenting application AppClose.
[146] Transcript 15 July 2022, p.138 lines 38 – 44.
The mother’s final minute of proposed orders provided for the mother to register any orders made by the Court in a court of jurisdiction in Country B, and that the mother be restrained from relocating the child’s residence from Country B. Such orders would ensure the enforceability of the orders in Australia and Country B, and would be least likely to lead to further litigation.
I do not propose to impose a bond upon the mother as offered by her as I am satisfied that she will comply with the orders of the Court, and because she has no financial capacity herself to meet such bond. She would need a further loan from her mother who is not a party to the proceeding, and who has expended, and will expend, further of her life savings in her support of her daughter and grandchild.
The mother’s ability to relocate will be contingent upon her proving the registration and enforceability of these orders in the Country B, which is important to ensuring the enforceability of the orders in an international jurisdiction.[147]
[147] McCall v Clark (2009) FLC 93-405 at [11].
I certify that the preceding one hundred and sixty-two (162) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 7 October 2022
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