DEBONO & CALLEN
[2020] FCCA 1857
•10 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DEBONO & CALLEN | [2020] FCCA 1857 |
| Catchwords: FAMILY LAW – Parenting – final relocation application – where Mother moved with the child to Region B area from Metropolitan Sydney in June 2018 – where Father brought Application to prevent the relocation in June 2018 – where Father asserts Mother relocated without prior notice and without his consent – where Mother asserts she informed Father of her intention as and from January 2018 – where Mother asserts specific reasons for her desire to relocate – where in the child’s best interests to not change his primary carer – where requiring the Mother to relocate back to Metropolitan Sydney will negatively impact her – where cause on Mother likely to affect her ability to most effectively parent the child – where Court orders equal shared parental responsibility – where significant and substantial time orders made with options for Father. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 60B, 60CC, 61C, 61DA, 65D, 65DAA, 65DAE, 67Q, 67U |
| Cases cited: M & M (1988) FLC 91-973 |
| Applicant: | MR DEBONO |
| Respondent: | MS CALLEN |
| File Number: | SYC 4067 of 2018 |
| Judgment of: | Judge Morley |
| Hearing date: | 27 May 2019 |
| Date of Last Submission: | 29 May 2019 |
| Delivered at: | Sydney |
| Delivered on: | 10 July 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Mr O'Sullivan of O'Sullivan Legal |
| Counsel for the Respondent: | Mr Cook |
| Solicitors for the Respondent: | Justice Family Lawyers |
| Counsel for the Independent Children's Lawyer: | Mr O'Brien |
| Solicitors for the Independent Children's Lawyer: | Russell Kennedy Aitken Lawyers |
ORDERS
That the Applicant Father Mr Debono (‘the Father’) and the Respondent Mother Ms Callen (‘the Mother’) have equal shared parental responsibility for the child X born in 2015 (‘X’).
That X live with his Mother.
That X spend time with his Father:
(a)For the balance of the year 2020, each alternate weekend from 6:45PM on Wednesday until either:
(i)6:00PM on Sunday; or
(ii)9:00AM on Monday;
at the Father’s option PROVIDED that if the end of the time will be 9.00AM on Monday, the Father will notify the mother of such in writing by no later than 7.00PM the previous Tuesday.
(b)From 6:45PM on 20 December 2020 until 6:45PM on 2 January 2021 and from 6:45PM on 16 January 2021 until 6:45PM on 23 January 2021, and during those times order 3(a) is suspended.
(c)From the year 2021 onwards:
(i)During school term time, each alternate weekend from 6:45PM on Friday until either:
A. 6:00PM on Sunday; or
B. the start of school on Tuesday, provided the Father stays over on the Sunday and Monday nights with X in the Town C region;
at the Father’s option, PROVIDED that if the end of the time will be the start of school on Tuesday, the Father will notify the mother of such in writing by no later than 7:00PM the previous Thursday.
(ii)During the school holidays at the end of terms 1, 2, and 3:
A. For the first 10 days of the school holidays in even-numbered years;
B. For the last 10 days of the school holidays in odd numbered years; and
(iii)During the Christmas school holidays at the end of term 4:
A. For the first half of those holidays in even numbered years; and
B. For the second of those holidays in odd-numbered years.
During the whole of each school holiday period, order 3(c)(i) will cease and will recommence on the weekend first after the end of the school holidays that commenced in even numbered years, and on the weekend second after the end of the school holidays that commenced in odd numbered years, and for these purposes school holidays start on the day that school ends for X and end on the day before X recommences his school attendance.
That from 2021, the parent who does not have care of X during the first half of the Christmas school holiday period shall spend time with X from 10:00AM on 26 December until 10:00AM on 28 December.
That on X’s birthday each year, he shall spend time with each of his parents at times to be agreed, with such times to be not less than three (3) hours with each parent on a non-school day and two (2) hours with each parent on a school day, and the non-carer parent shall collect him from and return him to the home of the parent who has care of X under the orders on the day.
That in the event that X would otherwise be in his Father’s care for the Mother’s Day weekend, X shall be returned to his Mother at 6:00PM on the Saturday before Mother’s Day;
That in the event that X would otherwise be in his Mother’s care for the Father’s Day weekend, X shall spend time with his Father from 6:00PM on the Saturday before father’s Day until 6.45PM on Father’s Day.
That unless explicitly provided for otherwise, changeover is to occur outside the D food outlet shop on E Street, Town F, and changeovers may be effected by the parents, or a family member of either parent, or a godparent of X.
That if either party wishes to take X out of the Commonwealth of Australia, then they shall advise the other party in writing no later than 30 days before the day of departure, of the details of:
(a)The duration of the trip;
(b)The time and the date of the departure;
(c)The time and date of return to the Commonwealth of Australia;
(d)The address and contact details of where X will be throughout the trip; and
(e)Flight numbers and/or other relevant information.
That the Father be permitted to communicate with X by telephone, FaceTime, or Skype each Tuesday, Thursday, and Sunday when X is not and has not been in his care on the day, at some time between 6:00PM and 6:30PM, with such telephone, FaceTime, or Skype communication to be initiated by the Father.
That the Mother be permitted to communicate with X by telephone, FaceTime, or Skype each Tuesday, Thursday, and Sunday when X is not and has not been in her care on the day, at some time between 6:00PM and 6:30PM, with such telephone, FaceTime, or Skype communication to be initiated by the Mother.
That each of the parties shall be entitled to attend any social, sporting, or educational event involving X including any event associated with any extra-curricular activity that allows for parental attendance or participation and both parties shall Inform the other party of such events and all of the relevant details as soon as reasonably practical.
That the parties shall:
(a)Keep the other party informed at all times of his/her residential address and contact details, including mobile and landline telephone numbers and email addresses and notify the other parent within 24 hours of a change to those details;
(b)Keep the other party informed of the names and details of any treating medical or other allied health practitioner who treats X and authorise such practitioners to provide the other party with information they are lawfully able to provide about X;
(c)Inform the other party as soon as is reasonably practicable of any medical issue, significant health issue or significant illness or injury suffered by X and by this order all treating medical practitioners are to release details of X's medical condition to the other parent;
(d)If X is prescribed medication the parent who buys X's medication will provide the other parent with the medication and also instructions for its use at the time X goes into the other parent's care.
That each of the parents is restrained from denigrating the other parent, any member of the other parent’s family or any member of the other parent’s household in the presence or hearing of X.
That each of the parents is restrained from allowing X to remain in the presence of or within X’s hearing of any other person who is denigrating the other parent, any member of the other parent’s family or any member of the other parent’s household.
That each of the parents is restrained from discussing these proceedings with X or at all in X’s presence or hearing or showing X any document connected with these proceedings.
That each of the parents is restrained from permitting any other person to discuss these proceedings with X or at all in X’s presence or hearing or show X any document connected with these proceedings.
That each party shall do all things and sign all documents necessary to ensure that each of them shall receive information from child care providers, school and education providers, event providers and all medical information in relation to X.
IT IS NOTED that publication of this judgment under the pseudonym Debono & Callen is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 4067 of 2018
| MR DEBONO |
Applicant
And
| MS CALLEN |
Respondent
REASONS FOR JUDGMENT
Introduction
These are proceedings between Mr Debono as the Applicant Father (‘the Father’) and Ms Callen as the Respondent Mother (‘the Mother’) concerning parenting arrangements for their only child, X born in 2015. X was 3 years and 5 months of age at the time of the hearing.
The proceedings are what is often referred to as a ‘relocation case’, though matters where the central issue relates to an actual or proposed relocation of a child’s place of residence by one parent, and opposition to that move by the other parent do not proceed in any different manner from all matters where the Court’s task is to determine what parenting orders are to be made in the best interests of the child, pursuant to the statutory pathway.
In June 2018, the Mother relocated X’s place of residence from Suburb G, a suburb in in the Region H suburbs of Sydney, to Town C on the Region B of New South Wales. It is the Mother’s case that the Father was given foreknowledge of the proposed relocation, that he did not indicate opposition to the move until it was about to occur, and that it is in the best interests of X for him to remain living with the Mother in Town C.
It is the Father’s case that prior to the actual move occurring in June 2018, he was either unaware of the Mother’s proposed relocation of X’s place of residence to Town C, or that though the possibility had been suggested by the Mother on occasions, he did not believe that it would occur, and that it is in the best interests of X that he return to reside within an easy proximity of the Father’s place of residence in Sydney.
In relation to what constitutes ‘easy proximity’, at the end of the hearing the Father in his Minute of Proposed Orders sought an order that X’s residence be “within a 15-minute drive of Suburb G, Sydney”,[1] though after perusal of the independent child’s lawyer’s Minute of Proposed Orders the father through his solicitor advocate indicated that he was “not opposed to” the Independent Child’s Lawyer’s (‘ICL’) suggested ‘radius’ of 25 kilometres from the Father’s place of residence, a suggestion made by the ICL only in the event that the Court was minded to order that X’s place of residence be returned from Town C to Sydney.
[1] Exhibit A6, 1.
This judgment and the final orders have been too long delayed, entirely at my fault, and I apologise to the parties and to X for the delay between hearing and orders.
Background
The following facts are agreed between the parties unless otherwise indicated.
The parents commenced a relationship at some time in 2010 and began to live together in late 2014 in a rented home unit at Suburb G. They separated for a period of time during 2014 and, on reconciling and resuming cohabitation that year, became engaged to be married. The only child of their relationship, X, was born in 2015.
In April 2016, the Mother called off the engagement and the parties again separated, the Mother and X remaining in the Suburb G unit and the Father taking up residence with his parents also in Suburb G, though they continued to attempt to reconcile their relationship until December 2017.
From April 2016 until June 2018, the parties established and followed an informal arrangement for the Father to spend time with X, from 6:00PM until 7:00PM each Monday, Tuesday, Wednesday, and Thursday evening, and from 3:00PM every Saturday afternoon until 3:00PM every Sunday afternoon.
On occasions, the Father’s time with X would extend on weeknights until 9:00PM to allow the Mother to attend at a gym or to do some grocery shopping. The Father asserts that there were occasions when his time on the weekend extended until 9:00PM and also occasions when X was in his care from 3:00PM on Saturday until 3:00PM on Monday. In their respective affidavits, the parents give different estimates of the amount of time X spent with the Father each fortnight during this period, the Mother asserting that it was fifty-six hours per fortnight, and the Father asserting that it was seventy-two hours per fortnight. On the evidence as a whole it would seem to have varied between those times.
In late 2017 and early 2018, it became apparent that X was speech delayed and needed professional intervention. Each of the parents in their affidavit material assert that it was he or she and not the other parent who made enquiries of Sydney speech therapy services, but both agree that the advice received was that there was a waiting period of nine months in the Sydney area for an assessment of X for speech therapy.
In early 2018, the Mother put X on a waiting list for a formal development assessment at Region J Hospital. On either 3 or 4 March 2019,[2] both parents attended with X for an appointment at Region J Hospital with paediatrician Dr K and other health professionals and were advised that though X was speech and language delayed and in need of speech and occupational therapy, he was not suffering from any physical or mental health illnesses.
[2] “3 March 2019”, Father’s affidavit filed 16 May 2019, [36]; “4 March 2019”, Mother’s affidavit filed 10 May 2019, [24].
On 23 May 2018, the parents and X attended at the L Hospital at Suburb M to obtain information and a management plan for X with respect to his speech delay. As a result of the assessment, a report was prepared by L Hospital dated 2 July 2018, noting at point 4 under the heading “Management Plan”:
If X moves to Town C, parents can self-refer to N Centre [telephone number] to access Early Intervention which would include speech and occupational therapy.[3]
[3] Mother’s affidavit filed 10 May 2019, annexure [C].
At point 5, the following is found:
Formal developmental assessment – this would be either at O Clinic in Region B Hospital or Region J Hospital depending on X’s location in the near future.[4]
[4] Mother’s affidavit filed 10 May 2019, annexure [C].
Under the heading “Present Situation” is found:
X is the only child to Ms Callen and Mr Debono. X’s parents are separated. He lives mostly with his mother but still has regular contact with his father. They are planning to move to Town C in the near future although unsure of exactly when yet.[5]
[5] Mother’s affidavit filed 10 May 2019, annexure [C].
During cross-examination of the Father by counsel for the Mother, but in response to a question from the bench, the Father accepted that at the appointment on 23 May 2018 there was no separate interview of the Mother or the Father, their only interview being joint.
On 30 June 2018, the Mother moved to Town C with X. In her affidavit material, the Mother deposes that the move was not a unilateral move, but that she had provided notice to the Father on several occasions since January 2018.[6] In his affidavit material, the Father deposes that it was a unilateral decision by the Mother as he “had not previously agreed to this”.[7] I will examine the competing evidence on this issue below under the heading ‘The evidence’.
[6] Mother’s affidavit filed 10 May 2019, [30].
[7] Father’s affidavit filed 16 May 2019, [14].
Following the move by the Mother and X to Town C, there was communication between the parents and it was arranged that X would spend time with his Father each weekend from Friday afternoon until about 5:00PM on Sunday, with changeover taking place at the D food outlet at Town F.
The changeovers were attended by the Mother for her part and by either the Father or his parents on his part. While this amounted to X spending approximately forty-eight hours per week with his Father – ninety-six hours per fortnight – and therefore a greater amount of time than that asserted by the Father to have been spent between them prior to the move, it was a reduction of frequency, there being no time on Mondays, Tuesdays, Wednesdays, or Thursdays.
On 27 June 2018, the Father commenced proceedings by filing his Initiating Application. He obtained leave for short service, and the matter was listed for a first mention on 24 July 2018. The interim and final orders sought by the Father in his Initiating Application sought orders to the effect that the Mother be required to live with X within a five kilometre radius of the Suburb G address she had left to move, and that if she chose to live outside that five kilometre radius, then X would live with his Father and spend time with his Mother. The Father sought an order that the parents have equal shared parental responsibility for X.
The Mother filed her Response on 23 July 2018 and sought interim and final orders that X live with her and spend time with his Father every weekend from 5:00PM on Friday until 5:00PM on Sunday and at other times as agreed between the parents, impliedly with the Mother and X continuing to reside in Town C.
When the matter was before the Court for its first return date on 24 July 2018, orders were made providing for:
a)The parties to attend a Child Dispute Conference with a Family Consultant on 27 August 2018;
b)Pending further order, that X live with his Mother and spend time with his Father as agreed between the parents and in the absence of agreement each weekend from 12:00PM on Friday until 5:00PM on Sunday with changeover to take place outside D Take Away Shop, Town F; and
c)A future listing of the matter for further mention on 24 September 2018 following the Child Dispute Conference.
The parents attended the Child Dispute Conference on 27 August 2018 and ventilated their versions of events and the issues. The Family Consultant produced a Memorandum to Court dated that day. I will give more detail of the matters contained in the Memorandum to Court below, but I note a comment under the heading “Relocation of X to Town C”:
It appears that both parents might be prioritising their proposal for X’s parenting arrangements, as opposed to them focusing on X’s specific needs.[8]
[8] Child Dispute Conference Memorandum to Court dated 27 August 2018, 4.
The Family Consultant recommended the appointment of an ICL and, inferentially, the preparation of a Family Report.[9]
[9] “The Court might benefit from conducting an observation between the parents and X to assess his relationship with each parent.” Child Dispute Conference Memorandum to Court dated 27 August 2018, 4.
On 24 September 2018, the matter was mentioned before his Honour Judge Harper (as his Honour then was). Orders were made on that occasion as follows:
a)A variation was made to the order relating to the time the Father was to spend with X by changing the starting time from “12:00PM” on Friday to “by no later than 6:45 PM”;[10]
b)The order for changeover to occur at D Take Away Shop at Town F was discharged, and an order was made for changeover to take place at the Suburb G unit. This had the effect of requiring the Mother to undertake all changeovers in Sydney;
c)An order appointing an ICL for X was made, with the usual request to the Legal Aid Commission of NSW; and
d)An order was made for preparation of an Expert’s report by Dr P, or in the event he was unavailable “any similar qualified expert”;[11] and
e)Orders setting the matter down for hearing over two days commencing 31 January 2019 with relevant trial directions.
[10] Orders of Judge Harper on 24 September 2018, [1].
[11] Orders of Judge Harper on 24 September 2018, [7].
It transpired that the cost of obtaining expert report from Dr P proved prohibitive to the parties. On 20 November 2018, the matter came before her Honour Judge Henderson (as her Honour then was) for mention, and her Honour made orders for Mr Q to prepare a Single Expert Family Report (‘the Family Report’).
Further orders were made in relation to parenting orders, inter alia, including:
a)Altering the spend-time-with arrangements between X and the Father to alternate weekend time (“each alternate weekend from 6:45PM on Thursday until 6:00PM on Monday”);[12]
b)Clarifying the persons permitted to effect changeover (being a family member of the Mother’s or a godparent of the child); and
c)Requiring the Father to provide $80.00 per fortnight to the Mother to assist her with the costs of changeover.
[12] Orders of Judge Henderson on 20 November 2018, [2].
Interviews involving the Father, the Mother and X took place with Mr Q on 18 December 2018 and the Family Report dated 16 January 2019 was released to the parties and ICL by orders made in Chambers on 22 January 2019.
The hearing set down for 31 January and 1 February 2019 was vacated on 31 January 2019 and the matter was adjourned to 27 May 2019 for final hearing over an estimated three days. The matter proceeded to final hearing on 27, 28, and 29 May 2019 before me.
At hearing, the Father was represented by Mr O’Sullivan as solicitor advocate, the Mother was represented by Mr Cook of counsel, and the ICL was represented by Mr O’Brien of counsel. Each provided a helpful Case Outline document and Minute of Order.
Orders proposed by the parties and the ICL
The final orders sought by the Father were set out in a minute which was tendered by Mr O’Sullivan at the start of his final submissions (Exhibit A6) as follows:
A. The court notes the Father has agreed to pay the Mother $250 per week for a period of 3.5 years to assist the Mother with the cost of housing in Sydney.
1. The parties have equal shared parental responsibility for X.
2. The Mother shall within 90 days of making these orders cause and return the child to the City of Sydney, New South Wales, to living accommodation within a 15-minute drive of Suburb G, Sydney.
3. Following compliance by the Mother with the above order that the Mother be restrained from changing the place of residence of the child to any place outside the area referred to in order two, and the following shall apply:
(a) the child live with the Mother;
(b) the child spend time with the Father as agreed but failing agreement each alternate weekend from 6:45PM on Wednesday until 6:00PM on Monday;
(c) upon the child commencing kindergarten the child live with the Father and Mother on a week about basis;
(d) the child spend time with the Father for the first half of the short school term holidays in 2019 and each alternate year thereafter;
(e) the child spend time with the Father for the second half of the short school term holidays in 2020 and each alternate year thereafter;
(f) the child spend time with the Father on a week about basis in the December/January school holidays under school age and then for the first half in even-numbered years and the second half in odd-numbered years.
4. That notwithstanding any order to the contrary, if the child is not already spending time with the Father pursuant to these orders, the child is to spend additional time with the Father on Father’s day from 9:00AM to 4:00PM.
5. Notwithstanding any order to the contrary, if the child is not already living with the Mother pursuant to these orders, the child is to spend additional time with the Mother on Mother’s Day from 9:00AM to 4:00PM.
6. Notwithstanding any order to the contrary, the child is to spend time during Christmas, alternating each year, as follows:
(a) with the Mother from 9:00AM Christmas Eve to 3:00PM Christmas Day in 2019 and every alternate year thereafter; and
(b) with the Father from 3:00PM Christmas Day to 7:30PM Boxing Day in 2019 and every alternate year thereafter; and
(c) with the Father from 9:00AM Christmas Eve to 3:00PM Christmas Day in 2020 and every alternate year thereafter; and
(d) with the Mother from 3:00PM Christmas Day to 7:30PM Boxing Day in 2020 and every alternate year thereafter.
7. In the event the Mother fails to comply with order 2 herein, or breaches order 3 herein, the following shall apply:
(a) the child will live with the Father;
(b) the child spend time with the Mother as agreed between the writing but failing agreement:
(i) every second week in a month from 4:00PM on Friday to 4:00PM on Sunday with the Mother to collect the child from the Father’s residence at the commencement of the time [and] the Father to collect the child from the Mother’s residence at the conclusion of such time;
(ii) for up to 3 consecutive weeks each Christmas school holiday period as agreed and in the absence of agreement for the first half in odd numbered years in the second half in even numbered years;
(iii) for the whole of the school holiday period following Term 2 commencing from 9:00AM on the first Sunday after the conclusion of school term to 9:00AM on the Sunday immediately preceding the commencement of the next school term;
(iv) provided the Mother notify the Father in writing no less than six weeks prior to the last day of the applicable school term, ten days in either of the school holiday periods following terms 1 or 3, such time as agreed and in the absence of agreement for the ten days of the nominated holiday period commencing at 9:00AM the day following the last day on which X is required to attend school.
8. The parties be permitted to contact the child via telephone/FaceTime every second day for a period of up to 30 minutes.
9. Both parties shall be entitled to attend any public or school social, sporting or educational event involving the child, including but not limited to theatre performances, sporting events, school activities and functions, Christmas parties and other special occasions and that both parties shall:
(a) inform the other party of such events in a timely manner; and
(b) communicate to the other if arrangements are made for the chil [sic].
10. The parties shall:
(a) keep the other party informed at all times of his/her residential address and contact details, including mobile and landline telephone numbers and email address;
(b) keep the other party informed of the names and addresses of any treating medical or other allied health practitioner who treat [sic] the child and authorise such practitioners to provide the other party with information that they (the applicable medical or other allied health perfect practitioners) are lawfully able to provide about the child; and
(c) inform the other party as soon as is reasonably practical of any medical issue, significant health issue or significant illness or injury suffered by the child and this order authorises any treating medical practitioner to release details of the child’s medical condition and/or injury to the other parent.
11. The parties are restrained from:
(a) denigrating each other or members of the other party’s family in the presence or hearing of the child or permitting any third person to do so; or
(b) discussing these proceedings or showing to the child any document connected with these proceedings or permitting any third person to do so; or
(c) discussing any aspect of their relationship with the child or in their presence or hearing or permitting any third person to do so.
12. During the time the child are [sic] with either parent, the parent shall:
(a) respect the privacy of the other parent and not question the child about the personal life of the other parent; and
(b) speak of the other parent respectfully.
13. Either party shall be at liberty to travel with the child overseas during a period of time that the child is in the care of that party during school holiday periods, upon the condition that:
(a) the party proposing to travel with the child provides the other party in writing not less than thirty (30) days’ [sic] notice of his or her intention to travel; and
(b) the party proposing to travel provides to the other party not less than thirty (30) days’ [sic] prior to the proposed departure, and in writing, a travel itinerary and contact details for the travelling party and the children [sic] while they are overseas.[13]
[13] Exhibit A6.
The final orders sought by the Mother were set out in the Case Outline document prepared by her counsel and tendered at the start of the hearing (Exhibit R2), as follows:
1. That the Mother and the Father shall have equal shared parental responsibility for making decisions for long-term, care welfare and development of [X].
2. That the parties have sole responsibility for making decisions about the day-to-day care, welfare and development of the child during the period when the child is staying with them except as otherwise provided for in these orders.
I note that though an order in these terms appears very often in parties’ applications before this Court, no doubt as a result of the ‘specific issues’ orders regime that came in with the 1996 amendments to the Family Law Act 1975 (Cth) (‘the Act’), such an order has not been necessary since the 2006 amendments due to the terms of section 65DAE of the Act.
3. That the Mother and the child continue to reside at Town R.
4. That the child to live with the Mother and spend time with the Father as follows:
Whilst the child is not attending school:
(a) every alternate week, from 6:45PM on Wednesday until 6:00PM on Sunday; and
(b) over the Christmas holiday period, as mutually agreed between the parties in writing, or failing agreement, from 6:45PM on 20 December until 6:45PM on 2 January in even years and from 6:45PM on 2 January until 6:45 PM on 14 January in odd years.
(c) any other time as may be mutually agreed between the parties in writing.
When the child commences attending school:
(a) once the child begins attending school, this time will be varied to every alternate week, from 6:45PM on Friday until 6:00PM on Sunday during the school week;
(b) for terms 1, 2, and 3 school holidays, every year, as mutually agreed between the parties in writing, or failing agreement, for the first three quarters of the school term holidays.
(c) for Christmas holidays, as mutually agreed between the parties in writing, or failing agreement, from the first day of December school holidays until 6:45 PM on 2 January in even years and from 6:45 PM on 2 January until school recommences in odd years.
(d) any other time as may be mutually agreed between the parties in writing.
5. That for the purpose of order 4a above, changeover is to be affected [sic] by the mother delivering the child to the Father’s residence at the commencement of the child’s time with the Father, and the Father returning the child to the Mother’s residence at the conclusion of the Father’s time with the child. Alternatively, the parties are to meet in Town F for changeover at an agreed upon time, noting that either a family member or godparent also has the ability to effect changeover.
6. Once the child begins attending school and for the purpose of orders 4b and 4 above, changeovers are to occur in Town F, outside of the D Take Away Shop on E Street. The Mother, or one of her agents is to deliver the child to this location at the commencement of the Father’s time with child and the Father, or one of his agents, to deliver the child back to this location at the conclusion of his time with the child, noting that parties agree that a family member or godparent can effect changeover.
7. That time will be suspended:
(a) if Mother’s Day falls on a weekend when the child is not already spending time with the Mother, then the time with the Father is to be suspended and the child is to spend time with the Mother for the entirety of Mother’s Day weekend; and
(b) if Father’s Day falls on a weekend when the child is not already spending time with the Father, then the Mother’s time will be suspended, and the child will spend time with the Father for the entirety of Father’s Day weekend.
8. That if either party wishes to take the child out of New South Wales, then they shall advise the other party in writing, at least 4 weeks before the date of departure, of:
(a) The duration of the trip;
(b) the time and date of the departure;
(c) the time and date of return to New South Wales;
(d) the address and contact details of where the child will be throughout the trip; and
(e) flight number and/or other relevant information
9. When the child is in the Father’s care and the Father is at work:
(a) the child be taken care of by the paternal grandmother;
(b) if the paternal grandmother is not available and any other adult is caring for the child, the Father is to provide details of that person to the Mother.
10. That the Father be restrained by injunction from consuming excessive amounts of alcohol within 24 hours of seeing the child.
11. The Mother and Father are to notify the other as soon as possible of any medical emergency, serious injury or illness involving the child.
12. If the child is taking prescribed medication, the parent who buys the child’s medication will provide the other parent with the medication and instructions for its use, when the child goes into the other parent’s care.
13. That if either party changes their contact telephone number or address they must notify the other within 24 hours of that change.
14. Each party shall do all things and sign all documents necessary to ensure that each of them shall receive information from child care providers and event providers and medical information in relation to the child.
15. That both parties, be hereby restrained by injunction from:
(a) Denigrating each other or their families to or in the presence and/or hearing of the child and from permitting anyone to do so.
(b) Discussing these proceedings or the parties’ separation with the child or in their presence and/or hearing, and from permitting anyone else to do so.
16. In the event of any dispute as to the interpretation, implementation or enforcement of these orders (including any claim by a party that it should be varied) the parties shall first attend a family dispute resolution (FDR) with an FDR practitioner appointed by the parties and make a genuine attempt to resolve the dispute. Failing agreement as to that appointment, the party raising the dispute shall nominate three FDR practitioners, one of whom shall be chosen by the other party within 14 days.
The orders proposed by the ICL were set out in a Minute of Orders tendered by Mr O’Brien at the end of the hearing and marked as Exhibit ICL3, divided into “Orders sought no matter where the child lives”, “Orders sought if X remains living in Town C” and “Orders sought if X is returning to live in Sydney”, as follows:
Orders sought no matter where the child lives
Parental Responsibility
1. That the parties have equal shared parental responsibility for making all decisions relating to the long-term care, welfare and development of [X] and collaborate on all major long term decisions for him.
2. That the parties each have sole responsibility for the day-to-day decisions for X whilst he is in their care.
Time Spent – Special Occasions
3. Notwithstanding any other order providing for X to spend time with his parents he shall spend time with his parents on special occasions as follows:
(a) With the mother on the Mother’s Day weekend from the conclusion of school or otherwise 3:00PM on Friday continuing until the commencement of school or otherwise 9:00AM on the following Monday;
(b) With the father on the Father’s Day weekend from the conclusion of school or otherwise 3:00PM on Friday continuing until the commencement of school or otherwise 9:00AM on the following Monday;
(c) On X’s birthday each year he shall spend time with each of his parents at times to be agreed[,] such times to be not less than 3 hours with each parent on a nonschool day and two hours with each parent on a school day;
(d) That X spend from 12:00PM on 23 December until 3:00PM Christmas Day with the father in each year ending with an odd number and from 3:00PM Christmas Day until 12:00PM on 27 December with the father in each year ending with an even number.
(e) That X spend from 12:00PM on 23 December until 3:00PM Christmas Day with the mother in each year ending with an even number and from 3:00PM Christmas Day until 12:00PM on 27 December with the Mother in each year ending with an odd number.
Travel
4. The parties be permitted to travel domestically with X provided that:
(a) They provide the other parent with 4-weeks’ [sic] notice of their intentions to travel;
(b) They provide the other parent not less than 3 weeks prior to travel the time and date of departure, the time and date of departure and return, contact details of where X will be throughout the holiday and flight numbers/travel details for the trip;
(c) Such travel take place during times X would otherwise be living with that parent;
(d) The parent who is travelling with X shall make him available to speak with the other parent each day.
Communication and restraints
5. Each of the parties shall be entitled to attend any social, sporting, or educational event involving X including any event associated with any extra-curricular activity that allows for parental attendance or participation and both parties shall inform the other party of such events and all of the relevant details as soon as reasonably practical.
6. The parties shall;
(a) Keep the other party informed at all times of his/her residential address and contact details, including mobile and landline telephone numbers and email addresses and notify the other parent within 24 hours of a change to those details;
(b) Keep the other party informed of the names and details of any treating medical or other allied health practitioner who treats X and authorise such practitioners to provide the other party with information they are lawfully able to provide about X;
(c) Inform the other party as soon as is reasonably practicable of any medical issue, significant health issue or significant illness or injury suffered by X and by this order all treating medical practitioners are to release details of X’s medical condition to the other parent;
(d) If X is prescribed medication the parent who buys X’s medication will provide the other parent with the medication and also instructions for its use at the time X goes into the other parent’s care.
7. The parties are each restrained from;
(a) Denigrating each other or members of the other party’s family in the presence or hearing of X or permitting any third party from doing so; or
(b) Discussing these proceedings or showing to X any document connected with these proceedings or permitting any third person to do so; or
(c) On a without admissions basis from consuming alcohol to the point of intoxication whilst soever X is in their care.
8. In the event of any dispute as to the interpretation, implementation or enforcement of these orders (including any claim by a party that it should be varied) the parties shall first attend upon family dispute resolution (FDR) with an FDR practitioner appointed by the parties and make a genuine attempt to resolve the dispute. Failing agreement as to that appointment, the party raising the dispute shall nominate three FDR practitioners one of whom shall be chosen by the other party within 14 days.
9. That the parties shall pay within 3 months from the date of these orders the sum of $1,650 each to the Legal Aid commission by way of contribution towards the costs of the Independent Children’s Lawyer.
10. That the Independent Children’s Lawyer be and is discharged by these Orders.
Orders sought if X remains living in Town C
11. That the mother be restrained from moving X’s residence to any location, unless otherwise agreed in writing, other than;
(a) Town C or the suburbs immediately surrounding Town C; or
(b) Any suburb that is within a 25 kilometre radius from the father’s residence and in the event the Mother does relocate back to Sydney at any time after the making of these orders [sic].
12. X shall live with the mother.
13. From the date orders are made and continuing until the first day that X is required to attend Kindergarten in 2021 X shall spend time with his father as follows:
(a) In each alternate week from 5:30PM on the Wednesday afternoon continuing until 6:00PM on the Sunday with the mother to deliver X to the father’s residence at the commencement of time and to collect X from the father’s residence at the conclusion of time; and
(b) X shall have not more than 4 block periods with the father each year of up to 7 nights (“block period”) on each occasion and such blocks;
(i) be non-consecutive;
(ii) the father shall provide the mother with not less than 4 weeks’ [sic] notice of his intention to take a block period;
(iii) No block period shall take place over the mother’s birthday, Christmas Day, Easter, mother’s day or X’s birthday;
(iv) The father shall facilitate X speaking with his mother via telephone, Skype or such other agreed method each day; and
(v) THE COURT NOTES that the block periods are not to be taken in addition to interstate travel provided for in Order 4.
14. From the time X commences kindergarten in 2021 and continuing thereafter X shall spend time with his father by agreement and if there is no agreement then:
(a) On each alternate weekend from the 6:00PM on the Friday continuing until 6:00PM on the Sunday;
(b) For one half of the school holiday period that occurs at the conclusion of term 1 and 3 each year at times to be agreed and if not agreed then for the first half in all years ending in an even number and in the second half in all years ending in an odd number;
(c) For the entirety of the school holiday period that occurs at the conclusion of term 2 each year; and
(d) For one half of the Christmas school holiday period at times to be agreed and if not agreed then in the first half in all years ending in an even number and in the second half in all years ending in an odd number.
15. The father be permitted to spend additional time with X in Town C as follows:
(a) Such time shall occur either on a weekend or during the week provided that the father facilitates X attending school/day care and any extra-curricular activities in accordance with his usual routine;
(b) The father shall provide the mother with not less than 2 weeks’ notice of his intentions to spend time with X;
(c) The time X spends with the father shall be not more than 3 weekends out of every four weekends and shall be for blocks of not more than 7 days; and
(d) The time X spends with his father may be overnight in Town C provided that X has his own bed and suitable accommodation and the father provides the mother with the details of the accommodation of [sic] where X will be staying.
16. Where X is spending time with the father in Sydney pursuant to these Orders the mother shall deliver X to the father’s residence at the collection of time and the mother shall collect X from the father’s residence at the conclusion of time.
17. Where X is spending time with the father in Town C the father shall collect X from the mother’s residence at the commencement of time and shall deliver X to the mother’s residence at the conclusion of time.
18. The father shall pay the sum of $80 per fortnight to the mother to contribute to the costs of her travel between Sydney and Town C.
Orders sought if X is returned to live in Sydney
19. X will live with the Mother provided that she lives within a 25 kilometre radius from the father’s residence.
20. In the event the Mother does not live within a 25 kilometre radius from the father’s residence then X shall live with the father.
21. In the event X is living with the mother he shall spend time with the father as follows;
(a) From 4:00PM or otherwise the conclusion of school in the event X is at school each Wednesday until the commencement of school or otherwise 9:00AM on Thursday;
(b) On alternate weekends from 4:00PM or otherwise the conclusion of school if X is attending school on Friday continuing until the commencement of day care or otherwise 9:00AM on Monday; and
(c) Once X commences school the parties shall equally share all school holidays with X at times to be agreed and if not agreed then the father shall spend time with X in the first half of each school holiday period in all years ending with an odd number and shall spend the second half of each school holiday.
22. The parties shall effect changeover at school or day care and in the event that X is not attending school or day care at the time of changeover the mother shall deliver X to the father’s residence at the commencement of time and the father shall deliver X to the mother at the conclusion of time.
The evidence for the Father
The evidence of Mr S in his affidavit sworn 3 July 2018 is that he served the Father’s Initiating Application, Notice of Risk, and affidavit of the Father on the Mother at T Street, Suburb G (the address of the Suburb G unit) at 4:20PM on 29 June 2018. This has significance, because on the uncontested evidence the Mother moved with X to take up residence in Town C on 30 June 2008, though it is the Mother’s evidence that the topic of her proposed relocation of residence with X to Town C had been discussed between the parties since January 2018.
The Father’s affidavit sworn 16 May 2019 contains his evidence that he “never engaged or encourage the idea of Ms Callen relocating to Town C”.[14]
[14] Father’s affidavit filed 16 May 2019, [10].
At paragraph 14 of his affidavit, the Father asserts that on 26 June 2018, the Mother advised the Father by email that she had hired a removal truck to relocate to Town C, a move to which he had at no time agreed.
The Father filed his Initiating Application in these proceedings on 27 June 2018 and was given a first return date of 24 July 2018. In that Initiating Application, the Father had sought interim orders for urgency and that the Mother be restrained from relocating X’s residential address outside a five kilometre radius of “his current address” which at that time was the unit in T Street, Suburb G.
On receiving the Mother’s advice on 26 June 2018 that she was about to move to Town C, on 4 July 2018 the Father instructed his solicitors to file an Application in a Case seeking a recovery order pursuant to section 67Q of the Act.[15] The Application in a Case (Recovery) was filed for the Father on 4 July 2018 and was given the same return date, 24 July 2018.
[15] Section 67Q defines what is meant by “recovery order”, but the power to make a recovery order is found in section 67U.
On the first return date before the Court on 24 July 2018, interim orders were made, not by consent, that X lived with his Mother and spend time with his Father as agreed by the parties and failing agreement each weekend from 12:00PM on Friday until 5:00PM on Sunday, with changeovers taking place as agreed and in the absence of agreement outside D Take Away Shop, Town F. A date was appointed for a Child Dispute Conference on 27 August 2018.
Prior to the Mother’s move with X to Town C, the Father asserts that he was spending time almost every day with X and there were occasions when X was in his care from 3:00PM on Saturday until 3:00PM on Monday.
The Father deposes that prior to the move to Town C, X would spend 36 hours a week with the Father, or 72 hours per fortnight. He asserts that this did not include extra time when the Mother left X in his care while she went shopping or occasions when the Father collected X earlier than scheduled. He deposes that there were occasions when he dropped into the Suburb G unit where the Mother and X were residing to spend some time in the X in the morning while he was on his way to work.
The Father asserts that there has been an “evident deterioration” of the bond between himself and X since the move to Town C, in particular in paragraphs 26 to 33 of his affidavit. That affidavit evidence does not bear out that contention, but, rather, goes to establishing that there is a meaningful relationship and attachment between the Father and X. The evidence does not indicate an estrangement between Father and child, nor a lessening or deterioration in their relationship. What it does speak to are certain behavioural matters indicating that X may be missing the frequency of the time he used to spend with the Father.
The Father gives evidence of his appropriate knowledge about X’s speech delay and his attendance at appointments with specialist doctors, including a paediatrician, to discuss X’s speech delay and to receive their advice as to their assessment of any other developmental delays that may be affecting X. It is the Father is evidence that these health professionals indicated that X is not suffering from any other developmental or learning delays.
The Father deposes that the travel time to attend the changeover in Town F in accordance with the orders made on 24 July 2018 entail a car trip of three hours or more in each direction between the Father’s residence and the changeover point at Town F. At the second mention on 24 September 2018, the order for changeovers to occur at D Take Away Shop and Town F was discharged and the order was made for changeovers to take place at the Suburb G property. Once again, these orders were not made by consent.
There was an occasion where the Mother informed the Father that, due to illness, she was unable to attend the changeover to collect X from the Father at the end of his time at 5:00PM on 15 October 2018. As a result, X was in the Father’s care from Friday 13 October to Sunday 21 October 2018.
The Father asserts that following the September 2018 orders “Due to the travelling X was feeling sick and got croup again. I took him to the doctors for this.”[16] However, the Father does not present any detail or factual evidence to back up his opinion in this regard.
[16] Father’s affidavit filed 16 May 2019, [55].
He also details problems he perceived with X not eating due to the amount of travelling he was doing, but once again he does not provide any factual material to back up this opinion, simply stating “I believe it was due to the long car ride to my residence when he is to spend time with me.”[17]
[17] Father’s affidavit filed 16 May 2019, [57].
The Father deposes that he is the one who provides the care for X during the time he spends with him, and if he is unable to do so by reason of requirement to attend his employment, then either his parents or his auntie, Ms U, care for X. On occasions when the Father has to attend work and X is being cared for by these other persons, the Father deposes that he is “in constant contact”[18] with them to ensure that X is doing well.
[18] Father’s affidavit filed 16 May 2019, [66].
The Father details in paragraphs 63 to 81 of his affidavit his care for X during their time together and the activities they enjoy together and with their extended family.
The third mention took place on 20 November 2018 before Judge Henderson. Her Honour made an order varying the time to be spent between the Father and X from each weekend as in the previous interim orders to each alternative weekend from 6:45PM on Thursday until 6:00PM on Monday, commencing Thursday 22 November 2018. Changeovers were still to be effected by the Mother delivering X to the Father’s residence and collecting X from the Father’s residence, but with a notation that the parties agreed that a family member or a godparent could effect the changeover.
Her Honour also made an order that the Father provide $80.00 a fortnight to assist the Mother with changeover costs. Other than the notation that the parties agreed that a family member or a godparent could effect changeover, these orders were not made by consent.
In paragraphs 83 to 85 of the Father’s affidavit, he makes further assertions in relation to the purported deterioration of his relationship with X, due to the decrease in the frequency and duration of their spending time together. He complains that he has observed that X is more affectionate towards his Mother than his Father, and he ascribes that to the lack of time that X spends with him. He indicates differences he has observed in X’s behaviour towards him, presumably contrasting his behaviour from before the orders of 20 November 2018 with that which has occurred after those orders.
Throughout the Father’s affidavit, he relays behaviours or comments by X that he believes indicate that there is a deterioration in their relationship or indicate that X is suffering emotionally by missing him. The behaviours and comments detailed in his affidavit do not seem in any way out of the ordinary, in circumstances where a child of X’s age is moving between the different households of his separated parents.
The Father details two occasions, one on 14 January 2019 and the other on 11 February 2019, when X was admitted to hospitals, the former in relation to tonsillitis and the latter in relation to a swelling in his knee. On both occasions it is inherent in the Father’s evidence, though not explicit, that the Father was notified promptly by the Mother and the Father attended at both hospitals. However, the Father attaches his evidence of these occasions to his concern that it takes longer for X to reach a hospital when living in Town C than if living at Suburb G in Sydney:
Suburb M Hospital was in close proximity, approximately an 11-minute drive and I was comfortable in knowing that if anything were to occur to X that he would be at a children’s hospital with the right facilities in a matter of minutes.[19]
[19] Father’s affidavit filed 16 May 2019, [96].
In paragraphs 100 to 102 of his affidavit, the Father details occasions when he has attempted to have telephone or video communication with X, but has been unable to do so. He infers that the Mother is preventing it, though his evidence is not specific in that regard.
The Father details the assistance with care of X he can receive from X’s paternal grandmother, Ms V, paternal step-grandfather, and other extended family members.[20]
[20] Father’s affidavit filed 16 May 2019, [108].
In paragraphs 116 to 120 of his affidavit, the Father gives evidence about the importance of X being exposed to his Country W culture and Christian religion.
The Father deposes in paragraph 121 that the Mother has “in the past stated words to the effect ‘I moved away from Suburb G to get away from you’.” He does not give any evidence as to when, where or in what circumstances such as statement is asserted by him to have been made by the Mother. However, the statement is consistent with the mother’s evidence that one of the reasons that she moved to Town C was to put distance between herself and the father.
The Father deposes that X’s maternal grandmother lives in Suburb Y in Sydney and the Mother’s uncle lives in Suburb Z.
The Father pays the sum of $500.00 a month to the Mother as child support and pays the Mother the further sum of $80.00 each fortnight pursuant to the orders made on 20 November 2018 to assist her with travel costs for changeovers. He further assists the Mother financially from time to time by paying for other expenses with which the Mother needs assistance such as buying food, clothing, and nappies.
As to the Mother’s evidence that she resides in Town C in a house with her Father, Mr AA, the Father deposes that the paternal grandfather “never once visited X in Sydney. Mr AA missed X’s first birthday, his christening and X’s holy Communion.”[21] He has observed the paternal grandfather smoking in the backyard and having a glass of wine in the presence of X “and I would try to get X away from the smoke.”[22]
[21] Father’s affidavit filed 16 May 2019, [135].
[22] Father’s affidavit filed 16 May 2019, [135].
The Father deposes that for a few months in 2013 he experimented with steroids/hormone therapy and that during this time, the Mother assisted him. The Father does not give evidence as to how he asserts the Mother assisted him, aside from an inference that she may have assisted with injections in his gluteal muscles.
An interim order was made on 31 January 2019 in the proceedings that the ICL was permitted to request the Father undertake a hair follicle analysis for drugs of abuse including steroids and alcohol, with the Father to be responsible for the costs of the test in the first instance and the results of the test to be provided to the ICL and the Father’s lawyers within 48 hours of their receipt. The order did not mandate a time limit after a request was made by the ICL for the test to be undertaken by the Father.
On 14 February 2019, the ICL communicated a request to the Father that he undertake a hair follicle test, and that test was undertaken by the Father attending a relevant collection agency on 8 March 2019. The Father indicates that the delay in undertaking the test was due to his financial circumstances at the time the request was made being such that he was not able to afford the test for some weeks. The results report of the hair follicle test is attached to the Father’s trial affidavit and indicates a negative result in relation to cannabinoids, a negative result for alcohol and negative results for a range of other substances described in a jargon the nature of which I cannot identify, nothing having been provided in evidence by either party to assist in that regard.
In relation to evidence given by the Mother that goes to certain elements of family violence within the definition contained in section 4AB of the Act having been perpetrated by the Father, the Father denies that he “let myself into the Suburb G property without [the Mother’s] consent”[23] following separation.
[23] Father’s affidavit filed 16 May 2019, [138].
He denies the evidence of the Mother that on 30 May 2016 he grabbed the Mother by the neck and dragged her into their bedroom. In the Mother’s evidence relating to this incident in her trial affidavit, she deposes that the Father “grabbed me by the neck and dragged me into our bedroom and continued to choke me on the bed.” The Father’s evidence does not contain a denial of the Mother’s assertion that he “continued to choke me on the bed”, though his denial does indicate that he did not grab the Mother by the neck, and in that regard perhaps his denial includes a further assertion as it is described as a continuation of the asserted grabbing of the Mother by the neck.
The Father deposes that he is not willing to relocate to Town C as his employment, his family and his social circle are in Sydney.
The Father was cross-examined by Mr Cook and by Mr O’Brien, and I note the following from his cross-examination:
a)The interim order in relation to the Father undergoing a hair follicle test at the request of the ICL was made by the Court on 31 January 2019. The order included the provision “The Father provide no less than three (3) centimetres of hair for such testing, and the Father be restrained from taking any steps to interfere with the test result”.[24] The Father was in attendance at Court on the day the order was made by Judge Harper. The Father went from the Court to a barber and had a haircut on that day. By letter dated 12 February 2019 to the solicitors for the Father, the ICL referred to the order and requested that the Father undertake a supervised hair follicle test for the detection of illicit drugs and alcohol abuse by attending a pathology testing facility within 24 hours of the request.
[24] Orders of Judge Harper on 31 January 2019, [12](a).
The Father agreed that he did not attend within 24 hours of being made aware of the request, asserting that his failure to so attend was due to lack of funds. He did not attend until 8 March 2019. It was put to the Father by Mr Cook that he deliberately avoided having a legitimate drug test pursuant to the orders. The Father denied that assertion. The Father was then asked if he asserted that it was a coincidence that he had a haircut on the day the order was made restraining him from doing anything to affect the test result, and the Father responded “yes”. He was then asked if the reason he had a haircut (on that day) was that his hair was too long and that he did not look good, to which the Father again replied “yes”. He was asked if it was his assertion that he had forgotten that the order was made that day, to which the Father again responded “yes”.
b)The Father asserted that when the Mother moved with X to Town C on 30 June 2018 he was “shocked” and that it took him “by surprise”. It was put to him in cross-examination by Mr Cook that the Mother’s intention to move with X to Town C had been mentioned him on several occasions between April 2018 and the move. The Father was asked “are you sure that you did not know that the Mother intended to move to Town C?” to which he replied “yes”. He was referred to a patient report from the L Hospital at Suburb M in relation to an assessment conference attended by both of the parents and the X with specialist doctors on 23 May 2018[25] and to a section thereof which says
[25] Mother’s affidavit filed 10 May 2019, annexure [C].
X is the only child to [the Mother] and [the Father]. X’s parents are separated. He lives mostly with his Mother but still has regular contact with his Father. They are planning to move to Town C in the near future although unsure of exactly when yet.”
Elsewhere in the document under the heading “Management Plan” it says:
If X moves to Town C, parents can self-refer to N Centre on [telephone number] to access Early Intervention which would include speech and Occupational Therapy
The Father conceded that there were no separate interviews with the parties at the hospital on that day, that the whole session was conducted with and in the presence of both parents together.
c)The Father conceded that there had been a number of communications between himself and the Mother since April 2018 in which a proposal that the Mother move with X to Town C was mentioned. He was taken to a print of SMS messages between himself and the Mother occurring on 12 April 2018 and in particular to the following in an SMS from him “… Considering that you are in the process of moving ages away as well.” He was asked if the reference to “ages away” was a reference to Town C and he replied “yes”. He was also referred to a print of SMS messages been in between himself and the Mother occurring on 5 June 2018 and in particular to an SMS from him to the Mother “Maybe we should talk about trying to see what we can do for X about the speech care options. Perhaps you can talk to your dad, may be best for X and you to move after it. Moving is more $$$ for you.”
d)It emerged from the cross-examination of the Father by Mr Cook that the Father must have been aware of an intention expressed by the Mother to move her and X’s place of residence to Town C, but that he did not take the Mother seriously, asserting that she had also suggested she might move with X to Suburb BB. Nonetheless, it is clear on the evidence that at no time did the Father specifically agree to X’s place of residence being moved to Town C.
e)In cross-examination of the Father by Mr O’Brien, the Father conceded that the Mother had told him during June 2018 prior to her move that she had booked speech therapy for X at N Centre in Town C. He conceded that during his attendance with the Mother at the meeting with the specialist doctors at L Hospital on 23 May 2018, the Mother had made it clear that she intended to move to Town C. In this regard, the Father recalled that during that meeting, the Mother said “I plan to move to Town C” but that he did not agree with the move. It was put to the Father by Mr O’Brien that when the Mother booked X into N Centre in Town C, he must have known that the Mother was serious about moving to Town C, to which the Father responded “I didn’t think it would happen”. The Father also conceded that the Mother had told the Father of her intention to move to Town C prior to the meeting at the hospital on 23 May 2018.
f)It was put to the Father that on 14 June 2018, the Mother forwarded to him a copy of the Notice to Vacate the home in which she and X had been residing at Suburb G, that with that Notice was a request to him that he obtain a quote for cleaning the premises, and that the Notice to Vacate indicated that the Mother was required to vacate those premises by 30 June 2018. The Father acknowledged that he had received a copy of the Notice with that information, but when asked if he understood that it meant that the Mother would no longer reside at those premises past that date, he responded “I didn’t believe that, no.”
g)The Father was asked by Mr O’Brien how he proposed to parent X if, pursuant to final orders, X was living with him five days per week. Father responded:
Through my support system, through my flexibility at work at times that I have, through my Mother, the godparents, my extended … Through myself. I mean, he’s been left with me at a drop of a hat when it wasn’t forecast and he thrived in that environment, he had no issues and wasn’t crying for mummy at night.
The Father was asked if he thought it was expecting a bit much of X to live with his Father but not be primarily parented by his Father, to which she responded “no”. He was asked if he thought that X might struggle to adjust such to such a lifestyle change, to which he responded “no”.
The Father relied on an affidavit by his Mother, Ms V, sworn and filed on 11 January 2019. Her relevant evidence is as follows:
a)Both she and her husband, X’s paternal grandfather, “have a close and strong bond with X”.[26]
b)Both paternal grandparents assisted with the care of X while the Mother and as I was still living in Sydney including occasions of having sole care of X to mind him while his parents “went to the gym”[27] and when the Mother was “tired and needed a nap”.[28]
c)After the Mother and X moved to Town C, the paternal grandparents assisted the Father by attending on his behalf at changeovers at Town F on some occasions, despite “the long car rides [being] tiring”[29] and that “the time it took to get to Town F and then back to Sydney would cause [the paternal grandmother] to have back pains”.[30]
d)The paternal grandparents have assisted and continue to assist the Father in caring for X whilst he is spending time with him.
e)The paternal grandmother deposes that:
Should X be relocated to Sydney and reside with Mr Debono, I am more than willing to continue to assist him in the day to day care of X as I have been doing. I anticipate X will attend childcare for about 2 days per week and I am able to take care of X on days he does not attend childcare[31]
f)In cross-examination, the paternal grandmother was asked if she knew before the Mother moved with X to Town C that she was “looking to move to Town C?” to which she replied “Correct.”
[26] Affidavit of Ms V filed 11 January 2019, [6].
[27] Affidavit of Ms V filed 11 January 2019, [7](k).
[28] Affidavit of Ms V filed 11 January 2019, [7](g).
[29] Affidavit of Ms V filed 11 January 2019, [10].
[30] Affidavit of Ms V filed 11 January 2019, [10].
[31] Affidavit of Ms V filed 11 January 2019, [21].
The evidence for the Mother
The Mother affirmed a trial affidavit on 9 May 2019 and filed it that day. Her relevant evidence is as follows.
Between April 2016 and June 2018, while the parents were separated, X spent time with his Father pursuant to arrangement agreed between the parents from 6:00PM until 7:00PM each Monday, Tuesday, Wednesday, and Thursday, and from 3:00PM each Saturday afternoon until 4:00PM Sunday afternoon. On occasions, the Father’s time with X on weeknights would be extended until 9:00PM to allow the Mother to attend the gym or do some shopping.
The Mother asserts that during the parents’ cohabitative relationship, the Father would “frequently drink to excess, often returning home from a night out between 3:00AM to 10:00AM the morning after.”[32]
[32] Mother’s affidavit filed 10 May 2019, [16].
On some occasions, X was cared for by either or both of the paternal grandparents and on one occasion by his paternal aunt, Ms U.
From the time of X’s birth, the Mother has been his primary caregiver and they have a close and loving relationship.
The Mother asserts that X has “a developmental delay”.[33] This purported delay relates to his speech-related development, and that at an assessment at Region J Hospital on 4 March 2019, it was concluded that X has a “speech and language delay”[34] and was in need of speech and occupational therapy.
[33] Mother’s affidavit filed 10 May 2019, [23].
[34] Mother’s affidavit filed 10 May 2019, [24].
The Mother made enquiries of various speech therapy service providers in the Sydney area and ascertained that there would be a nine month waiting period before X could commence any therapy. Following the Mother’s move to Town C with X on 30 June 2018, X commenced attending speech therapy at the Town CC/Town C Hospital on 9 July 2018 at no cost.
The Mother deposes that from January 2018 when she formed an intention to relocate with X to the Town C/Town R area, she was
… extremely open, honest and transparent with [the Father] about my intentions to relocate with X, often showing [the Father] and his family images of the properties that I was interested in and/or applying for.[35]
[35] Mother’s affidavit filed 10 May 2019, [30].
She deposes that “[The Father] initially was amenable to X and I moving and voiced no issues with it, so long as he could maintain frequent time with X.”[36]
[36] Mother’s affidavit filed 10 May 2019, [30].
The Mother annexes as annexure C to her affidavit a copy of the report from L Hospital relating to the conference attended by both parents on 23 May 2018 and referred to the references therein, recited earlier in these Reasons, of her intention to move with X to Town C.
The Mother gives evidence of the occasions on which her proposal to move with X to Town C was referred to in SMS messages between she and the Father:
a)On 12 April 2018, when the Father stated “considering that you are in the processing [sic] of moving ages away as well”;[37]
b)On 5 June 2018, when the Father stated “Maybe we should talk about trying to see what we can do for X about the speech care options. Perhaps you can talk to your dad, may be best for X and you to move after it. Moving is more $$$ for you.”[38]
c)On 12 June 2018, when the Mother wrote “9 month waiting list for Suburb M. I get in straight away in Town C, no waitlist. For X.”[39]
d)The Mother deposes that the greater part of the communication between the parents regarding the Mother’s proposed move was verbal.[40]
[37] Mother’s affidavit filed 10 May 2019, [32](a), annexure [D].
[38] Mother’s affidavit filed 10 May 2019, [32](b), annexure [E].
[39] Mother’s affidavit filed 10 May 2019, [32](c), annexure [F].
[40] Mother’s affidavit filed 10 May 2019, [33].
On 9 June 2018, the Mother terminated her rental agreement with the landlord of the property in which she was residing with X in Suburb G. On 15 June 2018, the Father said to her “I wouldn’t bother spending any more money on moving if I were you”,[41] being, on the Mother’s evidence, the first time that the Father had indicated that “he was unhappy with the idea of me moving with X.”[42]
[41] Mother’s affidavit filed 10 May 2019, [37].
[42] Mother’s affidavit filed 10 May 2019, [37].
On 20 June 2018, the Mother was contacted by DD Mediation, and the parties engaged in a series of SMS messages on 21 and 22 June 2019 about mediation.
On 26 June 2018, the Mother sent the Father and email indicating that she was seeking to initiate a mediation through “Family Dispute Resolution”[43] and included the following:
I do not want you to feel like I am taking quality time with X away from you. I am, and will continue to encourage a great relationship between you and will do all that I can to help you get that quality time you need with him. I am willing to drive X back every weekend to spend Friday, Saturday and Sunday with you in the interim as we go through this mediation process and establish clear boundaries.[44]
[43] Mother’s affidavit filed 10 May 2019, annexure [I].
[44] Mother’s affidavit filed 10 May 2019, annexure [I] (original emphasis).
On 30 June 2018, the Mother moved to the Town C region with X.
The Mother deposes that there were four central reasons for her relocation with X to the Town C area:
a)First, that in relocating to Town C on 30 June 2018, X was able to have an appointment with a speech therapist on 9 July 2018 rather than have a waiting period of approximately 9 months in the Sydney area.
b)Second, that she needed to move to “a more affordable location”[45] in relation to the cost of renting a home “whereby I am not continually reliant upon [the Father] for rental contributions.”[46] At the Suburb G property, the rent was $1,800.00 per month. In Town C, she shares her rented home with her Father, Mr AA. The rent there is $400.00 per week (or $1,733.33 per month) but towards which they each contribute $200 per week.
c)Third, most of her support network live in the Town C region and they are able to assist her in caring for X, being her Father, with whom she and X reside, and her sister, Ms EE. She deposes that whilst her Mother lives in Suburb Y, her Mother has never been involved in X’s care and does not have time outside of her employment to offer assistance.
d)Fourth, she did not feel secure in the Suburb G property as she asserted that the Father would let himself into the home without her knowledge and consent and “would come over unannounced.”[47] This was denied by the Father.
[45] Mother’s affidavit filed 10 May 2019, [43](b).
[46] Mother’s affidavit filed 10 May 2019, [43](b).
[47] Mother’s affidavit filed 10 May 2019, [43](d).
The home occupied by X, the Mother, and the paternal grandfather is in Town R, 10 minutes drive from Town C. It has four bedrooms, two bathrooms, and two car spaces, with a large front and back yard in which X can play. The Mother compares this with the Suburb G property from which they moved, which was a two bedroom one bathroom unit with no front or back yard in which X could play.
X attends Town FF Early Foundations Day Care every Wednesday and attends upon a speech pathologist once a month at Town FF/Town CC Hospital. The day care is a one minute drive from the Mother’s residence and the hospital is a five minute drive from her residence.
The Mother gives evidence about the Father’s use of illegal steroids by self-injection in 2016. She says that when the Father was using in this manner “he would often become short tempered, and his demeanour became unapproachable and erratic.”[48] The Mother does not give any actual evidence of the Father’s steroid use going beyond 2016, but she expresses a concern that he is still using steroids to enhance muscle development.[49]
[48] Mother’s affidavit filed 10 May 2019, [55].
[49] Mother’s affidavit filed 10 May 2019, [53].
On 30 May 2016, the parties had an argument consequent upon the Mother having found out that the Father had been unfaithful to her. X was in bed at the time and was heard to cry, and so the Father “went to go and collect X.”[50] The Mother asked him to not do that. The Father continued toward X’s bedroom door. The Mother stood in the doorway to block him, and pushed him back when the Father attempted to get into X’s room. The Mother deposes that the Father
immediately grabbed me by the neck and dragged me into our bedroom and continued to choke me on the bed. Whilst he was doing this he was yelling and swearing at me. Following this incident, [the Father] left the house.[51]
[50] Mother’s affidavit filed 10 May 2019, [56].
[51] Mother’s affidavit filed 10 May 2019, [56].
In his affidavit, the Father denies that he grabbed the Mother by the neck and dragged her into the bedroom.
The Mother is unemployed and receives a single parent pension of $1,208.00 per fortnight. Whilst the Mother was still residing with X in the Suburb G property following the parties’ separation, the Father contributed $900.00 per month toward the monthly rent of $1,800.00.
The Mother asserts that between 2016 and 2017, the Father was paying her $500.00 per month as repayment of a debt owed by the Father to the Mother, in relation to moneys totalling $12,358.00 lent by her to the Father on 21 September 2015 for one of his motor vehicles. The Father does not dispute that the Mother assisted him in paying off a loan (though he deposes it was in an amount of $10,000.00), but he asserts that “whilst she was not working, the money I gave her, being $500, was to support X.”[52]
[52] Father’s affidavit filed 16 May 2019, [146].
The Father does not deny a second loan advanced to him by the Mother of $10,000.00, nor that he has not repaid that loan.[53]
[53] Father’s affidavit filed 16 May 2019, [147]; Mother’s affidavit filed 10 May 2019, [64].
The Mother deposes that she currently receives $500.00 per month as child support from the Father, which she commenced receiving after she moved to Town C.
Following the Mother’s move to Town C on 30 June 2018, she entered into an arrangement with the Father whereby each Friday afternoon, she drove X to Town F and met with either the Father or his parents for changeover. Accordingly, X spent time with his Father from Friday afternoons until about 5:00PM on the Sunday, when changeover would occur at the Town F Take Away Shop.
The Mother asserts that, as a consequence, the total time spent by X with his Father following the move to Town C doubled, compared to the time spent before the move. This arrangement was formalised by interim orders in these proceedings on 24 July 2018.
In relation to the Father’s evidence that he has had difficulty communicating with X since the move to Town C, the Mother deposes that she does her best to facilitate FaceTime calls between X and the Father, but that due to X’s young age, he sometimes does not engage with the call at all despite her encouragement.
Following the interim orders made on 24 September 2018, all changeovers for the Father’s time with X were to occur at the T Street, Suburb G property. The Father had made arrangements with the managing agent to retain the leasehold of that property as an option for the Mother to reoccupy if she returned with X to reside.
In consequence, the Mother drove from her residence at Town C to the Suburb G property at the start of the Father’s time with X on Friday, and did the same on Sunday at the end of the time. Of course, whichever parent is doing the travelling or sharing the travelling, X does all of the travelling. The Mother deposes that she:
…did not observe X to be uncomfortable, disruptive or upset during our drives to and from Sydney. We would often sing songs together or play games. For the majority of the travel time, X would be asleep.
The Mother’s motor vehicle is a Motor Vehicle 1 without a working air-conditioner, repair of which she deposes to be outside her financial capability. The Mother deposes that the cost of petrol and meals for undertaking all of the travelling has put a serious financial strain on her financial circumstances, and that the lengthy driving causes her chronic pain in her shoulders and neck and continuous flare-up of the sciatica condition from which she suffers.
On 20 November 2018, the interim orders were varied so that the time X spends with his Father was altered to alternate weekends from 6:45PM on Thursday until 6:00PM on Monday, with the Mother still doing all of the travelling to change over, but with the Father to provide $80.00 a fortnight to the Mother to assist her with the changeover costs.
This regime of time between X and his Father maintains the four nights per fortnight, though in one block of four rather than two blocks of two as per the previous interim orders. The Mother acknowledges that this regime will no longer be practical once X commences attending school if she remains living in the Town C region and the Father remains living in Region H Sydney.
X will turn five years of age in 2020 and will most likely begin his formal school attendance in kindergarten in 2021.
The Mother gives evidence that she has made enquiries and intends to enrol in a bridging course at Town C or City GG TAFE and then go on to university to complete a health care degree.
The Mother was cross-examined by Mr O’Sullivan, and I note the following from her cross-examination:
a)The Mother was cross-examined about her attendance at the HH Psychological Services with Dr JJ on 19 August 2017, with symptoms of anxiety and limited-symptom panic attacks and a panic attack occurring in about May 2017 “in which she has thoughts of harming her son but was very distressed by these thoughts and not wanting to act on them.” When asked why she did not give evidence of that consultation and the thoughts referred to in the consultation in her trial affidavit, the Mother responded that her mental health was not in question, and when it was asserted to her by Mr O’Sullivan that it was an “essential issue in the case”, she indicated that she was not aware.
b)The Mother agreed that following the Father’s statement to her on 15 June 2018, “I wouldn’t bother spending any more money on moving if I were you”, she was on notice that the Father did not agree to her relocating X’s place of residence to Town C.
c)The Mother was cross-examined as to why she felt the need to give notice to terminate the lease of the Suburb G property if the rent was not in arrears. She responded that the rent was not in arrears because the Father had assisted with payment, but that in doing so “he thought as he paid he could come and go as he pleased.”
d)The Mother was asked what assistance she would get from her sister, Ms EE, who lives at Town KK in the City of Region B area. She responded that Ms EE could assist her if she ever needed someone to watch X for a few hours while she went to the gym or went to the shops. She also gave evidence of her Father being available to look after X on such occasions.
e)The Mother said that the paternal grandfather had given up smoking.
f)The Mother was asked if she agreed that the move to Town C had put a lot of stress on X, to which she responded “No”. She was then asked if X is coping okay, to which she replied “Yes.”
g)The Mother was shown an Enrolment Form she completed for X’s attendance at Town FF Early Learning Centre and it was pointed out to her that the Father’s details had not been completed for “Parent 2.” When asked why the Father’s details were not so completed, she responded “no reason.” When asked if she thought that if X had a mishap at childcare, it was important that the staff have his Father’s details, she responded “yes.” That form was admitted into evidence as Exhibit A3.
h)The Mother was asked by Mr O’Sullivan “if his Honour makes an order that X is to live in Sydney and you are free to live wherever you like are you going to come back to Sydney?” After a pause of about 15 seconds, the Mother replied “Yes.”
i)The Mother was reminded that in cross-examination, the Father had indicated that he was prepared to engage providers of speech therapy for X in Sydney and to pay the costs of that therapy. She was asked in the event that the Court orders that X live in Sydney, would she be willing to participate with the Father and attending such speech therapy in Sydney with X. She responded “yes.”
j)The Mother was asked if she proposed to remain in Town C until X was 18 years of age, and she responded “I’d like to think so.”
k)It was pointed out to the Mother that, in her interview for the Family Report, she told the family report writer Mr Q that if she remained living with X at Town C, she was willing to maintain responsibility for all of the transport of X in relation to spending time with his Father. When asked what she thought of that proposal now, she responded “I think it’s fair and reasonable that we share the travel” and clarified that to mean either meeting halfway in Town F or doing one way each.
l)Mr O’Sullivan put to the Mother that if X were to engage in playing soccer on the weekends, but final orders were made for X to spend time with his Father every alternate weekend, he may not want to go and spend time with his Father so as not to let his team down. When asked what she would do in this situation, the Mother responded “encourage him to see his Father.”
The Mother was cross-examined by Mr O’Brien and I note the following from her cross-examination:
a)The Mother agreed that X has a good relationship with his Father and with his paternal grandparents.
b)The Mother was asked if she would have any problem engaging with the Father in relation making long-term decisions for X and she responded that she would always consider the Father’s opinions.
c)The Mother was asked if she considered that X was at any physical risk while in the care of his Father, and she responded promptly and affirmatively “No”.
d)The Mother was referred to the evidence of the Father, that after travelling from Town C to Suburb G, X is often very tired and irritable. The Mother gave evidence that she has not seen any sign of X being over-tired, grumpy or irritable at the end of such trips.
Mr Q addresses the possibility of X changing his circumstances by going to live with his Father in Sydney in paragraph (C) on page 12 of the Family Report, already quoted above:
This would represent a significant change for X as he has lived with his Mother for the greater part up to now and seems to share the closer attachment with her (although the Father contends this has arisen following the move and is due to their restricted time together since). If such a change occurs, it will be essential to maximise X’s time with Ms Callen as much as possible in order to counter expected separation issues.[114]
[114] Family Report, 12.
There is no detailing in the report as to what those “expected separation issues” are. The comments in the family report under the heading “Recommendation, if possible, as to appropriate parenting orders, having regard to the proposals for the child”[115] relate more to the wishes and views of each of the parents and their personal circumstances, rather than a concentration on the best interests of X.
[115] Family Report, 15.
When analysing the three possible scenarios for X presented by the competing proposals of the parents, Mr Q makes recommendations in relation to the amount of time X should spend with his non-live with parent, but does not give any analysis of the likely effect on X himself of each of the competing proposals.
During his cross-examination of Mr Q, Mr O’Brien asked for his opinion of X’s ability to adapt to a relocation back to Sydney. Mr Q answered that the move back itself would not be an issue, but the issue would be in relation to whether his Mother returns to Sydney with him or not. He said:
If she returned with him, it would not be a psychological issue for him. If the Mother does not return to live in Sydney with X and the bond between them is broken it would likely have more impact on X, his psychological and emotional routines would be broken. If the Mother comes back it is not a big issue. If the Mother does not come back it is more difficult to predict.
Mr O’Brien then asked Mr Q if the impact on X in that event would be a negative impact. Mr Q answered to the effect that if X goes to live with his Father, and his Father is not his primary attachment figure, then he would expect regressive behaviour and anxiety.
The Mother gave evidence that if the Court orders that X’s place of residence must be returned to Sydney, then she would return to Sydney and seek to have X live with her and spend substantial and significant time with his Father. An important aspect of the additional consideration of the likely effect on X of any change in circumstances is the effect on X of the effect on his Mother of being compelled to move back to live in Sydney – and, on the Father’s Application, not just in Sydney but “within a 15 minute car drive” of his area of residence – so as to remain X’s principal carer.
I find on the evidence that the Mother’s wish to relocate to the Town C/Town R region on the Region B of New South Wales was known to the Father through the first half of 2018. I find that he was aware that she was making investigations and inquiries about accommodation for herself and X and about the availability of the health and speech therapy supports for X in that area during the first half of 2018.
I find that the Father was aware of the concrete steps taken by the Mother in early June 2018 to surrender the lease of the Suburb G property and move with X to the Town C region, and that by his conduct and statements to the Mother, she reasonably inferred that he acquiesced to her move.
I find that the first time that the Mother was made aware of any element of opposition to the move by the Father was on 15 June 2018 when he said to the Mother “I wouldn’t bother spending any more money on moving if I were you.”[116]
[116] Mother’s affidavit filed 10 May 2019, [37].
I accept the reasons for moving given by the Mother, and I find that the Mother would be affected by feelings of intense frustration, resentment, and unhappiness in the event that she felt compelled to return to live within the area specified by the Father, or in the greater Sydney region generally, so as to maintain her day-to-day care of X.
There is a very real likelihood that in such event, the Mother’s reaction to relocating back to an area within 25 kilometres of the Father’s residence would have a detrimental effect on her ability to most effectively parent X, due to what would undoubtedly be feelings of unhappy helplessness in not feeling in control of her own life circumstances.
During the Father’s cross-examination by Mr O’Brien, the Father was asked why it was his case that the Mother should live in such proximity to Suburb G. He replied “It’s within a stone’s throw of me”, and when asked why the Mother needed to live within a stone’s throw of him, he replied “when X needed to go to hospital I had to drive for three hours to get there.”
In paragraph 58 of the Family Report, Mr Q notes:
Ms Callen reported feeling emotionally secure at Town C, and expressed concern at being forced to return to Sydney. Becoming tearful at the prospect she said she found it hard to contemplate …[117]
[117] ICL 2, [58].
Accordingly, I find that a change in X’s circumstances, whereby he either lives with his Father and spends two nights every second week per month outside of school holidays with his Mother, or lives with his Mother but such is required to be “within a 15-minute car drive of Suburb G, Sydney”, or even within 25 kilometres of the Father’s residence, will likely have a detrimental effect on X. This is due to:
a)Being suddenly separated for weeks at a time during the school term from his primary carer as contemplated in the first circumstance; and
b)The effect of the circumstances on his Mother’s ability to most effectively parent him, due to her state of unhappiness and frustration at her living circumstances.
Another of the additional considerations in section 60CC that is of particular relevance in this matter, and in matters generally where relocation is an issue, is section 60CC(3)(e) – the practical difficulty and expense of X spending time and communicating with the parent with whom he does not live, and whether that difficulty or expense will substantially affect his right to maintain personal relations and direct contact with both parents on a regular basis.[118]
[118] Family Law Act 1975 (Cth) s 60CC(3)(e).
I have outlined above the three scenarios in the competing proposals of the parties and the ICL. Only one scenario is not affected by practical difficulties and expense of X spending time with the parent with whom he does not live – the Mother relocating with X back to either “within a 15-minute car drive of Suburb G, Sydney”, per the father, or “within 25 kilometres of the Father’s residence”, per the ICL, spending Wednesday to Monday each alternate week with his Father until he starts school and thereafter living week about between his parents. The other two scenarios involve practical difficulties and expense in that the Mother would be living in Town C and the Father would be living in the Suburb G area of Sydney, with a drive of some two and a half to three hours in each direction for X when changing over between his parents – whatever the share of that travelling may be undertaken by each of the parents.
In reality, it is this that causes the controversy between the parents in relation to the relocation issue. The distance between their places of residence make it that much more difficult for each to spend the amount of time they wish to spend that X if he is living principally in the care of the other parent.
This becomes even more difficult once X begins school attendance, presumably in 2021, as he would, as a matter of his best interests, be attending a school closest to the residence of the parent with whom he lives and, accordingly, distant from the parent with whom he will spend time. This alone would restrict the Father’s regular time (that is, non-school holiday time) with X if he was living with his Mother to, at the most, from the end of school on Friday until the start of school on Monday, or sometime on Sunday evening, the latter of those being far more likely as it would enable the Father to return to Sydney for work on Monday.
The expense of this travel is a consideration, in that it affects the financial circumstances of each of the parents. Though on the evidence the Mother’s financial circumstances are considerably inferior to those of the Father – the Father being in full time paid employment whilst the Mother is in receipt of Centrelink benefits and contemplating undertaking a course of study – the Mother indicates through her proposed orders that she is able to undertake travel:
a)Whilst X is not yet attending school, by driving from her home to the Father’s home at the start of the Father’s time, for the purposes of delivering X to the Father (a round trip of approximately six hours); and
b)Once X commences school attendance, travelling from her home to the D Take Away Shop outlet at Town F and back at the start and at the end of the Father’s time with X (a round trip of approximately three hours each time).
It is not the practical difficulty and expense of X spending time and communicating with his parents and the effect of that difficulty and expense on parents as a matter of the convenience of the parents that is the focus of the consideration. The focus is whether the difficulty or expense will substantially affect X’s right to maintain personal relations and direct contact with both parents on a regular basis.
On both proposals that involve a distance between X’s place of residence and one of his parents – the Suburb G area of Sydney and Town C – X would be able to maintain personal relations and direct contact with both his parents on a regular basis. Both proposals involve an ability of X to spend time with the parent with whom he does not live on a regular basis, at least each alternate weekend from Friday to Sunday and for the greater part of each school holiday period.
Whilst the scenario proposed by the Father of the Mother returning with X to live “within a 15-minute car drive of Suburb G, Sydney” would not only eliminate the practical difficulty and expense of X spending time with his Father inherent in the other proposals, and allow for a five night block each alternate weekend during school term time, this consideration must be weighed together with the other relevant additional considerations in determining what is in X’s best interests.
I now turn to matters relating to X’s maturity, sex, lifestyle, and background (including lifestyle, culture and traditions) and his cultural connections through each of his parents.[119]
[119] Family Law Act 1975 (Cth) s 60CC(3)(g).
The Father was born in Country MM and came to Australia when he was four years of age. His extended family, including his Mother and step-father and younger brother reside with or close to him in Sydney. Naturally, the Father considers it important for X to continue to develop his familial ties with his extended paternal family, to have a growing awareness of his Country MM cultural background, and to have the Father’s family’s cultural practices passed on to him.
The Father considers it important for X to learn his Father’s native tongue of Language W. He also considers it important that X be involved in his paternal family’s Christian beliefs, grows up as a Christian, and participates in church and religious events. All of these things can be provided to X by his Father and his extended paternal family under any of the three scenarios in the competing proposals of the parties and the ICL.
This consideration can become a principal determinant of a child’s best interests in circumstances where, on one party’s proposal, the child will not have the opportunity for involvement in their cultural heritage with the other party, or where there is opposition by one party to a child being involved in cultural activities, religious practices, or second language matters important to the other party and/or important in terms of a child’s right to involvement in their own culture.
The Mother expresses no opposition to X being involved in any of the matters the Father expresses as being important in X’s upbringing in paragraphs 116 to 120 of his affidavit. In paragraph 57 of the Family Report, Mr Q notes:
The Mother did not think the Father’s religious views would pose future problems, declaring her support for X’s involvement in his faith. Neither did she consider the ancestral issue a factor, stating she expected the Father and paternal grandmother to share this aspect with the child as she gets older.[120]
[120] Family Report, [57].
I find that each of the parents has demonstrated and will almost certainly continued to demonstrate an appropriate attitude to X and the responsibilities of parenthood.[121] In the evidence, each of the parents indicate that they regard the other parent as having the capacity to provide for X’s needs including his emotional and intellectual needs. As with the discussion of risk earlier in these Reasons, I find that it is inherent in the competing proposals of the parties that each regards the other is having appropriate parenting capacity.[122] Similarly, it is inherent in the proposal of the ICL that she considers that each of the parents has appropriate parenting capacity. I find nothing in the evidence that would lead me to find otherwise.
[121] Family Law Act 1975 (Cth) s 60CC(3)(i).
[122] Family Law Act 1975 (Cth) s 60CC(3)(f).
The Mother asserts that there was physical family violence perpetrated upon her by the Father on or about 30 May 2016, about a month after the parents had begun to live separately and apart, though continuing to attempt to reconcile their relationship.[123] She says that she had just found out that the Father had been unfaithful to her, which led to an argument between the parties during which she heard X, who would have been five months old, begin to stir in his sleep and cry.
[123] Family Law Act 1975 (Cth) s 60CC(3)(j).
The Father began to go towards X’s room to pick him up, and the Mother told him not to. The Father told the Mother not to tell him what to do, the Mother ordered him to leave her home, but the Father continued to walk toward X’s bedroom door. The Mother says that she stood in the doorway, and when the Father attempted to get into X’s room, she pushed him back. The Mother says that when she did this, the Father grabbed her by the neck and dragged her into “our bedroom”[124] and continued to choke her on the bed.
[124] Mother’s affidavit filed 10 May 2019, [56].
The Mother says that while the Father was doing this, he was “yelling and swearing at me.”[125] She says that the Father then left the house.
[125] Mother’s affidavit filed 10 May 2019, [56].
The Father refers to the matter in his affidavit and says “I deny Ms Callen’s recollection of the events on 30 May 2016. I deny I grabbed her by the neck and dragged her into the bedroom.”[126]
[126] Father’s affidavit filed 16 May 2019, [144].
There is an inference in the Father’s evidence that he recollects that there was an incident between the parties on 30 May 2016 but, other than denying the actions asserted against him by the Mother, the Father does not give evidence of the events on 30 May 2016. Mr Cook did not cross-examine the Father about the Mother’s assertion of the family violence by the Father on 30 May 2016, and during his cross-examination by Mr O’Brien, he was asked if he was aware that the Mother had alleged that he had been “physical with her” and that she had alleged that “you threw her on a bed and choked her”. He answered “yes” to both questions, but those affirmations were that he was aware of the accusations, not that he agreed with the truth of what was being alleged.
The Mother dealt with the specifics of the incident, whereas the Father refers to the occasion, but only gives a blanket denial that the Mother’s recollection was correct, that he grabbed the Mother by the neck and dragged her into the bedroom, and without giving evidence of his version of the events of that day.
The paternal grandfather gives evidence in paragraph 12 of his affidavit that during a phone call between himself and the Mother on or about 30 May 2016 the Mother was “sobbing over the phone”[127] and said to him words the following effect:
Mr Debono and I had an argument. I think he’s cheating on me. Everything just blew up so quickly. We were yelling about him having an affair not being a responsible Father and before I knew it, he’d pushed me onto the bed and started choking me.[128]
[127] Affidavit of Mr AA filed 14 May 2019, [12].
[128] Affidavit of Mr AA filed 14 May 2019, [12].
I find that I prefer the evidence of the mother to that of the father in relation to the incident on 30 May 2016 due to the father’s evidence in cross-examination set out in paragraph 69 of these Reasons, reflected against the whole of the evidence. I find on the balance of probabilities that there was an incident of family violence perpetrated by the Father upon the Mother and occurring on 30 May 2016. I do not find that the occasion of family violence grounds any risk to X in his Father’s care.
No other incident of physical family violence by the Father is asserted by the Mother. The Mother asserts that the conduct of the Father toward her in attending at and entering her home at the Suburb G property uninvited and, on occasions, without her knowledge, caused her anxiety. An inference was raised on her behalf in submissions that this conduct also amounted to family violence in the nature of coercive and controlling conduct. I find that the evidence presented by the Mother in this regard is not sufficient for me to find that the Father’s asserted conduct amounted to family violence.
Happily, there have been no family violence orders involving the parents or X.[129]
[129] Family Law Act 1975 (Cth) s 60CC(3)(k).
After consideration of the primary and relevant additional considerations in section 60CC I find that it is in X’s best interests to live with his Mother.
Section 61DA – parental responsibility
I have found on the balance of probabilities that there has been family violence. That finding relates to one incident only of physical violence occurring on about 30 May 2016. However, under the terms of section 61DA(2) of the Act, that one incident of family violence is sufficient for the presumption that it is in X’s best interests for his parents to have equal shared parental responsibility for him as set out in section 61DA(1) not to apply.
Though the presumption does not apply, the Court must still make a finding in relation to parental responsibility for X, whether that be to leave the matter under section 61C, pursuant to which each parent has parental responsibility for X,[130] to make an order that one or other of the parents have sole parental responsibility, to make an order that the parents have equal shared parental responsibility, or orders apportioning parental responsibility between the parents.
[130] Family Law Act 1975 (Cth) s 61C.
Though the presumption does not apply, I find on the whole of the evidence that it is appropriate that the parents have equal shared parental responsibility for X. I am strengthened in that finding by the fact that each of the parents and the ICL propose that the parents have equal shared responsibility for X. Though the parents are completely at odds as to where X should live (more than with whom), they have shown that they are able to communicate and cooperate in co-parenting X. This is particular so in relation to the long-term welfare issues contemplated by equal shared parental responsibility, in relation to which they would be under an obligation to consult each other and make a genuine effort to come to a joint decision. Accordingly, I will make an order that they have equal shared parental responsibility.
Section 65DAA – equal time, substantial and significant time
As I make an order that the parents have equal shared parental responsibility for X, I am required by section 65DAA of the Act to consider whether X spending equal time with each of his parents would be in his best interests and consider whether X spending equal time with each of his parents is reasonably practicable. If it is both in his best interests and reasonably practicable, I must consider making an order to provide for X to spend equal time with each of his parents.
I consider that a preliminary to my consideration of X spending equal time with each of his parents is resolution of the central issue differentiating the competing proposals of the parties for the future parenting arrangements for X – whether he should remain living with his Mother in the place of her choosing, the Town C region, or should return to live with his Mother within a 15-minute car drive of Suburb G, Sydney (or within 25 kilometres of the Father’s residence) or, if his Mother does not return to live within that area, to live with his Father.
The last of these competing proposals can, in reality, be discounted on the basis of the Mother’s evidence that in the event an order is made requiring X’s place of residence to be relocated back to Sydney, even back to an area within a 15-minute car drive of Suburb G, Sydney, she will herself return and live within the required area so as to maintain her day-to-day care of X.
I have found that it is in X’s best interests to remain living with his Mother. That is not to say that if the parents were living within an appropriate proximity of each other, that finding of itself would rule out orders providing for an eventual transition to shared care. On the basis of my consideration of the relevant matters in section 60CC, some tending for a return of X to close proximity to his Father and others tending to it being in his best interest to remain living with his Mother in the area she chooses to live, I find that overall it is in X’s best interest to remain living with his Mother in the area where she chooses to live, the Town C region of New South Wales.
Principally, but not exclusively, I make that finding on the basis of the effect upon the Mother, and therefore upon X, of her feeling forced to move back to reside in an area either within a 15-minute car drive of Suburb G, Sydney or within 25 kilometres of the Father’s residence or indeed within the greater Sydney area, and upon my finding that X continuing to reside in the Town C area will not have such a detrimental effect upon the relationship between the child and his Father that it would lead to a diminution of their meaningful relationship or prevent that meaningful relationship further deepening and developing through regular contact.
Having made those findings, it then becomes obvious that X spending equal time with each of his parents in circumstances where his Mother resides in Town C and his Father resides in Sydney is not reasonably practicable. For example, consideration of where X might go to school comes to mind.
Accordingly, I do not need to consider making an order to provide for X to spend equal time with each of his parents.
I must now consider whether X spending substantial and significant time with each of his parents would be in his best interests and consider whether it would be reasonably practicable. If it is both of those things, I must consider making an order to provide for him to spend substantial and significant time with each of his parents.
If there was an absence of the tyranny of distance in the matter, I would find on the basis of my consideration of the matters in section 60CC that it is in X’s best interests to spend substantial and significant time with each of his parents, so as to enable him to spend time with each of them on days that fall on weekends and holidays, days that do not fall on weekends and holidays, to enable each of his parents to be involved in his daily routine, on occasions and events that are of particular significance to him, and to enable X to be involved in occasions and events that are of special significance to each of his parents.
However, in 2021, X will be starting school. With X residing in Town C with his Mother and his Father residing in Suburb G in Sydney the only way that it would be reasonably practicable for X to spend substantial and significant time with his Father is if his Father made himself available in Town C on occasions of significant events occurring there for X and made himself available in Town C to spend time with X on weekdays that are not part of the school holidays.
Given that the distance between Suburb G and Town C is not prohibitive of that occurring if the Father is able to take time from his employment for that purpose, orders can be framed to provide for X to spend time with his Father on alternate weekends and during school holidays in Sydney, or wherever the Father may choose to holiday with him, but also provide for occasions of the Father spending time with X over weeknights during school term if the Father is able to be in Town C for those occasions so that X can attend school each day without excessive travel.
In effect, that is providing for the Father to have substantial and significant time with X based upon the Father being given a choice in orders to spend extra time with X in Town C during the school week if he is able.
On that basis of ‘the option’ for the Father, I will make orders that provide for X to spend substantial and significant time with each of his parents.
I find that it is in X’s best interests to spend time with his Father each alternate week from 6:45PM on Wednesday until 6:00PM on Sunday or, at the Father’s option, 9:00AM on Monday, for the balance of 2020;
Thereafter, I find it is in X’s best interests to spend time with his Father each alternate week during school term time from 6:45PM on Friday until 6:00PM on Sunday or, at the Father’s option, the start of school on Tuesday if the Father stays over Sunday and Monday nights with X in the Town C region.
I find that it is in X’s best interests to spend time with his Father as proposed by the Mother, that is:
a)During the school holidays at the end of terms one, two, and three for the first 10 days of the school holidays in even-numbered years; and
b)For the last 10 days of the school holidays in odd numbered years; and
c)During the Christmas school holidays for the first half of those holidays in even numbered years;
d)For the second of those holidays in odd-numbered years.
I find that it is not in X’s best interests to be undertaking long car travel to pass between his parents on Christmas Day, and I will make an order that the parent who does not have care of him during the first half of the Christmas school holiday period spend time with him from 10:00AM on 26 December until 10:00AM on 28 December.
Other parenting matters
Both parents and the ICL seek orders relating to Father’s Day and Mother’s Day. Both the Mother and the ICL seek that X spend the whole of the weekend with the parent who is having the ‘day’. The Father seeks that if X is not already with that parent on the applicable weekend that he spend from 9:00AM until 4:00PM on the Sunday with that parent.
I find that it is in X’s best interest to provide that if he would otherwise be in his Father’s care on the Mother’s Day weekend, that he return to his Mother at 6:00PM on the Saturday, and even if he would not otherwise be in his Father’s care on the Father’s Day weekend that he be in his Father’s care from 6:00PM on Saturday until 6:00PM on Father’s Day.
The Mother does not seek any other orders relating to special occasions. The Father seeks specific orders in relation to the time X is to spend with each parent over the Christmas period, alternating between 9:00AM Christmas Eve to 3:00PM Christmas Day and 3:00PM Christmas Day to 7:30PM Boxing Day.
The ICL seeks similar orders with different start and end times, but including a changeover at 3:00PM on Christmas Day. I made a finding above in relation to the arrangement appropriate in X’s best interest for the Christmas period so that he is not undertaking long car travel on Christmas Day. The Father does not seek any other orders relating to any other special occasions.
The ICL proposes orders that deal with X spending time with each parent on his birthday. I find that it is appropriate to make an order as sought by the ICL, only on the basis that the parent who is not his carer at the time but is going to spend time with him collect him from and return him to the home of the parent who has care of him under the orders on the day.
The Father seeks an order that, in effect, the parent without the care of X have telephone or FaceTime communication with him every second day for a period of up to 30 minutes. As the time between X and his Father will be restricted once X starts school due to distance, I find that it is in X’s best interests to make an order that the Father communicate with X by telephone, FaceTime, or Skype each Tuesday, Thursday, and Sunday when X is not and has not been in his care on the day, at some time between 6:00PM and 6:30PM.
I find that it is in X’s best interests to make an order that the Mother may communicate with X by telephone, FaceTime, or Skype each Tuesday, Thursday, and Sunday when X is not and will not be in her care on the day.
The Mother proposes that until X starts school, changeovers occur by:
a)The Mother delivering X to the Father at the start of the Father’s time and the Father returning X to the Mother at the end of his time; or, in the alternative
b)That changeovers occur at Town F (the place therein is not specified).
Once X begins school, the Mother proposes that all changeovers occur at the D Take Away Shop outlet at Town F. The Mother proposes that a family member or godparent can effect a changeover in place of the parent.
The Father makes no specific proposal in relation to changeover. The ICL proposes that in circumstances where X remains living in Town C, the Mother deliver X to the Father’s residence at the start of his time and she collect X from the Father’s residence at the end of his time, thereby providing for the Mother to do all of the travelling on each occasion, and for the Father to pay to the Mother the sum of $80.00 per fortnight as a contribution toward her travel costs.
Given that the Father does not propose any specific changeover order in his Minute of Orders sought, I find that it is appropriate to have the parties or their nominees effect changeover on each occasion by meeting outside the D Take Away Shop outlet on E Street, Town F, thereby dividing the travelling between them. This arrangement has the added advantage of giving X, who does the whole trip, a break in his journey. There is a park across the road from where the D Take Away Shop is located.
Each of the parents and ICL seek orders restraining the parents from denigrating the other parent or any member of their families, and from discussing these proceedings or the parties’ relationship with X. I will make orders accordingly.
The Mother seeks an order that the Father be restrained from “consuming excessive amounts of alcohol within 24 hours of seeing”[131] X. The ICL seeks an order that each party be restrained, on a without admissions basis, from consuming alcohol “to the point of intoxication whilst so whether X is in their care.”[132] The Father seeks no similar order.
[131] Exhibit R2, 4.
[132] Exhibit ICL3, 2.
I have found that there is no risk presented to X, and that includes that there is no risk presented to X in relation to consumption of alcohol by either parent. I find that to consume alcohol to excess whilst X is in his or her care would be a demonstration of serious lack of parenting capacity by either parent. On whole of the evidence, I find that neither parent would so lack proper parenting capacity as to put themselves into that circumstance. I find that there is no need in the interests of X to make such an order.
Each of the parents and the ICL seek orders in relation to the exchange of information between the parents including health information concerning X and I will make the range of orders as sought to that effect.
The Father and the ICL both seek an order that both parents be entitled to attend any public or school, social, sporting or educational event involving X and that they each keep the other parent informed of such events in a timely manner and the arrangements relating to same. I will make an order to that effect.
The ICL proposes an order providing that if a parent wishes “to travel domestically with X”,[133] they must provide to the other parent four weeks notice of their intended travel and three weeks notice of the details of travel.
[133] Exhibit ICL3, 1.
In relation to either parent travelling with X inside Australia during their time together, I find that there is no need relating to X’s best interests to make an order requiring the travelling parent to give advance warning to the other parent. It would be both polite and good co-parenting practice to make the other parent aware of the details of any holiday trip proposed to be taken within Australia, but I do not propose to make an order making such notice compulsory.
The theory that such an order is good practice as it enables the stay-at-home parent to contact the travelling parent if an emergency arises has been overcome by the mobile telephone. If a parent is travelling in an area without mobile telephone reception, knowing that the parent is there in the place without telephone reception does not help anyway.
The Father proposes an order that each parent be at liberty to travel with X overseas during the period of time that X is in their care during school holidays, on condition that they give no less than 30 days notice of intention to travel and of the details of travel itinerary in writing. The Mother proposes an order that if either party wishes to “take the child out of New South Wales” they must give the other party four weeks written notice of the details of travel and itinerary.
In its plain terms, the order proposed by the Mother encompasses both interstate travel within Australia and overseas travel. For the reasons I have stated above, I do not propose to make an order that relates to interstate travel, but as both parents seek an order allowing for overseas travel I will make the order in the terms proposed by the Father.
Conclusion
I have found that it is appropriate for X to live principally with his Mother and to spend, so far as is possible in terms of the distance between his parents place of residence, substantial and significant time with his Father.
The issue of where X should live, as opposed to with whom he should live, was the main issue between the parties that led to the final hearing to which these Reasons relate.
With that issue resolved and the range of orders I have foreshadowed above having been made, I hope that these two very good parents, who both love their son very dearly, can return to harmonious co-parenting to the great benefit of X, and that any future failures to agree on parenting issues, or any adjustment to the parenting arrangements set out in the orders due to any change in either parent’s own arrangements, can be worked out between them amicably, with the assistance of a skilled family dispute resolution practitioner if necessary, and always with X’s best interests, not their own, as the paramount consideration.
I certify that the preceding two hundred and sixty-one (261) paragraphs are a true copy of the reasons for judgment of Judge Morley
Associate:
Date: 10 July 2020
Key Legal Topics
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Family Law
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Jurisdiction
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Natural Justice
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Procedural Fairness
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