Donalds & Donalds
[2024] FedCFamC1F 6
•12 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Donalds & Donalds [2024] FedCFamC1F 6
File number(s): MLC 11505 of 2020 Judgment of: BENNETT J Date of judgment: 12 February 2024 Catchwords: FAMILY LAW – CHILDREN – where mother relocates unilaterally with 18-month-old child and whilst pregnant with the second child to a location hundreds of kilometres from the family home – where orders were made for her to return following the birth of the second child – where mother prosecutes three appeals unsuccessfully but secured a stay of orders for her return – where COVID-19 restrictions also precluded movement between states so that mother was not required to return children and mother and children remained in City D.
FAMILY LAW – CHILDREN – where the children had resided with mother in City D for such a significant period of time, by the time the matter came on for final hearing, that it was not practicable or in the children’s best interests to make the mother return the children to Melbourne.
FAMILY LAW – CHILDREN – where mother makes very serious allegations of family violence – where mother fails to understand importance of the children having a meaningful relationship with the father – where the Court does not accept the mother’s allegations of family violence perpetrated against her – where the Court accepts allegations of family violence perpetrated by the father against step-son – where Court is satisfied it is in the best interests of the children to have a meaningful relationship with the father notwithstanding possible opposition to same by mother.
FAMILY LAW – CHILDREN – where maternal grandmother intervenes in proceedings but ultimately does not seek any specific orders – where both parents opposed maternal grandmother’s application - where her application is dismissed without any orders being made.
FAMILY LAW – CHILDREN – where time spent between children and father should be as easy and accessible as possible – where supervision of time is dispensed with – where various restraints ordered including restraints on maternal grandmother being at or near time spent or electronic communication.
Legislation: Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011
United Nations Convention on the Rights of the Child 1990
Cases cited: B & B: Family Law Reform Act (1997) FLC 92-755
Donalds & Donalds [2020] FCCA 3604
Donalds & Donalds (first day) [2021] FamCA 521
Carter & Wilson [2023] FedCFamC1A 9
Martin & Payne [2017] FamCA 1041
Division: Division 1 First Instance Number of paragraphs: 325 Date of last submission/s: 6 November 2023 Date of hearing: 4, 5, 6, 7 and 8 October 2021, 18, 19 and 20 October 2021, 25 May 2022 and 18, 19 20 and 22 July 2022 Counsel for the Applicant: Mr Chislett Solicitor for the Applicant: Pentana Stanton Counsel for the First Respondent: Mr Devries Solicitor for the First Respondent: MMH Lawyers Counsel for the Second Respondent: Litigant in Person Counsel for the Independent Children's Lawyer: Mr Turner Solicitor for the Independent Children's Lawyer: Nicholes Family Lawyers ORDERS
MLC 11505 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR DONALDS
Applicant
AND: MS DONALDS
First Respondent
MS GREGG
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BENNETT J
DATE OF ORDER:
12 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The parents have equal shared parental responsibility for the children X born 2019 and Y born 2021 (“the children”).
2.The children live with the Mother.
3.The Mother provide the father with not less than 60 days’ notice in writing if she proposes to relocate the residence of the children (or either of them) from Region C of New South Wales.
4.There be no order for the maternal grandmother to spend time or communicate with the children with the effect that the maternal grandmother does not have any enforceable rights to spend time or communicate with either or both of the children.
5.Each parent keep the other parent informed at all times of their residential address, postal address, email address, and telephone number for necessary communications and advise the other of any changes thereto not less than 24 hours prior to any change.
6.Save for in the case of an emergency, the parents communicate with each other in writing, by text message or email, regarding parenting matters.
7.The children spend time with the father as follows:
(a)for up to three (3) consecutive or non-consecutive days for six (6) hours at times to be agreed between the parents in writing, and failing agreement, from 10.00am to 4.00pm;
(b)for up to three (3) consecutive overnight periods from 10.00am on the first day to 4.00pm on the second day, and for the same times on the second and third overnight periods;
(c)after completion of time as set out in sub-paragraph 7(a) and at least one period of overnight time pursuant to sub-paragraph 7(b) hereof, from 3.00 pm on Friday to 3.00 pm on Sunday, or, if Monday is a public holiday, to 3.00 pm on Monday such time to be not more frequent than once per fortnight;
(d)Commencing 1 January 2026;
(i)the children continue to spend time with the father in accordance with paragraph 7(c); and
(ii)for one week in Melbourne, City D, Sydney or City LL as agreed between the parents during each school term holidays and, failing agreement, the first week, commencing the conclusion of school on the last school day of the term until 12pm on the middle Saturday at whichever of the four destinations the father choses; and
(iii)for one-half of the long summer school holidays with the father to have the first half in 2025 and each alternate year thereafter and the second half in 2026 and each year thereafter.
8.For the purpose of calculating one half of the long summer school holiday, and having regard to the operation of paragraph 14 of this Order in relation to Christmas Day, the first half of the holidays shall commence at 3:00 p.m. on 1 January and conclude at 3:00 p.m. on 14 January and the second half shall commence at 3:00 p.m. on 14 January and conclude at 3:00 p.m. two days prior to the commencement of school or on 28 January, whichever is the later.
9.All references in this Order to “school holidays”, “term school holidays”, “the commencement of school” or “conclusion of school” and “school term” are a reference to those days as gazetted for the school at which X attends and, until such time as X commences at school, be the dates gazetted by the New South Wales government.
10.The father give the mother fourteen (14) days’ notice in writing of what dates he seeks to spend with the children in accordance with paragraphs 7(a)-7(d)(i).
11.In the event that dates nominated by the father pursuant to paragraph 7 of this Order conflict with a commitment which the children (or either of them) have, the father be at liberty to take the children to the activity or event or to request the mother to cancel or postpone the arrangement.
12.For the purpose of the father electing whether or not he wants to take the children (or either of them) to the other commitment which falls during the father’s time:
(a)within 24 hours of the mother knowing that there is a clash between time to be spent with the father and a commitment of one or both of the children, the mother provide the father with full particulars of the event or activity in writing;
(b)the father inform the mother in writing within 48 hours of receipt by him of notice pursuant to sub-paragraph 12(a) of this Order whether he will take the children (or either of them) to the event or activity or whether the commitment should be cancelled. It the commitment is to be cancelled, as between the parents, the mother is responsible for cancelling the commitment.
13.Each parent will ensure that the children are not enrolled in any activity that occurs during regular time spent between a parent and the children unless the enrolling parent first obtains agreement from the other parent in writing cause the child to be enrolled in that activity and if that extracurricular activity occurs during the spend-time of the other parent, then that parent may attend the extracurricular activity with the child to the exclusion of the other parent.
14.The spend time provided in paragraphs 7(a) to (c) and 7(d)(i) be suspended during school holiday periods and on special occasions and unless otherwise agreed in writing and the children spend time with the father or remain in the care of the mother as follows:
(a)the children spend time with the father from 3.00pm on 22 December to 3.00pm on 26 December commencing 2024, and for those dates and times each alternate year thereafter;
(b)the children spend time with the mother from 3.00pm on 26 December to 3.00pm on 1 January 2025 and for those dates and times each alternate year thereafter;
(c)the children spend time with the father in accordance with 7(a) or (c) on the weekend of Father’s Day;
(d)the children remain in the care of the mother on the weekend of Mothers’ Day.
15.Failure by the father to attend Region C for the purpose of a scheduled visit is not in contravention of this Order provided the father gives the mother notice of his inability to attend, in writing, a minimum of fourteen (14) days prior to the commencement of time.
Changeovers
16.Unless otherwise agreed in writing, and subject to paragraph 17:
(a)if time with the children is connected with the commencement or conclusion of school, changeover is to occur at the school attended by X;
(b)otherwise, at the seating area for the McDonald’s Family Restaurant located in the MM Shopping Centre, NN Street, City D NSW.
17.If one parent requests that changeovers occur at a children’s contact centre in lieu of the premises referred to in the preceding order, then the parents do all acts and things necessary to apply for the family to be accepted into the children’s contact centre for changeovers only at the children’s contact centre situated closest to the mother’s residence and, until a place becomes available for the family at that children’s contact centre, changeovers continue at the locations provided for in paragraph 16 of this Order.
18.The parents do all acts and things to ensure each parent is entitled to attend all school events which parents are normally invited to attend, including but not limited to special assemblies, awards presentations, parent-teacher interviews, etc, with prior notice provided to the other parent.
19.The parents do all acts and things to ensure each parent is entitled to receive from school or extracurricular activities, at their own expense, all documents normally received by a parent including but not limited to memorandum, newsletters, school report and photo order forms.
20.For the avoidance of doubt, paragraphs 7 to 19 above continue to be in force if the father relocates to Region C, subject to any agreement in writing between the parents.
Audio-visual communication
21.The parents do all acts and things necessary for the children to communicate with the father by way of audio-visual communication for fifteen (15) minutes every second day or as otherwise agreed and failing agreement on Tuesday, Thursday and Saturday from 6:00pm to 6:20pm.
22.The mother facilitate audio-visual communication between the children and paternal family at the request of the father on up to six (6) occasions each calendar year.
23.When the children are spending overnight time with the father, the father facilitate audiovisual communication between the children and the mother each day for between five (5) and ten (10) minutes or as otherwise agreed.
24.Either or both of the parents are at liberty to record the communication sessions provided that the children are not to be aware that they are being recorded.
Costs of spending time
25.The father be, and is hereby, responsible for the costs of travel between his residence in Melbourne and City D and for the reasonable cost of accommodation for overnight time spent. However, the father is entitled to make application to the Child Support Agency to have costs of spending time factored in to his liability to pay child support.
Health
26.The mother provide a copy of any report by a medical practitioner or allied health professional about either or both of the children to the father promptly on receipt.
27.In the event that the children (or either of them) sustain any illness or injury requiring treatment at a hospital or treatment by a medical practitioner whilst in the father’s or mother’s care (as the case may be), that parent will inform the other parent of that fact as soon as possible and in any event, within 2 hours.
28.Within seven (7) days of these Orders, each parent provide authorisation from any treating doctor or treating medical personnel to discuss with the other parent the child’s diagnosis, prognosis and treatment and both parents be entitled to be in attendance at the time of such treatment.
29.Within seven (7) days of these Orders, the parents are to ensure that the other is listed as an emergency contact person with any school, playgroups or extra-curricular activities at which one or both of the children attend.
Restraints
30.Each parent is hereby restrained from entering the other parent’s residence or being within 100m of the other’s residence (or the father’s temporary address when he visits City D) without the prior consent in writing of the other parent or as is provided in this Order.
31.The second respondent maternal grandmother be, and is hereby, restrained from entering the father’s residence or being within 100m of the father’s residence (or the father’s temporary address when he visits City D) without the explicit consent in writing of the father.
32.The second respondent grandmother be restrained from spending time with the children for 24 hours prior to any face-to-face time spent between the children and the father unless otherwise agreed between the parents in writing.
33.The second respondent grandmother be restrained from attending at changeovers for time spent and from being in the vicinity of the children during electronic communication between the children and the father.
34.Without admission for the necessity of the same, the parents by themselves, their servants and agents be and are hereby restrained by injunction from:
(a)drinking alcohol to excess whilst the children are in their respective care, or for any period up to 24 hours before the children are in their care;
(b)exposing the children to any person intoxicated by alcohol;
(c)denigrating the other or their partner or family to, or within, the presence of the children;
(d)discussing allegations and evidence in this proceeding with or in the hearing or presence of the children or allowing any other person to do so; and
(e)allowing the children to come into contact with or read the contents of any material filed in these proceedings or related to these proceedings in any way or allowing any other person to do so.
35.Both parents be and are hereby restrained by injunction from applying for and/or renewing passports for the children or either of them without first obtaining the prior written consent of the other parent or an order of the Court.
36.All parties be and are hereby restrained from removing or taking the children (or either of them) outside Australia without prior written consent of the other parent or an Order of the Court.
Other
37.The parents be permitted to provide a copy of this Order to the children’s respective schools and treating medical and allied health practitioners.
38.The Independent Children’s Lawyer cause a copy of these reasons for decision to be provided to Professor OO and Mr F and Mr B.
39.The Independent Children's Lawyer be discharged at the expiration of the Appeal period if no Appeal has been filed.
40.The mother cause the following to be provided to any psychologist treating the children and copy in the father on the relevant correspondence:
(a)a sealed copy of the reasons for judgment dated 12 February 2024;
(b)the Family Reports of Mr F dated May 2021 and August 2021; and
(c)the Psychiatric Report of Professor OO dated 24 November 2021.
41.Pursuant to s.65DA(2) and 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
Liberty to apply
42.If a further parenting application or an enforcement or contravention application is filed before 1 February 2026, the applicant and/or the respondent are at liberty produce a copy of this Order to request that the application be listed before me as soon as possible for directions or, in the event that I am not reasonably available, to Judge Stewart, Division 2 of this Court.
43.Liberty is reserved to each parent to apply in relation to implementation and enforcement of this Order.
End of proceedings
44.The maternal grandmother’s application in a proceeding dated 27 July 2021 is dismissed.
45.All other extant applications be dismissed and the matter be removed from the list of cases awaiting determination in the docket of the Honourable Justice Bennett.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BENNETT J
INTRODUCTION
These parenting proceedings are between the father, the mother and the maternal grandmother and concern X born 2019 (4 years old) and Y born 2021 (3 years old) (together “the children” or “the boys”).
The hearing took place over 13 days in October 2021, May and July 2022 with the parents providing an update of factual matters in November 2023 (hereafter the ‘November 2023 Update’).[1] The second respondent grandmother was invited to provide updated facts but declined to do so. She received the updated facts submitted by each parent. No parties sought to cross-examine on the November 2023 Update.
[1] The updates were collated by the Independent Children’s Lawyer and I mark the covering email and attachment received by my Chambers on 6 November 2023 Exhibit C2. I mark the first four pages of that document, being the father’s responses, F8. I mark pages five to 12 of that document, being the mother’s responses, M12. I mark the final two pages, being an email chain between the maternal grandmother, the mother’s solicitor, and the Independent Children’s Lawyer GM2.
Although the hearing was truncated, the November 2023 Update provided by the parents satisfy me that the delay has permitted the parents to come to an agreement as to one period of time to be spent between the father and the boys in City D that might not have been compellable merely by orders of the Court had such orders been made when their cases were closed in July 2022. The November 2023 Update is uncontroversial and provides a positive base on which to construct parenting arrangements for the children.
PROCEDURAL BACKGROUND
The mother and father (the “parents”) are members of a religious group. The father converted to the religion when he was twenty-five and met his first wife through the community when he was twenty-seven. They were married for two years and did not have any children. She passed away from an illness. He met his second wife through the religious community and they were married for eighteen months. They had no children and he admitted he does not know why she ended the relationship.
This is the mother’s first marriage. Her first child, Mr B was born in 1998 when she was 17 years old. Her parents assisted her in his upbringing. Mr B believed his grandparents were his parents and the mother was his sister until he was approximately 10 years of age. According to the maternal grandmother, Mr B learnt of his mother’s true status when the maternal grandfather told him in anger or frustration. I will return to the mother’s treatment of Mr B’s paternity below. When the mother was 27, the mother returned to the religion in which she was raised. Mr B had no relationship with his biological father and lived with his mother and maternal grandfather in New South Wales prior to the marriage. Thereafter, Mr B lived with his mother and the father.
The parents married in 2012.
X and Y are the only children of the relationship between the mother and the father and were conceived with the assistance of in vitro fertilisation (“IVF”).
The parents separated on 16 October 2020 when the father was excluded from the family home by an ex parte interim Intervention Order obtained by the mother against him on behalf of herself and X. Within a day or two the mother left the family home in Suburb CC, Melbourne. The mother took X unilaterally and unbeknownst to the father to City D in Region C of New South Wales. The mother was raised in City D within the religious community. Members of her family still reside in City D. City D is a city in New South Wales several hours’ drive from Melbourne.
At the time of relocation, the mother was pregnant with the couple’s second son, the couple’s first son, X, was 18 months old. Mr B was 22 years old and no longer living with the mother or father.
On 22 October 2020 the father promptly commenced proceedings in the Federal Circuit Court (as it then was) seeking that the mother forthwith return X to Melbourne, that there be equal shared parental responsibility for X and for there to be gradually increasing time eventuating in a week-about care arrangement. It is his case, in the documents that he filed at that time, that the father was very involved in X’s care and ultimately, he would like, in due course, equal shared care of X. The father asserts he has a warm and loving relationship with X. The father strenuously denied there was any basis for the Intervention Order and denied all allegations of violence, abuse, intimidation and coercive or controlling behaviour.
The father’s application was first returnable on 4 November 2020. On 3 November 2020, the day prior to the first return the mother alleged, for the first time, that the father had raped her four years prior. In her cross-examination on 18 October 2021, the mother alleged five other occasions of rape. In late 2020, the mother went to New South Wales Police and made a report of the alleged rape in late 2016. In that police report the mother further alleges the father barged into her when she was pregnant on two occasions in 2020, post separation, the father was trying to stalk her through contacting her niece, Ms H. The mother said the timing of the police report to police was coincidental, and late 2020 was the first time she had left home due to COVID‑19 isolation restrictions.
On 4 November 2020, Judge Carter, as her Honour then was, made an Order requesting the appointment of an Independent Children’s Lawyer and further requiring that the parties attend a s11F appointment for a Child Dispute Conference. Nicholes Family Lawyers were appointed as Independent Children’s Lawyer.
On 30 November 2020, the mother filed a Response to the application initiating proceedings seeking sole parental responsibility of X, and that the father only have short periods of electronic communication with him. The mother sought that she be permitted to remain resident in New South Wales with X, the father be psychiatrically assessed, undergo a Men’s Behaviour Change Program and partake in an anger management course. She sought mutual non‑denigration orders and that she keep the father informed of X’s health and wellbeing with the father at liberty to contact any medical or allied health professional regarding X.
Interim orders were made on 21 December 2020 by Judge Carter for, inter alia, the mother to return to Melbourne by 31 March 2021. Her Honour also Ordered that within 24 hours the mother provide to the father and the Independent Children’s Lawyer, via email, the following information:-
(a) the name and address of her treating doctor and any medical specialist who is currently treating her; and
(b) her birth plan, including the name and address of the hospital where she intends to give birth to the parents’ second child.
The mother failed to advise the father of her birth plan or where she would be confined. Y was born in 2021. The father was not told of the birth of Y until 5 days later and did not meet him face to face until mid-2022. The mother’s exclusion of the father from Y’s life is discussed below.
The mother filed a Notice of appeal of the orders of Judge Carter on 18 January 2021.
The mother filed an application for a stay pending appeal of the order requiring her to return X to Melbourne on 8 February 2021 which was heard on 2 March 2021 and granted on 11 March 2021.
On 1 April 2021, Judge Carter made further interim orders staying the return of the mother to Melbourne until June of that year due to COVID-19 border restrictions and dismissing the mother’s oral application that the proceedings as a whole be stayed “pending the determination of whether the Federal Circuit Court of Australia has jurisdiction to hear parenting matters be dismissed”.
The mother’s first Notice of appeal was dismissed by Justice Strickland on 8 April 2021. Her second Notice of appeal filed 29 April 2021 was dismissed on 8 July 2021.
The mother’s s 102NA solicitor, Ms PP, filed a Notice of Intention to Withdraw in the primary proceedings on 1 April 2021. On 3 June 2021 QQ Lawyers were appointed for the mother and on 13 August 2021 the mother was re-allocated to MMH Lawyers through the s 102NA scheme.
The mother then filed an appeal against the orders of Judge Carter of 1 April 2021 dismissing her oral application for determination of the Court’s jurisdiction to hear parenting matters.
A s62G Family Report was prepared by Mr F, a Regulation 7 Family Consultant (Family Report writer). It was published in May 2021.
A further Notice of appeal was filed 7 July 2021 (amended 30 July 2021). This third appeal was expressed to be “a conditional appeal made under duress, on the grounds that the court is able to establish Jurisdiction and/or Authority”.[2] The mother’s third appeal was dismissed on 17 August 2021.
[2] Donalds & Donalds [2021] FamCA 521 [37].
On 9 June 2021 the matter was transferred from Judge Carter to the Family Court of Australia (as it was then known) and allocated to me. On 15 July 2021 I delivered ex-tempore reasons for judgment on preliminary issues.[3] Those reasons go into some detail as to the history of proceedings.
[3] Donalds & Donalds [2021] FamCA 521.
On 21 July 2021 the maternal grandmother filed an application in a proceeding seeking time with the children and for the mother to remain in City D. The maternal grandmother is 71 years old and lives in Suburb RR, New South Wales (about five minutes’ drive from the mother). She has contact with the children almost every day. She stated to the Family Report writer that she is representing the entire maternal extended family in City D and the surrounding area who are available to support the mother and the children.[4] The Court does not accept the second respondent’s representation of anyone but herself. Both parents opposed the orders sought by the maternal grandmother.
[4] Family Report of Mr F dated 6 September 2021 [40].
The s 62G update Family Report was ordered on 27 July 2021 in order to include the maternal grandmother. It was published by Mr F in September 2021.
The father remained living in Melbourne. The mother forestalled orders that required her to return to Melbourne with X with the three unsuccessful appeals and a stay order. She is still living in City D.
Y was born in 2021. The mother named Y without any reference to the father. Initially the mother would not permit the father to see Y, even on the video calls. Eventually, orders by Judge Carter expressly included Y in the electronic communication. Their first video contact was on 10 June 2021. The father did not meet Y face to face until 20 June 2022. This visit, detailed in the father’s affidavit filed 27 June 2022, was of 30-minutes in duration on 20 June 2022 followed by an hour visit on 21 June 2022. The father also saw X for two hours on each day. The June 2022 visit was supervised by a friend of the mother with the paternal grandmother was also present. The father next visited the children for three supervised visits across three days in August 2023. The children currently have audiovisual communication with the father every second day for not less than 20 minutes.
The final hearing was set down to commence on 4 October 2021 and eventually proceeded by the Court’s Microsoft Teams Platform during Victoria’s sixth lockdown.
The defended hearing proceeded over 13 days being 4, 5, 6, 7 and 8 October 2021, 18, 19 and 20 October 2021, 25 May 2022 and 18, 19, 20 and 22 July 2022. The last submissions were received on 6 November 2023. Mr Chislett of counsel appeared for the applicant father; Mr Devries of counsel appeared for the respondent mother. The maternal grandmother, Ms Gregg, appeared on her own behalf and Mr Turner of counsel appeared for the Independent Children’s Lawyer. The mother’s and father’s legal representation were pursuant to s 102NA of the Act. On the final day of the hearing, counsel for the mother explained that the mother’s case had not been prepared and conducted in a manner that counsel and instructing solicitors ‘would have liked’. Mr Devries was briefed two working days before the first day of the defended hearing. However, no indulgence or adjournment was sought. The Independent Children’s Lawyer is in receipt of legal aid.
During the first part of the hearing in October 2021, the mother gave evidence that she kept diaries. The diaries were produced and released for inspection. The court time originally allocated for the hearing was exhausted by 20 October 2021 and it was necessary to adjourn the matter, part heard, for some time. It was agreed that, in the meantime, a private psychiatric assessment would be undertaken by Professor OO. The father paid for the report. Professor OO conducted her assessment interviews and released a report dated 30 November 2021. The report is annexed to an affidavit sworn on 24 May 2022.
The second and third tranches of the hearing took place in May 2022 and July 2022. By the end of May 2022, the parties were in a stalemate. There had been through examination about the extent to which the mother and children could be supported if they returned to Melbourne. This would have been financed largely by the paternal grandmother. However, the mother still wanted to be as far away as possible from the father and contemplated moving only to the other side of the border so she could return to City D easily. The father’s case was that he was unable to move to City D because he could not relocate his business. He is self-employed. He also considered that the local community in City D would have been hostile to him given the number of family members of the mother that reside in the area. The experts Mr F and Professor OO were cross-examined in the July sittings. After the expert evidence, the parties were still in stand-off mode, it being a recurrent theme of Professor OO’s evidence that each parent had a fixed, intractable position. There was no apparent way for a meaningful relationship between the children and the father to be established. I reserved the decision.
Since mid-2022, the father has married again. The mother has not repartnered.
THE LAW IN RELATION TO PARENTING
These proceedings are brought under Part VII of the Family Law Act 1975 (Cth) (“the Act”). Pursuant to s 60CA, in deciding to make any parenting order in relation to the children, I must regard the children’s best interests as the paramount consideration.
The maternal grandmother made an application for parenting orders. She is entitled to do so, pursuant to s 65C(ba) of the Act, which provides that grandparents have a right to commence proceedings. It is for the grandmother to satisfy the Court that it is in the best interests of the children to make the orders that she seeks. The maternal grandmother sought orders that operate between the mother and the father as opposed to orders that operate between herself and the mother or the father. Her participation was somewhat disruptive to the proceedings, but I formed the view that it was preferable to deal with her application as part of these proceedings than for the parents to have to face further proceedings initiated by the maternal grandmother after the conclusion of these proceedings.
Section 60B of the Act defines the objects of Part VII as to “ensure that the best interests of the children are met” by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
These objects are the core values of the legislation.
The principles which underlie the objects are more specific but not exhaustive. They are that, except when it is or would be contrary to the child’s best interests:
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60B(4) of the Act provides that an additional object is to give effect to the United Nations Convention on the Rights of the Child[5] (“the Convention”) to which Australia became a signatory on 22 August 1990 and which entered into force for Australia on 2 September 1990. The four core principles of the Convention are:
(a)non-discrimination;
(b)devotion to the best interest of the child;
(c)the right to life, survival and the child’s full development — physically, spiritually, morally and socially; and
(d)respect for the views of the child - that children have a right to have their say in decisions which affect them and to have their opinions taken into account and have a right to participate fully in family, cultural and social life.
[5] Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).
Reference to the Convention as an additional object under the Act when s 60B(4) was inserted under the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011, some 21 years after Australia signed the Convention. The principles of the Convention are implemented as core values of our legislation rather than as provisions which create specific justiciable rights and responsibilities for individuals.
The significance of an object of the legislation being to give effect to the Convention, is that it provides a basis to interpret the Act within the context of international human rights principles (including the Convention) to the extent that is compatible with the express intention evinced in the legislation. However, an object does not give any legally enforceable rights to children[6] and is unlikely to be of great value in the adjudication of individual cases. [7]
[6] Re: B & B: Family Law Reform Act (1997) FLC 92-755, 84,233.
[7] Ibid 84, 220.
Section 65D of the Act provides that, subject to some associated provisions to which I will come later in these reasons, the Court can make such parenting orders as it thinks is proper.
In determining what is in a child’s best interests, the Court must have regard to primary considerations and additional considerations in light of the objects and principles in s 60B of the Act.
The primary considerations for the court are set out in s 60CC(2) and are described as follows:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
I am required to give greater weight to the need to the protect child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.[8] The mother makes extensive allegations of family violence perpetrated by the father against her and X. I will discuss these below.
[8] Family Law Act 1975 (Cth) s 60CC(2)(b).
Additional considerations are set out in s 60CC(3) of the Act. I need only have regard to the additional considerations which are relevant. Finally s 60CC(3)(m) of the Act requires me to take into account ‘any other fact or circumstance that the Court thinks is relevant’. This ensures that the infinite variety of individual children’s circumstances can be addressed.[9]
[9] Re: B & B: Family Law Reform Act (1997) FLC 92-755.
Parental responsibility in relation to children means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[10] Equal shared parental responsibility relates to decision making about ‘major long-term issues’, which is defined in s 4 of the Act as follows:-
…issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:
a) the child’s education (both current and future); and
b) the child’s religious and cultural upbringing; and
c) the child’s health; and
d) the child’s name; and
e) changes to the child’s living arrangements that make it significantly more difficult for the children to spend time with a parent.
[10] Family Law Act 1975 (Cth) s 61B.
The implementation and mechanics of shared parental responsibility are conditioned by s65DAC of the Act. Where two or more persons share parental responsibility, equally or in relation to any major long-term issue under a parenting order, they are required to make the decision jointly.[11] The holders of shared parental responsibility are required to ‘consult the other parent in relation to the decision to be made about that issue’[12] and to ‘make a genuine effort to come to a joint decision about that issue’.[13] These provisions mean that consultation and some discussion between the parties is required regarding major long-term decisions, for which parental responsibility is shared. As indicated, the mother and father agreed that they would have joint parental responsibility for both children. The maternal grandmother has no parental responsibility.
[11] Ibid s 65DAC(2).
[12] Ibid s 65DAC(3)(a).
[13] Ibid s 65DAC(3)(b).
As I have made an order, by consent, conferring equal shared parental responsibility on the parents, I am required to consider whether the children ought to spend equal, substantial and significant time with both parents. In so doing, the Court must consider, amongst other things:
·the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time with each of the parents;[14] and
·the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind[15] (including the behaviour of a parent, such as their willingness and ability to facilitate and encourage a close, meaningful relationship between the child and the other parent and their attitude to the child and to the responsibilities of parenthood);[16] and
·the impact that an arrangement of that kind would have on the child;[17] and
·such other matters as the Court considers relevant.[18]
[14] Ibid s 65DAA(5)(b).
[15] Ibid s 65DAA(5)(c).
[16] Ibid s 65DAA(5) Note 1.
[17] Ibid s 65DAA(5)(d).
[18] Ibid s 65DAA(5)(e).
ORDERS SOUGHT BY THE PARTIES
The parties varied their positions during the trial. In his initiating application filed 30 March 2021, the father sought Y’s name be changed. The father relinquished his application to change Y’s name in late 2021, stating that “it’s completely unfair on him now, that he has had a name for months”. The mother initially sought that she have sole parental responsibility.[19] However, in the first tranche of the hearing, all parties agreed to equal shared parental responsibility between the parents and I made orders, by consent, to that effect on 20 October 2021.
[19] Outline of Case of the Respondent Mother dated 27 September 2021.
The Father
In the father’s proposed Minute of Order dated 22 July 2022 and marked exhibit F7, the father seeks orders for equal parental responsibility for the children, that the children live with the mother in Melbourne and the children spend fortnightly time with him gradually increasing from supervised time at a contact centre to an endpoint of after school Friday to before school Friday each alternate week and school holiday time and on special occasions. This is his primary position.
If the mother is permitted to remain in City D, the father proposed there be four supervised visits of three hours duration each at dates and times to be agreed between the parents in writing and thereafter the father spend unsupervised time, gradually increasing, at the father’s option but not exceeding four days in a row. The father’s final proposed minute included arrangements for school holidays (once the children reach school age), Christmas, New Years’ Eve, Father’s, and Mother’s Day. He also proposed to keep the Facetime (audiovisual) communication ‘in line with the current arrangements’ which I understand to be 15 minutes every second day or as otherwise agreed.
The Mother
In the mother’s proposed final Minute of Order dated 22 July 2022 also covers two scenarios. One in the event that she remains living in City D (marked exhibit M10) and alternatively in the event that she is to relocate with the children to Melbourne (marked exhibit M11). If permitted to remain in City D, the mother proposes the children spend supervised time with their father on alternate weekends for two hours each Saturday and Sunday, increasing after two weeks to four hours, and then a further increase after two weeks to six hours. Counsel for the mother agreed that it was reasonable that thereafter visits be at the father’s option with seven days’ written notice. It is also proposed that the time take place wherever the children are located, or at the father’s option in City D, Sydney or City LL. The minute of order submitted by the mother provides that only the first two weekends of time be supervised. However, in a subsequent paragraph of the same minute, the mother seeks that the parents cause the supervisor to produce a written report mother every two months. The requirement for a report on a two monthly basis indicates ongoing supervision. Additionally, the mother seeks there be 15 minutes of video communication between the children and the father every second day.
In the event the mother was required to move back to Melbourne, she proposed that there be four supervised visits per week for two hours each in duration (with a minimum of two such visits a week), paid for by the father. Thereafter, there be unsupervised time on a fortnightly basis increasing eventually to include overnight time. There was no explanation as to why overnight time is a feature of parenting arrangements if the mother is required to return the children to Melbourne but not if they are permitted to remain in City D. As best I recall, the mother’s comments in cross-examination in relation to overnight time were that she would not support overnight time between X and the father until X is able to communicate and express himself which she put at X being at least four years old. X turns 5 years old in 2024. It is likely that the mother considers that she is the person to whom X should communicate and express himself. However, it is not clear whether the mother would require X to say he wants to spend more time with the father or whether the mother requires that X be able to report to the mother any complaint he has about the father’s treatment of him.
The mother has refused to disclose her current residential address to the father. In oral submissions counsel for the mother conceded on the mother’s behalf that it is not in the best interests of the children for the parents to conceal his/her residential address from one another. Relatedly, the mother sought that this Court make injunctions restraining either parent from going within 100 metres of where the other parent resides (or, where the father spends time in New South Wales when visiting City D). Mr Devries for the mother also submitted the injunction should include the second respondent maternal grandmother in respect of time spent by the father in New South Wales so that the maternal grandmother is not in the vicinity of the father and children during time spent periods.
The mother also sought orders that if the father comes to City D, the maternal grandmother should not be involved with the children for a period of time before they see him, in order to mitigate any risk of the maternal grandmother communicating her negative views of the father to the children.
The Maternal Grandmother
As expressed in her affidavit dated 29 June 2022, the maternal grandmother seeks orders for the mother to remain in Region C New South Wales, that the children spend time and communicate with the father as agreed between the parents, with private supervision or, if the father does not wish to utilise privately arranged supervision, then paid supervision at the cost of the father. The maternal grandmother seeks orders that overnight time between the father and the children commence not before the children turn five years old and subject to a psychologist’s assessment report of the children which states that the children can cope. The grandmother seeks that her own time with the children graduate from one hour a day with the children twice a week to four hours twice a week, and all the hours be when the mother is at work. The maternal grandmother also seeks one overnight stay per week.
In the event that the children are ordered to return to Victoria, the maternal grandmother seeks orders that the children visit their extended family in City D once a month, paid for by the father. She also seeks regular reports, a child supervision service be employed by the father for no less than 12 hours per week, and that the father pay the difference in rent between the mother’s current rent and the rent she would need to pay in Melbourne. The grandmother also requests that, if the grandparents are required ‘urgently for any type of emergency’, all travel costs are to be paid by the father.
The father opposed the orders sought by the maternal grandmother. The mother’s counsel submitted that none of the orders sought by the maternal grandmother should be made.
The Independent Children’s Lawyer
The Independent Children’s Lawyer’s position altered during the hearing. Initially the Independent Children’s Lawyer sought orders requiring the children to live in Melbourne. However, by the resumption of the third part of the trial, nine months after the first hearing date, the Independent Children’s Lawyer recommended that the children be permitted to reside in City D. The Independent Children’s Lawyer was of the view that parties had been able to communicate and arrange one visit and, therefore, a co-parenting relationship was possible.[20] The Independent Children’s Lawyer submitted that it would be in the best interests of the children and the relationship between the children and their father for the father to relocate to New South Wales to be closer to them. The Independent Children’s Lawyer held no concerns for the safety of the children in the father’s care and did not submit that it would be necessary for time to be supervised beyond the first few weeks of contact visits between the children and father and even then, only for re-introduction purposes.
[20] Exhibit ICL2.
ONUS OF PROOF AND FINDINGS OF FACT
Section 140 of the Evidence Act 1995 (Cth) provides the relevant test for the Court’s assessment of evidence in this matter. The facts in issue are to be proved by the party with the persuasive onus on the balance of probabilities.
In these reasons, a statement of fact is a finding of fact.
RELEVANT HISTORY
Relationship History
The father is 45 years of age and was born in New Zealand. The mother is 43 years of age and was born in New South Wales. The maternal grandmother is 71 years old.
The mother and father met on a religious dating website and commenced an online relationship in mid-2011 as they lived in different states. They were married in Melbourne in 2012. At the time of the marriage, both parents were engaged in full-time employment. The mother was working for a government service and the father was employed in outdoor work. Mr B was 14 years old when his mother married the father.
Prior to leaving City D, the mother and Mr B had resided with the maternal grandfather. The maternal grandmother lived separately from the maternal grandfather.
The parents moved to Melbourne to be married and to live. The mother told Professor OO that they married in Melbourne, away from her family, ‘because that is what [Mr Donalds] wanted’.
The parties did not provide detailed accounts of the marriage from 2012-2016. The mother in her affidavit material makes various allegations of controlling behaviour by the father including restricting her access to friends, denying intimacy and bullying Mr B. She also contends he experienced a significant back injury and was not working for a time. The parties went to Country SS on a holiday in 2014 and purchased a property together in 2015.
The mother contends, and the father denies, that the parties separated under one roof for a period in 2016 and reconciled in 2017. The mother further contends that she considered at the time the relationship between herself and the father unsalvageable, and that she remained in a relationship with the father only to see Mr B through his high school certificate. Mr B did complete schooling in 2016, but the mother did not leave the marriage until 16 October 2020 when Mr B was 22 years old. My understanding is that when Mr B had finished high school (late 2016), Mr B wanted to stay living with the father and the mother and the father had decided to try and make the marriage work. The father denies there was a separation in 2016 or a reconciliation in 2017.
In the period 2016 to 2017, the parents commenced counselling with their religious leader. In my reasons for decision Donalds & Donalds [2021] FamCA 521 at [55], I asked the mother to produce some evidence from an elder or leader of the religion who knows the mother or the mother’s family. This would have assisted the Court to understand the attitudes towards separation and divorce in that religion. No such evidence was produced to me by the mother.
The parties then decided to start the process of in-vitro fertilisation. The mother fell pregnant with the couple’s first child, X, in 2018. X was born in 2019. He is currently four years old. The father asserts he did not take any new work for about 4 months so he could stay at home and care for the X with the mother. The mother was on maternity leave from just before X’s birth until separation. She deposed in cross-examination on day 7 of the final hearing that the father did not have a good relationship with X in the period from 4 to 12 months of age. The father disputes this.
The parents disagree on the extent to which the father assisted in the care of X. It is agreed that the mother was the primary carer. Despite the father’s evidence that he did not accept work outside the home for four months after X’s birth, the mother’s evidence was that the father did little to assist in that time. The father’s evidence was that he was meaningfully involved in the sense of assisting the mother and bonding with X. The father’s mother, Ms UU, organised for the mother to have the assistance of a specialist carer to compensate for the fact that she, the paternal grandmother, lived in New Zealand and could not assist personally. The paternal grandmother gave oral evidence including the following:
…[the father] was really, really attentive towards [X], and I actually thought when they came out to New Zealand during that Christmas time that [Mr Donalds] and [Ms Donalds] actually complimented each other and with the parenting. Like, [Ms Donalds] would get her – she would come and have something to eat, so [Mr Donalds] would go and get the bath ready for [X]. [Ms Donalds] would lay out his clothes, then they would both go and bath [X] together. And then they would get him out and they would play with him, and then [Mr Donalds] would bring him out and play with him. So they were both, you know, I found that they really complimented each other and how they parented [X] together. And, I mean, [Mr Donalds] has always wanted to be a dad, and you could just see the love he had for [X]. And – and the joy that [X] brought him.
She continued to say that “the relationship appeared fine. They complemented each other in parenting role. They worked well together they seemed to be fine together”. When asked by the counsel for the Independent Children’s Lawyer if the paternal grandmother observed any acts of affection or emotional connection, she said “…Yes. They did. I didn’t see that they were disconnected.”. I calculate this would have been Christmas 2019 and X would have young. In 2020 the parties recommenced IVF treatment for another child. The mother became pregnant in 2020.
In late 2020 the mother was granted an ex parte Interim Intervention Order against the father, which excluded him from the family home at Suburb CC, Melbourne (Exhibit F2). He said he was shocked to have an Intervention Order served on him and to hear of the mother’s allegations that he was abusive to her, Mr B and X. In the period between late 2020 and the variation of the Intervention Order, the Intervention Order prohibited his entrance to the matrimonial home at Suburb CC.
The parties separated on 16 October 2020.
On 18 October 2020, the mother left the family home at Suburb CC and unilaterally relocated to City D, New South Wales with X, to be near the maternal grandparents. In her June 2022 affidavit, the mother states that she “fled the former home because of on-going violence, anger and severe control directed by the Applicant Father towards myself and my son, [Mr B]. Violence in front of [X] […]. As previously stated, I knew that neither [X] nor I were safe remaining with the Father.” The father described the separation as occurring “out of the blue”[21] and denies the mother’s allegations.
[21] Psychiatric Report of Professor OO dated 24 November 2021.
At the time of the hearing, neither party had repartnered. By way of the November 2023 Update the father informed the Court he was engaged to be married in early 2024 to Ms TT. Ms TT is a member of the religious community and works in administration. The mother has not repartnered.
The mother deposes she currently lives in a government subsidised two-bedroom townhouse about five minutes from the centre of City D. She has refused to disclose the address to the father. She claims to have a wide support network of friends and family there to assist her in caring for the children. The father continues to reside in Suburb CC but no longer at the matrimonial home.
EXPERT EVIDENCE
The Court was assisted by the expert evidence of Professor OO, psychologist, and Mr F, Family Report Writer. The mother and father both relied on the two Family Reports by Mr F, one filed on 5 May 2021 and an updated Family Report filed on 6 September 2021 and the report of Professor OO dated 24 November 2021. The parties also jointly relied on the s 67Z report published by the Department of Health and Human Services (DHHS) (now the Department of Families, Fairness and Housing) on 11 December 2020 November 2021.
The parents were interviewed by Family Report writer, Mr F, on 4 May 2021 when X was two years old and Y was very young. When assessing for the preparation of the Family Report, the mother was observed with both children and the father was not observed with the children. Mr F's Family Report was dated 5 May 2021. The family attended upon the Family Report writer for the second time for the purposes of an updating Family Report. The father and maternal grandmother were interviewed by Mr F on 1 September 2021 and the mother and the children was also interviewed and observed with each other on 2 September 2021. All interviews were conducted electronically and the father was not observed on his interactions with the children. Mr F issued an updated report on 6 September 2021 and was cross-examined on the final day of the final hearing. I accept his evidence.
Professor OO, psychiatrist, provided a report for both parents pursuant to my Order on 20 October 2021. Professor OO’s affidavit was sworn on 24 May 2022. She was cross-examined on the twelfth day of the final hearing. I accept her evidence.
I have considered the evidence of both experts and address their observations, evaluations, and recommendations throughout these reasons. I have extracted the expert evidence where I consider it to be relevant.
LAYWITNESSES
Paternal Grandmother
Ms UU, the paternal grandmother, did not make an affidavit but the father filed a proof of evidence dated 8 October 2021. The paternal grandmother is a registered care worker having worked in the field for many years as practice leader for VV Family Services. She and her husband have three children of which the father is the oldest. The paternal grandmother was cross-examined on the fifth day of the final hearing by Mr Devries and counsel for the Independent Children’s Lawyer and on the seventh day by the maternal grandmother.
The paternal grandmother explained the father had spoken to her about the parents’ differences and that they required counselling to work through those issues. She was aware of the serious allegations of family violence made by the mother against the father.
When the paternal grandmother was asked to describe Mr B, she said that he is a “lovely young man”, and she has enjoyed his company and believed that he also enjoyed her company. She also said under cross-examination that as long as it is a positive influence the grandparents should be a part of the children’s lives.
The paternal grandmother’s evidence was not shaken in cross-examination. She impressed me as a caring and generous grandmother and mother-in-law. I considered her evidence to be truthful.
Mr B
The cross-examination of the mother’s son, Mr B, commenced on the tenth day of the final hearing (18 July 2022). Mr B swore two affidavits in these proceedings, one on 10 July 2021 and the second on 31 July 2021.
Before cross-examination commenced, the maternal grandmother made an application that the father have his camera off when Mr B is giving his evidence. When the father’s counsel asked Mr B if he was aware of the maternal grandmother’s application, he said that he had made that request earlier in the week as he had “a bit of a breakdown” but was not present when the application was made. Mr B did not appear distressed when giving evidence before me.
Mr B was asked several questions about his perceptions of the level of care provided by the father to X at around the time of his birth. Mr B said that the father was at home and present, that the father occasionally changed X’s nappies, bathed him and heated up the milk but maintained that the mother attended to more of the day-to-day care of this child. Under cross-examination, Mr B agreed that he and the father had mutual respect but they “never, really, sort of, connected”. I regard this as not corroborating the mother’s allegation of constant abuse and denigration by the father of the mother and himself.
When asked about the separation under one roof between 2016 and 2017 and prior to the mother relocating in October 2020, Mr B explained he was not aware at the time but after “fleeing” in 2020 the mother informed him of “many things” including the separation between 2016 and 2017. The mother told him the reasons for separation. My impression is that Mr B was ‘prepped’ by the mother to reinterpret his experiences of his time in the family home.
Mr B was asked about the alleged incident where the father had struck him across the head and Mr B stated that during a car ride, the father hit him at the back of his head. The mother was not present in the vehicle. Mr B’s evidence was that he was hit across the back of the head in the passenger seat when he was leaning forward.
When asked about how his affidavits were developed, Mr B said that his first affidavit was written by him about how he felt about the situation and what had happened. In preparing the second affidavit (the 10 July 2021 affidavit), Mr B was given a list of questions from the mother and maternal grandmother including how he felt about the “whack over the head”. The notes were emailed to him by his mother. These emails were produced to the Court and detailed over 300 questions proposed by the mother and maternal grandmother as writing prompts or to otherwise assist in the drafting of the affidavit. Mr B gave evidence that the questions helped him recollect previous events.
Under cross-examination Mr B said he sent the mother and the maternal grandmother the affidavit and the draft affidavits via email to proofread his work and to “check the spelling”. However there were emails received from the mother and maternal grandmother with written suggestions in red type forming “assistance in typing or suggested notes”. He also agreed there were phone calls between himself and the mother to discuss the contents of his affidavit. The various drafts produced by Mr B were marked F4. The documents produced by the mother were marked F5 and the maternal grandmother F6.
In a draft of the following paragraph provided to the mother and the maternal grandmother, Mr B provided the following response:
Sometimes I would hear yelling at each other, or he would tell her to stop being silly or stupid. Car rides would be awkward as well, always have tension. Noticed he would say things quietly to really upset and provoke Mum, did this to get a reaction, called her names, Mole and Wench, would always tell Mum to stay out of conversations between me and him to exert his authority.
In cross-examination, Mr B conceded that some words had been inserted (not by him):
[MR B]: I would probably disregard my last sentence from “called her names”.
HER HONOUR: He didn’t call her names?
[MR B]: ---I mean, I – not from anything that I – physically occurred, no…
In the final version of his affidavit of 10 July 2021, the following paragraph appeared (emphasis added):
[28] [Mr Donalds] would never treat my mum kindly either. I would hear yelling at each other or he would tell her to “stop being silly” or “stupid”. Car rides would be awkward always as well. There was always uncomfortable tension. I noticed he would say things quietly to really upset and provoke mum and did this to get a reaction. He would call her names, “mole”, “wench”. Would always tell mum to stay out of conversations between me and him to exert his authority. There was always a lot of aggressive arguing and fighting. [Mr Donalds] would always be instigating a fight or comments to provoke, similar to the way he would talk to me. He was always aggressive in his responses and showed a lot of anger and aggression in name calling or telling us to butt out of conversations. This would happen anywhere and everywhere. Mostly inside, in the house and car. Not as frequently in public places but it did happen.
Mr B deposed that the words in bold could also be an addition from his mother or grandmother rather than his own. When asked if there were any other insertions in his affidavit that he had no personal knowledge of, he replied that “I guess, any forms of any feelings I have with [Mr Donalds] or communication between me and [Mr Donalds], I would say, is accurate, but I don’t think I have anything to really say about how him and my mother spoke to each other.”
When asked why he wanted his mother to stay with the father for his sake, Mr B said he “just wanted stability, having a mother and father” in light of his earlier interesting upbringing.
The maternal grandmother asked Mr B about a documentary he had watched between the first and last affidavit which inspired him to write the second affidavit. Mr B clarified that it was a social media video which was about “growing up with narcissism or having someone who’s a narcissist or being raised by a parent who is a narcissist” and at the time he related to the video and it helped him understand his situation which ultimately led to him filing another affidavit about the father.
Counsel for the Independent Children’s Lawyer’s asked Mr B if he and the mother discussed the father’s character, to which he agreed they had and used a “couple of discriminatory words” to describe him. When asked if he had anything to say about the father that was positive, Mr B stated:
I think we got - we got along in the sense of we – we sort of understood each other’s boundaries occasionally, and then, you know, I definitely think we had some similar common interests, like, talking about tech stuff or computer stuff. We had some good conversation to say and did have some good laughs for sure. I think just in the long run we just didn’t get along or see eye to eye all the time.
Mr B further deposed that he believes the father loved X but when asked about his level of care, he responded “I don’t know. I don’t really have an answer just because it was not something I really saw a lot from him in action, but maybe he did. I don’t know.”
Mr B was not comfortable giving evidence, but I considered him to be a truthful witness. I accept there was an incident in which the father hit him on the back of the head which was unnecessary and inappropriate. The totality of Mr B’s evidence satisfies me that there was a positive relationship between Mr B and the father which the mother was generally unable to acknowledge other than to say that she discontinued her first plan to leave the marriage when he finished high school because Mr B wanted to continue to live in the father’s household and enjoy family life there.
By the November 2023 Update, the Court was informed that Mr B was working part time for the father in 2023. Mr B agreed to supervise time between the father and his brothers and travelled with the father and the father’s fiancé to City D to do so. It would not have been easy to adopt the role of supervisor given the relationship between the mother and the father. The fact Mr B acted as supervisor impresses me as indicative of him having strong family values in relation to his younger siblings and as having a positive relationship with the father. This does not sit comfortably with the mother’s complaints of harsh and demeaning behaviour by the father to Mr B during cohabitation and is unsupportive of her allegations in this regard.
THE PARTIES
Father
Throughout the interviews conducted in preparation of the Family Reports, the father maintained he was never abusive towards the mother and he was not angry at her for relocating to City D. It is recorded that the father believes that this was “normal ups and downs” experienced in a marriage and the mother has “magnified the events out of context”.
When interviewed, the father informed the Family Report writer, Mr F, that he thought their marriage was “going well”, but admitted the parents did not “always see eye to eye” and he believed that the mother’s complex health needs affected her behaviour at times. The mother has a medical condition. It is recorded that the father did not think there were any major issues between himself and the mother and said, “there was never any abuse – I grabbed her by the arm on two occasions, but it was never violent”.[22]
[22] Family Report of Mr F dated 5 May 2021, [27].
The father was a straightforward witness and calm, almost to a fault. He is clearly very upset at his lack of involvement in the children’s life, he appears to feel powerless and very concerned but did not portray that he was frustrated. He displayed no anger at the mother’s unilateral relocation. He denies the mother’s allegations of family violence. He referred to the evidence of family violence, given by the mother to justify her actions, as being “her truth”. The father’s demeanour could be construed as minimising or ignoring the important allegations of family violence made by the mother. Alternatively, he may have attained a degree of equanimity through consultations with his spiritual advisor, a practitioner described by Professor OO in the following passages:[23]
In my questioning [Mr Donalds] about his values of him as a father, he stated that he is of the belief that the children overall, require safety, nurturance and parental presence. He sees this as fundamental values for himself as a father and as relating to his belief and the importance of family life as outlined in [his] faith. He has been seeing privately, a counsellor who he described as a “[spiritual advisor]”.
On questioning, he was able to describe this person as involving him in reflection on the current situation and his feelings and giving him strategies for being able to focus on the difficulties that he is experiencing and how to maintain his emotional equilibrium. In his view, [Mr Donalds] has found this helpful and denies any current symptoms of significant depression, although he can acknowledge that he is sad and distressed at times about the current impasse and situation. He has focused on maintaining his physical and emotional well-being and has continued with his social supports.
[23] Psychiatric Report of Professor OO dated 24 November 2021, 13.
I expect that the father draws a great deal of support from being in contact with his mother who impressed me as compassionate, resourceful, sensible and kind-hearted.
The father told Mr F that, if the mother remains in City D, it will be “an uphill battle” for him to maintain a relationship with the children. The father stated that the maternal family members hate him and in particular the maternal grandmother has never been a part of the mother’s life and is now helping care for the children. It is the father’s belief that “they’re going to poison [his] boys against [him]”. When interviewed, the father informed Mr F of his concerns that he will not get back the time he lost trying to build a relationship with the children. He maintained he was not abusive towards the mother or X.
Professor OO interviewed the father via video conference and noted that the father was co‑operative with questioning and appeared pleased to be able to give an account of his situation and background. The father informed Professor OO he is aware of the mother’s concerns about his mental health and her allegations of family violence and sexual assault against him. His main distress at the time of the interview was his lack of contact with Y. He also maintained that he was not experiencing any symptoms to suggest he is overwhelmed with stress or has difficulties with mood regulation or substance use.
The father informed Professor OO that he was seeing a counsellor (the spiritual advisor) who was helping him reflect on his current situation and his feelings and they gave him strategies to maintain his emotional equilibrium. The psychiatrist describes the father as “articulate and intelligent” with some capacity for psychological reflection. Professor OO also recorded that the father expressed “some mild confusion” and “lack of understanding” about the process of breakdown in his relationship with the mother.
Professor OO concluded that the father did not have any symptoms of psychosis or major psychiatric disorder. She notes the father denied he had Autism Spectrum Disorder and his presentation did not suggest he has Autism Spectrum Disorder. Professor OO was of the opinion the father did not currently suffer from any diagnosable mental illness but he did present with personality vulnerability which she says is shared by both parents. Professor OO’s view was that the father’s “categorical denial” of the mother’s allegations is difficult to assess and the father will continue to hold these views.
The father now recognises that the mother was unhappy and unfulfilled in the marriage. My impression is that the father has little comprehension of the minutiae of the mother’s grievances. I do not assess him as having been disregarding of the mother’s feelings, but he is on a different wavelength. I reject any suggestion that he was being deliberately obtuse. I consider him to have been a truthful witness.
Mother
Professor OO noted that:[24]
[24] Psychiatric Report of Professor OO dated 24 November 2021, 8-9.
[Ms Donalds] sought psychological services from [Ms U], Clinical and Forensic Psychologist [in late] 2020 (first date of contact) and then an appointment was subsequently made [in early] 2021.
[Ms Donalds] had sought psychological services due to high levels of anxiety related to ongoing Family Court matters regarding her two younger children. She disclosed that she had fled Victoria and returned to New South Wales to be in an environment where she could be supported through the divorce, from her husband, and as well, seek assistance as a single mother.
…
[Ms Donalds] reported that she fled the marriage due to psychological and sexual abuse from her husband, [Mr Donalds]. She had expressed her concern that her husband could not be trusted to care appropriately for their toddler son, when left in his care, and that he was physically and psychologically abusive to her oldest son, [Mr B].
…
[Ms Donalds] has a history of [a medical condition] for which she has been receiving treatment since 2013.
[Ms Donalds] had worked for [a government service] for approximately 15 years.
I note that [Ms U] had administered the Post-Traumatic Stress Disorder Checklist (Civilian Version (PCL-C) and the Patient Health Questionnaire – 9.
(PHQ-9) was also administered to [Ms Donalds] at the first appointment and then subsequent sessions.
Her initial scores were PCL-C – 66 and PHQ-9 – 21. Both scores are indicative of severe Post-Traumatic Stress Disorder and severe depression.
[Ms U] saw [Ms Donalds] for four sessions and conducted fortnightly via Telehealth. Treatment has focussed on assisting with her high levels of anxiety and monitoring her symptoms of depression. [Therapy] for the trauma of family violence was going to be initiated through the Family Court process.
[Ms Donalds] apparently responded well to being in treatment. However, her scores on the PCL-C and PHQ-9 did not change. It was felt her scores were due to the ongoing stress of the Family Court hearings and anxiety about being forced by the Family Court to return to Victoria. It was also very stressful managing the frequent Face-Time sessions between her son and her ex-husband. In addition, the timing of the sessions in the evening had been disruptive to her son’s bedtime schedule which caused additional stress.
[Ms U] made a diagnosis of Post-Traumatic Stress Disorder and Major Depressive Disorder.
Professor OO’s own assessment of the mother appears at pages 16 to 18 inclusive of her report, including:-
[Ms Donalds] stated that she herself, has not had a formal diagnosis of Autistic Spectrum Disorder and does not currently suffer from typical symptoms of this condition.
Specifically, she denied any difficulties in social interaction, understanding of social relationships, and on presentation, she has clear communicative capacity and no difficulties in describing emotional states. She noted that her brother has experienced period of depression and alcohol misuse. He has been diagnosed with Autistic Spectrum Disorder as well as [a mental health condition]. She noted that he is on medication but was unsure which specific medication has been prescribed. She does not feel that there is a family history of [mental health illness].
On Mental State Examination, [Ms Donalds] presented as very open in terms of her capacity to describe the events that have troubled her about her relationship. She was focused on outlining the particular issues that she experienced as both domestic violence and sexual assault. She did not provide any details differing from those provided in her materials as tabled.
She had experienced clear issues in her feelings of being entrapped and controlled within the relationship. She described around the times of these intense difficulties, having experienced some thoughts of death and suicide but denied having had any intent. At that time, she was considering her course of action in terms of whether to leave the relationship and resolved that subsequently hung. She denied any substance abuse around this time and on questioning, did not have clear symptoms of a Major Depressive Disorder. Specifically, there were no biological features of a clinical depression.
On my examination, [Ms Donalds] showed no signs consistent with current major depression. She denied features consistent with Bi-Polar Disorder, specifically, there were no features of major mood dysregulation. She was able to describe her feelings of current frustration and at times, anxiety symptoms. She did not describe any features of a Generalised Anxiety Disorder or clear difficulties with her functioning as a result of anxiety.
She does have however, some features of a Post-Traumatic Stress Disorder, such as sleep disturbance and her preoccupations with events. She has particular concerns about traumatic experiences that the boys have experienced and was focused on her need to protect the children from any further difficulties. She has awareness of the potential impact of early trauma on development and described this in relation to her own history.
There were no features consistent with psychotic disorder. There were no features of formal thought disorder, delusions, paranoia and no hallucinatory experiences. In terms of her focus and judgement, [Ms Donalds] had clearly been struggling with issues of decision making and complex feelings towards [Mr Donalds]. She stated that she would like the boys to have [Mr Donalds] in their lives, but simultaneously, worried for their welfare, given her beliefs that [Mr Donalds] has difficulties managing his emotions. She specifically cited the so-called maltreatment of her older son [Mr B]. She stated that she felt it was in the best interest of the boys, if possible, to have an ongoing relationship with their father.
In terms of psychological insight, she presented as very much focused on the impact of [Mr Donalds’s] behaviour on her own well-being and that of her children. She did not accept that any of her own difficulties with depression and anxiety, had in any way, impacted the relationship breakdown. She saw this as the consequence of her experience of what she sees as consistent maltreatment. She stated that she had a wish that, as a couple, they had been able to negotiate some shared parenting and did not elaborate on any reasons why that had been impossible and both parties have clearly continued in this seemingly intractable state of lack of capacity to make any decisions.
However, [Ms Donalds] clearly described her emotional difficulties which she attributes to those high levels of stress experienced during the relationship. She has experienced depressive symptoms and features of anxiety during the period of her dissolution of her marriage and has some persistent features of anxiety and post-traumatic symptoms.
She remains very focused on the experiences she describes and attributes her distress to this.
I note that she has a history of previous depressive responses as a result of severe stress, namely, the […] assault she experienced at age […] years. Hypothetically, early experiences of both family stress such as experiencing mental illness in family members, as well as any episodes of inappropriate behaviour in childhood can act as events that sensitize a person to later development of depression and anxiety in highly stressful situations. From her perspective, [Ms Donalds] experienced the dissolution of her marriage and the ongoing concern she has about her children as highly stressful and very threatening to her deeply held views about the importance of the marital and relationship and maintaining good family relationships. It is likely that this is a great disappointment and source of emotional pain for her.
In my view, she has experienced the stress of a failure of a relationship and, specifically now, finds her in a situation where there appears to have been a failure of capacity for repair or any reconciliation in terms of a course of action. She did not volunteer any additional comments on her wishes in this situation, other than those noted above but was able to say that in principle, she did not oppose the children having a relationship with [Mr Donalds]. However, the issues remain about the practicality of this and the capacity of both parties to demonstrate some flexibility in terms of both discussion around the issues and in reaching any formal agreement.
In the father’s affidavit material relating to his first meeting with Y in June 2022, he notes there were a number of reasons as to why he felt he was unable to travel to visit the children until June 2022. He attributes the delay in part to the financial burden of these proceedings, need for his mother’s financial support in visiting the children and impact of the visits on the children due to their limited exposure to the father and hesitation to interrupt the routine of video calls for an “impromptu visit”. He also indicates that another reason he was hesitant to travel interstate was “the risk of being accused of any wrongdoing whilst there” which he attributes to a lack of trust between the mother and himself. Despite these concerns, a visit occurred in June 2022, consisting of two visits over two days. A second visit over three days occurred in August 2023. Both the June 2022 and August 2023 occasions were supervised (the first by a friend of the mother’s and the second by Mr B).
The developments reflected in the November 2023 Update demonstrate that the father is taking a positive attitude to see the children face to face.
The extent to which each of the parents have fulfilled or failed to fulfil his/her obligations to maintain the child[45]
[45] Ibid s 60CC(ca).
The parties produced some evidence of the father failing to pay child support in the first few months of Y’s life. The father explained that he was called by the Child Support Agency who said that they had received a notification that a child was born who was attached to X. They had told the father that he was not listed on the birth certificate, and the father expressed that he was confused as to why he would need to pay child support if he is not on the birth certificate. The father is now on the child’s birth certificate. The father asserts that he has paid all child support as assessed.
The mother removed funds from the accounts operated by her and the father and packed up and transported what she wanted from the family home. I understand that the wife acted unilaterally and without seeking or obtaining the father’s agreement. The mother has had those resources to provide for the children in addition to child support paid by the father.
The likely effect of any changes in the children’s circumstances[46]
[46] Ibid s 60CC(3)(d).
In determining what is in the best interests of each of the children I am required to consider the likely effect of any change in the children’s circumstances particularly in relation to separation from their parents, other children, wider family including grandparents and other persons with whom the children have a relationship.
When this case commenced, X was under two years old and had just been taken from Melbourne to City D. However, X has now lived in City D since late 2020, that is for appreciably longer than he lived in Melbourne. Y has only ever lived in City D. Accordingly, I will look to the likely effect of changing the children’s place of residence from City D to Melbourne.
The father’s case is that if the children remain living in City D their relationship with him with be undermined significantly. This accords with the views of the experts. The mother contends that the children have established substantial connection with family in City D and this will be impacted if the children move back to Melbourne. Further the mother will not have the support around her to function on a day-to-day basis if those links are severed. In the November 2023 Update, the mother indicates that X sees a variety of specialists including speech therapists and a psychologist. While it is true these facilities exist in Melbourne, the child has a relationship with these providers in New South Wales and the Court must consider the impact on the child of establishing relationships with new treatment providers.
The Independent Children’s Lawyer’s view is that, as the children have spent a significant period of their lives in New South Wales and now appear to have a well-established network and roster of medical professionals. I accept that is the case. Professor OO in cross-examination noted the importance of preparing X for any move, including meeting his new practitioners in advance and ensuring X has a transition period.
The maternal grandmother’s application is premised on her and the broader maternal family being important and frequent caregivers of the children. I am not informed by evidence of the extent to which the mother’s family, as opposed to the maternal grandmother, care regularly for the children. If the mother is required to return the children to Melbourne, the mother will not have the resource of the maternal grandmother and such other family assistance she now has.
Mr F expressed some concern as to the mother’s capacity to parent if she was required to return to Victoria, noting that the effect of the mother’s stress on the children would be significant. He stated that even if the mother were to return to Victoria, his view was that the father would still face difficulties in having a relationship with the children, and this would be exacerbated by the mother’s stress.
Professor OO stated that if the mother was required to relocate to Melbourne, the return would have a fairly devastating effect on the mother and her parenting capacity. Professor OO stated that the mother’s protective motivations may arise and there are both risks and benefits to this situation. Such risks would include increased anxiety and anger and having difficulty coping which may negatively impact the children and their views of their father. Ultimately, she was of the view that there is a risk that will entrench the breakdown of the children’s relationship with the father. I asked Professor OO what support would provide greater insight or understanding towards the needs of the children, she said that the mother would benefit from having some individual counselling or psychotherapy and some family-based work which looks at her role as a mother and how to better meet the needs of the children.
When considering the children and their relationship, Mr F records that the children have a larger, wider maternal extended family support if they remain in City D. Further, Mr F opines that if the children remain living in City D and the father visits from Melbourne, in his view, it is likely that the visits would be far less than the alternative weekends proposed by the mother, resulting in the children having a minimal relationship with the father.
In terms of repairing the relationship between the children and the father, Professor OO said:[47]
… [X] has been exposed to conflict between his parents and the aim of having ongoing contact with his father would be to help repair any anxiety that he experiences as a result of this situation to, and to build on and strengthen his attachment with his father.
The issue for [Y], in terms of his psychological and emotional development is that he is also likely to experience anxiety through the lack of a relationship with his father and would require, if there is ongoing separation, when he is at the appropriate development age to have adequate explanation and psychological support to understand the absence of his father. It would be appropriate to consider options where clearly this situation could be avoided.
[47] Psychiatric Report of Professor OO dated 24 November 2021, 19.
The mother says that she will follow the children. Accordingly, if I order that the children return to Melbourne, I can assume that the mother will come with them.
I am satisfied that the mother has established a home for herself and the children in City D and that she receives some support from family. I accept the evidence that the children are under the care of doctors, health professional and allied health professionals which it would be difficult to replicate in Victoria without disruption to their treatment. These considerations led the Independent Children’s Lawyer to alter her recommendation immediately before the final tranche of the hearing. The Independent Children’s Lawyer had initially recommended that the mother return the children to Melbourne to reside permanently. However, on 21 July 2022 the Independent Children’s Lawyer made known to all parties and the court that she was recommending an outcome whereby the children could remain living in City D.
The hearing was conducted on the courts’ MSTeams platform so I had very good visibility of the parties even when they were not giving evidence. The mother was on screen except when she was breast-feeding Y. I observed the mother’s demeanour to be consistently dour and soured, she looked unyielding and miserable in equal measure. I appreciate that the mother would have been tired and probably anxious and tense during court and even when not giving evidence. Professor OO referred to the mother as stressed by the proceedings and I accept that is the case. Participating in proceedings remotely has advantages and disadvantages. A disadvantage is that it can be harder to avoid distractions and the mother in this case may have been straining and concentrating hard to do so. However, it would be sad for X and Y if the mother presents to them on a day-to-day basis as she presented in Court. I would hope that, as the children remain in City D, that outcome would bring some relief for the mother and lighten her mood to a point that the children do not regard the mother as always miserable. Otherwise, Professor OO opined that the mother would benefit from personal therapy directed to accepting that the boys should be able to have a real and meaningful relationship with the father.
Practical difficulty and expense associated with face-to-face time and/or communication with the other parent[48]
[48] Family Law Act 1975 (Cth) s 60CC(3)(e).
City D is hundreds of kilometres from Melbourne. I consider the practical difficulty and expense of the children spending time with and communicating with the parent with whom the children will not be living and whether this will affect the children’s rights to maintain personal relations and direct contact with both parents on a regular basis.
The father is self-employed and based in Melbourne. The mother contended that, if she was permitted to remain in City D, she could return to work because she could and would rely heavily on the maternal family to care for the children. The 2023 November Update indicates that the mother did return to work but then resigned due to family pressures. The mother is not presently employed. She resides in government-subsidised accommodation.
Until now, time between the father and the children has been supervised. This is a considerable expense and, for other reasons, I have dispensed with supervision on an ongoing basis. However, if the father is to see the children in City D, he must take time away from his business, travel for many hours by car and accommodate himself (and presumably also his wife) and maybe his mother as well as make arrangements to entertain the children. The most that can be done to ease the practical difficulties and expense for the father is to make it as easy as possible for him to spend time with X and Y.
The mother faces similar practical concerns to take the children to Melbourne to see the father but, in that case, one would expect the mother to remember that she is the parent who moved away and the predicament is largely of her own making.
It is the mother’s contention that if the father accepts her proposed orders it will provide them with the same time and communication as they would experience if she relocated to Melbourne. That does not look to me to be accurate. The mother acknowledges that there are financial burdens for the father if the mother remains living in City D. The mother appeared to concede that there would be financial implications to the father having to exercise time with the children in City D. However no party presented minutes of orders sought which contemplated a change to his child support liability being made by an order of this Court.
Formal education and routine will be important for both children. However, if once in while a situation arises where arrangements for the boys to spend time with the father conflict with a school day or attending regular day care or an activity, greater weight should be given to the boys spending time with the father having regard to the practical difficulties and expense associated with him doing so.
This is a frustrating case inasmuch as the mother acted contrary to the interests of the children in unilaterally moving to City D but, by the time the first tranche of the hearing was concluded in October 2021, it was clear that it would be very difficult for them to return. By the time the hearing concluded in July 2022 there was a stalemate. It was not feasible, let alone in the children’s best interest, for the children to be ordered back to Melbourne given that the children were firmly established in City D and the move would have greatly distressed the mother. The father’s business required him to remain in Melbourne.
The paternal grandmother indicated that she would provide financial support for the family if the mother and children moved to Melbourne. It was a generous offer but it appeared to make no impression on the mother. For my part I wondered if any amount of financial support and assistance could be enough for the mother to be able to live happily in reasonable proximity to the father. So, by late July 2022, there appeared to be no reasonable prospect of the father being able to develop a meaningful relationship with the boys. Fortunately, with the effluxion of time, the family have now had further positive experiences of the father visiting the children in City D in August 2023 and I propose to build on them.
Any family violence involving the children or any member of the children's family and family violence orders[49]
[49] Ibid ss 60CC(3)(j) and (k).
As noted above, the definition of family violence provided in Section 4 of the Act is broad and may include threatened or actual violence toward a person, members of their family or their property.
In final submissions it was conceded on the mother’s behalf that the father does not pose a physical danger to the children despite her allegations of family violence. The mother asserts supervision is needed as the children are vulnerable and need to be safe. I do not accept that is the case. The two experts say that supervision is not required.
Whether it would be preferable to make an order that will be least likely to lead to the institution of further proceedings in relation to the children[50]
[50] Ibid s 60CC(3)(l).
Parenting proceedings are never final in the sense that children and their parents' circumstances change and arrangements may need to alter as a consequence of those changes. However, litigation is costly in emotional and financial terms and may have the effect of standing in the way of parties parenting children effectively. Parents and children are readily distracted by litigation. Ideally courts should make parenting orders that minimise the prospects of future litigation and I approach this case in that way.
If orders require enforcement, I am content for that matter to be sent back to me.
CONSIDERATION OF EQUAL TIME OR SUBSTANTIAL AND SIGNIFICANT TIME WITH BOTH PARENTS
Sub-section 65DAA(1) of the Act provides that, in making a parenting order for a child’s parents to have equal shared parental responsibility for the child, I must consider the following:
(a)whether the child spending equal time with each of the parents would be in the best interests of the child;[51] and
(b)whether the child spending equal time with each of the parents is reasonably practicable;[52] and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.[53]
[51] Ibid s 65DAA(1)(a).
[52] Ibid s 65DAA(1)(b).
[53] Ibid s 65DAA(1)(c).
In making such an order, I must regard the best interests of the child as the paramount consideration.[54] Further, in determining what is ‘reasonably practicable’, I am to take into account the factors listed in s 65DAA(5) of the Act, which include the following:-
(a)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents;[55] and
(b)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind[56] (including the behaviour of a parent, such as their willingness and ability to facilitate and encourage a close, meaningful relationship between the child and the other parent and their attitude to the child and to the responsibilities of parenthood);[57] and
(c)the impact that an arrangement of that kind would have on the child;[58] and
(d)such other matters as the court considers relevant.[59]
[54] Ibid ss 65DAA(1) Note 1 and 60CA.
[55] Ibid s 65DAA(5)(b).
[56] Ibid s 65DAA(5)(c).
[57] Ibid s 65DAA(5) Note 1.
[58] Ibid s 65DAA(5)(d).
[59] Ibid s 65DAA(5)(e).
It is impracticable for the parents to have equal time at this stage. The father lives in Melbourne, and the mother in City D. As discussed above, it is not in the best interests of the children to require the mother to relocate to Victoria. Nor is it easy for the father to relocate to City D.
Sub-section 65DAA(2) of the Act provides that where parents have equal shared parental responsibility but not equal time with the child, I must consider whether it would be in the child’s best interests for the child to spend substantial and significant time with each parent.[60] I must also consider whether this is reasonably practicable,[61] with reference to the factors outlined in s 65DAA(5),[62] and if so, consider making an order giving effect to this.[63] In making this determination, the child’s best interests are the paramount consideration.[64]
[60] Ibid s 65DAA(2)(c).
[61] Ibid s 65DAA(2)(d).
[62] Ibid s 65DAA(2) Note 2.
[63] Ibid s 65DAA(2)(e).
[64] Ibid ss 65DAA(2) Note 1 and 60CA.
Sub-section 65DAA(3) of the Act states that the child will be taken to spend substantial and significant time with a parent only if that time includes weekdays, weekends, holidays and non‑holidays[65] and involvement of the parent in aspects of the child’s daily routine[66] and occasions of significance to both parent and child.[67] The legislation notes, however, that these factors are not intended to limit the matters to which the Court may consider in determining whether the time spent with a child is substantial and significant.[68]
[65] Ibid s 65DAA(3)(a).
[66] Ibid s 65DAA(3)(b)(i).
[67] Ibid ss 65DAA(3)(b)(ii) and 65DAA(3)(c).
[68] Ibid s 65DAA(4).
Substantial and significant time would need to be facilitated with the mother and father living in separate states. I have already determined that supervision is no longer necessary.
In Professor OO’s view the important issues that need to be considered in this matter include the children’s attachment needs and their desire for an ongoing attachment relationship with the father. She notes X has been exposed to conflict between the parents however by having ongoing contact with the father, this can help repair any anxiety X experiences and can strengthen his attachment to his father. Insofar as Y is concerned, Professor OO opines that a child with his psychological and emotional development is likely to experience anxiety through the lack of his relationship with the father.
Ultimately, Professor OO recommended that in order to strengthen and improve X’s relationship with his father, when possible, there should be face to face contact and time between them to deal with any anxiety he may experience. It is recommended there be initial supervision at a neutral location and to build on that to allow unsupervised contact between X and the father if he relocates to City D. However, if the father remains in Melbourne, then Professor OO recommends that consideration be given to longer periods of time where the father visits City D and has contact with both children.
It is not practicable for the father to spend substantial and significant time with the father. The distance between the parties is too great.
The agreements the parties have reached have largely overtaken the recommendations of Mr F as to spend time. Mr F recommended that when X is four and Y is two, they should commence spending one overnight time per fortnight on alternate weekends with the father and following the parents participating in mediation at the end of 2023, the children’s time with the father progress to two nights a fortnight each alternate weekend. The children are now 3 and 4 years old respectively.
In the event the mother is ordered to relocate to Melbourne, Mr F recommends that she live within a reasonable distance from the father and it is not recommended the mother move to regional Victoria as it would make a build-up of time between the father and the children “unworkable”.
When questioned about the mother’s ambivalence to the children spending time with the father, Mr F said the issue was how well the children are prepared especially the oldest child. He said both children have had FaceTime contact with the father and they knew who he was and he explained that:
… If they were prepared, “You’re going to finally meet your dad because you’ve seen him on FaceTime regularly” – I mean, [Y] is going to follow his brother, [X]. So it’s really [X] I’m thinking of here.
…
It’s not in person, but the familiarity with who that person was would certainly be there. So I’m really surprised then by what you’re saying was [Ms Donalds’] assessment of how the children didn’t cope with seeing him, almost like they sort of went into the lion’s den and they’ve come out, you know, partially torn clothing or something because they would have known who he is, and if they were prepared, it would have been an opportunity for them to get to know who this person on the screen was all that time.
I have taken into account that, as at July 2022, the parties agreed that the first few introductory periods of time spent should be supervised. The mother maintained that supervision should last for longer. The requirement for supervision was not because that the boys were at risk but so that they could become familiarised with their father. However, since then, the parties were able to agree on three days of time spent in August 2023. I regard those visits as fulfilling the need for introductory supervision and that it is altogether appropriate to now progress to unsupervised time.
The fact that the children live in City D makes time difficult and expensive for the father. The mother would have some capacity to contribute to costs but I would avoid a situation where non-payment by the mother undermines the arrangement to spend time. The father will have to bear the costs initially but will be entitled to make an application to the Child Support Agency to have some of his costs of the visits taken into account in calculation of child support.
CONCLUSION
I do not accept the mother’s allegations of family violence perpetrated by the father against her. I do accept that the father struck Mr B once and shove him three times as alleged.
I am persuaded that a meaningful relationship with the father is vital for the children if they are to reach their full potential. I am very concerned about the mother’s ability to accept that the children will be safe with the father and of the mother’s ability to permit the children to have a meaningful relationship with the father.
Professor OO said numerous times that the mother may benefit from some individual counselling or psychotherapy and some family-based work which looks at her role as a mother and how to better meet the needs of the children and accept the children having a meaningful relationship with the father. However, no therapy was proposed by any party.
Both parents will need support. It is likely that those who support the parents would benefit from access to these reasons for decision. Accordingly, each party will be permitted to provide the reasons and orders to any legal practitioner, medical or allied health professional they retain for themselves or either or both of the children. The father can show his wife. The maternal grandmother or mother can show the mother’s father. The experts, Professor OO and Mr F should be provided with a copy of these reasons by the Independent Children’s lawyer. In due course the reasons can also be provided to the proper officer of the school attended by X and later by Y. The Independent Children’s Lawyer should provide Mr B with a copy. None are compelled to read them but they should be given access.
There are no Orders made in favour of the maternal grandmother because she failed to satisfy the Court that orders were beneficial to the children or necessary. That said, I am confident she will continue to be part of the children’s lives, vocation permitting.
As far as time spent is concerned, I have drawn from the Minute of Final Orders proposed by each party. I have accepted the father’s and Independent Children’s Lawyer’s position because those proposals accord more closely with the children’s best interests. I have specifically not included any differential between the time X spends with the father and the time Y spends with the father. The mother refers to having cut short the last period of time because Y is breastfed in addition to solid foods. If he is going to be hungry during a period of time, the mother should give the father whatever solid food she thinks Y would most like. In any event, the children should participate together in time with the father and that time should be as free of interruption as possible. Counsel for the mother conceded that the father need only provide seven days’ notice of his intention to see the children. However, seven days seems too short a time to me, so I have made it 14 days.
The ability for the father to spend time with the children in Melbourne, as opposed to City D, is delayed until January 2026. That will seem like a long way off to the father, but, on the balance, I am satisfied that it is for the benefit of the children.
I reserve liberty to the parties to apply in relation to implementation of the Orders. If I have misunderstood the position of a party and or it is agreed that an Order should be read differently, I will hear from them. It is not an opportunity to re-argue their case but any errors may be able to be rectified.
I am satisfied that the Orders I make are consistent with the best interests of the children.
I certify that the preceding three hundred and twenty-five (325) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett. Associate:
Dated: 12 February 2024
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