FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE
Duff & Nalani [2023] FedCFamC1F 328
File number(s): BRC 12172 of 2020 Judgment of: CAREW J Date of judgment: 3 May 2023 Catchwords: FAMILY LAW – CHILDREN – Change of residence – Where the mother’s serious allegations of family violence severely restricted the father’s relationship with the child for two and a half years – Where the mother’s allegations of rape and choking against the father are found to be false – Where there is overwhelming evidence in support of the mother’s concession that she perpetrated family violence against the father – Where the mother engaged in coercive and controlling behaviour designed to manipulate the father into remaining in the relationship – Where the evidence raises a real possibility that the mother has a personality disorder – Where the Court cannot be satisfied that the mother has the capacity to facilitate an ongoing relationship between the father and the child if the child remains in the mother’s primary care – Where the family report writer expressed optimism at the child’s ability to cope with a change of residence into the father’s care – Where an order for a change of residence to the father is in the best interests of the child – Where the child will live with the father and spend time with the mother, supervised for a period of two years to enable the mother to undergo intensive therapy Legislation: Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Cases cited: Baghti & Baghti and Ors [2015] FamCAFC 71
Banks & Banks (2015) FLC 93–637
Eastley & Eastley [2022] FedCFamC1A 101
Isles and Nelissen [2022] FedCFamC1A 97
Johnson & Page (2007) FLC 93-344
N and S and the Separate Representative (1996) FLC 92–655
Division: Division 1 First Instance Number of paragraphs: 158 Date of hearing: 20 – 24 March 2023 Place: Brisbane Counsel for the Applicant: Mr R Horsley Solicitor for the Applicant: Legal Aid Queensland Counsel for the Respondent: Mr T Jordan Solicitor for the Respondent: O’Neill Family Law Counsel for the Independent Children’s Lawyer Ms K Oakley Solicitor for the Independent Children’s Lawyer Forest Glen Lawyers ORDER
BRC 12172 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR DUFF
Applicant
AND: MS NALANI
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
CAREW J
DATE OF ORDER:
3 MAY 2023
THE COURT ORDERS THAT:
Parental responsibility
1.The father shall have sole parental responsibility for the child X born … 2019 (“the child”).
2.In the exercise of the father’s sole parental responsibility, he shall:
(a)inform the mother in writing (via the Parenting App, ‘Our Family Wizard’, as agreed to by the parents) about decisions to be made 21 days prior to making any decisions, save in the case of an emergency and then such notice to be provided as soon as practicable;
(b)seek a response from the mother in writing about the decision to be made,…
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- AGLC
- Duff & Nalani [2023] FedCFamC1F 328
- Case
- [2023] FedCFamC1F 328
- Decision Date
CaseChat Overview and Summary
The matter of Duff & Nalani was heard by the Family Court of Australia, which was tasked with determining the best interests of the child, Y, in the context of the mother's application to relocate with the child to K Town or L Town. The father, who is employed as a tradesperson, resides with his parents in Suburb M in Region C and shares custody of the child with the mother, who lives in Q Town, Queensland and L Town. The mother's application to relocate was opposed by the father, who argued that such a move would be detrimental to the child's ability to maintain a meaningful relationship with both parents due to the significant distance between their residences. The court had to decide whether the proposed relocation would be in the child's best interests, considering the potential impact on the child's relationship with both parents.
The primary legal issue before the court was to determine whether the mother's proposed relocation with the child to either K Town or L Town would serve the best interests of the child. This required the court to weigh the benefits of the relocation against the potential harm to the child's relationship with the father. The court considered the mother's credibility and the veracity of her claims, including allegations of family violence and sexual assault against the father, which the court found to be unsubstantiated. The court also examined the history of the parents' relationship, the mother's history of lying to the father, and the impact of the proposed relocation on the child's ability to maintain a meaningful relationship with both parents.
The court found that the mother's proposal to relocate with the child would not be in the child's best interests. The significant distance between the parents' residences would impede the child's ability to have a meaningful relationship with both parents. The court rejected the mother's allegations of family violence and sexual assault, noting the inconsistencies in her accounts and the lack of supporting evidence. The court also considered the mother's history of lying to the father, which undermined her credibility. Ultimately, the court concluded that the proposed relocation would not serve the best interests of the child, given the potential harm to the child's relationship with the father.
In conclusion, the court ordered that the mother's application to relocate with the child to K Town or L Town be dismissed. The court found that such a relocation would not be in the child's best interests, due to the significant distance between the parents and the potential harm to the child's relationship with the father. The court's decision was based on the evidence presented, including the mother's history of lying and the unsubstantiated allegations of family violence and sexual assault. The court's primary consideration was the best interests of the child, which it determined would be best served by maintaining the existing custody arrangement and ensuring the child's ability to maintain a meaningful relationship with both parents.
The primary legal issue before the court was to determine whether the mother's proposed relocation with the child to either K Town or L Town would serve the best interests of the child. This required the court to weigh the benefits of the relocation against the potential harm to the child's relationship with the father. The court considered the mother's credibility and the veracity of her claims, including allegations of family violence and sexual assault against the father, which the court found to be unsubstantiated. The court also examined the history of the parents' relationship, the mother's history of lying to the father, and the impact of the proposed relocation on the child's ability to maintain a meaningful relationship with both parents.
The court found that the mother's proposal to relocate with the child would not be in the child's best interests. The significant distance between the parents' residences would impede the child's ability to have a meaningful relationship with both parents. The court rejected the mother's allegations of family violence and sexual assault, noting the inconsistencies in her accounts and the lack of supporting evidence. The court also considered the mother's history of lying to the father, which undermined her credibility. Ultimately, the court concluded that the proposed relocation would not serve the best interests of the child, given the potential harm to the child's relationship with the father.
In conclusion, the court ordered that the mother's application to relocate with the child to K Town or L Town be dismissed. The court found that such a relocation would not be in the child's best interests, due to the significant distance between the parents and the potential harm to the child's relationship with the father. The court's decision was based on the evidence presented, including the mother's history of lying and the unsubstantiated allegations of family violence and sexual assault. The court's primary consideration was the best interests of the child, which it determined would be best served by maintaining the existing custody arrangement and ensuring the child's ability to maintain a meaningful relationship with both parents.
Orders
Orders of the court
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Background
Background to the litigation
Even if the mother had not abandoned her application to relocate with the child to K Town or L Town, I would not have found that such an arrangement would be in the child’s best interests. The distance between the parents would have been too great and would have impeded the child having a meaningful relationship with both parents. BACKGROUND The father is 27 years of age and employed full-time as a tradesperson. He resides with his parents at Suburb M in Region C. The father has a child with another woman, Ms N, although they are not and never have been in a relationship. The father met Ms N online in 2021. The child, Y, was born in 2022. Y lives in City P with his mother and spends time with the father every second weekend. The father and Ms N appear to have an amicable co-parenting relationship, and Ms N is contemplating relocating to Region C. Ms N has another child, aged four, who has no current relationship with her father. The mother is 23 years of age and is not currently employed. She receives a parenting payment and other benefits from Centrelink, in the amount of $1,300 per fortnight. She lives with her grandmother and her grandmother’s boyfriend in Q Town, Queensland for part of the week and for the other part with her parents in L Town, who recently obtained rental accommodation there. The mother previously lived with her parents in Q Town, prior to their interim move to K Town, Queensland in 2022. The mother’s parents have put their permanent relocation to K Town on hold. The father and mother first met in 2018 in Q Town. The mother met up with the father and his friends to purchase an illicit substance from the father. The father disagrees with some of the mother’s recollection of events, clarifying that it was his friend selling the drug to the mother, not him. However, the father concedes he was present. The parents commenced a de facto relationship in 2018 and separated a year later in March 2019. The parties briefly reconciled in late 2019 before separating on a final basis on 6 February 2020. X is the only child of the relationship and was born in 2019. In mid-2019, and while separated from the mother, the father relocated to Region C to live with his parents. The child was several weeks old at the time. The father contends that while he did not want to leave Q Town as he had a good job there and the support of friends, he felt that he “could not continue to live close to [the mother] and the roller-coaster we seemed to be on” and he believed that “making the break would reduce the stress, anxiety and upset that [the mother] and I both seemed to be experiencing”. In June 2019, the mother informed the father that she would be coming to Region C to visit a former boyfriend called Mr R and that if they (she and Mr R) got back together she would relocate to Region C. The mother had previously told the father that Mr R had raped her during their relationship. On informing the father of her planned visit, the mother extended an offer to “bring [the child] over and drop her off for a bit”. The father accepted this offer, sending the mother a text message that his aunt had offered her home for the visit. The mother proceeded to rescind her offer to leave the child alone with the father, indicating a fear the child would not be returned to her.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
The mother admits to lying to the father on numerous occasions including the following:(a)Telling the father on 13 March 2019, that ‘Mr R’ had “kneed” her while she was at a bar when he had not done so;(b)Telling the father on 26 May 2019 that she had taken money from the person who raped her when she had not done so;(c)Telling the father on 29 May 2019 that doctors had told her that there was something wrong with the child’s heart and that she was taking the child to hospital in City P when there was nothing wrong with the child’s heart and the mother did not take the child to hospital in City P;(d)Telling the father on 7 June 2019 that she was pregnant to the father when she was not pregnant;(e)Telling the father on 20 February 2020 that she had been to the doctor that day for an abortion and had been given the abortion pill, which she had taken at the doctor’s surgery and that she was experiencing cramps, bleeding and had fainted, when none of that was true (the mother even swore on the child’s life that it was true at the time);(f)Telling the father on 14 March 2020, that she had screenshots of a series of text messages between the father and another person in which the father asked for the mother’s drink to be ‘spiked’, when that was untrue;(g)Telling the father on 6 April 2019 the child had died in utero.Conclusion – allegations of family violence including sexual assault Other than where admissions are made by the father, I reject the allegations made by the mother that she was subjected to family violence perpetrated by the father, including sexual and physical assault. My reasons for so concluding include the following findings:(a)The many inconsistencies in the mother’s version of events including as set out in [66], [68], [69];(b)The failure to mention any alleged rape until 1 March 2020, shortly after the parents separated, and seemingly as a result of suspecting that the father had engaged in sexual activity with another woman;(c)The manufacture of evidence by the mother e.g. taking a photo of neck redness caused by herself and attributing it to an injury caused by the father after allegedly choking her;(d)The implausibility of the mother’s statement that she was scared of the father as a result of him engaging in “hateful” sex with her on 24 August 2018 given the content of her sexually suggestive text messages to him on 25 August 2018;(e)Despite the incessant chronicling of daily life in text messages, there is nothing in the text messages for the month of February 2019 suggestive of any rape;(f)Contrary to the mother’s allegation that the February 2019 rape occurred late at night or at 2.00 am, the text message exchanges throughout February 2019 do not support the contention that the father arrived home late on any occasion during February 2019; (a)The insistence by the mother that the description by her of “paper cuts” in her genitals was unrelated to the diagnosis of a medical condition despite her text messages to the father on 3 March 2019 and 7 March 2019 referring to the diagnosis of a medical condition and/or the treatment;(b)The incongruence with her allegation of rape in February 2019 and her text message to the father on 7 March 2019 complaining about him not wanting to have sex with her;(c)The incongruence with her allegation of rape in February 2019, and her text message to the father on 26 May 2019 stating that she felt safe with the father and regretted breaking up with him;(d)The failure to produce any video or photographic evidence of the alleged rape (other than one photo of bruising to a thigh) despite alleging she had videos and photographs of bruising caused by the father in her text to the father on 6 March 2020;(e)The reference in her text message on 6 March 2020 to the video and photographic evidence of bruising received as a result of those “nights” when the allegation made by the mother is that there was only one occasion she suffered bruising as a result of rape/sexual assault;(f)The baseless allegation that the father had conspired with someone to spike her drink in or about May 2019, an allegation the mother now disavows;(g)The likely fabrication of an allegation that she was drugged and raped by a third party in or about May 2019; (h)The fabrication of the mother’s claim in a text message to the father on 26 May 2019, that as a result of the alleged rape she had bruises “all over my body”;(i)The fabrication of the alleged rapist coming to her home and spitting in her face;(j)The admitted fabrication of a claim by her on 26 May 2019 to the father that she had told her alleged rapist that "he has to give me 20 grand and he has already given me $400 so I'll see how much money he gives me and then I'll go to the Police".(k)The many extraordinary lies admitted by the mother including as set out at [91];(l)The mother’s attempt to shift some of the blame for the falsehoods told or maintained by her to a friend of hers called “Ms S”, when even if the friend had written the particular text messages, the mother maintained the lies e.g. that in the late stages of her pregnancy she had been taken by ambulance to City P Hospital because no heartbeat for the foetus could be found;(m)The mother’s use of an old photograph of damage to her car in an attempt to bolster her claim that she had been involved in a car accident on 22 June 2019;(n)The manipulation of the father into agreeing to her spending overnight with him on 14 February 2020 (discussed later in these Reasons);(o)The manipulation of the father into being in a relationship with her by using his wish to spend time with the child;(p)The attempted manipulation of the father into being in a relationship with her by threatening self-harm;(q)The suggestion to the father that he had or would in the future sexually abuse the child when, on her own admission, she at no time held such a belief or held such concerns.
Ratio Decidendi
Legal Principle Established
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