ELDRIDGE & ELDRIDGE (No.2)
[2019] FCCA 2280
•19 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ELDRIDGE & ELDRIDGE (No.2) | [2019] FCCA 2280 |
| Catchwords: FAMILY LAW – Parenting – relocation – family violence – children to live with the mother – mother permitted to remain within 300km of Sydney. |
| Legislation: Crimes (Sentencing Procedure) Act 1999 (NSW), ss.9, 10 |
| Cases cited: Godfrey & Sanders (2007) 208 FLR 287 |
| Applicant: | MR ELDRIDGE |
| Respondent: | MS ELDRIDGE |
| File Number: | TVC 229 of 2017 |
| Judgment of: | Judge Boyle |
| Hearing dates: | 26, 27 November 2019, 8 March 2019, 21 March 2019 |
| Date of Last Submission: | 21 March 2019 |
| Delivered at: | Sydney |
| Delivered on: | 19 August 2019 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondent: | Mr Anderson |
| Solicitors for the Respondent: | Direct brief |
| Counsel for the Independent Children's Lawyer: | Ms Rebehy |
| Solicitors for the Independent Children's Lawyer: | Shedden & Associates |
ORDERS
That all previous parenting orders in this matter be discharged.
That the mother shall have sole parental responsibility for the children X born in 2013, and Y born in 2014 (“the children”).
That the children live with the mother.
That the mother shall inform the father (by email or text message) at least fourteen (14) days before making:
(a)any proposed change in the children’s school or day care;
(b)any surgery or serious medical treatment the children are to undergo, other than emergency treatment; and
(c)any proposed change in residential address.
The parties shall keep each other advised of their residential address and mobile telephone number, and keep each other informed of any change to their respective contact details within forty eight (48) hours of any such change.
That the father may communicate directly with any school, pre-school or day care that the children may attend, and the mother shall authorise the school pre-school or day care to communicate with the father so that the school may provide to him, at his request, copies of the children’s school or pre-school reports, and school or equivalent photographs.
The mother shall not move the children’s residence outside of 300 kilometres from Kingsford Smith Airport, Sydney, without the father’s written consent.
The children shall spend time with, and communicate with, the father as follows:
(a)Each Sunday at 6pm by Skype, Facetime or similar, with the father to nominate the form of audio visual communication to the mother and initiate the call, and the mother shall make the children available to take the father’s call.
(b)For a period of between two (2) to six (6) hours, on one (1) day in each of the NSW school term holidays and one (1) day in each school term through an authorised Contact Centre as agreed, and failing agreement by B Contact Centre, Region C at D Street, Suburb E, NSW.
(c)That for the purpose of supervised time, within seven (7) days of these Orders the parties shall contact B Contact Centre, Region C and do all acts and things necessary to complete the intake required for use of the service.
(d)In the event the father wishes to use an accredited private supervising service, such as F Family Services, he shall provide the mother with two (2) month’s written notice of his intention to spend time with children using the private service, and the mother shall contact the supervising service within seven (7) days of receiving the notice and do all acts and things to enable the children’s time with the father to be supervised by such service.
(e)The father shall meet the costs of the Contact Centre or private supervising service.
(f)The father shall spend time with the children at such other times as may be agreed between the parties in writing.
The father shall not consume any alcohol or illicit drugs within twenty four (24) hours prior to spending time with the children or while the children are in his care.
The mother shall not consume alcohol beyond the legally prescribed blood alcohol limit for driving a motor vehicle while the children are in her care.
The mother shall ensure the children are not in the presence of any person who is under the influence of illicit drugs or under the influence of alcohol beyond the legally prescribed blood alcohol limit for driving a motor vehicle.
The parties are restrained from denigrating the other in the presence or hearing the children, or discussing these proceedings with the children, or allowing any other person to do so.
The parties shall ensure the children do not access mobile phones, computers or other devices that contain adult material and that any such content stored on mobile phones, computers or other devices is only able to be accessed by passwords or other protections which the children cannot open.
The father is entitled to send to the children gifts, cards and photographs or videos by providing these to the mother’s residential address or electronically, and the mother shall ensure the children receive these items as long as they are appropriate, and encourage the children to respond to the father.
IT IS NOTED that publication of this judgment under the pseudonym Eldridge & Eldridge (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
TVC 229 of 2017
| MR ELDRIDGE |
Applicant
And
| MS ELDRIDGE |
Respondent
REASONS FOR JUDGMENT
These are parenting proceedings with respect to the children X, aged five, and Y aged four.
The father seeks that the mother return the children to Town G, and that the children live in an equal time arrangement. If the mother does not wish to return with the children, he proposes that they live with him in Town G, Queensland. He seeks that parental responsibility be shared between the parties.
The mother seeks that she have sole parental responsibility for the children. Further, she seeks that she be permitted to live with the children within a 300 km radius of Sydney airport. This would permit her to move from the Region H area to Canberra. She seeks that time between the children and the father occur at a supervised contact centre.
The Independent Children’s Lawyer (“ICL”) seeks that the mother have sole parental responsibility, with an obligation to keep the father informed about matters concerning their long term welfare. The orders for time are broadly in agreement with the mother, specifically, that time occur for one day during school holidays and school terms at a supervised contact centre, or through an accredited private supervising service, at the father’s expense. Restraints were sought on each parent’s consumption of alcohol, and the children having access to devices which may contain adult material.
The father has a hearing difficulty, and utilised the hearing loop to participate in the proceedings.
Background
The parents are both 37 years old. They commenced a relationship in 2010, married in 2016, and separated on 8 January 2017. They lived together in Town G, Queensland. The father worked throughout the relationship as a self-employed tradesman. The mother worked as a health care worker.
The father has an older son J, who lives with his mother in Brisbane. They previously resided on the Region K. J spent time with the parties during their relationship. He has continued to spend time with the father. The mother has a good relationship with J’s mother. They have facilitated communication between the children and J.
The mother has been in a relationship with Mr L since early 2017. They knew each other previously, and commenced a relationship shortly after separation. They have a child M, born in 2018. Mr L is a tradesman. He has a 3 year contract for a work in Canberra. He has been travelling back to the Region H to spend time with the mother and children on weekends.
The father is in a relationship with Ms N. They met in mid-2017. She has two children: O aged 13 and P aged 11. They live with her in the Region K. She works from home for a local employer. It was her intention during the hearing to move to Town G over the 2018 Christmas holidays. She planned to rent a property, so she could assess how the relationship progresses. Her children have spent time with J on holidays.
Issues
The issues for determination are:
a)Whether either parent consumes alcohol in a manner that poses an unacceptable risk for the children spending time with them;
b)How any risk posed by the father for the children could be ameliorated;
c)Whether the mother should be required to return the children to the Town G area; and
d)Whether there should there be restrictions on whether the mother resides in the Region H or Canberra area, and on the children’s relationship with her partner.
The circumstances leading up to separation in December 2016 are contentious, and are dealt with below. There is no dispute that following separation the mother left the home in Town G with the children, and travelled to the Region H area where both of her parents reside. The maternal grandparents are separated, and on good terms.
The father commenced proceedings when he became aware that the mother did not intend returning the children to Town G. Orders were made on 21 March 2017 permitting the children to remain living with the mother on the Region H of NSW, and for the children to spend supervised time with the father. The father was directed to undergo CDT testing. Although the Orders are headed “Consent Orders”, I accept that Orders were made by a Judge following an interim hearing, and were not by consent. As part of those Orders the proceedings were transferred to the Wollongong registry of the Federal Circuit Court.
The children have spent time with the father twice since separation. One occasion was on 10 January 2018 for the purposes of the Family Report interviews. The mother has organised time between the children and paternal family members, when the father was not present, in July and December 2017. Attempts were made on another occasion between the mother and paternal grandmother for time, which did not occur.
Parties’ use of alcohol
The parties’ relationship deteriorated leading up to separation. The mother readily acknowledged there were times she drank to excess, was argumentative with the father, and behaved badly.
The father found it difficult to answer questions about his use of alcohol during the relationship. He was keen to describe a level of consumption that did not make him “an alcoholic”, and relied on results from CDT testing to “demonstrate” that. He was not able to consider when cross-examined that his behaviour when drinking was problematic for the mother, the children, and himself. This is regardless of whether his consumption fits any particular description. The father has been convicted of offences after consuming alcohol.
His evidence about the amount of alcohol he consumes was inconsistent. Initially he said four light beers on five days per week, and “I write myself off” once in a blue moon; he then agreed that his Affidavit is accurate, that is six beers per day. That is consistent with his advice to the Family Report writer.
The father did not comply with time requirements for CDT testing, as prescribed by Orders. He completed one test 30 days after the request, rather than 3 days as specified. Although legally represented at the time of the orders, he said he did not understand what was required. His evidence was there were problems obtaining the testing, as he needed a referral from his GP. Testing cost over $300. When a second request was made on 23 July 2017, he did not comply until 4 August 2017. The father’s conduct leaves me with doubts about the accuracy of testing done. I accept he was aware that results from accurate testing was important evidence in these proceedings.
The father had some counselling with respect to his use of alcohol after separating from J’s mother in 2011 and 2012. In 2017 he attended on two occasions for drug and alcohol counselling. His evidence was he was advised that he was not an alcoholic, just “an everyday person”. He did not think about alcohol consumption as affecting his mood, or making him irritable, or having an impact on others.
Consent Orders made with the father’s previous partner about his time with J specified that neither party was “to consume alcohol such that they would be over the driving limit whilst the child is in their care.”[1] The father did not comply with those Orders.
[1] Mother’s Affidavit filed 6 November 2018, Annexure 26.
On 3 December 2016 the mother was working a night shift as a health care worker at Employer Q. The children, including J, were at the parties’ home. The parties argued at about 7pm. The mother had a sleep prior to commencing work. When she tried to leave for work at 9pm her car was disabled. She took the father’s vehicle. Once at work, the mother notified the police that she had the father’s vehicle. The father contacted police later that evening to complain his vehicle and trailer had been removed from his home. The police advised it was at Employer Q. He said that he could not attend at Employer Q as he had young children at home, and had tried to contact the mother to make sure the trailer was locked.
The mother contacted police at 12:55am to advise that the father was at the hospital intoxicated, and had left the 3 children home alone. J was 8 years old, X was 3 years old and Y 2 years old.
The police and mother arrived at the home to find the children asleep. When interviewed by the police, the father told them he and the mother argued. He had gone to the pub to buy beer. He argued variously that the mother left the children at home alone and went to work, and that J would have been able to look after himself and the younger children if they woke.[2] The police records refer to footage on the mother’s telephone of the father drunk and yelling at her, saying he had disabled her car.
[2] Exhibit ICL5, Records of Queensland Police.
When cross-examined the father agreed he left a note on the mother’s car “this is my car ride your bike.” He did so because: “she uses and abuses everything of mine. I’m sick and tired of her use and abuse … the car was registered in her name … I filled it and paid for the registration.” The father suggested that a babysitter was present; this was inconsistent with his own statements to police, the observations of the police, and his subsequent convictions. I accept that the father left the 3 children unattended at the home, which was unsafe for them.
The mother’s evidence was that she had an App on her mobile phone which connects to a baby monitor, so that she could keep an eye on the children when at work. The father’s hearing difficulties meant he was unlikely to wake to them crying during the night, and the mother used the App to check on them. She could return home if required. I accept that the father interfered with this, so that the mother was blocked from observing the children. This added to her fears for the children that night.
The father was arrested by the police, and taken to the Watch House in Town G. When released the following day the police attended at the home to remove weapons, that being a condition of his release. The father would not initially provide the police with the key to a gun safe. Once the safe was opened the father was arrested on firearms offences.
At the Watch House the father broke a wall mounted camera and furniture, and used a pillow case to smear faeces on the wall of the cell. His evidence was he was angry because he did not know why he was in the cells, and no one told him what was happening.
The father was fined with no conviction recorded with respect to charges of wilful damage, firearms offenses, and leaving a child under 12 unattended. An Apprehended Violence Order (“AVO”) was granted for a period of 2 years for the protection of the mother in Queensland. It expired on 19 December 2018. The father told the Family Report writer that he did not know what led to the granting of the AVO, as he “just pleaded guilty” because he could not afford legal representation. I find that the father engaged in family violence that night, and that his conduct put the children at risk.
Alcohol was a factor in the father’s conduct on the night of 3 December 2016. He was, on his own admission, unable to drive a car after consuming at least 7 to 8 beers. He had not complied with Orders restraining his use of alcohol when J was in his care.
The father has previously been convicted of driving under the influence, and has twice been required to have an Interlock device fitted to his car. The last of those occasions was in 2014.
The mother referred to the father’s conduct when angry during the relationship, and that he threw the children’s toys, and beer bottles over the balcony of their home. She alleges that he cut the cord for the television. The father denied this conduct. The mother’s evidence was compelling, and is consistent with the conduct that has brought him to the attention of the police. I find that the mother’s evidence is more believable.
The father sought to minimise the role of alcohol in his life, and has denied that drinking is an issue for him. Since 2009 alcohol has caused him to come to the adverse attention of the police on a number of occasions, including whilst driving. It has interfered with his ability to care for his children by impairing his judgment, so that he engaged in behaviour such as leaving the children home alone at night. It has played a role in his losing his temper, and engaging in aggressive behaviour. On the evidence I accept that consumption of alcohol has caused problems for the father over the course of his adult life.
The Family Report writer describes the father as: “somewhat abrasive throughout his individual interviews. On several occasions he said that, ‘no one tells me what to do’”. He reacted in a somewhat ‘prickly’ manner when the Family Report writer indicated …. “He needed to allow X and Y to settle before approaching them.” This description is consistent with the father’s demeanour when cross-examined in these proceedings.
The father alleges that the mother was the aggressor in their relationship, particularly after consuming alcohol. The mother accepted her use of alcohol was problematic when she and the father were together. She acknowledged smashing a dinner service on the father’s 30th birthday, and being involved in a drunken altercation with another woman in 2015. Her evidence is that on that occasion she and the father were drunk, and he pushed her to the ground. She fought with another woman, but maintained the other woman initiated the fight.
The mother sought assistance from R Counsellors following separation in understanding her behaviour, and excessive drinking. I accept that she has developed insight into her conduct, which has not persisted following separation.
The children have been attended S childcare since February 2017. The director Ms T gave evidence in these proceedings. I accept that the children are progressing well, so far as she has observed them. During the course of her evidence it became clear that online information available to parents was not readily accessible by two separated parents. I accept that the mother was unaware of the difficulty.
I accept that the father was frustrated in trying to get information about the children’s progress. I also accept his manner in dealing with Ms T was hostile and aggressive. This did not assist his receiving information about the children at day care.
Mother’s Mobile Telephone
Shortly prior to the resumption of the hearing the children spent time with the father supervised by his mother, on the Region H. A telephone was found by the father in his mother’s car after the children were returned. He recognised it as the telephone X was using during the visit to play games. She had shown the father how to edit photographs on the mobile. The father looked through the telephone after finding it. There were photographs on the telephone taken in 2013, 2014 and 2017, of an adult nature involving the mother, and father.
I rejected an application to receive the photographs into evidence because the mother conceded that the photographs contained adult content, were not appropriate to be viewed by the children, and should not have been stored on a device used by the children. I accept that she was unaware the photographs were there. In those circumstances the probative value was outweighed by the prejudicial nature of the photographs. There is no evidence that either child saw the photographs.
The mother is in a relationship with Mr L. They commenced a relationship in early 2017, although they first met some 11 years earlier. The father points to differences in dates specified by the mother and her partner as to the commencement of the relationship between late January and February/March 2017. I do not regard these differences as significant.
Mr L was in a serious car accident in February 2019, whilst driving to Canberra from Town U for work early in the morning. The accident was caused by the other driver. He sustained injuries to the right side of his body, and was off work on worker’s compensation until at mid March 2019. He was undertaking physiotherapy, and has seen a psychiatrist to deal with the trauma of the accident.
Mr L’s Affidavit made no reference to any convictions in criminal matters, nor AVO’s taken against him. Such matters are relevant for the Court to know in parenting proceedings where he wishes to live with the children.
Mr L was convicted of driving offences in 2004, and a midrange PCA in 2008. In 2010 he was convicted of possession of a prohibited drug, for which he received a Section 10 bond.[3] He was found to have a small bag of ice in his possession. His evidence is that he has never used ice, and that the drugs belonged to a friend. He was placed on a two-year good behaviour bond, and understood that if he did not breach the bond, the conviction would come off his record. He used that as the reason those matters were not in his affidavit.
[3] Crimes (Sentencing Procedure) Act 1999 (NSW).
He received a Section 9 bond with respect to possession of an unregistered firearm, and buying a firearm without a dealer in 2010.[4] He advised that he no longer holds a gun license, nor any firearms. He previously held a gun license in Victoria, and owned firearms.
[4] Crimes (Sentencing Procedure) Act 1999 (NSW).
In January 2019 Mr L provided a hair follicle sample at the request of the ICL, which tested positive to cocaine. He made no reference to use of cocaine in his Affidavit. When cross-examined he said he had not used cocaine for three months prior to giving evidence. In the period late 2017 to December 2018 he used cocaine 5 to 8 times. He said he used on weekends in Canberra, when the children were not present. Mr L’s evidence was that when he spoke to the mother about it, it became clear it was a “deal breaker” for her if he used drugs. He sought assistance from a psychologist, and in mid-December 2018 he was diagnosed with ADHD. He had not previously been diagnosed with this condition.
He gave evidence that he sought help because he is a carer for X and Y, and now a father to M. He accepted that this was incompatible with drug use. He was prescribed medication for ADHD on 15 December 2018, and has not used cocaine since. He conceded that whilst working away from home he was drinking more. He was advised that this was likely to be connected to the ADHD diagnosis, as a form of self-medicating. He accepted that the CDT tests conducted would suggest excessive drinking from time to time.
When cross-examined he was asked if there was anything else he had neglected to advise the court in his Affidavit. He volunteered that an AVO was made against him in 2013. It was in the context of separating from a former partner. His evidence is that his former partner made statements to the police that were not true, leading to the AVO being brought. He did not contest the AVO as they had separated, and he wanted nothing to do with her. The complaint alleged that he attended at her home and refused to leave. He became aggressive and pushed her. After leaving, he remained outside yelling at her. He was still outside the home at 3am. Text communication between the complainant and Mr L from May 2018 support his contention that she initiated a pleasant exchange between them, and congratulated him on becoming a father.[5]
[5] Exhibit M7.
Mr L has been recently diagnosed with ADHD, and sought appropriate treatment. I accept that he has taken steps to address the problems that led him to consume cocaine, and drink excessively.
That Mr L did not volunteer information about convictions for criminal matters, although relevant to the parenting of children, is concerning. In weighing whether he poses a risk to X and Y I have had regard to the time that has elapsed since the AVO, that it was made by consent, and never breached. He has not been convicted of offenses involving violence. The SMS communication tendered supports that the complainant has not remained fearful of him.
With regard to the firearms offences, it was a considerable time ago and he no longer owns a firearm. His evidence is that he does not intend to do so, at least whilst the children are young. I accept his evidence, and the mother’s and her parents, that he shares a close relationship with X and Y. Taking into account these matters, and that he has sought assistance, supports the view that he does not pose a risk to X and Y.
Mr L’s employment involves working as a tradesman on building sites. He works from 5:30am or 6am until 4:30pm to 6pm, Monday to Friday. He is not required to work half day on Saturday, which is covered by the foreman. The hours may vary, depending on the particular work done on any given day. He is under a five year contract.
I accept that Mr L’s work requires that he live in a place where there are major constructions, such as a capital city. The Region H area does not provide the sort of work that he requires.
Mr L’s brother and nephew reside in the Canberra area. His father lives in the Region H area. He is provided with accommodation through his work, through salary sacrifice.
Mr L was asked by the father what the children call him. He said after a day at childcare they often called him dad, and on other days call him Mr L. He accepted that this was an emotional issue for the father, as it would be for him with M. There is no evidence that the mother and Mr L encourage X and Y to refer to Mr L as “Dad.” I accept the children are likely to do this given that is how he is referred to with respect to M, and what the children hear at childcare. The children usually refer to their father, so far as Mr L is aware, as “Daddy Mr Eldridge”. Whilst the father may prefer they did not, it is a title that confirms he is the children’s father, and special for them.
The Law
The best interests of the children are paramount in parenting proceedings. The Family Law Act 1975 (Cth) (“The Act”) at section 60CC provides the legislative pathway to determine children’s best interests.[6]
Primary considerations
Section 60CC(2) The primary considerations are:
[6] Goode & Goode [2006] FamCA 1346.
(a) Benefit to the children of having a meaningful relationship with both of their parents
The children benefit from a close and loving relationship with their mother. I accept that she has been their primary carer throughout their lives, and is responsive to their needs.
Separation occurred when the children were very young. They have not developed a close relationship with their father. Whilst I accept there are benefits to the children knowing their father, and having the benefit of a meaningful relationship with him, that needs to be developed over time, and in a manner that is safe for them.
(b) the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There has been significant conflict between the parties, particularly towards the end of their relationship. The children have been exposed to arguments and aggressive behaviour between their parents. The father has engaged in family violence towards the mother. It is critical for the children’s development that they be protected from exposure to conflict between their parents.
There is a risk of the children being subjected to, or exposed to, abuse, neglect and family violence in the father’s care. I accept that he would not intentionally harm the children, however, his use of alcohol and anger towards the mother have the potential to overwhelm his ability to prioritise the children’s needs and safety.
Although the father’s use of alcohol has caused difficulties for him over many years, he has taken no consistent steps to address it. The father submitted that the children are not in any danger as there has only been one incident. This ignores his past history of problematic conduct, particularly after consuming alcohol. I find that his lack of insight into the impact of alcohol use on his conduct, causes the children to be at risk of physical or psychological harm if alone in his care. Supervised time ameliorates the risk for the children spending time with the father, by ensuring their physical safety.
Both the maternal and paternal grandmothers described when cross-examined X’s extreme distress when time occurred on the Region H. I accept that both women were upset by X’s distress. The paternal grandmother has, at times, not wished to commit to supervising time between the father and children. Supervision by an independent person, or organisation, is likely to prevent additional stress on the children by providing certainty. The father’s evidence is that he can react poorly when he perceives himself as being controlled, or told what to do. It may be harder for this dynamic to be managed by a family member. It is important that the children’s interests when spending time with the father are not sidelined by disputes between the father and supervisor. I accept that an experienced, independent supervisor is better able to manage such issues.
The ICL sought an Order that the father be restrained from attending within 100 km the children’s residence or school, without the written consent of the mother. There is no evidence before the Court the father has done so since the AVO expired in December 2018. I do not propose making such an Order.
Additional considerations
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views.
Neither of the children are at an age or stage of development where their views could be given weight.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
And
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
The mother has a close and loving relationship with both of the children. She has been their primary carer throughout their lives, and is thoughtful of their needs.
The father’s relationship with the children has not had an opportunity to develop, given their age at separation. The children’s relationship with their father could not currently sustain them for extended periods of time away from their mother.
The geographical difficulties on time arrangements are significant. It has been expensive and time consuming for the father to pursue a relationship with the children. He has, however, not utilised communication such as Skype or Facetime to maintain the children’s connection with him.
The relationship between the children and their brother J is significant for both children, particularly X. The Family Report writer noted: “It is evident that J and X have a close bond with each other.”[7] The evidence supports that the mother encourages their relationship, and has been in contact with J’s mother. The father supports the children’s relationship with J, as indicated by his bringing J to the Family Report interviews.
[7] Family Report, paragraph 69.
The children have close relationships with each other. They live with their little brother M, and I accept they are developing close relationships with him.
The maternal grandparents have both provided support to the mother, and since the move to the Region H, have spent consistent time with the children. The maternal grandmother particularly has frequent time with the children, including involvement in their weekly routines. I accept that those relationships are important to the children.
The mother’s partner is developing a close relationship with the children. Although living separately from them during the week whilst he works in Canberra, I accept that the children regard him as a significant person for them.
The mother has supported the children’s relationships with their extended paternal family by arranging for them to attend a celebration for Christmas in 2017. She has also had communication with the paternal grandmother to facilitate a relationship with the children.
The mother’s move to the Region H has inhibited the children’s relationship with their father from developing. I accept that she left to seek assistance from her family on the Region H of NSW.
Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) To participate in making decisions about long-term issues in relation to the child;
(ii) to spend time with the child; and
(iii) to communicate with the child.
The father has rejected communicating with the children by electronic means, such as Skype. He regards that as something used by prisoners, and that he should not be subjected to using such forms of communication. His answers on this subject made it clear that he did not consider whether the children may benefit from electronic communication with him.
I accept that for the children maintaining a connection between visits through electronic means is helpful. It gives them the opportunity to see and hear their father, so that he remains familiar to them. If properly supported by the mother, and utilised by the father, it is a useful tool for them. They are familiar with using it to communicate with the maternal grandmother, and Mr L. I accept that it is not a substitute for face to face time. There have been Orders for it to occur several times each week, which has not worked well. Once each week is likely to be more manageable for the children, and the adults required to support it.
The father travelled with J to City V for the Family Report interviews. Rather than make arrangements to see the children around that visit, he indicated to the Family Report writer that he had to return to Town G for work. As it transpired he went camping at Town W with his partner, and other members of his family. It is inexplicable that he did not make arrangements to see the children whilst he was available in the area.
Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child
The father is self-employed. He pays child support of $35 per month, which is the statutory minimum. There is no indication that this is likely to change, despite his evidence that he works full time. Time arrangements in NSW or Canberra will be a significant expense for the father, but do not provide an explanation of the current rate of support paid. He has neither paid appropriate child support, nor borne those expenses as yet.
The mother and children are financially supported by Mr L. The maternal grandparents also provide assistance, such as use of a motor vehicle.
Section 60CC(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of her or his parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom she or he has been living;
The maternal grandparents are both moving, independently, to the Region Z area. If the mother and children are residing in Canberra they intend to see them regularly, although clearly it would not be as frequent as it has been.
Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis.
The father could not contemplate Orders for time to occur other than in Town G. He was affronted at the suggestion that there may be ways for him to maintain a relationship with the children, other than in accordance with what he wishes. This is despite the father having a number of family members, including his mother, available in the Sydney area.
The father has successfully maintained a relationship with J through time on occasional weekends, and school holidays. I accept that the distance is not as far as with X and Y, but it is still significant. J now resides in the Brisbane area. It is clear that when the father is determined to do something, he is able to manage it.
The mother’s partner, and father of her youngest child is working in Canberra. He is able to provide a suitable home for the mother and children there. If the children are living in Canberra the mother could take them to Sydney for time arrangements, where the father has support. There is also the option of a supervised centre in Canberra where time could occur.
Section 60CC(3)(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child)
to provide for the needs of the child, including emotional and intellectual needs.
I accept on the evidence that the mother has met the children’s needs, particularly since separation.
I have referred to problems experienced by Mr L with regard to drugs and alcohol. There is no evidence this is an ongoing issue for him that would interfere with his capacity to assist the mother in the children’ care.
I have previously addressed my concerns about the father’s use of alcohol, and the impact it has had on his anger, and capacity to parent the children. He has not consistently sought any assistance with anger management, nor alcohol consumption. Were he to demonstrably do so, there may be the possibility of time occurring other than on a supervised basis.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant.
These are young children from a similar cultural background through both their parents. This is not a significant factor in determining the issues in this matter.
Section 60CC(3)(j) any family violence involving the children or a member of the child’s family.
There has been family violence by the father towards the mother, as referred to previously in the judgment. The father demonstrated at times an angry and resentful attitude to the mother during the course of the hearing. I accept that his behaviour can be threatening. Arrangements for changeovers need to be made in a manner that is safe for the mother, and children.
Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
A final AVO was granted for a period of 2 years in Queensland, for the protection of the mother and children. That order expired on 19 December 2018. It was made as a consequence of the events around separation, which are set out in detail earlier in this judgment.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
This is a matter where these Orders may not prevent further proceedings. Were the father to provide the mother with evidence of his obtaining assistance from a men’s behavioural change style of programme, and for alcohol use, there may be a possibility of different time arrangements with the children. In order for that to occur the father would need to, additionally, build his relationship with the children in the manner provided in these orders.
Relocation
The father has lived in Town G for the past 20 years, since he moved there from Sydney. He works as a self-employed tradesman. The parties resided in Town G over the course of their relationship. At separation the mother moved to the Region H of NSW with the children, where her parents were residing. The mother wishes to be permitted to reside with the children within 300kms of Sydney airport. This would permit her to live in Canberra with her partner, or on the Region H of NSW.
The father was clear that he is settled in Town G, and will not consider living elsewhere. Neither party has any family support in the Town G area. The father has family in Sydney, and in Queensland. The mother’s supports are her parents in the Region H area, and Mr L in Canberra.
I accept that the mother left Town G in circumstances where she had no family support in the area, and the care of two infant children. She moved to the Region H area where both her parents were residing, and she could have accommodation without expense.
Were the mother to be successful in her Application she has the benefit of a home with Mr L, who wishes to participate in the life of M. There is no evidence of any difficulties in the relationship between Mr L, and X and Y, however they have not formed part of one household on a continuing basis.
On the Orders sought by the father, the mother would be required to return to the Town G area. In the course of the hearing he suggested that Brisbane would be a compromise. From his perspective it is closer to Town G; travel would be easier; it is where J lives; and there would be suitable work for Mr L. Mr L has no connections there for work, and the mother has no family support nearby. Other than convenience to the father, there is no basis to consider requiring the mother to move the children to Brisbane. I do not propose making such Orders.
The father’s other proposal would be that the children reside with him in Town G. There is no evidence that such an arrangement would be sustainable for the children. They would be separated from their primary carer, and placed with a person with whom they have a very limited relationship. Whilst the father may have the support of his partner, she has no relationship with the children.
I accept that although the move to Canberra is another move and change for the children, it is to a familiar person in Mr L. The mother will have his assistance with the care of M, which will no doubt assist their relationship. This has flow on benefits for X and Y, if their primary carer is happy and settled. It will enable the mother and children to have the financial support of Mr L, without the need for two households to be maintained.
The legislation “aspires to promote… a meaningful relationship, not an optimal relationship.”[8] The father has a relationship with J, despite the geographical distances. I accept that this was assisted by the mother, when they were in a relationship. The father has the ability to maintain a meaningful relationship with the children through time which is safe for them, and their mother.
[8] Godfrey and Sanders (2007) 208 FLR 287 at 36.
Parental Responsibility
The presumption in favour of equal shared parental responsibility does not apply, given the finding of family violence. Further, there is no evidence that the parties are capable of sustaining effective, respectful communication about the children’s needs. I find to the contrary.
The Orders will provide the mother with the sole parental responsibility to make long term decisions for the children. The father shall be kept advised by her of significant decisions regarding their health and education, so that he can remain informed about matters important for them.
Conclusion
The father will no doubt find the Orders I make difficult to accept. If he seeks assistance with alcohol use and through a men’s behavioural change programme, he may apply to vary the time arrangements with the children. To do that, he will need to be diligent in complying with time arrangements as ordered, so that the children are able to develop a relationship with him. The Orders permit the father to communicate directly with the children’s school and pre-school, to avoid that becoming a source of dispute between the parties. The father will be able to maintain a relationship with the children through a Contact Centre, assisted by electronic communication.
I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of Judge Boyle
Associate:
Date: 19 August 2019
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction