Elliott & Montague
[2022] FedCFamC2F 1684
Federal Circuit and Family Court of Australia
(DIVISION 2)
Elliott & Montague [2022] FedCFamC2F 1684
File number(s): ADC 623 of 2020 Judgment of: JUDGE JENKINS Date of judgment: 9 December 2022 Catchwords: FAMILY LAW – parenting – final hearing – relocation dispute – sole parental responsibility – family violence – allegations of sexual abuse – where the mother has significant mental health concerns – evidence of treating psychiatrist and independent psychiatric assessment – where each party makes serious allegations against the other and yet ultimately proposes significant unsupervised time – where court does not agree with recommendations of the family report writer – where the mother’s mental health is well-managed such that significant time spending can occur – where children remain in primary care of the father – relocation not permitted – court not bound by any proposal – orders made on court’s own proposal Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60B, 60CC, 65D, 65DAA, 69ZT
Cases cited: A & A: Relocation Approach [2000] FamCA 751
Adamson & Adamson [2014] FamCAFC 232
AMS v AIF [1999] HCA 26
Carlson & Fluvium[2012] FamCA 32
Godfrey v Sanders [2007] FamCA 102
Grella & Jamieson [2017] FamCAFC 21
Heath v Hemming (No 2) [2011] FamCA 749
In the Marriage of Hall [1979] FamCA 73
KB & TC [2005] FamCA 458
Khalil & Tahir-Ahmadi [2012] FamCAFC 68
Mazorski v Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
Morgan & Miles [2007] FamCA 1230
Taylor v Barker [2007] FamCA 1246
U v U [2002] HCA 36
Division: Division 2 Family Law Number of paragraphs: 183 Date of last submission/s: 24 November 2022 Date of hearing: 15-17, 23 & 24 March 2022, 23 August 2022, 19-21 September 2022 & 24 November 2022 Place: Adelaide Counsel for the Applicant: Ms James Solicitor for the Applicant: Scammell & Co Counsel for the Respondent: Mr Bowler Solicitor for the Respondent: SE Lawyers Counsel for the Independent Children's Lawyer: Mr Frazer Solicitor for the Independent Children's Lawyer: Legal Services Commission of South Australia ORDERS
ADC 623 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS ELLIOTT
Applicant
AND: MR MONTAGUE
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE JENKINS
DATE OF ORDER:
9 DECEMBER 2022
THE COURT ORDERS THAT:
1.That the father have sole parental responsibility for the children X born in 2016 and Y born in 2018 (“the children”).
2.That the father shall advise the mother in relation to all major long term issues regarding the children including but not limited to:
(a)The children's education (including religious education);
(b)The children's health and major medical treatments.
3.That the children live with the father.
4.That the children spend time with the mother as follows:
(a)In week one from 9.00am (or the conclusion of school) Thursday until 9.00am or the commencement of school Monday (or the commencement of school Tuesday if Monday is a non-school day);
(b)In week two from 9.00am (or the conclusion of school) Thursday until 9.00am (or the commencement of school) Friday or 5.00pm if a non-school day;
(c)That upon Y commencing school in 2023, for half of the term school holiday periods as agreed between the parents and in default of agreement from after school on the first Friday until 5.00pm on the middle Saturday in 2023 and each alternate year thereafter and the second week from 5.00pm on the middle Saturday until 5.00pm on the last Sunday in 2024 and each alternate year thereafter (with the term arrangements suspended during the school holidays);
(d)On a weekabout basis in the long summer holidays as agreed and in default of agreement from 5.00pm on the first Saturday in 2023 and each alternate year thereafter and from 5.00pm on the second Saturday in 2024 and each alternate year thereafter (with the term arrangements suspended during the school holidays);
(e)On special occasions as agreed between the parents and in default of agreement as follows:
(i)With the father from 3.00pm on Christmas Eve until 3.00pm on Christmas Day in 2022 and each alternate year thereafter;
(ii)With the mother from 3.00pm on Christmas Day until 3:00pm on Boxing Day in 2022 and each alternate year thereafter;
(iii)With the mother from 3.00pm Christmas Eve until 3.00pm Christmas Day in 2023 and each alternate year thereafter;
(iv)With the father from 3.00pm on Christmas Day until 3.00pm on Boxing Day in 2023 and each alternate year thereafter; and
(v)On the weekend of Mother's Day from 5.00pm Saturday until the commencement of school Monday save that the children spend time with the father on the weekend of Father's Day from 5.00pm Saturday until the commencement of school Monday.
FaceTime
(f)The father shall facilitate the children to communicate with the mother, in week two (2) of order 4 (b), on a day and at a time as agreed;
(g)Each parent shall facilitate the children to communicate with the other parent on two days each week during any school holiday period;
(h)Each parent shall facilitate the children communicating with the other parent by way of FaceTime at any reasonable time that the children request.
ORDERS BY CONSENT:
5.That all handovers that do not occur at the children's school take place inside the Suburb B Police Station or such other location as agreed between the parents in writing.
Communication between the parents
6.That within 14 days, the parents do all necessary acts and things to download and install the App Close parenting app.
7.The parents shall communicate via the App Close parenting app with each other in respect to matters regarding the children’s routine health, development milestones, handovers, contact requests, travel information, educational issues and all such other information as may be appropriate to be communicated between the parents.
8.Each parent do notify the other of any significant illness or injury to the children as soon as possible.
Miscellaneous
9.The father shall retain the children’s:
(a)Birth certificates; and
(b)Blue Books.
10.The father shall forthwith provide to the mother a photocopy of the children’s birth certificates and any page of the blue books she requests and thereafter keep the mother advised of the children’s vaccination status, including any arrangements for Covid-19 vaccinations.
11.Each parent shall provide the other with particulars of any treatment required or received by the children together with the name and address of the treatment provider and/or location at which the children are a patient.
12.Each parent is hereby authorised to communicate directly with the children’s treating medical practitioner, specialists and allied health professionals regarding the children’s physical and mental health and that each parent is to keep the other informed of the names and contact details of such treating practitioners.
13.Each parent shall provide the other with any prescriptions and prescribed medications for the children and the other parent shall administer those medications during periods when the children are living with them.
14.Each parent be permitted to attend all school events and extracurricular activities to which parents are ordinarily invited to attend.
15.Each parent is hereby authorised to receive copies of all school reports, newsletters, letters to parents and any other correspondence relating to the children’s education PROVIDED THAT the mother’s residential address is not disclosed to the father by any other person.
16.Each parent do not prevent any sporting club or association, music teacher, or any other social, musical or sporting group which the children may be a member of, from forwarding all reports, letters and other correspondence regarding the children’s sporting, musical or other activities, to the other parent, or prevent the other parent from talking to any teacher, coach, team manager or group coordinator, to discuss the children’s sporting and musical activities or social activity with the other parent PROVIDED THAT the mother’s residential address is not disclosed to the father by any other person.
Injunctions
17.The parents are restrained, and injunctions are hereby granted restraining each of them, from:
(a)Denigrating the other parent, the other parent’s partner or the other parent’s family in the presence of the children or permitting any other person to do so;
(b)Consuming alcohol to excess or using or consuming any illicit substances whilst the children are in their care and for a period of twelve (12) hours prior to such time commencing;
(c)Abusing, threatening or harassing the other parent at handover or at any other time; and
(d)Discussing these proceedings in the presence or hearing of the children or permitting anyone else to do so.
Travel
18.The parents be at liberty to travel with the children as follows:
(a)Interstate during any period that the children are in their care;
(b)Internationally during any period that the children are in their care, provided that the following occurs:
(i)At least four (4) months prior to the expected travel date, the non-travelling parent is provided with details of the children’s travel including an itinerary, flights, accommodation, the names of all other persons travelling with and/or staying with the children, contact details and emergency contact details;
(ii)The non-travelling parent be permitted to communicate with the children via telephone, FaceTime or Skype on at least two (2) occasions per week at such times to be agreed between the parents.
Passports
19.No less than three (3) months prior to the expected travel date for international travel pursuant to this Order, the parents shall do all such things and sign all such documents necessary to obtain Australian passports for the children at the equal shared costs of the parents.
20.That both parents do all things and execute all documents necessary to renew and maintain the children’s Australian passports at the equal shared cost of the parents.
21.That X’s passport is to remain in the possession of the father and Y’s passport is to remain in the possession of the mother other than in the event either party is travelling internationally with the children and in this instance, not less than two (2) weeks prior to the expected travel date the other parent shall deliver to the travelling parent the child’s passport and shall return the passport at the first handover after the children return to Australia.
22.The Independent Children’s Lawyer be discharged.
23.All extant applications be otherwise dismissed.
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 Elliott & Montague has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE JENKINS
This is a parenting matter concerning the two children X aged 6 years and Y aged 4 years.
background
The parents were in a relationship from about mid 2014 until 16 January 2020.
The mother is 40 years of age and the father 45 years.
The mother was born and raised in City C.
The father was born in Adelaide and raised in the suburbs.
The father says the mother has lived in Adelaide since approximately 2012/2013.
The parents are in dispute about who was the primary carer of the children during the relationship. The mother says she was the primary carer. The father says the mother returned to work part-time in 2019, when Y was about nine months old, and worked two days per week and that upon his retrenchment in September 2019 they shared day to day parenting.
Following separation the children lived with the father and spent regular time with the mother.
The mother filed her application commencing these proceedings on 18 February 2020 as a result of what she says was the limited time the father was permitting her to see the children.
The matter came before the Court for the first time on 2 March 2020 however the father had not been served. He was not in fact served until 6 July 2020 and was unaware of the proceedings until that date.
In reality the mother's mental health was deteriorating and on 27 March 2020 she was hospitalised following a serious suicide attempt.
It is not in dispute that the mother was subsequently diagnosed with suffering from a period of psychosis.
The mother was in hospital for several months. Following her discharge from hospital the mother spent regular time with the children, at the paternal grandmother's house, supervised by the father.
Time ceased on or about 3 July 2020 when the father says the mother attended his home with the police and attempted to remove the children.
Orders were made in this Court by consent on 4 August 2020 for the mother to spend time supervised by a professional supervisor, Mr D, for two hours per week (as well as FaceTime).
On 30 April 2021 orders were made for the mother to spend unsupervised time with the children each weekend from 12 noon Friday until 4.00 pm Saturday and each Tuesday from 9.00 am until 4.00 pm.
On 6 October 2021 the parents attended mediation and agreed to gradually increase this time such that the mother was spending time with the children each alternate weekend from the conclusion of school Friday to 4.00 pm Sunday and each alternate Tuesday from the commencement of school until the commencement of school Wednesday and by FaceTime on the alternate Friday at 4.00 pm.
The mother now seeks to have the children placed in her primary care and to be able to relocate to City C. The mother proposes the father spend time with the children on two weekends during school terms, for nine days on each of the term holidays and for three weeks in the long summer holidays. In the alternative, if she were to remain in Adelaide, she proposes the children live with her for eight nights per fortnight and live with the father for six nights per fortnight.
The father proposes the children remain in his primary care in Adelaide and spend time with the mother on alternate weekends from Friday to Sunday and on an overnight in the other week.
material relied upon
The applicant mother relies upon:
(a)Her Further Amended Initiating Application filed 21 February 2022;
(b)Her Trial Affidavit filed 16 February 2022;
(c)The Affidavit of Ms E filed 16 February 2022;
(d)The Affidavit of Mr F filed 16 February 2022;
(e)The Affidavit of Ms G filed 16 February 2022;
(f)The Affidavit of Mr D filed 18 February 2022;
(g)The Affidavit of Mr H filed 11 March 2022;
(h)Her Affidavit in Reply filed 11 March 2022.
The respondent father relies upon:
(a)His Trial Affidavit filed 7 March 2022;
(b)The Affidavit of Ms J filed 4 March 2022.
The Independent Children’s Lawyer (“ICL”) relies upon:
(a)The Family Assessment Report (“the family report”) dated 5 October 2021.
the evidence
This matter commenced via Microsoft Teams due to COVID 19 restrictions. After being adjourned part-heard and when changes to those restrictions eased, the Trial concluded in person. Although there were occasional technical glitches, I am satisfied that I was able to see and hear all of the evidence. I am also satisfied that given both parents gave their evidence via Microsoft Teams, neither had an advantage over the other.
It has not been possible to include every aspect of each of the parents' evidence. However, I have taken all the evidence into account. Whilst I may not mention something specifically in these reasons that does not mean that I have not considered it.
Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities.
The Parents
As I will set out later in these reasons, there were parts of the mother’s evidence which were inconsistent and problematic. That is not to say that I formed the impression that the mother was deliberately dishonest or trying to mislead the Court. Rather, as observed by Kent J in Carlson & Fluvium[2012] FamCA 32 at [165]:
…human beings have the capacity to reconstruct or rationalise or even misconstrue past events or conduct, or to engage in self-justification, particularly in recounting events in highly emotive settings or in respect of highly emotive issues.
There is also the question of how much the mother’s evidence may have been affected by her mental health. I shall return to this further in the judgment.
In regard to the father, whilst I am satisfied that generally the father gave evidence in a straight forward and honest manner, there were some parts of his evidence which came across as quite implausible and where in my view he was trying to paint himself in a more positive light. I shall return to this further in my reasons.
Father’s witnesses
The father’s only witness, other than himself, was his mother Ms J.
Ms J gave her evidence in a somewhat defensive manner. I accept the submission for the mother that her evidence could not have been more ‘black and white’ and favourable to her son. I agree it would seem that in her view, her son could do little wrong.
I also found certain aspects of her evidence to be quite improbable. For example, that the father always spoke to the children in a calm manner, even when frustrated, and that he would never yell and had never sworn. This assertion was clearly contradicted by the recordings tendered in this matter.
Ms J also categorically denied witnessing any verbal abuse by the father towards the mother and the children and/or knowing of any family violence. However she later conceded that the mother had told her about the father hitting her and abusing her.
Other aspects of her evidence also seemed to change. For example Ms J first said she did not rise in the morning until her body clock woke her but when questioned about how she would get Y to school on time, she seemed to back track and said that she only slept in on weekends.
In addition, Ms J gave inconsistent evidence about her alcohol use - stating firstly that she did not drink, then that she did drink with a friend occasionally (once per month when she would have two drinks) and lastly that she enjoyed "a drink" but not in the home. I found this to be wholly unconvincing and made me doubt the bona fides of her other evidence.
However in spite of this I formed the impression that she had the best interests of the children at heart and was unlikely to permit the father to place them in any physical harm. She certainly did not strike me as someone who would be under the influence or control of the father as was put to her by the mother's counsel.
Mother’s witnesses
Mr K
Mr K, the mother’s father, was clearly a strong supporter of the mother. He shared the same beliefs as the mother with respect to X being sexually abused and for the same reasons as the mother. However in many respects his evidence went beyond what he himself heard or observed. His beliefs about the sexual abuse and to a certain degree about the parents’ relationship and the deterioration of the mother’s mental health were largely based on what he was being told by the mother. Nonetheless, he corroborated with the mother with respect to observing the father pinching X on the bottom and calling her “sexy”.
Dr L
Dr L prepared two independent psychiatric assessments of the mother in these proceedings.
Dr L gave evidence in a professional and straightforward manner. At the outset of his evidence, counsel for the father put a fair summary of concerns arising from the mother's evidence to Dr L. Dr L appropriately qualified his assessment to say that the new information had given him cause for concern about her mental wellbeing. For example, the mother placing greater weight on certain conversations than others would (in reference to the recordings made by X).
However, Dr L, appropriately in my view, said he was not prepared to give a definitive assessment of the mother’s current mental health without the benefit of reassessing the mother in person.
Dr L also conceded that it was difficult to assess a personality disorder in one hour and stated that Dr H, the mother's treating psychiatrist, would be better placed to comment.
Counsel for the father put to Dr L that the mother's belief about sexual abuse may be indicative of delusional thinking. However Dr L's view was that whilst this was possible there were other hypothesise, agreeing with counsel that it could have been said, for example, for tactical reasons.
In regard to the mother’s failure to raise the sexual abuse with him, Dr L was not necessarily surprised. His experience was that some patients have difficulty talking to a person they had only met once.
In terms of his assessment, Dr L believed the likely pathway for the deterioration in the mother's mental health was that she suffered a trauma which lead to a major depressive disorder and consequently to her becoming psychotic (noting that this last stage was not common).
This trauma could be any number of things, post-natal depression, the mother’s car accident, chronic pain, the burn to Y, domestic violence and/or the breakdown of the relationship. In addition she may have had a genetic disposition, noting a relative had also had electroconvulsive therapy (“ECT”) treatment.
Beyond this, Dr L maintained that to comment any further about the mother’s mental state and her likelihood of harming herself again, he would need to do a reassessment and that it would be unreasonable to offer an opinion without doing so.
Despite this evidence, none of the three parties sought for this to occur.
Dr H
Dr H was the mother's treating psychiatrist. He first met the mother in June 2020 and has seen her about 21 times since.
In my opinion Dr H also gave evidence in a forthright manner and qualified his opinions appropriately. The father's counsel was very critical of the way in which he answered questions. I do not accept that criticism. It was my view that for the most part Dr H answered questions to the best of his ability, if at times he may have missed the point. Overall I found his evidence to be most helpful.
Dr H's opinion was the mother had suffered a psychiatric episode in around March this year. He did not believe it had a long lead up time and was unlikely to be manifesting as early as January. This view was based in part on the fact that she had attended hospital the week before seeking help and that he did not believe she would have been sent home had she presented with such severe psychiatric symptoms at that time.
Dr H's view, which was heavily challenged by the father's counsel, was that the breakdown in the mother' mental health was due to the stresses she was under at the end of 2019, namely in her relationship with the father. This was not necessarily because of the father's actions per se but because of the demise of the relationship, which would be stressful for anyone.
The father's case is that the mother’s mental health began deteriorating as early as her car accident in 2018 and became worse as a result of an incident in the middle of 2019 when Y was burnt. His case is that the relationship began to breakdown as a result of the mother's mental health rather than the other way around.
I observed the mother to be particularly emotional when questioned about Y's burn, which was obviously still very upsetting for her; however, Dr H was clear that determining reasons for deterioration in mental health is not an exact science.
Nonetheless, Dr H's professional opinion was that the mother was currently in remission. It was put to him that this was based largely on her own self reporting. Dr H did not accept that. His evidence was that if she was mentally unwell he would expect to see other indications such as loss of weight and inability to sleep as well as issues such as being unable to work or socialise.
It was put to Dr H that if the mother was unable to move back to City C this would cause significant stress and thus the potential for relapse. Dr H did not agree; his impression was that the mother would accept the Court decision, adapt and get on with her life. He based this on the fact that upon leaving hospital she had found her own housing and had returned to work and that she had been doing well in Adelaide for the last two years.
Dr H's view was that the mother did not need ongoing psychiatric care. Her issue was essentially a biological one which was being treated with medication and monitored by her general practitioner.
Dr H was also not surprised that the mother did not mention sexual abuse to him. His focus was on her mental health going forward rather than therapy. In this regard I accept the submissions made by counsel for the mother that his role was focused on getting the mother well and improving her functioning and that he had succeeded in doing that.
Dr H also felt there may be many reasons the mother viewed certain events as sexual abuse and that these were not necessarily or even likely to be indicative of psychotic thinking. For example, she may be making those assertions with a view to manipulating the Court or it may just be due to how she views the world based on her previous experiences.
He also agreed that sexual abuse has a broad definition and the mother may have been referring to sexually inappropriate behaviour rather than sexual behaviour that is a crime.
However, ultimately Dr H was also of the view that in light of the matters put to him, in order to be definitive, he would need to see the mother again. Despite this, as with Dr L, none of the three counsel sought for this to occur.
Mr D
Mr D was appointed to supervise the mother's time with the children.
Mr D provided lengthy and detailed reports concerning his observations of the mother and the children in those supervised sessions. These reports were annexed to his affidavit filed on 18 February 2022.
None of the parties proposed to call Mr D to be cross-examined. At the outset I advised the parties that as there were large volumes of supervision reports I would not be allowing them into evidence en masse. Rather I advised that I would require the parties to direct me to particular pages of the reports. In accordance with this direction I was referred, by counsel for the mother, to the following parts of Mr D’s reports:
·Report of 8 October 2020, paragraphs 42 and 43 (annexure 5);
·Report of 25 November 2020, paragraph 39 (annexure 11);
·Report of 2 December 2020, paragraph 42 (annexure 12);
·Report of 13 January 2021, paragraph 38 (annexure 16);
·Report of 9 February 2021, paragraph 78 (annexure 20);
·Report of 16 February 2021, paragraph 78 (annexure 21);
·Report of 22 February 2021, paragraph 80 (annexure 22).
I have read each of those paragraphs and have taken them into account despite not referring to each.
In regard to X disclosing that she was smacked by the father, I note this was reported by the mother to Mr D after a visit and that Mr D in turn contacted the Department for Child Protection ("the DCP") abuse line. As this was not heard directly by Mr D, his evidence is of little assistance.
Otherwise I accept his observations that X in particular was keen to maximise her time with the mother.
Ms E
Ms E is a former manager of the mother.
Ms E filed two affidavits in this matter, the second being without leave of the Court.
Ms E was not available to give evidence.
The father's counsel objected to the reliance on these affidavits on the basis that she was not available for cross-examination and because the mother did not have leave of the Court to file the second.
I reserved my ruling on this objection to be determined as part of these reasons.
The mother argues that this is a parenting matter and that pursuant to s 69ZT of the Family Law Act 1975 (Cth) (“the Act”) the rules of evidence do not apply. She says the evidence is admissible and that it is a matter of weight.
Pursuant to s69ZT (3) the Court has the discretion to determine that the rules of evidence are to apply in certain instances. However the Court must firstly consider whether there are exceptional circumstances. I was not addressed by counsel on this issue. However in this case I do not find that there is anything that would make it exceptional. The allegations of family violence are unfortunately all too common in this Court. In this regard I refer to cases such as Khalil & Tahir-Ahmadi [2012] FamCAFC 68.
Accordingly I do not find that the rules of evidence should apply in this case. The evidence of Ms E is therefore admissible.
However, having determined it is admissible, I must consider how much weight should be accorded to it.
The mother's case is that she has been subjected to serious family violence by the father, including the father trying to suffocate and choke her. Whilst not being exceptional, the allegations are extremely serious. Ms E's evidence includes observations of bruising on the mother which is said to corroborate the mother's allegations. The father entirely denies such allegations and is unable to test this evidence by way of cross-examination. Accordingly I determine the evidence of Ms E should be given no weight in these proceedings.
The Independent Children’s Lawyer’s witness
Ms M
Ms M prepared the family report in this matter which was dated 5 October 2021. The recommendations in that report primarily turn on the Court’s findings about family violence rather than the sexual abuse. This is not surprising as the mother did not raise sexual abuse as being a concern until prompted by Ms M.
However, somewhat curiously, when Ms M asked the mother about her concerns the mother did not name family violence as her primary concern but rather said her main concern was the father’s attitude to “gender equality and race”.
Nonetheless, Ms M, both in her report and under cross-examination, appeared to have placed great weight on the mother’s allegations of family violence and in particular the father’s coercive and controlling behaviour. It seemed to me that Ms M was largely viewing the evidence through that prism. For example, the father supervising the mother’s time (upon her discharge from hospital) was seen as controlling rather than arguably entirely appropriate. Ms M was therefore concerned that leaving the children in the primary care of the father would further enable the father to control the mother.
Ms M was updated about the mother’s evidence in relation to her allegations of sexual abuse of X. However, Ms M did not seem overly concerned about the seriousness of the allegations or that the mother did not raise them in the interviews until prompted by her. Nor did she seem concerned about the fact that the mother, despite those allegations, now sought an 8/6 arrangement in the event she had to remain in Adelaide.
I was also somewhat surprised at Ms M’s evidence around attachment. She appeared to dislike the phrase “primary attachment” and preferred to talk about “quality of relationships”. Regardless, she had difficulty conceding that given Y had been in the father’s primary care since he was 16 months old, that he may suffer harm at being removed from this arrangement. Ms M’s evidence was that children who have secure relationships from a young age have greater capacity to transfer those main care relationships. Her evidence was that although this process may result in a change “in emotional wellbeing” that children are able to recover and develop as normal.
Ms M was seemingly of the view that Y could transfer back to his mother without any long term consequences. I must however determine, in all of the circumstances of this case whether that would be in his best interests.
the relevant legal principles
Relocation cases are particularly difficult cases.
There is, of course, no separate category of relocation cases, and nor do I determine the question of relocation as a separate issue. This is a parenting case, in which I must apply the law, and determine orders having the children's best interests as my paramount consideration. They are not the only interests I can consider. I also take into account the rights of parents, including their right to determine where they live.
I note the observations of the Full Court in Adamson & Adamson [2014] FamCAFC 232 [66] where their Honours said:
These rights, and the right of freedom of mobility of a parent, only defer to the paramount consideration of a child’s best interests where those interests would be so adversely affected as to justify such interference; and then the interference is legitimate only to the extent that it is necessary to avoid such adverse effects.
The following propositions can be distilled from the authorities, including AMS v AIF [1999] HCA 26 ("AMS"), A & A: Relocation Approach [2000] FamCA 751, U v U [2002] HCA 36 ("U v U"), Taylor v Barker [2007] FamCA 1246, KB & TC [2005] FamCA 458 and Morgan & Miles [2007] FamCA 1230:
(a)The best interests of the children are the paramount, but not the sole consideration;
(b)The person seeking to move does not need to provide compelling reasons for the relocation sought;
(c)The Court must evaluate the competing proposals, giving consideration to how each proposal will provide advantages and disadvantages for the children's best interests;
(d)The question of whether there should be a relocation cannot be treated as a separate or discrete issue to that of the question of residence;
(e)Neither party bears an onus to establish that an order permitting or restraining relocation is in the children's best interests; and
(f)The Court must weigh the competing proposals and consider all the relevant factors, including the right of freedom of movement of the parent who wishes to relocate.
As observed by Kent J in Heath v Hemming (No 2) [2011] FamCA 749 [101]:
In some cases, the determination of "best interests" may well mean that one party's choice is effectively outweighed in the balance. Alternatively, proper balancing may result in the child's "best interests" being served by Orders which do not give one parent "optimal" arrangements or outcomes.
I must make my way through the legislative pathway. That includes that I must weigh and consider the primary, and additional considerations set out in s 60CC(2) and (3) of the Act. I must consider not only best interests, but also questions of reasonable practicability, as set out in s 65DAA. I will turn to each of those considerations later in these reasons.
Section 65D of the Act directs the Court to make such parenting orders as it thinks proper. As to what is "proper", and how the Court's discretion is to be exercised, the Full Court of the Family Court of Australia in Grella & Jamieson [2017] FamCAFC 21 at par 18 said:
A discretionary judgment concerning parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition.
The objects and principles of Part VII of the Act as set out in s 60B provide guidance as to the exercise of my discretion.
parental responsIbility
Each party proposes orders that one parent have sole parental responsibility for the children.
I agree that the evidence shows that the parents have an almost complete inability to communicate and that one party should ultimately make any long term decisions for the children.
As I am not making an order for equal shared parental responsibility I do not need to consider, pursuant to s 65DAA of the Act, whether making an order for equal time or substantial and significant time is in the children’s best interests. Nor do I have to consider whether the arrangements are reasonably practicable.
the considerations pursuant to section 60cc of the act
Section 60CC(2) of the Act sets out the two primary considerations I must consider being:
(a)The benefit to the children of having a meaningful relationship with both of their parents; and
(b)The need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying those primary considerations, I am required to give greater weight to the need to protect children from harm.
Meaningful Relationship
As observed in the case of McCall & Clark [2009] FamCAFC 92 (“McCall & Clark”), the Full Court of the Family Court observed that whilst there is no definition of the word “meaningful”, in the Act, they noted with approval the observations made by Brown J in the decision of Mazorski v Albright [2007] FamCA 520. In that decision, her Honour said the term was synonymous with notions such as “significant”, “important”, “of consequence” and “valuable to the child”. Her Honour also observed that “meaningful” is a qualitative and not a strictly quantitative adjective.
Importantly, in the case of Godfrey v Sanders [2007] FamCA 102, Kay J observed that “…even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship”. That was subsequently endorsed by the Full Court in McCall & Clark.
In spite of the focus on risk in this case, each party proposes orders that provide for the other parent to have a meaningful relationship with the children.
Protection from harm
The mother's evidence was that the father subjected her and the children to serious family violence and that X was sexually abused by him. She asserts that this sexual abuse began as early as 2018.
The mother's basis for alleging the sexual abuse was that she says the father would pinch X on the bottom and call her “sexy” when she was only 18 months old. She also says that he would ask X to bend over and part her bottom cheeks when he was cleaning her bottom and that he would split her legs apart and push her knees up with no underpants on. In addition she says she has observed X rubbing her vagina with a toy in the bath and was particularly concerned when she observed a bruise in X's pubic area for which the father had not provided an explanation.
The father entirely denies the allegations save and except he acknowledges the bruise in the pubic area was likely caused by falling off a bike.
The father argues that despite the mother allegedly having these concerns since 2018 she did not raise sexual abuse allegations in her Notice of Risk or her first affidavit filed in these proceedings. Nor has she ever reported it to the DCP or to the police and that she did not mention it at all to her treating psychiatrist Dr H or to Dr L who conducted the independent psychiatric assessment. Furthermore, she only discussed it with Ms M after Ms M raised it with her.
The mother's explanation for not reporting the matter to authorities was that she feared repercussions from the father. Nonetheless, having commenced proceedings in this Court, and raised significant concerns about family violence, she still did not mention sexual abuse and did not seek the father's time be supervised. Rather she proposed significant time, including block time in the holidays. The mother tried to justify this position under cross-examination by saying that she felt that supervised time was not an option and/or that there would be safety procedures put in place, although she was unable to elaborate on what she meant by this.
Furthermore, on the second last day of Trial the mother's counsel advised the Court that the mother did not seek the Court make a finding that X had been sexually abused or that she was at an unacceptable risk of this occurring. Moreover she presented a proposal that the children live in an 8/6 arrangement in the mother’s favour if the children were not permitted to relocate to City C.
Despite the late concession, having seen the mother give evidence and be cross-examined, in my opinion the mother is still of the view that X has been sexually abused by the father. Under cross-examination, the mother conceded she believed he was a paedophile and that she had not wanted to allow any time to occur.
It is particularly concerning to me that the mother chose to view certain instances in this case, in particular the bruise in a groin area, as evidence of sexual abuse, even when faced with an innocent explanation such as falling off a bike.
The father's case is that the mother’s views may indicate ongoing psychotic traits in the mother or otherwise that she has deliberately concocted the allegations. However neither Dr H nor Dr L were prepared to proffer a definitive view on this, without a further assessment.
Whilst each of Dr L and Dr H considered a further assessment would shed more light on whether the allegations of sexual abuse should give cause for concern from a psychiatric point of view, I was not left with the impression that either was overly convinced it would make a difference. In any event, no such assessments were sought.
The state of the evidence, as it stands, is that the mother’s mental health is being managed and that she is currently stable. Dr H’s view was that the mother seems to have been functioning well since her recovery, having obtained accommodation, returned to work and regained her physical health. His view is she is still in remission.
Whilst Dr H said the mother was vulnerable to relapse he observed that when she was unwell in the week before her suicide attempt that she endeavoured to get help. It is most unfortunate that she did not get the assistance she appeared to need at that time.
Nonetheless, there remains the concern that if the mother continues to believe the father has sexually abused X that this will in turn impact on his relationship with the children, and with X in particular. Ms M observed that taking photos of genitalia, or asking questions can create an assumption there is something wrong in the care of the other parent. However, Ms M said that a mitigating factor would be the father's relationship with the children itself and that the strength of this may offset any concerns.
In regard to the mother’s allegations of family violence, I find that on the evidence these concerns were not without foundation. Although the father vehemently denied physically and emotionally abusing the mother to Ms M and stated such allegations “were 100% false”, the recording of the father verbally abusing (and allegedly hitting) the mother clearly contradicts this and is very disturbing.
The father in his evidence subsequently stated this recording was a one off incident and in response to being accused of sexual abuse of X. It seems convenient that the father only admits the verbal abuse to the mother that was captured on recording. It also seems highly improbable that this would be the only occasion of such behaviour and lends credit to the mother’s allegations.
Nonetheless, the interview of X in the family report and the observations of the children with the father, suggest that they have not been exposed to ongoing violence, either directly or indirectly. X only reported being exposed to one incident of conflict between the parents and named her father as a “source of happiness”. When asked what happened when she was naughty she said he would tell her to “hop in the corner” or would send her to her bedroom. She denied ever being hit by either parent.
The additional considerations
Any views expressed by the children and any factors (such as their maturity or level of understanding) that the Court thinks are relevant to the weight it should give to those views
X was interviewed when she was five and her view at that time was that she wanted to stay living with her father and to have “two sleepovers instead of one” each week with her mother.
I note that the mother did not accept that these were true wishes and was of the view that X was acting in a defensive manner as, according to her, X had watched her mother behaving this way for years. The mother believed that X was unhappy living with the father and that she had been put up to say these things. The mother interpreted the observations of Ms M that X and her father “had many moments of spontaneous affection and eye contact” as evidence that the father was controlling X through his eyes in the manner she says he did with her during the relationship.
However, Ms M did not get any sense that the children were being influenced. On the contrary, X was described as being “forthright, open, and descriptive”. Furthermore her narrative was developmentally appropriate.
Given X's age her views are however of only limited value. Y was too young to even interview.
The nature of the children’s relationship with each of their parents and other significant persons in their lives
The children in the family report appeared to have very positive relationships with both parents.
In the interview, X was positive about her father, describing their activities together such as craft and liked that her mother took her “everywhere”, including play cafes.
Ms M's evidence was that the interactions with each parent were quite similar and that the children were connected to both. She could find minimal discrepancies. The children were both “talkative, cluey, confident” something she struggled to see in the children she assesses.
The extent to which the children’s parents have taken or failed to take the opportunity to participate in long-term decision making in relation to the children, to spend time and to communicate with the children
On the evidence before me each parent has taken every opportunity to spend time and communicate with the children. This is not a live issue in this case.
The extent to which each of the children’s parents have fulfilled or failed to fulfil their obligations to maintain the children
This is also not a live issue in this case.
The likely effect of a change in the children’s circumstances, including the likely effect of a separation from a parent or other significant persons in their lives
The children have been in the primary care of the father since separation in January 2020. The father also says that during the relationship, in particular following the mother's car accident in 2018, he took on a significant parenting role. Indeed he says this was evidenced in the accident claim. The mother denies the extent of the father’s role and says it was the father who filled in this claim and she was too fearful to stand up to him.
Nonetheless, it is not in dispute that the children have lived with the father for close to three years and that Y was only 16 months old when they went into his full time care.
Although Ms M did not seem overly concerned about the impact on Y of a transition back to his mother, she does say the following in relation to the children moving to City C:
From the writer's perspective such a move would be detrimental to the children's relationship with [Mr Montague], remove them from their current community connections and would likely adversely impact upon the children's wellbeing. As such, it was considered that [X] and [Y] should remain in SA [South Australia] and their relationships with [Ms Elliott] and [Mr Montague] be supported and encouraged.
The practical difficulty and expense associated with the children spending time and communicating with a parent, and whether that difficulty substantially affects the children’s right to maintaining personal relations and direct contact with both parents on a regular basis
The mother’s primary proposal remained that she be permitted to relocate with the children to City C. Given the distance is approximately 4.5 hours from Adelaide by car, this would necessarily limit the father's time to two visits per school term and to school holidays.
The mother proposed the father do the driving but in evidence said she could potentially meet half way.
The parents currently live on opposite sides of Adelaide. It is about an hour or more for the mother to drive to the children's current school and kindergarten in Suburb N. The mother suggested that if she remains in Adelaide the children go to a school midway between the parents so she could continue to live close to her work.
The capacity of the children’s parents and any other significant person to provide for their needs, including their emotional and intellectual needs
In terms of ability to meet day to day needs, each parent raised concerns in their evidence about the other.
For example, the mother in the family report alleges the father left the children unattended in the bath and further says that they are allowed to walk around his mother's home where there is an unfenced pool. She also raises concerns about the father's failure to engage Y in structured social events. The father denies these issues, in particular that the children have access to the pool and notes that Y is only three years of age and that for the most part playgroups have been closed due to COVID-19.
In any event, as noted by Ms M at par 41:
Whilst [Ms Elliott] maintained that the children's development had been compromised by their experiences of neglect and abuse, the writer noted that in meeting with the children they did not present with developmental or social issues.
The father likewise pressed concerns in the family report about the mother. He alleged the mother neglected X and prioritised Y’s care, following the incident where Y was burnt. However again Ms M observed in the family report at par 103:
Minimal concerns were raised about [Ms Elliott's] care of [X] and [Y] and it appeared that they were excited to spend time with her and responsive to her care.
(as per the original)
I remain concerned however about the mother’s ability to meet the emotional needs of the children. This primarily relates to her belief that X has been sexually abused, to which I have already referred to in detail. An associated concern is the suggestion that X was provided with a watch for the purpose of making recordings in the father’s home. Although the mother denied obtaining the watch for this purpose and/or teaching X to use it, X made the recordings in the father’s home and it was the mother who relied upon them in evidence. It is more probable than not, in my view, that it was the mother rather than the father who taught X how to use the watch to record and encouraged her to do so. Ms M’s evidence was that this would have set up an expectation in X that there was something firstly to be worried about and secondly that she must be ready and able to record if required.
Furthermore, as was observed in the family report at par 21:
Of note was that whilst [Ms Elliott] was keen to act as the primary carer for the children, it appeared that she struggled to consider the impact this may have on the children's relationship with [Mr Montague] or recognise the role he had played in the children's lives more recently. Instead, she appeared keen to reinforce the concerns she held about his care and his interactions with the children.
An additional concern is that when the mother was questioned about how the schooling would work if they had an 8/6 arrangement, given the parents live a significant distance from each other, the mother suggested a school midway between the parents. In doing so she did not appear to have considered the impact on the children of going to a school in a community to which they have no connection. Rather it appeared to be more about the mother’s convenience and need to be able to get to work.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and their parents, and any other characteristics of the children the Court thinks relevant
I have considered the matters relevant to this paragraph already in these reasons.
If the children are Aboriginal or Torres Strait Islander children
This is not a relevant consideration in this matter.
Attitude to the child, and to the responsibility of parenthood demonstrated by each of the child’s parents
Part of the responsibilities of parenthood is facilitating a relationship between the children and the other parent.
It is not in dispute that the father brought the children to visit the mother in hospital, bought the mother items that she requested, did her dirty washing and that he facilitated supervised visits upon her discharge.
The mother would however have the Court believe that the father only did these things because he was on his best behaviour out of concern she might now report his domestic violence to the authorities. Moreover, that his offers of assistance were part of his circle of abuse and were designed to regain her trust so that she would not expose him when she was in hospital. Although it is unclear why the mother could not have reported him for domestic violence prior to her hospital visit.
Furthermore, the mother says the father only brought the children to visit her because she paid him. The father denies this and says the mother gave him money to buy things for her. The mother’s version seems unlikely given these payments were limited to her time in hospital.
The mother also asserts that the father encouraged the ECT treatment not in the hope that she would get better, but because he knew it would make it harder for her to spend time with the children. Given the father was facilitating time with the children and that he was not in fact aware of any Court proceedings at that time, this too seems unlikely.
In addition, the mother says that during her supervised visits she was pressured by the father and his mother to clean the former matrimonial home. They say no cleaning was done but that there was an urgency directed to the mother to remove her own things so that the house could be sold. I accept their evidence on this issue. The mother also complains that she was left homeless as a result of the father's unilateral sale of the former matrimonial home. He says, and I accept, he was redundant, the mother was not working and there was no choice but to sell the house.
Furthermore, I am not critical of the father for not including the mother on school enrolment forms. She had suffered a psychotic episode and her ongoing state of mind was unknown at that time. Indeed it had only been three months since her father was applying to be her litigation guardian. Nor, as the primary carer should he have had to return the immunisation books to the mother.
The mother also raises a myriad of other complaints about the father including that he intervenes during her FaceTime (despite managing to keep a pre-schooler on the call for an hour and a half) and for not notifying her of the correct time for X’s first day of school. Having heard the totality of the evidence I do not accept these criticisms. It seems to me that the father has used his best endeavours to encourage the children to have an ongoing relationship with the mother in very difficult circumstances. In my view the evidence for this is that despite the disruption to the relationship, the children have maintained a strong and loving connection to the mother.
This is supported by Ms M who notes as follows at par 53 of the family report:
Whilst upset by [Ms Elliott's] past behaviours, it was noted that [Mr Montague] did not appear to overly denigrate [Ms Elliott] and he repeatedly stated the importance of the children maintaining a relationship with her. Overall, [Mr Montague] impressed as a father who was trying to ensure his children's safety whilst also wishing to provide them with ongoing connections to their main carers.
Any family violence involving the children or a member of their family, and if a family violence order applies or has applied, any relevant inferences that can be drawn from the order
As already reported, the mother alleged substantial family violence against the father. For example in the family report at par 25:
[Ms Elliott] reported that over time, [Mr Montague] became "worse" towards her and started physically assaulting her. For example, [Ms Elliott] recalled that on one occasion when she accidentally brushed [Mr Montague]'s leg, he retaliated by allegedly grabbing her by the throat and giving [Ms Elliott] a "black eye". She further noted that when she was in bed there were "plenty" of times [Mr Montague] used to "choke" her. Due to the location of the incidents, [Ms Elliott] reported that at the time she "didn't know whether it was real or a dream" and she became "scared" of [Mr Montague] as he had the "ability to be very nice and horrid".
The mother says she recorded these incidents in her diary but that the father had gone out of his way to get the keys to her car when she was admitted to hospital so he could steal that diary which she has not seen since. The father says the mother had left her car in a car park across from the hospital and that he was endeavouring to move it to a more appropriate location. In regard to the removal of her diary, the father denies having taken it and the mother's evidence, given her state of mind at the time, is completely unreliable. She herself advised Ms M that she struggled to accurately recall this period. This is likely to explain why as noted by Ms M at par 110:
[Ms Elliott's] current version of events appeared to contradict multiple discussions she had with other professionals, during which she appeared to minimise concerns about her relationship with [Mr Montague] and spoke about positive attributes.
The mother says that the bruises caused by the father were observed by her work colleague however I have already found that no weight is to be placed on that work colleague’s evidence.
The father on the other hand alleged that it was the mother who had been controlling from the beginning of the relationship, when she was concerned about his whereabouts and that things ran smoothly when he let her be in control.
He reported at par 58 of the family report:
According to [Mr Montague], [Ms Elliott] became more controlling over "everything" in their lives including criticising him for the way he folded laundry, his time in the toilet and who he was talking to on his phone. Alongside this, [Mr Montague] reported that [Ms Elliott] verbally abused him "everyday" and no matter what he did, he was "verbally attacked". Specifically, [Mr Montague] recalled being repeatedly put down, sworn at and physically assaulted, including recalling an incident in which [Ms Elliott] "kicked" him in the back of the "calves and hit" him in the back of the head, when he returned to the bedroom. [Mr Montague] further noted that at the time, [Ms Elliott] told him to "shut the fuck up you cunt, if you wake [X], I'll kill you".
Strangely the only incident the children could recall in the family report was an incident that each of the parents also made reference to. X recalls her mother pulling her glasses off her father and that although she did not know what her father was doing, her mother was yelling at him and he was yelling back and pushed the mother to the wall.
It gives the Court some comfort that each party and X chose to describe in detail the same incident which suggests that there was not ongoing exposure of the children to other incidents of conflict.
Furthermore, there have been no reports of concerns of family violence with respect to the children since the children have been in the father's primary care. The only issues raised by the mother occurred at changeover where she alleges the father demonstrated controlling behaviour by putting Y in his car seat in her car on one occasion (instead of waiting for the police station to open) and that he glared at her. On another occasion he was still at X's school at the commencement of her first day as the mother arrived to see her, when in the mother’s view he should have left.
Whilst I have already reported that there are concerns about the father's verbal abuse of the mother, as demonstrated in the recording, I do not agree with Ms M that the determination of primary care turns on findings of family violence in this matter. Pursuant to In the Marriage of Hall [1979] FamCA 73 at par 24 I am not bound by any particular part of the family report. Ms M did not have the benefit of seeing the parents over the course of several days giving evidence nor the testing of evidence and the delivery of submissions by counsel. Ultimately I have formed a different view as to how the children's best interests are to be met.
Whether it would be preferable to make the order that would be least likely to lead to further proceedings
Both parents seek final orders. It is not controversial that it is in the children’s best interests for there to be no further proceedings.
Any other fact or circumstance that the Court thinks is relevant
A significant issue in this case is the mother's wish to live in City C, where she says she has a large support network.
The mother proposes she would live in Suburb O, which is close to her sister and parents and close to a prospective workplace. Whilst she has not spoken to the principal of the Suburb O School, she would propose the children attend there and that in any event there are a number of other school options nearby.
The mother says she could live with her parents initially and then potentially live in a three-bedroom house provided by her employer. She says there is a community mental health service in City C.
Whilst the children's best interests are the paramount consideration, they are not the only consideration. Parents have a right of freedom of movement. Of course, a parent's right "…must defer to the expressed paramount consideration, the welfare of the child if that were to be adversely affected by a movement of a parent", pursuant to the High Court's decision in U v U.
The evidence before the Court about the mother's mental health is that she will always have some vulnerabilities and there is always the possibility of relapse. Whilst she has a job and mental health support in Adelaide, and even on her evidence some friends (although they are busy and have challenges of their own) it is likely that she would benefit from having the support of her family.
Conversely, the mother would no doubt be unhappy if she was forced to stay in Adelaide. However the evidence did not support a finding that this would likely result in a relapse. Indeed, she has seemingly been functioning very well whilst living in Adelaide since her discharge from hospital. Whilst it was put that this may have been because she had the hope of moving to City C, Dr H was of the view that if the mother had to remain in Adelaide she would be quite stoic and would get on with her life.
Freedom of a parent to live where they choose, applies equally to the father. He was clear although he could in theory move to City C that he would not. Whilst his new business was largely online and therefore portable, he said this his life, the children’s life and their extended family were all in Adelaide.
reasonable practicability
As I am not making an order for equal shared parental responsibility, I do not need to consider whether it is reasonably practicable for a child to spend equal, or substantial and significant time with their parents pursuant to s 65DAA(5).
consideration of the competing proposals
There are advantages and disadvantages to X and Y flowing from each of the proposals advanced.
Advantages of the move to City C:
·The children can spend substantial and significant time with the mother;
·The mother would have the support of her extended family which would assist with her stress levels;
·The mother is likely to be happier;
·The children would be able to spend greater time with their extended maternal family.
Disadvantages of the move to City C:
·The children would be removed from the primary care of the father;
·The children would not be able to spend substantial and significant time with the father;
·The children may suffer emotional harm if they only see the father a few times per term and on holidays;
·The children would have to move school and kindergarten and away from their existing friends;
·The father would not be able to have regular involvement in their school and extracurricular activities;
·The children would not have regular time with their extended paternal family noting they have lived with the paternal grandmother since separation;
·The children would have to travel a substantial distance to see the father;
·The parents would have to meet the cost of the children's travel;
·If the mother suffers a relapse in her mental health the children may have to transition back to the father's primary care.
Advantages of staying in Adelaide - mother's proposal (8/6):
·The children could spend substantial time with each parent;
·The mother would be close to her current mental health professionals;
·The children are familiar with the mother’s current home.
Disadvantages of staying in Adelaide - mother's proposal (8/6):
·The children would be removed from the father's primary care and may suffer emotional harm as a result;
·The mother’s ability to cope with the care of the children for eight nights, subsequent to her hospitalisation, is untested;
·If the mother suffers a relapse in her mental health the children may have to transition back to the father's primary care;
·The children would have to travel a significant distance to school/kindergarten or change school/kindergarten and go to a school/kindergarten in a community unrelated to either parent;
·The children would not be able to spend regular time with their extended maternal family.
Advantages of staying in Adelaide - father's proposal (11/3):
·The children are able to remain in the primary care of the father;
·The children can spend substantial and significant time with the mother;
·Both parents could be involved in the children’s day to day lives, including their schools, kindergartens, extra-curricular activities and social events;
·The children will not have to change schools or kindergarten;
·The children can spend regular time with their extended paternal family, including their grandmother who they have lived with since separation;
·The mother would be close to her current mental health professionals;
·If the mother relapses they will not have to change residence.
Disadvantages of staying in Adelaide - father's proposal (11/3):
·The mother is likely to be unhappy;
·The mother would not have the support of her extended family to assist with her stress levels;
·The children would not be able to spend regular time with their extended maternal family.
Advantages of ICL'S proposal (10/4):
·The children are able to remain in the primary care of the father;
·The children can spend substantial and significant time with the mother;
·Both parents could be involved in the children’s day to day lives, including their schools, kindergartens, extra-curricular activities and social events;
·The children will not have to change schools or kindergarten;
·The children can spend regular time with their extended paternal family, including their grandmother who they have lived with since separation;
·The mother would be close to her current mental health professionals;
·If the mother relapses they will not have to change residence.
Disadvantages of ICL'S proposal (10/4)
·The mother is likely to be less happy than if she is able to move or to have the children in her primary care;
·The mother would not have the support of her extended family to assist with her stress levels;
·The children would not be able to spend regular time with their extended maternal family.
discussion
I have balanced all of the competing considerations after having carefully considered the advantages and disadvantages to the children of the proposals. I note however that I am not bound by any of the proposals.
Having done so I am satisfied that the children’s best interests will be met by remaining in Adelaide, in the primary care of the father and spending time with the mother but not pursuant to any of the above proposals. Rather I find that it would be in the best interests of the children to spend five nights per fortnight with the mother. As this was not a proposal raised at Trial, I gave the parties a further opportunity to make submissions and I have factored those submissions into the orders that I am making. Furthermore it was agreed at that hearing that a myriad of ancillary orders could be made by consent.
Ultimately I have determined that a nine/five arrangement in favour of the father would have all of the advantages and disadvantages of the proposal put forward by the ICL but would enable the children to have slightly more time with the mother which I believe would be in their best interests taking into consideration all of the matters I have already discussed. It was also the recommendation of Ms M that in reverse the children spend five nights with the father, so she had determined it was an appropriate division of time. In addition, it would be in their interests to have only two blocks of time over the fortnight rather than three to reduce the number of transitions between households which is likely to be destabilising. I have also determined that by commencing the time each week on the Thursday it will provide more certainty for the children and will enable the mother to take the children to a set extracurricular activity on that night in each week if she chooses. Moreover, it will enable her to work the same days each week. It would also be in the best interests of the children to spend full days with the mother if the time commences or concludes on a public holiday. If a Monday this should be overnight so changeover can occur at school avoiding one less opportunity for conflict.
The children's best interests are the paramount consideration but not the sole consideration. As such, I have also considered the mother's freedom to move where she so chooses. Having done so I have determined that the mother's freedom of movement must defer to the children's best interests.
I remain concerned that the mother (and her father) continue to believe that the father has sexually abused X. It cannot be determined on the evidence before me, whether this is evidence of continued delusional beliefs by the mother, although it would appear on Dr H's assessment as it stands that this was not the case. If the allegation is tactical I would hope that making final orders will put an end to this. It seems more likely in my assessment to be a consequence of her own experiences and views of the father more broadly and that this has not been assisted by her father who seems to share similar views. In any event I would hope the mother would take on board the comments of Ms M as to the consequences upon X and her relationship with her father of making those views known to X or otherwise questioning her along those lines.
In relation to other time spending arrangements, such as holidays and special occasions, the parties did not make specific submissions on which orders should be preferred. However the orders proposed by the ICL in regard to holiday time appear to be in keeping with the parents’ two proposals and otherwise in the best interests of the children. They provide for no more than a week away from each parent unless otherwise agreed and this is age appropriate. In regard to Christmas, both parents propose alternating Christmas itself, with the father having Christmas Eve/Christmas morning this year. The parties did not address me on Easter so I am not sure whether they seek to press for Easter time. However in my view as Easter overlaps with the school holidays it may create a multitude of handovers which are not in the best interests of the children and therefore I am not making a specific order for Easter.
I was also not addressed on Father’s Day and Mother’s Day but each party proposed that time should occur. The arrangement which in my view is in the best interests of the children is to provide for the children to spend time with the applicable parent from 5.00 pm the night before Mothers/Father’s Day until the commencement of school Monday. This way they can spend substantial time, including the whole of the special day with the applicable parent but the other parent is not deprived of the whole weekend.
Finally each party proposed FaceTime occur each week but I was again not addressed on why I should prefer one set of orders over the other. Given the mother is spending time with the children for five nights a fortnight, in my view FaceTime with the mother once in the alternate week would be in their best interests, this will be as agreed between the parents. FaceTime should be twice per week in any holiday week. Each party proposes that the children be able to call the other at any reasonable time and this would appear to be appropriate.
If I have not addressed an order originally sought by a party it is because no submissions were made and I assume they are not pressed. Otherwise I have varied the wording of certain orders where they do not appear to be controversial.
For all of the foregoing reasons, I make the orders as are set out.
I certify that the preceding one hundred and eighty-three (183) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jenkins. Associate:
Dated: 9 December 2022
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