FALZONE & CABLE
[2019] FCCA 1817
•6 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
FALZONE & CABLE [2019] FCCA 1817
Catchwords:
FAMILY LAW – Parenting – Application by Mother for change in residence for the two children who formerly lived with her but have been living with the Father since 2017 – significant geographical distance between parties and therefore large amounts of travel for the children – young sibling from a later relationship living with the Mother in Town C – children have good and close relationships with both parents – children now well settled in Canberra with the Father and doing well at school – historically the Mother had a range of various issues that involved the Department of Family and Community Services – children to remain living with the Father and spending regular time with the Mother and younger sibling.
Legislation:
Family Law Act 1975 (Cth), ss.60CC(2)(a); 60CC(3)(a)-(m); 65DAA
Cases cited:
AMS v AIF (1999) CLR 160
Collu & Rinaldo [2010] FamCAFC 53
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) 41 Fam LR 483
Moose & Moose [2008] FLC 93-375
Applicant: MR FALZONE
Respondent: MS CABLE
File Number: CAC 761 of 2017
Judgment of: Judge Neville
Hearing dates: 5 & 6 December 2018
Date of Last Submission: 1 February 2019
Delivered at: Canberra
Delivered on: 6 August 2019 REPRESENTATION
Solicitors for the Applicant: Legal Aid ACT
Solicitors for the Respondent: Hepmac Lawyers ORDERS
(1)The parties have Equal Shared Parental Responsibility for the children, [X] (born: … 2009) and [Y] (born: … 2011) (“the children”).
(2)The children live with the Father.
(3)The children spend time with the Mother as agreed between the parties in writing, but failing agreement as follows:
(a)During the school term:
(i)On the 1st weekend of each month from 10:00am on Saturday to 4:00pm on Sunday, with changeover to be facilitated at Railway Station D carpark in Sydney; and
(ii)On the 3rd weekend of each month from 6:00pm on Friday to 4:00pm on Sunday, with changeover to be facilitated at Town E Shop, provided the mother provides the father with at least 7 days’ notice of her intention to travel to Canberra for that weekend.
(b)For the first half of the ACT gazetted school term holidays in Terms 1, 2 and 3 from the first Saturday following the conclusion of school at 10:00am for 8 consecutive nights until Sunday at noon, with changeover to be facilitated at Railway Station D carpark in Sydney.
(c)For the ACT gazetted Christmas holidays in Term 4:
(i)In even years, for the first half of the Term 4 school holidays commencing at 10:00am on the Saturday following the conclusion of school for 21 consecutive nights, with changeover to be on Sunday at noon at Railway Station D carpark in Sydney; and
(ii)In odd years, for 21 consecutive nights commencing on the 1st Sunday of January, with changeover to be on the 3rd Sunday at noon at Railway Station D carpark in Sydney.
(4)Each party shall inform the other, as soon as practicable, upon the happening of any of the following:
(a)If either of the children are hospitalised;
(b)If either of the children are seriously injured;
(c)If either of the children are placed on any ongoing medication; and
(d)Any other matter relevant to the care and welfare of the children.
(5)The parties are at liberty to have telephone communication with the children at all reasonable times and intervals.
(6)A copy of these orders shall be sufficient authority for either party to obtain information from any medical practitioner the children attend upon.
(7)A copy of these orders shall be sufficient authority for either party to obtain school reports, newsletters, photographs and the like from any school the children attend.
(8)Each party is restrained from denigrating the other in the presence or hearing of the children, and each party shall use all reasonable efforts to ensure that anyone they have influence or control over does not denigrate the other party in the presence or hearing of the children.
(9)Each party is restrained from discussing these Court proceedings whilst in the presence or hearing of the children, and each party shall use all reasonable efforts to ensure that anyone they have influence or control over does not discuss these Court proceedings in the presence or hearing of the children.
(10)Each party shall inform the other of any change in residential address, landline telephone number or mobile telephone number within 48 hours of such a change occurring.
(11)All extant Applications be dismissed, the matter finalised and will be removed immediately from the docket.
IT IS NOTED that publication of this judgment under the pseudonym Falzone & Cable is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRACAC 761 of 2017
MR FALZONE Applicant
And
MS CABLE Respondent
REASONS FOR JUDGMENT
Introduction
1.This matter concerns parenting Orders that are in the best interests of 10-year-old [X] (born … 2009), and 8-year-old [Y] (born … 2011) (“the children”).
2.Both the parents and the children are Aboriginal, from the [W] people. During the proceedings, neither parent contended that any issue relating to their Aboriginality was in dispute or otherwise relevant to the parenting contest.
3.The Applicant Father lives in Canberra with his Aunt. He is aged 31 years. The children currently live with him and have done so since March 2017.
4.From December 2011 until March 2017, the children lived with their Mother in Sydney. The Mother, who is aged 35 years, currently lives in Town C. She has another child, [A] (born in … 2017), whose Father, Mr F, lives in Town C but does not cohabit with the Mother. Mr F will turn 60 this year.
5.Both parents acknowledge that during their relationship, which commenced in … 2008 and concluded in December 2011, they used drugs, including crystal methamphetamine (“ICE”).
6.The Mother seeks to have the children live with her in Town C and spend regular time with the Father. She says that she cannot relocate or return to Canberra, because [A]’s father lives in Town C.
7.The Father seeks to have the children continue to live with him and spend regular time with the Mother. The Father says that he cannot relocate to Town C because he is employed in Canberra, the children are well settled in school, and he has an established support network here.
8.As set out later in these reasons, the geographical distance between Canberra and Town C, and the impact on the children of regular travel between these cities, is a significant factor, among others, considered by the Court.
9.Both parents acknowledged that if they lived closer to the other parent, the children would naturally, and inevitably, spend more time with the other parent, irrespective of their primary residence.
10.During the trial, I noted that:
(a)There have been no concerns raised by the Mother regarding the care of the children since they started living with the Father;
(b)The Father said that the communication between the parties was “ok”; the Mother largely agreed;
(c)There were good reasons, “both ways”, for the children to live with either parent;
(d)The children have good relationships with both parents;
(e)In such finely balanced matters, it can be the case that one matter or issue can “tip the scales”, so to speak, one way or the other regarding the exercise of the Court’s discretion as to what Orders are in the best interests of the children;
(f)The Family Report of Ms G, dated 15th December 2017 (which became Exhibit A), records on a number of occasions the children stating their desire for the parents to live closer together;
(g)The Family Report also records that long travel times place an “excessive burden” on the children. Moreover, it is clear that, absent one parent moving to be closer to the other parent, ultimately and on an ongoing basis, the primary burden of the travel between the parents’ residences will fall on the children.
11.In my view, in a finely balanced matter, it is in the children’s best interests to continue to live with the Father and to spend regular time with the Mother in accordance with the Orders proposed by the Father.
Orders Sought by the Applicant Father
12.The Orders sought by the Applicant Father were set out in the Case Outline filed on his behalf on 28th November 2018. They were as follows:
Orders Sought:
1) That the parties shall have equal shared parental responsibility for the children, [X] (born … 2009) and [Y] (born … 2011).
2) That the children shall live with father.
3) That the children shall spend time with the mother as agreed between the parties, but failing agreement as follows:
(a)During the school term, on the 1st weekend of each month from 10am Saturday to 4pm Sunday with changeover to be facilitated at Railway Station D carpark in Sydney;
(b)On the 3rd weekend of each month from 6pm Friday to 4pm Sunday at Town E Shop, provided the mother provides the father with at least 7 days’ notice of her intention to travel to Canberra for that weekend;
(c)For the first half of ACT school term holidays in Term 1, 2 and 3 from the first Saturday at 10am of the school holiday for 8 nights with changeover to be on the following Sunday at noon at Railway Station D carpark in Sydney;
(d)For the Christmas holidays in Term 4:
i.In even years, for the first half of school holidays commencing 10am on the Saturday following the conclusion of Term 4 for 21 nights with changeover to be on Sunday at noon at Railway Station D carpark in Sydney;
ii.In odd years, for 21 nights commencing on the 1st Sunday of January with changeover to be on the 3rd Sunday at noon at Railway Station D carpark in Sydney;
4) That each party shall inform the other, as soon as practicable, upon the happening of any of the following:
(a)If either of the children is hospitalised;
(b)If either of the children is seriously injured;
(c)If either of the children is placed on any ongoing medication;
(d)Any other matter relevant to the care and welfare of the children.
5) That the parties are at liberty to have telephone communication with the children at all reasonable times and intervals.
6) That a copy of these orders shall be sufficient authority for either party to obtain information form any medical practitioner either of the children attend upon.
7) That a copy of these orders shall be sufficient authority for either party to obtain school reports, newsletters, photographs and the like from any school the children attend.
8) That each party is restrained from denigrating the other in the presence or hearing of the children, and each party shall use all reasonable efforts to ensure that anyone they have influence or control over does not denigrate the other party in the presence or hearing of the children.
9) That each party is restrained from discussing these Court proceedings whilst in the presence or hearing of the children.
10) That each party shall inform the other of any change in residential address, landline telephone number or mobile telephone number within 48 hours of such change occurring.
Orders Sought by the Respondent Mother
13.The Respondent Mother’s Orders sought were contained in the Case Outline filed on her behalf on 3rd December 2018. They were as follows:
Final Orders Sought by Respondent Mother:
1) That the parties shall have equal shared parental responsibility for the children, [X] (born … 2009) and [Y] (born … 2011).
2) That the children shall live with the Mother
3) That the children shall spend time with the Father, as agreed between the parties, but failing agreement as follows:
Provided the Father lives in the Greater Region B Area:
a) During the first weekend of each month in the school terms 1, 2 and 3 from 10am Saturday to 4pm Sunday. The changeover to be facilitated at a mutually agreed place.
b) During the third weekend of each month of the school terms 1,2 and 3 from 6am Saturday to 4pm Sunday with the changeover to be at a mutually agreed place.
c) Half of all NSW School Term Holidays in terms 1, 2 and 3 for 8 consecutive nights. The changeover to be at a mutually agreed place and time.
d) In the Christmas holidays in Term 4:
i.In even years, for the first half of the School Holidays commencing 10am on the first Saturday following the conclusion of Term 4 for 21 consecutive nights with changeover to occur on a Saturday at noon at a mutually agreed time and place.
ii.In odd years, for consecutive nights from the first Saturday after Christmas day and that the changeover occurs at a mutually agreeable time and place on the third Saturday in January.
If the father does not reside in the Greater Region B Area:
a) During the first weekend of each month in the school terms 1, 2 and 3 from 10 am Saturday to 4pm Sunday. The changeover to be facilitated at a mutually agreed place.
b) During the third weekend of each month of the school terms 1,2 and 3 from 6am Saturday to 4pm Sunday with the changeover to be at a mutually agreed place.
c) The first Two Thirds of all NSW School Term Holidays in terms 1, 2 and 3 with consecutive nights. The changeover to be at a mutually agreed place and time.
d) In the Christmas holidays in Term 4:
i.In even years, for two thirds of the School Holidays commencing 10am on the first Saturday following the conclusion of Term 4 for consecutive nights with changeover to occur on a Saturday at noon at a mutually agreed time and place
ii.In odd years, for consecutive nights from the first Saturday after Christmas day and that changeover occurs at a mutually agreeable time and place on the last Saturday before the following first school term commences.
4) That each party shall inform the other, as soon as practicable, if any of the following occurs
a) If either of the children are hospitalised
b) If either of the children are seriously injured
c) If either of the children is placed on any ongoing medication
d) Any other matter relevant to the care and welfare of the children
5) Either Parent is at liberty to have telephone and other electronic communication with the children including face time and face book communication with the children at all reasonable times and intervals.
6) A copy of these orders shall be sufficient authority for either party to obtain information from any medical practitioner treating or proposing to treat either child
7) A copy of these orders shall be sufficient authority for either party to obtain school reports, newsletters, photographs and the like from any school the children attend.
8) Each party is restrained from denigrating the other in the presence or hearing of the children and shall use all reasonable efforts to ensure that anyone else does not denigrate the other party in the presence and hearing of the children.
9) Each party is restrained from discussing the Court proceedings in the presence or hearing of the children.
10) Each party must inform the other of any change in the residential address, landline telephone number or mobile number within 48 hours of the change occurring.
Summary of Documents in Father’s Tender Bundle
14.The Father’s Tender Bundle became Exhibit C. It contained 45 documents, the majority of which came from documents produced under subpoena directed to the New South Wales Department of Family and Community Services (“FACS”). The other documents primarily came from subpoenæ directed to the New South Wales Police Department and to Town H Public School. The covering summary provided by the Father’s lawyer neatly highlighted a number of specific concerns directed against the Mother, such as the lack of cleanliness of her residence, and the alleged neglect of the children, which led to Departmental involvement. The Mother denies many of the matters raised in the documents and says, in any event, they are historical events and of limited provenance for current purposes.
15.The summary from (and of) the documents that formed the Father’s Tender Bundle was as follows:
Falzone & Cable CAC 761/2017: Tender Bundle
Submitted by the Applicant Father, Mr Falzone
| Item Number | Description | Source |
| 1. | 1 May 2012: Ms Cable stated she has never used drugs. | FACS Subpoena |
| 2. | 28 September 2012: House smelt putrid – of faeces and urine – and the cockroach-faeces smell – the smell was horrendous and nauseating. [X] was eating a cockroach off the wall – she put it in her mouth and chewed it and spat it back at the wall. While Ms Cable was changing [Y]’s nappy a cockroach ran off the nappy – the cockroach (the small variety) had been inside the nappy. | FACS Subpoena |
| 3. | 28 September 2012: Burn mark on [X]’s right arm. Mother stated [X] burnt herself with a styling iron. Caller reports that it is located near [X]’s arm pit. Burn was 2 ½ - 3 inches. Burn has a bit of muck in it and was not dressed. | FACS Subpoena |
| 4. | 29 July 2013: [Y] has a burn mark that runs from his left buttocks cheek to just above his knee from falling on a heater. | FACS Subpoena |
| 5. | 7 September 2013: [Y] has a massive gash above his right eye. Mother said don’t worry about it, it is not your problem. | FACS Subpoena |
| 6. | 31 March 2014: Caseworkers have noticed that the children and their mother have a distinct and unpleasant odour coming from their clothes and their bodies. The car windows had to be wound down to cope with the smell. This is an ongoing issue. The children appear to be unkempt. Nothing has changed since January. Ms Cable doesn’t engage in the service enough to have the conversations which might change things for the children. | FACS Subpoena |
| 7. | 5 May 2014: Mother referred to Bensoc. Mother is very sporadic and engages on and off with their service. Concerns about the mother’s lack of supervision. Home environment is quite chaotic. Observed that the mother was out of character. She wasn’t blinking and her speech was rapid. Personal hygiene is also an issue. | FACS Subpoena |
| 8. | 30 September 2014: [X] (5) and [Y] (3) screened under inadequate supervision due to their mother not providing age-appropriate supervision (or safer physical environment) despite concerns being raised with her. Mother reported feeling that DV has improved with BF. Mother refused workers to sign any room but the lounge, she indicated having a hoarding problem. | FACS Subpoena |
| 9. | 20 April 2015: Police attend the mother’s house due to welfare concern. Old food scraps strewn across floor, mouldy food on floor of the house, police are concerned for the welfare of the children due to untidy and unhealthy condition of the house | NSW Police Subpoena |
| 10. | 3 May 2016: Ms O of Suburb K Public School advised family was on their “radar”, they had poor hygiene and were quite smelly. Attempted to address with mother but it became clear it wasn’t a priority. [X] was absent probably once per week and always late to school. | FACS Subpoena |
| 11. | 18 May 2016: [Y] has not been toilet trained and is 5 years old, cannot speak in coherent sentences, [Y] is not attending any form of education and state of home is an issue with rubbish and food on the ground. [X] attending school with no underwear on. | FACS Subpoena |
| 12. | 20 May 2016: Child came to school today with no food and has not had breakfast or lunch, teacher purchased shoes for [X] out of her own pocket | FACS Subpoena |
| 13. | 22 July 2016: School meeting. [X] presenting with toileting issues, not wearing underwear, has an odour, school donated uniforms. Mother not socialising and has limited involvement | FACS Subpoena |
| 14. | 8 August 2016: Mother cancelled today and all week’s scheduled home visits due to family emergency | FACS Subpoena |
| 15. | 30 August 2016: Mother cancelled 3 home visits this week | FACS Subpoena |
| 16. | 8 September 2016: Mother cancelled home visit due to Job Network. Mother did not attend meeting with school regarding [Y] | FACS Subpoena |
| 17. | 15 September 2016: M contacted for home visit, Mother cancelled due to brother in Suburb Z hospital | FACS Subpoena |
| 18. | 16 September 2016: Dr P recommended that the mother see her GP for an enhance primary care plan to access a private speech therapist | FACS Subpoena |
| 19. | 28 September 2016: Mother at times appears to prioritise her extended family over engagement with IFBS. Mother cancelled 17 home visits of IFBS 12 week intervention | FACS Subpoena |
| 20. | 29 September 2016 Agenda for meeting with the mother and support services. Mother had cancelled meeting with childcare, the mother missed 17 home visits due to her cancellations and reschedules. | FACS Subpoena |
| 21. | 23 November 2016: Report by school principal that [X] presenting as dirty, smelly, not having food, bruising under the eye, poor school attendance, [X] has nits | FACS Subpoena |
| 22. | 6 March 2017: Mother reports that current plan is for father to come to Sydney on Sunday to collect the kids and return to the ACT. 3 attempted follow ups attempted with the mother on 7 March, 8 March and 9 March | FACS Subpoena |
| 23. | 30 March 2017: Family Risk Assessment Report: Risk level HIGH. Ms Cable acknowledges [X]’s black eye and stated “if I had socked her, I wouldn’t have sent her to school.” | FACS Subpoena |
| 24. | 20 March 2017: Mother reports that items were stolen from her and that she is staying with “…” | FACS Subpoena |
| 25. | 28 March 2017: Ms Cable advised she is no longer wanting to move to Canberra | FACS Subpoena |
| 26. | 20 April 2017: On 6 March 2017, the maternal aunt, Ms L, has visited the home and engaged in a physical altercation resulting in injuries to the mother, chased the mother and children in their car. Mother says her sisters were angry because she let a known drug abuser, Ms AA, stay at her house and alleged that the mother was also using drugs. Mother says she has arranged for the children to stay with their father in the ACT “to give Ms Cable a break and settle down a bit.” ROSH reports dated: - 4 May 2014: that [X] had a bruise and refused to talk about it and [Y] had a bruise on his forehead and said “mummy did it.” - 19 April 2016: infestation of cockroaches and flies in the home, mould in the bathroom and safety concerns due to bags of rubbish, clothes and toys blocking direct access from front door - 6 April 2016: house dirty with food and rubbish on the ground and cockroaches. [Y] is 5 years old and not toilet trained, cannot speak in coherent sentences and not attending any form of education - 11 November 2016: [X] attended school with black eye and [X] gave numerous explanations including she fell, her mother accidentally hit her and she can’t remember. Inconsistent explanations for an injury that is not likely to have been caused by an accident | FACS Subpoena |
| 27. | 2015 Semester 1 attendance report for [X]. 7 days absent, 6 partial days absent | Town H School Subpoena |
| 28. | [X] school report for 2016, 11 absences, 13 partial absences | FACS Subpoena |
| 29. | 2015 Semester 2 attendance report for [X]: 23 days absent, 2 partial days absent | Town H School Subpoena |
| 30. | Suburb J Public School 2016 Semester 1 attendance report: 10 whole days absent, 8 partial days absent | Town H School Subpoena |
| 31. | Suburb J Public School 2016 Semester 2 attendance report: 10 whole days absent 11 partial days absent. | Town H School Subpoena |
| 32. | 13 December 2017: [X]'s Semester 2 2017 report, 1 day absent in 2017 | Town H School Subpoena |
| 33. | 2018 School record for [X], 1 day absent | Town H School Subpoena |
| 34. | 2018 school record for [Y], 2 days absent | Town H School Subpoena |
| 35. | 25 May 2018: Statutory declaration from Ms Q stating “I saw great progress in [Y] behaviour from the beginning of the year to the end. Professionally I attribute this to Mr Falzone.” | Town H School Subpoena |
| 36. | 26 May 2017: [Y] gets school Principal’s award | Town H School Subpoena |
| 37. | 31 May 2017: Letter from school principal stating that both children are in full attendance, present in hygienic clothing, father always picks up and drops off on time, father consistently checks in to see how he can support the children and academically beginning to show improvement | Town H School Subpoena |
| 38. | ACT Government Education Report for [Y] dated 14 August 2017 | Town H School Subpoena |
| 39. | ACT Government Education Report for [X] dated 11 September 2017 | Town H School Subpoena |
| 40. | 22 April 2018: Letter from Dr R regarding [Y]’s medication | |
| 41. | Prescription for [Y] dated 18 July 2018 for “Strattera” | |
| 42. | Clean hair follicle test for Mr Falzone | |
| 43. | Email dated 15 May 2018: Helping kids between transition between mother and father’s home | |
| 44. | Text Message Exchange between Mr Falzone and Mr N from 4 August 2009 to 7 March 2017 | |
| 45. | Text message exchange between Mr Falzone and Ms Cable on 26 October 2018 about [Y]’s carpet burn |
Oral Evidence of the Father
16.At the outset of the Father’s oral evidence, there were a number of matters that he sought either to deny or to clarify, such as the following (it is a non-exhaustive list):
(a)He denied that he had threatened to kill himself (as the Mother alleged in her trial Affidavit);
(b)He denied that he did not want to see the children in earlier times;
(c)He confirmed that when the children speak with their Mother on the telephone, they do so on loudspeaker;
(d)The Father confirmed that he provides the Mother with information, which he sends with the children (as well as by other means), regarding any medical needs. This includes him ensuring that medication for [Y] is provided to the Mother when the children are visiting and spending time with her;
(e)He denied the allegation that he threatened to harm the children. Likewise, he denied that he was teaching the children to mislead the Mother with incorrect information;
(f)He confirmed his pride in his Aboriginality.
17.The Father confirmed he was proposing that: (a) the children spend half school holidays with the Mother; (b) changeovers be at Railway Station D in Sydney (with the Mother collecting the children), and (c) there should be an Order for Equal Shared Parental Responsibility. He acknowledged that such an Order would require significant co-operation between the parties. He said he thought he and the Mother would be able to achieve this because of their capacity to communicate.
18.Mr Falzone confirmed his view that the Mother has the capacity to care for the children over a 3-week period at Christmas. He also confirmed, on a different subject, that there had been no family violence since 2017. Indeed neither party has sought any Family Violence Orders since 2017.
19.At trial, there remained a dispute as to when the parties separated. The Father said that separation occurred somewhere between December 2011 and June 2012. The Mother contended that it occurred in March 2013. In my view, little turned on such detail.
20.The Father acknowledged that the children have an attachment to their baby brother, [A]. He also acknowledged that the children would benefit from spending more time with their Mother. In this regard he acknowledged the Mother’s suggestion that he move to Sydney and live with his Mother, which would enable the children to be able to spend more and more regular time with their Mother and require less travel. However, upon some closer consideration, he did not think this would work. This was mainly because he feared that he would be re-introduced to former drug scenes in Sydney, which he was keen to avoid.
21.The Father agreed that as [X] grew, as a young girl it was more likely that she may want to spend more time with her Mother. In the Family Report (par.134: discussed later in these reasons) the Family Consultant recorded that [X] was resistant to travelling long distances to visit her Mother. The Father said that he would not force the children to travel to see their Mother but would otherwise encourage them. If this resistance continued, the Father said that he recognised that the children’s relationship with the Mother could suffer.
22.After a brief adjournment, the Father confirmed that he had read certain documents produced under subpoena from FACS. These documents were observation notes by a Caseworker in August 2016 of the Mother and the children. There were positive comments regarding meal preparation, school attendance by the children, and suggestions regarding intervention and management of some of [Y]’s challenging behaviour. These documents became Exhibit B. These comments, albeit in 2016, are of some significance because of the number of concerns expressed in other documents from FACS that were part of the Father’s tender bundle (Exhibit C), which comment on the state of untidiness and lack of cleanliness in the Mother’s residence on various occasions, among other things.
23.The Father was then taken through various parts of the Family Report (Exhibit A), thus:
(a)Par.66 of that Report refers to the Father expressing concern about possible risks to the children in the Mother’s care. The Father commented that, at times, the children return to his care from the Mother “smelling”. He agreed that this odour might arise from the children’s long travel home, rather than from anything happening (or not happening) during their time with the Mother;
(b)Par.80: refers to the Father regularly checking on the children in their telephone calls with the Mother. He agreed that his behaviour could be regarded as intrusive and even controlling;
(c)The Father also agreed that the telephone calls between the children and the Mother could be anything between 5 minutes to 1 hour;
(d)Pars.94, 113 & 116: the Father confirmed that the children have a good and close relationship with their Mother, indeed there is a loving bond between the children and both parents;
(e)Par.102: the Father also confirmed that [X] has affection for her baby brother, [A];
(f)Par.112: the Father accepted that, initially, [X] said that she wanted to live with her Father “but live closer to Mum”, but had more recently changed her mind to indicate that she was now unsure who she wanted to live with because she loved them both and wanted to see them both “whenever”;
(g)As already noted, the Father agreed that it would be better for the children if both parents lived closer to each other.
24.The Father had two other witnesses: his Aunt, with whom he lives (Ms S), and Mr T, who is a departmental manager at the ACT Legal Aid office and a friend of the Father. In my view, their very brief evidence assisted little other than confirming that they support the Father in different ways and are supportive more generally of his Application for the children to remain living with him. I say this in no critical way.
25.The evidence of Ms S confirmed that the Father pays her rent of $400 per week, and that she sometimes assists him with the care of the children.
Oral Evidence of the Mother
26.At the outset of her oral evidence, the Mother confirmed that she was seeking to have the children live with her, and that the parties have Equal Shared Parental Responsibility for the children. She confirmed further that she proposed for the children to spend regular time with the Father, which would necessarily be more frequent if he lived in the greater Town C area. Conversely, it would be less frequent if the Father remained living in Canberra.
27.By reference to various documents set out in the Tender Bundle filed on her behalf (Exhibit C), the Mother said:
(a)FACS ceased involvement with her in 2012;
(b)Her house at the time was not (as alleged by the Father and somewhat supported by FACS documents in Exhibit C) in a putrid condition, smelling of faeces, with nappies in the kitchen. However, the Mother did accept that there were cockroaches in the house;
(c)She denied that [Y] was eating a cockroach off the wall. She also denied that a cockroach crawled out of his nappy;
(d)She said that FACS did not contact her about the state of her house;
(e)Notwithstanding what she said earlier, the Mother later said that FACS had been involved with her from time to time between 2012 and 2016. She also confirmed that even when FACS was not involved, other services (e.g. “Ben Soc” from the Sisters of Charity) were engaged with her and her care of the children. This included being involved in a playgroup run by Ben Soc, and for that organisation to assist her to improve her parenting (e.g. how to supervise the children properly);
(f)The Mother confirmed that she had a tendency to hoard things. She also agreed with an inquiry from the Bench that her home environment was somewhat chaotic;
(g)The Mother acknowledged that there were issues for the children regarding their speech. She confirmed that she did not refer the children to a paediatrician to address these issues. She said, however, that [X] went to speech therapy before she started school. She maintained that [Y] was assessed as having no speech issues;
(h)The Mother said that she was working with the Brighter Futures Program at the time she was also seeing the people from Ben Soc. She said that she asked for an Indigenous Caseworker but no one got back to her. She said that her best recollection was that she had about 7 visits from various caseworkers over several months in 2014. She said she would always allow the Caseworker into her home;
(i)In approximately April 2015, the Mother confirmed that she did not permit a police officer to enter her house. Police records describe the Mother’s residence as being “untidy and unhealthy.”[1] The Mother denied that the house was as described. She had just returned home with groceries that had not been put away;
(j)By reference to documents 10 and 13 in Exhibit C, the Mother confirmed that she moved the children to a school in suburban Sydney (Suburb J) in 2016 because she had moved house; [Y] had some toileting issues at school, which she said was more of a “one off issue”. [X] also had had a toileting issue which led to her taking off her underwear and going to school without underwear, but otherwise the Mother said that the children went to school with what they needed;
(k)The Mother was asked questions regarding documents at pp.70-72 of Exhibit C, which involved an incident in March 2017 with the Mother’s sister, Ms L (among others). In short, there was an altercation between the sisters; the Mother ultimately drove to the police station following an alleged choking of her by her sister, Ms L. Later that same night Ms L had a stroke and remains in a wheelchair, paralysed on her left side. All these events took place in Sydney;
(l)Following the events just recounted, the Mother moved to Town C and initially lived into a refuge. The Mother contacted the Father to ask if the paternal Grandmother could assist with the care of the children. This occurred and the children went to live with the paternal Grandmother in Sydney, while the Mother moved to a residence in Suburb BB in the Town C area;
(m)The Mother generally agreed with the Father’s assessment that the parties’ communication is relatively good;
(n)The Mother has a cardiac condition (an enlarged heart). Fortunately, it requires no medication, but it does make the Mother more susceptible to other illnesses and results in her having lower energy levels;
(o)Generally, the Mother conceded that at times in the past, there had been quite a number of visits to her house by various caseworkers to check on things. She also agreed that [X]’s school attendance, at times, could have been better. Sometimes [X]’s late attendance at school was due to the Mother dealing with [Y]’s behavioural issues;
(p)The Mother accepted that [X]’s attendance at her current school in Canberra is good and that she has received a Principal’s Award for her progress. The Mother confirmed that when she visits Canberra, the Father facilitates her time with the children.
[1] See document no.9 in Exhibit C.
28.The Mother’s brother, Mr N, gave quite limited oral evidence. Briefly stated, he said he would support the Mother especially were she to move to Sydney (where he resides) with the children.
29.He said that he does not have a relationship with the Father but would readily communicate with him regarding arrangements with/for the children.
30.For the brief time he gave evidence, Mr N impressed as a clear, good and straightforward witness, who I accept will readily support his sister in relation to her care of the children, if she were to move to Sydney.
Evidence from the Family Report
31.The Family Report of Ms G, dated 15th December 2017, became Exhibit A.
32.After noting, at par.33 of the Report that both parents confirmed they used crystal methamphetamine when they were a couple, the Family Report writer identified the following matters as the issues in dispute (par.37 & 38):
ISSUES IN DISPUTE AND ISSUES IDENTIFIED DURING ASSESSMENT
The parents identified the following issues
Whether [Y] and [X] will primarily live with Mr Falzone in Canberra, or with Ms Cable in Town C.
How much time [Y] and [X] will spend with each party.
Additionally, the writer identifies
The Risk Factors outlined above.
A limited effective co-parenting relationship.
The parenting capacity of each of the parties.
The children’s relationship with each if their parents.
33.In general terms I agree with this list of issues.
34.The Family Consultant noted the following regarding “child-safety and wellbeing” and “alcohol and substance abuse”, before making observations regarding the co-parenting relationship and allegations of family violence (pars.63 – 88); a long section admittedly but nonetheless important to record in full:
Child Safety and Wellbeing
(63) Mr Falzone and Ms Cable report that [Y] has ADHD and speech delay. Mr Falzone says that, at the start of 2018, [Y] began being medicated for his ADHD, and this has coincided in him making significant progress with his speech. Mr Falzone states that [Y] has speech pathology appointments at school. Mr Falzone reports that [Y] is waiting to commence counselling appointments to assist him managing strong emotions. Ms Cable expressed concern that [Y] has begun being prescribed medication for his ADHD, since being in Mr Falzone’s care. Ms Cable said this was unnecessary when [Y] was in her care. Ms Cable also says that [Y] has become more aggressive since being prescribed the medication.
(64) The parties state that [Y] is not consistently dry at night, despite being 7 years old. Ms Cable says that [Y] was dry at night before he left her care on 07/03/2017; she believes that his bed wetting is a symptom of the stress he is experiencing being away from her. Mr Falzone asserts that [Y] has never been fully dry at night.
(65) Mr Falzone and Ms Cable report, that FACS were involved with [Y] and [X] at the end of their relationship in 2011. Mr Falzone says, that FACS were primarily involved, because of the unhygienic state of their home, and their illicit drug use. Contrastingly, Ms Cable asserts, that FACS, were mainly involved because of Mr Falzone’s alleged family violence towards her.
(66) Mr Falzone alleges that, post-separation, FACS were involved with the children, because of Ms Cable’s alleged neglectful parenting of the children. Mr Falzone alleges that the neglect issues included, the children sustaining preventable injuries (e.g. burns) as a result of inadequate supervision, Ms Cable failing to ensure the children regularly attend school; and Ms Cable’s home being unhygienic. Mr Falzone alleges that there is an ongoing issue with Ms Cable failing to bathe the children when they are in her care. Ms Cable generally denies Mr Falzone’s allegations, however, she admits that FACS once became involved because she had not enrolled [Y] in pre-school.
(67) Mr Falzone alleges that, at times, Ms Cable calls him highly offensive names in the children’s presence. Ms Cable denies the allegation.
(68) Ms Cable alleges that Mr Falzone “always” passes [Y] and [X] to be cared for by other people, including, Ms S, with whom Mr Falzone and the children live, his friend, Mr T, and the children’s great paternal grandparents. Ms Cable alleges that the ex-husband of Ms S, sexually abused Mr Falzone and his cousins when they were children. Ms Cable alleges, that there is a risk Ms S would fail to protect the children from harm. Ms Cable alleges that Mr T is an unsuitable person to care for the children, because allegedly in the past, he has threatened to harm her and the children. Ms Cable alleges that the paternal grandparents are in their 80’s, and are likely to find it difficult to adequately supervise the children. Mr Falzone says that the only two people who care for children, when he is unavailable, are Ms S and the children’s great paternal grandmother. Mr Falzone claims this occurs occasionally, for example, when he has to attend appointments. Mr Falzone confirms, that Ms S’s ex-husband sexually abused his cousins, and said this occurred more than 25 years ago. Mr Falzone says that there has not been any contact with Ms S’s ex-husband for many years. Mr Falzone denies there is a risk that Ms S would fail to protect the children from harm. Mr Falzone confirms that the children’s great paternal grandmother is in her 80’s, however, Mr Falzone asserts that she is spritely and has no problems caring for the children. Mr Falzone denies that Mr T has ever threatened to harm Ms Cable or the children. Mr Falzone says that Mr T is his best friend, and that they take the children out together. Mr Falzone reports that he only ever leaves the children with Mr T “very occasionally” when they are out together, for example, if he needs to use the bathroom.
(69) Ms Cable alleges that [Y] and [X] play video games “all the time”, in Mr Falzone’s care. Mr Falzone denies the allegation.
Alcohol and Substance Use
(70) Ms Cable and Mr Falzone report that, whilst they were in a relationship, they used methamphetamine; both the parties say they ceased using the drug in 2011. The parties claim they were never under the influence of illicit drugs when the children were in their care.
(71) Ms Cable alleges that historically, in the post-separation period, Mr Falzone was intoxicated whilst caring for the children. Mr Falzone denies the allegation.
(72) There were no concerns regarding Ms Cable being intoxicated whilst caring for the children.
Mental Health
(73) Ms Cable alleges that, during the parties’ relationship, Mr Falzone threatened to kill himself if she left him. Mr Falzone denies the allegation, and says that he has never had any problems with his mental health.
(74) Ms Cable advises that, in 2012, she experienced anxiety and depression for a short time. Ms Cable could not recall the trigger for her anxiety and depression. Ms Cable says that she does not have any ongoing mental health problems.
Adult relationships
(75) Ms Cable and Mr Falzone appear to have a limited effective co-parenting relationship.
(76) The parties report they communicate through telephoning and text messaging, and it is usually respectful.
(77) Mr Falzone alleges that, occasionally, Ms Cable verbally abuses him when they communicate. Ms Cable denies the allegation, however, she asserts there is tension in the parties’ communication because, “He thinks the children are best with him, and I think the children are best with me.”
(78) Ms Cable alleges that Mr Falzone “always” brings people to changeover with him, and that once he brought an uncle who had been consuming alcohol, and the uncle allegedly commented that, “I had stacked on the pounds.” Mr Falzone denies the allegations.
(79) Ms Cable alleges that there is an ongoing issue with Mr Falzone forgetting to return her telephone calls when she telephones to speak to [Y] and [X]. Mr Falzone denies the allegation.
(80) Ms Cable alleges, that when she speaks to the children, the telephone is on speaker, and that often Mr Falzone and the children’s aunt interrupt their conversation. Mr Falzone says that the telephone is on speaker when the children speak to Ms Cable, because his telephone “drops out”. Mr Falzone asserts that he gives the children privacy when they speak to Ms Cable, but that he checks in every few minutes to see if they need assistance, and to encourage the children to speak to her. Mr Falzone alleges that, historically, Ms Cable complained that the children did not talk to her on the telephone, and states that he tries to facilitate their communication.
(81) Ms Cable alleges that three times Mr Falzone has failed to make the children available to spend time with her in accordance with the 15/12/2017 Orders. Ms Cable also alleges that Mr Falzone “plays god” with the school holidays and decides, rather than negotiates with her, regarding when the children will spend time with her. Mr Falzone denies the allegations.
(82) Mr Falzone alleges that, previously, when the children lived with Ms Cable, she unreasonably prevented them from spending time with him. Ms Cable denies the allegation.
Allegations of family violence
(83) Mr Falzone and Ms Cable report, that there was regular verbal abuse during their relationship. Ms Cable says that the verbal abuse intensified towards the end of their relationship, and said the parties’ were equal contributors. Contrastingly, Mr Falzone stated that the verbal abuse occurred throughout their relationship, and Ms Cable was the primary aggressor.
(84) Mr Falzone alleges that Ms Cable frequently pushed him during their relationship. Ms Cable estimates that she was physically aggressive towards Mr Falzone twice during their relationship, saying, “I’ve only ever hit him [Mr Falzone] when he’s been pinning me down; he’s always had his hands on me first.”
(85) Ms Cable alleges coercive controlling violence on Mr Falzone’s part. Ms Cable alleges, that Mr Falzone was first violent towards her in 2010, when she was pregnant with [Y], by pinning her to a wall. Thereafter, Ms Cable alleges, that Mr Falzone was frequently violent, including, head-butting, pushing and choking her. Ms Cable alleges that Mr Falzone’s violence caused her to have injuries, including, a nosebleed and a fractured nose. Ms Cable also alleges that Mr Falzone threatened to harm her and her family. Mr Falzone denies the allegations.
(86) Ms Cable alleges, that historically, Mr Falzone’s family have verbally abused her and threatened to harm her. Mr Falzone denies Ms Cable’s allegations.
(87) Mr Falzone alleges that, historically, there was frequent family violence between Ms Cable and her sisters (Ms L and Ms M), and that [Y] and [X] were exposed to this. Ms Cable states that the children were exposed to a violent altercation between her and her sister, Ms L on 05/03/2017, which included, Ms L pushing her and twisting her shirt, so that she could not breathe. Ms Cable also reports that, during the dispute, [X] was grabbed between her and Ms L. Ms Cable says that she has not had any contact with Ms L family since 05/03/2017.
(88) Mr Falzone alleges, that Ms Cable’s sisters pushed him out of the family home when the parties separated in 2011. Mr Falzone alleges that, in the first six months, following the parties’ separation, Ms Cable’s family regularly made threats to physically harm him. Ms Cable denies that her sisters were violent towards him when the parties separated. Ms Cable says that she does not know if her family threatened Mr Falzone, post-separation.
35.The relatively brief observations of the children by the Family Consultant (pars.90 – 115), and then the observations of the children with each parent (pars.116 – 130) were as follows:
[Y] (7 years and 6 months)
(90) [Y] was interviewed alone twice. [Y] was interviewed twice, because soon after his first interview began, [Y] walked to the room door, indicating that he wanted the interview to end. [Y] accepted the writer’s offer of having a second interview, after [X]’s interview concluded.
(91) [Y] presented as somewhat immature, and had difficulty focusing. [Y] was more interested in exploring the interview room and, in particular, he liked playing with the blinds. [Y]’s speech was difficult to understand, which also made interviewing him problematic. [Y] only chose to answer some of the writer’s questions. On occasions, [Y] invaded the writer’s personal space by putting his face close to hers. The issues the writer experienced are consistent with [Y]’s diagnoses of ADHD and speech delay.
(92) There was no indication that [Y]’s views had been influenced by any adult.
(93) [Y] says that he is in Year 1 at Town H Primary school, and that he has some friends at the school.
(94) [Y] rates spending time with Ms Cable, as 10/10, and says this is because, “She loves me.” [Y] states that he likes playing with Ms Cable. Without prompting, [Y] commented, “I don’t like living in Canberra because it’s not where Mummy lives.”
(95) [Y] spoke about his relationship with his baby brother [A], and said, “I kiss my brother on the lips. I made [A] punch me in the room [during the observation in the playroom].”
(96) [Y] did not rate spending time with Mr Falzone, but said that he “sometimes” feels happy when he spends time with Mr Falzone, and that he likes jumping on the trampoline with Mr Falzone.
(97) In response to being asked if there is anything that makes him feel sad, worried or scared when he spends time with Mr Falzone, [Y] said, “I don’t listen to Dad. I don’t like it when he tickles me, he will never let us escape.” [Y] then asked the writer to “rub out” what he had said. It was unclear why [Y] did not want this information documented.
[X] (9 years and 2 months)
(98) [X] was interviewed alone, she engaged willingly with the writer. [X] presented as mature for her age.
(99) There was no indication that [X]’s views had been influenced by any adult.
(100) [X] said that she did not know why she was being interviewed.
(101) [X] says that she has a large group of friends at Town H Primary School.
(102) [X] rates spending time with Ms Cable as 10/10, and says this is because, “I can play with [A] [baby brother].”
(103) [X] states that the positives of spending time with Ms Cable are, watching movies and going to the beach.
(104) In response to being asked if there is anything, that makes her feel sad, worried, or scared when she spends time with Ms Cable, [X] states that, when she watches “scary movies” with Ms Cable, “It makes me feel a little scared.”
(105) [X] said that it is “good” when she spends time with Ms Cable’s partner. [X] advised that there is nothing she dislikes about spending time with Ms Cable’s partner.
(106) [X] rates spending time with Mr Falzone as 10/10, and says this is because, “We go out when it’s sunny and we stay in when it rains.”
(107) [X] states that the positives of spending time with Mr Falzone are, going on bicycle rides and playing games, such as ‘tips’ and ‘hide and seek’.
(108) In response to being asked if there is anything, that makes her feel sad, worried, or scared when she spends time with Mr Falzone, [X] discussed being worried when she has to tidy her bedroom, because she has so many belongings to clear up.
(109) [X] rates spending time with Ms S, her aunt with whom she lives, as 7/10, and says this is because, “I like it when we talk with her or play games with her. I like sewing with her, I’m making a stuffed unicorn.” [X] says that, the only thing she does not like about spending time with Ms S, is when she has to tidy her bedroom.
(110) [X] said that she would like to change Ms Cable to make her “skinny” because that is what Ms Cable wants. [X] also said that she would like Ms Cable to teach her how to cook. [X] said that she would like to change Mr Falzone, so that he did not have to work as much, and so that he has 10 PlayStation 4’s to enable her and friends to all play on the PlayStation at once. [X] said that she would like to change herself into a teenager, so that she “can do anything”, including, having a credit card, and having a telephone.
(111) [X] said, that her wish for her family, is for her parents to reunify.
(112) When asked what she would say if she was the Judge, [X] initially said that she would say to “Live with Dad, but live closer to Mum”, and explained that she does not like all the travelling between Canberra and Town C. [X] then changed her mind, and said she was unsure who she wants to live with because, “I love them both - I want to see them both ‘whenever’.”
Children’s relationships
(113) [Y] generally described having a positive relationship with both his parents, however, he indicated that he has a particularly close relationship with Ms Cable.
(114) [X] outlined enjoying a positive relationship with her both parties at this assessment, this was not dissimilar to the description she provided of her relationship with her parents at the CIC.
(115) Both [Y] and [X], compared to the CIC, provided more detailed responses at this assessment. This is probably associated with their increasing maturity, it may also be that the children felt more confident speaking to the writer, because they were interviewed by her at the CIC. For [Y], his ongoing treatment for ADHD and speech delay, probably contributed towards his greater capacity to engage with the writer.
OBSERVATIONS OF INTERACTIONS
[Y], [X], Ms Cable and [A] (Ms Cable’s son)
(116) The observation began with the writer greeting Mr Falzone, the great paternal grandmother, [Y] and [X] at the entrance to the Court. The writer then escorted, [Y] and [X] to meet Ms Cable and her son [A], who were in the waiting area. Upon [Y] and [X] seeing Ms Cable, they ran up and hugged her. The writer then escorted, [Y], [X], Ms Cable and [A] to the playroom. There was one brief break during the observation, when [Y] used the bathroom.
(117) [Y] and [X] participated in a range of activities, including, playing with the kitchen and playing with the balls. Sometimes the children played on their own, whilst on other occasions, they played together.
(118) [Y], [X], Ms Cable and [A] generally appeared comfortable in the presence of one another. For much of the observation, there was a relaxed flow of conversation between the participants, which on occasions erupted into laughter, for example, when they played a game with three bowls and they took turns hiding an egg was under one of them. During the observation, both [Y] and [X] periodically picked up [A] and cuddled him.
(119) Throughout the observation, Ms Cable, divided her attention evenly between [Y] and [X], and demonstrated a keen interest in their activities by helping them to develop their play ideas.
(120) On occasions, [Y] presented some challenging behaviours, for example, by saying he was going to throw a ball at [A]’s head, and invading [A]’s personal space. Ms Cable provided timely guidance to [Y], however, [Y] did not always follow her instruction.
(121) Immediately before the end of the observation, the writer asked Ms Cable to supervise the children tidying the playroom. This did not occur, the writer is unclear why it did not happen. At the conclusion of the observation, [Y] and [X] hugged Ms Cable and [A].
(122) This observation raises no significant concerns about [Y] and [X]’s relationship with Ms Cable or [A] within the observational context.
[Y], [X] and Mr Falzone
(123) The observation began with the writer escorting Mr Falzone to the playroom where [Y], [X] Ms Cable and [A] were. Upon [X] seeing Mr Falzone outside the playroom, she left the playroom and greeted him with a hug. As Ms Cable and [A] left the playroom, Ms Cable and Mr Falzone, had a brief conversation, however, the writer did not hear what they said to one another.
(124) There were two brief breaks during the observation. The first was when [Y] went to the bathroom, the second was when [X] went to the bathroom.
(125) [Y] and [X] engaged in various activities, including, playing with the balls and reading. Sometimes [Y] and [X] played on their own, whilst at other times, they played together.
(126) [Y], [X] and Mr Falzone appeared largely at ease in the company of one another. There was often free flowing conversation between the participants and smiles exchanged between them.
(127) Throughout the observation, Mr Falzone, divided his attention equitably between [Y] and [X]. Mr Falzone interacted enthusiastically with the children, for example by clarifying rules when [Y] created games and helping the children develop their play ideas.
(128) [Y] presented some challenging behaviours, for example, he stated, that he was going to throw a ball at the clock, he also threw some kitchen toys. Mr Falzone gave [Y] timely guidance which resulted in the desired outcome.
(129) Mr Falzone demonstrated skill at adjudicating between [Y] and [X], including when they both wanted the same toy and for turn taking, when they played ‘Simon Says’.
(130) This observation raises no concerns about [Y] and [X]’s relationship with Mr Falzone within the observational context.
36.The final section of Ms G's Report was her Evaluation and Recommendations, which I set out below (pars.131 – 147):
EVALUATION
(131) This assessment considers the future living and time-spending arrangements for [Y], aged 7 years and 6 months, and [X] aged 9 years and 2 months.
(132) On the day of the assessment, [Y] presented as enjoying a positive relationship with both his parents. However, at interview, [Y] indicated that he has an especially close relationship with Ms Cable. During both her interview, and during the observations, [X] presented as having an equally close relationship with both her parents.
(133) In determining the weight that should be placed on [Y]’s views, the Court may wish to exercise caution given his lack of maturity. Whilst [X]’s relatively young age indicates that prudence is required in attributing the weight given to her views, it is also noted that she impressed as mature for her age, therefore, it is unadvisable to completely dismiss her views.
(134) The current parenting arrangements, whereby [Y] and [X] live with Mr Falzone in Canberra, and spend each alternate weekend, plus half of the school holidays with Ms Cable in Town C, arguably provides the children with the opportunity to maintain a meaningful relationship with both of their parents. However, this arrangement requires the children to travel by car for more than nine hours each fortnight. Undertaking such travel is likely to feel burdensome for the children, indeed, at interview, [X] highlighted that she does not enjoy travelling the significant distance to spend time with Ms Cable. Further, as the children mature and become more independent, their peer networks are likely to become increasingly important to them, and such an arrangement may inhibit the development and maintenance of their peer friendships.
(135) Ms Cable alleges coercive controlling violence on Mr Falzone’s part. Mr Falzone denies the allegations. Mr Falzone alleges that Ms Cable frequently pushed him during their relationship. Ms Cable asserts that she was only violent towards Mr Falzone in response to his alleged violence. If accepted, Ms Cable’s account could be seen as an act of violent resistance. There appears to be a lack of independent evidence to support either parties’ allegations of family violence. If the Court substantiates either Ms Cable or Mr Falzone’s allegations of violence, then it is questionable how safe [Y] and [X] would be in the care of either party. If either Mr Falzone or Ms Cable are unable to control their temper, [Y] or [X], whilst in their care, might be at risk of being subjected to, and witnessing verbal and physical aggression. The risk of harm to the children could potentially increase as they mature, and assert their independence, and defy their parents’ wishes, which is developmentally appropriate. Another risk is that the children, may learn inappropriate strategies to manage interpersonal conflict, and this may result in them believing that aggression is an appropriate response. That said, there does not seem to be any recent allegations of family violence, therefore, any risk that was present, may have significantly diminished.
(136) Mr Falzone alleges that historically there was frequent family violence between Ms Cable and her sisters and the children witnessed this. Ms Cable asserts, that the only time the children were exposed to family violence between her and sisters was on 05/03/2017. Any exposure of the children to family violence may have been emotionally harmful for them.
(137) Mr Falzone and Ms Cable make allegations and counter-allegation of neglectful parenting. Mr Falzone denies all Ms Cable’s allegations. Ms Cable generally denies Mr Falzone’s allegations, other than admitting being delayed in enrolling [Y] to pre-school. If either party has been neglectful in their parenting of [Y] and [X], this may have been detrimental for the children’s self-esteem.
(138) Mr Falzone alleges that Ms Cable calls him highly offensive names in [Y] and [X]’s presence. Ms Cable denies the allegation. If Ms Cable has referred to Mr Falzone in highly offensive terms in the children’s presence, this may have been detrimental for their sense of identity.
(139) Mr Falzone and Ms Cable advise, that they used methamphetamine when they were a couple, however, they claim they were never under the influence of it whilst caring for the children. Ms Cable, alleges, that on occasions, post-separation, Mr Falzone has been intoxicated whilst caring for [Y] and [X]. If either party, has been under the influence of illicit drugs, or intoxicated whilst caring for the children, it may have compromised their parenting capacity.
(140) Mr Falzone denies [A]’s allegation that historically he threatened to commit suicide. Ms Cable says that she briefly experienced anxiety and depression in 2012. At interview, neither party appeared to be experiencing any mental health problems, therefore this does not appear to be a significant risk factor.
(141) Mr Falzone and Ms Cable present as having a limited effective co-parenting relationship. The tension in the parties’ co-parenting relationship appears to be caused by their competing proposals regarding the care arrangements for [Y] and [X].
(142) Mr Falzone’s proposal that [Y] and [X] live with him in Canberra, seems to be founded on his wish to ensure that the children are not exposed to neglect. The main advantage of this proposal seems to be that it would allow the children to maintain consistency of primary carer.
(143) Ms Cable’s proposal that [Y] and [X] live with her in Town C, appears to be based on her belief that the children should live with her, because they have spent most of their lives in her care. An advantage of this proposal seems to be, that it may conceivably provide the children and Ms Cable with the opportunity to strengthen their relationship. Another advantage is that it may facilitate [Y] and [X] developing their relationship with their baby brother [A]. A disadvantage of this proposal is that it would require a complete reversal in the care arrangements and a relocation, which [Y] and [X] may find stressful.
(144) Ideally, it is preferable that Mr Falzone and Ms Cable live within same geographical location as one another, so as to support [Y] and [X] enjoying a meaningful relationship with both their parents. Moreover, both children, at interview indicated that they wanted their parents to live closer together. Notwithstanding, information gathered in this assessment indicates that this is not a viable option.
(145) Information collated in this assessment suggests that both [Y] and [X] miss spending regular time with Ms Cable, however, neither child raised any concerns regarding the care they receive from Mr Falzone. Weighing up the options for the children’s living arrangements, appears to be largely dependent on the findings that the Court makes regarding the alleged neglect of the [Y] and [X]. If the Court finds that the children are at risk of significant neglect in Mr Falzone or Ms Cable’s care, either one of their proposals might be appropriate. If the Court finds, that either one of the parties has historically neglected the children, but the risk has substantially diminished, then it is recommended the children continue living with Mr Falzone. This is given that neither [Y] nor [X] articulated a desire to cease living with Mr Falzone.
(146) The writer is concerned that Mr Falzone’s proposal for the children spending time with Ms Cable may place an excessive burden on them with regard to travelling to and from Town C each alternate weekend. To address this issue, it is recommended, that during term time, [Y] and [X] spend time with Ms Cable one weekend a month in Town C, and Ms Cable is at liberty to spend one weekend a month in Canberra with the children. It is appreciated, that this arrangement may increase the financial strain upon Ms Cable, due to her having to fund more travel, and possibly finance accommodation in Canberra. However, the writer suggests the requirement to reduce the children’s travel overrides any financial stress Ms Cable may experience arising from such arrangements.
(147) Mr Falzone’s proposal that the [Y] and [X] spend half of the school holidays with Ms Cable is supported. Regarding Mr Falzone’s proposal that [Y] and [X] spend the first half of the school holidays with Ms Cable, the writer agrees with Mr Falzone, that it is important for the children to have time to settle at home before the start of the school term. However, it is suggested that the children returning to his care three nights before the start of the term is likely to provide sufficient time for this to occur.
RECOMMENDATIONS
(148) Unless evidentiary material should indicate otherwise, particularly in regard to the alleged neglect of the children by the parties, it is respectfully recommended that:
· [Y] and [X] live with Mr Falzone in Canberra.
· During term time, [Y] and [X] spend one weekend a month with Ms Cable in Town C commencing at 10am on Saturday and concluding at 4pm on Sunday.
· Ms Cable is at liberty to spend time with [Y] and [X] one weekend a month in Canberra.
· [Y] and [X] spend half of the school holidays with Ms Cable in Town C.
Oral Evidence of the Family Consultant
37.Summarised, Ms G’s oral evidence was as follows.
38.On a number of occasions, she confirmed that her recommendation for the children to remain living in Canberra with the Father was in full acknowledgement that their baby sibling, [A], remains living in Town C with the Mother. In her view, a meaningful relationship between the older siblings and the youngest sibling was possible without undue difficulty.
39.Also on a number of occasions, Ms G stressed that there was not insignificant risk in uprooting the children from their now settled life and routine, including at school, in Canberra. Such a move to return to live with the Mother was likely to be destabilising for the children.
40.Ms G expressed concern about the possibility, even a low possibility, of a return to the somewhat chaotic and disorganised parenting previously exhibited and admitted to by the Mother. This could/would include the risk of irregular or late attendance at school by [X], as had occurred in the past.
41.The Family Consultant also expressed concern (it was not put any higher than concern) about the past indications (in various FACS documents) about the state of hygiene in the Mother’s house, and likewise about the number of visits to the Mother’s residence, including regularly re-scheduled visits, by FACS caseworkers – accepting that such events were now some time ago.
42.Ms G confirmed that notwithstanding the various incidents recorded by the parents in their material and in interviews with her, both parents had maintained good and close relationships with the children.
43.Interestingly, Ms G noted that although both children missed their Mother, neither of them expressed a clear view of wishing to change their residence. She also said that the Mother did not express any views or otherwise comment on her future plans regarding her baby, [A]. The children obviously like spending time with their baby brother. This was in circumstances where [A]’s [60-year-old] Father (Mr F) did not attend upon the Family Consultant for any interview, or provide any affidavit material in support of the Mother’s case. In part, this may be understandable given that [A] was not formally a child of the proceedings. That said, [A]’s relationship with his older siblings is a significant consideration. In this respect, Mr F’s lack of input into the Mother’s case was unfortunate because it deprived everyone, including the Court, of possibly relevant information regarding [A]’s living situation and other related matters. This lack of information as compounded by the relative lack of explanation for this evidentiary gap.
44.Ms G said that, regarding [X] and puberty, much would depend on how her relationship with the Father continued to develop. There was nothing to stop [X] at any time speaking directly with her Mother.
45.Unsurprisingly, Ms G emphasised that the travel time and distance to be travelled regularly by the children between Canberra and Town C was a very significant consideration. Again she stressed that one needs to be cautious about moving children who have, as here, already been through a significant relocation not that long ago. She also stated that, in her view, it would be ideal if the parents lived closer together, and that, at some time in the future, it is likely that the children will not want to continue to travel the significant distance between the two cities where their parents reside.
46.There was no relevant challenge to Ms G’s evidence. I readily accept her evidence, particularly in circumstances where I have no reason not to do so.
Written Submissions on behalf of the Applicant Father
47.Written submissions were filed on behalf of the Applicant Father on 30th January 2019. They were as follows:
Introduction
1) These proceedings relate to [X] born … 2009 (age 9) and [Y] born on … 2011 (age 7) (“the children”).
2) Following the completion of evidence in the final hearing on 5 and 6 December 2018, the parties were ordered to prepare final written submissions.
3) There is an ongoing dispute in relation to the parenting arrangements for the children. Mr Falzone, the Applicant Father, seeks to maintain the current arrangements where the children live with the Father in Canberra and spend alternate weekends with their Mother (who currently lives in Town C). The Mother, Ms Cable, seeks that the children relocate and live with her in Town C and spend alternate weekend time with the Father.
4) The Family Consultant, Ms G, as set out on paragraph 148 of the Family Report dated 30 October 2018 (“the Family Report”) supports the current arrangement, as proposed by the Applicant Father, as being in the children’s best interests.
5) The Father seeks that the recommendations of Ms G be made into final orders.
Brief Summary of Facts
6) The following facts are non-contentious and summarised in the family report. A short summary of the facts in this matter are as follows:
a) The children enjoy a good and strong relationship with each parent.
b) The Applicant Father and Respondent Mother are Aboriginal, from the [W] people. Each parent participates and supports the children’s participation in Aboriginal activities and learning about their Aboriginal culture.
c) The parties commenced living together in 2008 and separated on a final basis in December 2011. Throughout their relationship, the parents lived in Suburb CC, New South Wales. Following separation, the Applicant Father moved to Canberra and has remained there to date. The Respondent Mother remained in the Suburb CC area until March 2017, at which time she relocated to Town C.
d) There is a dispute regarding when the Applicant Father commenced spending time with the children following separation but from either 2012 (according to the Father) or from 2013 (according to the Mother), the children commenced spending each alternate weekend with the Applicant Father until March 2017.
e) On 5 March 2017, the Respondent Mother had a violent altercation with her sister, Ms L, and per the Mother’s oral evidence at the final hearing, her sister then suffered a stroke shortly after the violent altercation and is now wheelchair bound.
f) The children witnessed this violent altercation and per the Mother’s oral evidence at the final hearing, the Mother has not and did not report the incident to the police. The Mother fled the Suburb CC region and took the children to Town C as the Mother stated to the Family Consultant at paragraph 17 that the Mother felt unsafe in the Suburb CC region.
g) The children were collected, as arranged between the Mother and Father, by the Paternal Grandmother on 7 March 2017.
h) The children came into the Father’s care on 12 March 2017 and have lived with the Father in Canberra since that date. The Mother disputes that the children were to move to Canberra.
i) The Mother’s oral evidence was that for a period, she returned to the Suburb CC area and stayed with a friend, was then in refuge housing in Town C for a period and then obtained public housing in Town C.
j) The Mother has a new child, [A] born … 2017. It is not clear from the Mother’s oral evidence when she commenced her relationship with Mr F (age 58 years, born … 1959). There is limited to no evidence available about Mr F. According to the Mother, [A] spends 2 to 3 nights per week with Mr F, but the days / care arrangement for him are not known. The Mother does not live with Mr F and the reason for this is also not known. Mr F does not work and is on a disability pension and it is not known what ties, if any, the Mother has or that Mr F may have to the Town C area.
k) The distance between Town H, ACT and Town C, NSW is approximately 4 hours and 40 minutes or approximately 435 kilometres by car.
l) At present, the children live with their Father in Canberra and spend alternate weekends (10:00am Saturday to 4:00pm Sunday) and half school holidays with their Mother. Changeovers take place at Railway Station D unless otherwise agreed.
m) The children have been attending Town H Public School for 2 years.
Legislative Pathway
7) Proceedings for parenting orders are governed by the provisions of Part VII of the Family Law Act 1975 (“the Act”). The court must consider the best interests of the children as the paramount consideration.
8) Section 60B sets out the objects of Part VII of the Act and the principles underlying those objects namely:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
9) Section 61DA(1) of the Act provides that the court must apply a presumption that it is in the best interests of the children for the children’s parents to have equal shared parental responsibility for the children. In the event that, either because that presumption applies, or because it is otherwise in the children’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the children should spend equal time with each of the parents, or substantial and significant time.
10) However, s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the children (or a person who lives with a parent of the children) has engaged in abuse of the children or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the children for its parents to have equal shared parental responsibility.
11) In this matter, the parties both confirm in their oral evidence that their communication in relation to the children is good. Both parties seek equal shared parental responsibility. However, neither parent considers equal shared care of the children to be in the children’s best interests. The Father’s submissions as to why the children should remain in the Father’s primary care and continue to spend alternate weekends with the Mother are detailed below.
12) Section 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in section 60CC.
13) There are two “primary considerations”. The first is the benefit of the children of having a meaningful relationship with both parents, and the second is the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
14) The court must also take into account the “additional considerations” that are relevant.
Primary Considerations
Meaningful Relationship
15) It appeared clear on the evidence of each party that the children currently have a meaningful relationship with both of their parents.
16) The Family Consultant’s evidence was that despite the changes in the children’s lives (include change of city, change of primary caregiver, change of school, etc.), the children had maintained a strong and positive relationship with each parent. The Family Consultant stated in her oral evidence that this is a credit to both parents.
Protection from Physical or Psychological Harm
Family Violence
17) Per paragraph 19 of the Family Report, both parents confirm that there have never been any family violence orders between the parents. The Father, per his oral evidence, maintains that despite there being verbal arguments and the Mother pushing him from time to time throughout the relationship, there were no physical altercations during the relationship. The Mother alleges that there were violent altercations between her and the Father but that for reasons not explained to the Court, these incidents were never reported to the police and the Mother continued to facilitate contact between the Father and the children each fortnight following separation notwithstanding her allegations.
18) The Mother alleges (as detailed in paragraph 85 of the Family Report) that the Father fractured her nose but despite that allegation, no medical or other evidence was provided to the Court to support when this alleged fracture occurred or what medical or police intervention the Mother had for this alleged fracture.
19) It is submitted that the Father’s evidence regarding the lack of family violence between the Mother and the Father should be preferred over the Mother’s inconsistent explanations of alleged incidents.
20) The only evidence before the Court of family violence was violence that was witnessed by the children whilst in the Mother’s care. The Mother’s oral evidence was that she had not been in fights previously with her sister, Ms L, but that suddenly, in March 2017, she and her sister were in a violent altercation. This violent altercation, per the Mother’s oral evidence, was not reported to the police despite the Mother’s alleged concern that the danger was so significant, she needed to flee the Sydney region and travel to Town C with the children.
21) Thereafter, it is the Mother’s own evidence that she contacted the Father to arrange for him and/or the Paternal Grandmother to care for the children.
22) It is submitted that the children would be at risk of family violence in the Mother’s care as the Mother’s oral evidence is that she exposed the children to family violence and failed to act protectively by failing to report the incident. Rather than maintain a stable environment for the children, she unilaterally took the children to Town C (without the knowledge or consent of the Father). No explanation was given by the Mother as to why she abandoned her home, the children’s school and the support structure she enjoyed in Sydney when she could have obtained a family violence order against her sister if the risk of harm to her or the children was that great. The Mother’s evidence was simply that she had to leave the Sydney region with the children for their safety. It is submitted that the children would be at greater risk of exposure to ongoing family violence if they were to live with the Mother due to the Mother’s evidenced response to family violence with her own sibling.
23) It is submitted that the Mother’s evidence as to why the children were taken to the Canberra region, namely, that they were “stolen” by the Father, should not be accepted. The Mother’s explanation as to why the children ended up in the Father’s care in Canberra was inconsistent. The Mother’s oral evidence directly contradicts the conversations reported in Tender Bundle #22 where the Mother states that “the current plan is for the Father to come to Sydney on Sunday to collect the kids and return to the ACT.” Also in Tender Bundle #25, the Mother reports that she “is no longer wanting to move to Canberra.” It is submitted that the evidence of the Father should be preferred to that of the Mothers, namely that it was his understanding that the Mother wanted him to care for the children in Canberra and arrange collection of the children to Canberra. It is the Father’s evidence that he was waiting for the Mother to advise him when she was going to come to Canberra so that longer term care arrangements could be arranged for the children. It is the Father’s evidence that he had no knowledge of the Mother’s new partner or any intention of the Mother to relocate to Town C. It is submitted that the Father acted protectively at the request of the Mother and arranged for the children to have safe and stable accommodation in Canberra.
Abuse of Illicit Drugs
24) The evidence before the Court is that the Father has been open and consistent in his admission of drug use in approximately 2010 and 2011 during the parties’ relationship. The Father of his own volition underwent a hair follicle test in November 2018 (Tender Bundle – Exhibit C (“hereafter Tender Bundle”) #42) showing that there are no illicit substances in his system in 2018.
25) For reasons not explained to the Court, the Mother has not provided any recent drug testing to the Court and the only evidence before the Court is a clean test from 2017 when the Mother was pregnant. No explanation is provided by the Mother as to why that is the case. Concerns of possible drug use by the Mother have been raised as early as 2012 (in Tender Bundle #1), where the Mother initially denied drug use to support services and then later disclosed drug use.
26) The Mother has been inconsistent in her disclosures to third parties and the Court and has at times, denied drug use and then admitted to drug use later. The Mother further evidences that the reason she and her sister, Ms L, were in a violent altercation in March 2017 was because her sister tried to remove the children from her when she accused the mother of using illicit substances (in Tender Bundle #26). The Mother admits that she allowed a known drug user, identified as a previous drug dealer by the Father, to stay with her and the children in 2017. No explanation was provided by the Mother as to why she allowed a known drug user to reside (albeit temporarily) in the same house as her children. No reasonable explanation was provided by the Mother as to why her sister suddenly accused her of using illicit drugs and what led to her sister trying to remove the children from her care.
Section 60CC Factors
Meaningful Relationship
30) The obvious difficulty that the Court faces in a case such as this where there are young Children and large distances between the parties is how to give proper effect to this section of the Act.
31) It is submitted that as concluded in Mazorski v Albright (2007) 37 FAMLR 518 it was concluded that a meaningful relationship or meaningful involvement “is one which is important, significant and invaluable to the child” and the word meaningful is a qualitative adjective not a strictly quantitative one. It is submitted the Children reside with their Mother and spend time with their Father at either his mother’s home or his home then this objective of the Act can be achieved. An alternate is for the Father to move his premises from Canberra to somewhere closer to the Mother’s home as the Father has conceded that he is not in a new relationship and does not have any other children. The Mother by comparison has another young child with her new partner and has obligations to both the child and her partner in the Town C area. The balance of convenience would therefore favour the Mother remaining where she is and the Father moving.
Need to Protect the Children from Physical and Psychological Harm
32) It is submitted that the majority of the complaints made in the departmental and other records came from “a caller”. Due to the nature in which the department deals with such complaints that person has never been identified and the basis of a large amount of the cross-examination by Counsel for the Father was based on material provided by an unknown person and for reasons best known to them. It was therefore objected to and it is submitted that the Court could put no weight on any of the alleged complaints made by “the caller” unless the Court draws the inference that the person making the complaint was the Father and in doing so he had an ulterior motive.
33) Earlier submissions have been made in relation to some of the conclusions reached by the Department and it is submitted that whilst the Mother may have struggled in raising two very young children on her own with little or no assistance by the Father the Court must form the conclusion that the Children are not in any physical harm in the care of their Mother. It is also submitted that the Children may be at some form of psychological harm if living with their Father due to his recent prioritising of his own needs over that of the Children when the Mother had made requests to attend upon them in Canberra and the Father prioritised a family reunion over the Mother’s request.
Views of the Children
34) The Report Writer at paragraph 91 indicated that [Y] presented as somewhat immature and had difficulty focusing. He did indicate that at paragraph 94 that he rated spending time with Ms Cable as 10 out of 10 because “she loves me”. He did say also “I don’t like living in Canberra because it’s not where Mummy lives.” Whilst it is conceded that given his very young age at the time of comment (seven and a half years) it is indicative of a desire by the Child to spend significant time with the Mother. He did say at paragraph 97 “I don’t listen to Dad, I don’t like it when he tickles me he never lets us escape.” The Child went on to say that he wanted that information deleted from the report.
35) [X] was aged nine years and two months at the time of interview. [X] advised that she had some problems with movies when spending time with her Mother but otherwise “there is nothing she dislikes about spending time Ms Cable's Partner or Ms Cable.” She was also very positive about spending time with her Father. Ultimately, [X] expressed uncertainty about where she wished to live because “she loved them both” and then went on to say, “I want to see them both whenever.” At observation at paragraph 116 “they ran up to Ms Cable and hugged her,” and at paragraph 132 [Y] indicated that he had an especially close relationship with Ms Cable.
36) In relation to the section 66CC factor, it is submitted that it is not encumbered upon either party to make submissions about every single part of the section of the Act merely to highlight those that are relevant to the case and it is submitted that the Father can be criticised under section 3(c) in failing to spend time or communicate with the Children when they were with their Mother and has been submitted has interfered with the time the Children could have spent with their Mother in recent times. The Father could be criticised under section (ca) as he did not pay child support at any time during which the Children were living with the Mother. The issue of practical difficulty and expense of the Child spending time with and communicating with the parent has been addressed early in these submissions. It is submitted that the distance between Town C and Canberra is over four hours and even more so by public transport. It is burdensome on the Children to spend such time to travel to see their Mother and may ultimately see the Children not wanting to attend upon the Mother’s home merely because of the distances involved.
Subsection (d)
37) it is submitted that the change in circumstances that would leave the Children living with their Mother may have an effect on them in that they would not be spending as much time with their Father, however this can be easily overcome by the Father moving closer to where the Mother lives. It is submitted that there appears to be no other support groups in the Canberra districts for the Father.
Subsection (h)
38) It is conceded that the Children have Aboriginal heritage, however neither party cross-examined or made any significant comment in affidavit or other material concerning Aboriginality.
39) There does not appear to be any AVO’s currently between the parties.
Summary
40) The only uncontested evidence is that the Children had been in the care of their Mother for many years up until when they came into the care of the Father in March 2017. They have remained in his care ever since although the Mother has been seeing the Children albeit in difficult circumstances since that time.
41) The Father alleges the reason why the Children should remain in his care is because of a history of neglect by the Mother. It is simply unexplainable as to why the Father raises this allegation in March of 2017 when he knew on his evidence at least that the Children were in a neglected state from when he went to Canberra up until the time he collected the Children. The only answer that can be given to this is that the Father is motivated by some other reason than neglect.
42) The Mother concedes she had difficulty in raising two very young children in the time the Father was absent and it is submitted that the manner in which she gave her evidence is quite believable and that she did the best in the circumstances that she was in at the time. The Children clearly love their Mother and have a strong attachment to her, this has been demonstrated in the Family Report and it is submitted that in all the circumstances it is in their best interests for the Children to be returned to their Mother to live with her and to spend time with their Father in the Town C district on a regular basis.
Outline of Principle
49.In Mazorski v Albright, in the light of, and by reference to, relevant Full Court authority, Brown J conveniently set out an overview of principle in relation to Part VII of the Act. Respectfully and gratefully I adopt her Honour’s comments. Brown J said:[2]
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2))
[2] (2007) 37 Fam LR 518 at [3] – [6]. Brown J’s comments were endorsed by Boland J (with whom May & O’Reilly JJ agreed) in Moose & Moose (2008) FLC ¶93-375 at [67] – [68].
50.Her Honour also made important observations about the term “meaningful”, as used in Part VII of the Act, in the context of what is comprehended by a “meaningful relationship.” At [20] - [26], her Honour outlined various other points of reference. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:[3]
[3] Brown J’s remarks in this regard were endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and even more recently by a differently constituted Full Court in McCall & Clark (2009) 41 Fam LR 483 at [115] & [121]. More recently still, a further Full Court in Collu & Rinaldo [2010] FamCAFC 53 at [335], similarly endorsed Brown J’s remarks.
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA (2) — (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationships with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
51.In addition to these comments, it is useful to recall some earlier comments by the High Court in AMS v AIF. For example, in that case, Kirby J simply observed that there is, in parenting cases that involve relocation, a “large element of judgment, discretion and intuition.”[4] In my view, the same sagely simple comment applies essentially to all parenting cases, irrespective of whether or not there is an application regarding “relocation.” His Honour’s comments apply no less to the case where there is an Application by the Mother for the children to change residence, accepting that they have previously lived primarily with the Mother.
[4] AMS v AIF (1999) 199 CLR 160 at p.211 [150].
52.In the same case, Hayne J said (internal citations omitted):[5]
[204] The problems that family law legislation deals with are human problems: with all their attendant variety and complexity. And at the end of a court proceeding under such legislation, a judge must make an order - usually an order that says yes or no to some application. "[A] complicated mass of human experience has to be reduced to the simplest possible terms." Because the problems are human problems, because they are as varied and complicated as they are, the legislature speaks in terms more often found in statements of aspiration than legal prescription. It is, then, hardly surprising that the guiding principles prescribed by the legislation for application in cases concerning the guardianship or custody of children or related issues, are principles that seldom, if ever, permit syllogistic reasoning.
[205] Further, when considering the reasons given by a judge who has made an order in an application about the guardianship or custody of children, it is necessary to bear steadily in mind that the judge must grapple with the chaotic complexity of real life, make predictions not only of what he or she concludes may happen in future but also of what will be "best" for the child, and do so having regard to what the parties have chosen to contest or emphasise in the course of the hearing.
[5] AMS v AIF (1999) CLR 160 at p.228 [204] & [205]. Of course, the comments by both Kirby & Hayne JJ are in a legislative context different to that which operates today. Accepting that qualification, respectfully, their Honour’s comments, in my view, are nonetheless important.
53.Respectfully, the comments of Hayne J are especially apposite in almost all parenting cases. They apply, and are particularly relevant, to the matter currently before the Court.
Consideration and Disposition
54.Following sequentially the order of “considerations” in s.60CC(3), without necessarily or specifically mentioning each sub-paragraph, I note the following summarily in the light of the evidence and in the light of the jurisprudential principles recorded above.
55.The views of the children, and equally the relationship of them with their parents, are in the Family Report.[6] Those views, briefly stated, together with the evidence of the parties more generally, are that the children have a good and close relationship with both parents. It is also the case that there was no expression by either child (accepting the difficulties noted by the Family Consultant regarding [Y]’s “views” and evidence generally) seeking to change their primary residence back to live with their Mother.[7] Further, [X] initially wished to keep living with her Father, but also indicated her desire for regular time with her Mother. [X] seemed loyal and seeking to be equitable in defending both her parents, and also seeking to balance the time with each parent.
[6] The references here are, of course, to the considerations set out in s.60CC(3)(a) and (b).
[7] Most of the matters here, in my view, are also directly relevant to the primary considerations in s.60CC(2)(a).
56.In my view, these same matters are relevant (to some degree at least) to the considerations in sub-par.(d). I say this because of the obviously sound relationship of the children with each parent. This led me earlier to record, as I did during the trial, how evenly balanced the evidence and the various considerations are in relation to the parents, their care of, and their relationship with, the children, and the principal question of the primary residence of the children.
57.Both children, in different ways, readily acknowledge that they like playing with their baby brother, [A]. The Family Consultant noted that, regardless of whether the children lived with the Mother or the Father, the children will have a close and meaningful relationship with their much younger sibling.
58.I have to say that the lack of information from the Mother about [A]'s Father is a notable gap in the evidentiary puzzle. Nor is there any explanation for this gap. It is not known whether Mr F is regularly at the Mother’s house even though he does not reside there. It is also unclear whether he features, or is likely to feature, in the longer-term plans of the Mother, for example, regarding whether he might live with her in the future, in which case whether he might be part of any care provided to [X] and [Y]. The Court simply does not know.
59.There is more than a suggestion in the documents put before the Court by the Father that, historically, the Mother had some organisational issues regarding the care of the children. Words like “chaotic” were used during the trial to which there was little or no dispute. For my part, I regard such things as essentially historical. Accordingly, as for the weight to be given to them, in my view, such things are of quite modest import. But they cannot be ignored all the same.[8]
[8] These matters are relevant, to varying degrees, to the considerations in sub-pars.(ca) and (f).
60.Matters of “distance”, “practicality” and “expense” are clearly issues of significance. In the absence of the parents moving to live closer to each other, the so-called tyranny of distance between Canberra and Town C will remain a sizeable obstacle to the children spending more regular time with the non-resident parent. Even worse, as noted earlier, one or both children may, perhaps with some regularity, resist making the trek to visit and spend time with one parent or the other. This will not be out of a lack of desire to want to spent time with the other parent, but simply the distractions of youth, the boredom (or worse) of such regular, long travel, and much else besides, will likely (and quickly) take its toll on the children.
61.It also seems to me that notwithstanding the distance involved, the nature and meaningfulness of the children’s relationship with each parent is unlikely to diminish, especially having regard to the considerations set out in sub-par.(d).
62.To speak generally, and by reference to the considerations in sub-pars.(f), (g) and (i), precisely because the children clearly have a good and close relationship with each parent, it would be very difficult to fault, in any formal way, the care and engagement of the parents with the children. The difficulties set out in the documents before the Court in the Father’s Tender Bundle indicate some difficulties encountered by the Mother in the past with her care of the children. In my view, it is the good and close relationship of the children with each parent that is the most telling of their being little of substance with which the Court should have any regard.
63.I have also noted earlier in these reasons that neither parent raise their Aboriginality as an issue that requires any other comment or inquiry by the Court. Nor are there any current family violence issues of specific relevance for the Court to consider.
64.For my part, the crucial aspect that essentially tips the balance in favour of the Orders sought by the Father as being in the children’s best interests is that [X] and [Y] have now been settled in Canberra, and at school in well-settled routines, for a not insignificant period of time. By all reports, they are doing well at school. [X] noted to the Family Consultant that she has a good group of friends at school.
65.So it is because of the well-settled nature of the children being in Canberra with their Father, and the lack of information regarding their baby sibling’s Father, that brings me to the conclusion that the children should remain living in Canberra with their Father and spending regular time with their Mother, as proposed by the Father.
66.At the risk of being totally repetitious, if the parents lived closer to each other, I have little doubt that a shared care, equal time arrangement would be in the children’s best interests, and that the parents would quite readily make such an arrangement work. However, while there remains the geographical gulf between the parents’ residences, the best that the Court can do in the best interests of the children is to make the Orders as proposed by the Father.
67.Both parties agree that an Order should be made for Equal Shared Parental Responsibility. That Order will be made. For reasons already noted, neither an equal time arrangement, nor Orders that provide for “substantial and significant time” (as comprehended by s.65DAA), are appropriate or in the best interests of the children. Accordingly, in my view, the Orders of the Father are in the best interests of the children.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 6 August 2019
Key Legal Topics
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Family Law
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Jurisdiction
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Remedies
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Procedural Fairness
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