Fitzroy and Clauson
[2017] FCCA 46
•2 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FITZROY & CLAUSON | [2017] FCCA 46 |
| Catchwords: FAMILY LAW – Parenting – relocation of children’s residence from Brisbane to Hobart – spend time with arrangements – restraint regarding posting on social media – change of children’s surname to a hyphenated surname. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 68B, 121 |
| Cases cited: Hall & Hall (1979) FLC 90-713 Sayer & Radcliffe [2012] FamCAFC 209 |
| Applicant: | MS FITZROY |
| Respondent: | MR CLAUSON |
| File Number: | HBC 287 of 2015 |
| Judgment of: | Judge Baker |
| Hearing dates: | 4 November 2016, 9 December 2016 |
| Date of Last Submission: | 9 December 2016 |
| Delivered at: | Hobart |
| Delivered on: | 2 February 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Trezise |
| Solicitors for the Applicant: | Dobson Mitchell Allport |
| Counsel for the Respondent: | Self-Represented |
| Solicitors for the Respondent: | N/A |
ORDERS
The parties have equal shared parental responsibility for their children [X] (“[X]”) born (omitted) 2012 and [Y] (“[Y]”) born (omitted) 2014 (“the Children”).
The children be known by the surname Fitzroy-Clauson.
The children live with the mother and she is permitted to relocate their residence to Tasmania.
After [X] has spent one week of supervised time with the father pursuant to order 3 made 4 November 2016, in 2017 [X] spend time during the day with the father each alternate month from the first Monday until the first Friday of the calendar month; and on any other month, if the father gives the mother 14 days’ written notice of his intention to exercise such time:
(i)On the first visit, time to be unsupervised for a period up to five hours each day, and to fit around [X]’ Kindergarten attendance.
(ii)After the time referred to in (i), [X] spend one night with the father from 5:00 pm Monday until 2:00 pm Tuesday, or the commencement of Kindergarten, whichever is earlier; and for up to five hours on the subsequent week days, or such time as agreed.
(iii)After the time referred to in (ii), [X] spend two nights with the father from 5:00 pm Monday until 2:00 pm Wednesday, or the commencement of Kindergarten, whichever is the earlier; and for up to five hours on Thursday and Friday, or such time as agreed.
(iv)On each subsequent visit after the time referred to in (iii), the overnight time shall increase by one extra night.
[X] spend time with the father in Brisbane for one week during the third term school holidays 2017 and, if [X] has spent two consecutive nights with the father by that time, he spend three consecutive nights with him; otherwise he spend two nights; and the balance of the week to be day time for up to 8 hours or such time as agreed, the commencement and conclusion time to be nominated by the father, if not otherwise agreed.
The mother be responsible for the travel costs for the visit referred to in order 5 and subsequent third term school holiday visits.
After [X] has spent time with the father in accordance with orders 4 and 5, [X] spend time with the father:
(i)From 2018, for one half of all school holidays, during the first half, if not otherwise agreed, the third term holiday visit to occur in Brisbane.
(ii)From 2018, for two weekends per school term from Friday after school until Monday morning at school upon the father giving 14 days’ notice in writing to the mother.
(iii)Such further or other times as agreed.
(iv)The father be responsible for the costs of travel for visits, save for the third term school holiday visits, for which the mother is responsible.
After [Y] has spent one visit of supervised time pursuant to order 3 made 4 November 2016, [Y] spend time with the father each alternate month from the first Monday until the first Friday of the calendar month; and on any other month, if the father gives the mother 14 days’ notice of his intention to exercise such time:
(i)At the (omitted) Children’s Contact Centre, or such other service that can be utilised from 2:00 pm until 5:00 pm, or such other time as the Contact Centre or such other service can accommodate; or alternatively such time to be supervised by a person to be agreed; and
(ii)Unsupervised time as agreed, when [Y] is ready for such time, for short periods of up to three hours and increasing gradually for such periods of time as agreed.
(iii)For one week in Brisbane in 2017 during the third term school holidays, each day for three hours from 2:00 pm until 5:00 pm or such other time as agreed, such time to be supervised at a contact centre to be nominated by the father, or by such other supervisor as agreed, if not otherwise agreed that unsupervised time occur.
[X] and [Y] communicate with the father via Skype, FaceTime or telephone calls for a duration of 30 minutes three times per week at such times to be agreed via text message.
The father be and is hereby restrained from posting or maintaining any material on social media sites about the mother, the children or members of the mother’s family.
Leave is granted to the father to apply for unsupervised time with [Y] after six sessions of supervised time has occurred pursuant to order 8(i).
IT IS NOTED that publication of this judgment under the pseudonym Fitzroy & Clauson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT HOBART |
HBC 287 of 2015
| MS FITZROY |
Applicant
And
| MR CLAUSON |
Respondent
REASONS FOR JUDGMENT
Introduction
These are proceedings for parenting orders regarding the children of the parties, [X] born (omitted) 2012 (“[X]”) and [Y] born (omitted) 2014 (“[Y]”). The mother lives in Hobart with the children. The father lives in Brisbane.
The parties commenced their relationship in Brisbane, in or about August 2009. They married on 21 November 2010 and separated on 29 March 2015. The children have lived with the mother since separation. She relocated with the children from Brisbane to Hobart on 13 April 2015.
Background
During 2012, when the mother was pregnant with [X], the parties separated for approximately three months. Between September and December 2012 they attended marriage counselling. The mother was experiencing anxiety and stress. She was referred by her GP to a psychologist, whom she saw weekly for around two months.
The parties reconciled in November 2012. [X] was born in December 2012. The mother took maternity leave until 8 August 2013 and then returned to work full-time. [X] attended day-care for two days each week, spent one day with the father’s parents and the other two days with the father.
In or about November 2013, the mother was diagnosed with post-natal depression and sought appropriate treatment. She has continued to suffer from anxiety and depression.
In July 2014, the mother reduced her work hours to 25 hours per week. She was pregnant with [Y] and was suffering from back pain. From August 2014, she worked from home until [Y] was born in October 2014.
On 31 October 2014, the mother was made redundant from her employment. She has been the full-time carer of the children since then.
During early 2015, the mother became severely anxious and depressed. The parties were having financial difficulties and the mother borrowed funds from her parents.
On 29 March 2015, the parties separated and the father moved into his parents’ home.
On 13 April 2015, the mother relocated the children to Hobart. She filed an application for parenting orders on 21 April 2015. There was no appearance by or on behalf of the father on the first court date on 1 June 2015. The matter was adjourned to 12 June 2015 for a possible undefended hearing. On 12 June the father appeared in court. Interim consent orders were made in respect of property. The father was ordered to file a response, financial statement and affidavit. The parties were ordered to attend a child dispute conference.
The father filed a notice of address for service on 12 June 2015. He did not file a response until 10 July 2015.
A final hearing was listed in October 2016. The father believed that he could appear by telephone and did not travel to Hobart. The hearing date was vacated and the parenting application was part-heard on 4 November 2016 and finalised on 9 December 2016.
On 4 November 2016, I ordered that each party enrol at the (omitted) Children’s Contact Centre (“the Contact Centre”) and, until further order, [X] and [Y] spend time with the father on the first Monday of each calendar month, [X] from 2:00 pm until 5:00 pm and [Y] from 4:00 pm until 5:00 pm, or such other times as the father could afford to attend.
At that time the father had not had any face-to-face contact with the children since October 2015.
The father failed to enrol at the Contact Centre and still had not had time with [Y] as at 9 December 2016. He spent some time with [X] before his return to Brisbane in November.
Circumstances of the parties
The mother is 36 years of age. She lived with her parents in Hobart until she obtained a unit. She receives emotional, financial and child-care support from her parents. She is not currently employed, and is in receipt of Centrelink benefits. She is studying part-time for a (omitted).
The father is 33 years of age. He continues to live in Brisbane. He works as a (occupation omitted). He often (occupation omitted) in Brisbane and supplements his income through (omitted).
Proposals
The mother sought orders permitting the children to continue to reside with her in Hobart, in the first instance, or alternatively, that the children live with her in Brisbane. She seeks the same orders for the children to have supervised time with the father, whether she is to live in Hobart or Brisbane. The proposed schedule is as follows:
Period: now – when [X] commences kindergarten in February 2017
Supervised time at the (omitted) Children’s Contact Service (“the (omitted)”) / (omitted) – Family Contact Supervision (“omitted”) on a daily basis from the first Monday of each calendar month until the first Friday of each calendar month as follows:
a) With [X], from 2:00 pm until 5:00 pm; and
b) With [Y], from 4:00 pm until 5:00 pm;
Or at such other times as the service can accommodate.
Period: February 2017 – January 2018 while [X] is attending kindergarten
Supervised time at the (omitted contact centre) on non-kindergarten days, for example either Saturday through Tuesday or Thursday through Sunday, during the first period of each calendar month as follows:
a) With [X], from 2:00 pm until 5:00 pm; and
b) With [Y], from 3:00 pm until 5:00 pm;
Or at such other times as the service can accommodate.
Period: beyond February 2018 while [X] is attending school
Supervised time at the (omitted contact centre) on the weekend during the first period of each calendar month with both children from 12:00 pm until 5:00 pm;
Or at such other times as the service can accommodate.
The mother sought orders for equal shared parental responsibility; that the children be known by the surname Fitzroy-Clauson; and that the father be restrained from posting or maintaining any material on social media sites about her, members of her family, or the children.
The father sought an order that the children live with him in Brisbane. He proposed that the mother be ordered to undergo a psychiatric evaluation with a professional qualified to diagnose personality disorders, and that she spend a “realistic and appropriate” amount of time with the children based on the findings of such an evaluation, prescribed treatment and the mother’s response to such treatment.
The father sought “significant” time with the children if the Court finds that it is in their best interests to continue to live with the mother. He proposed that the children be permitted to travel with him interstate, so that they can spend time with him and the paternal extended family in Queensland.
Issues
The primary issue to be determined is whether the children should live in Hobart with the mother, in Brisbane with the mother, or in Brisbane with the father. The secondary issues to be determined are the arrangements for the non-residential parent to spend time with the children, and arrangements for any travel costs.
Evidence
The mother relied upon the following documents:
· Her Amended Initiating Application filed 21 May 2015;
· Her Financial Statement filed 21 May 2015;
· Her Updated Financial Statement filed 19 October 2016;
· Her affidavit filed 7 October 2016;
· Affidavit of Dr P filed 7 October 2016;
· Affidavit of Ms H filed 19 October 2016;
· Child Inclusive Conference Memorandum to Court dated 2 September 2015.
The father relied upon the following documents:
· His Response filed 10 July 2015;
· His Financial Statement filed 10 July 2015;
· His affidavits filed 6 October 2016, 3 November 2016 and 8 December 2016;
· Affidavit of Ms K filed 3 November 2016;
· Child Inclusive Conference Memorandum to Court dated 2 September 2015.
The mother’s move to Tasmania
There was a dispute about whether the father consented to the children’s move to Tasmania. The mother said that several days after separation, she told him that she wanted to relocate to Hobart with the children, for the support of her family and close friends. Although she said that he agreed to this, provided he could spend regular time with the children, he did not provide his consent in writing, despite her several requests.
The mother sought legal advice in Brisbane. She was advised that, without parenting orders in place, she was able to travel with the children, but should make an application for parenting orders. She said her situation was becoming increasingly desperate and she had no financial or emotional support. Her evidence was that the father was spending irregular time with the children and was refusing to address financial and parenting matters. This was exacerbating her anxiety and depression, so she made the decision to travel to Hobart with the children.
The day before she moved, the mother contacted the parties’ marriage counsellor and requested that he communicate to the father that she had relocated. She received an email from the father on 13 April 2015. He asked her if she was in Hobart. He told her that it was illegal for her to travel interstate with the children without his consent and that he had not given his consent.
I am of the view that the mother did not have the father’s consent to relocate the children’s residence to Tasmania in April 2015.
After the move, the father was not pro-active about seeking the return of the children. He did not file an application. He did not attend the first return date of the initiating application and he did not file a response until July 2015. He did not press his application for interim orders for the return of the children.
Evidence of Family Consultant Ms Y
The parties attended a child dispute conference on 23 July 2015 and a child inclusive conference on 2 September 2015, with Family Consultant Ms Y.
On 2 September 2015, Ms Y reported that the father acknowledged to her that the mother has established herself in Tasmania and that “she’s a great mum” to the children. He reported that he found it distressing that the children live such a long distance from him. He was worried that he will not be a part of the children’s lives in the future.
Ms Y reported that the mother presented as being genuinely concerned to promote and facilitate the children’s relationship with the father. She had enrolled at the Contact Centre so that the children could spend time with the father. However, he had not enrolled, so the Centre could not facilitate time. Since moving to Hobart, she has also facilitated [X] having weekly communication with the paternal grandparents in Queensland. The father told Ms Y that he has found communicating with the children by Skype and FaceTime emotionally difficult, as it reminds him how far away he is from them.
Ms Y observed the children with both parties. She reported that [X] presented as being secure about being away from his mother, at least for day time periods, and having a loving connection with his father. It was observed that [Y] will need support to get to know the father and to feel confident being with him and away from her mother.
Ms Y concluded that it would be preferable for the children to see the father on a weekly basis, so that he could be more involved in the children’s lives. However, she noted that in considering what is likely to be in the children’s best interests, the negative impact of an unwanted move back to Queensland on the mother would also need to be considered.
Ms Y reported that if [X] were to communicate regularly with his father by Skype and FaceTime, and spend time with him at least several times a year, increasing to extended periods as he becomes older, their relationship could be maintained and strengthened. She also recommended that, if the mother is able to facilitate time for [Y], supporting her transition to the father’s care, [Y] could begin to form a relationship with him with infrequent visits. [Y] could later join her brother for more extended visits when she is older.
Ms Y was asked about the mother’s proposal for the children’s time with the father to be supervised. She was of the opinion that any supervised time between [X] and the father could be “fairly brief”. She recommended one or two supervised visits, before their time together could move to unsupervised day time, and then progress to overnight time.
Ms Y agreed that the situation with [Y] was different, as she has not yet had the opportunity to form a relationship with the father. She recommended an arrangement whereby both children spend some supervised time with the father, with [X] then spending unsupervised time with him after the supervised session. She stated that the difficulty would be to know when [Y] would be confident to join her brother for unsupervised time. Ms Y also reported that it would be crucial to this process that the father accepts that the children are young, and that this will take time.
Ms Y agreed that the parties’ ability to reintegrate the father into the children’s lives will depend greatly on the relationship between them. She suggested that it would be preferable if the mother could facilitate or support the father having supervised visits with the children, rather than use the Contact Centre. Ms Y also recommended that it be ascertained how often each party could travel to Hobart or Brisbane, so that they may have some certainty about a minimum number of visits with the children each year. This was recommended with the hope that that minimum number of visits could be extended by agreement.
Ms Y noted that for unknown reasons, the goodwill that she had observed between the parents during her session with them has not continued. She was hopeful that this could re-emerge once these proceedings are finalised.
Ms Y was of the view that “there would need to be a demonstrated high level of physical, emotional, and risk of neglect” for the court to consider the father’s primary proposal that the children be removed from the primary care of the mother and relocate to live with him in Brisbane. She explained that to remove the children from their primary carer would be “very confusing, distressing and emotionally upsetting for the children”. Irrespective of any failings by the mother alleged by the father, the children currently have a much stronger relationship with her than with him. She questioned the father’s ability to care for two young, potentially distressed children on a primary basis on his own, particularly given his lack of experience in doing so.
Ms Y identified no significant risk in relation to either party as part of her assessment of them. She reported in her memorandum dated 2 September 2015 that the mother is likely to function better as a mother, to the benefit of her children, if she continues to reside in Tasmania with them.
In Hall & Hall[1] the Full Court of the Family Court of Australia noted :
… (b) Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a Judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the Judge has found them consistent with the rest of the body of evidence before him.
[1] (1979) FLC 90-713.
Ms Y is a psychologist and a very experienced family consultant. Her evidence was not challenged and I place weight on it. However, any conclusion I reach will be on the basis of all the evidence.
Relevant law
Section 60CA of the Family Law Act 1975 (“the Act”) provides that when a court is determining whether to make a particular parenting order in respect of a child, the child’s best interest is the paramount consideration. In determining the child’s best interests, the court is guided by s.60CC, informed by s.60B:
(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).
Section 61DA provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that child abuse or family violence has occurred. The presumption may be rebutted if not in the best interests of the child. If the presumption applies, the court is required by s.65DAA(1) and s.65DAA(2) to consider whether the child spending equal time with each of the parties is in the child’s best interests, and is reasonably practicable.
If the court does not make an order for equal time, it is then required to consider whether it is in the child’s best interests and, whether it is reasonably practicable for the child to spend substantial and significant time with each of the parties.
Section 65DAA provides a framework to consider the advantages and disadvantages of the several scenarios which may be in the child’s best interests, including the proposal to relocate.[2]The advantages and disadvantages of that proposal can be balanced against the advantages and disadvantages of an equal time or substantial and significant time arrangement.[3]
[2] Sayer & Radcliffe [2012] FamCAFC 209, at para 53.
[3] Taylor & Barker [2007] FamCA 1246; Duggan & Duggan [2009] FamCAFC 115; Heaton & Heaton [2012] FamCAFC 139.
Relocation of children’s residences can have consequences for them in respect of their relationships with the remaining parent. Issues about travel and expense, to enable them to maintain a meaningful relationship with the remaining parent, often arise. A move can result in a sense of grievance by the parent left behind.
In AMS v AIF, Kirby J noted:
One of the objects of modern family law statutes (including FLA 1975 and FCA 1975) is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships, free from unnecessary interference from a former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child. This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents. To the extent that earlier authority may have suggested the contrary, it has now, properly, been rejected. [footnotes omitted][4]
[4] (1999) 199 CLR 160, at 145.
The parent wishing to move does not need to demonstrate compelling reasons. The issue of relocation should not be treated as a separate issue, but as one of the proposals for [X]’ and [Y]’s future living arrangements.[5] Their best interests must be weighed and balanced with the right of the mother’s freedom of movement.[6] However, the children’s best interests remain the paramount consideration.
[5] Ibid.
[6] Morgan & Miles (2007) FLC 93-343.
I turn now to the best interests considerations.
Primary Considerations
Section 60CC(2)(a)
the benefit to the child of having a meaningful relationship with both of the child’s parents
This consideration is informed by s.60B(1)(a) of the Act, which provides that the best interests of a child are to be met by:
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.
The preferred approach to this consideration is to consider the prospective benefit to the child of having a meaningful relationship with his or her parents.[7]
[7]McCall & Clark (2009) FLC 93-405, at para 119.
[X] and [Y] have a close relationship with the mother. Ms Y reported that [X] presented as having a loving connection with his father. The father has been unable to develop his relationship with [Y], due to the parties living so far apart. It was observed that [Y] will need support to get to know the father and to feel confident being with him.
The mother has recognised that it is important for the children to have a meaningful relationship with the father. She has a “very strong desire” for him to have a good relationship with them. However, she finds it strange that he does not demonstrate a real desire to communicate with them, despite the ‘father’s rights’ persona that he expresses online. She said that, at times, he will not respond to her requests or [X]’ requests to communicate.
I consider that having regard to all the evidence, it will be of benefit to the children to have a meaningful relationship with both parents.
Section 60CC(2)(b)
the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Section 60CC(2A)
In applying the considerations set out in subsection (2) the court is to give greater weight to the consideration set out in paragraph (2)(b)
The father acknowledged to Ms Y in September 2015 that the mother has established herself in Tasmania and that “she’s a great mum” to the children. However, in his October 2016 affidavit he further said;
The children should not live with Ms Fitzroy nor have her as their primary carer as ultimately she is unstable and while at times a great and attentive mother, has routine lapses in judgment and is quick to anger and violence. Alcohol often exasperates this issue even further.[8]
[8] Father’s Affidavit filed 6 October 2016, para 127.
In his affidavits, the father made numerous allegations about the mother’s abusive behaviour towards him. He alleged that she was unable to control her actions and words in the presence of the children. He alleged that she abused alcohol, other medications or drugs, and that she was mentally unstable. He attached to his affidavits numerous text messages over the course of their relationship, in support of his allegations about her.
He said:
Despite all of Ms Fitzroy’s indiscretions towards me; I ultimately believe Ms Fitzroy, to be kind hearted and someone who genuinely wants to be a good person and mother. I believe her acting out is genuinely linked to some kind of abuse or trauma that was inflicted on her, compounded by a family history of mental illness and nearly two decades of varying forms of drug and alcohol dependence. After extensive amounts of personal time with Ms Fitzroy, over the span of our six year relationship and very minimal contact I’ve had with Ms Fitzroy since separation; I strongly believe her patterns of behaviour to be indicative of someone suffering from Borderline Personality Disorder.[9]
[9] Father’s Affidavit filed 6 October 2016, para 77.
He subsequently said:
In September of 2015, while attending a child mediation conference and interim hearing in Hobart. Over two days; I spent several hours with Ms Fitzroy and the children and witnessed her being extremely subdued, quiet, calm, rational; but noticeably aloof, and not fully present at times. In the six years of being with Ms Fitzroy I had never seen her so relaxed, there wasn’t the usual sense of urgency and she uncharacteristically walked around as if she didn’t have a care in the world.[10]
The children have a competent and loving father in their hometown of Brisbane... Even though by law I have had far more rights than I’ve been granted in practice, by Ms Fitzroy. I don’t wish to fight with anyone or cause any further disruption to the children’s lives and am only acting in the best interest of the children, by bringing this information forward.[11]
I ask that Ms Fitzroy be ordered to undergo a thorough psychiatric evaluation, with a professional qualified to diagnose personality disorders. I also ask that consideration is given and account is taken of my statements about the ongoing pattern of behaviours and countless incidents I have witnessed in my time of knowing Ms Fitzroy. Based on the findings of these evaluations, prescribed treatment and Ms Fitzroy’s response to treatment: I ask that a realistic and appropriate amount of visitation should be granted to Ms Fitzroy.[12]
[10] Father’s Affidavit filed 6 October 2016, para 95.
[11] Father’s Affidavit filed 6 October 2016, para 128.
[12] Father’s Affidavit filed 6 October 2016, para 132.
The evidence indicates that the parties had a tumultuous and volatile relationship, with numerous arguments. There were physical altercations between them. One example is when they were considering moving in March 2014. The father wanted to move to a suburb, (omitted), which is 30 kilometres from the city. He said that the mother threw a saucepan across the kitchen and then accused him of attempting to control her and alienate her from society. He said that she went into a rant about “bogans” and being “forced to be Christian”. He said:
Instead of acknowledging my expressed feelings, thoughts and /or concerns; Ms Fitzroy began screaming and yelling and knocked over multiple chairs and then punched me several times. Screaming things like ‘all you think about it is yourself!’ And ‘what about my fucking feelings? Did you ever think about that, you piece of shit!’ I attempted to strategically restrain Ms Fitzroy, without being too forceful, while pleading with her to stop. Ms Fitzroy quickly grabbed my arm and bit it, and I yanked my arm away and moved away from her. [X] had begun to cry and Ms Fitzroy swiftly grabbed him and locked the two of them in the bedroom. Both Ms Fitzroy and [X] were crying as Ms Fitzroy exclaimed ‘leave us alone we don’t need you’ and demanded things like ‘get the fuck out of my house!’[13]
[13] Father’s Affidavit filed 3 November 2016, para 22.
The mother denied that she had been violent towards the father. She admitted that they had had arguments over the course of their relationship. She said that they may have had “scuffles” at times, which involved one of them attempting to take an item from the other, such as a mobile phone. She denied that there had been violence to the extent alleged.
Arguments arose as a result of the mother’s concerns about the father’s lifestyle as a musician and his working long hours at night. She said that whilst she was working full-time, he worked from Wednesday to Sunday, commencing any time from 5:00 pm until 12:00 am, and finishing any time between 2:00 am and 5:00 am. This would mean that he had to spend the next morning sleeping, or be extremely sleep-deprived and unable to function. Because of his work schedule, the mother said he was frequently too tired to help her care for the children.
The mother said that the father was often either non-responsive or passive aggressive towards her. If she tried to talk to him about her concerns to do with matters relating to their family or their finances, she said he would often refuse to engage in the conversation or would say “ok” and then not follow through with what they were discussing.
In February 2015, she found messages on the father’s computer that indicated he had been meeting a woman late at night when he was supposed to be working and she was at home caring for the children. The next day they had an argument about this while at a park. She became very upset and cried and shouted at the father. He called the police and they were referred to support services. They again attended marriage counselling. The mother said he would not agree to make any changes to his lifestyle and would not enter into discussions about this.
The mother reported to her psychologist, Ms H, instances when she lost control and screamed at the father in front of the children, which caused strong feelings of guilt. She reported to her that arguments were related to his job being incompatible with family life, his activities on social media (in particular communication with females and the posting of images of the children), secrecy regarding his activities, and financial issues.[14]
[14] Report of Ms H dated 10 August 2015, para 7.
I consider that the evidence indicates that during the parties’ relationship, the mother has been verbally abusive and at times physically violent to the father.
In respect of the allegations about the mother’s drug taking, she said that she has not touched any drugs since 2009. She said that her alcohol use since 2011 has been moderate. She admitted that when she was pregnant, there had been incidents when she was feeling distressed, when she “once or twice had a drink”. However, she was generally very conservative in her drinking. She said that she very rarely drinks at all now, does not get drunk often and does not get drunk around the children. During cross-examination, she acknowledged that after separation she sent text messages to the father when she was distressed and claimed that she was intoxicated. She said the children were not put in any danger at this time. Her mother or her father were with her helping her care for the children. She tendered a letter from Dr H, who treated her from 5 July 2012 until 2 April 2015. Dr H wrote that during the mothers’ time under her care, she was very health conscious, particularly during her pregnancies. She did a variety of investigations. Her liver function (tested six times over the three years) has always been normal.
In regard to her mental health, the mother said:
In the course of the relationship I have certainly experienced anxiety and depression, to varying degrees. I would say that it was very much linked to and associated with Mr Clauson and the situation of our marriage…and the contention that we have had between us over the court proceedings and how that has obviously deteriorated.
Ms Ms H, psychologist, provided a report about the mother dated 10 August 2015. Ms H has been her treating psychologist since August 2012. She had 44 counselling sessions with her over this time, on a weekly to monthly basis. Since the mother relocated to Hobart, Ms H has provided her with counselling over the telephone on three occasions, the most recent being on 13 August 2016.
Ms H wrote that the mother presented with symptoms of depression and anxiety, which varied in severity during the counselling period. She reported that the mother had in the past employed highly dysfunctional coping strategies, including alcohol abuse, smoking and not eating. However, over the course of her counselling, she had “developed significant insight into her behaviour and emotional reaction patterns”, and “was able to change some maladaptive patterns into helpful ones”.[15]
[15] Report of Ms H dated 10 August 2015, para 15.
Ms H agreed that the mother had spoken to her of concerns related to her alcohol use. She denied that the mother had ever reported that she held concerns about her use of alcohol in the children’s presence.
Ms H’s prognosis was as follows:
Ms Fitzroy is a high functioning, intelligent individual with some significant trauma and stressful experiences in her past. She has a history of anxiety and depression and is likely to experience future episodes if her past trauma are triggered or she experiences significant life challenges.[16]
[16] Report of Ms H dated 10 August 2015, para 18.
Ms H gave evidence that, even if all of the father’s allegations about the mother were true, this would not change her diagnosis. She explained that reaching such a diagnosis is a complex process. She does not rely only on the information provided by her patient. Ms H was of the view that it was “very unlikely” that the mother had a personality disorder. She had not picked up on this in her 44 sessions with her, over an extended period of time.
Ms H reported that it was her opinion that the mother will continue to meet the children’s needs “regardless of life circumstances, even if it is to the detriment of her own health”.[17] She was of the view that for this reason, the children would cope well with a forced move back to Brisbane in the immediate term. However, as the mother has no work or support in Brisbane, and her relationship with the father is the main cause of stress in her life, she would suffer significantly, and “her ability to parent will eventually be affected, even with medication and professional help”.[18]
[17] Report of Ms H dated 10 August 2015, para 21.
[18] Report of Ms H dated 10 August 2015, para 21.
After the mother moved to Hobart, she consulted clinical psychologist, Dr P, who provided a report dated 27 September 2016. Dr P was cross-examined by the father.
At the time of her report, Dr P had seen the mother on nine occasions between 11 May 2016 and 16 August 2016. They no longer have a therapeutic relationship.
Dr P had eight separate sessions with the maternal grandmother. She noted that these sessions were “useful for understanding the dynamics between Ms Fitzroy and her husband, and its impact on their children and extended family, in a broader context and from a different perspective”.[19] She also viewed the psychological report dated 10 August 2015 prepared by Ms H.
[19] Report of Dr P dated 27 September 2016, pg 1.
Dr P’s diagnosis of the mother was as follows:
While Ms Fitzroy still has residual Post-Traumatic Stress Disorder symptoms from two previous physical assaults, she hasn’t met the full criteria for Post-Traumatic Stress Disorder in recent years. However I believe Ms Fitzroy currently satisfies DSM 5’s category of an Adjustment Disorder with mixed anxiety and depressed mood (309.28). Based on my understanding of Ms Fitzroy’s circumstances, it would appear that Mr Clauson’s challenging behaviour has a direct impact on Ms Fitzroy’s ability to maintain healthy mood states… Her mood state then impacts deleteriously on her chronic pain and her ability to function.
Ms Fitzroy’s pre-existing Post-Traumatic Stress symptoms may influence the way she expresses her distress but the current stressors associated with Mr Clauson’s boundary violating behaviours have added significantly to her profile of symptoms, which warrants a separate diagnosis of Adjustment Disorder.[20]
[20] Report of Dr P dated 27 September 2016, pg 3.
Under cross-examination by the father, Dr P gave examples of his challenging behaviours referred to in her report, as his actions being inconsistent with his words, and responding to situations in a way that is either “dismissive avoidant” or “antagonistic and baiting”.
Dr P did not agree with the father’s suggestion that the mother may have a borderline personality disorder. She did not agree that the mother’s text messages that were annexed to the father’s November 2016 affidavit were indicative of the mother having a borderline personality disorder.
In terms of prognosis, Dr P reported that the mother “remains intimidated and fearful of Mr Clauson’s interpretations of what he perceives he’s entitled to and his resulting behaviours towards her and their children”.[21] She was of the view that the acrimonious relationship between the parties “does not assist in promoting positive resolutions to outstanding issues between them”.[22]
[21] Report of Dr P dated 27 September 2016, pg 3.
[22] Report of Dr P dated 27 September 2016, pg 3.
Dr P also reported that if parenting orders made by the court can allow for significant change in the relationship between the parties, the mother’s Adjustment Disorder “may well resolve of its own accord within a few months”.[23] She was of the view that if the parties’ relationship remains unchanged, or if the father did not comply with orders, the mother may require ongoing stress management and psychological support.
[23] Report of Dr P dated 27 September 2016, pg 3.
I am not persuaded that the children are at risk of physical or psychological harm whilst in the mother’s care. During the parties’ relationship, I consider the children were exposed to family violence and conflict between the parties. The mother was suffering from depression and anxiety, and the relationship difficulties between the parties resulted in her acting inappropriately. Her mental health has improved since separation. There is no evidence to persuade me that she is abusing alcohol or drugs.
The mother said that she is not concerned about the children being at risk of harm by being exposed to family violence by the father. She is concerned that he has a complete disregard for authority, which she said has been evidenced by his failure to comply with court orders. She has no confidence in his ability to prioritise the needs of the children above his own needs, so as to provide them with an appropriate level of care and supervision. She is concerned about his pre-occupation with fathers’ rights and the (omitted organisation), which he talks about on Facebook.[24]
[24] Exhibit M2.
I am not persuaded by the evidence that the children are at an unacceptable risk of harm in the care of the father, such that supervision of his time with [X] as sought by the mother is required. Ms Y reported that [X] presented as secure about being away from his mother, at least for day time periods, and to have a loving connection with his father. It was observed that [Y] will need support to get to know him and to feel confident being with him and away from her mother. Ms Y recommended a short period of supervision for this to occur.
Additional Considerations
Section 60CC(3)(a)
any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
The children are too young for any weight to be placed upon their views.
Section 60CC(3)(b)
the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
The mother is the primary carer of the children, with whom they have a close and loving relationship. The maternal grandparents assist the mother in caring for the children. They have a close relationship with them, as they have spent a lot of time with them since they were born.
[X] has a close relationship with his father. The mother said that he sometimes asks to do FaceTime with his father and talks about going to visit him in Brisbane when he is older. Ms Y observed a loving connection between them. The children have regular FaceTime communication with the paternal grandparents, with whom they have a close relationship.
Section 60CC(3)(c)
the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
The father came to Hobart on 18 May 2015 for two days. He contacted the mother on his arrival and said he wanted to see the children. She refused to allow unsupervised time without a court order, so the father did not see the children.
The father came to Hobart on 12 June 2015 for an interim hearing. Before he returned to Brisbane that night for work, he saw both children in the city in the presence of the maternal grandfather. The time was brief due to an argument about supervision.
The father came to Hobart between 1 September and 3 September 2015. He spent time with [X] at a park and the mother took [Y] to meet them. They all attended the games hall at the cinema. The father then visited the mother’s home briefly to be with the children in a familiar environment.
In October 2015, the mother travelled with the children to Brisbane. [X] stayed two nights with the father.
The father did not have any communication with the children between March 2016 and around 12 July 2016. He had FaceTime communication with [X] on 12 July 2016 and on 1 October 2016.
The father did not spend time with the children between November 2015 and November 2016.
Between the making of the interim order made in November 2016, for the children to spend supervised time with the father once each month, and 9 December 2016, the father did not enrol at the (omitted) Children’s Contact Centre and spend time with them there.
Section 60CC(3)(ca)
the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
The mother maintains the children from her Centrelink income.
In January 2016, the Child Support Agency obtained an enforcement order against the father. He had not lodged an income tax return for 2015 and was assessed to pay around $400 per month child support. He stopped paying the monthly mortgage payments in respect of the former matrimonial home, where he lived after the mother moved to Tasmania. He made posts on Facebook saying he was going to leave his employment to (omitted).
In February 2016, the father opposed an interim application by the mother for the home to be sold. He indicated that he was earning enough to satisfy the monthly mortgage payments and outstanding outgoings. In mid-March 2016, the father commenced (omitted), which meant that he was not earning an income during the period (omitted). He is now assessed to pay $7 per week in child support. He has made one payment of $70 to the mother.
Section 60CC(3)(d)
the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The mother gave evidence that the children are settled and happy in Tasmania. She is their primary carer. Her parents and extended family live in Tasmania.
If the children remain living in Hobart, there will be no change in their circumstances. If they move to live in Brisbane with the father, they will be separated from their primary carer, which is likely to cause distress to them.
I reiterate that Ms Y was of the view that “there would need to be a demonstrated high level of physical, emotional, and risk of neglect” for the court to consider the father’s primary proposal that the children be removed from their primary carer and relocate to live with him in Brisbane. She explained that to remove the children from their primary carer would be “very confusing, distressing and emotionally upsetting for the children”.
I also reiterate also that Ms H was of the opinion, that if the children moved to Brisbane with the mother, they would cope well in the immediate term, as she will continue to meet their needs. However, as she has no work or support in Brisbane, and her relationship with the father is the main cause of stress in her life, she would suffer significantly, and “her ability to parent will eventually be affected, even with medication and professional help”.[25]
[25] Report of Ms H dated 10 August 2015, para 21.
Section 60CC(3)(e)
the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
There is a practical difficulty and expense of the children spending time with and communicating with the father if they continue to live in Hobart.
The mother is in receipt of Centrelink benefits of $710. She has weekly expenses of $976 per week, including $390 per week for the children. She owes her parents around $50,000 in addition to legal costs. She lives in rental accommodation and pays $335 rent per week. She has had to purchase new furniture and whitegoods. Up until March 2016, she was working part-time as a procurement specialist. Even with that income, she required financial assistance from her parents. She resigned from her job because of the stress of the proceedings. She wanted to be able to focus on the children’s needs, which meant that she had to prioritise her own health.
She supports herself from an income tax refund, which she believed would run out in November, when she would then need to rely again on her parents for financial support.
Both parties are responsible for a loan from the (omitted bank) of $15,040. Each party pays $100 per week in reduction of the debt.
The mother believes that the father has a greater financial capacity and flexibility than he has presented. She said during their relationship, a lot of his income was cash in hand. His taxable income for 2012 – 2013 was around $21,000 – $22,000. He has not completed his returns for the last three years. He said his income has been much the same over those years. He regularly plays at nightclubs. He also plays at weddings or parties around once per month. He gave evidence that he invoices his work for around $400 – $600 per week. He regularly busks and does not declare cash of around $150 – $200 per week earned from busking. He justified this on the basis of advice he received.
He currently lives with his parents at their home in (omitted).
After being asked about the scenario that the children live in Hobart with the mother, the father agreed that if there was some way for him to do so, it would be ideal if he could devote a week every several months to spend time with the children in Hobart. He reluctantly agreed that time has to start somewhere, even though it is not his preferred scenario.
Section 60CC(3)(f)
the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
The mother has the capacity to provide for all the children’s needs. She is supported by her general medical practitioner, psychologist, psychiatrist and physiotherapist. She takes medication to help manage her anxiety. She is working with her psychiatrist to slowly reduce her levels of medication. She regularly sees her psychologist and has sought assistance to ensure the children have been supported during the stress of these proceedings. She is also supported by her parents and extended family.
She has attended and completed the Magic 1-2-3 parenting course. This has helped her to better set boundaries for [X] and improve her parenting generally. She has also had counselling sessions with Anglicare.
She has recently engaged a child psychologist to assist her with the children, particularly [X], to help him process changes in his life.
Ms Y was of the view that the mother is likely to function better as a mother, to the benefit of her children, if she continues to live in Tasmania with them.
The mother gave evidence of changes in [X]’ behaviour when there have been long breaks in contact with the father and his family. There is an increase in tantrums, nightmares and bedwetting. She said that [X] gets confused and upset by the father popping in and out of his life unexpectedly.
I have no doubt that the father loves the children, but I have concerns about his lack of focus regarding the emotional needs of the children. I consider that he is focused on his own needs, as indicated by his Facebook posts and by (omitted), rather than spending time with the children. He has not demonstrated that he has the capacity to provide for the children’s emotional needs. He has a lack of insight about the effect on the children of the lack of regularity of his time spent with them since their move. His attitude to the prospect of supervised time indicated a lack of insight into his failure to spend time with [Y] throughout 2016.
The father currently lives with his parents and said that his mother will help him with the children when he is at work at night. He said that when he works, he arrives home between 4:00 am and 5:00 am and sleeps for around four – five hours and has a sleep for about an hour in the afternoon. He said he is usually up by between 9:00 am and 10:00 am. He said his father could help with the children’s breakfast. He said he will get an au pair if he obtains regular work. This will cost him $100 – $200 per week. He indicated that he will consider renting a three bedroom home in the future which will cost him around $350 – $450 per week. Given his evidence about his income, I am not persuaded that the father could afford these costs.
I consider that the mother has a better capacity than the father to provide for all the needs of the children.
Section 60CC(3)(g)
the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
The mother has been a victim of two separate assaults. She has suffered physical and mental injuries that she continues to manage. She has the support of her parents and extended family.
The father is a self-employed musician and rapper. He performs in nightclubs and hotels at night. He said that he will rely on his parents to assist him with the care of the children.
Section 60CC(3)(h)
if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This subsection is not relevant.
Section 60CC(3)(i)
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
Whilst I accept the mother’s evidence that she needed emotional and financial support after separation, I consider that she did not act responsibly when she unilaterally moved the children from Queensland to live in Tasmania, without the consent of the father. By not commencing an application in court before moving, she prevented the father from participating in a decision about [X]’ and [Y]’s living arrangements and affected his ability to spend regular time with them.
Apart from this, I am of the view that the mother has a responsible attitude to the responsibilities of parenthood. She has indicated throughout her affidavit that she is willing and able to facilitate time between the children and the father. She recognises the importance of the children having a meaningful relationship with the father.
The father has not spent time with the children since October 2015 until November 2015. I agree with the mother that his commitment to the children is sporadic and unpredictable. He does not follow through with his stated intentions to spend time with the children. I have concerns about his ability to prioritise spending time with the children.
When asked what he currently identifies as the most important thing in his life, he answered that the main thing that has been on his mind continuously over the past 18 months is how to get back into the children’s lives. He wants to know that they are safe and okay, and he wants to be able to see them. This evidence is inconsistent with him (omitted).
It is also inconsistent with his failure since October 2015 to make any request to spend time with the children. During cross-examination, he justified not spending time with the children on the basis that he was afraid of what the mother would do, as she had been verbally violent in front of the children in October 2015. He said that she has twisted things that he has said and done, and told her psychologist that he is boundary violating.
The father said that he wants to see the children but does not know how to do this. He gave evidence that he did not enrol at the (omitted) Children’s Contact Centre in November 2016 because he does not know the people there and he resents “the whole thing”. He does not understand why he should have to have supervised visits or to be “in some clinical situation”. He asked, “if a new person comes to work at her day-care, do they need to be supervised? What is the difference?”
The father’s complaint about the mother denying him time in June 2015 was in relation to a verbal arrangement for him to see the children for 45 minutes before he returned to Brisbane. His complaint was that the maternal grandfather was 20 minutes late, and when he tried to spend time with the children, he would not let him pick them up or walk away from him.
I consider that the father has not demonstrated a responsible attitude to parenting by not prioritising the children’s needs above his own needs.
Sections 60CC (3)(j) and (k)
(j) any family violence involving the child or a member of the child’s family;
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
The father made numerous allegations of family violence against the mother. She agreed that there have been incidents of physical family violence between the parties. I have already discussed this and have found that there has been family violence. There is no current family violence order.
Section 60CC(3)(l)
whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
The children are very young and the circumstances will change as they become older. Due to [Y]’s young age and the uncertainty about when she will be ready for unsupervised time, there may be a need for further proceedings. If the parties cannot agree upon the children’s arrangements as they become more mature, it is likely that there will be further proceedings.
Section 60CC(3)(m)
any other fact or circumstance that the court thinks is relevant.
There is no other fact or circumstance that the court thinks is relevant.
Parental responsibility
The presumption of equal shared parental responsibility does not apply, as there are reasonable grounds to believe that family violence has occurred.
Both parties sought an order for equal shared parental responsibility. They were able to communicate about the children until their relationship deteriorated after the father started posting on Facebook that the mother had stolen his children.
After these proceedings have finalised, I consider that the parties’ relationship should improve and they should be able to co-operate for the best interests of the children. I am of the view that an order for equal shared parental responsibility is in the best interests of the children.
Live with and spend time
I consider that it is not in the best interests of [X] or [Y] to spend equal time with each parent. The mother is their primary carer and they have close attachments with her. Equal time would not be reasonably practicable even if the parties lived in close geographic proximity, due to the impact such an arrangement would have on the children and, due to the father’s work hours. I consider that the children should live primarily with the mother. I consider she has a better insight into their emotional needs and can better provide for them than the father. It is likely that there would be a detrimental impact on the children if they were to live with the father and be separated from the mother.
I consider that it is in [X]’ best interests to spend substantial and significant time with the father. Substantial and significant time includes time at weekends, during the week, during holidays and special days. Such time allows a parent to be involved in a child’s daily routine and in occasions and events of particular significance to a child.
Such time would be reasonably practicable if [X] lives in Brisbane, but not if he lives in Tasmania. He would also be able to spend regular time with the paternal grandparents and paternal extended family.
[Y] has not spent time with the father for around one year. Substantial and significant time for [Y] with the father is not currently in her best interests, due to the need for her to re-build a relationship with the father. Such time is also not reasonably practicable, due to the impact such time would have on [Y]. Their relationship can be re-built by [Y] having supervised time with the father. Once they have re-built their relationship, I consider it is in [Y]’s best interests to spend substantial and significant time with the father. This time is not reasonably practicable if [Y] lives in Tasmania.
A disadvantage of the children living in Brisbane is that the mother, as the primary carer of the children, would not have family support. The report of her psychologist, Ms H, indicated that she had been lonely in Brisbane and she relies fully on her parents for emotional and practical support. Ms Y’s evidence was that she is likely to function better as a mother, to the benefit of her children, if she continues to live in Tasmania with them. In Hobart, she is likely to be happier, which is likely to enhance her parenting capacity.
I accept Ms Y’s evidence that if [X] communicates regularly with his father by Skype and FaceTime, and spends time with him at least several times a year, increasing to extended periods as he becomes older, their relationship could be maintained and strengthened.
Having considered all the evidence, I am of the view that it is in the best interests of [X] and [Y] that the mother be permitted to relocate their residence to Tasmania.
In November 2016, I ordered the commencement of monthly supervised time (or such time as the father can afford) on a daily basis from the first Monday of each calendar month until the first Friday of each calendar month. At the date of the hearing in December, this time had not commenced.
I consider that rather than time being ordered to occur each month, it is more likely to occur each alternate month, having regard to the cost of travel and accommodation for the father. He should have the option to exercise further monthly time, if he can manage this. He will need to give the mother notice.
After [X] has spent one week of supervised time with the father pursuant to order 3 made 4 November 2016, I consider that he should spend one week of unsupervised day time with the father for a period of up to five hours each day. This time can be co-ordinated with his Kindergarten attendance time, which at his age is likely to occur on three mornings or afternoons each week.
After one visit of day time, I consider that [X]’ time should then move to overnight time from the end of [Y]’s supervised time at 5:00 pm for a period of one night until 2:00 pm the following day. If [X] is attending Kindergarten, the father can arrange to deliver him and collect him from Kindergarten. The overnight times can increase by one night each visit. By October 2017, [X] will be nearly five years old and should be able to cope with three overnights with the father in Brisbane during school holidays, if he has already spent two consecutive nights with him. For the balance of the week, he can spend day time of up to eight hours with him.
[X] commences full-time school in 2018. I consider that from 2018, if the father has exercised time with [X] during 2017, [X] should spend one half of all school holidays with the father. The father should also have the option of exercising weekend time with him, at his expense, for up to two times each school term from Friday after school until Monday morning at school, by giving the mother 14 days’ notice in writing.
In respect of [Y], after a one week visit with [X] also being present pursuant to order 3 made 4 November 2016, I consider supervised time should increase so that she spends time with the father from 2:00 pm until 5:00 pm. As it is not certain when [Y] will be confident enough to spend unsupervised time with the father, I will order that unsupervised time occur as agreed, for short periods of up to three hours and to increase gradually, as agreed.
I will order that [Y] spend time with the father in Brisbane in the third term school holidays for three hours during the week from 2:00pm until 5:00pm, or such time as agreed, to be supervised at a contact centre nominated by the father. Alternatively, if the parties can agree about an appropriate supervisor, time can be supervised by that person, if it is not otherwise agreed that unsupervised time occur.
Both parties are not in good financial positions. The mother has the financial burden of maintaining the children with minimal assistance from the father. I take into account that she has moved the children to Tasmania. Nevertheless, I consider that the father is currently in a better position than the mother to contribute towards the travel costs. He was able to travel to Tasmania on several occasions in 2015 and was also able to pay for the family to travel to Brisbane. He has travelled to Hobart at least twice in 2016. For the December trip, he said that his parents paid for the tickets and he is repaying them.
The father has flexibility, as he is self-employed. He will have travel costs and accommodation costs in Hobart. As most of his work occurs at weekends, I consider the time with the children should occur during the week until they attend full-time school, so that he can earn income to enable him to pay the travel costs.
I consider that the mother should be responsible for travel to Brisbane with the children on one occasion each year during the third term school holidays, so that the children can spend time with the father, the paternal grandparents and his extended family. The mother is keen to facilitate the children’s relationship with the father. I consider that she should be responsible for the travel costs of one trip each year to Brisbane. She lived there for 10 years and has some friends there. She was able to travel to Brisbane on two occasions in 2016.
I intend to make final orders. However, I am currently unable to determine when [Y] will be ready for unsupervised time. After six visits of supervised time, I intend to give the father leave to apply for further orders in relation to unsupervised time with her, if the parties cannot agree. A report from the Contact Centre should assist the parties about how [Y]’s time with the father has progressed.
[X] and [Y] should have Skype, FaceTime or telephone calls with the father for 30 minutes, three times each week, at such times as agreed between the parties via text message.
Change of surname
The mother sought an order that the children be known by the surname Fitzroy-Clauson. She has reverted to using her maiden name, Fitzroy. She believes it is important that the children’s surname reflects the names used by both of their parents, in terms of developing a sense of identity and family. She noted that the paternal grandmother uses a hyphenated name; therefore it is not a new concept to the father. She also asserted that the paternal grandmother addresses gifts or cards to the children with Fitzroy-Clauson as their surname.
The father did not refer to this issue in his affidavits. There was no cross-examination about this issue.
The principles governing a change in a child’s surname were set out by the Full Court of the Family Court in Chapman & Palmer.[26] The Full Court said:
In deciding the issue in each case there is no onus of proof. It is for the court to balance in its discretion the factors for and against change. The guiding principle is that the welfare of the child is the paramount consideration. It must stand above the wishes or proprietary interests of the parents.[27]
[26] (1978) FLC 90-510.
[27] Ibid at 77,674.
The Court then set out the following factors to which a court should have regard in determining whether there should be any change in the surname of a child:
a)The welfare of the child is the paramount consideration;
b)The short and long-term effects of any change in the child’s surname;
c)Any embarrassment likely to be experienced by the child if its name is different from that of the parent with custody or care and control;
d)Any confusion of identity which may arise for the child if his or her name is changed or is not changed;
e)The effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage;
f)The effect of frequent or random changes of name.[28]
[28] Ibid at 77,675 – 77,676.
In Mahony & McKenzie,[29] the use of a hyphenated surname was proposed for the child of the marriage. In determining that the child should be referred to by the proposed hyphenated surname, Warnick J held that a number of benefits could be expected to arise from such a decision, including the following:
The use of the hyphenated surname, in a number of ways, accords with the reality of J's life. His mother is Ms McKenzie, his father Mr Mahony. J is the product of their union. He would have a united surname. He has an on-going relationship with both of his parents, though they do not live together. The use of the hyphenated surname might facilitate the recognition by others of J's life circumstances and the ease with which J accepts his life circumstances.
Finally, the use of the hyphenated surname offers J a middle road in times of rapidly changing social attitudes…Some persons would support the proposition that in theory, if not in the application to a particular child, there should no longer be a preference for the paternal surname. Some people would support the right in Ms McKenzie to revert to the use of her own family name upon the breakdown of her relationship with Mr Mahony. Some people would support the right in Ms McKenzie to apply her surname for J, where she is custodian. Some would support the use of the combined surnames.
As J grows he will become aware of attitudes in the community. He may develop feelings and ideas of his own about his surname and the use of the hyphenated surname would seem to provide him with a non-contentious platform from which he may choose to move in one direction or another, or to maintain the compromise.[30]
[29] (1993) FLC 92-408.
[30] Ibid at 80,187.
I consider that it is in the children’s best interests to have a hyphenated surname with the surnames of both parents. The children will have an ongoing relationship with both parents. The mother is their primary carer. By adding her surname, they can identify with her. By retaining the father’s surname as part of their name, they will be reminded of the importance of their father in their lives.
Facebook issue
The mother sought an order that the father be restrained from posting or maintaining any material on social media sites about her, the children or members of her family.
She gave evidence that a few months after she moved with the children from Brisbane to Hobart, the father began to post information about her on Facebook, writing that she had stolen his children from him and would not allow him to see them. She said that he re-posted an article entitled “How I stole my children back”, which made her feel very anxious. She also said that fans of the father as a musician had also posted abusive comments about her in response to the information that he had posted, including calling her “a cunt”.
The father suggested that he had not made specific mention of her name or her whereabouts. She answered that he had referred to “Tasmania”, and to “my wife” on social media.
The father gave evidence that (omitted), he posted a lot of information on Facebook to update people on where he was. He made several posts about the children when he was really distressed. He found out about an online campaign called the (omitted) campaign, started by the (omitted organisation). He said the campaign raises awareness that 21 fathers each week in Australia commit suicide because of child custody and access issues, an imbalance in the court system and alienation of fathers.
He has supported the (omitted) campaign and the (omitted) organisation. On (omitted) he specifically backed the (omitted) organisation, which he said is an organisation about (omitted).
He agreed that in his Facebook posts, he identifies himself as a father who is being denied time with his children.
The restriction on the publication of court proceedings is contained in s.121 of the Act. That section (where relevant) provides as follows:
(1) A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:
(a) a party to the proceedings;
(b) a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or
(c) a witness in the proceedings;
is guilty of an offence punishable, upon conviction by imprisonment for a period not exceeding one year.
….
(3) Without limiting the generality of subsection (1), an account of proceedings, or of any part of proceedings, referred to in that subsection shall be taken to identify a person if:
(a) it contains any particulars of:
(i) the name, title, pseudonym or alias of the person;
(ii) the address of any premises at which the person resides or works, or the locality in which any such premises are situated;
(iii) the physical description or the style of dress of the person;
(iv) any employment or occupation engaged in, profession practised or calling pursued, by the person or any official or honorary position held by the person;
(v) the relationship of the person to identified relatives of the person or the association of the person with identified friends or identified business, official or professional acquaintances of the person;
(vi) the recreational interests, or the political, philosophical or religious beliefs or interests, of the person; or
(vii) any real or personal property in which the person has an interest or with which the person is otherwise associated;
being particulars that are sufficient to identify that person to a member of the public, or to a member of the section of the public to which the account is disseminated, as the case requires;
(b) in the case of a written or televised account or an account by other electronic means--it is accompanied by a picture of the person; or
(c)…
The mother gave evidence that on 12 June 2015, after there was an incident between the father and maternal grandfather about the supervision of the children, the father filmed the incident on his telephone while yelling at the maternal grandfather, telling him he was “the axis of evil” and that he was “stealing my children”. Later the mother discovered that he had created a YouTube video with the footage and had uploaded it under his (omitted) account stating “(omitted) stole my children”.
On 23 June 2015, the father posted on Facebook seeking donations to raise money to pay for legal fees.[31] The mother said it was extremely upsetting for her to see their private lives being displayed publicly on social media.
[31] Exhibit M3.
The mother said that the father has frequently posted on Facebook stating that she has stolen his children and will not let him see them and painting her as a violent, jealous and bitter person. She found these allegations extremely hurtful.
She said that throughout September 2015, the parties were able to communicate amicably in relation to the children. However as time went on communications broke down again. The father continued to post on social media about the litigation. The mother asked him repeatedly not to, however he refused to remove the posts. She said it was increasingly upsetting for her to see the things that he was saying about her and about the process generally, as well as his (omitted) lashing out at her. The mother said that she responded to a comment from an (omitted) to tell them that she did want him to see his children. The father deleted her comment and blocked her from interacting on his page. He then sent her a text message asking her not to engage with people on his Facebook. He said “I don’t respond to anyone who says anything about you or the situation specifically… It’s pointless and none of them matter… I appreciate that you held your tongue until now”. This culminated in the parties having an argument.
The mother’s psychologist, Ms H, wrote in her report that the main factors exacerbating the mother’s anxiety were the activity on the father’s Facebook page and receiving confrontational communications from him. She told Ms H she was scared that the father, or (omitted), may come to Hobart and act aggressively towards her or her parents and/or take the children. Her anxiety levels dropped significantly after she stopped all direct contact with the father, his parents and social media.
Counsel for the mother tendered several examples of the father’s Facebook activity, which included a Facebook post raising awareness of the (omitted) campaign with a photograph of an unknown father holding a sign which reads “our kids need fathers not visitors”.[32] Another post referred to parental alienation syndrome.[33] There were further posts about one parent keeping children from the other.[34]
[32] Exhibit M2.
[33] Exhibit M2.
[34] Exhibit M2.
The father agreed that he was painting himself as a victim, having been denied time with his children. He agreed that he was portraying the mother as a perpetrator.
The father has not specifically identified the mother or the children. He identified the maternal grandfather in a video on YouTube and has prima facie breached the provisions of s.121 of the Act.
Section 68B(1) of the Act provides that:
If proceedings were instituted in the court having jurisdiction under this part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:
a)An injunction for the personal protection of the child; or
b)An injunction for the personal protection of:
i)A parent of the child; or…
This section creates power to grant injunctions and make orders. I have a wide discretion to exercise this power when it is appropriate to do so for the welfare of a child.
The father has caused upset to the mother by his posts about the litigation and about her. This has had a detrimental effect upon her, the primary carer of the children. It has also had a detrimental effect upon the parental alliance.
I consider that the father should be restrained from posting or maintaining any material on social media sites about the mother, the children or members of the mother’s family.
I certify that the preceding one hundred and seventy-nine (179) paragraphs are a true copy of the reasons for judgment of Judge Baker
Date: 2 February 2017
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Costs
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Injunction
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