Foreman & Bradgate
[2023] FedCFamC1F 156
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Foreman & Bradgate [2023] FedCFamC1F 156
File number(s): PAC 2637 of 2021 Judgment of: BERMAN J Date of judgment: 17 March 2023 Catchwords: FAMILY LAW – CHILDREN – Best interests – where the mother is the primary carer – where the child is 4 years of age – where the father was spending substantial and significant time with the child – where the mother ceased time spending in 2021 following a physical altercation at handover – where the mother and child are listed as protected persons on an ADVO – where the father seeks final orders for equal time – where the Court finds there has been family violence directed to the mother, her family and those in a position of authority – where the psychiatrist opines that the child was not in fear of the father nor that the father presented as a risk to the child – where the psychiatrist places significant weight on the importance of the child maintaining a relationship with the father should he be able to regulate his behaviour – where the proceedings are adjourned for 6 months to enable the father to attain the necessary therapeutic intervention – Orders.
FAMILY LAW – CHILDREN – With whom a child lives with – Relocation – where the mother seeks to relocate within a 120km radius – where the mother is the primary carer – where the father is currently spending no time with the child – Best interests of a child – consideration of a meaningful relationship – Orders.
Legislation: Evidence Act 1995 (Cth) s 135
Family Law Act 1975 (Cth) ss Div 12A, 60B(1), 60B(2), 60CA, 60CC(2), 60CC(3) 102NA(2), 69ZN, 69ZT, 69ZT(3)
Cases cited: AMS v AIF [1999] 199 CLR 160
Baglio & Baglio [2013] FamCA 105
Beckham & Desprez [2015] FamCAFC 247
Blanding & Blanding [2016] FamCAFC 21
Champness & Hanson (2009) FLC 93-407
Cotton & Cotton (1983) FLC 91-330
Harridge & Harridge [2010] FamCA 445
M v M (1988) 166 CLR 69 (“M v M”)
N & S & the Separate Representative (1996) FLC 92-655
Pascoe & O’Keefe and Ors [2018] FamCAFC 243
Sigley & Evor [2011] FamCAFC 22
Starr & Duggan [2009] FamCAFC 115
Vasser & Taylor-Black (2007) FLC 93-329
Zahawi & Rayne [2016] FamCAFC 90
Division: Division 1 First Instance Number of paragraphs: 246 Date of hearing: 24 - 28 October & 8 November 2022 Place: Parramatta Counsel for the Applicant: Ms Hayward Solicitor for the Applicant: Sayer Jones Counsel for the Respondent: Ms Kaiti Solicitor for the Respondent: Jacqui Griffin Mobile Solicitor Counsel for the Independent Children’s Lawyer: Mr Sperling Solicitor for the Independent Children’s Lawyer: Walkden Law and Mediation ORDERS
PAC 2637 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS FOREMAN
Applicant
AND: MR BRADGATE
Respondent
order made by:
BERMAN J
DATE OF ORDER:
17 march 2023
THE COURT ORDERS THAT:
1.The mother have sole parental responsibility for the child, X (“the child”) born 2018, provided that the mother will advise the father in writing in respect of any long term issues and provide her view and intention to make decisions in that regard.
2.The child live with the mother.
3.Until further order, the child spend no physical time with the father.
4.As and from 3 May 2023 and each week thereafter, the child is to have FaceTime or other video contact with the father between the hours of 5.30 pm until 6.00 pm with the father to initiate the FaceTime call PROVIDED THAT the mother can terminate the call if the father denigrates the mother, her partner, or extended family.
5.The mother is permitted to relocate the primary residence of the child to within a 120 kilometre radius of Suburb B train station.
6.Each party is to refrain from making critical or derogatory remarks in relation to the other parent or a member of the parent’s family on electronic platforms such as, but not limited to, Facebook, WhatsApp, Instagram or other social media.
7.Until further order and pursuant to s 68B of the Family Law Act 1975 (Cth), the father is restrained from:
(a)Approaching the child or mother or being within 100 metres of their place of residence, employment, day-care, school or extracurricular activity;
(b)Contacting or communicating with or attempting to communicate with the mother or child by any means other than is provided for by these orders; and
(c)Removing or attempting to remove the child from the care of the mother or the mother’s nominee.
8.Until further order, MS FOREMAN born 1998 and MR BRADGATE born 1982, be and are restrained from removing or attempting to remove the child X born 2018 from the Commonwealth of Australia for a period of 5 years AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Family Law Watch List enforced at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List for the said period or until the Court orders its removal.
9.The proceedings are adjourned for mention and/or further trial directions to 9.30 am (EST) on 27 October 2023.
10.The father file and serve any further affidavit material in relation to his therapeutic engagement by 4.00 pm on 4 September 2023.
11.Leave is given for the father to provide a copy of the report of Dr D dated 21 October 2022, and anonymised copy of this judgment, to any health provider instructed or engaged by the father to provide therapeutic assistance.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Foreman & Bradgate has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION
The proceedings between Ms Foreman (“the mother”) and Mr Bradgate (“the father”) relate to the ongoing parenting arrangements for X, born 2018 (“the child”). The Court was assisted by the continued involvement of the Independent Children’s Lawyer (“the ICL”).
The focus of the proceedings is the extent to which the child should resume a relationship with the father following the father’s time with the child ceasing in late 2021 and further, the cessation of telephone time consequent upon the mother’s Application in a Proceeding filed 2 March 2022, seeking to discharge the Order made on 20 October 2020.
THE PROCEEDINGS
The mother has been represented by solicitors throughout the conduct of the proceedings. The father appeared as a self-represented litigant but consequent upon an order being made pursuant to s 102NA(2) of the Family Law Act 1975 (Cth) (“the Act”), the father was able to retain a solicitor and counsel as from 7 October 2022.
The proceedings had been conducted in the Parramatta Registry of the Federal Circuit and Family Court of Australia (Division 1) (“the Court”). The matter was transferred to my docket and on 30 March 2022, trial direction Orders were made which listed all applications for final hearing on 24 October 2022 as a five day matter in the Sydney Registry.
Orders were made for each of the parties, together with the ICL, to file and serve trial material upon which they intended to rely and liberty was given to all parties to approach the Judicial Registrar responsible for the management of the Court file.
It is a reasonable summary of the father’s presentation in Court that he was hostile to the process and considered that the Court, Judicial Officers who had been involved in the matter, and me in particular, were biased towards the father and in his assessment, were unlikely to allow him a fair hearing.
I indicated to the father that it was the Court’s intention by making a s 102NA order that he would be able to obtain legal representation in circumstances where he would not otherwise be able to cross examine the mother.
Moreover, the father was advised that the Court would take a robust approach to documents upon which he intended to rely and that the rules would be dispensed with to give him significant latitude as to the form and format of his trial documents.
I note that the Judicial Registrar appointed to manage the proceedings was aware of the relevant orders and had notified the Registry to accept material from the father even though it might not be in a prescribed form or comply with the rules.
By Orders made 26 August 2022, the proceedings were listed for further trial directions and a consideration as to whether the matter should proceed on an undefended basis on 16 September 2022. There was an apprehension that the father may not file an Amended Response and an Affidavit of evidence in chief of witnesses upon whom he intends to rely.
Correspondence forwarded to the Court by the father highlights his dissatisfaction with the process and in particular, the manner in which the proceedings where being conducted.
On 22 August 2022 at 3.39 pm, the father sent the following email communication to my chambers:-
So justice Berman no matter what will be in charge of this matter even though he lied, discriminated against and caused considerable trauma to me showing that a fair trial by him is actually out of the question?
So the court so going to ignore the interim whatsajig (sic) I asked for?
so court orders mean nothing good to know.
So Berman can lie to a party cause trauma and get away with it?
And you, the associate, if you’re the same associate that answered the WeChat (or whatever y’all use internally) when I was standing right in front of Sydney registry desk then writing them not to help me you can go fuck yourself.
I want an answer to the above as well no later than the end of play (sic) 23 august to the above questions.
Following the hearing on 26 August 2022 at 10.43 am, the father forwarded the following email communication to my chambers:-
No idea if anything I said could be heard, all I heard was broken words and stuttered phrases.
This needs to be adjourned, and when heard properly needs to happen at parramatta not Sydney registry.
The points to be heard:
1.Judge Berman needs to be replaced.
There is absolutely No way he will give me a fair hearing.
2.Interim orders letting me be a father again to my darling daughter [X].
There is no evidence that I am or ever was a bad father. Only rumour and gossip that the other party has put forward. Whereas the mother has stated in her psychiatrist reports/affidavits that she has committed assault towards us, threatening to kill [the child] and herself, and committing child abuse. She stated this to her doctor(s) and in a signed affidavit. Which the mother is under investigation for by NSW Police as of […] 2022, for assault of [the child] and myself after admitting to part of it in her signed affidavit to the federal court.
3.According to parramatta registry The judge also purposefully told them to misfiled (sic) interim orders I was looking for to happen as a final orders. I want this changed. And shows why the judge will not give me a fair hearing.
4.The final hearing needs to be held/moved to parramatta registry not Sydney registry.
Due to, and not only, the trauma and discrimination caused by this registry intentional or not. Parramatta registry is the only people who actually have tried to help me without telling me lies or trying to mislead.
However I reckon y’all just continued anyway without me present due to the fact that the judge doesn’t actually give a shit about people like me; ruled by people with money not children or fathers. Having a laugh at my expense, as you all are ‘friends’ and in it for the money and destroying peoples lives.
This needs to be adjourned quick smart. Even though I’ve been asking for months for these things to happen I’ve been completely ignored.
Now that October is close to approaching you’ve purposely left it too late and backed me into a corner.
My behaviour hasn’t been professional but that is because the family courts behaviour hasn’t been either.
Like breads like.
If from the get go the family court never discriminated against me. None of this would of occurred and the cost for the mother and myself would of been minimal both physically and mentally. And more importantly [the child] would’ve had a father who loves cares and wants her to be safe.
But due to discrimination the court sided with the mother from the get go as that is what happens. As fathers are shit people in the family courts mind.
On 30 August 2022, the father forwarded further correspondence to my chambers and the Case Manager Judicial Registrar. The tenor of the correspondence was to advise that the father had not been able to file his affidavit on the court portal and whilst he acknowledged a recognition that the order made enabling him to file trial material not in accordance with the rule was a genuine attempt to assist him, he still considered that he was the subject of discrimination. The further concern of the father was that I had subjected him to unfair treatment based upon my bias, that I was racist towards him and that I support child abusers.
On 16 September 2022, orders were made adjourning the matter for further consideration of trial directions to 6 October 2022, in anticipation of the father being represented by a legal practitioner.
The Interim Application of the father seeking my recusal was dismissed.
On 7 October 2022, the father was represented by Ms Griffin of Jacqui Griffin Mobile Solicitor with the trial to remain listed for final hearing on 24 October 2022 and a further order made extending time to the father to file and serve his trial material by 4.00 pm on 19 October 2022.
The hearing commenced on 26 October 2022 in the Parramatta Registry.
BACKGROUND
The father was born in 1982 and is 40 years of age. He is an equipment technician. The mother was born in 1988 and is 34 years of age. She is a health professional.
The parties commenced a short relationship in about late 2017 which concluded in January 2018. The child was born in 2018. The parties had not cohabited together and were separated at the time of the birth of the child.
Whilst the parties considered a reconciliation in mid-2020 and then again in late 2020 the conflict between the parties was irreconcilable.
The relationship between the parties post separation was marred by conflict wherein each of the parties allege aggressive conduct by the other.
There were also various incident reports and police involvement in early and mid-2019.
It appears that even though the parties’ relationship was poor, some attempt at mediation took place which resulted in an agreed parenting plan that provided for the child to spend some hours with the father each Saturday in the first week and on Saturday and Sunday of the intervening week.
Further mediation in early 2020 resulted in an agreement that the child would spend two nights per fortnight with the father commencing on each alternate Friday to Sunday afternoon.
The parties disagree as to whether the care arrangements for the child then, 2 years of age, were in the child’s best interests.
In mid-2020, the parties agreed to trial the child spending five nights per fortnight with the father comprised of Friday to Sunday in the first week and Friday to Sunday in the intervening week.
Again, whilst the parties disagree as to how successful the arrangement was, after some months the mother considered that the child’s time with the father should be reduced to three nights per fortnight.
It seems that the father did not accept the mother’s concerns or decision and the relationship between the parties significantly deteriorated.
The mother alleges that in mid-2021, the father attended at day-care and collected the child without the mother’s knowledge or consent. It appears that this incident was the catalyst for the mother to file an Initiating Application on 17 May 2021. The mother also filed a Notice of child abuse, family violence or risk (“Notice of Risk”) on 17 May 2021 expressing a concern that the conduct of the father, in unilaterally withholding the child, may well place the child at risk of psychological harm.
The mother also alleged that the father’s conduct was becoming aggressive, unpredictable and threatening.
The mother’s concern, as set out in Part H of the Notice of Risk, is in the following terms:-
In addition, the [father] sent a text message to the [mother] at 12.11pm on […]. He wrote “Is [the child] being abused at your place? Is that why she wont let you out of her site and isn’t sleeping well? At your place only this happens”. Later that evening, during a Facetime call, the [father] said to the child “is Nanny, Poppy or Mummy are (sic) touching you where you don’t like?”. He also said to the child “Mummy is stopping you from seeing me and what she is doing is wrong”. The [mother] is deeply concerned about the risk of psychological harm these questions and insinuations pose to the child.
The Initiating Application reflects the orders sought by the mother namely, that she have sole parental responsibility for the child and that the child spend time with the father gradually increasing in duration such that from the time the child commences kindergarten, the child would spend time with the father four nights a fortnight and half of school holidays, together with time on special occasions.
The unfortunate observation is that the position of the mother has transitioned from proposed orders that could be seen as a recognition that the child would benefit from having a meaningful relationship with the father, to the current positon which is that there should be no time spent with the father.
The clear focus then is on the conduct of the parties over a period of an eighteen months duration, which can inform as to what orders should be made.
Orders made on 29 June 2021, providing for the child to live with the mother and spend time with the father each Friday afternoon from collection at the child’s day care until 7.30 pm, and each Sunday between the hours of 10.00 am and 7.30 pm.
It seems that the Orders served only to exacerbate the conflict between the parties. The mother alleges that on various occasions the father did not return the child until either later on the allotted day or in some circumstances, on the following day.
The father appears to have maintained a vitriolic approach to the mother and in one of the emails forwarded to her, it is alleged that the father represented that the child in his care exhibited none of the problems displayed by the child at the home of the mother and the maternal grandparents.
In mid-2021, the mother attended upon the police to seek an Apprehended Violence Order (“AVO”) listing the father as the defendant. A short time later, in 2021, the police applied for an Apprehended Domestic Violence Order (“ADVO”) against the father for the protection of the mother and the child, and it was made later that day.
Orders were made on 25 August 2021 for the appointment of an ICL pursuant to s 68L of the Act, the issue of various subpoenas, and a report to the Department of Communities and Justice (“DCJ”) and NSW Police.
Following an incident at handover in late 2021, wherein the father alleged that the mother was promoting the child to cut herself and the parties argued as to the care of the child, the father’s conduct escalated. The mother alleged that the father refused to hand over the child and that whilst the child was in his car, he reversed his car into the maternal grandfather causing pain and injury. In an attempt to remove the child from the father’s car, the mother opened the car door however, the father started to reverse with the car door open and ultimately he left handover and drove away with the child. Apparently, the police viewed the interaction between the parties on CCTV footage and then attended at the father’s house whereby they cautioned him and then placed him under arrest.
Following the incident at handover in late 2021, the father’s face to face time with the child ceased.
The day after the incident, in 2021, the mother and child were placed under the protection of an ADVO until late 2023 that restrained the father for a period of two years from assaulting, threatening, stalking, harassing, intimidating or intentionally or recklessly destroying or damaging property of the protected parties.
On 30 March 2022, orders were made that pending further order, order 1 of Orders made 20 October 2021 (being the father’s telephone time with the child) be suspended.
ORDERS SOUGHT
By Amended Initiating Application filed 12 August 2022, the mother seeks that she have sole parental responsibility for the child, that the child live with her and spend no time nor communicate with the father.
In addition, the mother seeks injunctions pursuant to s 68B of the Act to restrain the father from:
(a)Approaching the child or being within 100 metres of the child’s place of residence or employment, day care, school or extra-curricular activity location;
(b)Dwelling in or frequenting the locale of the child’s place of residence, employment, day care, school or extra-curricular activity;
(c)Contacting or communicating with or attempting to communicate with the child by any means including by a third party, or by telephone, electronic platforms such as SMS, iMessage, Facebook, WhatsApp, Instagram or other social media;
(d)Removing or attempting to remove the child from the care of the mother or the mother’s nominee including by third party; and
(e)Taking the child into his care or having the child in his care.
The mother also seeks an injunction for her personal protection and that of the maternal grandparents.
An important feature of the mother’s case is that she seeks an order permitting her to relocate the primary residence of the child, without the consent of the father, to within a 120 kilometre radius of Suburb B train station. It is likely that the mother wants to live in coastal New South Wales with Mr C, her fiance.
The mother also seeks that the child be placed on the Family Law Watch List and that each party be restrained from removing, or attempting to remove, the child from the Commonwealth of Australia for a period of 12 years (or until the child reaches the age of 16 years).
Whilst it is difficult to identify a response relied upon by the father, by reference to his case outline document, he seeks that the parties have equal shared parental responsibility for the child and that there be gradual increase in the time the child spends with the father such that as and from 1 January 2024, the child lives with each party on an equal time basis.
The father seeks that commencing immediately, the child spend time with him each Friday afternoon until 8.30 pm and each Saturday from 9.30 am until 5.00 pm. He seeks that by 1 February 2023, the child spend time with him each alternate week from Thursday afternoon to Saturday at 10.00 am and Friday to Sunday at 5.00 pm in the intervening week and every Tuesday afternoon to 8.00 pm.
The father also seeks that he be permitted to take the child to New Zealand to see his family but that the mother be restrained from removing the child from the State of New South Wales.
The ICL broadly supports the orders sought by the mother but considers that there should be a notation to the final order in the following terms:-
(a)That the father may be entitled to make an application to this Court and satisfy the Rice & Asplund (1979) test if he undertakes the full recommendations of the single expert report by Dr D.
DOUMENTS RELIED UPON
The mother relies upon the following documents:-
(1)Amended Initiating Application filed 12 August 2022;
(2)Affidavit of mother filed 12 August 2022 (the mother’s Trial Affidavit”);
(3)Further Affidavit of mother filed 30 September 2022;
(4)Affidavit of Ms E filed 11 August 2022;
(5)Affidavit of Mr C filed 11 August 2022;
(6)Affidavit of Mr F filed 24 September 2021;
(7)Affidavit of Ms G filed 12 January 2021; and
(8)Child Impact Report of Ms H dated 17 November 2021.
The father relies upon the following documents:-
(1)Response filed 29 June 2021;
(2)Document titled “Final Parenting Orders sought” filed 1 September 2021;
(3)Notice of Risk filed 17 June 2021;
(4)Affidavit of father (titled Response to mother’s trial orders) filed 18 October 2022 (“the father’s Trial Affidavit”);
(5)Affidavit of father (titled Affidavit in line with final orders 11 September 2022);
(6)Affidavit of father filed 27 July 2021; and
(7)Affidavit of father filed 16 June 2021.
The ICL relies upon the following documents:-
(1)Child Impact Report Memorandum dated 17 November 2021.
All parties filed a Case Summary document that they sought to rely upon in addition to the Family Assessment Report of Dr D dated 21 October 2022.
THE EVIDENCE
At the commencement of the trial, the Court highlighted the provisions of Division 12A of the Act and in particular, whether the Court should dispense with the provisions of s 69ZT of the Act and apply the excluded parts of the Evidence Act 1995 (Cth) (“the Evidence Act”).
Neither party spoke against the application of the provisions of s 69ZT.
I consider that the principles of s 69ZN of the Act would be better served by receiving the evidence of each of the parties relied upon, but exercising my discretion under s 69ZT(3) of the Act as to the weight which will be given to the evidence, particularly, if it is contentious.
Consideration was given to the objections to affidavits of evidence by application of the Rules in s 135 of the Evidence Act.
It is apparent from the documents filed on behalf of the father that considerable latitude was given to him to enable sufficient compliance with trial direction orders in order for the matter to proceed.
I am also conscious of the assistance provided by the father’s solicitor and counsel who were prepared to represent the father at short notice.
As for the mother, her trial affidavit alone was 387 pages consisting of 443 paragraphs. A consideration of the mother’s trial material revealed that it was replete with inadmissible and irrelevant material which would have consumed an inordinate amount of the Court’s time to hear and determine objections to evidence.
In circumstances where it could not be said that the presentation on behalf of either party was intended to assist the Court, I determined that the matter should proceed and that the parties would have to rely upon my judgment as to evidence that was probative and not prejudicial.
The mother
The mother relied upon her Trial Affidavit as evidence in chief. As considered, the gravamen of the mother’s evidence was somewhat submerged in an unnecessarily voluminous Trial Affidavit. It is however, a reasonable summary of the mother’s presentation that whilst she was concerned as to the father’s controlling behaviour following the birth of the child, it was really following the parties’ separation in late November 2020 that the escalating aggressive conduct by the father caused the mother significant anxiety and engendered demonstrable fear.
I am able to find that the child has been in the mother’s primary care since the child’s birth.
An unusual feature of the parties relationship was the apparent understanding of the father that he would have almost unfettered opportunity to spend time with the child.
As early as six months old, the mother arranged for the father to spend time with the child for a few hours upon the father’s request. Rarely did the mother unnecessarily restrict the father’s opportunity to spend time with the child.
At about this time, the parties discussed the father’s current living arrangements and agreement was reached that the father would give the mother his contact details so that she would have some idea as to where the child was when spending time with the father.
The mother contends at paragraph 17 of her Trial Affidavit that at a handover, the father refused to provide her with his contact information and said to her words to the effect of “[The child] is better off with me with your mental health issues”. The mother then threw the child’s lunch box to the ground and slapped the father on the arm.
The mother left the father’s house and alleges that the father called the police and reported the incident, alleging that he had been assaulted by the mother.
In early 2021, the mother considered that the child was not coping with the increased time with the father and proposed that it be reduced to three nights per fortnight for a period of about twelve months.
The mother’s evidence of her observations as to the adverse effect of what was effectively a shared care arrangement on the child, was both credible and unchallenged.
The father’s reaction to the mother’s proposition was both immediate and angry. The father ceased spending time with the child but it is uncontroversial that he became aggressive in his language used towards the mother and his correspondence had the potential to be considered as threatening.
The mother’s purported fear of the father, and her contention that his communication was aggressive in its tone, was unchallenged and in any event, believable.
The commencement of the proceedings by Initiating Application on 17 May 2021, arose out of unilateral conduct of the father in collecting the child from day care.
Interim orders were made on 29 June 2021 which provided for the child to spend time with the father on Friday after day care until 7.30 pm and between the hours of 10.30 am and 7.30 pm on Sunday.
The orders did little to regulate the father’s conduct and following two further occasions in mid-2021 when the father did not facilitate handover and instead retained the child overnight, Orders were made on 25 August 2021 which allowed the mother to suspend the father’s time if the father failed to return the child within 45 minutes of the time required in the Orders.
On one occasion, the mother alleged that when the child was returned from the father’s care, that there was a hand print on the child’s stomach. The mother’s concern was that the father had smacked or struck the child. The father denied his involvement and eventually the mother withdrew the allegation but with the explanation that she was scared of the father.
A critical incident occurred in late 2021. The orders provided for handover to occur at 10.00 am and 7.30 pm on Sunday. The mother was accompanied by her parents. It is her evidence that she was frightened of the father and was not prepared to attempt handover alone. The mother contends that the father would not agree to release the child from his car despite the mother’s requests. The mother then asked her parents to retrieve the child however, the father then drove off with the mother in pursuit on foot.
It seems that the mother managed to open the back door of the car however, the father continued to drive out of the car park. The police were called and ultimately the mother attended the father’s home and collected the child.
Again, the mother’s evidence was credible and whilst I am not satisfied that I should find on the balance of probabilities that the father attempted to run over the paternal grandfather nonetheless, I accept the mother’s evidence that she was frightened by the father and intimidated by his aggressive conduct and threatening language.
The mother has sought therapeutic assistance to deal with the litigation and the anxiety caused by the father’s conduct. She has seen a psychologist for six sessions leading up to late 2022. She has also seen a psychiatrist and a general practitioner over a long period of time and has been prescribed medication for the treatment of anxiety and depression.
The mother was candid in admitting that she still experiences anxiety and did suffer from a mental illness. There was an unfortunate episode when she did self-harm at age 24.
The mother admitted that she had taken the child to a doctor and administered prescription melatonin to the child without advising the father.
The child has not seen the father since late 2021 but did speak to him between February and March 2022.
The mother was asked as to her efforts in ensuring that the existence of the father was reinforced to the child. The mother’s response was that she had started to speak to the child about her father but that it was a conversation with little effect, although the mother responded that she has allowed a picture of the father and the child to remain in the child’s bedroom. The mother’s presentation enables a finding that she did not encourage any questions from the child nor was she overly concerned to reinforce an emotional connection with the father.
The mother should be considered as a reliable witness, in particular in respect of the issue of her fear, distress and anxiety in response to the father’s aggressive and threatening conduct.
The unfortunate observation in this case is that up until 2021, the mother considered that the child should have a meaningful relationship with her father. The mother sought orders at the time that could be considered as reasonable, if not overly generous, in respect of the child’s ability to cope with the proposed arrangements.
But for the father’s apparent aggressive and angry conduct, the mother could be seen as supporting the child having a relationship with the father.
The father considers that the mother has fabricated her fear of him to achieve a strategic outcome of severing his relationship with the child and thereby enabling her to relocate to Suburb B.
The critical consideration then is the extent to which the Court can be satisfied that the mother’s evidence of fear and anxiety arising from the father’s conduct is genuine.
I am satisfied that the mother’s presentation and her evidence was consistent with her experiencing genuine, rather than concocted, fear of the father.
The father
At the commencement of the father’s evidence, the father tendered email communication that passed between the father and the chambers of his Honour, Judge Myers, in late 2021 (Exhibit 3).
The email communication conveniently encapsulates the enmity as between the parties. The response from his Honours chambers is unusual in its directness. The relevant parts of the correspondence is set out as follows:-
From: Mr Bradgate
Date: […] 2021 at 12:30
To: Associate JudgeMyers
Subject: Re: PAC2637/2021
This is what I suggest.
I am actually really tired of this crap as the judge says this is bull shit (paraphrased of course)
All I want is to communicate with [the child]. But I’m afraid to do so if I’m going to get locked up by the police again.
So if the mother can’t answer the phone please let me know beforehand; like the time she was sick and either i will let it slide or arrange another timing.
You think I like bringing this crap back all the time. It also screws with my work and what I earn. Remember self-employed I don’t get paid if I take hours off.
Then the response:-
Associate Judge Myers
OFFICIAL
Good afternoon,
Judge Myers is furious at the lack of communication and cooperation of this matter.
The Mother must ensure that she complies with the Orders, as well as the spirit of the Orders.
Should an appropriate arrangement not be reached, Judge Myers has advised that the matter will be relisted and Costs Orders may ensue.
The mother’s solicitors responded to the associate’s communication and recorded their opposition to the matter being relisted in circumstances where there had been six previous hearings over a period of four months. There is also a reference to the father having emailed his Honours chambers on a number of occasions.
The father is not currently aware of the mother’s mental health issues and whilst he did hold a concern, he has no information that would suggest he considers any underlying mental health issue to place the child at risk.
Even though the father was prepared to make a concession that he had no reason to be concerned as to the mother’s ability to function and properly parent the child, the father was asked to reflect upon paragraph 122 of his Trial Affidavit which sets out the father’s concerns as follows:-
122.Everytime (sic) [the mother] wouldn’t answer phone calls, when I tried to call, I would request a welfare check done on [the child] due to:
a. [the mother]’s current history of abuse of [the child].
b. [the mother]’s current history of drug addiction.
c. [the mother]’s history of abandoning [the child].
d. [the mother]’s history of self harm […].
e. [the mother]’s self confessed inability to care for [the child].
f. Breaching court orders.
g.I was supremely worried about [the child] in [the mother]’s care with all the claims of suffering that [the child] was subjected to in [the mother]’s care.
When pressed, the father resiled from his previous concern that the mother was trying to kill the child when she attempted to remove the child from the back of the father’s car at an aborted handover in late 2021. The father’s position is now that she was reckless in trying to do so.
The father still considered that the mother placed the child at risk and was in the habit of locking the child in a room at bed time. His concern is that historically, the mother struggled to properly look after the child and he remained worried about the mother’s ability to care for and comfort the child.
Whilst the father wants to share parental responsibility, he conceded that at present, the parties have no ability to communicate but he holds a belief that once the litigation is over, there could be an improvement in their relationship.
The father acknowledged that he did not attend the appointment for the preparation of a Child Impact Report published on 17 November 2021.
A regrettable theme throughout the litigation, but also highlighted in the Child Impact Report, was the detrimental impact on the Court process by the father’s apparently unrelenting aggression and demeanour.
The father was not interviewed for the purposes of the assessment on advice that the father’s tone and content of his email communication with Court Children’s Services was threatening.
The father then considered that it was the mother who had been obstructive in seeking to minimise the nature, quality, and extent of his relationship with the child.
The father acknowledged that the parties had entered into a parenting plan which would have enabled the father to spend significant time with the child. His response was that he was already spending significant time with the child and did not feel that there was any justification for his time to be reduced.
The father accepted that the mother was cooperative and denied that he had in any way pressured the mother to agree to five nights per fortnight.
The father conceded that there were times when he asked the child if anybody was hurting her. It is clear that the question put to the child was based on the premise that the mother may have placed the child at risk.
In early 2021, the mother’s solicitors wrote to the father’s solicitors asking for the father to sign an undertaking that he would not speak to the child about the mother nor make derogatory or inappropriate comments about her or her parents. The mother also sought that the father refrain from questioning the child about abuse or any other matters.
The catalyst for the communication arose in circumstances where the mother alleged that in early 2021, the father had been standing outside of her home and that at 11.00 pm that night, the police attended on the basis that they had been requested by the father to undertake a welfare check.
A day later, in 2021, the father agreed that he sent the mother the following text message:-
Is [the child] being abused at your place? Is that why she won’t let you out of her site and isn’t sleeping well? At your place only this happens.
On that afternoon, the mother facilitated a FaceTime call between the father and the child wherein the father said to the child “Is Nanny, Poppy or Mummy are (sic) touching you where you don’t like?” and “Mummy is stopping you from seeing me and what she is doing is wrong”.
The father acknowledged that he forwarded abusive and threatening text messages to the mother at the time, in 2021 alleging that she suffered from mental health issues and that he considered she was unfit to raise the child.
The mother also proposed that the parties attend a legally assisted mediation.
Conditional upon the father signing the undertaking, the mother was prepared to arrange for the child to spend time with the father between 11.00 am and 5.00 pm on Saturday 20 March 2021. The undertaking was as set out in a letter sent to the father’s solicitors dated 19 March 2021 being annexure “MF-5” to her Trial Affidavit.
The father’s solicitors forwarded the undertaking however the father refused to undertake that:-
(a)He would not question the child about abuse of any kind; and
(b)He would not collect the child from day care at any time unless agreed between the parties in writing.
Even at that point, conditional upon the father entering into a comprehensive undertaking, the mother set out a proposed parenting plan that comprised of a graduated increase in time, with the child ultimately spending four nights per fortnight with the father.
The father was the subject of a final ADVO made in late 2021 with the mother and the child as protected parties and a further ADVO naming the maternal grandparents as protected persons.
The conditions of the final ADVO are as follows:-
(1)That the father must not do any of the following to the mother, the child or with anyone with whom they may have a domestic relationship as follows:
·Assault or threaten them;
·Stalk, harass or intimidate them;
·Intentionally or recklessly destroy or damage any property or harm an animal that belongs to or is the possession of the mother or the child; and
(2)The father must not approach the mother or the child or contact them in any way, unless the contact is:
·Through a lawyer;
·To attend court approved counselling, mediation or conciliation;
·As ordered by a court about contact with the child; and
·As agreed in writing between you and the parents about contact with the child.
It is not in dispute that immediately thereafter, the father engaged in what could only be considered as threatening and abusive communication both with the mother and her legal representative.
In late 2021, the father sent the following email to the mother’s solicitors:-
Are you stupid or something stop sending correspondence to my iCloud email.
You have this email to use so use it.
Any direct communication from your offices go straight to junk in my iCloud.
I’ve told you this before. So stop playing stupid ass games.
As [the paternal grandmother] has an AVO on me I can’t contact her, mistakenly or not. I don’t care what you say. I care what the police say. And as the police from this district are sexist, biased and unwilling to investigate matters fully I have no option but to comply with what they say.
Protecting myself so I can protect [the child] from the toxic environment that is of your client’s making is paramount.
Especially as your client and her family will report me and have me arrested once again. Your client as well as [the paternal grandparents] know this already. So as they knew this they breached orders. So stop making out your client did the right thing when in fact she is just doing anything at all to me possible to have no contact with [the child].
Also there is to be NO DIRECT COMMUNICATION from your client or her parents. Any communication is to go through your offices then to me. Any direct communication from your client is intimidating and is harassing and I wont stand for it anymore. What with your clients behaviour past and present. As your client can’t even discuss something as worrying as [the child]’s comments about “mummy said its ok to cut myself” and “mummy said its ok to hit daddy”. Without flying into a rage putting myself and [the child] in harms way. I say Again: (sic)
NO DIRECT COMMUNICATION from your client or her parents it is intimidating and harassing.
Also don’t make this out to be my fault your client breached orders clearly so how dare y’all put this on me. You’re a bunch of so-so’s I hope none of you sleep soundly for the lives you have ruined.
FUS.
There then followed other communication later in that day in 2021 and on five occasions in late 2021. At the end of each of the emails the father used an acronym. The mother has interpreted the letters “fus” as “fuck you slut”; “fup” as “fuck you people”; “ikwyl” as “I know where you live”; “ygtdb” as “you’re going to die bitch” and “iwkyb” as “I will kill you bitch”.
The emails are annexed to the mother’s trial affidavit at MF-51. They are abusive, offensive and threatening.
The father was asked whether the mother was correct in her interpretation of the acronyms used to conclude each of the emails forwarded by the father. The father denied the mother’s interpretation.
The father explained that the acronyms were used in order to try and regulate and control his emotions. In some way, the father considered that his emails were part of an indexing system designed to transfer his negative thoughts, anger, and upset, via correspondence as opposed to any physical action. The implication is that whilst the emails read badly, any threatening or abusive content should not be taken seriously. The father’s alternative explanation was not credible.
In the context of each of the emails, the father’s tone is threatening, abusive and intended to create fear.
I find that the mother’s interpretation of the acronyms was likely to be the intended meaning.
As discussed, the father did not meet with the Court Child Expert in circumstances where he was invited to have his interaction with the child observed. As a result of the language used by the father, Court Child Services declined to include him in the interview.
It was put to the father that he had engaged in an unrelenting campaign of emailing the Court and the mother’s solicitors from early 2022.
In mid-2022, the father sent the following email to the mother’s solicitors:-
Your client is a lying bitch.
Why did she not tell me that [the child] was quite ill with croup and conjunctivitis?
Your client also said an update every two weeks but I suppose her word is worth what she is, nothing.
Tell her to Make (sic) sure [the child] gets the present my family gave her. Make sure your clients toxic parents don’t bin it.
Ben Sayer you toxic piece of shit. Make sure your client keeps to her word of an update every two weeks or I’ll just cost her more money by bringing it back to court instead. I still haven’t forgotten your threats towards me.
In previous email communication sent to the mother’s solicitor in late 2021, the father sent the following threatening email:-
[…] fat man.
Destroyed any other lives today?
Anywho tell your client [the child] better be at the drop off point on Sunday pursuant to the court orders.
If she isn’t I’ll be ringing the police and ringing docs again.
Also if your client or the clients family abuses [the child] again I will take matters into drastic measures.
Have a good night bald fat man.
In correspondence dated mid-2022, the father forwarded correspondence to my chambers alleging that I had lied to the father regarding an arrangement that was to be made to enable the father to file documents that would not ordinarily comply with the rules.
The constant barrage of communication also included the former ICL who withdrew from the proceedings on the basis of threatening communication forwarded to her by the father. The Police applied for an APVO on her behalf.
The father stated that whilst he now broadly regrets the communication sent to the mother, her solicitors, the Court, the ICL, and the relevant departments, he did not resile from the threatening content of the correspondence and emails knowing that whatever might have been his motivation, it was likely to cause fear.
The father agreed that in hindsight it was unwise to have sent the correspondence but that it should be considered as an indicator of his level of frustration and that any threat made should not be interpreted as a genuine intention to harm but rather a cry for help on the basis that he considered himself a father in distress.
The father’s conduct escalated as the litigation approached the trial.
In mid-2022, the police attended at the father’s home and were confronted by him picking up a kitchen knife. The father telephoned the police the next day, in 2022 threatening to declare war and “kill any police that come onto my property”. A day later, in 2022, it is alleged that the father telephoned the police and said “this insanity needs to stop, people will get hurt if this continues the way it is continuing”.
The father was charged with using a telephone service to threaten to kill. Upon the police attending at the father’s home and forcing entry to the property, the father confronted the police and held a kitchen knife to his throat. The father was apprehended by the police and charged.
The father did not resile from his conduct but sought to minimise the obvious impact on the police, the mother, and those that represent her by condemning the family law system and those that operate within its confines, as leaving him with no other legal option but to act in an aggressive manner in order to have people listen to his concerns.
The father was an unreliable witness. It is an unfortunate reflection on his conduct that the mother’s initial position was that he should continue to enjoy spending significant time with the child, to an outcome that saw the mother cease time because of her fear of the father and his subsequent arrest for criminal offending and breaches of the ADVO.
The father’s explanation for his conduct could not been seen as satisfactory justification for his actions. He did not express any remorse or show insight as to how his conduct could impact on the child.
Dr D
Dr D (“the psychiatrist”) is a specialist child, family, and adult psychiatrist with over 25 years experience. In addition to his substantial clinical experience, he has prepared numerous reports for Civil and Family Court hearings.
The psychiatrist considered that all other things being equal, each of the parties had much to offer the child given that they were both intelligent and high functioning individuals.
The psychiatrist found that the father has not had a history of mental health difficulties although he has an inability to regulate his emotions and displays a lack of empathy, insight or ability to understand the consequences of his conduct upon others.
In summary, the psychiatrist considered that some limited contact with the father may be possible after he has undertaken an appropriate course of psychological therapy, empathy training and a focus on issues relating to trauma.
The psychiatrist considered a range of Court documents as well as notes from the mother’s treating psychiatrist and general practitioner, which disclosed a history of anxiety, depression and mental illness. The mother’s medical notes record that she was observed to have an obsessive personality trait with high anxiety although there had been improvement consequent upon the mother being prescribed appropriate medication.
The psychiatrist considered that the mother was currently functioning well, as evidenced by a good sleep pattern with no food issues.
The mother made clear her proposal was to relocate with the child to the coast and marry her fiancé. At the time of interview, the mother did not consider that she could cope with contact from the father or that the child would be able to manage a resumption of time but when asked under what circumstances could the child resume seeing her father, the mother’s response was that “the father would need to show insight into his behaviour, the impact on others and be able to apologise and to repair the damage”.
The psychiatrist noted that the father’s history did not record a diagnosis of anxiety, depression or the need for treatment or counselling but on assessment, he did exhibit “…a degree of grandiosity and defensiveness about these comments which indicated (to me) there was a high level of denial to the fact that […] on a number of occasions was not traumatic”.[1]
[1] Report of Dr D dated 21.10.2022 line 744.
The psychiatrist noted that the father had not resiled from his complaint and concern that the mother may well harm the child and moreover that she would continue her false allegations to the police with the sole purpose of having him arrested and incarcerated.
When asked what the father wanted as an outcome to the proceedings, the psychiatrist recorded the following in his report: [2]
… . [The father] said he would be happy for there to be some graduated increase in care. He did not want 100% care as he believed that it is important for the child to have a relationship with the mother. He also believed that if 100% care was given to [the father] that the mother could kill herself and this would be bad for [the child]. Then in a moment of concern [the father] seemed a little panicked when he said suspiciously, “will you side with her? She abused [the child]. I think she’s abusing her. I think she’s abusing her emotionally. Everyone else is on her side” to which I explained that my role was to act in [the child]’s best interests.
[2] Report of Dr D dated 21.10.2022 line 890.
At the time of interview, the child was 4 years of age. The psychiatrist explored what activities she enjoyed doing with her father. The child recognised that it had been a long time since she had seen him but that she liked to go to his house and play with a range of toys and dolls that were present. It was not recorded that she expressed any negative thoughts and it is likely that the child was not in fear of the father.
The psychiatrist assessed the mother as presenting with a generalised anxiety disorder and a personality disorder which manifests itself with her struggle with feelings of inadequacy, at times being overwhelmed and an inability to cope which in the past resulted in self-harm.
The psychiatrist did however recognise that her current treatment, both from a psychiatrist and a psychologist together with long term support, was such that her mental health was reasonably stable given that she was working three days per week, able to care for the child, and maintain a relationship with her parents and her fiancé.
There was no adverse assessment of the mother’s ability to provide for the physical, emotional and psychological needs of the child.
Whilst the father was not diagnosed as having any mental health issues, the psychiatrist did consider that he presented with a significant personality problems in respect of his inability to sustain long term relationships and an obsessive tendency towards neatness and grandiosity.
His obsessive rigidity in pursuing what he considered was the right course in dealing with the mother, the Court, the police, and others involved in the litigation was indicative of emotional and personality issues.
The problem for the psychiatrist was that much of the father’s presentation and paranoia may well emanate from unacknowledged trauma possibly arising from his period as a serving member of the Australian Defence Force. The psychiatrist recorded the following in his report:[3]
[The father] joined the [Defence Force] at the age of 17 and it appeared that his perspective on life and the world was influenced greatly by war and combat. He was not open about the details but it would appear that he was a […] for almost […] up to the age of […]. There were many near-death traumatic experiences about which he would not speak.
[3] Report of Dr D dated 21.10.2022 line 1137-1140.
The psychiatrist diagnosed the father as presenting with personality disorders.
The psychiatrist was satisfied that the father would not be able to co-parent with the mother and whilst he did not consider that the father presented as a risk to the child, there was a level of suspicion and obsessive focus on whether the child had been the subject of physical or sexual abuse.
As such, the father was considered to have difficulty in regulating his emotions, displayed excessive anxiety arising out of a belief that the child was the subject of abuse and has little or no ability to support the mother as the primary carer of the child. The father’s ability to recognise the mother’s significant role in the child’s life was an important consideration.
The child was observed by the psychiatrist to have a strong emotional attachment to the mother and the maternal grandparents. The mother acknowledged that the child had a degree of attachment to the father to the extent that the psychiatrist considered that the child would enjoy seeing her father if the Court considered there was a reasonable and safe pathway forward.
The psychiatrist summarised the presentation of the parties as follows:[4]
I believe both parents care a great deal about their child. At times of stress, [the mother] becomes overwhelmed and can be depressed or resort to [disordered behaviours]. She has had […], the last being in 2021. [The father] can present as coercive and controlling as he at times of stress seems to resort to becoming angry and rigid, self- focused and will not negotiate or comply either with Police instructions, apprehended violence orders or family court orders and can become emotionally dysregulated making threatening statements as noted in the Police files.
[4] Report of Dr D dated 21.10.2022 line 1314.
The psychiatrist was concerned as to the mother’s ability to cope with a move to the coast given the extent to which she is extremely dependent on her parents. He assessed that it would be a major challenge for the mother but of more significant relevance, is the concern that such a move may well mean that the father has no contact with the child, which would be a sad outcome for her.
It is not surprising that the psychiatrist opined that the parties are not able to engage in any form of shared parenting and given that the parties are in high conflict, a shared parenting arrangement would not be in the child’s best interests.
There was no basis to consider that the father should take over the full time care of the child given the strength of the primary attachment with the mother. The psychiatrist appears to place significant weight on the importance of the child maintaining a meaningful relationship with the father whom he considered had a lot to offer should he be able to regulate his behaviour and emotional outbursts.
The recommendation is that there should be no contact for a period of time whilst the father undertakes necessary treatment during which time there could be some “recognition contact” such as video or other communication to ensure that the child does not forget her father. Thereafter, there could be a period of supervised contact which may gradually progress to day time contact once per month for up to six hours.
Somewhat pessimistically, the psychiatrist considered that if the father was not able to comply with orders and agreements and acted aggressively and without permission or consent, then that may well suggest that the father’s time with the child should be limited to cards and letters.
PRINCIPLES RELATING TO PARENTING
The child currently resides with the mother and spends no time with the father.
The evidence supports a finding that the father engaged in family violence which he inflicted upon the mother from early 2021.
The mother seeks sole parental responsibility for the child. The father seeks that there be an equal shared care arrangement although conceded to the Report Writer that he recognised there would need to be some period or graduated increase in time given the current circumstances.
Section 60CA of the Act requires that I have the best interests of the child as the paramount consideration. The best interest are to be considered by the application of the objects of s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act.
I am cognisant of the primary and additional considerations in respect of the matters as set out in ss 60CC(2) and (3) of the Act.
I note the directions contained in s 60CC(2)(A) of the Act, and I have regard to the allegation of the mother that the father has engaged in serious family violence.
I propose to adopt the following approach:-
(1)Give consideration to the proposals put forward by the parties;
(2)Have regard to the objects expressed in s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act;
(3)Have regard to the provisions of s 60CC of the Act in order to determine in each case what is in the child's best interests;
(4)Have regard to the primary considerations under s 60CC(2) of the Act, namely the benefit to the child of having a meaningful relationship with both of the child's parents and the need to protect the child from physical or psychological harm;
(5)Have regard to the additional considerations under s 60CC(3) of the Act;
(6)The evidence adduced in respect of the particular considerations pursuant to ss 60CC(2) and (3) of the Act are to be considered, and if more weight is to be given to one or more of the matters raised, then this must be the subject of delineation and comment.
THE PRINCIPLES APPLICABLE TO RELOCATION
In AMS v AIF [1999] 199 CLR 160, Hayne J highlighted that the focus of the Court must be on how a child or children would be affected either to their detriment or their benefit by the separate proposals of the parties:-
216. An important, probably essential, step in the inquiry into who should have custody of, and access to, the child is to identify where the custodial parent intends to live, for that will determine where the child lives and affect what contact the non-custodial parent can be expected to maintain with the child. But that is not to say that it is for the Court to decide where the custodial parent may live: that decision is to be made by the parent.
…
218. To translate the question into this form – has the mother shown a good, or good enough, reason for wanting to move – focuses attention upon the reasons and motives of the mother. But that is not the proper focus of inquiry. The proper focus is which is better for the child – to be in the custody of the father ... or to be in the custody of the mother ... . That, of course, requires attention to what benefits will the child have, and what detriments will the child suffer, from being in the mother’s custody ...
The Full Court in Starr & Duggan [2009] FamCAFC 115 (“Starr & Duggan”), gave clear direction as to the co-existence principle that the best interests of the child is the paramount consideration and the legislative framework will of necessity, involve some overlap of a consideration of similar factors pursuant to s 60CC of the Act. The approach is not meant to be rigid such that:-
38.However, it is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:
•first make findings concerning the relevant s 60CC factors;
•then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
•then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.
The relocating party is not required to justify why they seek to relocate. It is how well the best interests of the child will be served against the setting of each of the parties’ respective proposals. In the case of Starr & Duggan (supra), it was the wife’s application that she be permitted to relocate to Country K with the children.
Whilst there is no specific principle of procedure that is required to be brought to account when relocation is either overseas or involves a substantial distance between the relocating parent, the child or children, and the remaining parent, nonetheless a tyranny of distance is likely to reduce the options available to the parties.
In the decision of Zahawi & Rayne [2016] FamCAFC 90, the Full Court considered a number of authorities, both international and local, and summarised the position as follows:-
47. All applications for parenting orders before the court involve a situation that, axiomatically, is not in the children’s best interests. What is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents’ proposals embraced in competing applications involve, again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children’s best interests. Concomitantly, Gummow and Callinan JJ said in U v U:
...The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.
48.“Relocation cases” are no different from other applications for parenting orders in that respect. Like all applications for parenting orders, an application to have the children live with a parent significantly geographically remote from the other parent is to be determined by the children’s best interests. However, the issues in a “relocation case” are, by reason of the proposed geographical separation of parents from their children, often significantly more acute and all the more so in cases of proposed international relocation. And, of course, that same factor will usually render more acute the burden or burdens to be borne by one parent or the other, including restrictions on their freedoms.
(Footnotes omitted)
PARENTING CONSIDERATIONS
Following the remarks of Finn J in Blanding & Blanding [2016] FamCAFC 21, where her Honour considered the Full Court decision in Beckham & Desprez [2015] FamCAFC 247, the Court now should focus on the practical reality of each party’s proposal and the consideration of the primary and additional factors in s 60CC of the Act that are applicable to the circumstances of each case.
In Cotton & Cotton (1983) FLC 91-330, Nygh J considered that while it was both generally desirable for a child to maintain a meaningful relationship with both parents, there must be a possibility first of the existence of a meaningful relationship. His Honour said at 78,252:-
…that desirability only operates where there is a chance of a meaningful relationship which is beneficial to the child. It is not, in other words, a question of contact for contact’s sake. If there is a situation where contact with a parent is on balance likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability for the child to have a meaningful relationship, but the possibility of a meaningful relationship must first exist. …
In Sigley & Evor [2011] FamCAFC 22, the Court at [136] cited the observations of the Full Court in Champness & Hanson (2009) FLC 93-407 at 83,513:-
The first and very important observation we would make about this complaint is that the expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’.
As Murphy J said in Baglio & Baglio [2013] FamCA 105 at [111] “…a chance of a meaningful relationship…which is beneficial to the child” was likely to be to the child’s advantage and that the absence of such a relationship had “the potential to cause [the child] harm in the long term”.
Whilst there is no current physical relationship between the father and the child, it is apparent from the report of the psychiatrist that there remains an emotional relationship and attachment and that the child does not express any fear of the father but remembers enjoying her time at his home. The psychiatrist considered that if the father could undertake appropriate therapeutic assistance over the medium to long term, the child would benefit from a resumption of time provided that the father is able to regulate his emotional ability, support the mother’s role as the child’s primary carer and desist from engaging in overtly aggressive and threatening behaviour towards the mother, her parents, and other persons in a position of authority.
The mother seeks an order that she be permitted to relocate the primary residence of the child to within 120 kilometre radius of Suburb B train station. The mother’s intention is that she and her fiancé intend to move with the child to a coastal area.
Whilst there has been considerable focus on the advantage to the mother of remaining in the vicinity of Suburb B and in particular, the benefit that she derives from the strong support of her parents, there is no evidence that such a move by the mother would place her at significant risk of a deterioration in her mental health to the extent that it would adversely impact upon her ability to parent the child.
The tension therefore is whether the opinion of the psychiatrist that the child would benefit from maintaining an appropriate relationship with the father is outweighed by concerns as to whether it is safe to do so.
The mother properly concedes that there is a relationship between the child and the father as observed by the psychiatrist from the child’s positive remarks but that the father’s conduct demonstrates that he has little understanding of the child’s developmental needs and that he has perpetrated serious family violence against the mother by his abusive and threatening communication to the mother and her extended family together with repeated requests for police welfare checks, reports to DCJ and breaches of the current ADVO.
It must be remembered that the mother was initially prepared to support a relationship between the child and the father provided that he was prepared to give an undertaking to comply with the mother’s reasonable conditions and to not engage in ever escalating aggressive and frightening conduct.
It is however a serious matter to decide that the father should henceforth have no effective and meaningful relationship with the child. The focus must therefore be on the extent to which the father’s conduct, both past and into the future, will overwhelm the advantage to the child of having a relationship with the father as considered by the psychiatrist.
Is the child at risk?
In M v M (1988) 166 CLR 69 (“M v M”), the Full Court gave consideration to the treatment of allegations of sexual abuse. The Court considered at [19], that treating an allegation of sexual abuse as the paramount consideration was an error identifying that in all proceedings under part VII of the Act, the Court is enjoined to “…regard the welfare of the child as the paramount consideration” (s.60D)….”
In Vasser & Taylor-Black (2007) FLC 93-329, the Full Court considered that the High Court decision in M v M (supra) had become the “touchstone” of the principles to be applied in cases of asserted unacceptable risk of any kind.
The decision of the Full Court in N & S & the Separate Representative (1996) FLC 92-655 (“N & S & the Separate Representative”), assists at 82,713-4, where Fogarty J said:-
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of a particular case fall, and to explain adequately their findings in this regard.
In Harridge & Harridge [2010] FamCA 445, Murphy J, referred to N & S & the Separate Representative (supra), and proceeded to adopt the following list of inquiries with respect to risk assessment and analysis:-
73. ….
Risk assessment in any situation involves, in essence, the asking of the following questions:
(1) What harmful outcome is potentially present in this situation?
(2) What is the probability of this outcome coming about?
(3)What risks are probable in this situation in the short, medium and long term?
(4)What are the factors that could increase or decrease the risk that is probable?
(5)What measures are available whose deployment could mitigate the risks that are probable?
(B. Mahendra ‘Psychiatric Risk Assessment in Family and Child Law’ (2008) 38 Family Law 569)
I adopt that passage as helpful in cases such as these in analysing the asserted risk.
The father has a history, albeit recent of family violence, involving threatening and controlling behaviour. The mother sets out aspects of the father’s behaviour that she considers exposes her, members of her family (including her fiancé) and the child to family violence within the definition of s 4AB of the Act. The mother sets out examples of the risk in her Case Summary as follows:-
•Communication to the mother that [the father] considers Orders “voided” in circumstances where those Orders were not his desired outcome;
•Threats to the Mother to involve DCJ and have [the child] taken away;
•Communications to the Court, the Mother’s legal representatives and the Mother, insinuating threats to self- harm and threats of harm to others;
•Allegations of bias and discrimination when the Father does not achieve his desired outcomes;
•Communicating with the previous ICL in a manner that cause her to cease to act on behalf of [the child];
•Communicating with Child Services in a manner which resulted in a refusal to see the Father in person (and for the father to be included in the assessment);
•Driving away from changeover [in late] 2021 with [the child] in the back of his car, at speed and with her door open; and
•Threatening, abusive and derogatory communication with the maternal grandmother, and […] of the maternal grandfather; in respect of which charge the father plead guilty;
•Threatening, abusive and derogatory communication with the Mother’s legal representatives…;
•Threatening, abusive and derogatory communication with the Court, directly denigrating the Mother, her family, her legal representatives and the family law system;
•Repeated police welfare checks with no genuine basis for concern and no apparent willingness to have alleged concerns abate;
•Breaches of the ADVO in place for the Mother’s protection. Breach charges are currently listed before the Local Court…;
The mother further contends that the father has, by his action and deed, demonstrated a reluctance or refusal to comply with Court orders.
I have little difficulty in finding that since the birth of the child, the father’s behaviour has been aggressive and controlling. The greater mischief, and adverse consequence of the father’s conduct, is that it was either designed to exacerbate the mother’s emotional and psychological fragility or the father was reckless and indifferent to that outcome.
The father did not resile or deny the more florid manifestations of his aggressive and threatening conduct. It could not be said that the father hid his dislike and distain for the mother, her family, her legal representatives, the Court and other persons in a position of authority. Much of the father’s conduct was self-evident in his outrageous correspondence and communication. The assertion by the father that the acronyms displayed in his email communication with the mother and her legal representatives was benign, bordered on incredulity.
Family violence must not be ignored. In Pascoe & O’Keefe and Ors [2018] FamCAFC 243, the Full Court supported the position that family violence must be given strong weight:-
46.… In cross-examination, the single expert discussed the deleterious psychological consequences for children of their exposure to family violence, which evidence was hardly a revelation. This Court has long-recognised its destructive effect on the immediate victim and those who are exposed to the violence including, most relevantly in this case, the child.
47.The fact a child may not currently manifest symptoms of exposure to family violence does not mean the exposure has not already been harmful or that more exposure in the future will not compound the harm. The mother’s false contrary assumption underpinned one ground of appeal, which must fail (Ground 8). Her submission that the risk of harm to the child is reduced because neither B nor C exhibit any tangible ill-effects of their past exposure to the second respondent’s violence is therefore rejected as fallacious.
(Citations omitted)
The child has the potential to be affected in different ways. Various considerations must be brought to account and a significant focus, as identified by the psychiatrist, was whether the father has, or may have, the capacity to develop insight as to the deleterious effect of his conduct on the mother but by necessary implication, the child. The evidence supports a finding that at present, the father does not have the necessary level of insight, restraint, or control. That is the foundation for the remarks of the psychiatrist that before a meaningful and fulsome relationship can be re-established between the father and the child, he needs to undergo a significant period of therapeutic intervention and assistance. The process is likely to be extensive and the risk is that the father may not be able, or prepared, to undertake what is likely to be a rigorous course of personal reflection.
The mother is unlikely to alter her position being one of fear of the father and mistrust of his preparedness to moderate his behaviour. In summary, the mother’s evidence is that she considers the father to present as an ongoing risk both to the child but also to her ability to parent the child if her emotional stability should be significantly disrupted.
The father has commenced a process of therapeutic assistance. It is in its infancy and to a significant degree, was not sufficiently targeted to the issues that need to be resolved if the child is to resume a meaningful relationship with the father.
Family violence must be given strong weight but it is not determinative in and of itself and must be considered as one of the factors which needs to be brought to account in determining what is in the child’s best interests.
The psychiatrist was firm in his opinion that all things being equal, there was much benefit to be gained by the child in having a safe and respectful relationship with the father.
Whilst I consider that there are risks to the child should the father’s conduct continue unabated, if the recommendations of the psychiatrist are followed by the father, then that in and of itself becomes a process whereby the risk can be managed.
It is not suggested that the father have physical contact with the child until such time as the father can present evidence of appropriate behaviour, restraint and insight.
The mother has not been totally opposed to the child having a relationship with the father. There are clear benefits however, the father’s conduct has been overwhelming.
If the possibility of the father resuming a relationship with the child is to become a reality, then I consider a highly cautious approach for the medium to long term will need to be put in place.
Wishes of the child
X is four years of age. Caution will need to be exercised as to the weight to be placed upon the wishes of a young child however, assistance can be gained from the report of the psychiatrist that the child is not frightened to see her father, remembers fun times at his home and is uncertain why her time with him has stopped.
Whilst the child cannot possibly understand the predicament in which she finds herself, her recollection of happy and fun times with the father, should be given some weight. There is no suggestion that the child is fearful of the father and whilst that is a positive indicator, it also highlights that the mother has been sensitive to the importance of the child retaining a favourable recollection of the father.
The nature of the relationship of the child with the parties and others
The primary attachment of the child is with the mother. There is limited attachment to the father given that his time was gradually lessened until the present situation where he spends no physical time with the child and no longer is able to engage in video calls.
Much has been said of the benefit to the mother and the child of the close engagement of the maternal grandparents. As discussed, it is significant that the proposed relocation to coastal New South Wales will place significant distance between the mother and her parents.
At present, the child does not spend time with the father. The recommendation of the psychiatrist as to what the father will need in terms of therapeutic intervention before substantive interaction can resume, is likely to be of long duration.
The likely effect of any changes in the child’s circumstances
There is unlikely to be any significant change in the child’s current circumstances. At this stage, I do not propose to make orders that will see a substantive resumption of time between the father and the child. To do so would be contrary to the evidence and likely to undermine the father’s potential to put in place a long term meaningful relationship with the child in circumstances where a more immediate resumption may be considered as unsatisfactory to all parties with the necessary result of the child being engaged in further conflict experiencing uncertainty as to the status of her relationship with the father.
The mother is to marry her fiancé in early 2023.
Whilst it is not a matter determinative of a parenting proposal that includes a relocation of a child’s primary residence, the mother’s plans are reasonable.
Whilst it may be seen by the father as placing a further barrier to his resumption of a relationship with the child, it is not reasonable that the mother’s life be placed on hold pending the uncertain resolution as to whether the father will engage in the necessary therapeutic assistance.
There are significant advantages to the child of the mother’s proposed relocation. There will be a secure family unit consequent of the mother’s marriage to her fiancé. I am satisfied as to the mother’s arrangements and there is no evidence before the Court that would suggest the child would not be properly cared for by the mother.
The disadvantage arises from the mother being separated from her support base, being the maternal grandparents, and also should the father gain the necessary stability and insight to resume a meaningful relationship with the child, the increased distance will obviously become a relevant factor.
On balance however, I consider that the mother’s proposal has merit, although care needs to be exercised that the child maintains a knowledge and a relationship with the father which can then be built upon as the father successfully reassessing his circumstances and gains the assistance that the psychiatrist considers is necessary.
There is no evidence which would support the orders the father seeks. He may well be mistaken in his belief that an immediate resumption of time with the child would be without problem or difficulty.
The father had substantial time with the child prior to the commencement of the proceedings however, he was not content and railed against any condition or restriction placed upon his relationship with the child.
I must always be guided by the child’s best interests and whilst at present the father’s conduct is entirely consistent with the finding that he presents as a risk to the child, there is still much potential benefit to the child by maintaining a relationship with the father providing he is able to properly engage his therapeutic rehabilitation.
Family violence
I have found that the father’s conduct falls into the definition of family violence. To the extent that I accept the mother’s fear of the father is genuine and arises entirely as a result of his unrelenting campaign against the mother, those who support her and those that the father perceives as having taken a set against him, my obligation is to consider the best interests of the child and to try and navigate a path that puts in place the necessary checks and balances to ameliorate the risk presented by the father with the goal being a resumption of a relationship, which the psychiatrist considers is likely to be of benefit.
I note that there is currently in place an ADVO and that there may also be unresolved criminal proceedings in respect of various charges outstanding against the father.
It is now a matter for the father as to whether he continues his current aggression and thereby his conduct in circumstances that will reinforce the mother’s view that whatever benefit might inure to the child, the father presents as an unacceptable risk.
It is hoped that the matter has not reached that stage and that the evidence of the psychiatrist places the appropriate weight on the benefit to the child for the father resuming a place in her life, providing he can gain the necessary therapeutic insight to ameliorate his behaviour.
The ADVO does of course provide some protection for the mother, together with the resolution of her uncertainty, as to where she is permitted to now live.
Further litigation
The parties have been before the Court since 2021.
Whist there is a temptation in all matters to seek finality of outcome, I am not able to do so in this case.
There is uncertainty as to whether the father will be willing to engage in the therapeutic intervention as recommended. If he does, then there will need to be some further consideration by way of evidence of change should the mother maintain her current level of scepticism of the father’s ability to accept help and advice.
Equally, the father needs to have some certainty that if he undertakes the process with genuine intent and the necessary diligence, then the Court will be able to further consider the possibility of a resumption of physical contact with the child.
Upon delivery of judgment, I propose to adjourn the proceedings for a period of six months to further assess what efforts, if any, the father has made to assist him in re-establishing a relationship with the child. If the evidence supports a finding that the father has made appropriate steps, then further orders can be contemplated. If it appears that the father has not engaged in a meaningful way with the therapeutic process, then consideration of final orders can be undertaken.
It does seem appropriate however, that orders be made to enable the child to maintain a knowledge and a relationship with the father. That cannot be done by way of physical time spent but I see no reason why the father should not be permitted to resume video time with the child providing the sessions are conducted respectfully and with the father to be entirely child focused rather than the opportunity being used for an ulterior purpose.
PARENTAL RESPONSIBILITY
Parental responsibility is to be informed by what is in the best interests of the child. Family violence is a factor that is the very antithesis of shared parental responsibility.
It is not reasonable to expect the mother to ever enter into any discussion with the father and to do so would only invite the potential for the mother’s emotional fragility to be adversely impacted.
The presumption of equal shared parental responsibility is rebutted and the evidence supports a finding that the mother should have sole parental responsibility. That does not mean that the mother should not be required to communicate her decisions to the father but given there is little likelihood of there being any consensus reached, the interests of the child are best served by the mother being able to make those decisions without the consent of the father.
CONCLUSION
As discussed, I propose to make no order that would require the child to spend physical time with the father however, I do propose to order that there be a resumption of video time providing it is conducted respectfully.
I will adjourn the proceedings for a period of six months during which there will be a focus on the therapeutic intervention by the father with the hope of reinforcing his insight into the disastrous impact upon the child of his family violence directed to the mother, members of her family, and those who are in a position of authority.
The focus of the father should be to conduct himself in a way that ameliorates the mother’s heightened anxiety.
The future progress of the proceedings is very much to be left in the hands of the father to establish that on the adjourned date, he longer presents as a risk to the child and the mother and has gained insight into the detrimental effects of his behaviour on the mother and the child.
I make Orders as appear at the commencement of these reasons.
I certify that the preceding two hundred and forty-six (246) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 17 March 2023
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