Franklin and Kendall

FAMILY COURT OF AUSTRALIA

FRANKLIN & KENDALL

[2014] FamCA 691

FAMILY LAW – CHILDREN – Application for injunction requiring residence parent to return permanently to live in Queensland from Adelaide – Application refused. Question of how to make parenting orders where geographical tyranny of distance is a large barrier – Sole parental responsibility orders.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

AMS v AIF (1999) 199 CLR 160
Briginshaw and Briginshaw (1938) 60 CLR 336
Loddington and Derringford (No 2) [2008] FamCA 925
Sampson and Hartnett (No 10) (2007) FLC 93-350

Sealey and Archer [2008] FamCAFC 142

APPLICANT:

Mr Franklin

RESPONDENT:

Ms Kendall

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

BRC

1534

2012

DATE DELIVERED:

27 August 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Brisbane

JUDGMENT OF:

Cronin J

HEARING DATE:

14, 15, 16 & 17 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Glenday

SOLICITOR FOR THE APPLICANT:

Legal Aid Queensland

THE RESPONDENT:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Bunning

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

DA Family Lawyers

Orders

That all extant parenting orders are discharged.
That subject to paragraph 3 of these orders, the mother have sole parental responsibility for X FRANKLIN (“the child”) born … 2009.
That before making any decision about which school the child attends (at both primary and secondary level) or about any major medical procedure or about any form of counselling to be undertaken by the child, the mother advise the father in writing of:
(a)       What she perceives the medical or mental health problem to be;
(b)       What advice she has received; AND
(c)       Which schools she proposes,
and the father shall respond with his views which the mother shall consider and thereafter make the decision advising the father accordingly.
That the child live with the mother.
That at her expense, the mother take the child to City G and arrive there no later than the first Monday of the next South Australian school holidays and, subject to the agreement of Ms B, meet with Ms B for the purpose of the child getting to know Ms B on each of the successive days before the first Wednesday of the first week of the said school holidays at such time and for such periods as may be agreed between the mother and Ms B and the father is restrained by injunction from being present at any of those meetings.
That the child spend time with the father for a period of two successive days in the next South Australian school holidays in 2014 from 10.00am to 2.00pm on each of those days with the handover occurring at the McDonald’s store at City G or such other place as the mother and Ms B agree and if practicable, the handovers occur in the presence of Ms B on the Wednesday or such other days as may be agreed and failing agreement on the Wednesday and Thursday of the first week of those said holidays.
That if Ms B refuses to participate in the attendances contemplated by paragraph (5) of these orders then the father’s time in City G (that is paragraphs (6) and (9)) shall not commence under these orders until that has taken place and the mother shall be under no obligation to fly to or assist in the delivery of the child to City G as envisaged in paragraphs (5) to (6) and (9) to (13) accordingly.
That regardless of paragraph (7), the child spend time with the father in Adelaide at the father’s expense for the first weekend of December 2014 from 10.00am to 2.00pm on each of the Saturday and the Sunday with the handover occurring at the Z Contact Centre in South Australia and the parties forthwith upon receiving these orders, do all things necessary to enrol for that service for the handover only.
For the 2014-2015 long summer holidays, the child spend time with the father for a period of four successive days and each day from 9.00am to 6.00pm in the first week of January with the mother at her expense, delivering the child to the McDonald’s store in City G on each of those days and collecting him there at the end of each of those days and if practicable, with Ms B being present at each of the handovers.
Commencing with the South Australian school holidays at the end of Term 1 in 2015 and for each school term holidays thereafter, the father spend time with the child for one week of each term holidays with the father collecting the child from the mother who personally or by her nominee shall deliver the child to the father at the relevant terminal at the Adelaide airport at the time nominated by the father for his arrival and the mother collect the child from the father at the relevant terminal at the Brisbane airport at the time one week later nominated by the mother for her arrival.
For the 2015-2016 long summer holidays, the father spend one week with the child in the month of January by agreement and failing agreement commencing on 2 January 2016 with the father collecting the child from the mother who personally or by her nominee shall deliver the child to the father at the relevant terminal at the Adelaide airport at the time nominated by the father for his arrival and the mother collect the child from the father at the relevant terminal for Brisbane airport at the time one week later nominated by the mother for her arrival.
For the 2016-2017 long summer holidays and for the similar period in each alternate year thereafter, the father spend two weeks with the child which shall include the period from 24 December to 26 December with the father collecting the child from the mother who personally or by her nominee shall deliver the child to the father at the relevant terminal at the Adelaide airport at the time nominated by the father for his arrival and the mother collect the child from the father at the relevant terminal at the Brisbane airport at the time two weeks later nominated by the mother for her arrival.
For the 2017-2018 long summer holidays and for the similar period in each alternate year thereafter, the father spend two weeks which shall not include the period from 24 December to 26 December with the father collecting the child from the mother who personally or by her nominee shall deliver the child to the father at the relevant terminal at the Adelaide airport at the time nominated by the father for his arrival and the mother collect the child from the father at the relevant terminal at the Brisbane airport at the time two weeks later nominated by the mother for her arrival.
That the mother be restrained by injunction from relocating the residence of the child from the current location in Town M in South Australia without first giving the father 14 days written notice by email of her intention to so change his address.
That each of the parents is required by injunction to keep the other advised at all times of their telephone and email addresses.
That the parents each keep the other informed of any injury or illness suffered by the child whilst in their care including the names of any treating doctors or hospitals notwithstanding that the mother has sole parental responsibility for the child and for that purpose, the mother authorise the father in writing to obtain any information from any medical provider about the child’s health and injury.
That regardless of any other orders set out above, the father communicate with the child by Skype on each Monday and each Friday during school term for the period of three weeks commencing on the first Monday after these orders with the mother calling the father’s Skype address at 6.00pm on the Monday and the father calling the mother’s Skype address at 6.00pm on the Friday.
That for the period after the three successive weeks and during any period of time that is not otherwise covered by the holiday periods referred to in these orders or when the child is spending time with the father, the father communicate with the child by Skype communication on each Saturday at 6.00pm.
That the mother facilitate the Skype communication by preparing the child for it and ensure he is available at all relevant times under these orders.
That the father be at liberty and the mother facilitate the Skype communication with the father on the child’s birthday, Christmas Day, Father’s Day and Easter Sunday at 6.00pm if the child is not already in the father’s care.
That each party provide to the other copies of all airline travel itineraries by email no later than 7 days prior to the required travel periods under these orders.
That the Independent Children’s Lawyer is otherwise discharged.
That all extant applications are otherwise dismissed.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Franklin & Kendall has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: BRC 1534 of 2012

Mr Franklin

Applicant

And

Ms Kendall

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

In this disputed parenting case, the Independent Children’s Lawyer (supported by the father) sought an injunctive order that the mother, who currently lives near Adelaide, return to live with five year old X (“the child”) in City G in North Queensland. The parties had largely conducted their relationship in City G and that was where the child was born in mid 2009.
On 1 October 2011, the mother left the parties’ home taking the child with her. She moved initially to rented accommodation in that city. Almost three months later, and without the child having seen his father since their separation, the mother literally disappeared to live in Adelaide.
The father’s case was that if the mother remained in South Australia he would never be able to have a relationship with the child. For the reasons that follow, I reject that.
Initially in the proceedings, the father had sought that the child live with him because the mother would never support any relationship between he and the child. On the third day of the hearing, the father abandoned that position.
The mother’s position was that she was afraid to return to North Queensland. She sought that any time the father had with the child should be supervised arguing there was an unacceptable risk that the child would be assaulted by the father or indeed, sexually abused. For the reasons that follow, there is no foundation for those concerns.
The power of the Court to make a positive injunction was said to lie in s 114 of the Family Law Act 1975 (Cth) (“the Act”). If it does exist, it is more likely to lie within the powers in s 65D or s 68B of the Act. In Sampson and Hartnett (No 10) (2007) FLC 93-350 the Full Court (Bryant CJ and Warnick J; Kay J dissenting) thought that if there was a power to prevent relocation, it must follow that there was a power to order relocation. It is unnecessary to consider the extent of the power (if it exists). That is because, as was said by the Full Court at paragraph 58:
The proper exercise of such a power is likely to be rare.
The Court went on to say that as the exercise of the power was discretionary, the appropriate case for such orders had to be at the “extreme end” of the range (see paragraph 83).
The discretionary power can be seen in the legislative provision that says that the Court may make such parenting order as it considers proper so long as it is satisfied that it is in the best interests of the child to do so. In relation to the extent of the discretion, no authoritative discussion seems to have taken place as to what is said to be rare or the extreme end of the range. In this case, it is not proper to exercise such a power to force the mother to live in North Queensland. The evidence does not justify such an injunctive order. Much of the foundation for that finding lies in my acceptance of the mother’s evidence about her fear of the father which I find is reasonable and to which I shall turn.
To the extent that I make statements of fact in the following paragraphs, those are findings of fact.

Background

Arising out of the short relationship between Mr Franklin (“the father”) and Ms Kendall (“the mother”) in North Queensland, the child X was born on in 2009. Very shortly after the child was born, the parents ended their relationship. Up until the birth of the child, they lived at a property that they were jointly buying. Money was clearly tight.
After the child’s birth, the mother returned from the hospital to the home but the parties’ relationship was strained. That situation continued until August 2009 when they moved to rented accommodation in Town A for the father’s work commitments. The mother and the child remained there for two months and because of the nature of the father’s work, he was only present for some of the weekends. Around September 2009, the mother and the child returned to the City G area and began living with the maternal grandparents. There was controversy in these proceedings about the nature of the whole of the parties’ relationship and how much time they spent together. I accept it is more probable than not that there were regular occasions when the mother and father were together after the mother returned from Town A. Such was the confusing nature of the relationship that the maternal grandmother gave evidence that the mother wanted the father to stay at times with her at the maternal grandparents’ property. They did not approve of the father and resisted the continuation of the relationship. Their advice was apparently not heeded. Nothing in the evidence suggests there were happy times but the mother and father seemed to tolerate one another.
In April 2010, the mother moved back to the jointly owned property with the child and there she remained until the physical separation on 1 October 2011. It was the mother’s evidence and it was not seriously denied by the father that the relationship between them even over that limited period of time was not good either.
On 1 October 2011, the mother with the father’s knowledge, moved to rented accommodation in City G where she had taken a lease for six months. She did not stay in that house that long. On 28 December 2011, she vanished. In the intervening period of weeks between separation and her disappearance, two things of note occurred. First, the mother applied for, and was granted, a State family violence order. That order was imposed upon the father based on untested evidence and, I accept, was always going to be the subject of a contested hearing. That contest never happened because the mother disappeared. The second thing of note was that during the weeks leading up to Christmas 2011, a mediation conference about parenting roles over the child occurred which was organised by lawyers. These two things need careful consideration because they give some insight into whether or not:
(a)The mother had a foundation for simply vanishing; and
(b)The father then or indeed now was placing the child at risk of physical or psychological harm.

The family violence order

In respect of the family violence order, the mother applied to the local court by application supported by a statement dated 10 October 2011. Most of the specific violent incidents that were contentious in the proceedings before me were not mentioned in that statement. Because of the absence of those precise details, it was submitted by the father and also the Independent Children’s Lawyer that I should draw an adverse inference in these proceedings against the mother. I reject that submission. The family violence statement was prepared by a person described as a domestic violence worker. The mother’s evidence was that she was advised that what she had said was sufficient to obtain the order. I accept that. No doubt that may have been tested had the mother remained in the City G area. There is no doubt however that the mother made general allegations that throughout the relationship, the father had physically assaulted her. To the extent that the father denied both the general and most of the specifics of the violence allegations, I find there is sufficient evidence both as to the facts alleged and his admissions made, for me to accept the mother’s version was true on the balance of probabilities. I return to those issues below on the issue of credit.
The family violence order was made but by the time it finally came before the local court, the mother had left North Queensland and was living in a “shelter” in South Australia.

The mediation conference

In respect of the second issue referred to, a telephone meeting involving the parties and their lawyers occurred on 28 November 2011 apparently under the auspices and control of the local legal aid authorities. A parenting plan was executed. The document was executed between the parties by facsimile transmission.
Both parties had a different perspective not so much about what they agreed upon but rather, as to why they agreed to the terms of the plan. They agreed that the child would spend time with the father on a supervised basis for not less than two hours on each Saturday and Sunday of each alternate weekend. The supervision was to occur at a contact centre. The preamble to that parenting plan said that the father intended to file an application for parenting orders in the Federal Magistrates Court. The father said that he agreed to the limited arrangement because he had not seen the child for two months. The mother agreed to the arrangement because her lawyer (she said), told her that there was no danger to the child despite her protestations about the history of the parties’ relationship.
The parenting plan was not put into effect because, as I have previously discussed, on 28 December, the mother vanished. In the intervening period, the contact centre arrangements were not implemented presumably because of resource issues. There was an attempt to have telephone contact between the father and the child but it was the mother’s evidence which I accept, that he was abusive and frightening. I find that telephone contact would have been problematic bearing in mind that the child was only two and a half years of age so that form of communication would have been limited in any event.

The location of the mother

The father issued his application for parenting orders in the Federal Magistrates Court and it was his evidence that the mother had avoided service. The mother was cross-examined at length in this trial and it was put to her that evidence from a sheriff indicated attempts had been made to serve her and people to whom the sheriff had spoken had said that she was away or on holidays. The mother expressed surprise at all of that and indicated that that had not been the case. Service problems seem to have delayed the commencement of the proceedings in the court but I am not comfortable about making a finding, which is critical of the mother, that she deliberately thwarted the process of the court. I so find because of her evidence which was both elicited and volunteered in cross-examination. She said that the maternal grandfather, with whom she was living, had been contacted by the Queensland police who were investigating a complaint by the father that she had committed criminal offences by applying for a loan in his name. The mother had responded to the police. I accept therefore that very early in 2012, there was a contact point for service of documents. That means that there was little doubt that the mother could be contacted. The various attempts seem to me to have been rather lax. The mother’s evidence about what was then happening was corroborated by the maternal grandfather. Whether substituted service orders were sought by the father was not a matter before me in evidence. In any event, subsequent to the mother leaving the home in 2011, she was a Centrelink recipient. That continued throughout the time she was in Adelaide. There can therefore be no doubt that a location order would have found her quickly.

The first parenting orders

There is also no doubt that the mother had no intention of fostering a relationship between the child and the father when she went to Adelaide. In her view, there was a significant risk of harm to the child.
In 2013, the child and the father were reunited at a contact centre at Adelaide as a result of an order of the Principal Registrar. The mother complied with the order.
The child was two and a half when he had last seen his father and four and a half when he met him again. On that first occasion, there was instant recognition by the child but moments later, he made a statement “You’re not angry anymore”. The expert evidence in this case was that the child’s memory of any trauma could not have been retained except by some facilitation by the mother. In my view, criticism of the mother could only be warranted if there was no foundation for her own personal concerns about her safety and that of the child. For reasons to which I shall turn, I find there is justification for her concern.
The contact centre was in Adelaide. I accept the evidence of the father that a round trip for him for a very short visit under strict supervision was and remains expensive. There was a suggestion that it was costing around $3000 per trip. That was not disputed by the mother. Neither party has funds that would now enable them to make a significant contribution to those costs on more than a limited number of occasions each year. It was the father’s evidence that if the Court made an order that his time was to be in Adelaide, and under the sort of supervision that had prevailed, he would abandon any attempt to have a regular relationship with the child. That view was a little hard to understand because it meant that if the arrangements which would develop the relationship were not to the father’s satisfaction, he would not pursue it. That was not in the child’s interests if it is accepted that he should have some form of relationship with his father. Having regard to what has occurred in the supervised visits at the contact centre, I am satisfied that there is a relationship between the child and his father in which the child is comfortable. Supervision is not necessary but then again, the child is not yet ready for significant overnight periods without his mother.

The parties and the process

In these proceedings, the father was the applicant; he was represented by counsel. He relied upon a series of affidavits that were drawn by his lawyer.
The mother was the respondent; she was without representation. I explained to her the process and am satisfied that she understood. She also relied on a series of affidavits and the annexure to these reasons sets out those details. Much of what she said in the affidavit material was repetitive and therefore when her case began, she confined it to those issues set out in the annexure.
The Court had the benefit and assistance of an Independent Children’s Lawyer who was represented by counsel. Counsel’s task was more expansive than usual because of the lack of representation by the mother and in particular, because of the legal argument associated with the coercive injunction that I earlier mentioned. Counsel did his task helpfully.

The proposals

The initial position of the father is no longer relevant but at all times up until the third day of the hearing, he sought that the child live with him. On the evidence and particularly that of the family consultant, such an order could not have properly been made having regard to the nature of the relationship between the child and the father and the trauma that would have been caused to the child as a consequence of being removed from his mother. I commend the father for taking the position that he did.
At the conclusion of the third day of hearing, the father adopted the position of the Independent Children’s Lawyer which was that the Court should order that the child live with the mother but specifically in City G and that upon her relocation there, a staggered contact regime commence on an unsupervised basis leading up to an almost shared care arrangement.
The mother’s position had initially been that there be no contact between the child and the father but that was ameliorated on the third day when she said that if the time was to be unsupervised between the child and the father, it should occur in South Australia.

Contact in Adelaide?

I accept that the father would find it very difficult but not impossible to make trips to Adelaide personally. To an extent, he is caught in a bind. He has repartnered and has a baby who is now only a few weeks old. He earns a very modest income as a labourer. The bind is obvious. The limited funds available to both parties but particularly the father, limits not only his relationship with the child but also any prospect of a sibling relationship or indeed, one with the father’s new partner. The father’s new partner Ms B never met the child, notwithstanding she attended Adelaide and waited outside the contact centre. The cost of the father flying his whole family to Adelaide would be prohibitive.
The mother lives about an hour out of Adelaide where her parents also live. They have purchased a home. The mother lives in rented accommodation and has taken a lease until May 2015. She too has repartnered. Mr H is a tradesman who works on mining sites where he is flown by his employer. His current employment arrangement means that he is working two weeks on and therefore only available during the two weeks off to continue his relationship with the mother and the child. The father and Mr H have not met. The relationship between Mr H and the child appears sound and secure. The nature of the relationship between the mother and Mr H appears to be one where I consider that it is long term. They have known each other for the best part of a decade having met in North Queensland where Mr H was completing his apprenticeship. The mother’s parents who spend significant periods of time with the child do not enjoy good health in Adelaide but their health prospects would be worse in North Queensland. Their financial position is also not strong. I consider the relationship of the mother and her parents to be an important one. They provide financial and emotional support for the mother. The child benefits from that. I find it is unlikely that it would be beneficial to them to return to North Queensland to support the mother. They also have a good relationship with the child. There is no similar relationship between the child and the paternal grandparents.
The mother is currently a student hoping to become employed in the events planning industry although she has worked in child-care. She is currently studying by distance or correspondence education. She is therefore dependent upon Centrelink benefits because she has adopted an independent stance in relation to Mr H and at the moment, supports herself and the child. She obtains the assistance from the father through child support which she described as irregular until recently. The father earns just over $700 per week take home and out of those funds he supports his new partner and child. I am unsure whether his child support obligation will diminish with the birth of the father’s recent child.
When asked whether or not he knew where the mother could live if she went to City G, the father said he had not made any inquiries.
There is little prospect that the financial position of the mother could be seen to improve by returning to North Queensland. It must be speculation on my part, but it is hard to see how event planning work in which the mother sees her future would have greater opportunities in North Queensland than in Adelaide. Speculation or otherwise, there was no evidence to assist me. That is not to say she could not find other work as she did when she was last in City G but I have no confidence based on any evidence that she could financially support the child other than through government assistance.
The focus of the Independent Children’s Lawyer was on the issue of a relationship between the father and the child being more likely to succeed and be fostered in City G. There are many other considerations such as lifestyle, friendships, financial support, emotional support and accommodation. All of these were tested in the cross-examination by the Independent Children’s Lawyer’s counsel. In most instances, the mother conceded these could be accommodated but I accept barely so. Living in a squatting-type situation with relatives and friends would not be ideal for the child. The mother has some family in City G but they are not close despite a suggestion of the mother to the contrary. Irregular telephone calls and occasional visits with cousins and aunts is hardly a close relationship when compared to that of the mother and the maternal grandparents. I am satisfied that there would be little or no emotional support and certainly little or no financial support from any of them.
Most importantly, if the issue is predominantly about a relationship between the father and the child, these facts do not fit this case into the extreme end of the range of the exercise of the Court’s discretion.
Least it be thought that inquiry was not made of the father about the prospects of his move to Adelaide, cross-examination was extensive. He had made little or no inquiry and given it little or no thought and by the time he was cross-examined, had not discussed it with his partner. He has no connection with Adelaide nor does his partner. He would be resistant to moving to Adelaide and I can understand that.
The most logical place for the parties as adults is where they currently live. This hearing however is focussed on the best interests of the child.
Section 60CA of the Act requires the Court to consider the best interests of the child as the paramount consideration. The emphasis on the word “paramount” must mean that it is not the only consideration. Logic dictates however that there will be an impact upon a child if a parent is resistant to or uncomfortable in the environment in which they are forced to live. That applies whether it is as a result of economic circumstances or, as in this case, the possibility of an injunctive order by the Court. The evidence in this case about the impact on the child was predominantly provided by the family consultant. Her view was that it was important for the child to have a relationship with his father and later in these reasons I shall deal with her evidence in some detail.

The parties as witnesses

The father is not an educated man. He is of large frame and I have no doubt, when angered, would create a frightening impression. His language skills are limited so that words had to be read to him. When frustrated and upset, he resorted to pejorative terms now well-known in our community. He did not impress me as a person who could simply walk away from an argument even though he espoused that now he would as a result of the counselling he had received from Relationships Australia. His partner supported his evidence that there has been no violence in their relationship. Having said that however, I find his understanding of family violence to be limited. He had difficulty expressing himself. I do not consider he would deliberately lie but I do find he had a selective view about his own role in the disputed conflict. To the extent that there was violence, he portrayed that it was mutual. Bearing in mind the matters to which I shall turn in a moment, I find there was no justification for that attitude.
I find that the mother does fear the father. She also produced evidence to show how she is perceived by the father’s acquaintances who were very critical of her on social media around Christmas 2011 for not letting the father see the child. The pejorative language of those statements seems to me to be consistent with the language of the father. They give me little comfort that if an order was made that the mother was to return to North Queensland, she would be welcomed with open arms.
The mother is an educated and articulate person. A careful analysis of her words and her actions must be seen, at face value, to be manipulative, dishonest and deceiving. For example, she agreed she lied to the father and others about being pregnant with twins before the birth of the child, even to the extent of concocting a scan drawn from the internet. Her justification for this scam was that she did it to protect herself from violence from the father. She conceded however that the violence in the relationship commenced after the birth of the child so it is hard to understand her logic. She conceded the father was excited about the possibility of becoming a parent and had gone and purchased clothing. Her lie to the father became a problem so she invented a miscarriage but to add to the complications, she told the father that the twins had been donated to science. Most first-time parents would no doubt be so inextricably bound up in the excitement of the pregnancy that many things, such as attending doctors, would be seen as natural. None of that occurred here. The father did not seem to attend any medical appointments notwithstanding he was told by the mother that she was going when indeed, she was not. The trauma one might consider would normally be associated with a significant miscarriage, particularly of twins, would be manifested in both physical and psychological problems. The evidence does not support a conclusion that the father or indeed his family were conscious of all of that. That may say something about the educational standards of the father and his family but I am not at all comfortable in saying I understood what occurred and why. This incident was used by the father as an indication that the mother was untrustworthy. Notwithstanding other contentious issues, I do not find that it is open to me to draw an adverse credit inference against the mother generally as a result of the twins’ pregnancy scam. Accordingly, in respect of findings as to fact, it is important that each one be examined on its merits. That is so even here where there were admissions made by the father about family violence. Apart from the incident involving the “twins”, I found the mother a plausible witness. She answered all questions and impressed me as having an explanation as to why she feared the father. I found it troubling that there were a number of examples of statements she made that would clearly have been able to be tested and/or corroborated but the evidence was not provided by any party. One such example concerned her allegation about an assault on her by the father with a stick.

The stick assault

The mother said that whilst on the floor, the father hit her with a piece of doweling that was taken from the bedroom window frame. She said he struck her on the side of her body below her armpits at a time when she was simply wearing a singlet. This incident came under scrutiny in cross-examination when she said that the child had asked her on an occasion what her scarring was in those areas.
Both counsel for the father and the Independent Children’s Lawyer put to the mother that the marks on her body were the result of “stretching”. She was cross-examined about the fact that she had lost over 20 kilos in weight and I presume the inference I was asked to draw was that there was a consequential stretching of the skin. She then said that photographs had been taken of the scarring that had been given to the police. No-one had sought discovery of these documents and the police had not been called. Over a luncheon period on the third day of the trial, the mother provided a copy of the email with the photographs she had taken that had been given to the police. Counsel for the Independent Children’s Lawyer like counsel for the father, put to the mother that the marks on her body were “stretch” marks. Again, she denied it. This attack on the mother by both counsel was clearly as to her credit. She produced the photographs when challenged. I am not an expert and there was no other evidence provided to me so there is no logical reason why I should not accept the mother’s evidence.
Accordingly, there was nothing in the mother’s evidence that indicated that I could find her generally unreliable.

The allegations of family violence

The contentious violence

The mother alleged a number of incidents that the father denied. The testing of that evidence was difficult because she was unrepresented but quite properly, counsel for the Independent Children’s Lawyer put each of the incidents to the father. He denied the following:
·Calling the child a “sook”;
·That a “bullet” would solve the problem;
·Disciplining the child physically;
·Using the expression “fucking pathetic”;
·That the mother had hit him in the genitals;
·That there was ever any incident in 2011;
·Calling the child a “spoilt shit”;
·Punching the mother in the arm;
·Calling the mother a selfish bitch;
·Talking about the child and his genitals in a sexual way;
·Ever having been disciplined himself as a child with things such as barbed wire; and
·Jumping out in the dark behind an archway and frightening the mother after she returned from being out.
It is not necessary for me to set out in detail any findings in relation to those matters. In my view, even if they were embellished, they were part of a dysfunctional relationship. In my view there is sufficient evidence to justify a conclusion that the father was violent towards the mother.

The mother’s position in final address

At the conclusion of the final addresses of counsel for the Independent Children’s Lawyer and the father, I asked the mother whether she was persisting with her requirement that the Court make findings in relation to three significant allegations against the father. Those allegations were:
(a)That the child was at risk of being sexually abused by the father both because of the father’s involvement with child pornography and secondly because of his inappropriate touching of the genitals of the child;
(b)The verbal threat that the father made that he would take the child’s life; and
(c)The physical abuse of the child and in particular, a number of incidents in which the father shook the child.
The mother indicated that she had thought about the matters and was not proposing to argue that such findings were still necessary. Be that as it may, it is important that I record my views about them.

Sexual abuse allegations

The allegations of the mother in relation to the child being at risk in his father’s care because of sexual abuse allegations arise from two matters. On a number of occasions, according to the mother’s evidence, she came into the room to find the father watching what she described as child pornography on a computer. Leaving aside my concern about the ability of the father to access a computer because in cross-examination he indicated that if there was to be future Skype communication, he would have to have someone assist him to do it, the evidence of the mother was remarkably vague. She did not make any detailed allegation in her affidavit nor indeed in cross-examination. When I asked her to explain what it was that she thought the father was watching, she said she saw a fully clothed adult and a completely naked child between the ages of seven and eight being touched inappropriately. She was challenged about this by counsel for the Independent Children’s Lawyer because she had made a statement to the police referring to the child or children being of aged ten and upwards. The police have done nothing about that allegation. There is some inconsistency in the evidence about whether the father declined an interview or that no request had been made of the father for an interview. One way or the other, nothing has happened.

It goes without saying that the father denied any such activity. More recently, his partner says there has been no problem in their relationship.
It is one thing to watch pornography and quite another to watch child pornography. It was the maternal grandmother’s evidence which remained unchallenged by counsel for the father in cross-examination that she had seen a number of DVD covers on the floor and when she had commented with concern about it being inappropriate, the father was dismissive of her concerns. The mother’s evidence was more focussed on the child’s sexual abuse issue. What I found difficult was the fact that she continued to reside in the same house and permitted the child to be in his father’s care. Of further concern was the fact that no such allegation about the father’s behaviour was made for a long time until after separation had occurred. At that point, she had the anonymity and protection of having disappeared so she could have gone to the authorities.
It is very serious for a court to make a finding that a person has been involved in, or engaged in, child pornography. Section 140(2) of the Evidence Act 1995 (Cth) provides that in respect of making findings of fact on the balance of probabilities, the Court should be cautious and apply a higher standard of proof depending on the nature of the seriousness of the allegation. I have contemplated the judgment of Dixon J in Briginshaw and Briginshaw (1938) 60 CLR 336 on that point and applied a cautious approach here.
In my view, the evidence would not justify a finding in this case that the father was involved in child pornography. It was because of that statement that I made in discussion with counsel for the Independent Children’s Lawyer that the mother indicated that she would not pursue such a finding against the father. In my view, the child would not be at risk of sexual abuse in his father’s care. I feel comforted by the fact that I have now heard the evidence of the father’s new partner who made clear she would not tolerate any misconduct on the part of the father nor had she seen any in the period of over a year that she had been in his company.

Physical abuse of the child

The foundation for the mother’s assertion that the child was at risk in his father’s care arose predominantly from two areas. The first related to the child being physically manhandled and the second related to being held under his arms and shaken. The father denied any impropriety in respect of the latter but it was clear from the maternal grandmother’s evidence which was supported by the maternal grandfather, that these were actions of the father at play with the child. It was not suggested that there was any malicious intent rather, he had been told by the grandparents that it was not appropriate to shake the child at the very young age that he was. In this day and age, it is hard to imagine any parent not understanding the danger involved in shaking a vulnerable child. I am satisfied in this case however that the father’s conduct arose more out of ignorance and stupidity than any malicious streak arising out of frustration or anger towards the child. In those circumstances, whatever may have happened in the past and again with the benefit of the comfort I draw from the evidence of Ms B, I find there is no longer any risk of physical harm of the child being in the care of his father.
The mother also alleged physical mistreatment of the child but that too seems to be more about poor understanding of parenting obligations than abuse or anger.

The threat to take the child’s life or take him away

There is no doubt in my mind that the father made statements during the relationship out of frustration and anger. The mother said on a number of occasions the father told her he would take the child’s life. Nothing in the evidence supported the conclusion that that was said other than out of a loss of self-control. Having seen the father in evidence, I am satisfied that the evidence of Ms B supports the conclusion that he desperately wants to have a relationship with the child and would be a doting father. The contact centre in South Australia had also witnessed the behaviour of the father and the child and expressed an observation that the father tended to talk in a baby language or in a language equivalent to that of the child. Bearing in mind the time that had elapsed since he had last seen the child and that he knew very little about him, it is not surprising at all that the father would have little understanding of the needs of a child of the child’s age. Statements therefore said in anger about threats to the safety of the child seem more consistent to me with the evidence that I will shortly address that were made by the father to hurt the mother. Accordingly, I find that there is no risk that the father would do anything to endanger the life of the child in the way described by the mother.

Physical abuse of the mother

I indicated in final address discussion that I would have difficulty making a general finding of credit against the mother despite being so urged by counsel for the Independent Children’s Lawyer. In my view, it is more important to take each of the incidents alleged sequentially.

Eye damage to the mother

The mother gave evidence that in one incident, the father and she were sitting on a couch and he lent into her applying pressure to the side of her face. She described hearing a popping sound. When pressed, the father’s explanation for what occurred was that there was an argument and he “tapped” the mother’s check. A better explanation that he later gave was that he slapped her. In what was a curious explanation, the father later described applying ice to the mother’s face because when she came back into the house after an absence of some 30 minutes having left it, she was bleeding and he apologised.
The perception that I understood the father wanted the Court to infer was that there had been an argument in which each party was giving as good as they got and he brought it to an end by simply gently slapping the mother’s face. The implausibility of that explanation can be seen in two things. First there is the evidence of his subsequent apology and the need to put ice on the mother’s face. A gentle slap seems inconsistent with any sort of damage. The second and more important observation is that the mother gave evidence that since moving to Adelaide, she has had specialist medical treatment for neurological damage. No other evidence was led and no other explanation was proffered as to why the mother should have such a significant physical problem. To a large degree, her father corroborated the fact that he knew there was a problem with her eye. The mother said that she could no longer close her eye which created a problem at night requiring her to wear a patch.
To the extent that the father wished the Court to accept that this was a simple family argument, I reject that. This was a violent incident and the consequences are now being suffered by the mother. That incident is a part of the justification for her fear of the father and in particular, her fear of having to return to live in the City G area.

The carpet drag

Another incident which was disputed as to its extent related to injuries that the mother suffered when her skin was chaffed by carpet burns. The precise circumstances of the incident do not matter. At one level, the father conceded that he had dragged the mother from the bed and the mother’s evidence was that as a result of being dragged, she suffered carpet burns. When this incident occurred, the parties were living in the one house but on any view of the relationship, they were not united in their relationship. Having regard to the physical capacities of the father, whatever caused the incident, his behaviour was unjustified and again, contributed to the mother’s fear.

The dumbbell incident

There was a dispute between the parties about how a hand weight hit and became stuck in a wooden door. It was the mother’s version that in a heated exchange, the father threw the weight at her and, had she not managed to get the door in the way, the weight would have hit her. The father’s explanation was that he did not throw the weight at the mother at all but threw it and it lodged in the door out of frustration as a result of what he was hearing. Doing the best I can on the balance of probabilities, it seems that this arose because of a telephone call from a finance company with respect to payments not being made. The father gave the impression that he had given the responsibility of the financing of the household to the mother and she had let him down. It seems however that he was already cognisant of the fact that there was at least $2000 in arrears but was somewhat surprised when he found out that it was $4000. I could not accept that such a matter could give justification for his reaction.
The loss of his temper and the frustration gave rise to the throwing of the weight. I accept the mother’s evidence that had the door not intervened, she may very well have been hit. Again, the foundation for the mother’s fear ought be obvious.

The father throws a knife

Another incident between the parties of some concern related to a knife being thrown by the father. It was the mother’s allegation that he picked up a knife and threw it at a table used by the child and it went through it. The father’s explanation was that it was a pocket knife and out of frustration, he threw it but without causing any damage. Bearing in mind my earlier comments about his volatility, having regard to the fact that he made the admission that he did throw the object, I have little doubt that the mother’s version is correct. As with the other matters, this adds to the foundation of her fear.

The extent of the father’s concession about violence

The father was emphatic in cross-examination that he had never been violent to the mother. When pressed about whether he would concede that there had been something if not physical violence, he said there was “some yelling”. It was put to him by counsel for the Independent Children’s Lawyer that the relationship was volatile. He did not understand the meaning of the word and I suggested it be substituted with the word explosive. Counsel then asked him the same question and somewhat surprisingly, the father acknowledged that he went to Relationships Australia and the counsellor “…” described the relationship as toxic. He then admitted that when debt collectors came to the house, it did get explosive and there was yelling. That was not the only “yelling” incident as I shall describe one below which brought about the physical separation. At the conclusion of the father’s cross-examination by counsel for the Independent Children’s Lawyer, his own counsel re-examined him. It was at that point that he explained the financial problems and his understanding of the confusion about how much was actually owed. He repeated at that time that he thought the relationship was toxic but he also conceded that his behaviour was an excessive reaction. It is therefore largely unsurprising that the mother was and remains in fear of his reaction. This was one of the bases upon which she portrayed to the Court her concern about the father being in control of the child. I accept that the father is a volatile person but I also accept the evidence of his partner Ms B that things have calmed down substantially. I say substantially because Ms B told the Court there had been arguments but she seemed to manage them.
I do not accept the father’s suggestion that the mother gave as much as she got. Family violence is insidious and this is an example where the consequences are fear and a complete loss of faith and trust in the relationship or partnership.

The bath incident

One significant dispute between the parties related to the child injuring himself at the age of approximately two years where he got out of the bath and fell. The versions of the parties could not be more stark.
The mother said that she was in the kitchen cooking whilst the child was in the bath. She claimed the father was in charge of the child at that time. Her evidence was that she saw the father absent from the bathroom and immediately went to the child on the basis that at his age, he should not have been left alone in a bath. It was at that point the child was getting out of the bath, slipped and fell.
By contrast, it was the father’s version that the mother was in the bathroom and the child fell and he came in to assist. I consider the mother’s version to be the more plausible. I do so for two reasons. There is little doubt in my mind that the mother was the predominant carer of the child and it would be most unlikely based on any other evidence I heard that she would have left the child unattended or permit him to get out of the bath.
The second and more important reason is that the father was asked to explain the injury. He said that it was a small cut just below the eye. He said there was a little bit of blood but it was nothing to be concerned about. The mother described an entirely different injury. She said the injury was above the eye but below the eyebrow and not only was there a lot of blood but there is now scarring albeit modest.
Nothing I heard suggested that the mother was not a conscientious and caring parent. I could not say the same about the father. I have the unchallenged evidence of a maternal grandparent that at least on one occasion upon arrival at the father’s house prior to the mother returning home from work, the child was found playing at the front whilst his father was at the back. I have the largely uncontroversial evidence of the father shaking the child. Whilst those incidents were denied by the father, my view is that the evidence of the grandparents was plausible and acceptable. No other criticism was made of the mother as a parent. I find therefore it is inconceivable that the mother would have taken a risk with the child as seemed to have been suggested by the father.
Accidents clearly do happen to children. I accept they cannot be left alone for a split second at that very vulnerable age. I do not criticise the father for his limited parenting skills but rather find that the mother’s foundation for concern about the care of the child has until at least now, been well justified.

The night before the child’s second birthday

By mid 2011, there is little doubt that the relationship between the parties was poor. Whilst there was some controversy about whether they had separated albeit under the one roof, there can be little doubt that the relationship was hardly a cooperative union. In that setting, a young male came to the house to be met at the door by the father. In a very brusque way, the father asked what he wanted. On the father’s evidence which I accept, this young man said that he had come to collect his “girlfriend”. It was the father’s evidence that he then berated the visitor telling him that the mother was indeed his girlfriend. That description was hardly accurate.
Counsel for the Independent Children’s Lawyer asked the father whether he swore at this visitor. He said that he told this young man to “fuck off” and “go home”. He then told me that he was sorry for this man meaning that this person was pathetic pursuing some relationship with the mother who was much older. It was as a result of this young man’s visit that he decided that it was time to break up. He said that he did not accuse the mother of lying but he “probably called her a fucking, cheating bitch”. In his affidavit, the father said that the mother went out that night but I reject that as being inconsistent with his oral evidence. He conceded that he had berated the mother. He said that he “probably” told her to “fucking go to your parents”. He then conceded that he rang the maternal grandfather to tell him that his daughter had been “cheating” on him. That evidence was hardly controversial because it was corroborated by the maternal grandfather. In addition, the father conceded that on this particular night, he broke the mother’s mobile telephone. If I accepted the father’s version, leaving aside the lack of clarity in the affidavit, one would have to accept that this was the straw that broke the camel’s back and having berated the mother, the night otherwise ended without controversy. I do not accept that.
The mother’s version was starkly different. She said that the father came into her bedroom where she was asleep and dragged her from the bed, pushing her to the floor where he kicked her. She alleged that he then picked up the piece of dowel that was used to hold up a window frame and struck her body and particularly in the sides of her body underneath the arms. I have earlier dealt with this incident and I find that he did assault her and that the injuries that she portrayed were indeed as a result of that assault. It was an appalling piece of violence. It was the mother’s evidence that this all ended as dawn was breaking. She was challenged about that having regard to the duration over which it had occurred. I accept that it did take a long time and I accept that she was injured. It did the father no credit that he instructed his counsel to put to her that the injuries that she had portrayed were “stretch marks”. Those injuries were received in the assault. That incident might have been explained by the father as having occurred in the throes of the ending of their relationship and her “cheating” on him but they could never be justified as the father was endeavouring to do.

Conclusion about fear and violence

It was the mother’s case right to the end that she resisted being ordered to return to North Queensland because of the fear of the father and his family. Based on the incidents above, I find she is justified in having a reasonable fear of the father. But what then of his family?
No evidence was called from the father’s family about their view of the mother. Initially, the father relied on an affidavit by his mother which simply portrayed a picture that there had not been any indication of any impropriety. That evidence was ultimately not relied upon and therefore I do not take it into account. I do however have the evidence of the mother’s parents. They had observed disturbing things such as bruising all of which when the mother was challenged by them, she brushed off. At one period I have already described, after she returned from Town A, she had the audacity to suggest to her parents that the father should move in with her and they refused. In something of what might be described as coy evidence, the maternal grandmother indicated her disdain for the father’s loudness or more appropriately in my words, loutish behaviour. In my view, the concern of the maternal grandparents was well justified.
Persistence in maintaining some form of relationship even where it is violent and tragic is well known in this Court. It is not necessary for me to make any finding about why the mother stayed even though counsel for the Independent Children’s Lawyer was highly critical of her for so remaining. The father described the relationship as toxic and I would describe it as dysfunctional The father’s concession to the family consultant that they should have gone to counselling indicated that he just allowed the problem to fester.
Subsequent to the separation in October 2011, the mother was subjected to written abuse through the Facebook medium. The mother pointed to that as an indication of how she would be viewed if she returned to the City G area. To some extent, the father seemed to be putting that evidence as an indication that the mother deserved criticism because she was refusing not only contact on Christmas Day between he and the child but also her defiance in the face of the parenting plan that had been executed only on 28 November 2011. Whatever may have been the justification for the mother’s position, it was clear that a number of people known to both the mother and the father would have sided with the father. It may be a sad reflection on the company that the father was keeping but to go into print through the Facebook medium I find would have been quite frightening for the mother.

It was the mother’s evidence, that having seen that material, she made the choice to flee because she felt fearful for the safety of the child. In final address, counsel for the father made clear that there had been no similar behaviour since separation and I was left with little doubt that there was an implied criticism of the mother for having simply disappeared.
All of the incidents to which I have just referred justify a finding that the mother was frightened and saw little choice but to leave North Queensland. As her fear could not be said to have been unfounded, it would be unsurprising therefore that she still harbours that concern. In my view, that is a sound basis to find that it would not be proper to order her to return to City G at this time.

Why cannot the father go to Adelaide?

It had never seriously been contemplated in these proceedings that the father would move to Adelaide. His case had always been on the basis that the child should live with him.
In his evidence in chief, and not in his affidavit, the father was asked about what inquiries he had made about the mother moving to City G. He said he had not made any but when asked what he could do to assist he thought he might be able to pay for some of the flights. To do so however, he would have to ask his grandmother. He had not done so. Whether his grandmother had the capacity to finance such a trip was something he did not know.
There is some significance in all of this evidence because in a very careful cross-examination of the mother, counsel for the Independent Children’s Lawyer put to her a variety of scenarios all of which were premised upon her obtaining accommodation with the assistance of other people. There was a certain irony about that bearing in mind that the father had made no such inquiries himself.
When pressed, the father volunteered that he might be able to provide the mother with his house and he would move to live with his parents. It took very little time for the impracticability for that to be uncovered bearing in mind his new partner had a seven week old baby. There was certainly no evidence produced by his parents to say they would support such a concept.
As for Adelaide, the father was clear that he thought supervised contact would be traumatic for the child. With some insight, he indicated that he knew that the mother’s new partner was present and all of this would be very confusing. He said he would therefore stop the relationship with the child if the time in Adelaide had to continue to be supervised. He was asked if supervision in Adelaide was a concept ordered whether he could undertake that with the mother’s parents but he said that he had little or no relationship with them.
The majority of the father’s evidence about his incapacity to go to Adelaide revolved around finances. He did not see a way in which he could solve the problem. He thought that whilst money could be set aside, if he had to go to Adelaide to live, it would be uprooting his fiancé’s family as well. Most importantly however, he said that there were all these restraining orders on him and he thought that if he went to Adelaide, it (presumably the restraining orders) would “turn” on him.
The father’s perception of the financial position was far more pessimistic than that of his partner Ms B. In a very moving piece of evidence, she said that there had been an argument between she and the father over the cost associated with his trips to the contact centre in 2013 because money that she or they had saved for their wedding had to be quarantined for that contact centre trip. She made reference to the fact that painting of their house had to be changed but she had no doubt that the father’s relationship with the child was far more important than any of those issues. She candidly observed that she did not care whether she got married now. Counsel for the Independent Children’s Lawyer in final submissions said that I should find Ms B a very credible witness. I agree.

The evidence of Ms B

Ms B made clear she supported the father but also impressed as very sensible. She is a childcare worker with extensive experience and clearly understands the needs of children. She was able to tell me about the child’s concentration span at his age, not to mention the problems that would beset her household if the child was suddenly living there and wanted his mother. I asked her whether she was prepared to open a dialogue with the mother and she indicated she would. During a break in the court proceedings, the two women met and the impression was left that they had begun some dialogue. That must be fostered and encouraged for the sake of the child.
I am satisfied that Ms B would never tolerate violence nor permit the child to be at risk. The mother suggested in final address that they could perhaps open the relationship between the child and Ms B by having a meeting in City G prior to any serious relationship between the father and the child in City G commencing. Nothing I heard from Ms B would suggest that she would not agree with such a concept and again, it ought to be encouraged for the sake of the child. I propose to build on that.
There is little doubt that the father’s new family will find it very difficult to save money but Ms B impressed me as being a very good manager. Whilst they have debts, all of those are under control presumably with her business acumen. She impressed me by indicating that she had little doubt that if money had to be contributed towards the trip to Adelaide, it would be organised.
The father currently pays child support which seems to be in the vicinity of $75 per week. Whilst the mother complained that that had been somewhat irregular early in the piece, it is now more regular. She is not spending that money. As soon as it arrives in her bank account, she withdraws the respective amount and puts it in a tin. She was unable to say how much was in the tin at the moment but on any view, it must be about $1500. That being so, when I asked her in final address how she would see the future development of a relationship, the mother indicated that she would contribute towards the costs both initially and then on a regular basis. That could ameliorate some of the father’s impecuniosity so that he could contribute in a real way in the future. In addition, the father’s new partner has a desire to run her own business and that had been considered in some detail even to the extent of the relevant hourly rates per child that could be earned.
Thus, despite the father’s inability to see any way through the financial fog, his new partner was positive and impressive that she would organise it because of the importance of the relationship. Her similar approach was seen about organising Skype communications.
In my view, notwithstanding the doom and gloom associated with the financial position of the father, he can well afford under the careful guidance of his partner, to contribute towards the travelling costs in Adelaide. I reject any suggestion therefore that the only way a relationship can continue between the father and the child is if it is in City G.

The importance of the relationship between the father and the child

The evidence of Ms Q

Ms Q is a family consultant with qualifications in social work. No party challenged her expertise. In this case, she undertook two reports of which the latest was completed in June 2014. She not only interviewed both parents but also the mother’s partner. She also read an extensive list of affidavit material much of which was repetitive and ultimately unnecessary. She checked material in various subpoenae none of which was used in evidence in any way. Despite that, no party challenged the opinions of Ms Q.
It was in the interview at the end of May 2014 that the father said that he hoped that the mother would return to live in City G so that they could have an equal time arrangement. Bearing in mind the nature of the relationship between the parties, that was impracticable as it was implausible. The father’s reaction however was that in the event that that was not to occur, he wanted the child to live with him. I find that showed poor insight into the needs of the child.
Ms Q clearly had a good perception of the problem but at that time, the father was saying that if the child remained in South Australia, he envisaged an arrangement where the child went to North Queensland for the majority of school holidays. Bearing in mind the father was cross-examined only six weeks later and had a very pessimistic view about the practicability of a continued relationship in Adelaide, I am not sure what Ms Q was being told.
Ms Q spoke to the mother and pressed her about the prospect of moving to North Queensland if the child lived with his father. She told Ms Q that she did not think her parents would be able to afford to return to City G and there would be problems with her partner because of work and needing to live in a capital city. Save as to the partner, much of that evidence was borne out by the maternal grandparents who gave evidence.
In assessing the father, Ms Q had the impression that he really wanted the child to live with the mother and that he understood how distressing it might be for the child to be parted from her. Until the trial began, he persisted with the opposite position. Ms Q thought that the father had significant affection for the child, sensitivity to his needs and had a high commitment towards a relationship. Her clear recommendation was that the child should remain living with his mother. With all of that evidence in his hands, I accept that the mother’s lack of trust in the father and uncertainty about moving back to City G could be well understood. The sudden change in the middle of the trial abandoning the question of his residence application would not have given the mother much confidence.
Equally importantly, Ms Q reported that she canvassed with the father the issues of violence. She noted that the father reported that the time in which it was said to have occurred was stressful and that “in hindsight” he should have sought some counselling with the mother. He described his thinking as perceiving the violence between them to be largely related to the stress they were experiencing at the time. Significantly also, he thought he should have ended the relationship much sooner because it had not been good for the child to witness. That was an admission that the relationship had not been functional and that the child had been exposed to family violence. In her evaluation, Ms Q noted that there had been no further reported incidents of violence or any indication that the mother was at risk from the father.
It was Ms Q’s view that from the information she received, any violence between them was likely to have been a reaction to mutual conflict and considerable stress during their relationship and there did not appear to be coercive control by the father. Having heard the evidence, I reject that proposition.
Ms Q said that it was her assessment that there was a low risk of violence occurring between the parents but having regard to the potential for misinterpretations between them, contact was best avoided. That statement does not auger well for the mother to return to North Queensland and live in a close proximity to the father for the purposes of the child having a relationship. I reject the suggestion of Ms Q that this was simply mutual conflict. On that basis, I have concerns about the mother being in the City G area under compulsion.
Ms Q examined the mother’s attitude to a future relationship between the child and the father and noted the mother’s belief that the child would not cope emotionally and Ms B would not be able to protect the child. Having said that, all of the evidence of the contact centre suggests that the relationship is there and it has gone well.
Ms Q asked the mother about moving to North Queensland and was of the view that the mother did not believe it would happen. It was only under significant cross-examination by counsel for the Independent Children’s Lawyer that the mother conceded that whilst it would be difficult, she could move there and restart her life. Thus, the mother had had some weeks to contemplate the issue that was raised by Ms Q, it was only under cross-examination that she began to consider it.
Ms Q had no concerns about the child being with his father. There was clear delight and recognition. Ms Q noted an occasional hug of the father which was spontaneous as well as responsive to the father’s request. That was important because it was Ms Q’s view that the child had accepted the reintroduction of his father and was familiar and affectionate towards him.
The evidence showed that the child made statements indicating that he understood his father had been violent in the past. It was Ms Q’s view that the memory that far back for the child could not have occurred without facilitation by the mother. That evidence was tested over the trial and whilst I accept that that is the opinion of Ms Q, the evidence of the mother, her partner and her parents indicated that no such facilitation or manipulation in any sinister way had occurred. In particular, the maternal grandparents had no idea about what they were to be cross-examined and each made clear that they had not heard any discussion about the subject. That is not to say that the child may not have heard such a discussion. Accordingly, I am reluctant to say that the child would not have remembered specific incidents without being reminded or coached. Ms Q noted the father’s concession that the child had witnessed those incidents.
Whilst the child was happy with his father, recognised him and was content to be with him, if the mother is hesitant or resistant to the relationship between the father and the child, it will not flourish. Ms Q pointed out some doubts about the mother’s propensity to support a relationship between the child and the father. Having regard to my earlier findings about the behaviour of the father, I find that the reticence of the mother is understandable.
There can be no doubt about the expert opinion of Ms Q as to the consequences of the child not having a relationship with his father. Issues such as identity and self-worth along with developing relationships are well understood from the social science. Ms Q was of the view that it was important for the relationship to be fostered because if the opposite message was given, the child would understand that there was a part of him that was not worthwhile. That created problems into adolescence when the child would begin the process of separating from his family and asserting his own individuality.
In her evidence, Ms Q said that there should be time between father and the child particularly in relation to school holiday periods as soon as possible building up to block periods but there should also be weekly communication via Skype. Having heard the evidence of Ms B, I am convinced that she will be a willing participant to assist the father. It remains to be seen how committed the mother is to that arrangement but she too in final submission indicated that she would make it work.

The evidence of Mr H

Mr H is the partner of the mother. He is a tradesman who currently works in the mines. He works on heavy machinery and flies in and out and is absent from the mother’s household for up to two weeks at a time. He was required for cross-examination because of what role he would play if the mother returned to North Queensland.
Mr H said that he was in the relationship for the long haul and he had a very close relationship with the child. I accept that he is a very genuine person. He indicated that he did not know that his job would be available for him if he moved to City G but he certainly would endeavour to go and be supportive of the mother.
I questioned him about the prospect of having some relationship with the father but he was naturally reticent to make any commitment. He knows nothing of that situation other than what the mother has told him but it must be obvious that he will have a significant role in the child’s life and if the child is to have the entitlements of having a part in his father’s life, sooner or later these two men need to work out their relationship in a responsible way for the child’s sake.
I was impressed with Mr H having regard to the responsibilities he would be taking on particularly commencing a new life albeit where he had been before but at a significant financial cost. The child will be much better for having Mr H in his life particularly if the father accepts that there is an important part for him to play.

The legal issues

In AMS v AIF (1999) 199 CLR 160, Hayne J observed that the complexity and difficulty of the inquiries that the Court had to make increased when a parent’s wish to move was expressed conditionally. His Honour was referring to the situation in which a mother was effectively put on the spot and asked if she would still relocate if a child could not go with her. That is not the situation here because the father no longer seeks that the child live with him but a very significant portion of cross-examination of the mother was about whether she could move to City G. Every one of her answers was a conditional answer. She could do those things but there was a downside to most of those steps. I approach the issue therefore on the basis of the practicality as well as how it would work if not enthusiastically embraced by the mother. As Hayne J observed, the inquiry must not be distracted from the proposal that would best promote the welfare of the child.
Section 60CA of the Act requires the Court in deciding whether to make a particular parenting order, to regard the best interests of the child as the paramount consideration. The use of the word “paramount” must mean that there are other considerations as well but the best interests of the child must take precedence.
I have proposed to make a parenting order in relation to the child and thus, there is a presumption (s 61DA) that it is in his best interests that his parents have equal shared parental responsibility. It will be noted in this case that each party sought sole parental responsibility. The presumption does not apply if a court finds that one or both of the parents has engaged in family violence (s 61DA(2)). I have found that in this case. The presumption must therefore be rebutted. Even if that were not the case, s 61DA(4) provides that if it is not in the best interests of the child that his parents have equal shared parental responsibility, the presumption may be rebutted. The best test of whether or not the parties can make any decisions about the child, let alone major long term decisions, lies in the definition in s 65DAC. There, the Act provides a clear guide as to the requirements in law that fall on a parent if an order for equal shared parental responsibility is made. There can be no doubt on the evidence that the parents not only do not communicate but are unlikely to in the future. Even when each of them was tested under significant cross-examination, neither really saw how it could work other than in a perfunctory way.
To determine what is in the best interests of a child, the Court is required to consider the factors set out in s 60CC of the Act. Those factors have to be considered in the light of not only the philosophical guide set out in s 60B but also in the context of the respective proposals of the parties. With the abandonment of the residence claim by the father, the proposals (in principle), relate to whether the child should live in Adelaide or in North Queensland. Many of those s 60CC factors therefore are unlikely to be helpful or persuasive. In Sealey and Archer [2008] FamCAFC 142, the Full Court observed that whilst the considerations are mandatory, the order of contemplation of them is not.

Section 60CC(2) sets out the primary considerations. These proceedings were filed prior to the amendments to s 60CC in Part VII of the Act that took effect on 7 June 2012. Consequently, the provisions in force immediately before that date continue to apply. Needless to say however, even though there has been argument about the “twin pillars” and the need to ensure that a child benefits from a meaningful relationship, there can be little doubt that a relationship of any kind between a parent and a child will be strained if there is open conflict between the parents. It is important for the Court to protect the child from the prospect of being exposed to family violence even taking into account the definition in the Act as applied prior to June 2012. As I have earlier found, the mother holds a reasonable fear of the father. The weight to be given to that consideration therefore is significant when it comes to the question of where the child should live.
Both counsel for the Independent Children’s Lawyer and for the father submitted that it was important that the mother be in City G so that the father could have a meaningful relationship with the child. As I observed at the time, the question that must be asked is not whether there will be a meaningful relationship but whether or not the child will benefit from having a meaningful relationship. There is a limited relationship between the father and the child at the moment but a very significant closeness between the child and the mother. The child will benefit from the relationship with his father if he gains from his father the sort of things that I expressed in Loddington and Derringford (No 2) [2008] FamCA 925. At the moment, having regard to the nature of the relationship between the child and the father, it is hard to estimate how the child will benefit. The family consultant indicated that there were benefits in the long-term for the child and I have already referred to those. There is little doubt that there is importance in the child having that relationship with his father but it is similarly important that he benefits from having an understanding of his father’s values, approach to life and that he feels secure that his father will care for him and encourage him. Much of the evidence in this trial related to what went wrong in the relationship and little concentration was placed on what was good about the relationship between the child and his father. That must be the case bearing in mind that at the time the child left North Queensland, he was only two and a half years of age. The difficulty is in trying to evaluate what the child will gain from his father whether it is in City G or Adelaide. On any view, that relationship is going to be tentative until the child is comfortable. Initially therefore, the child will be more likely to play and be involved in leisure activities with his father similar to what occurred in the contact centre. The child knows nothing of his father’s life and he could not be expected to remember.
Section 60CC requires the Court to contemplate what the benefit would be if an order was made. I propose to make an order for periodic visits which will require both parties to be involved but also for regular Skype activity. The father’s partner clearly understood what that was about and its usefulness to a child of X’s age. The child can therefore benefit from knowing about who his father is and what his values and interests are but only on the basis that that communication is undertaken regularly.
At the moment, the best evidence I have is from the family consultant who has indicated what the long-term benefits are but without the foundations being laid for the sort of things that I have just mentioned, the child will miss out on those important entitlements that all children have. The foundations must be set early and in my view, whether that occurs in City G or Adelaide, depends upon the effort of the parent. In this case, I find that those benefits can be achieved if the child lives in Adelaide providing both parents continue to foster what is only just starting to unfold.
There was much cynicism from the father’s perspective about how the Court should view the mother’s intention to foster that relationship and so too, counsel for the Independent Children’s Lawyer submitted that it would be better if the child was in City G so that proximity would enable the father to participate in the sort of things that I have just earlier mentioned. I reject the position of the Independent Children’s Lawyer and that of the father. I find on the evidence that the mother has made it clear she sees benefit for the child in having time and a relationship with his father whilst acknowledging that there is a long way to go. The whole foundation of her reticence has been as a result of the destructive nature of the relationship between the parents leaving aside her concerns about the child’s safety all of which I found reasonable. In those circumstances, the prospect of the child benefitting from a meaningful relationship can occur as much in Adelaide as it can in City G.
The Court also is required to consider a number of other matters in s 60CC. It is important again to stress that the inquiry here is about a child’s best interests. I have already made findings about family violence. The handover in this case can be resolved by the parties either being in a contact centre for that purpose or at a neutral place such as a McDonalds. The mother seemed comfortable with that arrangement.
No party argued that I should contemplate the views of the child in this case and having regard to his age, that is sensible. His views can be detected from what he says and what he does as well. He seemed happy to see his father and rarely went looking for his mother during the supervised visits. The excitement that he showed indicated that he wanted contact with his father. None of that assists me to determine the question of where he should live geographically.
It is uncontroversial that the family consultant wanted the relationship between the child and the father encouraged if not expedited. There are clearly geographic problems associated with that but in my view, as the foundation of the relationship was tentative, the Skype communication can enhance and develop it. There is no question in my mind about the nature of the relationship between the child and his mother. The evidence of the maternal grandparents indicates that the child feels more comfortable sleeping at their house with one of them in the room so he is not yet completely independent. The father will need to be cautious about pushing the relationship too quickly. Notwithstanding the evidence of the family consultant, I intend this regime to begin cautiously. I return to that below.
Similarly in respect of capacity as a parent, there is no doubt that the mother provides for the child’s physical, intellectual and emotional needs. Whilst the father said that as a very young baby, the child was cared for by him, having regard to the very short period of the relationship, I have very little understanding of his capacity as a parent. The father knows nothing about the child’s needs other than what he has been told and what he has experienced in the contact centre. Ms B has significant experience as a childcare worker as well as the knowledge of the father as a parent. The mother should take comfort that Ms B was very positive about assisting the father to develop those skills. The father has problems associated with educational issues but Ms B no doubt will fill the void.
This case has really been about the practical difficulty and the expense associated with how any orders would be implemented. Having regard to the evidence of Ms B and the submissions of the mother about her willingness to assist, I consider that the submissions of counsel for the father and indeed supported by counsel for the Independent Children’s Lawyer that the only way a relationship will occur is in City G really have little weight. Ms B indicated a willingness to put aside household finances to ensure the father’s relationship was enhanced. The father has recently paid child support and the money is being stockpiled rather than used for the child’s current benefit. That money can now be used to assist in travel.
The geographical problem of travelling between Adelaide and North Queensland is clearly a significant impediment to regular physical contact that might otherwise be overcome if the mother lived in City G. I am very conscious of the fact that travel between Adelaide and North Queensland requires not only driving to the Adelaide airport, a significant wait for the flight to depart and then the connection in Brisbane. The problem is compounded by the fact that because of the child’s age, an adult must go with him. It is impossible to envisage a turnaround in Brisbane or City G for a parent delivering the child. Those problems however can be overcome by the mother’s cooperation which she has offered so that the child can understand and be comfortable in the City G environment initially.
The family consultant thought that time should be extended and expedited and therefore in a very short space of time, school holidays should not be a problem. Having regard to the fact that the child does not know City G and is not entirely comfortable to be alone in a strange environment, a concept clearly understood and advocated by Ms B, it may be that the school holidays should start slowly and build up but the child also needs to meet and feel comfortable with Ms B. In my view, about one year should suffice for some normalising and lengthy periods of contact time working successfully. Balancing the settlement of the child against the inconvenience and the expense of the travel, the settling process is by far the most important. I am satisfied on the evidence that notwithstanding the paucity of money in both households, each of the women in those households is willing to budget for the necessary costs. I am comforted too by the mother’s new partner being supportive of the mother and the child and at the moment, he contributes very little other than his own keep and perhaps that is something that the mother might contemplate reviewing. If that was to occur, or she completed her studies and began successful employment, the expense problem would be ameliorated immediately.
Whilst the mother indicated that child support was only now beginning to be paid regularly, that was not canvassed in any detail in the hearing. Just why the father was not paying regularly remains unknown but the mother acknowledged that for most of this year, the payments have been $75 per week which includes arrears. That is now being paid and the father is to be commended for that even if it is to be reduced by virtue of the birth of his new child. No doubt too, that will need to be revisited if the travel expenses are taken into account by the Child Support Agency. In my view, the evidence supports the conclusion that the father wants to be a responsible parent and will make the payments. He must also take into account that children need to be fed and clothed and that is a responsibility he has even if he is not seeing the child on a regular basis. Again, I am comforted by the very level headed and positive evidence of Ms B about trying to make all of that work.
On the negative side, much of this case was about the mother’s disappearance from the North Queensland area. One of the factors in s 60CC concerns the question of the responsibilities of parenthood. The inference I understood the father wanted me to draw was that the mother was irresponsible as a parent by vanishing and excluding him from the child’s life. I am not prepared to draw such an inference against the mother because of the issues associated with her fears that I have accepted but so too the evidence supports a conclusion that the father would have been able to find her through her father whose telephone number he had. Whilst the father acknowledged that he had no close relationship with the maternal grandfather, it seems that he was not all that excited about trying to find him either. It would not have been difficult for the father to find out where the mother’s parents had gone and indeed, on the evidence, he reported the mother to the local police for the purposes of some fraud investigation and the point of contact for the mother was the maternal grandfather. Nothing was said in evidence about how difficult the legal process was even if there was some concentration upon affidavits of service (or inability to serve) that were put to the mother. I have the evidence of the maternal grandfather who indicated that he did not tell his daughter that people were looking for her because it would have distressed her. I accept that.
Whilst it might be said that the mother was irresponsible by completely excluding the father, it is not an overwhelming factor in this case to justify an order of the rare and extreme nature referred to in the authorities to which I had my attention drawn.
There is a real prospect in this case that a relationship between the child and his father can be enhanced and the child can benefit from it in the long run. No-one should be under any misapprehension that it will be a slow process but the responsibilities for its success lie with the parents, not with the child. Nothing I heard convinced me that having the child live in City G would hasten the depth of that relationship nor indeed, sadly, its success. On that basis, I see no reason why the child should not live with his mother in the Adelaide area. Two important conditions however must follow. The first is that there is a prospect of face to face contact between the child and his father whilst at the same time regular improvements in the relationship through electronic means. In my view, those are the orders that best promote the child’s welfare.
The orders are therefore set out at the commencement of these reasons.
I specifically draw the mother’s attention to the obligations she has arising out of these orders. The form attached to the orders describes those obligations. I stress her obligation to be proactive about making this relationship work for the child.

ANNEXURE

AFFIDAVITS RELIED UPON BY THE FATHER

The father filed 23.2.2012
The father filed 26.9.2013
The father filed 11.10.2013
Ms B filed 8.7.2013

AFFIDAVITS RELIED UPON BY THE MOTHER

The mother filed 18.10.2012 (Paras 22-25, 36, 39-55, 57, 60-73, 75-76, 90-96 and 99)
The mother filed 26.9.2013 (Paras 13, 15, 16, 18-20, 27, 30-62, 64-65, 68, 70-73, 75, 84-85
Maternal grandmother filed 18.10.2012 and 7.3.2013
Maternal grandfather filed 18.10.2012 and 7.3.2013

The mother also relied upon evidence viva voce from Ms V and Mr H

The Independent Children’s Lawyer relied upon the reports of Family Consultant Ms Q

I certify that the preceding One Hundred and Thirty Five (135) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 27 August 2014.

Associate:

Date: 27 August 2014

[2014] FamCA 691

27 August 2014

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Injunction

Procedural Fairness

Costs

Remedies