Galena and Samford

[2020] FCCA 2138

FEDERAL CIRCUIT COURT OF AUSTRALIA

GALENA & SAMFORD [2020] FCCA 2138

Catchwords:
FAMILY LAW – Parenting – final orders – one child, aged four years – whether the mother should be allowed to relocate with the child from the Region B to Town C, South Australia – where the mother is primary carer – where the father seeks time with orders – where there is a highly acrimonious and conflictual co-parenting relationship – where the mother does not promote the father/daughter relationship – where there is a greater risk of psychological harm to the child by continued exposure to conflict if mother ordered to remain living in Region B – best interests of the child.

Legislation:

Family Law Act 1975, Pt VII

Cases cited:

MRR & GR (2010) FLC

Zahawi & Rayne [2016] FamCAFC 90

Goode & Goode (2006) FLC 93-286

Adamson & Adamson (2014) FLC 93 – 622

AMS & AIF (1999) 199 CLR 160

U & U (2002) 211 CLR 238

Mazorski & Allbright (2007) 37 Fam LR 518

Godfrey & Sanders [2007] FamCA 102

Applicant: MR GALENA

Respondent: MS SAMFORD

File Number: #NCC 21 of 2018

Judgment of: Judge Betts

Hearing dates: 13 and 14 November 2019; 7 April 2020

Date of Last Submission: 7 April 2020

Delivered at: Newcastle

Delivered on: 4 August 2020

REPRESENTATION

Counsel for the Applicant: Ms Flintoff

Solicitors for the Applicant: Defend Legal Services Pty Ltd

Counsel for the Respondent: Mr Mooney

Solicitors for the Respondent: Hepmac Lawyers

ORDERS

1. All previous parenting orders are discharged.

2. The Mother is to have sole parental responsibility for the major long-term issues of the child, X, born in 2016.

3. In the exercise of her parental responsibility pursuant to order 2:

   (a)the Mother is to advise the Father in writing within seven (7) days of making any major long-term decisions;

   (b)the Mother is restrained from changing the child’s legal name from that which appears on her Birth Certificate.

4. The child will live with the Mother, who is at liberty to relocate the child to South Australia.

5. The child will spend time with the Father as agreed in writing between the parents and failing agreement as follows:

   (a)between the date of these orders and 30 November 2020 - for a five (5) day block commencing at 10am on day 1 and concluding at 4pm on day 5 with the Father to nominate the block days in writing to the Mother at least 21 days in advance;

   (b)for a seven (7) day block in December 2020 or January 2021, commencing at 10am on day 1 and concluding at 4pm on day 7 with the Father to nominate the block days in writing to the Mother at least 21 days in advance;

   (c)in 2021 and each year thereafter, for 2 weekends each school term on dates to be nominated in writing by the Father to the Mother at least 21 days in advance.  Unless otherwise agreed the Father is to remain within a 300 kilometre radius of Town C and his weekend time is to commence no earlier than 5pm Friday and conclude no later than 5pm Sunday;

   (d)in 2021 and each year thereafter, for a seven (7) day block during each of the end of Term 1, end of Term 2 and end of Term 3 South Australian school holiday periods, and unless otherwise agreed then:

   (i)commencing at 10am on the first Monday of the holidays and concluding at 4pm on the second Monday of the holidays in odd numbered years; and

   (ii)commencing at 10am on the first Friday and concluding at 4pm on the second Friday in even numbered years.

   (e)in December 2021/January 2022, for a block period of ten (10) days commencing at 10am on day 1 and concluding at 4pm on day 10 and unless otherwise agreed then from 10am on 23 December 2021 until 10am on 2 January 2022;

   (f)in December 2022/January 2023, for a block period of twelve (12) days commencing at 10am on day 1 and concluding at 4pm on day 12 and unless otherwise agreed then from 10am on 29 December 2022 until 10am on 11 January 2023;

   (g)in 2023 and each alternate year thereafter, from 10am on 23 December until 4pm on 13 January of the following year;

   (h)in 2024 and each alternate year thereafter, from 10am on 30 December until 4pm on 20 January of the following year.

6. For the purposes of order 5(a) and 5(b), handovers are to occur inside McDonalds Town D and in order to facilitate handovers the parents will utilise E Family Services or some other accredited child contact service to assist, with the parents to share equally in that cost.  The Mother is to arrange the facilitator and notify the Father in writing as to their name and contact details at least 14 days in advance.

7. For the purposes of order 5(c), handovers are to be facilitated by an accredited child contact service, with the parents to share equally in that cost.  The Mother is to arrange the facilitator and notify the Father in writing as to their name and contact details at least 14 days in advance.

8. For the purposes of orders 5(d) – (h) inclusive:

   (a)the Mother is responsible for delivering the child to the Father and the Father is responsible for returning the child to the Mother;

   (b)no later than 14 days before the Father’s time commences, the Mother is to notify the Father in writing as to whether she is delivering the child by car or by air travel and:

   (i)if by car, then handover is to occur inside McDonalds Town D and in order to facilitate handovers the parents will utilise E Family Services or some other accredited child contact service to assist, with the parents to share equally in that cost.  The Mother is to arrange the facilitator and notify the Father in writing as to their name and contact details at least 14 days in advance;

   (ii)if by air travel, then handover is to occur in a public location inside Sydney airport terminal.  Once the child is old enough to fly unaccompanied then the parents may make such arrangements.

   (c)no later than 14 days before the Father’s time ends, the Father is to notify the Mother in writing as to whether he is delivering the child by car or by air travel and:

   (i)if by car, then handover is to occur inside a McDonalds or at some other similar public location as agreed, to be within a 300 kilometre radius of Town C;

   (ii)if by air travel, then handover is to occur in a public location inside Adelaide airport terminal.  Once the child is old enough to fly unaccompanied then the parents may make such arrangements.

9. The Father shall communicate with the child by telephone, Facetime, Skype or similar electronic means:

   (a)from 5.30pm – 6.00pm each Monday and Wednesday;

   (b)from 5.30pm – 6.00pm on the child’s birthday;

   (c)from 5.30pm – 6.00pm on the Father’s birthday;

   (d)from 5.30pm – 6.00pm on Father’s Day;

   and the Mother is to ensure that the child is available, that the relevant phone or device is in range and adequately charged and that the child has as quiet an environment as can be arranged during such communications.

10. All communication between the parents will be in writing and by email except when urgent or an emergency in which case the parents may communicate by text message.  Such communications are to be respectful at all times.

11. Each parent is to ensure that the other parent has their current postal address, email address and a contact mobile telephone number and each is to advise the other in writing of any change in those details within 48 hours.

12. Each party is to contact the other as soon as practicable upon the happening of any of the following:

    (a)The child becoming seriously ill;

    (b)The child becoming hospitalised;

    (c)The child being involved in an accident;

    (d)The child becoming involved in any event to which Police or any other emergency services are called.

13. Both parents are authorised (and a copy of these orders shall be sufficient authority):

    (a)for each parent to receive such notices, newsletters, invitations, photographs, reports and other documents or information normally provided to parents from any school which the children may attend from time to time;

    (b)for each parent to attend all functions to which the parents are normally invited by any school which the child may attend from time to time, including but not limited to concerts, award ceremonies, assemblies, sports days and parent/teacher evenings;

    (c)for each parent to receive such medical reports, test results, medical notes and other similar documents normally provided to parents from any medical practitioner which the child may attend from time to time;

    To facilitate this order, the Mother is to ensure that the child’s school and treating General Practitioner are provided with a copy of this order.

14. Pursuant to s 11(1)(b) of the Australian Passports Act, the Mother is entitled to apply for a passport/travel document for the child without the requirement that the Father give his consent or that he sign any requisite documents.

15. Pursuant to s 65Y of the Family Law Act, the child is permitted to travel internationally with either parent during that parent’s time with the child pursuant to these orders whether or not the other parent consents to such travel provided that:

    (a)the travelling parent gives the other parent not less than 30 days’ notice of the proposed travel; and

    (b)gives the non-travelling parent a copy of the travel tickets for the child showing the dates of departure and return, the flight/voyage number and proposed itinerary not less than 21 days prior to departure.

16. To facilitate order 15, if the Father is travelling internationally then the Mother must provide the child’s passport to the Father not less than 21 days prior to the child’s departure, and the Father must return the passport to the Mother not more than two weeks after the child returns to Australia.

17. Each party is restrained from denigrating the other parent or any member of the other parent’s family whenever in the presence or hearing of the child, or permitting the child to remain within the presence or hearing of any other person engaging in such denigration.

NOTATIONS:

A.The COVID-19 restrictions are clearly an evolving issue.  To be clear, the court’s expectation is that if any visits are rendered impossible by reason of such restrictions then the court would expect there to be make-up time of the same duration within a reasonable time of the restrictions being lifted or eased.  X will cope best if each visit takes place.  However, each visit is to be read as severable from the others.  Visits are not to be contingent upon the earlier visits having occurred. 

IT IS NOTED that publication of this judgment under the pseudonym Galena & Samford is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 21 of 2018

MR GALENA

Applicant

And

MS SAMFORD

Respondent

REASONS FOR JUDGMENT

Introduction:

1. This case concerns the future parenting of a young girl, X, who was born in 2016 and is presently 4 years and 5 months old. 

2. X’s mother, Ms Samford, has always been X’s primary carer.  She is seeking to relocate with X from the Region B region back to her home town of Town C in South Australia.  X’s father, Mr Galena, wants X to stay living in the Region B so that he can spend regular time with her.

3. To put the distance into context, Town C lies halfway between Melbourne and Adelaide.  It is some 1,400 kilometres away from the Region B and the driving trip takes the better part of two (2) days in each direction.

4. Regrettably X’s parents have had a highly acrimonious and conflictual co-parenting relationship now for quite some time.  X has suffered, and continues to suffer, from the parental conflict.  A large part of the Mother’s desire to relocate is to escape that conflict.

5. I have found this a difficult case to decide; it does not permit of an optimum outcome.  Rather it is a choice between the “lesser of two evils”.

The trial:

1. The trial was conducted in two distinct parts.

2. Part I of the trial was conducted on 13 and 14 November 2019.  At that hearing the Father relied upon his Amended Initiating Application filed 25 September 2019, his trial affidavit filed 3 October 2019 and the affidavit of his sister Ms F filed 8 November 2019 and a Case Outline.[1]

   [1] Exhibit “F-1”.

3. The Mother relied upon her Amended Response filed 1 October 2019, her trial affidavit filed 8 October 2019, the affidavit of the Maternal Grandfather Mr G filed 5 October 2019, the affidavit of the Mother’s friend Ms H filed 5 October 2019, the affidavit of the Mother’s uncle Mr J filed 18 October 2019 and a Case Outline.[2]

   [2] Exhibit “M-1”.

4. The Mother was seeking the utterly unrealistic order that the child “shall spend time and communicate with the Father at the sole discretion of the Mother”.  In the Case Outline, her counsel valiantly attempted to provide some “covering fire” for that position:

   The mother does not propose specific time for the father with the child.  However it is expected that she will give evidence of the fall-back position in due course.

5. Throughout the two days of hearing, I waited patiently for the Mother’s fall-back position.  None was forthcoming. 

6. The Mother was an extraordinarily emotional witness; she quickly dissolved into tears at the mention of her late mother (who died in 2019).  I had little doubt from seeing her in the witness box that she had struggled enormously with her mother’s passing and that her grieving process is far from complete.  Regrettably however the Mother’s focus was very much on her own family and her own needs; the father/daughter relationship came across as an inconvenient reality rather than something the Mother actively supported.  She seemed to take little or no responsibility for the difficulties in the father/daughter relationship.

7. For his part, the Father came across as a plain talking man bearing a serious grudge against the Mother.  Sarcasm towards her was his weapon of choice.  Although he admitted he should not have sent/posted various sarcastic messages, I did not sense any genuine remorse on his part. 

8. Undoubtedly, each parent saw themselves as a victim of the other parent.

9. Mr K, the Family Consultant, was at pains in his evidence to observe that the father/daughter relationship had suffered as a result of the Mother’s trips away with X to South Australia.  Mr K was concerned about the deterioration in the quality of the father/daughter relationship resulting from such trips and was concerned that the relocation would make it too difficult to maintain the relationship.  He specifically suggested that I discharge some interim orders which had allowed for the Mother to take X to Town C for 28 day trips.

10. The trial did not finish in time and had to be adjourned over part-heard.  At the close of that hearing I did make some interim orders.  Neither party formally breached those orders, but each behaved in a maddening way. 

11. The Mother effectively relocated with X to Town C - necessitating a 2,800 kilometre, four day road trip each fortnight to facilitate the Father’s alternate weekend time. 

12. For his part, the Father continued to attend the handovers despite the interim orders specifically providing for him to have an agent do so. 

13. Put shortly, each parent was continuing to push their own agenda, testing the limits of the other parent and of the court’s orders.

14. Part II of the trial occurred in April 2020.  By then the coronavirus pandemic had arrived and the South Australian border had been closed.  The Mother was in Town C at that time and thus unable to facilitate the Father’s ongoing fortnightly visits. 

15. The Mother, without reference to her lawyers, had chosen not to file updated trial material but instead to file a Contravention Application based on the Father continuing to attend the changeovers.  Quite properly this was discontinued and instead the Mother filed her updated trial affidavit, albeit late, on 31 March 2020.  She also filed an additional explanatory affidavit on 5 April 2020. 

16. The Father had filed two additional affidavits on 25 March 2020 – one of himself and the other of the Paternal Grandmother, Ms L.  The Paternal Grandmother seems to have been called as a witness largely because, as the Father’s “agent” at a recent handover, the Mother had berated her on account of the Father also being present.  Clearly both the Mother and the Paternal Grandmother had been very upset on that occasion; it was yet another unhappy handover.[3] 

    [3] Mercifully, the Paternal Grandmother was not required for cross-examination.

17. Part II of the trial took place by video-link. 

Chronology of events:

1. In what follows, any statement of fact should be read as a finding unless otherwise expressly stated.  It is unnecessary for me to descend into each and every factual dispute.

Short relationship history:

1. The parents commenced a relationship in the Region B around 2014 when each was in their forties.  The Father was a labourer with two sons – Mr M who was a young adult and N who was about 13.

2. The Mother was working at Employer O.  She was childless, and very eager to have a baby before it was too late. 

3. Though not formally living together, the parents agreed to try for a baby and X was conceived.

4. During the pregnancy, fracture lines quickly formed in the parents’ relationship.  The Mother complained that the Father smoked cannabis, drank too much, and could be quite obnoxious. 

5. Ominously, the Father thought that the Mother’s personality “dramatically changed” as, in his words:

   “It became obvious to me, that the woman I was to share a child with never existed.  I believe Ms Samford had engineered a character and personality deigned purely to gain my favour and agree to having a baby and fulfilling her lifelong dream”.[4]

   [4] Father’s affidavit filed 3/10/19, paras 19-20.

6. In 2015, when the Mother was around 7 months pregnant, she had an altercation with N.  He had been hitting her with his jumper and she took it off him.  He grabbed her by the collar, twisting it and raising a clenched fist above her head saying “Give me back my fucking jumper, bitch”. The Mother was offended, telling him that she would return his jumper when he spoke respectfully.  She then gave it back when he asked nicely.

7. The Father did not support the Mother’s recollection of events when she talked to him about it the next day.  He had been intoxicated at the time and his lack of support for the Mother probably contributed to the event “festering on” in the Mother’s mind for an unreasonably long time after.

8. This event was just one in which the parents were simply not on the “same page”.  They argued about child support.  They argued about the Father’s car seat.  By the time X was a few months old their relationship had completely disintegrated.

Co-parenting in the initial post-separation period:

1. As an infant, the Mother was taking good care of X on a day-to-day level.  But she also controlled the time that the Father could spend with X.  The arrangements were ad hoc, the Father’s time was limited and simmering tension remained. 

2. One source of tension was that the Mother wanted X to have no contact with N as a result of the 2015 incident.  This was overprotective and unreasonable.

3. The Mother also resisted X spending time with Mr M as she apparently feared – although it is unclear why – that he was using drugs.  Again she was being overprotective.

4. The Father made it plain that he was dissatisfied.  On his Facebook page, he posted a link entitled “Mothers who deny Fathers access to the couple’s children after a break-up could be jailed”.  

5. The Mother planned X’s first birthday party for 2017.  To her credit she invited the Father and other members of the paternal family.  However, she specifically asked that N not come.The Father assured her that N would not come, but then brought him anyway.  The Mother felt anxious about his presence, though I am unsure why.  He was no threat.

1. By this stage the Father felt ostracised from X’s life and he began to freely accuse the Mother of being mentally ill or narcissistic.  For her part, the Mother considered the Father to be dismissive of her concerns.  She blocked him on Facebook to try to avoid his abusive commentary.

Parenting Plan:

1. On 15 June 2017, the parents entered into a Parenting Plan whereby the Father was to spend time with X for 2 hours on a Saturday and on alternate Tuesdays.  The Father reluctantly agreed that N would not be present, nor would Mr M unless Ms F was present.  (I should add here that the one positive was that the Mother did still have a reasonably good relationship with Ms F and also with the Paternal Grandmother.)

2. On occasions the Mother did not bring X.  On one cold, rainy day when both parents were present at handover at 4.28pm the Mother insisted on making him wait the extra 2 minutes until the designated 4.30pm handover time.  This was needless and petty.

3. The Mother continued to be upset about X’s car seat, the Father’s alcohol consumption and child support issues.

4. The Parenting Plan was supposed to be reviewed but the Father was frustrated and refused to attend the mediation.  For good measure he told her that she was a narcissistic, alienating sociopath.

5. Later, when the Mother wanted his cooperation to obtain a passport for X so that they could travel overseas together, the Father refused to sign the necessary application.  

6. Around September 2017, the Mother completely stopped facilitating time between the Father and X.  In November 2017 the Father texted the Mother to tell her “You have opened my eyes to your kind, the kind fairy-tale heroes slay. I actually pity you and your shame, but now I understand how abandonment breeds false ego. It’s not your fault”.

These proceedings:

1. The Father commenced these proceedings in January 2018. 

2. In March 2018 the court made interim orders for the Father to spend time with X each second Saturday from 8am to 10am at McDonalds Suburb P.  The Mother was to be present, but not to interact unless an emergency arose.

3. The Mother had not at that stage filed her material.   When she did, on 2 May 2018, she sought interim orders that the Father spend time with X, supervised by either the Paternal Grandmother or Ms F, failing which an independent agency be appointed to supervise at the Father’s expense. The Mother also sought sole parental responsibility.  On a final basis, she sought to relocate to Town C.

4. In the meantime, the 24 March 2018 visit did not proceed because the Father attended McDonalds with his then partner Ms Q and his son N.  The Mother saw them and walked out.  He accused her of breaching court orders; she replied that he was not allowed to speak to her.

5. The Father continued to bring N to visits, although N did not interact much with X.  The Father was in an awkward position, because N would ask him why he couldn’t see X and what he had done wrong.  For her part, the Mother remained unrepentantly overprotective, advising the Father by text that :

   “The only orders I have had from the doctors is to keep X away from her half-brother because he is a threat to her welfare. An order that you won’t even acknowledge yet you proclaim to be the doting father”. 

6. The Mother cancelled the 18 May visit on the basis that X was ill.  The Father saw her playing in the Mother’s front yard not long after.

7. But overall, the supervised visits proceeded well enough that on 5 September 2018 the parties entered into further interim consent orders whereby the Father was to spend time with X from 9am Saturday to 1pm Sunday each alternate weekend, and for some specific time at Christmas.  Changeovers were now to occur at the Mother’s home at Town R  and there were numerous other machinery orders including passport orders.  Each parent also agreed to attend a post-separation parenting course.

8. However, the first visit after those orders were made, on 8 September 2018, set a rather ominous tone.  When the Father parked in the Mother’s driveway, she threatened to call the Police for trespass.  The Father moved his car onto the road and the Mother then complained about his car seat, as well as telling him that X had to have her “Dimetapp” medicine over the weekend, which the Father duly purchased. 

9. After X’s return, the Mother later complained to the Father that she had required extra medical attention “due to your lack of care!”.

10. The Father apparently decided to start video-recording changeovers.  While understandable on one level, this was an unfortunate escalation.  The Mother complained to Police.  He told them she did it too.

11. Later that same month, the Mother’s solicitors raised concerns about the safety of the Father’s property – as apparently it did not have a fenced rear backyard.  The Mother also advised that X was due to have a flu vaccination, which apparently had to be given on the very day that she was to spend time with the Father.  She was being obstructive. 

12. In the result, the Mother cancelled the Father’s upcoming weekend visit at the start of October.  She called Police on the morning that handover was meant to occur, telling them she had refused to send the child as the Father’s house was unsafe.  The Police subpoenaed note records:

    “It was obvious to attending Police that [the Mother] is just playing God with the child, refusing [the Father] access and attempting to justify it by claiming she has a duty of care and has fears for the child’s safety.  Police advised [the Mother] that in the future she would be better served by abiding with the Custody law orders and contacting FACS if she has concerns about the child’s safety at [the Father’s] house.” [5]

    [5] Exhibit “F-3”

13. The Mother separately sent the Father a text accusing him of not providing a clean and safe environment for X, and generally failing in his duty of care.  She complained to the local Council about the state of his property.  (The Council attended his home; they had no concerns.)

14. On 12 October 2018, the Mother emailed the Father an itinerary for a proposed trip she wanted to take with X to Country S in December. The Father refused to consent. 

15. On Saturday 20 October 2018, the Mother demanded that the Father be breathalysed before taking X.  The Father duly attended City T Police Station, where Police assessed that he was not intoxicated.  They breathalysed him only because he insisted.  He was sober and he later collected the child for the weekend visit.

16. Later when X returned to the Mother with a minor cough, she rushed her to a doctor – who was dutifully advised that X had been “with her dad over the weekend”.  The child was not seriously unwell.[6] 

    [6] Exhibit “F-8”

17. The Mother requested that the Father re-schedule his December weekend so she could take X to Town C at Christmas.  Her mother’s health was rapidly deteriorating by this point.  The Father’s response was to tell her that: “My advice is, and has been repeatedly so, not to organise events when it is on X’s and my time”. 

18. The Mother again asked that he reschedule his weekend. The Father responded “You DO NOT have my permission to alter the agreed scheduled weekend visits as you please, and kindly address our daughter by her correct title; X”.

19. The latter reference has been a sore point between the parents.  The child’s official name is “X” and this is what the Father always calls her.  The Mother on the other hand calls her “X”.  In my view the child well knows who she is and nothing really turns on the difference; the bigger point is that the child’s name could be a source of conflict. 

20. Within days of the Father refusing permission for the Mother’s Country S trip, the Mother contacted the Father ahead of his weekend visit to advise him that X had a fever.  She then arranged a Police welfare check at the Father’s home over the weekend.  The Father welcomed Police inside, the home was clean and tidy and that the child was on the lounge watching television.  There was no concern.  According to Police: “It would appear the [Mother] is making false claims against the [Father] to support any future family law court proceedings. Child not at risk and no DV incident involved”.

21. No passport was obtained for X despite the interim orders as the Father filled out the forms incorrectly.  He is unlikely to have given the forms proper care and attention; he was opposed to X travelling overseas anyway. For instance he also declined the Mother’s December 2018 request to take X to Country U in 2019 - telling her: “There are far more pressing issues you need to focus on”.[7]

Things worsen in 2019:

[7]Annexure H to the Mother’s affidavit filed 08/10/19

1. The Mother returned to the Region B in January 2019 extremely bitter about her situation. Her mother was dying, her Father was unwell and from her perspective the Father’s refusal to allow her and X to move to South Australia was selfish and unreasonable.  Worse, he questioned whether her mother was even that ill.  For his part, the Father felt excluded from X’s life and unvalued as a parent.

2. The Mother had by then completed an “Up to Parents” course.  But it is difficult to see what she gained from it given what followed.

3. On 9 February 2019 the parties had another unpleasant handover.  The Father pulled up in his vehicle and waited outside the Mother’s home.  X was reluctant to leave the Mother’s side.  Things were tense.  The Father was video-recording the scene and declined the Mother’s request that he stop. 

4. After a while, the Father managed to get X into the back of his car.  X was holding a sandcastle bucket.  The Mother snatched it away from her, upsetting the child.  The Mother’s actions were irrational and unhelpful.

5. Worse, when the Father then placed a dummy in X’s mouth to pacify her, the Mother erupted by opening the vehicle, removing the dummy and throwing it inside her boundary fence.  When the Father asked for it back, she refused, inviting him to “come and get it” – which the Father took as a possible set-up for a trespass complaint.  He drove off.

6. Both parents attended upon Police.  They did not accept the Mother’s account that the Father had been intimidating her, noting particularly the history of her past unfounded complaints against him. They charged her with “entering the Father’s vehicle without consent”. 

7. The Police took the view: “That the [Mother] is being deliberately inflammatory, and engaging in behaviour designed to entrap the [Father] into a situation from which the [Mother] can gain some sort of legal advantage. It appears to be an escalating form of lawfare being conducted by the [Mother] to the detriment of the child”. 

8. Displaying an unhelpful sense of triumphalism, the Father taunted the Mother about her upcoming court appearance, texting her with a number of laughing emojis and the words:

   ·    “not psychopathic????”

   ·    “there can be only one”; and

   ·    “C U Next Tuesday” followed by a wink emoji. 

9. The Mother successfully defended the charge.

Interim application to relocate / Maternal Grandmother passes away:

1. In March 2019 the Mother filed an interim application to relocate back to Town C.  Her application was supported by medical evidence in relation to the grave state of the Maternal Grandmother’s health. 

2. On 8 April 2019, the parents negotiated consent orders whereby the Mother was permitted to travel away to Town C from 17 April to 3 May 2019. 

3. Tragically, the Maternal Grandmother passed away shortly after the Mother and X arrived.  The Mother was devastated.  She requested to stay in South Australia a little longer and the Father agreed. 

Further interim orders:

1. On 20 May 2019 the parties entered into some further interim orders, pursuant to which the Father was to spend time with X each alternate weekend from 4pm Friday until 4pm Sunday, with the parties to meet at McDonalds Town D or McDonalds Town V as the case may be.  The Mother was given specific authority to suspend the Father’s weekend time on two occasions per year so as to enable her to travel with the child to South Australia for up to twenty-eight days each time.  This was not to occur more than twice between the date of the orders and 13 November 2019 (the trial date) and there was to be make-up time and proper notice given.

2. Despite claiming to be indebted to the Father for letting her stay longer in South Australia when her mother died, the Mother was decidedly unenthusiastic about make-up time.  When X was reluctant to go on the make-up weekend, the Mother told her “Well just tell him you don’t wanna go”, which prompted the child to say she didn’t want to go to his house anymore.  The Mother then said to the Father “This is your fault you had to have two weekends in row”. 

3. The Father left without X, forgoing his make-up weekend.

4. On the next occasion (31 May 2019), X said she was scared to go with the Father.  There was no objective reason.  The Mother also let the Father know that: “It is unforgivable that you didn’t let us travel to South Australia at Christmas”.

5. On a June 2019 visit, X told the Father a number of disturbing things including:

   ·    “I’m not allowed in the backyard because the dogs will eat me”;

   ·    “Mummy yell really loud when I got out of bed and she makes me cry”;

   ·    “We are getting a new house soon”; and

   ·    “Mummy threw my dolly in the bin” being a reference to a dolly that the Father had bought her. 

6. X returned to the Mother with red cheeks, prompting another trip to hospital “after a weekend visit with the Father”.  There was no serious health issue. 

7. In my view the Mother was unable to contain her own emotions around X. She was grieving and angry.  She simply did not, or could not, properly promote X’s relationship with the Father.

X regresses:

1. X had been attending “W Day Care” at Suburb P for some three years when, around June 2019, the staff raised concerns about regression in her behaviour.  She struggled to leave the Mother’s side at drop-off some days, had regressed in her drawing and in her use of cutlery, was tired and required much more behavioural guidance and support.  This was particularly so after weekend visits with the Father. [8]

   [8] Annexure Q to the Mother’s affidavit filed 08/10/19

2. Without informing the Father, the Mother took X to a GP who provided her with a Mental Health Plan.  On the Mother’s instructions, the GP recorded the plan was because of “stress…separation from the Mother…having to go to the Father’s place”. 

3. The Mother was blind to her own contribution to X’s distress.  Her own emotional state was highly volatile and would have had a rub-off effect on the child, particularly around handover time.

4. X was referred to Ms Y, a psychologist at Z Counselling.  The Mother did not inform the Father.  She told Z Counselling that her main concern was the child not wanting to go to the Father’s place.  She was pushing her agenda.

5. To be fair, the Father knew that handovers had become unhealthy and that there needed to be a change to the dynamics.  To that end, his solicitors wrote to the Mother’s solicitors proposing a number of suggestions.  Tellingly, although the letter invited the Mother to come back with a counter-proposal if she did not agree with any of his, there was no substantive reply forthcoming for 3 months.  The Mother suggested that Ms F be involved in handovers.

6. On 19 July, X was screaming and trying to get away from the Father at McDonalds.  He photographed her, the Mother objected and he told her to “get fucked”.  X ultimately went with him.

7. The Mother, claiming to have been “very concerned about the cause of X being so scared of going with her Father” again contacted Police and asked them to do a welfare check over the weekend.  For good measure she also contacted FACS.  Again she was engaging in overkill.

8. Another hospital trip ensued afterwards; again there was nothing seriously wrong with X. 

9. The Father had his own problems.  He continued to be aggressive and at times contemptuous in his texts and social media posts to or about the Mother.  His communication with her directly was not always helpful.  For instance when the Mother asked him to provide basic sleep details for X in the communication book, he initially failed to respond and then when prompted again, simply said it was “as per routine.”

Mother travelling to and from South Australia:

1. In July/August 2019, the Mother travelled away to Town C pursuant to the interim orders.  While away, she ended up hospitalised for stress and anxiety.  Cruelly, the Father texted her during this period to tell her “We all just praying that your addiction to prescription drugs takes care of itself” with a thumbs up emoji.  Like the Mother, his “Up to Parents” course seemed not to have yielded much benefit.

2. The Mother again sought to stay in South Australia a little longer on account of her ill-health.  This time the Father refused.  The Mother travelled home with X, consistently ignoring his text messages asking when she would be back.  Ultimately while Face-Timing X on the trip back, the Father saw a Policeman from Town AA on the screen, who promptly demanded that the Father stop sending aggressive text messages to the Mother and “grow up”. 

3. The Mother returned to the Region B without ever telling the Father. 

4. In September 2019, the Mother approached E Family Services to see if they could facilitate handovers.  They provided a supervisor who defused some of the tension, but it was not a complete solution.  Around the same time, the Mother belatedly told the Father about X’s difficulties at W Day Care and about the psychologist’s referral.

5. Some two months prior to the trial, the Mother put her Town R house on the market.  She had been struggling to cope with life and had been living between her Town R home and another property at Town BB.  Her uncle had been staying with her to support her at times; he was witness to numerous unhappy handovers. 

6. Later that month, the parties exchanged a maddening sequence of text messages.   The Mother was suggesting that X was ill and asking whether the Father was going to take her for the weekend or not.  She did not say he couldn’t take her but she was hardly encouraging him to do so.  He consistently refused to commit one way or the other.  There was no trust between them as to X’s state of health or the medical advice.  In the end the parties effectively “danced around in circles” with their texts occupying some 22 pages of affidavit annexures.  In the end the visit did not occur.

7. In October 2019 the Mother again went away to South Australia for another twenty-eight days.  The Father requested make-up time and was offered limited time on the Sunday afternoon as the Mother had “other plans.”  The Father/daughter relationship was not being given priority.

8. The handover on 8 November 2019, just days before the trial, was a disaster.  The E Family Services worker was running late, so the Father simply approached the Mother and X inside McDonalds.  The Mother put her hand up as a “stop” signal – a rather negative message for X.  The Father then accused the Mother of not facilitating handover and left.  The Mother followed soon after.

Part I of trial:

1. I have earlier referred to the trial and to the interim orders I made.

Events in the leadup to Part II of the trial:

1. As noted earlier, the Mother effectively relocated.  The Father continued attending handovers.

2. The Father saw X on the weekend of 5 and 22 November, but the 6 December visit was unable to take place because X was too upset.  When talking to X on the telephone later that day, the Father heard X ask the Mother “Can I go to Daddy’s?” who repeatedly responded with: “Do you want to go or you don’t want to go?” – emphasizing the word “don’t.”  In response to this discouragement, X decided she didn’t want to go after all.

3. On the visit of 20-22 December, the Father decided to park his car right at the front of the McDonalds in a manner which the Mother felt was intimidating.  His actions were at best unhelpful and in my view he was deliberately goading her.  When she complained about him being there, he took the well-trodden path of sarcasm.[9] 

   [9] See annexure C to the Mother’s affidavit filed 31/03/20

1. The Father then had X over the Christmas period, although he could not resist giving the Mother “the finger” on Boxing Day while pretending to rub his nose.  It was in this period that the Mother revealed to Ms F that she had in fact effectively moved to South Australia.  The Mother had taken her horses, dogs, a cat and chickens.  She took out a 6 month lease on a property at Town C large enough to house them all.

2. The Mother dismissed the Father’s written objection to her apparent relocation.  She persistently ignored his subsequent texts seeking confirmation that she and X had journeyed safely.  At the resumption of the trial the Mother explained that this was because she felt “intimidated”.  Having regard to her volatile emotional presentation in the witness box I accept that she felt that way.  But her failure to respond was also motivated partly by resentment.

3. On 29 December 2019, the Mother emailed Ms Y at Z Counselling referencing the child’s nightmares about “bears” at the Father’s home.  She wanted Ms Y to follow it up.  For his part, the Father dismissed the child’s nightmares as the Mother simply “lying”.  But I think the most likely possibility is that the child was having such nightmares and that they probably just reflected the child’s anxiety. 

4. The Father saw X again on two weekends in January.  At one of these, there was an unpleasant altercation between the Mother and the Paternal Grandmother referred to earlier. 

5. The Father’s FaceTime communication with X then began breaking down.   

6. In February 2020 the Mother’s Town R home was sold, the Father had some more visits with X, and the Mother lost a cousin who was formerly close to the Maternal Grandmother.  The Mother did not cope, ending up in the Emergency Department at Town C Hospital where she was given diazepam to help her sleep.  She then cancelled the following weekend visit while her own mental health recovered.

7. Appropriately, the Mother did provide the Father with a four night visit in March 2020 by way of make-up time.  But the parents still managed to have an altercation at handover – this time about the Mother’s horse float and whether it had proper brakes attached.

8. This was the last visit before South Australia closed the State border, following which it was no longer practical for the Mother to comply with the interim orders.  I am confident that at that time the border closure came as a genuine relief for her given the ongoing tension and the punishing driving regimen.

9. While in Town C, the Mother had asked the Father for some money to fix X’s mobile phone.  The Father sent the child a new phone instead.  The Mother returned it, as she claimed that he could be using it to “track her movements” - which she said he had admitted doing to a previous girlfriend.  The Father denied having done so.  It is unnecessary to make a finding.  The whole event speaks volumes about the co-parenting relationship.

10. The Father came across a newspaper story in the Town C local paper which featured a photograph of “X” rather than “X”.  He complained about this in his affidavit. 

11. When the trial resumed, the Father had not seen X for around a month.

Parenting proceedings – the law:

1. These proceedings are conducted pursuant to the provisions of Part VII of the Family Law Act (“the Act”). There are a number of key objects and principles which underpin the operation of Part VII, as set out in section 60B of the Act. I do not propose to restate them here.

2. When deciding whether or not to make a particular “parenting order”,[10] X’s best interests are to be regarded as the paramount consideration: section 60CA, section 65AA. 

   [10] That term being statutorily defined in s 64B

3. In arriving at a “best interests determination”, the Act prescribes mandatory considerations in section 60CC. There are two (2) “primary” considerations prescribed in section 60CC(2)(a) and section 60CC(2)(b). There are fourteen (14) “additional considerations” prescribed in section 60CC(3)(a) through to section 60CC(3)(m). The latter is a catch-all, designed to accommodate the facts of each individual case and family that come before the court.

4. “Parental responsibility” is defined in section 61B as:

   all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. 

5. By section 65DAC, parents who share parental responsibility for a child are obliged to consult with each other about “major long-term issues” and must make a genuine effort to come to a joint decision. “Major long-term issues” are defined in section 4 of the Act. Relevantly, they include “changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent”.

6. Section 61DA of the Act imports a rebuttable statutory presumption that, when making a parenting order for X, it would be in her best interests for the parents to be allocated equal shared parental responsibility.

7. An order for equal shared parental responsibility engages the statutory pathway set out in section 65DAA of the Act.[11]  Put shortly, I must consider, as the first option, making an order for X to spend equal time with both parents if such an order is in her best interests and “reasonably practicable”. 

   [11] Goode & Goode (2006) FLC 93-286

8. If equal time is not in X’s best interests or is not reasonably practicable, then I must consider making an order that X live primarily with one parent but spend “substantial and significant time” with the other.[12] 

   [12] “Substantial and significant time” is statutorily defined in s 65DAA(3).

9. The concept of “reasonable practicability” was authoritatively considered by the High Court of Australia in MRR & GR (2010) FLC 93-424. I will return to that issue later.

10. In the context of relocation cases, the Full Court made the following recent observations in Zahawi & Rayne [2016] FamCAFC 90:[13]

    [13] Thackray, Murphy & Austin JJ; paras 43 – 48 of the joint judgment.  Footnotes omitted

    “[C]ounsel for the father sought to place particular reliance upon what was said about the position of “unchallenged custodians” in U v U and in particular what was said by Kirby J in referring to decisions of courts of appeal in Canada and England. Conformably with what had been said by the High Court in AMS that a parent seeking to relocate with children need not show “compelling reasons” for the relocation, the Justices in the later decision of U v U, and in particular Kirby J, referred to long-standing English authority, the emphasis of which can be seen in what Sachs LJ said in Poel v Poel:

    …The way in which the parent who properly has custody of a child may choose in a reasonable manner to order his or her way of life is one of those things which the parent who has not been given custody may well have to bear.

As Kirby J also points out, that central proposition has been reinforced by curial statements to the effect that, for example:

[W]hen one parent has been given custody it is a very strong thing for this court to make an order which will prevent the following of a chosen career by the parent who has custody.

and:

[T]his line of authority shows that where the custodial parent herself, it was the mother in all those cases, has a genuine and reasonable desire to emigrate then the court should hesitate long before refusing permission to take the children.

His Honour went on to say:

This Court, and other courts of Australia, are not bound by the decisions of foreign courts on this or any other subject.  However, where (as here) Australian legislation has substantially followed a precedent in English legislation, it is obviously sensible to take into account the course of judicial authority in that country dealing with the same legislation.  So much was acknowledged in AMS, where the decision in Poel was examined in my reasons with which, on the decisive point, Gleeson CJ, McHugh and Gummow JJ agreed.

However, as his Honour was also anxious to point out, and as is clear from the terms of the Act itself, the application of those propositions does not give rise to any presumption or additional onus. Rather, they posit the acute issues as to the best interests of the children within legitimate parental expectations and desires consequent upon marriage breakdown and the need to construct lives for parents and children consequent thereto.

All applications for parenting orders before the court involve a situation that, axiomatically, is not in the children’s best interests.  What is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents’ proposals embraced in competing applications involve, again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children’s best interests. Concomitantly, Gummow and Callinan JJ said in U v U:

…The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents:  obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.

“Relocation cases” are no different from other applications for parenting orders in that respect. Like all applications for parenting orders, an application to have the children live with a parent significantly geographically remote from the other parent is to be determined by the children’s best interests.  However, the issues in a “relocation case” are, by reason of the proposed geographical separation of parents from their children, often significantly more acute and all the more so in cases of proposed international relocation. And, of course, that same factor will usually render more acute the burden or burdens to be borne by one parent or the other, including restrictions on their freedoms.”

1. In Adamson & Adamson (2014) FLC 93 – 622, the Full Court held:[14]

   “It follows from the decisions of the High Court in AMS & AIF (1999) 199 CLR 160 and U & U (2002) 211 CLR 238 that in parenting proceedings there is no requirement for a parent to demonstrate “compelling reasons” to live where the parent proposes to live, be that a proposed new location or, axiomatically, in their current place of residence. Here, the mother was no more required to demonstrate “compelling reasons” for her choice to remain living in Town S than was the father to do so with respect to his choice to live in Town C or for either to not live anywhere else.  The same may be said of their respective choices of employment, the mother’s in Town S and the father’s in Sydney.  The Court must be sensitive to the wishes and rights of parents to live and work wherever they desire.  (U & U at [82] citing AMS v AIF)

   These rights, and the right of freedom of mobility of a parent, only defer to the paramount consideration of a child’s best interests where those interests would be so adversely affected as to justify such interference; and then the interference is legitimate only to the extent that it is necessary to avoid such adverse effects.”

   [14] Ainslie-Wallace, Murphy and Kent JJ at paras 65-66 of the joint judgment

2. In U & U (2002) FLC 93-112, the High Court held that the court is not strictly bound by the competing parenting proposals of each party. Subject to affording procedural fairness to each party, the court can craft different orders if required so as to meet the best interests of the child in any given case.

Best interests findings:

1. I have already made numerous factual findings, many of which directly engage one or more of the relevant “best interests” considerations.  I therefore intend to proceed by way of summary as much as possible and in the specific context of the competing proposals.

PRIMARY CONSIDERATIONS:

Section 60CC(2)(a) – the benefit of X having a meaningful relationship with both parents:

1. X would certainly benefit from having a meaningful relationship with both of her parents.  In this context a “meaningful” relationship refers to a relationship which is important, significant and valuable to a child.  It is a qualitative adjective, not a strictly quantitative one: Mazorski & Allbright (2007) 37 Fam LR 518 per Brown J.

2. Whatever orders I make, the Mother will continue to have a meaningful relationship with X.  It is X’s relationship with the Father which assumes more importance in this context.

3. On the Father’s proposal it is true that X could spend regular, quality time with the Father.  But if history is any guide, then this scenario would be extremely challenging for X given the intense angst between these parents.  Moreover, the Mother is not particularly stoic; she is emotionally volatile when under pressure and prone to histrionics when it comes to the Father.  If her relocation application is unsuccessful, I very much doubt the Mother’s capacity or willingness to simply “get on with it” in the Region B.  She will really struggle to cope.  X, who is attuned to the Mother’s emotions as primary carer, will pick up on that angst and anxiety and over time she will find herself under real pressure to reject the Father.

4. On the Mother’s proposal, the distance between the parents will create a practical “buffer” between them.  From Town C the day-to-day emotional landscape for X will be much more peaceful.  But X will lose that opportunity for significant fortnightly interaction with the Father and the opinion of the Family Consultant is that this would be a significant loss.

5. According to the Family Consultant, X’s relationship with the Father is still at an embryonic stage - block time from a distance would not yet be appropriate nor would it compensate for the loss of regular weekend time.  But since that evidence was given, X spent a block of four nights with the Father in March 2020 by way of make-up.  Handovers aside, the visit itself seems to have been uneventful.  The child coped.

6. The risk however is that if the Mother does not actively promote the father/daughter relationship from Town C, then it may simply wither on the vine.  While the Mother would be more inclined to support their relationship from afar, the risk remains real.

Section 60CC(2)(b) – the need to protect X from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence:

1. The Father has never laid a finger on the Mother.  However, she accuses him of perpetrating “mental/psychological abuse” upon her. 

2. In that respect there is ample evidence of the Father’s emotionally bullying and sarcastic approach to conflict resolution. While the Mother has provoked him by treating him unfairly on numerous occasions, he has not hesitated to disparage and denigrate her both to her face and on social media. I am satisfied that his communications have included repeated derogatory taunts amounting to “family violence” as defined in s 4AB of the Act.

3. That said, the Mother’s expressed fear of the Father is not objectively based.  There is an element of histrionics at play.  I do not consider that the Mother is “faking it”; rather she has convinced herself over time that he does pose a threat.  Her view has been reinforced at different times by his aggressive communications and more recently by Victims Services NSW who accepted the Mother’s victim status and provided her with counselling services and other supports. 

4. This is not by any means the archetypal coercive and controlling family violence case. The Father’s communications have a context. The Mother is not an entirely innocent victim. Her own actions have at times been highly provocative and inappropriate. Her requests that Police conduct welfare checks at the Father’s home could arguably constitute “harassment” of the Father and certainly Police considered them unwarranted.  Her attempt to exclude the Father’s older children from X’s life, particularly N who was himself a child, was unnecessary and insensitive if not cruel to both he and the Father.

5. I should add here that, to her credit, the Mother did ultimately abandon her “risk” case about N.  At one point in the trial, the Father scornfully laughed in the witness box when there was a suggestion of either N or Mr M having potentially posed a risk. 

6. At trial the Mother’s counsel did try to make ground in relation to the Father’s alleged violent history.  It emerged that he was involved in some bullying and assaults as a young man in the military in 1989.[15]  He had a violent altercation at a union meeting in 1997 and in 2000 he head-butted another man at a pub.  However, these are all old events and in my view nothing relevant turns on them.

   [15] Exhibit “M-2”

7. The Mother raised the issue of the Father’s alcohol consumption.  The Father does have a DUI offence from 30 years ago.  But he has provided a normal CDT test in these proceedings.  I do not consider that his alcohol use poses an unacceptable risk to X.

8. Overall, it is not “family violence” which troubles me in this case so much as the toxic co-parenting dynamic.  This certainly has the potential to cause psychological harm to X.  That risk is greatest when the parents are in close proximity.

Section 60CC(3)(a) – views expressed by X:

1. X is too young to express a view.  However she is highly susceptible to her Mother’s influence concerning her relationship with the Father – whether positive or negative.

Section 60CC(3)(b) – nature of X’s relationships:

1. The Mother is the primary carer of X and they have a very close relationship.  X also has a relationship with the maternal grandfather at Town C.

2. The Father’s relationship with X is a developing and vulnerable one. 

3. The Father’s children N and Mr M and his other extended family members (such as the paternal grandmother and the paternal aunt and her children), also have an embryonic relationship with X but one which she would benefit from fostering. 

Section 60CC(3)(c) – the extent to which each parent has spent time with X and participated in decision-making for her:

1. The Mother has always been fully involved in X’s life; the Father has had a comparatively limited role but is determined to be an active and loving father to her.

Section 60CC(3)(ca) – the extent to which the parents have maintained X:

1. This issue does not loom large.  The Mother has the day-to-day care and support of X and the Father is liable to pay child support.

Section 60CC(3)(d) – the likely effect of any changes in X’s circumstances:

1. X is in an almost impossible situation.  I refer back to my observations in the context of s 60CC(2)(a).

2. There are risks in whatever orders I make.

3. Allowing the relocation may mean the loss of the father/daughter relationship if the Mother is not supportive.  The Family Consultant was concerned that if X lost her relationship with the Father then she could become angry and resentful as she gets older.  She may also develop identity issues. 

4. I am also concerned about X’s exposure to ongoing high conflict between the parents - which I consider would be much greater if she were to live in the Region B.  I am concerned that over time X would be at greater risk of a mental breakdown, as acknowledged by the Family Consultant.

5. The Family Consultant suggested that if the Mother lives in South Australia that the Father must see X at least monthly, with no denigration to occur and with X likely needing some counselling support as to her situation. 

Section 60CC(3)(e) – practical difficulty and expenses:

1. This is an enormous issue if the Mother lives in South Australia. 

2. From Town C one option is to drive 45 kilometres to Town CC and from there fly to Adelaide, then to Melbourne and on to City DD.  Another option is to drive from Town C to Melbourne then fly direct to City DD. 

3. At trial it was apparent that the Mother had not carefully investigated the flight costs.  She said she had “only had a brief look…not looked at deeply”.  Her lack of attention to detail about such a significant matter, against the backdrop of her earlier inability to even make a substantive proposal in Part I of the trial, caused me real concern as to her genuineness in fostering the father/daughter relationship. 

1. That said, she had been regularly commuting by vehicle between the 2 locations up until the border closure.  The Mother reasoned that it was not too far to drive and even said that X “enjoyed it”.  This may be true now but the novelty will wear off.

2. Nonetheless it seems to me that driving does remain a practical option to facilitate the father/daughter relationship.  So too is flying when X is older.  The Mother’s proposed orders provide for that eventuality.

3. COVID-19 presently gives rise to another layer of complexity.  There are border restrictions in place in respect of South Australia and these and other associated measures are somewhat fluid and subject to change. 

Section 60CC(3)(f) – capacity to parent:

1. The Mother has a proven capacity to provide for all of X’s practical needs. However I question her commitment to genuinely foster the father/daughter relationship.

2. I consider that at times the Mother’s own anxieties and insecurities about the Father are visited upon X. I am particularly concerned about her anxious and emotional state at handovers.  Her anxiety about the Father is out of all proportion. 

3. The Father has the requisite capacity to parent X during weekend and holiday periods as he seeks.  To be fair to him, he has never sought to be her primary carer; he has only ever wanted to play a fatherly role.  The Mother has struggled to allow that.

4. Realistically, these parents cannot co-parent in a healthy and productive manner.  The Family Consultant urged them to adopt a businesslike co-parenting relationship – but even then he considered that it would be a situation of “parallel parenting” rather than cooperative co-parenting.

5. Sadly, these parents will be better able to develop a businesslike co-parenting relationship if they live geographically distant from each other.

Section 60CC(3)(g) – X’s maturity, sex, lifestyle and background:

1. X is still a young girl. 

Section 60CC(3)(h) – Aboriginality or Torres Strait Islander culture:

1. This is not a relevant consideration in this case.

Section 60CC(3)(i) – attitudes to parenting:

1. I have concerns about both parents’ attitudes to parenting, particularly the Mother.  She completely ceased any time between X and the Father in September 2017 and time was only resumed when the Father instituted proceedings and orders were made.  She showed a glaring lack of enthusiasm about the father/daughter relationship.

2. Since orders were first made the Mother has at times made real efforts to facilitate the relationship (such as the recent driving commute between Town C and the Region B; engaging E Family Services to assist at handovers).  But the overall picture is of a Mother who has been less than fully committed to the father/daughter relationship and who has at times played a spoiling role.

3. The Father’s attitude has been unhelpful at times in the context of their communication.  He knows how to “push the Mother’s buttons” and from time to time he does so.  When I asked him in the witness box about his contribution to the conflict the Father said “I wear a lot more than what I throw”.  There is some merit to his statement - but what the Father does throw at her hits the Mother hard.

Section 60CC(3)(j) & (k) – family violence and related orders:

1. I have addressed this issue already. 

Section 60CC(3)(l) – making the order to least likely lead to further proceedings:

1. Both proposals have their problems.

2. If the child lives in South Australia, there is a real risk that her visits with the Father will break down either due to practical issues or the Mother showing insufficient commitment to the relationship.  Either scenario may lead to contravention proceedings or to fresh substantive proceedings.

3. If the child lives in the Region B the practicality issues are negated but the risk of relationship breakdown is also very real.

Section 60CC(3)(m) – any other relevant fact or circumstance:

1. The Mother has always been X’s primary carer.  Adamson’s case (supra) makes clear that her right to freedom of mobility should only give way where the child’s best interests require it.

2. This leads me to the Father’s proposal.  If the Mother and X live in the Region B then he will only be spending time with her on alternate weekends from 4.30pm Friday to 4.30pm Sunday.  While he would also see her on “special days” I consider that, overall, his proposal at its highest falls at the very bottom of the statutory definition of “substantial and significant” time and it may even fall short of that.  Requiring the Mother to live in a place she adamantly does not want to live so that the other parent can spend 2 nights per fortnight with their child seems rather harsh.  But parental sacrifice is sometimes unavoidable, as Gummow and Callinan JJ made clear in U & U (supra). 

3. From the perspective of the parents, the question is which one should make the sacrifice in the child’s best interests.

Weighing the proposals & applying the statutory pathway:

Parental Responsibility:

1. The Father seeks equal shared parental responsibility; the Mother seeks sole parental responsibility.

2. Regrettably, these parents cannot effectively share parental responsibility.  They can barely communicate.  Neither of them respects the other much; neither of them trusts the other.  An order for equal shared parental responsibility would be simply unworkable.

3. I consider that the Mother, as primary carer of the child, should have sole parental responsibility – subject to her notifying the Father as to decisions.  I am however going to restrain her from changing X’s legal name given that her Christian name was agreed upon when she was a baby.  I do not want her to lose her Father’s surname as it is an ongoing connection to him and to his family.

Where should X live & what are her best co-parenting arrangements?

1. Having regard to the above finding, s 65DAA of the Act is not engaged. The question of X’s time with the Father is at large, to be decided on the basis of her best interests.

2. Of the two competing proposals before me, I have come to the view that X should be able to live with the Mother in Town C.  Life will be a lot happier for her there than in the Region B.  Her Mother will be much better able to parent her; she will be properly provided for.

3. There is a price the Mother will have to pay in that she is going to be obliged to facilitate visits with as much regularity as I consider reasonably practicable.  Ultimately, her own proposed orders conceded that there be holiday time, together with the potential for some weekend time in her local region.

4. Though X would not face the practical impediments to seeing the Father if she were to live in the Region B, I consider that overall such a scenario would not be to her net benefit.  Her home life with the Mother would be highly fraught; it would be a hard life for X.  The dynamic between her parents would make it so; the Mother’s emotional angst would cast a long shadow. The Mother lacks support, she lacks a job and a home. I do not think she would cope.

5. If X lives in Town C the Mother will be happy, she sees herself as having a future, and a life plan.  That the Mother may not actively promote the father/daughter relationship from a distance is not something I take lightly however and the orders will provide for the father/daughter relationship to be appropriately fostered. 

6. In that regard it is X’s right, and both parent’s responsibility, to ensure that the child has the opportunity to develop a meaningful relationship with the Father.  But a meaningful relationship does not mean an optimal relationship: Godfrey & Sanders [2007] FamCA 102 per Kay J (sitting as the Full Court). The orders I propose to make will allow the development of that meaningful relationship as best can be facilitated in the unfortunate circumstances of this case.

Conclusion & orders:

1. Broadly, the orders I propose to make are based upon the Mother’s draft.  They are intended to be clear and self-explanatory.

2. The first two visits will require handovers at McDonalds Town D, so the Mother will have to do the driving.  This is a small price to pay; she has already missed a number of such trips as a result of the COVID-19 border restrictions.  She will cope.  The orders provide for E Family Services or some other accredited service to facilitate the handovers.  At present the Mother and child may be required to submit to a COVID-19 test and/or to self-isolate for 14 days upon their return to South Australia.  Regrettable though they are, these are necessary sacrifices for X’s sake.

3. I add that the COVID-19 restrictions are clearly an evolving issue.  To be clear, my expectation is that if any visits are rendered impossible by reason of such restrictions then I would expect there to be make-up time of the same duration within a reasonable time of the restrictions being lifted or eased.  X will cope best if each visit takes place.  However, each visit is to be read as severable from the others.  Visits are not to be contingent upon the earlier visits having occurred.  In this way there will be no incentive for the Mother to fail to comply. 

4. Moving forward the Mother will be responsible for delivering the child and the Father for returning her.  I have provided for a driving option and an air travel option.  I see no need for facilitators at a public location inside an airport; any facilitator would be a stranger to the child anyway.  I expect some common sense to be shown by the parties, especially given the public nature of such locations.

5. To clarify, I consider that from Town C the Mother will have a more robust capacity to cope with handovers.  To some extent her past anxieties have related to feeling “trapped”.  If she continues to experience high anxieties then she – not X– needs to have some counselling to develop proper resilience. 

6. I have provided for two weekend visits per term in the child’s local area.  I do not know how practical this will be given the Father’s work but it should be an option that is open, especially given that the Mother herself proposes such regularity of visits.

7. I have provided for telephone and electronic communication.  The Mother had wanted to be able to stop the child taking the phone around the home due to her expressed fear of the Father seeing the place.  Her fears of the Father doing something sinister are totally unreasonable.  What I do not want is for the child to have the idea that her father is a threat – which is exactly the message she will receive if the Mother snatches her phone from her while she is talking to her father.  Is there harm in the child saying “Daddy, look at my room?”  The Mother needs to work on her robustness for the child’s sake.

8. I do not want this child handed over at a Police Station.  It is totally unnecessary and sends her the wrong signal.

9. For these reasons I make the orders which are set out at the commencement herein.

I certify that the preceding one hundred and ninety four (194) paragraphs are a true copy of the reasons for judgment of Judge Betts

Associate:

Date: 4 August 2020