Gavino & Elvira
[2021] FedCFamC1F 71
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1
Gavino & Elvira [2021] FedCFamC1F 71
File number(s): DNC 119 of 2020 Judgment of: BERMAN J Date of judgment: 23 September 2021 Catchwords: FAMILY LAW – CHILDREN – Parental Responsibility – Best interests – Where the father seeks equal shared parental responsibility – Where the mother seeks sole parental responsibility – Where the relationship between the parties remains poor – Where the parties’ ability to communicate is limited – Where the mother has been the primary carer and the main source of financial support for the children – Orders for sole parental responsibility.
FAMILY LAW – CHILDREN – With whom a child lives and spends time with – Best interests – Where the mother seeks that the children live with her and spend time with the father – Where the father seeks equal time with the children – Where the parties reside in different states – Where the father proposes to relocate in order to be in close proximity with the children – Where there are allegations of family violence – Where the children are not at physical risk – Consideration of the children’s wishes – Where the mother has been the primary carer – Where the children’s primary attachment is with the mother – Where the children require stability and certainty – Orders
Legislation: Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CA, 60CC(2), 60CC(3), 69ZN, 69ZT Cases cited: Harridge & Harridge [2010] FamCA 445
Pascoe & O’Keefe and Ors [2018] FamCAFC 243
Vasser & Taylor-Black (2007) FLC 93-329
Division: Division 1 First Instance Number of paragraphs: 200 Date of hearing: 12 – 14 July 2021 Place: Heard in Darwin, delivered in Adelaide Counsel for the Applicant: Ms Farmer Solicitor for the Applicant: Withnalls Lawyers Counsel for the Respondent: Mr Bond Solicitor for the Respondent: Northern Territory Legal Aid Commission ORDERS
DNC 119 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS GAVINO
Applicant
AND: MR ELVIRA
Respondent
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
23 SEPTEMBER 2021
THE COURT ORDERS:
1.That MS GAVINO (“the mother”) have sole parental responsibility for X born 2012 and Y born 2014 (“the children”) provided that the mother shall use her best endeavours to reach agreement with MR ELVIRA (“the father”) on any major issue affecting the children but if she is unable to do so then the mother shall make the necessary decisions and advise the father as soon as is reasonably practicable thereafter.
2.That the children live with the mother.
3.That if the mother is transferred to another location within Australia by her employer, that any reference to location, time zone or gazetted school holidays is where the mother is living with the children.
4.That the father shall notify the mother in writing of the date of his permanent relocation to the Northern Territory not less than fourteen (14) days prior to the date of such relocation.
5.That commencing with the second Friday of the father permanently relocating his residence from Victoria to the Northern Territory and until the commencement of term one 2022 the children shall spend time with the father during school terms from the conclusion of school on Friday to the commencement of school on the following Monday in each alternate week.
6.That commencing from term one 2022 or upon the children having spent time with the father pursuant to order 5 for a period of not less than one school term and until the mother’s residence shall change arising from a transfer by her employer from the Northern Territory anticipated to be in or about January 2023, the children spend time with the father during school terms from after school Friday to before school Tuesday in each alternate week.
7.That in the event the father does not relocate to reside permanently in the Northern Territory then paragraphs 5 and 6 shall be discharged.
8.That upon the mother’s transfer from the Northern Territory for employment, the children spend time with the father during school term from the conclusion of school on Friday to the commencement of school on the following Tuesday in each alternate week provided that the father relocates to within twenty five (25) kilometres of the location of the mother’s residence.
9.That from January 2022 the children spend time with the father during school holidays at times as may be agreed between the parties but in default of agreement as follows:
(a)For the first week of each of the children’s term one, two and three school holidays in each year; and
(b)In even numbered years for the second half of the term four school holidays and in odd numbered years for the first half of the term four school holidays commencing December 2022.
10.That as and from 2022 in the event the children are to travel to spend time with the father to the location of the father’s residence, the father shall pay for all associated travel costs for the children to give effect to the orders.
11.That the children be permitted to travel interstate with either of the parties provided that the party with whom the children are to travel provides to the other party not less than fourteen (14) days written notice including itinerary, contact addresses and telephone numbers for the children whilst they are interstate or overseas so the children can communicate with the other party at all reasonable times.
12.That for the purpose of calculating school holidays, they shall be deemed to commence on the first day after the conclusion of the school term and conclude on the day prior to the commencement of the following school term.
13.That unless otherwise agreed between the parties, changeover on a school day shall occur at school and otherwise as between the parties at J Services.
14.That the children communicate by telephone or such other electronic means as are available to the children with the parent with whom they are not spending time each Saturday from 2.00 pm (ACST) providing both parents reside within fifty (50) kilometres of the location of the mother’s residence PROVIDING THAT until the father relocates, the mother will facilitate the children communicating with the father on two occasions in each week.
15.That the orders providing for the children to live with and or spend time with each of the parties are suspended on the following occasions:
(a)With the parent with whom the children are not spending time on each child’s birthday, from after school until 7.00 pm during school term or 9.00 am to 2.00 pm during non-school days;
(b)With the mother on the mother’s birthday from after school to 7.00 pm during school term or 9.00 am to 2.00 pm during non-school days;
(c)With the father on the father’s birthday from after school to 7.00 pm during school terms or 9.00 am to 2.00 pm during non-school days;
(d)With the mother on Mother’s Day from 9.00 am to before school the next day; and
(e)With the father on Father’s Day from 9.00 am to before school the next day.
16.That from term four 2024 school holidays either party may travel overseas with the children during any period of time in accordance with these orders provided that:
(a)A copy of the itinerary including details as to destination and any accommodation and communication details are given to the other party not less than twenty eight (28) days prior to any international travel and not less than fourteen (14) days prior to any interstate travel;
(b)Any change of travel arrangements during such travel is immediately to be notified to the other party; and
(c)A copy of the medical insurance policy is provided to the other party;
17.That the mother shall retain possession of the children’s current Country N and Australian passports including renewed passports.
18.That to enable the children to travel overseas:
(a)The mother’s signature on any application made solely by the mother shall be sufficient to apply for and obtain a renewal of the children’s Australian passports; and
(b)The mother shall pay for any costs associated with the renewal of the children’s Australian passports.
19.That until further order save as to the authenticated consent of all parties required, the parties are hereby restrained from removing or attempting to remove or causing or permitting the removal of X born 2012 and Y born 2014 from the Commonwealth of Australia.
20.That the Australian Federal Police give effect to the preceding order by placing the names of the said children on the Airport Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watchlist for a period of three (3) years unless such order is removed by further Court order or agreement between the parties.
21.Upon expiration of the period referred to in paragraph 20 and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the children’s names from the Watchlist.
22.That the parties shall only communicate with each other by email or text message other than in cases of emergency.
23.That each party is to keep the other informed of their mobile telephone number, the children’s mobile telephone number, email and residential address at all times and inform the other in writing of any changes to these details within forty eight (48) hours of such change.
24.That each party shall keep the other parent informed as soon as practicable as to any significant medical or health related issue concerning the children whilst the children are in their respective care.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gavino & Elvira has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Berman J
INTRODUCTION
Ms Gavino (“the mother”) and Mr Elvira (“the father”) are unable to reach agreement as to the future parenting arrangements in respect of X born in 2012 (“X”) and Y born in 2014 (“Y”) (collectively “the children”).
The mother commenced proceedings on 4 March 2020 seeking orders that she have the sole parental responsibility for the children and that they live with her.
The mother also sought a final order that “the children’s habitual residence is recognised as [the] Northern Territory of Australia”.[1]
[1] Initiating Application filed 4 March 2020, page 2, paragraph 4.
At the time, the children were physically in Country N. The father was also in Country N but not with the children. The mother was in Australia.
For different reasons, each of the parties considered that the children should return to Australia.
Accordingly, the matter was heard urgently on 11 March 2020 and the following interim orders were made:
UPON NOTING
A.That the father now gives his permission and consent to [the children] to leave [Country N] and return to the Commonwealth of Australia forthwith;
B. The parties acknowledge the children are citizens of Australia;
C.That since the separation of the parties in or around June 2017 the children have remained in the primary care of the mother and have resided at all times in [the] Northern Territory.
IT IS ORDERED UNTIL FURTHER ORDER:
1. That the mother have sole parental responsibility for [the children].
2. That the children live with the mother.
At the time and currently the mother is a public servant living in the Northern Territory.
The father is a health professional, living in Victoria.
The mother filed an Amended Initiating Application on 26 March 2021 and whilst the father filed an Amended Response on 4 June 2021, each of the parties now rely upon more detailed minutes of order tendered at the conclusion of the evidence.
Following the return of the children to Australia on 19 March 2020, they have spent time with the father pursuant to orders made 26 August 2020, 18 December 2020 and 5 March 2021 predominantly during the Northern Territory school holidays with the father travelling to visit them.
The father seeks equal shared parental responsibility and subject to the father relocating to the close proximity of the children’s residence, equal time on a week about basis.
The mother is opposed to equal time and shared care and seeks sole parental responsibility for the children. The mother proposes that if the father lives in close proximity to the children then he should have three nights a fortnight from after school Friday to the commencement of school on the following Monday or alternatively two nights per week and block time during each of the Christmas school holidays.
If the father does not relocate then for one half of each school holiday period.
Provided that the father relocates and has spent time with the children as proposed by the mother, as and from term three 2022 or after three consecutive school terms, whichever is the later, the mother proposes the children spend time with the father from after school Friday to the commencement of school on the following Tuesday in each alternate week.
The complexity of the proposed orders arises from the certain knowledge that as at January 2023 the residence of the children will change in circumstances where the mother will be required to transfer either to S Town in the Northern Territory or to City P, Queensland or if the mother is successful in her application for promotion, a transfer to a different location in Australia but not within the Northern Territory.
It is conceded by the father that the mother must comply with a transfer pursuant to her employer’s determination. The father’s position is that he will leave Victoria and take up residence in close proximity to the current or future residence of the children.
Whilst the father contends that he proposes to move to the Northern Territory in September 2021, the mother remains sceptical that the father will give up his permanent position at his current place of employment for an uncertain contract in either the Northern Territory, Queensland or elsewhere.
The father proposes that the parties have equal shared parental responsibility and that until he relocates permanently to the Northern Territory or such other place as the mother may be transferred by her employer, the children should live with the mother and spend one half of the school holidays with the father.
The parties have not been able to agree the extent of telephone or electronic communication between the children and the parties.
Currently the children speak to the father on three occasions in each week however, the father states that when the children are with him they to speak to the mother at their request. For her part, the mother considers that the current order allowing the children to speak to the father three times a week is disruptive.
The father now proposes that he communicate with the children each Thursday and Sunday between the hours of 5.00 pm and 5.30 pm whereas the mother now proposes that the children communicate with the parent with whom they are not spending time each Saturday at 2.00 pm.
ISSUES IN DISPUTE
The mother seeks sole parental responsibility for the children but subject to an obligation to consult with the father whereas he seeks equal shared parental responsibility.
Whilst the parties are in broad agreement as to the time the children should spend with each of them during school holidays, the mother resists the father’s application for equal time in circumstances where he relocates to live proximate to the residence of the children.
The father is prepared to agree that the children may travel with either party, either interstate or overseas, subject to the provision of appropriate notice and an itinerary which includes details as to destination, accommodation, communication details and appropriate medical insurance.
Whilst the mother initially sought orders that she be permitted to travel with the children out of the Commonwealth of Australia with Country N as the primary overseas destination, she opposed the same opportunity for the father.
Her position altered at the conclusion of the evidence and she now seeks that until further order or with the full consent of each of the parties, they are restrained from removing or attempting to remove the children from the Commonwealth of Australia.
DOCUMENTS RELIED UPON
The mother relies upon the following documents:
(2)The mother’s trial affidavit filed 26 March 2021;
(3)Further Amended Initiating Application filed 26 March 2021;
(4)The mother’s minute of proposed orders; and
(5)The mother’s affidavit in reply filed 25 June 2021.
The father relies upon the following documents:
(1)Amended Response to Initiating Application filed 4 June 2021;
(2)The father’s trial affidavit filed 4 June 2021; and
(3)The father’s minute of proposed orders.
CHRONOLOGY OF EVENTS
Date Event 1976 Father born in Country N 1978 Mother born in Country N 2000 The parties commence a relationship 2006 The parties marry 2007 Mother leaves Country N for Sydney 2008 Father leaves Country N for Sydney 2012 Date of birth of X 2014 Date of birth of Y March 2017 - Mother and children relocate to the Northern Territory
- Parties separate. The mother contends that the parties separated in March 2017 when she moved with the children from R Town and advised the father of the separationJune 2018 Parties divorce February 2018 The father relocates from the Northern Territory to Victoria 31 January 2019 Following a welfare check on the father arising from threats of self-harm conveyed to an employee of the Child Support Agency, the father is admitted to the M Hospital following a psychiatric section February/March 2019 The parties attempt a reconciliation May 2019 Father returns to live in Victoria 29 November 2019 Mother takes children to Country N however on the mother’s attempt to leave Country N with the children on 28 December 2019, permission is refused by the Country N authorities 12 January 2020 Mother leaves Country N and returns to Australia leaving the children in the care of her family 18 January 2020 Father leaves Australia for Country N February 2020 Parties attempt to negotiate a settlement under the guidance of the Country N Children’s Protection Agency but without success 28 February 2020 Mother flies to City G and following orders made by the Court on 11 March 2020, returns with the children to the Northern Territory on 19 March 2020 26 June 2020 Father leaves City G and returns to Victoria on a COVID-19 repatriation flight THE EVIDENCE
The proceedings are dealt with pursuant to Div 12A of the Family Law Act 1975 (Cth) (“the Act”). Accordingly, the principles for conducting child related proceedings as set out in s 69ZN of the Act were highlighted. Pursuant to s 69ZT of the Act, the provisions of the Evidence Act 1995 (Cth) do not apply unless the Court decides that the circumstances are exceptional and the Court has taken into account the matters set out in s 69ZT(3)(b) of the Act. Neither party sought to dispense with the provisions of s 69ZT.
The mother
The mother relied upon her trial affidavits and supplemented her evidence by confirming that her current Northern Territory contract will likely conclude in the second half of 2023 whereupon unless she is successful in an application or promotion, she will likely be transferred to S Town or to City P, Queensland. If her promotion is successful then she could be transferred to a capital city.
The contracts are for three years and it is conceded by the husband that if the mother wishes to retain her employment then she is required to take up the designated transfer.
The mother’s initial position if transferred to S Town was to utilise her sister who also lives in the Northern Territory to look after the children, possibly for extended periods, when the mother is working.
Upon further consideration, the mother’s position has altered and if transferred to S Town, her position is that the children would move with her and live in S Town with a change in their primary school to a local school.
The relationship between the parties remains poor. When asked to consider with whom the children should live, the order of priority was firstly the mother, secondly her sister and then the father with his priority being only marginally ahead of a stranger.
The issue of a third party looking after the children arises from circumstances where when together, the parties utilised an Au Pair and on occasion whilst living in the Northern Territory, the mother has used other persons to care for the children when her sister was not available.
At present, the mother’s hours of work are either 5.00 am to 1.30 pm, 6.00 am to 2.00 pm or 11.00 am to 7.00 pm.
At present the mother uses a babysitter to look after the children in the morning and take them to school if she has an early shift.
During school holidays, the mother utilises her sister and other persons to look after the children in circumstances where they are not with the father and she is obliged to work.
The mother remains mistrustful of the father and denies that when the parties were together he took on a significant role in caring for the children.
Moreover, the mother remains fearful of the father’s behaviour which manifests itself in anger, paranoia and negativity and which she attributes to mental health issues.
It is agreed that there have been mental health episodes where the father has threatened to kill or harm himself.
In particular, on 31 January 2019 the mother telephoned the police having been told by the father of an intended suicide attempt resulting in him being taken to hospital.
The relationship of the parties appears to have been significantly affected by the period when the children were unable to leave Country N.
The mother was not significantly challenged as to her version of the conduct of the parties during this period.
The mother travelled with the children from Victoria to Country N on 29 November 2019. The mother and the children were scheduled to return to the Northern Territory on 30 December 2019 and she and the father had reached an agreement that the children would spend time with the father in Australia from 30 December 2019 until 27 January 2020.
When the mother attempted to leave Country N on 28 December 2019 she was questioned by the immigration authorities as to whether she could show that she had the father’s permission for the children to leave the country.
The mother then returned with the children to the home of the maternal grandmother and sought the father’s consent and cooperation to satisfy the Country N authorities that the children could leave the country.
On 9 January 2020, the mother understood from the paternal grandmother that the father would not give his consent.
The mother was then placed in the difficult position of having to leave the children in Country N and return to the Northern Territory on 12 January 2020 to undergo scheduled surgery on 21 January 2020.
At the end of January 2020, the mother was informed by Child Protective Services in Country N that the father had advised he intended to take up residence in Country N with the children.
Proceedings were commenced in Country N in early 2020. The parties were required to engage in mediation and the mother had hoped that the result would be the father’s consent to the children returning with her to the Northern Territory.
The mediation was unsuccessful and it appears that the father was not prepared to give his consent. The father’s position was that he would give his consent to the children leaving Country N but only if they returned with him to Victoria.
The mother alleges that the father attempted to persuade Child Protection Services that the maternal grandparents and aunt were not suitable carers for the children and that they should be placed in the father’s care.
Ultimately, the mother was granted custody of the children in Country N and thereafter if the mother was able to satisfy the Country N authorities of the following:
(a)that the children were Australian citizens; and
(b)that there was an order made by the Family Court of Australia that the children were to live with the mother in the Northern Territory
the Country N authorities would allow the children’s departure.
As discussed, orders were made with the mother then returning to Country N on 28 February 2020 and then with the father’s permission, the mother and the children were able to return to the Northern Territory on 19 March 2020.
The mother was challenged as to why she was concerned as to the father’s attempts to spend time with the children in Country N. The mother was fearful that the father’s behaviour was intended to create a situation wherein he and the children would remain in Country N.
The circumstances of the children remaining in Country N has engendered considerable mistrust as between the parties.
The father remained in Country N for some period of time after the departure of the children.
The mother admitted that X had been hospitalised in Country N without any notice to the father and no attempt was made to contact the father when the mother had taken the children to Victoria to celebrate Y’s birthday.
The mother alleged that the father had perpetrated family violence both prior to and post separation.
The mother’s concerns arose from language used by the father that described her as an idiot and stupid.
There is little doubt that the relationship between the parties has been hostile, volatile and at times verbally abusive.
I am satisfied that on occasion the father has wrongly accused the mother of neglecting the children and has resorted to offensive language in his description and depiction of the mother.
A curious aspect of the proceedings is the concern expressed by the mother as to the extent of time that she is required to devote to her application for a child support assessment and the father’s resistance to same.
It is an indicator of the father’s attitude towards the mother that whilst he concedes that the current level of child support is wholly inadequate in terms of the proper needs of the children, nonetheless the father could not bring himself to accept that he was the liable parent for the purposes of child support and that it was reasonable for the mother to seek an appropriate level of financial support in circumstances where she is the children’s primary carer.
Whilst the mother maintained a disparaging attitude towards the father, I consider her evidence as to the circumstances surrounding the inability of the children to leave Country N and the resultant impact on the mother to be reliable.
The father
The father relied upon his trial affidavit.
In examination in chief the father expressed his intention to relocate from Victoria to the Northern Territory in or about September 2021. When asked as to his attitude if the mother relocated to S Town then it was his position that he would seek to further relocate if he was able to find work at the local hospital.
The father’s evidence confirmed that he had not lived in the same location as the children on any long term basis. He had lived in the Northern Territory for a few months and despite his constant assertion that he would move to be more proximate to the children, he conceded that whilst expressing an intention to do so, he hadn’t yet moved to the Northern Territory.
The father has friends living in the Northern Territory who have offered him accommodation at least in the short to medium term.
The father was asked to consider what he would do if the mother received a transfer either to S Town or to City P or even if the mother obtained a promotion that required her to transfer to Sydney or Canberra.
The father’s evidence was unequivocal that whatever was happening he would move to the Northern Territory even though he was still under contract to his current employer until January 2022.
The father considered that even though he was under contract, he would be able to resign and being a health professional considered he would have little difficulty in securing employment wherever he went.
At present the father is working part-time on a one week on one week off roster. His work hours total about twenty hours per week but this is only to allow the father to continue studying for a higher qualification.
The decision to seek a higher qualification is not a requirement of the father’s employment but rather his own decision.
The father recognised that as a result of his reduced hours, the level of assessed child support is relatively low. The father acknowledged that his obligation to pay child support is a personal challenge for him. He has not done his taxation and his current position is that he remains angry with the child support agency although he thinks that things are better now that there has been some recognition of the costs involved in him spending time with the children.
The annual rate of child support is $5,413 however the father admitted that even this figure is the subject of ongoing challenge.
The father’s position was difficult to reconcile given his ready acceptance that the current level of child support was inadequate but he seemed unable to accept that he was a liable parent.
The father was keen to emphasise that there appears to be some better communication between the parties, in particular surrounding the children’s birthdays. The mother was happy for the father to attend the children’s school, take them for a meal and to attend a sporting event.
The father was asked to consider the following paragraph from the first family report:
128.During the father’s recent visit […], both parent’s reported incidences whereby they perceived the other’s behaviour to be provocative, aggressive and undermining of them, and there was an occasion when the father requested police attendance due to conflict between them when the children were present. It seemed apparent that the tone between the parents was acutely hostile and that each felt highly frustrated and aggrieved by the other. Each parent gave the impression they had been deeply emotionally impacted by events leading up to and subsequent to their separation.[2]
[2] Family Report dated 15 January 2021.
At paragraph 104 of the second family report the family consultant made the following assessment:
Regarding parental responsibility, at this time it does not yet appear that the parents are able to successfully communicate about the children, and negotiation between them is likely to result in frustrations and impasses. …[3]
[3] Family Report Update dated 8 July 2021.
The father conceded that there had been significant animosity between the parties but that there were some signs that the parties had the ability to improve their relationship.
The father’s depth of feeling in respect of the mother is highlighted by a t-shirt worn by him on 26 November 2020 when he attended unannounced at the mother’s home to pick up the children. The father was wearing a t-shirt with a picture of himself and the children, emblazoned with the words “[…]”.
There is little doubt that the father intended both the mother and strangers at the children’s school to understand that he considered the mother had embarked upon a course of conduct to alienate the children from him.
The father appeared to accept that he was wrong to wear the t-shirt and it is likely that the father’s conduct added to the children’s experience of emotional distress caused by the ongoing conflict.
The father admitted that in interview with Ms K he spoke disparagingly of the mother’s family. It was sufficiently overt that X picked up on the father’s negativity towards the mother and her family.
Contrary to the father’s position, X reported that she liked living with her aunt and cousins.
The father’s evidence reinforced the mother’s evidence of the interaction between the parties between November and December 2020.
The father conceded that there was a history of mental illness. The notes of the M Hospital confirms that the father was sectioned on 31 January 2019.
The mother remains concerned as to the father’s mental health and whilst the evidence presented by the father could not be said to be comprehensive of the father’s history of emotional lability or his general psychiatric wellbeing, nonetheless the orders proposed by the mother would seem to accept that the father does not pose a risk to the children by reason of the risks associated with the father’s mental health episodes.
I accept that the father has sought assistance from psychologists over an extended period of time and appears to have better insight into his conduct.
The mother sought that the father undergo a psychiatric assessment and whilst he was not obliged to do so, it was reasonable for the father to recognise that given his various mental health episodes, the issue of his stability was likely to be the subject of challenge. At first the father thought that the mother’s request was a litigation strategy but then when he accepted that it was not, the cost of the assessment was excessive and beyond his financial ability to meet.
The father presented as an unreliable witness. Where his evidence conflicts with that of the mother, I prefer her evidence.
I am not in any doubt the father holds genuine and deep affection for the children but for reasons that are not immediately apparent, the father remains mistrustful of the mother and her family and appears unable to respect the mother’s ongoing primary care of the children.
The family consultant
The family consultant was asked whether the father appeared to present as being more calm and less anxious in his interview for the family assessment in July 2021.
In her first report the family consultant reflected on the allegation that the father often displayed anger at paragraph 136:
136.…The children both reported experiencing ‘angry’ behaviours by him, and [Y] made some pertinent comments about this, which the writer considered were genuine and spontaneous. Comments made by the children and their presentation in their father’s presence caused the writer to strongly suspect that they have developed ambivalence towards him because of their experiences of behaviours by him which caused them to feel anxious. Notwithstanding, it also appeared that due to [the mother’s] apparent stress and anxiety about [the father’s] mental health and the conflict between them, she is increasingly becoming anxious about the children spending time with him. …[4]
[4] Family Report dated 15 January 2021.
The family consultant noted the acknowledgment by the father that the Northern Territory Police were notified by a third party arising from a concern that the father had expressed a suicidal intention.
At paragraph 137, the family consultant also noted the following report by Y:
‘dad screams on the phone and I don’t like it, it makes me scared’.[5]
[5] Family Report dated 15 January 2021.
During the first family assessment, the family consultant was told of the father’s public display of a provocative t-shirt that asserted that he had been the victim of parental alienation by the mother. The family consultant considered that the father’s conduct was not child focused and was representative of the father’s dysregulated state.
The family consultant considered that the parental conflict but in particular the father’s overt and angry presentation and the mother’s anxiety that was in part an explanation for X displaying ambivalence towards the father and the child becoming more worried about the resultant effect on the mother.
It was the recommendations of the family consultant that warranted a further assessment of the family closer to the trial. Such were the concerns of the family consultant that it was recommended that there be inquiry as to the father’s mental health and police interventions and until a clearer picture was available, the father’s time with the children, whilst on a regular basis should be for limited periods.
In contrast, the observations of the children spending time with the father were generally positive. The children appeared happy and relaxed and the father was observed to interact with the children “in what appeared to be an attuned, calm, humorous and engaged manner, whereby he was responsive to the children’s cues, followed their directions in play, and when necessary, appropriately and with warm authority redirected their attention and play” [6]
[6] Family Report Update dated 8 July 2021, paragraph 85
The children were observed to be comfortable in close proximity with the father. In contrast to the first report, the family consultant considered that the children felt happy and safe in his care and that there was a strong relationship between them. Whilst both children reported that the time they had spent with the father in April 2021 was positive because his angry behaviour was modified and more moderate, the children were still observed to be ambivalent towards their father and at times still felt confused and unsafe.
The family consultant opined that it was likely that the father has gained benefit from his participation in various counselling courses and in particular an intensive Men’s Behavioural Change program.
The family consultant noted that whilst the father presented as more measured, the mother’s presentation of mistrust and refusal to engage with the father had not changed.
As such, the family consultant did not consider that it was viable for there to be an exchange of the children as between the parties and supported the continuation of a supervised handover service.
The difficulty that this causes is that the most viable supervised handover service is J Services which is able to facilitate handover at 9.00 am, 12 noon, 2.00 pm and 5.00 pm on weekends and then between 9.00 am and 4.30 pm on weekdays. There may well be further difficulty in accessing a handover service should the mother be transferred to S Town or to City P.
The family consultant recorded at paragraph 47 of the second report the father’s complaints about the mother’s behaviour. The father believed that the mother was attempting to manipulate him and actively undermining his plans to relocate to the Northern Territory. The father continued to maintain a view that the mother was attempting to alienate the children.
This lead the family consultant to form the view that if the father is not able to manage his negativity towards the mother then this will present as an ongoing problem resulting in an adverse impact on the children.
As discussed, the family consultant was of the view that the children were at risk of becoming ambivalent towards the father.
The family consultant considered that if the father relocated to the Northern Territory then the children would be able to maintain about two nights per week but if over an extended period of time the children experienced calm parenting then there was no reason why an extension of time could not be considered.
The potential for the children but in particular X to become ambivalent about her father was the basis for the family consultant’s evidence that X needs to spend regular time with the father before it is too late.
Overall, the family consultant considered that whilst the children were still wary of the father, he had nonetheless changed sufficiently such that the children could see the change and were positively affected by it.
The resultant concern is that the father’s history of aggression and intimidation of the mother may have resulted in the mother remaining as anxious, concerned and badly affected by her relationship with the father notwithstanding that there appears to have been improvement in his behaviour and presentation.
PRINCIPLES RELATING TO PARENTING
I consider it necessary that I approach the parenting component of the proceedings from a focus on the practical reality of the separate proposals of the parties. I bring to account the considerations of the primary and additional factors in s 60CC of the Act that are applicable to the circumstances of each case.
Section 60CA of the Act requires that I have the best interests of the child as the paramount consideration. The best interest test is to be considered by the application of the objects of s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act.
I propose to adopt the following approach:
(1)Give consideration to the separate proposals put by each of the parties as they were identified to the Court;
(2)Have regard to the objects expressed in s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act;
(3)Have regard to the provisions of s 60CC of the Act in order to determine in each case what is in the child’s best interests;
(4)Have regard to the primary considerations under s 60CC(2) of the Act, namely the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm if applicable;
(5)Have regard to the additional considerations under s 60CC(3) of the Act;
(6)The evidence adduced by each of the parties in respect of particular considerations pursuant to ss 60CC(2) and (3) of the Act are to be considered and if more weight is to be given to one or more of the matters raised then it must be the subject of delineation or comment.
PARENTING CONSIDERATIONS
Meaningful relationship
Whilst the parties are not agreed as to the status of their parental responsibility for the children, the mother proposes two options for the children to spend time with the father dependent upon when and if he chooses to relocate from Victoria to the Northern Territory. Upon the father’s relocation, the mother proposes that the children spend time with him during school terms from the conclusion of school on Friday to the commencement of school on the following Monday in each alternate week.
Alternately, the mother proposes that the father spend time with the children in week one from after school Friday to 4.00 pm Sunday and in week two from after school Wednesday to before school on Friday.
Should the children spend time with the father for a period not less than three consecutive school terms then as and from term three 2022 the children should spend time with the father from after school Friday to before school Tuesday in each alternate week.
In addition, the mother proposes that the father spend block time in each of the school holidays and from January 2023 the term four (Christmas) school holidays should be for one half.
As and from January 2023, the mother does not oppose the children spending time with the father at his home if he does not relocate proximate to the mother’s residence.
Whilst the father seeks to spend more time with the children than offered by the mother, there is broad agreement that it is in the best interests of the children that they maintain a meaningful relationship with the father.
The evidence of the family consultant supports a finding that providing the father can modify his overt dislike for the mother in the presence of the children, his relationship with them is important and substantial. The evidence of the family consultant also supports a finding that either proposal of the parties is sufficient to support a meaningful relationship.
The issues of contention between the parties is whether the children’s interests are best served by equal shared parental responsibility and the father’s eventual proposal that if he lives proximate to the residence of the children, the children’s care should be equally shared.
Are the children at risk
Whilst the mother does not assert that the father perpetrated physical violence upon her, she does not resile from her allegation that the father’s aggressive and intimidating behaviour constitutes family violence.
In Vasser & Taylor-Black (2007) FLC 93-329 at [51], the Full Court considered that the High Court decision in M v M (1988) 166 CLR 69 had become the “touchstone” of the principles to be applied in cases of asserted unacceptable risk of any kind.
In Harridge & Harridge [2010] FamCA 445 at [73] Murphy J adopted the following list of inquiries with respect to risk assessment and analysis:-
73. …
(1) What harmful outcome is potentially present in this situation?
(2) What is the probability of this outcome coming about?
(3)What risks are probable in this situation in the short, medium and long term?
(4)What are the factors that could increase or decrease the risk that is probable?
(5)What measures are available whose deployment could mitigate the risks that are probable?
(B. Mahendra, ‘Psychiatric Risk Assessment in Family and Child Law’ (2003) 38 Family Law 569).
I adopt that passage as helpful in cases such as these in analysing the asserted risk.
Family violence must not be ignored. In Pascoe & O’Keefe and Ors [2018] FamCAFC 243 the Full Court supported the position that family violence must be given strong weight:
46.… In cross-examination, the single expert discussed the deleterious psychological consequences for children of their exposure to family violence, which evidence was hardly a revelation. This Court has long-recognised its destructive effect on the immediate victim and those who are exposed to the violence including, most relevantly in this case, the child (Blanch v Blanch and Crawford (1999) FLC 92-837 at 85,745-85,748; B & K [2001] FamCA 880 at [32]; B & B [2003] FamCA 274 at [32]-[36]; Amador v Amador (2009) 43 Fam LR 268 at [95]; Khalil & Tahir-Ahmadi (2012) FLC 93-506 at [189]).
47.The fact a child may not currently manifest symptoms of exposure to family violence does not mean the exposure has not already been harmful or that more exposure in the future will not compound the harm. The mother’s false contrary assumption underpinned one ground of appeal, which must fail (Ground 8). Her submission that the risk of harm to the child is reduced because neither B nor C exhibit any tangible ill-effects of their past exposure to the second respondent’s violence is therefore rejected as fallacious.
The mother contends that the father’s behaviour has been intimidating and designed to cause her emotional distress.
In particular, the conduct of the father in seeking to steal a march on the mother by not giving his ready consent for the children to leave Country N was behaviour by the father sought to utilise the children as a strategy to retain their care.
The father acknowledged that his payment of child support was wholly inadequate to assist the mother in the proper care of the children, however he was unable to accept that as a liable parent he had an obligation to provide financial support.
When pressed, the father admitted that in wearing the “[…]” t-shirt, his behaviour caused distress and upset to the mother.
As an example of the extent to which the children may have been demonstrably affected by the father’s anger and aggression, the following remarks of X are recorded by the family consultant in her second report as follows:
68.… ‘dad is a lion because he is very angry and has soft fur’. [X] drew her mother as a snake, and explained, ‘she can be very protective but so soft with her children’.
69.[X] reported that she did ‘not really’ want to spend time with her father in July 2021, ‘because he always is so angry about everything … like when I choked on my food and vomited and he got angry’. She said, ‘I think he is the same, but my mum tells me to give him chances because she always says I should have a relationship with him but I don’t want to’.
70.[X] explained that she felt upset when in her father’s care at times, particularly when she wanted to contact her mother and was not permitted by her father. She said, ‘he doesn’t want us to call mum and he gets angry … he gets really angry and says stuff I don’t like and makes me feel sad; like he says I’m a bad daughter’.
71.According to [X], ‘dad says mum says bad things about him and she makes him out to be the bad guy in the story’, and, ‘dad says my mum puts things in my mind and brainwashes my mind’. [X] denied that her mother spoke negatively to her about her father and asserted that [the mother] encouraged her to speak and spend time with him.
72.…
73.[X] said she did not wish for her father to live in [the Northern Territory], ‘because I’d have to see him more and he’d get angry all the time. He’d be close to my mum and he’d definitely get angry to my mum; it’s impossible for him not to get angry at my mum; he is so angry with her’.[7]
(Emphasis in original)
[7] Family Report update dated 8 July 2021.
The mother complains that the father is quick to temper and is unpredictable in the manner in which he reacts to the mother.
It is likely that the father has taken steps to modify his conduct and to gain better insight as to the extent that his behaviour impacts adversely on the mother and in particular the children.
It is an important consideration that the observations of the observed interaction were positive and complimentary of the father’s ability to relate properly with the children. The father is a highly qualified health professional. It requires that he have insight and empathy.
Whilst there were aspects of the father’s evidence that demonstrated he was not respectful of the mother, the evidence of the family consultant supports a finding that the father has made significant progress in his rehabilitation.
The difficulty for the father is that the mother remains anxious and mistrustful of the father and is unlikely in the short to medium term to have a relationship with him that is more encompassing than what is required for compliance with Court orders.
Given the history of the matter, it is somewhat surprising that the children have not been more adversely affected than their presentation to the family consultant would demonstrate. I do not consider that the children are at physical risk of the father even though the mother remains concerned as to the stability of his mental health. What is of concern is the opinion of the family consultant that the reaction of the children to his angry presentation may well be one of ambivalence towards him which may impact the children’s wish to have a relationship with the father.
Wishes of the children
The children are prepared to spend time with the father and the observations of the family consultant is that they felt happy and safe in their father’s care and had a strong relationship with him.
The engagement with the father is summarised in the following paragraph from the second family report:
87.[Y] in particular sought close physical contact with her father, such as she sat close to him and rested her hand on his lap, and on one occasion spontaneously hugged him for extended moments and with her arms around his neck and her face close to his said, ‘I am your daughter’ and ‘you are my daddy’. The [father] responded that he loved her very much.[8]
(Emphasis in original)
[8] Family Report update dated 8 July 2021.
The children want a relationship with the father but they, and in particular X, recognise that their primary care should remain with their mother. Following on from a remark by X that she would want her family back together, in the second report the family consultant records the following at paragraph 73:
[X] said she did not wish for her father to live in [the Northern Territory], ‘because I’d have to see him more and he’d get angry all the time. He’d be close to my mum and he’d definitely get angry to my mum; it’s impossible for him not to get angry at my mum; he is so angry with her’.[9]
(Emphasis in original)
[9] Ibid.
As an example of X’s insight, the following appears at paragraph 76:
When asked whether there was anything she would like to be different about her father, [X] replied, ‘I want him to be nice and give me more attention and to stop spending so much money to make me love him, because I do love him’. …[10]
(Emphasis in original)
[10] Ibid.
At paragraph 77, the following appears:
[X] described her mother as, ‘lovely and nice’, and said, ‘I feel safe with her and she loves me’. When asked whether there was anything which caused her to feel worried or scared in her mother’s care, [X] replied, ‘I’m worried she gets stressed and she feels sad sometimes … I don’t know what it’s about, it’s grown-up stuff’.[11]
[11] Ibid.
When asked to identify five safe adults X referred to her mum, her grandparents and then her dad but ‘he’d be my last option.’[12]
[12] Ibid paragraph 78.
The children express a clear wish to spend time with the father. Even though X is eight years of age, her observations of her father and her mother are worthy of significant weight. Whilst the children are unable to navigate the significant complexity of their parents complex relationship, X is able to recognise that the more involved the father is with the children, particularly if he relocates to the Northern Territory, the more it is likely to create distress and anxiety for the mother.
I do not consider that the wishes of the children are determinative of the issues between the parties but they are significant and not readily dismissed.
The nature of the relationship of the children with the parties
The evidence of the family consultant is that the children’s primary attachment is with the mother. That is not surprising in the circumstances where following the separation and certainly after the children were able to return to the mother’s care from Country N, she has been their primary carer.
The observations of the relationship between the children and the father were positive and more so given the obvious beneficial change in the father’s presentation as observed in the second assessment process when compared to the earlier assessment.
I am satisfied that the children are not at risk in the father’s care if he is able to mask his antipathy towards the mother when the children are with him. If he is not able to do so he runs the risk of the children foregoing a relationship with him in order to protect the mother.
The likely effect of any changes in the children’s circumstances
The father’s proposal is that he relocate to the Northern Territory in September 2021. The wife doubts that the father will do so given that he has had an opportunity to relocate for some period of time.
At present and at a considerable financial cost to the father, he spends time with the children in the Northern Territory during their school holidays. The father has demonstrated a preparedness to do so.
The father has made arrangements, at least in the short term, which provide for him to reside at a friend’s home in the Northern Territory which has sufficient space for the children to stay with him.
I do not consider that there is any issue arising from the father’s stated plan other than if he does not follow through.
The orders sought by the mother take into account her belief that the father will not give up his current employment and in particular his desire to gain higher qualifications which may not be available to him if he relocates to the Northern Territory or if the mother is transferred to S Town.
If the father does not relocate then there will be little change in the circumstances of the children. The parties are effectively agreed that the father should spend time with the children for block time to coincide with the school holidays.
If the father does relocate, then in addition to school holiday time he will spend at least three or four nights per fortnight with the children and presumably he would be able to better engage with their curricular and extracurricular activities.
It appears that the children would welcome his greater involvement in their lives.
The orders sought by the father that would have the children’s care shared equally between them would result in a significant change to the children’s arrangements and circumstances. The children would not appear to seek to spend equal time with the father and their strong attachment to the mother would be significantly affected.
The family consultant does not support the orders sought by the father based upon her assessment that at present whilst the children are keen to spend time with the father and recognise that he loves them, they are nonetheless not convinced that he would not seek to undermine and denigrate the mother in their presence.
The father’s behaviour towards the mother has impacted upon the children but also on the mother in a way that the children recognise. As discussed with the family consultant, the children recognise that the mother is sad and anxious about the father even though she does her best to support their relationship with him.
There is no evidence presented by the father that would highlight the advantage to the children of equal time in circumstances where the evidence of the mother, supported by the family consultant with input from the children, would speak strongly against such an outcome.
There is also the real possibility that the father seeks equal time not because the children will benefit but that he will feel vindicated in respect of his conduct and will be financially advantaged by a reduction in the extent of child support as assessed.
As discussed, the father’s attitude in respect of child support was difficult to understand given his admission of what he was assessed to pay was wholly inadequate.
The practical difficulty and expense of a child spending time with a parent
The father’s financial position is uncertain and at least at present is adversely affected by his decision to work part-time in deference to his further studies.
The father is however a highly qualified health professional and is able to work full-time if he so wishes.
It is a matter for the father as to whether he relocates to the Northern Territory and thereafter follows the mother wherever she may be transferred.
The mother is able to provide appropriately for the children but in circumstances where her child support is conceded by the father to be inadequate and is the subject of constant challenge by the father, her resources would not enable any contribution by her to the travel costs of the children spending time with the father in Victoria.
Over and above these issues, it could not be said that the proposals of either of the parties are impracticable or not able to be achieved. Each of the parties propose a range of alternative orders depending upon the mother’s likely transfer away from the Northern Territory in January 2023 and the father’s decision as to whether he will relocate from Victoria to the Northern Territory in the short to medium term.
Further litigation
The parties have been before the Court since 2020. The expense for each of them has been significant.
There has been litigation of one sort or another in Country N and given the reaction of the children to the current proceedings, the Court should make orders that lessen the likelihood of further litigation.
The Court has been assisted by the tendering of the various proposals of the parties which provide for various alternatives, taking into account the current and future circumstances of the parties.
PARENTAL RESPONSIBILITY
Parental responsibility is to be informed by what is in the best interests of the children.
At present the mother has taken on the obligation for all decisions in respect of major and minor issues affecting the children. The father has had limited input even though as a health professional, he has something to offer in terms of health issues affecting the children.
The father contends that there are now the embryonic signs of a lessening of the hostility between the parties and the mother being prepared to communicate more readily with him and to make allowances that bring more flexibility to his ability to see the children.
The father views the current relationship between the parties through rose coloured glasses.
I have found that the father’s conduct towards the mother constitutes family violence. That is not to suggest that there has been physical aggression by the father but his behaviour has created a palpable level of mistrust and anxiety in the mother. It is to her credit that she has recognised the benefit that the children will gain by maintaining a relationship with the father and I consider that there is evidence to demonstrate that she has fostered that relationship even though it has been difficult to do so. I am not satisfied that the father views the children’s relationship with the mother as important and his evidence supports a finding that he is self-centred about his desire to have a relationship with the children whilst ignoring the impact on the mother.
The ability of the parties to communicate whilst not extinct is highly limited. The father has viewed the mother as a person who sought to alienate the children from him.
The parties remain in dispute as to an appropriate level of child support to be paid by the father.
The father did not present any satisfactory evidence as to his emotional and psychiatric stability.
The father’s mental health episodes have been distressing to the mother in circumstances where on one occasion the mother was advised by the authorities that the father had threatened to set himself on fire whilst with the children.
The mother has been able to adequately care for the children in terms of their health and education. She has provided for their financial support.
The children’s presentation to the family consultant was impressive in terms of their maturity but also for the extent to which the mother supported their relationship with the father even though she harboured personal misgivings.
The orders sought by the mother are not just that she have sole parental responsibility but also that she be obliged to consult and advise the father of relevant issues before a final decision is made. The evidence supports a finding that the mother’s proposal is not simply rhetoric but that the Court can have some confidence of her preparedness to comply with Court orders and to put aside her concerns about the father in support of the children’s relationship with him.
The mother should have sole parental responsibility reinforced by a finding that the father holds the mother in low regard. The focus must always be on the children’s best interests and in the circumstances of this case I find that an order for equal shared parental responsibility is likely to cause upset, distress and uncertainty for the children and may well feed into the concerns expressed by the family consultant that ongoing dispute and disharmony may well feed the children’s potential to be ambivalent towards their father.
CONCLUSION
Given a finding that the mother should have sole parental responsibility for the children, there is not a presumption of equal time.
Even so, the separate proposals of the parties must be given proper attention.
The father seeks equal time whereas the mother seeks an order that would provide the father with significant time subject to his relocation to the Northern Territory.
The mother opposes the father’s application for equal time. The father’s proposal is not supported by the family consultant based upon her assessment that the children are more emotionally attached to the mother than the father.
The circumstances at present is that the children are stable and secure in their mother’s primary care. The family consultant did not consider that there were any aspects of the children’s presentation which were troubling and if anything, the level of insight that the children have in respect of the interaction of their parents and the consequences of the conflict are surprisingly insightful.
At this stage, the evidence does not support a finding that the father has reached a level of recognition as to his conduct that there can be no risk or fear of him resuming his overt opposition and criticism of the mother.
The father should be commended for his efforts in gaining insight as to the consequences of his behaviour. I cannot however ignore the result and impact upon the mother.
The children require stability and certainty. That can be reliably achieved by the children remaining in the primary care of the mother but spending significant time with the father assuming he follows through with his plan to relocate.
As such, I do not propose to order that there be a shared care arrangement put in place but I consider that upon the relocation of the father, his time with the children should initially start at three nights per fortnight and extend to a block of four nights per fortnight at the commencement of 2022 assuming that he relocates as indicated.
Holiday time is not problematic and as and from the beginning of 2022 there is no reason why the children should not spend block time with the father with the end of fourth term holidays being shared equally between the parties.
There has been a focus on the extent to which the father is able to communicate with the children by telephone.
The mother has found it onerous and the times at which it occurs inconvenient for the children.
Assuming the father does not relocate then he should be able to telephone the children on two occasions each week but upon his relocation to the Northern Territory then the time will be reduced to one period in each week.
I certify that the preceding two hundred (200) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman J. Dated: 23 September 2021
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