Gilmartin & Oates
[2022] FedCFamC2F 1553
Federal Circuit and Family Court of Australia
(DIVISION 2)
Gilmartin & Oates [2022] FedCFamC2F 1553
File number(s): NCC 2842 of 2020 Judgment of: JUDGE JENKINS Date of judgment: 15 November 2022 Catchwords: FAMILY LAW – parenting – relocation – where one party lives in NSW and the other in Queensland – child living with non-biological father – DNA testing during the course of proceedings – credit – child’s relationship with siblings – need for child to have stability – encouragement of relationship. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65D, 65DAA
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)r 10.13 and r 10.14(b)
Cases cited: A & A: Relocation Approach [2000] FamCA 751
Adamson & Adamson [2014] FamCAFC 232 [66]
AMS v AIF [1999] HCA 26
Godfrey v Sanders [2007] FamCA 102
Grella & Jamieson [2017] FamCAFC 21
Hall v Hall [1979] FamCA 73
Heath v Hemming (No 2) [2011] FamCA 749
KB & TC [2005] FamCA 458
Mazorski v Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
Morgan & Miles [2007] FamCA 1230
MRR & GR [2010] HCA 4
Taylor v Barker [2007] FamCA 1246
U v U [2002] HCA 36
Division: Division 2 Family Law Number of paragraphs: 170 Date of last submission/s: 23 August 2022 Date of hearing: 22 – 23 August 2022 Place: Adelaide – by Microsoft Teams Counsel for the Applicant: Mr Levick Solicitor for the Applicant: Joplin Lawyers Counsel for the Respondent: The Respondent appeared in person Counsel for the Independent Children's Lawyer: Mr Willoughby Solicitor for the Independent Children's Lawyer: Foat Roberts Lawyers ORDERS
NCC 2842 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR GILMARTIN
Applicant
AND: MS OATES
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE JENKINS
DATE OF ORDER:
15 NOVEMBER 2022
THE COURT ORDERS:
1.All previous orders in relation to X, born in 2013 (“X”) are discharged.
2.The applicant, Mr Gilmartin (“the applicant”) and the respondent, Ms Oates (“the respondent”) have equal shared parental responsibility for X.
3.X live with the applicant.
4.X spend time with the respondent as agreed, but failing agreement:
(a)During the New South Wales (“NSW”) school terms one weekend in each term in the Region B (save and except for the Father’s Day weekend), from after school Friday until 5.00pm Sunday, provided that the respondent notifies the applicant in writing no less than four (4) weeks prior of her availability to travel to spend time with X in the Region B region and the applicant is to confirm within seven (7) days of that notice that X is available to spend time with the respondent that weekend;
(b)During the NSW Term 1, 2 and 3 school holidays from the first Saturday of the holiday period until the second Sunday of the holiday period;
(c)During the Term 4 Christmas school holidays as follows:
(i)In even number years from the first Saturday of the holiday period until 7 January;
(ii)In odd numbered years from 7 January until the last Saturday of the school holiday period prior to the commencement of the school term.
5.For the purpose of Order 4, the following will occur:
(a)That X will fly as an unaccompanied minor between the City C and Brisbane airports;
(b)That the applicant and respondent each be responsible for X’s transfer from their respective houses to and from the relevant airport;
(c)That the parties share equally in the cost of X’s flights to and from Queensland;
(d)That the respondent is to provide the applicant with a copy of X’s flight tickets and itinerary at least four (4) weeks prior to X’s time with the respondent;
(e)The applicant and respondent will sign and do all things necessary to obtain any border passes (if required) as may be available to allow X to travel between Queensland and NSW.
6.That X has telephone contact with the party she is not with at that time, each Tuesday and Thursday from 6.00pm to 6.30pm with the party to place a call to the mobile or landline of the party X is with at the time.
7.Each party facilitate X calling the other party at any reasonable time she requests.
8.The applicant and respondent are each at liberty to communicate directly with X through electronic means such as texting, email, Skype and Facebook at all reasonable times.
9.The applicant and respondent are restrained from denigrating the other in the presence or hearing of X and from permitting X to remain in the presence or hearing of another person denigrating the other.
10.That the applicant and respondent must keep each other informed of:
(a)Their respective residential address;
(b)Any mobile telephone numbers and/or email addresses that each of them has available from time to time;
(c)At least one telephone number at which they can each be contacted at all hours;
(d)The applicant and respondent must notify the other in writing or by text message of any change of such particulars within 72 hours of change.
11.The parties forthwith do all acts and things necessary to obtain a Medicare card for X in the applicant’s name.
12.In the circumstances that X needs to attend any general medical, allied health professional specialist medical or educational appointment the applicant must inform the respondent of the time and date of the appointment, upon making such appointment.
13.Each party shall notify the other of any medical emergency, illness or injury suffered by X whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals and/or allied health professionals to communicate with the other party about the condition and treatment of X.
14.In the circumstances that X takes prescribed medication, the party who purchases X’s medication will provide the other party with the medication and instructions for its use, when X goes into the other party’s care.
15.The applicant and respondent be permitted to liaise directly with X’s school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about X’s progress.
16.The applicant shall authorise and request the principal of any school attended by X to provide to the respondent, at the respondent’s expense, copies of all school reports and school photographs order forms relating to X.
17.The respondent shall forthwith:
(a)Notify Mr D (“Mr D”) that she believes he may be X’s biological father (noting her only current means of contact is via social media and she is permitted to privately message him for this purpose);
(b)Inform Mr D that final parenting orders have been made for X;
(c)Request an email address, street address or PO Box (“a postal address”) from Mr D for the purposes of sending him a copy of these orders;
(d)Upon receiving a postal address send a copy of these orders to Mr D at that address.
18.Mr D have liberty to apply to set aside these orders within 28 days of receiving a copy of same.
19.That the Independent Children’s Lawyer meet with X, as soon as practically possible upon the making of these orders, for the purposes of explaining the content and effect of these orders, and that the applicant is required to cooperate with all reasonable requests of the Independent Children’s Lawyer to facilitate this order.
20.Upon compliance with Order 19, the appointment of the Independent Children’s Lawyer be discharged.
and the court notes:
A.Within four (4) weeks the applicant and the respondent shall agree upon a family therapist for the purposes of X being informed that she is not the biological child of the applicant;
B.The applicant and the respondent shall do all acts and things including attending appointments, taking X to appointments and following all reasonable directions of the family therapist, and shall each pay half the costs of such therapy.
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 a pseudonym Gilmartin & Oates has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE JENKINS
introduction
This is a parenting matter concerning X born in 2013 (“X”) who is aged nine.
X currently lives in Suburb E in the Region B with the applicant Mr Gilmartin (“the applicant”).
The respondent Ms Oates (“the respondent) currently resides in Suburb F, Queensland. X spends time with the respondent mostly during school holidays.
The applicant proposes orders that if the respondent returns to live in the Region B that X live with the respondent, or otherwise that X remain in his primary care.
The respondent seeks orders for X to relocate to live with her in Queensland.
background
The applicant is aged 33 years. He is not X’s biological father but refers to himself as her psychological father. X has grown up believing the applicant is her father.
The applicant has been in a relationship with his partner Ms G (“Ms G”) since 2015. They have a son H who was born in 2021.
The respondent is aged 29 years. She is X’s biological mother.
The respondent has not re-partnered. She has a son from a previous relationship, J, aged ten years. J’s father, Mr K, lives in the Region B.
The parties both grew up in the Region B but met on a dating site. They were never in a relationship but were involved in a one night stand in or about early 2013.
The respondent became pregnant with X around that time but says she was unable to locate the applicant until about nine months after X was born.
The respondent’s case is that in or about June/July 2014 the applicant reached out to her when he saw her profile appear again on the same dating site and that she then told him he may be X’s father.
The applicant’s case is that the respondent told him he was X’s father. He says he subsequently requested a DNA test, which was arranged by the respondent and that he was shown results confirming he was X’s father. The respondent denies any such test.
Nonetheless, the parties agree that from this time the applicant began spending regular time with X as well as paying child support and that this continued until the middle of 2020.
On 4 August 2020 the respondent unilaterally moved with X to Queensland without telling the applicant. It was only when the applicant rang X’s school on 5 August 2020 that he was told that both X and J had been “unenrolled”.
The applicant consequently filed his application in these proceedings on 11 August 2020 seeking X be returned to the Region B.
It was then that the respondent sought orders for a DNA test.
The matter first came before Judge Terry on 17 August 2020 who made an order that X be returned to the Region B and placed in the applicant’s care.
Orders were made on 18 August 2020 for the parties to have equal shared parental responsibility and for X to spend time with the respondent in Queensland.
On 28 August 2020 Judge Terry made an order for a DNA test.
The DNA results received in October 2020 showed that the applicant was not X’s biological father.
Nonetheless X has remained in the applicant’s care since that time. The respondent has continued living in Queensland with J and has spent time with X in Queensland, mainly during school holidays.
J has recently begun spending time with his father Mr K in the holidays in the Region B. J has also spent time with X whilst on these visits.
The identity of X’s biological father remains unknown. During cross-examination the respondent said the father may be a person by the name of Mr D, although she was not positive about the surname. She said he used to live in the Region B but was in the armed forces “so could be anywhere”. She said she contacted him via social media, about two and a half years ago to tell him he may be the father but that he had not responded. None of these assertions were contained in the mother’s affidavit material. For this reason and for reasons I shall expand on further in this judgment I have reservations as to the truthfulness of this claim. Consequently I have determined it is appropriate to make orders without notice to Mr D. However I will make an order that the mother recontact Mr D and advise him that he may be X’s father and provide him with a copy of these orders. I will then give Mr D 28 days to apply to set these orders aside.
proposal of the applicant
The applicant proposes that X reside in the respondent’s primary care provided she lives in the Region B, and that X spend time with him each alternate weekend from Friday to Monday. He proposes that school holidays are spent in a shared care arrangement.
If the respondent remains in Queensland the applicant proposes X live with him and spend time with the respondent in school holidays in Queensland and if she is prepared to travel, during school terms in the Region B.
proposal of the respondent
The respondent seeks for X to be able to live with her in Queensland and that X spend time with the applicant one weekend each month during school terms from Friday to Sunday, for ten days during each of the term school holidays and for two weeks in the long summer holidays with the Christmas period to be alternated.
PROPOSAL OF THE INDEPENDENT CHILDREN’S LAWYER (“THE ICL”)
The ICL did not take an initial position but in final submissions sought orders that X remain in the Region B in the applicant’s primary care and spend time with the respondent in the holidays and during term time if she were to travel to the Region B.
the evidence
This matter proceeded in a somewhat unorthodox manner. The hearing was listed to be run via Microsoft Teams. When the matter was called on, the respondent, who was self-represented, appeared via her mobile phone camera and was sitting in her car. She had no access to a laptop or iPad by which to read documents or emails. As all parties were in the City C area at the time of the hearing it was suggested and ultimately arranged for all parties including the respondent to attend the Newcastle Registry.
It was agreed that the respondent would give evidence first to take advantage of the physical courtroom which was only available for the first day of Trial. As such, she could be physically handed documents on which she was to be cross-examined. The applicant did not need the same assistance as he was able to be at his solicitor’s office when he was to be cross-examined, where they had access to technology and could provide him with documents where required.
The respondent had not filed a Trial affidavit, but I allowed her to rely on all affidavits she had previously filed in this matter. This was not objected to by the other counsel.
Accordingly I have had regard to the following affidavits filed by the respondent:
·14 August 2020
·25 August 2020
·15 October 2020
·20 October 2020
·19 November 2020
·22 April 2021
·10 June 2021
The cross examination of the respondent was completed in person at the Newcastle Registry. The remainder of the proceedings then continued via Microsoft Teams.
As I was sitting in Adelaide I was not physically in the Newcastle Court. Unfortunately it was frequently difficult to hear the respondent’s evidence when she turned her head away from the microphone in the witness box. I repeatedly asked her to turn her head back to the microphone but this was an ongoing problem. Nonetheless, I am satisfied, having read the transcript, that I am fully appraised of the respondent’s evidence.
It has not been possible to include every aspect of the parties’ evidence. Whilst I may not mention something specifically in these reasons that does not mean I have not considered it. I have taken all of the relevant evidence into account.
Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities.
Credit
I am satisfied that, generally, the applicant gave evidence that was truthful and accurate. He gave responsive answers, and did not appear to overstate or exaggerate his recollections. His evidence appeared plausible, and was consistent.
The applicant relied upon his trial affidavit filed 1 August 2022. The applicant also relied upon evidence from the following witnesses:
(a)Ms G who filed an affidavit on 1 August 2022. She is the applicant’s partner. She gave her evidence via Microsoft Teams. Ms G impressed as a credible witness and gave her evidence in a straightforward and upfront manner;
(b)Ms M who filed an affidavit on 1 August 2022. She is the applicant’s mother. She also gave her evidence via Microsoft Teams. She too was a credible witness who impressed as honest and reliable.
As already discussed, the respondent did not file any Trial documents but I allowed her to rely upon all affidavits previously filed on her behalf in these proceedings. She did not rely on any other witnesses.
The Court is generally reluctant to made adverse credit findings in relation to parents in parenting proceedings. However I found the respondent to be a wholly unreliable witness. Her evidence was at times entirely contradictory. The most striking example of this concerned the respondent’s belief about X’s paternity and what she told the applicant in this regard.
The applicant’s evidence is that about 18 months after their one night stand he contacted the respondent when he saw her profile on the same dating site on which they had first met. He says he sent her a message to say hi. He says she wrote back:
I’ve been looking for you for 18 months. You are the father of our nine (9) month old daughter.
The applicant says although surprised, he drove to visit the respondent the very next Saturday where he met with X and spent a few hours with her. He says he then visited her every Saturday for the next month or so.
The applicant’s evidence is that for absolute certainty he asked the respondent for a DNA test which was conducted in the middle of July 2014. He says the respondent showed him the results the next weekend, which confirmed he was the father. He did not ask for a copy of the test as he had no reason to doubt it. Ms M corroborates that she was told about the results of the DNA test at that time.
The respondent on the other hand gave differing versions as to her belief around X’s paternity and as to what she told the applicant.
In her affidavit filed on 25 August 2020, the respondent states:
During the period of conception of [X] I was involved with multiple people during the period and [Mr Gilmartin] was only one occasion but was not near what conception date would date to.
I don’t believe [Mr Gilmartin] is the biological father of [X] and would like this finally to be proven
(as per the original; emphasis added)
Yet in her affidavit filed 15 October 2020 the respondent says:
It was around when [X] was 9 months old [Mr Gilmartin] messaged me on the dating app again and he found out i had two children at that point. [Mr Gilmartin] asked if [X] was his and i advised him there was a possibility but i was not 100% sure if he was [X]’s biological father.
(as per the original; emphasis added)
Then in the interviews for the Family Assessment Report (“the Family Report”) prepared by Ms N (“Ms N”) which took place on 21 April 2021 the respondent told Ms N that she had never given the applicant any indication he was X’s father but rather suggested he had “taken it upon himself to position himself in the role of the father”.
(emphasis added)
Yet one day later, on 22 April 2021 the respondent filed an affidavit in which she states:
When [X] was around 10 months old [Mr Gilmartin] contacted me and was asking me about my life when I informed him, I had another child. [Mr Gilmartin] asked if [X] was his and I advised I was not 100% sure but there was a possibility that she was.
I facilitated a relationship between [X] and [Mr Gilmartin] the best I could and encouraged them to get to know each other because I always thought and believed he was her father.
(as per the original; emphasis added)
In any event it is common ground the applicant started spending overnight time with X in a relatively short period of time after meeting her and began paying child support. It is further agreed that when X was about 18 months old his time increased to alternate weekends and seven nights in the school holidays.
I do not believe the applicant would have spent such time with X or that he would have paid child support unless he believed he was the father. Furthermore, the respondent’s evidence was completely contradictory and as noted in the Family Report, the respondent could not offer an explanation as to why she accepted visits and child support if she doubted paternity.
I also note that the police records produced in this case contain a summary of an incident on 23 November 2014. In that summary the police record that the parties had undergone a medical examination which showed that the applicant was the biological father. Whilst the respondent denied she said this and suggested it came from the applicant, it corroborates that one of the parties, many years before any anticipated litigation, was asserting there had been a DNA test.
For all of these reasons I accept the applicant’s evidence on this subject.
Accordingly it must follow that the respondent either manufactured DNA test results or modified actual results, with the express intention of leading the applicant to believe he was the biological father of X.
Although it would not necessarily mean that the respondent would lie about other matters, given her preparedness to deceive the applicant on such a substantial issue, I find that where her evidence differs to the applicant and other witnesses in this case, I prefer their versions of events.
the relevant legal principles
Relocation cases are particularly difficult cases. This case has another level of complexity as one of the parties is not a parent for the purposes of the Family Law Act 1975 (Cth) (“the Act”)
There is, of course, no separate category of relocation cases, and nor do I determine the question of ‘relocation’ as a separate issue. This is a parenting case, in which I must apply the law, and determine orders having X’s best interests as my paramount consideration. These are not the only interests I consider. I also take into account the rights of the parties, including their right to determine where they live.
I note the observations of the Full Court in Adamson & Adamson [2014] FamCAFC 232 [66] where their Honours said;
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.
The following propositions can be distilled from the authorities, including AMS v AIF [1999] HCA 26 (“AMS”), A & A: Relocation Approach [2000] FamCA 751, U v U [2002] HCA 36 (“U v U”) Taylor v Barker [2007] FamCA 1246, KB & TC [2005] FamCA 458 and Morgan & Miles [2007] FamCA 1230:
(a)The best interests of the child are the paramount, but not the sole consideration;
(b)The person seeking to move does not need to provide compelling reasons for the relocation sought;
(c)The court must evaluate the competing proposals, giving consideration to how each proposal will provide advantages and disadvantages for the child’s best interests;
(d)The question of whether there should be a relocation cannot be treated as a separate or discrete issue to that of the question of residence;
(e)Neither party bears an onus to establish that an order permitting or restraining relocation is in the children’s best interests; and
(f)The Court must weigh the competing proposals and consider all the relevant factors, including the right of freedom of movement of the party who wishes to relocate.
As observed by Kent J in Heath v Hemming (No 2) [2011] FamCA 749 [101]:
In some cases, the determination of “best interests” may well mean that one party’s choice is effectively outweighed in the balance. Alternatively, proper balancing may result in the child’s “best interests” being served by Orders which do not give one parent “optimal” arrangements or outcomes.
I must make my way through the legislative pathway. That includes that I must weigh and consider the primary, and additional considerations set out in ss 60CC(2) and (3) of the Act. I will turn to each of those considerations later in these reasons.
Section 65D of the Act directs the Court to make such parenting orders as it thinks proper. As to what is “proper”, and how the Court’s discretion is to be exercised, the Full Court of the Family Court of Australia in Grella & Jamieson [2017] FamCAFC 21 at paragraph 18 said:
A discretionary judgment concerning parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition.
The objects and principles of Part VII of the Act as set out in s 60B provide guidance as to the exercise of my discretion:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
parental responsibility
Pursuant to s 61DA of the Act, the Court must apply a presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility for them; however, as this case does not involve two parents this presumption does not apply.
The applicant proposes an order for equal shared parental responsibility. The respondent does not propose any order for parental responsibility but conceded under cross-examination that an order for equal shared parental responsibility was appropriate. This was supported by the ICL.
I am satisfied in this matter that it is in the best interests of X for both parties to continue to play an important role in making decisions for X’s long term care, welfare and development and accordingly will make an order for equal shared parental responsibility.
section 65DAA
Although I am going to make an order for equal shared parental responsibility, as this matter does not involve two parents, there is no requirement pursuant to s 65DAA for the Court to consider whether X spending equal time or substantial and significant with the parent and the non-parent is in her best interests. Nor do I have to consider whether the arrangements are reasonably practicable. I am therefore at large to determine what is in X’s best interests.
the primary considerations pursuant to section 60CC of the act
Section 60CC(2) of the Act sets out the two primary considerations I must consider in determining best interests being:
(a) The benefit to the children of having a meaningful relationship with both of their parents; and
(b) the need to protect children from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence.
In applying those primary considerations, I am required to give greater weight to the need to protect children from harm.
Meaningful relationship
In this case, there is only one parent for the purpose of the Act and therefore to whom this is applicable.
In the case of McCall & Clark [2009] FamCAFC 92 (“McCall”), the Full Court of the Family Court observed that whilst there is no definition of the word “meaningful”, in the Act, they noted with approval the observations made by Brown J in the decision of Mazorski v Albright [2007] FamCA 520. In that decision, her Honour said the term was synonymous with notions such as “significant”, “important”, “of consequence” and “valuable to the child”. Her Honour also observed that “meaningful” is a qualitative and not a strictly quantitative adjective.
Importantly, in the case of Godfrey v Sanders [2007] FamCA 102, Kay J observed that:
…even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship”.
This was subsequently endorsed by the Full Court in McCall.
It is possible for the respondent to have a meaningful relationship with X on either parties’ proposal, albeit not necessarily an optimal one.
Risks to X
The respondent alleges the applicant was caught using drugs in 2015 and says in her evidence that she holds concerns about his use of drugs and his drinking whilst X is in his care.
The respondent also raises an issue about the applicant’s mental health and refers to a text message Ms M sent to her in which she says the applicant was so distressed at the potential move to Queensland that he was suicidal. Ms M’s evidence was that she exaggerated this distress hoping it would cause the respondent to return to the Region B.
The respondent also makes a one line reference in an affidavit to the applicant hitting X and yelling at her although he was never cross-examined about this.
All of these allegations would appear to be completely inconsistent with the respondent’s proposal for the applicant to spend substantial and significant time with X.
I do not accept the respondent’s evidence that the applicant constitutes a risk to X by virtue of previous cannabis smoking nor do I accept the statements that he has hit or yelled at her. The respondent’s own case flies in the face of there being a risk to X. She has facilitated substantial and significant time and only raised these issues following the applicant’s application to have her return to the Region B with X.
Furthermore there is nothing in the evidence to suggest X has been at risk in his care in the last two years.
The additional considerations PURSUANT TO section 60CC
Any views expressed by the children and any factors (such as their maturity or level of understanding) that the Court thinks are relevant to the weight it should give those views
X was interviewed as part of the Family Report. At that time, noting it was some 15 months before the Trial, Ms N recorded the following:
[X] described feeling confused because she felt both, “happy and sad,” living with her father because she loves him, but misses her mother very much. She said she would also feel, “happy and sad,” living with her mother because she would miss her father. It is noted that she used the same description during her Child Inclusive Conference in September 2020.
[X] said that she misses her brother [J] very much and was disappointed when she learned that he did not attend the interview because she had been looking forward to seeing him.
[X] said she was excited about having a baby brother, but this did not appear to eclipse missing her brother or mother.
[X] said she would prefer to live with her mother because she thinks she misses her the most. This did seem evident during the observation with some other where [X] was seen to be more comfortable in her mother's presence.
The ICL met with X the day before the Trial to find out her current view of her living arrangements. X did not want her specific views conveyed however the tenor of her comments was that she was very settled at her school, in her extracurricular activities and in her living arrangements and that she would not be benefited by a change of those arrangements. The ICL considered X’s views were genuine and arose from her own experience. I note however that X is only nine so her views will carry some weight but are of course not determinative.
The nature of the children’s relationships with each of their parents and other significant persons in their lives
X appears to have a close and loving relationship with both of the parties; although I note the observation of Ms N that at the time of the Family Report she seemed to have a stronger connection to her mother. This is not surprising since it had only been nine months since she went into the applicant’s primary care.
Nonetheless, it was Ms N’s view that X was primarily attached to her mother and she was concerned about disruption to this attachment if X remained with the applicant. However she did concede that if a child has a secure secondary attachment it would be easier for them to develop a primary attachment to that person and that X may not suffer psychological damage provided the relationship with her mother was honoured and supported. I am satisfied on the evidence that the applicant and his partner would do so.
Ms N also found that X has a close relationship with J and a developing relationship with H, who is only 18 months old. Although H is a step-brother, Ms N noted that children do not distinguish sibling relationships in terms of step, half siblings and the like. It is only adults that place such labels on these relationships. Nevertheless she said there is a significant age difference, even factoring in J’s autism, which would mean the nature of the relationship would be different with H.
The extent to which the children’s parents have taken or failed to take the opportunity to participate in long-term decision making in relation to the children, to spend time and to communicate with the children
As the applicant is not “a parent” under the Act I do not need to consider the extent to which he has participated in decision making or to spend time with X. However on the evidence before me he seems to have taken every opportunity to do both.
I do however have concerns that the respondent has not taken every opportunity to travel to see X in the Region B. Indeed the only time she has visited was the weekend before the Trial and this was because the respondent’s grandmother was unwell. The respondent gave various excuses for not travelling such as borders being shut, not being able to take time off work, not wanting to leave J behind because he would feel left out and not being able to give four weeks’ notice to the applicant. Whilst work may have been a legitimate excuse, reasons, such as needing to provide four weeks’ notice, which was never the case, give me cause to doubt the respondent’s evidence on this topic.
Furthermore, the respondent says she has been unable to afford the visits as she would need to pay for flights for herself and J, as well as for their accommodation. However she could have stayed at her grandmother’s home in the Region B, as she did the weekend before the Trial and it was her own case that her family in Queensland supported her in taking care of J, so it is unclear why he needed to accompany her.
The extent to which each of the children’s parents have fulfilled or failed to fulfil their obligations to maintain the children
Again, as the applicant was not “a parent” he was not obliged to maintain X, nonetheless, I note that the applicant paid child support to the respondent pursuant to a private agreement from when X was about nine months old and subsequently pursuant to a child support assessment. The respondent claims the applicant was in arrears at one point, arrears ironically he was not obliged to pay. In any event the applicant says this was immediately rectified.
The respondent has not however paid the applicant any child support either formally or otherwise, other than to pay for the cost of one of the airfares for X, as ordered by the Court.
The likely effect of a change in the children’s circumstances, including the likely effect of a separation from a parent or other significant persons in their lives
X has been in the applicant’s primary care for over two years. Prior to that she moved homes nine times and school three times.
In the Family Report Ms N observed:
[X] attends [Suburb O] Public School and is in Year 2. She initially had difficulties settling into school and exhibited some behavioural problems which included an inability to sit still and pay attention, however these have improved significantly with a behavioural chart implemented by her teacher. [X] also had some problems with social relationships with other children not wanting to play with her. The father said she makes friends easily now and it [sic] gets invited to birthday parties. [X]’s best subject is maths, although it is not her favourite subject. [X] struggles with reading but is improving with focused support from family in terms of reading at home.
[X] enjoys out of school activities particularly dancing and singing. She performed in a Christmas dance concert in 2020 which was a highlight for her.
A move to Queensland would necessarily mean a disruption to what has been a significant period of stability for X.
Whilst X had a primary attachment to the respondent, she has been living with the applicant for two years. Given her comments to the ICL, it appears that she has adapted well to living with him and does not wish this to change.
Although X is living separately from J, who at the time of the Family Report she clearly missed, J is now spending regular holiday time with his father in the Region B and spends time with X when he visits. I understand their school holidays usually overlap by one week and that the applicant has been facilitating the siblings to spend time together. Whilst Ms N found there is a risk that J may view himself as an only child, and as a result of being on the autism spectrum, he may be protective of his relationship with the respondent upon X’s visits. There is no medical evidence with respect to J before the Court on which to make a finding about this.
The practical difficulty and expense associated with the children spending time and communicating with a parent, and whether that difficulty substantially affects the children’s right to maintaining personal relations and direct contact with both parents on a regular basis
The parties currently live about 7.5 hours in distance by car.
The applicant says he cannot move to live near the respondent in Queensland. He and Ms G work in Town R. Their extended families live in the Region B. They have been living together for four and a half years and have a baby son.
The respondent says she cannot live in the Region B as she relies heavily on her supports in Queensland, being her parents, siblings and other extended family.
Neither party earns a significant income.
Each party asserted they would be able to meet half of the costs of X’s flights during school holidays but would struggle to pay for additional travel to see X during the school term. Fortunately X has no issues with travelling as an unaccompanied minor.
The capacity of the children’s parents and any other significant person to provide for their needs, including their emotional and intellectual needs
Both parties are able to meet X’s day to day physical needs.
Both the respondent and the applicant attest to suffering from mental health issues however each says they are medicated and that their issues are well managed.
Each party works full time and relies upon their family to assist. The applicant works five days each week, leaving home at 7.15 am and returning about 6.00 pm, as well as a half day each alternate Saturday. Ms G works part-time as a health care worker so she is available to assist with school drop offs and after school care. The respondent works full time from 8.00 am to 4.00 pm and relies on her brother-in-law for pick up after school. Neither arrangement appears to impact on their ability to meet X’s needs. I am not concerned at the respondent’s assertions that X is in the care of others until 6.00 pm and has seemingly not been fed her dinner by that time. This is the reality for many working parents.
I also accept on the evidence before me that each party is able to meet X’s medical, dental and optical needs. Whilst the applicant has historically left these matters to the respondent, he has begun to take on more of these responsibilities as time has gone on, for example taking X to the optometrist.
It is also noted that there is no evidence in X’s school reports of any behavioural issues since being in the applicant’s primary care or that she is anything other than thriving.
However a live issue in this case is the ability of the parties and their extended family to meet X’s emotional needs.
The applicant says that upon receiving the Court ordered DNA test results he asked the respondent not to tell X before they had worked out the best approach. He says that despite this X returned and immediately questioned whether he was her father.
The respondent’s evidence was that X already knew that her father was not her biological father and that she told her as a result of X looking at her birth certificate in the car when she was about five or six years of age. When challenged on the need to tell X anything about her father not being her biological father, the respondent said under cross-examination that the need for the explanation arose because X was asking why she had a different surname. In the same line of questioning, the respondent then said that she never actually told X that the applicant was not her father. As a result, the ICL asked the respondent why she had told the applicant’s solicitor and the ICL that X was well aware her father was not her father. The respondent’s evidence was that she said this out of anger and resentment and not because it was true. Again the respondent’s evidence was contradictory and hard to reconcile.
In any event, for the reasons I have already stated, I prefer the applicant’s evidence on this issue and therefore it would appear the respondent did speak to X about the DNA test result. Consequently I have real concerns about the respondent’s insight into the emotional damage this could cause X.
It is also concerning that the respondent either knew or suspected the applicant was not X’s biological father but was prepared to let X believe he was and that she made no substantial attempt to find X’s actual biological father until about two years ago, if her evidence is accepted. It would appear the respondent chose instead to rely upon the applicant as the father figure and for the financial support he provided.
In terms of the applicant’s insight into X’s emotional needs, whilst I accept he could be criticised for not telling the respondent about the imminent birth of his new baby, and thus for putting X in a position to keep secrets, it is in light of the parties’ ongoing conflict that this is not entirely surprising.
Ms G appeared to have good insight into X’s emotional needs. For example, she said she tries to listen and remain neutral when X says negative things about her mother.
Ms M likewise said she would divert X if she was having a bad day and complaining about her mother.
The respondent on the other hand conceded under cross-examination that her father, the maternal grandfather, had a very low opinion of the applicant and that X would have been exposed to this at times. Ms N expressed that this may create loyalty demands but would at the very least be very hurtful.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and their parents, and any other characteristics of the children the Court thinks relevant
I have considered the matters relevant to this paragraph already in these reasons.
If the children are Aboriginal or Torres Strait Islander children
This is not a relevant consideration in this matter.
Attitude to the child, and to the responsibility of parenthood demonstrated by each of the child’s parents
It is the responsibility of a parent to maintain a child’s relationship with the significant people in their life.
I am concerned that if X were to move to Queensland that the respondent would not support the ongoing relationship between the applicant and X. It was evident at various parts of the evidence that the respondent did not see the applicant having any right to a relationship as X was not his biological daughter. For example, she told Ms N in the Family Report that the applicant has “no legal or other entitlements to X”.
In addition, the following are examples of messages the respondent has sent to the applicant:
We are done. Stay away from me and my daughter.
I’m asking you to leave my daughter alone what your [sic] doing isn’t right at all.
You are not to shower [X] anymore or being [sic] around her while she has no clothes on and she tells me I find out once and I will take it further, you are not her biological father and she is maturing as a girl and it is disgusting, I mean it.
Being with Unbiological [sic] family is not in her best interest [Mr Gilmartin]. [X] is my daughter not yours.
(as per the original)
Further to this, when the applicant asked the respondent if she needed his licence or Medicare card to take X across the border (due to COVID requirements), she said:
Why would I need your licence and Medicare card to take [X] anywhere? She is my daughter and I don’t need your approval.
In addition, the respondent intervened in the psychological therapy arranged by the applicant for X stating he was not permitted to arrange it because he was not the biological father. Likewise the respondent told the dance teacher that she should have checked the birth certificate to see if he was the biological father before enrolling X.
It was also telling that in the respondent’s original response she did not propose any orders in the event that the applicant was found not to be the biological father.
I note the conclusions in the Family Report:
It seems unlikely but [that] she will encourage and/or facilitate an ongoing relationship between [X] and the father if [X] resides with her.
In summary, it would seem the respondent has been willing to accept support from the father, stepmother, and paternal family whilst it suited her, and has not been too inconvenient. It is unfortunate the respondent demonstrated minimal insight into the importance [X]’s relationship with the father has been and will remain.
I cannot be satisfied on the evidence before the Court that the respondent would facilitate an ongoing relationship between X and the applicant.
I also note that the respondent has a history of failing to abide by Court orders. The respondent has multiple convictions for driving whilst disqualified. Further to this on three occasions warrants were issued for her arrest as she failed to attend Court when required. The respondent tried to justify this driving in terms of escaping from domestic violence, however I do not consider given the number of offences and the period of time over which they occurred that this is a reasonable explanation. It also does not explain her failure to appear in Court.
Accordingly, I could have no faith that the respondent would abide by Court orders to facilitate a relationship between X and the applicant.
However I am satisfied that if X were to remain in the Region B that the applicant would promote the relationship with the respondent. It is inherent in his very application that if she were to return to the Region B that X should be in her primary care. It is also evident in his behaviour, for example, the evidence shows that when the respondent could not afford to travel to visit X on Mother’s Day that he paid for X to travel to Queensland. The applicant also has a history of generally supporting the respondent, by assisting her to physically move back from Town P and to move from Sydney to City Q. In addition, when the respondent lived in Sydney the applicant or his mother were frequently responsible for collecting and returning X (as well as J) as the mother did not have a licence.
Ms M has also endeavoured to arrange for X to see her maternal great grandmother and her aunt. The respondent, to her discredit, chose to see this as some sort of intrusion on her family, rather than acknowledging the benefit to X.
I am not critical of the applicant for not agreeing to an extra weekend when he had booked accommodation for his birthday; noting he offered the respondent additional time on her birthday weekend. Nor was it unreasonable for the applicant to prioritise X’s end of year dance preparation rather than sending her to Queensland for a weekend given X’s keen interest in dance and noting she was due to travel there in the long summer break.
Although the respondent alleges X calls Ms G “Mum” it was clear in the Family Report that X identifies Ms G as her step-mother.
Any family violence involving the children or a member of their family, and if a family violence order applies or has applied, any relevant inferences that can be drawn from the order
There are no family violence allegations as and between the parties. There are no intervention orders.
Whether it would be preferable to make the order that would be least likely to lead to further proceedings
Both parties seek final orders. It is not controversial that it is in X’s best interests for there to be no further proceedings.
Any other fact or circumstance that the Court thinks is relevant
A significant issue in this case is the respondent’s wish to live in Queensland. She says she seeks the comfort and support of her parents and her extended family who remain living there and are close by.
Whilst the child’s best interests are the paramount consideration, they are not the only consideration. Parents have a right of freedom of movement. Of course, a parent’s right pursuant to the High Court’s decision in U v U:
…must defer to the expressed paramount consideration, the welfare of the child if that were to be adversely affected by a movement of a parent.
Whilst not required to provide a compelling reason for the move, the context of a move may shed light on whether the moving parent understands the importance of the relationship between the child and the party left behind and whether they are likely to do all they can to maintain that relationship.
The respondent has historically frequently moved at will and without consultation with the applicant.
In or around November 2016 the respondent moved X to Sydney without consulting the applicant and indeed on his evidence did not tell him at all. He says he went to her home and found the house empty. She says she fled due to threats from her ex-partner. The applicant also says his requests for time went unanswered and he did not see X for six weeks other than speaking to her over the phone. Thereafter, in order to ensure he continued to have a relationship with X, the applicant (or his mother) regularly drove from Town R to Sydney on a Saturday morning to pick X up and then returned her to Region S, Sydney on a Sunday afternoon.
When the respondent returned to City Q the applicant moved to be closer to X. Despite this, the respondent then moved to Queensland.
The applicant’s evidence was that he had been concerned about the respondent moving to Queensland for some time prior to the move.
In March 2020 the respondent’s parents moved to Town T, Queensland from the Region B and the majority of her extended family live there.
He says that on 15 July 2020 he sent the respondent a message:
You’re not planning on moving up there are you?
The respondent replied:
No I’m not moving there [Mr Gilmartin] what so ever I would never take her that far away from you and you should no [sic] that I would never in a million years take her away.
On 17 July 2020 the respondent sent the applicant a further text message:
I just need you to know 100% that I’m not taking [X] away from you and that I wouldn’t do that.
When it was put to the respondent under cross-examination that this meant she would not physically take X away she said it meant she would not stop the relationship with X. I do not accept that. When read in conjunction with her text message two days before it was clear she was reassuring the applicant that she was not moving to Queensland.
In any event the respondent attended Ms M’s home on 17 July 2020 and removed X two days earlier than planned and took her to Queensland for a holiday.
Upon her return the respondent advised the applicant that she was giving up her house and moving in with her grandmother so she could help the family out financially. However, only about four days later, on or about 4 August 2020 the respondent moved to Queensland with X. Under cross-examination she said that in those few days she realised her grandmother was not able to support her with J, and made the decision to move.
Despite this, in contradiction to the aforementioned evidence, the respondent says in her affidavit filed 20 October 2020 that it was always her intention to relocate with her parents to Queensland but that the move was actually delayed when J had surgery in early 2020 and then postponed due to COVID border closures.
The respondent says her reason for moving was the need to be near her substantial support in Queensland. Her parents are now in Queensland as well as her sister and one brother who live ten minutes from her current residence and all her extended family are within 20 kilometres. She describes her family as a “massive support system”.
The respondent attests to needing support to manage J who has autism and ADHD. However there is no evidence before the Court as to the level of extra support she requires. I note further that Ms M spent significant time with J and says that upon being medicated he was a delight to care for. Due to my previous findings of credit I also prefer Ms M’s evidence on this issue.
The respondent’s evidence is that since she has moved to Queensland her mental health and that of J has improved. She says J has settled in at his new school, has improved academically and socially and has an opportunity for a scholarship to a prestigious school. There is no evidence to corroborate any of these assertions. The respondent did not accept under cross-examination that she would now have the support of J’s father if she returned to the Region B, that a like school could be found for him in the area or that J could return to his previous specialists.
In addition, the respondent also says that the Region B area has very unhappy memories for her, not only of domestic violence but of her unhappy childhood. In this regard it is apparent in the police records that the respondent moved out of home at 15 to get away from her own mother’s abuse so it is somewhat difficult to understand how in moving to be near her she is getting away from those memories.
The applicant takes issue with the respondent’s claim that her family is a “massive support”. He points out that none of the respondent’s family were on affidavit and although the respondent annexes references from third parties, neither are family members. Furthermore, as already canvassed, it was the applicant and his extended family who provided the support to the mother when she was in crisis rather than any family members.
In addition, Ms M gave evidence that when the respondent was living in the Region B she provided extensive support to the respondent, by way of picking up X and J from school on alternate Fridays, taking them home to the respondent’s house and bathing and feeding them for when she returned from work. The respondent in her affidavit denied this entirely although in the Family Report said this was “once in a blue moon” and under cross-examination that it was both correct and incorrect. Due to the inconsistency of the respondent’s evidence and the finding of credit I have already made, I again prefer the evidence of Ms M on this issue.
There is also a real concern that the respondent may move again. The applicant says that X has lived in nine different homes between 2013 and 2020. He was not challenged on his evidence that the respondent initially lived in Town U, then moved to Suburb V, Suburb W, Town Y, Suburb Z, Region S, Sydney, Suburb AB, Suburb O and now Queensland, where she has already lived in three houses. Even accepting that some of these moves were to refuges or transitional housing, this is still of significant concern. X has also had to move schools from AC School to O School to a Queensland school and now back to Suburb O. The concern is that should X move back to Queensland then it may not be long before the respondent seeks to move again. The respondent says she has a long term lease and employment however there is no corroborative evidence of this.
In all of the circumstances I accept that the applicant ought not to be expected to move to Queensland. In this regard I note that he has already moved once to be nearer to the respondent, moving from Town R to Suburb E, when she returned to City Q. The applicant is now settled in Suburb E, where both he and his partner have employment. They also have a young child and their family support is nearby.
reasonable practicability
As this matter does not concern two parents I do not need to consider whether it is reasonably practicable for X to spend equal, or substantial and significant time with her parents pursuant to s 65DAA(5).
consideration of the competing proposals
There are advantages and disadvantages to X flowing from each of the proposals advanced.
Advantages of the move to Queensland:
·X would be able to live with her mother who had previously been her primary carer;
·X would be surrounded by her maternal family;
·X would live with her half-brother J.
Disadvantages of the move to Queensland:
·X would likely lose her relationship with the applicant;
·X would likely lose her relationship with the applicant’s extended family;
·X would likely lose her relationship with her step-brother H;
·X would have to leave the home and community she has lived in for two years;
·X would have to again change schools;
·X would have to leave her dance school, which she loves;
·This may not be the last time X has to move.
Advantages of staying in the Region B:
·X is likely to have a relationship with both parties;
·X would have a relationship with the applicant’s extended family;
·X would stay at the same school;
·X would stay in the same house she has lived in for two years;
·X would continue her dancing and singing;
X would live with her step-sibling H.
Disadvantages of staying in the Region B:
·Unless the respondent returns to live in the Region B X would spend more limited time with her mother and with J;
·X would spend more limited time with her extended maternal family.
discussion
Balancing all of the competing considerations, and after having carefully contemplated the advantages and disadvantages to X of the proposals, I am satisfied that her best interests will be met by remaining in the Region B and living with the applicant. I accept on the evidence of the respondent that she is unlikely to return so I do not propose to make orders in the alternative.
I note that this is not consistent with the written recommendations of the Family Report writer, Ms N, although she did concede under cross-examination that much appeared to have changed since the report. Further to this, she conceded that given X had been with the applicant for two years, was well settled at school and in her extracurricular activities and that she may be exposed to negative comments in the respondent’s household this may cause her to recommend leaving X with the applicant. In any event, pursuant to Hall v Hall [1979] FamCA 73 I am not bound by her recommendations. I have had the benefit of seeing the parties give evidence and be cross-examined and the totality of the evidence and the findings I have made do not support X living with the respondent in Queensland.
The specific orders that meet X’s best interests are those proposed by the ICL with some slight variations and as amended to provide for each party to meet the costs of X’s travel, which was ultimately agreed by the parties.
The other variations I propose to make are:
(1)That the respondent not exercise her weekend time on the Father’s Day weekend as it would be in X’s interest to spend Father’s Day with the applicant;
(2)That the respondent provide four weeks’ notice rather than 14 days’ notice. I do not accept on her evidence that she cannot give four weeks’ notice; and the applicant needs to be able to make plans for X as she will be in his primary care, however he should confirm within seven days of that notice that X is available to spend that time to enable the respondent to make arrangements and book flights.
I also accept the submissions put by the applicant that I do not have the power to make orders 8 and 9 as proposed by the ICL in their current form, and as indicated I will make them as a notation.
Otherwise I accept that the orders strike a balance between providing X with substantial time with her mother in the holidays as well as time to spend in her local community. I note the evidence of Ms N in regard to the particular importance to children, in this case X, of extracurricular activities. With respect to special occasions these orders provide for a division of the long summer holidays such that Christmas will be alternated. Otherwise distance is prohibitive for time spending on birthdays, Mother’s Day and the like unless the respondent is prepared to travel to the Region B. In which case, provided she gives notice in accordance with the orders, she will be able to exercise that time.
In terms of phone calls, I accept the submissions of the ICL that the evidence supports less frequent calls being of greater benefit to X. Historically X has been having daily phone calls with her mother but on the evidence these have become shorter over time. It would seem that daily phone calls would be difficult for X to sustain as she gets older. However I will also make an order that each party ensure X calls the other at any reasonable time that she requests as well as an order that the parties be able to communicate with her via electronic communication as both these orders seemed to be in line with each party’s proposal.
In regard to the remainder of the orders proposed by the ICL, neither the applicant nor the respondent made any submissions opposing same. As they do not appear to be controversial and would in my view be in X’s best interests I will also make orders in those terms.
I have also made an order that will enable the applicant to obtain a Medicare card to include X, a practical necessity given she will remain in his primary care.
Finally, I have included an order that the mother contact Mr D and advise him again that he may be X’s father and that these orders have been made. Moreover, that she request an address to which she can send a copy of these orders. In addition I have made an order that Mr D have liberty to set aside these orders within 28 days.
If a party sought an order and I did not so order that is because either it was not by consent or the evidence did not support it.
For all of the foregoing reasons, I make the orders as are set out.
I certify that the preceding one hundred and seventy (170) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jenkins. Associate:
Dated: 15 November 2022
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