GILROY & FRANK
[2019] FCCA 1480
•9 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GILROY & FRANK | [2019] FCCA 1480 |
| Catchwords: FAMILY LAW – Parenting arrangements – relocation – shared care arrangements – practise of culture – practise of aboriginal culture. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 4AB, 60B, 60B(2)(e), 60B(3), 60CA, 60CC, 60CC(6), 61DA, 61F, 65DAA, 65DAA(5). |
| Cases cited: AMS v AIF (1999) 199 CLR 160 Additional sources: Edward Tylor, Primitive Culture: Research into the Development of Mythology, Philosophy, Religion, Art, and Custom, (John Murray, London, Volume 1,1871). A.L. Kroeber and Clyde Kluckhohn, ‘Culture: a critical review of concepts and definitions’ (1952) 47 (1) Peabody Museum of Archaeology & Ethnology, Harvard University. S.H. Schwartz ‘Universals in the content and structure of values: Theory and empirical tests in 20 countries’ (1992) 25 Advances in experimental social psychology 1–65. G. Hofstede, Cultures and Organizations: Software of the Mind (Harper Collins Business, 1994). D. Matsumoto Culture and Psychology (Cengage Learning, 6th ed, 1996). K. Avruch, Culture and Conflict Resolution (United States Institute of Peace Press, 1998) Bruce Pascoe, Dark Emu (Magabala Publishing, 2014) Daren Hanlon (2006) ‘Happiness is just a Chemical’ Fingertips and Mountaintops. |
| Applicant: | MR GILROY |
| Respondent: | MS FRANK |
| File Number: | HBC 73 of 2017 |
| Judgment of: | Judge Harman |
| Hearing date: | 8 May 2019 |
| Date of Last Submission: | 9 May 2019 |
| Delivered at: | Hobart |
| Delivered on: | 9 May 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Trezise |
| Solicitors for the Applicant: | Tierney Law |
| Counsel for the Respondent: | Ms Mooney |
| Solicitors for the Respondent: | Wallace, Wilkinson & Webster |
| Counsel for the Independent Children's Lawyer: | Mr Fitzgerald |
| Solicitors for the Independent Children's Lawyer: | Legal Aid of Tasmania |
ORDERS
All prior parenting orders be discharged.
Ms Frank and Mr Gilroy have equal shared parental responsibility for [X] born … 2012 and [Y] born … 2015 (“the children”).
The children live with the mother.
The father spend time and communicate with the children as follows:
(a)For the Term I, Term II and Term III school holiday periods (i.e. In April, July and September/October) from the first Saturday of each school holiday period to the Friday immediately prior to the commencement of the following school term;
(b)For one half of the December/January school holiday period as follows:
(i)In odd years, commencing 23 December and concluding on the second Friday in the following January;
(ii)In even years, commencing 26 December and concluding on the second Friday in the following January;
(iii)Any other holiday period as may be agreed between the parties from time to time;
(c)In the children’s home town upon the father providing the mother with fourteen (14) days’ notice of his intention to spend time with the children with such time not to exceed seven (7) days in each school term and provided the nominated dates do not include 24 – 26 December;
(d)By reasonable telephone or facetime communication whereby the father shall telephone the mother and the mother will facilitate that phone call;
(e)Any other such time as agreed between the parties from time to time.
For the purposes of facilitating school holiday time, the father shall collect the children from the airport closest to the children’s home town at the commencement of the children’s time with the father and the mother shall collect the children from the airport closest to the father’s home at the conclusion of the children’s time with the father.
The cost of the children’s airfares shall be equally shared between the parties and each party shall be solely responsible for the cost of their own airfares to accompany the children to and from their home town.
The mother shall facilitate the exchange of mail, gifts and electronic communication between the children and the father.
The mother shall facilitate reasonable communication between the children and the extended family of the father.
The mother have reasonable telephone or facetime communication with the children during periods in which the children are in the father’s care with the mother to telephone the father and the father will facilitate that phone call.
Each party provide to the other with not less than fourteen (14) days prior written notice of any proposed change of address or landline or mobile telephone number.
Each party shall forthwith inform the other of any significant illness or injury sustained by any of the children whilst in their care and further provide the other with full particulars of the name and contact details of any medical or health professional or hospital from who or at which the children have received or are to receive treatment.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena or pursuant to section 69ZW of the Family Law Act 1975 be returned to the person or organisation who produced same or securely destroyed.
All outstanding Applications and Responses are dismissed and all issues are removed from the list of matters awaiting hearing.
THE COURT NOTES THAT:
A.The child [X] born … 2012 will transition into the mother’s care during the July school holidays in 2019.
B.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Gilroy & Frank is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT HOBART |
HBC 73 of 2017
| MR GILROY |
Applicant
And
| MS FRANK |
Respondent
REASONS FOR JUDGMENT
These proceedings related to future care arrangements for two young children:
[X], born … 2012, nearly seven years old; and,
[Y], born … 2015, nearly four years old.
The parties to the proceedings are the children’s parents, their father, Mr Gilroy, the Applicant, and their mother, Ms Frank, the Respondent.
It is, in many respects, (although it is trite to observe in common with a majority of families), regrettable that these parties are before the Court. That is particularly so as each of the parties acknowledge and agree, and it is manifestly so, as is readily apparent from all of the evidence, very little of which is the subject of controversy, that these are two very lucky children. These children have two highly competent parents as well as a great many others who love them and who wish to be involved in their lives.
These reasons are delivered on an extempore basis. That is for a number of reasons.
The matter is heard by a visiting judge. If a judgment is not delivered today it will need to be reserved and may not be delivered for some little time. The parties deserve more timely determination of their dispute than that. The delay which might arise is, however, the least of the concerns.
There are two important, indeed, imperative reasons why the matter is determined on an extempore basis.
Firstly, the parties agree that the interests of these children would be best served by the children living together. Whilst the Independent Children’s Lawyer potentially introduces some controversy as regards this proposition, advancing an alternate proposal that one child might live with each parent, the parents remain agreed that these children should live together. The children do not presently live together.
Secondly, and as observed by Darren Hanlon,[1] “certain things should be said to the face” (‘Happiness is Just a Chemical’ (2006) Fingertips and Mountaintops). Immediacy is lost for parties when the determination of their parenting dispute, something that will fundamentally affect these parents and their children, as well as a great many others, including members of the children’s extended families, is delivered to them by the handing down of a sterile, written judgment. It is preferable, to my mind, that decisions be made with some immediacy, when that is achievable. Parties are entitled to an oral judgment pronounced when they are present, when they can be addressed directly, when they can hear the reasons that are behind the orders that will interfere with and affect their family.
[1] Daren Hanlon “Happiness is just a Chemical” 2006 Fingertips and Mountaintops
Even that aside, unless I felt that I was able to fully and properly grasp the evidence, I would not embark upon this course. I am aided in this respect, as counsel for the Independent Children’s Lawyer has self-deprecatingly observed, by counsel for each of the parties and their instructors, who have prepared the case in a fashion and conducted the case in a fashion that permits the evidence to be clear, certain and well-understood.
Coming from the mainland, as it has been described throughout the case, it is easy to forget that lawyers are capable of being problem solvers, that they are capable of irenic practise rather than polemicism and that it is possible for lawyers to undertake that which was opined by Harvard Academic Simon Green, and later immortalised by Lincoln, in stating that the role of the lawyer is to assist neighbours to find a resolution to their dispute.
These parties have prepared their cases and have presented their cases in a fashion that has been focused upon relevant areas of controversy and has been, by and large, confined thereto. That is so notwithstanding a number of difficulties, indeed, distrusts that have arisen between the parties and possibly between others. The material filed in these proceedings is not resplendent with catalogues of complaint by one towards the other. The affidavits are not a jeremiad. The material is restrained. Each of the parties are refreshingly positive and forward focused in the manner in which they address this dispute. It is for those reasons that these reasons for judgment can be delivered on an extempore basis.
Material Considered
Prior to the commencement of the hearing, an extensive case outline document was provided by counsel for each of the parties and by counsel for the Independent Children’s Lawyer. Those case outline documents enumerate the material that the parties rely upon. However, the material has expanded somewhat since the commencement of the case and thus warrants and deserves further enumeration.
In the father’s case, I have read and considered three affidavits being the father’s trial affidavit, an affidavit of Mr Gilroy mother, (the children’s paternal grandmother), Ms A, together with an affidavit filed in Court this morning by a Ms B. Ms B is the mother of a young child, [C]. [C] is the child of a relationship between Ms B and Mr Gilroy.
In the mother’s case, I have read and considered each of the documents that she has filed comprising her trial affidavit, an affidavit by Mr D, her partner, an affidavit by her father, (the children’s maternal grandfather), Mr E and a very brief affidavit by Ms F, a friend or associate of the mother. Mr E and Ms F have not been required for cross-examination; an appropriate forensic decision made by counsel for the father. It would not have aided the evidence.
There are also a number of exhibits, comprising:
a)The Family Report prepared in the proceedings dated 31 August 2018;
b)A Minute of Orders tendered by the Independent Children’s Lawyer at the outset of trial. It must be observed that the Minute does not provide clear or specific orders. That is no criticism. It is a reflection of the delicate balance in a number of areas of the evidence in the case. The Minute is also prefaced as being orders that would be supported if certain findings of fact were made or not made by the Court;
c)There are also then a number of text messages communicated between the parties, exhibit R1; and,
d)A copy of a Certificate of Title in relation to a parcel of real estate, exhibit R2, (that being a property upon which the father and his mother presently reside and which is owned in a triumvirate of proprietorship between the father, his father and the mother, Ms Frank).
Beyond Mr E and Ms F, each of the deponents of affidavits and the author of the Family Report have been required for cross-examination. The cross-examination has been appropriate and erudite.
Proposals of the parties
The Minute of Orders proposed by the Independent Children’s Lawyer, subject to certain findings of fact being made, might best be described as proposing one of two alternatives. If the Court is satisfied of certain matters, some of them positive, some negative, then the children would remain in their present placements. The older child, [X], presently lives with his father. The younger child, [Y], presently lives with her mother.
[X] lives with the father in an area of Hobart. [Y] lives with her mother in Town G, in country New South Wales. That has been the case since July 2017, verging upon two years now. Prior to that both children had lived with their mother and had done so from the date of separation in March, (or thereabouts), 2015. Prior to that, [X] lived with the parents. [Y] was born after the separation of the parents and has no lived experience of living with her parents jointly. [Y] has, at all material points in time, lived with her mother. [Y] has never lived, on an ongoing basis, with her father or, for that matter, subsequent to July 2017, her brother.
If the matters to which the Independent Children’s Lawyer draws the Court’s attention are the subject of findings, then the Independent Children’s Lawyer supports the children living with one parent. In that case, orders would be made as sought by each of the parents. The parents are largely agreed as to the arrangements that will apply for these children if they were living together with one parent. That is, the children would live predominantly with that parent and would spend the predominance of school holiday periods with the other parent. The parents agree that they would equally share the cost and responsibility of travel.
History of the proceedings
The proceedings were commenced by an Application Initiating Proceedings filed on 13 April 2018. That was a time of crisis for this family on any view of the evidence, although the parties are very much at odds as to that which preceded and precipitated the crisis.
The crisis itself is not the subject of any significant controversy. At that point in time, discussions occurred between the parties regarding [X] travelling with his mother for a period of time, having been in the father’s care for the nine months or so prior thereto.
What in fact transpired and what appears to be without controversy is that the mother acted upon a predetermined plan. The child was uplifted and taken by the mother to her then place of residence in Queensland. I do not put it in those terms to be critical of the mother. It is certainly a criticism that is very much levelled by the father. This period is identified by the father as the point in time at which communication and trust between these parents is said to have deteriorated, perhaps to the point of irrevocable decline.
However, there are other controversies which predate these events and which have also affected the present level of distrust and which might be said to have led inevitably to the events in April 2018.
The application, as filed by the father, sought orders on a final basis, albeit, as would appear to be local custom without specificity. The interim relief sought was far more specific. The application sought a recovery order to secure [X]’s return to the father’s care.
That application was the subject of an application for consent to abridgement of time. Short notice was granted by a Registrar and the proceedings came before the Court on very short notice.
The matter came before the Court on 18 April 2018, only some days after the application was filed. The application would appear to have been served promptly or, at least, notice was given. The mother appeared by telephone and was assisted by the duty solicitor at the Hobart registry. The mother raises certain complaints in relation to the advice she received and/or the manner in which the case was addressed. I need not delve into such controversies, save to observe that the onerous and arduous duties which befall a duty solicitor are made, if not impossible then verging upon it, by seeking to engage with a client, take instructions, give advice and assist that client by telephone.
On 18 April, 2018 orders were made by consent which suspended earlier orders. I will come to those shortly. In addition, orders were made for [X] to live with his father, for [Y] to live with her mother and for both children to then spend the majority of school holiday time together, spending a portion with each of the parents. An order was made for the mother to return young [X] to the father. A recovery order was issued to lie in chambers subject to the mother’s compliance with the above order. Important procedural orders were also made including the appointment of an Independent Children’s Lawyer.
The proceedings were next before the Court on 10 July 2018. At that time, again, orders were made in relation to time arrangements for the children and, importantly, a Family Report was ordered. Thankfully, that report was prepared on an expedited basis, extraordinarily so. The order commissioning the report was made on 10 July 2018. The family report was prepared, available and released to the parties by late August/early September 2018. Hence, when the matter next came before the Court, after the release of the Family Report, the proceedings were the subject of trial directions and the matter has moved to a trial, most expeditiously.
That expedition is befitting the needs and interests of this family although, regrettably, for so many cases it is unattainable.
As would be apparent, this tranche of proceedings does not represent the first intervention by the Court, although the earlier dealing that the parties have had with the Court was to obtain orders by consent. Those orders were made by the Family Court on 30 January 2017.[2] The orders of 30 January 2017 provided that the parents were to have equal shared parental responsibility for the children, that the children would live with their mother and that the mother would be “permitted”[3] to relocate the children to New South Wales and, in particular, Town H, (although the township is not identified in the order). An order was also made with respect to the father’s time and his practice of relationship with the children to occur predominantly during school holidays as well as by visiting the children in the area in which they were living.
[2] This is on the basis that the Federal Circuit Court Rules to not provide a mechanism for orders to be submitted by consent absent extant proceedings.
[3] The term “permitted” has been italicised in light of the comment by Gleeson CJ, McHugh and Gummow JJ AMS v AIF 199 CLR 160 188 “…it would be preferable that such references to "permission" to relocate be avoided” and the discussion by their Honours as to why this was so.
Subsequent to the making of those orders the mother did, in fact, move to Town H with the children. Whilst living in Town H, the mother met her partner, Mr D. Sometime after the relationship commenced and, as a consequence of Mr D’s employment, a move from the Town H area to Southern Queensland occurred. It is unclear from the evidence, although nothing turns upon it, whether the father had been forewarned that the mother and children were relocating to Queensland or whether she simply did so, and the father became aware some short time after. In any event, the move occurred.
At about the time of that move – possibly shortly before, possibly shortly after – difficulties became apparent with respect to young [X]. It would seem he was not coping as well with the move from Tasmania as the mother and young [Y] were. As a consequence, the mother, reactive to the child’s then behaviour, or distress, whichever it may have been, (if not both), made contact with the father. Arrangements were made for young [X] to travel to Tasmania and spend some short time with his father.
The parties would appear agreed that [X]’s return to Tasmania was, at least initially, intended to be a period of weeks. The father’s evidence perhaps goes further, suggesting that the mother had intended it to be, whether it was expressed as such at that time or not, a longer period, possibly permanent. The parties agree that they subsequently had a further discussion in the latter part of 2017. That conversation occurred when the mother travelled to Tasmania with young [Y]. During that trip, [Y] fell ill. The parties agreed the [X] would stay longer (if, in fact, they had not previously come to that agreement).
The mother’s evidence is clear. The mother says that she expected and believed that [X] would return to her care at or about Christmas 2017. The father suggests that such an agreement was never apparent. The father says that it was his understanding, from the get-go as it were, that the child would remain with him. Causing some confusion in that regard, at least potentially so, is the evidence of Ms B.
Ms B was involved in Family Report interviews but did not, until the second day of trial, swear an affidavit. Ms B is suggested to have intimated to the family consultant (as the Family Report reports) that her understanding was that [X] initially came for a brief period and that there was then a renegotiation so that the child would stay until the end of the year. Ms B was not aware of any further discussion but inferred and believed, as a consequence of the actions then occurring, (i.e. [X] remaining in Tasmania with his father), that the parents must have reached a further agreement for the child to stay.
What then transpired is that in April 2018, the crisis which befell this family, the mother determined that she would obtain the child back into her care. Whether that was an exercise of self-help by the mother, responsive to her earlier entreaties to the father for the child’s return and which entreaties were rebuffed, or whether it was simply a plot hatched at the time need not be determined. [X]’s retention by the mother certainly gave rise to a significant dispute between the parties and, thus, the urgently commenced proceedings which now find their conclusion at this trial. Since that time, the children have been separated from each other, [X] living with his father, [Y] with her mother.
At about the time of the child’s retention, shortly after it would seem, only a matter of weeks, the mother and Mr D moved from Queensland to Town G, the place where Mr D’s family resides and where Mr D owns a property. Very shortly after that move, the mother and Mr D determined to end their relationship. I do not refer to it as “ending the relationship” to suggest that either of them, at that time, had an intent that the relationship would be over forever. However, their separation, whether it was a break, whether it was a temporary separation or however it may be described, was a reality.
The mother then moved with [Y] to a property in the Canberra area where Mr E, her father, lives, thus returning to the support and succour that he provides. That support had been the basis upon which the mother had wished to leave Tasmania and relocate to Town H in the first place. Having moved there, Ms Frank then remained for some little time, it would seem until the latter part of the year and shortly before Christmas 2018. In late 2018, Ms Frank reconciled her relationship with Mr D and, hence, they have both lived together, in Town G, for the last five or six months.
Each of Ms Frank and Mr D suggest, during their cross-examination, that they are committed to their relationship and desire it to continue. They continue to live together at this time, not only with young [Y] in the household, but with a child, [J], one of five of Mr D’s children from a prior relationship. [J] has lived with Mr D both in South Queensland and now in Town G.
Mr Gilroy continues to live by himself although on a property with a number of dwellings. His mother, Ms A, lives in one of those dwellings. Ms B, the mother of [C], lives some short distance away, and spends time with Mr Gilroy, together with [C], possibly twice per week at this point. Previously and prior to Christmas, it would seem, corresponding – but I do not suggest correlating with – Ms A’s move to the property at which Mr Gilroy lives, the visits had been more frequent.
Thus, the parties’ present circumstances of the parties are delineated.
Factual issues
The parties have, since July 2017, practiced an arrangement as already described, wherein the children have spent some part of each school holiday period with each parent and together. This has continued until Easter 2019. At that point, on the basis of Mr Gilroy evidence, he could not afford the travel to return [Y]. Thus, the time periods did not occur at all and these children were deprived of the time together which they would otherwise have enjoyed (as well as time with each of their parents and extended family).
I use the expression that the children enjoyed periods of time as a euphemism. One area of the evidence that is, perhaps, extraordinary, is the real affection, warmth and joy that each of the witnesses in this case, (perhaps absent from the family report writer but they have no familial connection with either child, but confirming the report writer confirms the reality), exuded when asked about the relationship between young [Y] and young [X]. They describe that relationship with delight, describing the children as “lighting up” when together. It would appear that the relationship between the siblings is abundant.
It should be observed that, from the separation of the parties, occurring some months before [Y]’s birth, and until July 2017, these two children lived together full-time with their mother. Prior to the separation of the parties, [X] lived together full-time with both of his parents. Since July 2017 the children have been separated and they have, at best, spent school holiday periods and possibly some other time with each other and with one or other of their parents.
Another striking feature of this case is the relative lack of factual dispute. The parents agree on most things. Counsel for each of the parties have provided a chronology in their case outline documents. I propose to incorporate and blend the two chronologies. They are largely mutual. They largely speak of the same events although there are a number of occasions when one or other of the parties sets forth an event which is of more assistance, or perceived to be so, to their respective case than the other. Accordingly, the chronology, combined as it will be, will make clear when matters are mutual and will otherwise specify which of the parties makes the allegation if there is controversy. Although, even in those circumstances, each party refers to the same event but perhaps with a different perception or interpretation. That chronology is set out at Annexure ‘A’.
There are a small number of controversies that must be addressed. None of them are dispositive of any specific issue in this case. I propose to turn to those shortly before briefly discussing some aspects of the Family Report which require comment. I will then turn to the legislative provisions.
Denigration
There are significant issues raised by the parties and each of them with respect to denigration.
In the mother’s case, she suggests that she has been the subject of denigration by the father and by persons associated with the father, principally, Ms A.
Before embarking upon a discussion of those allegations, I acknowledge that the allegations might well be perceived as a negative following the above positive statements. However, the issue is, as counsel for the mother has described, one of the issues which must be addressed, a nettle to be grasped, as it were. Before doing so I wish to make clear that I have no criticism of any fundamental nature to make of any witness in this case. Indeed, two of the witnesses, one in the father’s and one in the mother’s, stand out as extraordinarily competent witnesses. Competent in the sense that their evidence is truthful and balanced.
Mr E, the mother’s father and the maternal grandfather of these children is in the extraordinary position whereby he maintains an excellent relationship not only with his daughter but with her new partner, her former partner and with each of these children. He has nothing bad to say about either of these parents or at least nothing of any real substance.
By close of evidence, it is clear that each of these parents, to adopt a submission by counsel for the father, may be distrustful of the other but they are respectful of the other. Each parent readily concedes that the other is, with some shortcomings (largely relating to trust issues), an excellent parent and a confident, caring parent to each of these children. Each parent clearly loves each of these children. More importantly, each parent readily concedes that the other parent loves the children and that the children love each parent. Each parents agrees that each of the children’s experiences of life would be lessened by the absence of either parent.
Mr E’s evidence is extraordinary in its balance, its even temper and its ability to be critical – albeit in polite and largely inconsequential ways – of each of the parties including his daughter. Mr E is incredibly supportive of each parent and acknowledges the strengths of each. Such witnesses, regrettably in this jurisdiction which, whilst adversarial in nature, need not involve the conflation of aggression and adversarial, are rare. If only there were more such witnesses. One wonders how much better off children and society as a whole would be.
Similarly, young Ms B, whose affidavit material is late in arriving but who, through involvement in Family Report interviews (and accurately reported therein) gave comment, demonstrates similar balance. Bearing in mind that Ms B might well be assumed as partisan, being the partner of Mr Gilroy, she is described by the Family Report writer, from the outset, as balanced, thoughtful and genuine when expressing her thoughts on the then current situation and the parties’ proposals.
Ms B expresses that her partner, Mr Gilroy, is a loving, caring and actively engaged father. She is similarly complimentary of the mother. She has no criticism to make of her. That reality must be viewed in context. A relationship between Mr Gilroy and Ms B had commenced and subsisted prior to the separation of Ms Frank and Mr Gilroy, as evidenced by the birth of young [C] some seven or eight months after the separation of Ms Frank and Mr Gilroy (that separation being precipitated by Ms Frank becoming aware of Mr Gilroy relationship with Ms B if not Ms B’s pregnancy).
Shortly after the separation of Ms Frank and Mr Gilroy, Ms B obtained an apprehended domestic violence order against Ms Frank. Ms Frank concedes that she had contacted and communicated with Ms B in a fashion that was, in perhaps old-fashioned but appropriate language, unseemly and unladylike.
One aspect of that period – and there are many which are extraordinary, and which must be touched upon - is that Ms Frank readily concedes that her actions were inappropriate. Those actions are, however, entirely explicable. So often in proceedings before this Court, behaviours and actions are inappropriate but explicable.
Ms Frank’s acknowledgement of inappropriate behaviour and her apology for it (rather than complete denial or attempts to justify the behaviour) allows the matter to be approached through something resembling a restorative justice lens. If only that were possible more frequently. It has allowed the focus, (perhaps also due, in large part, to local culture and the counsel involved in the conduct of the proceedings and their instructors), to be upon positives, rather than seeking to apportion culpability as though these proceedings, inherently civil in nature, were somehow quasi-criminal.
Ms B goes so far as to acknowledge and accept the benefits that would be available to [X] if he returned to live with his mother. Ms B acknowledges the benefits that currently exist, and existed at the time of report interviews, for [X] in the care of his father.
Both Mr E and Ms B are extraordinarily genuine and credible witnesses. These children are lucky to have them in their lives. One would hope that both will continue in their lives, although there are some aspects of the evidence that might potentially impact upon that being a reality.
The issues of denigration that the mother raises are, however, serious. They involve, as is common in this day and age, social media posts. Why any member of the populace considers it necessary, from the incumbent within the White House downwards, to share their unfiltered thoughts with the world on social media appears inexplicable at many times. In this case, all the more so.
Very shortly after the separation of these parents, an extraordinary period of trauma for this family, particularly the mother, a friend of the father, a Mr K, opines on Facebook:
I hope my mate’s ex-girlfriend, Ms Frank, gets hit by a bus because she is a cunt. Fuck you, Ms Frank, you dog.
Why anyone would feel the need to speak of a then heavily pregnant mother of a young child, the mother of the child fathered by Mr K’s friend, is unclear. Perhaps it is indicative of that man’s lack of intellect or, at least, social graces.
To his credit, Mr Gilroy is clear that he has rebuked his friend and, whilst they remain friends, has expressed clearly that he does not agree with his posting such material. It is unclear whether it remains posted, but it is not Mr Gilroy post.
Ms A also engaged in posting a number of unpleasant and unseemly comments, perhaps to adopt the submissions of counsel for the Independent Children’s Lawyer, nasty and spiteful comments, with respect to the mother. One can well accept and understand that the grief and trauma of separation of one’s son or daughter would cause such beliefs and attitudes to surface. Why they need to be shared with a group, closed or otherwise, on Facebook for consumption by the world at large, (subject to one’s security settings) is unclear. This is all the more mystifying when Mr E has led by example by keeping his thoughts in check. In fairness to Mr E, he has not ever formed, let alone expressed, such views.
The comments that are made by Ms A, I do not propose to canvas at length. They are contained commencing at page 32 of the mother’s affidavit. Suffice to observe they are extremely uncomplimentary of the mother and conclude with a clear view that the mother should, as it were, “be kicked to the gutter”.
At that time of Ms A’s posts, or shortly thereafter, 31 December 2015, New Year’s Eve, Mr Gilroy, possibly imbibing substances legal or otherwise – and I make clear there is no suggestion of the latter in the evidence in this case at any time – and disinhibited, to give him the benefit of the doubt, joins the fray.
Mr Gilroy posts a comment, seeking to dispel, for all who will read his post, that anything that they have heard about him is true. Mr Gilroy, describes, for example, that he is not, for example, a cheat. If one takes the common meaning of that term in the context of a relationship, Mr Gilroy is, perhaps, lacking self-reflection in making that assertion as he most assuredly engaged in what would be, had Ms Frank and Mr Gilroy been married, adulterous behaviour. The Court does not, however, make moral judgments. It is not a matter of castigating the father for his behaviour. It is of no concern to the Court save and except the consequence that it has impacted these children and the manner in which it is then played out in public.
Mr Gilroy goes on to refer to the mother, no doubt as a consequence of that which has flowed upon the discovery of the relationship with Ms B and the parties’ separation, as “narcissistic” and “cold-hearted”, “a wolf dressed in lamb’s clothes”. Mr Gilroy proclaims that 2016 will be a new year and that things will be better in a variety of ways including, hopefully, that his children “will not be held by the mother as pawns in an attempt to manipulate” Mr Gilroy’s feelings.
Mr Gilroy, by his public post, ultimately offers the mother the sage advice that she might go and “deepthroat a fucking chainsaw”.
What is extraordinary about the maintenance of Mr Gilroy’s rage at that particular point in time is discovered by comparison to what had, by that point in time, become the settled arrangements for both children and, importantly, [Y]. [Y], it is to be remembered, was born after these parties separated. By the time of the above post, Christmas/New Year 2015, the mother had weaned [Y] so that she could be bottle-fed and could then spend not only time, but overnight time with her father, the child then four or five months of age.
That attitude by the mother, in the Court’s experience, is an extraordinary and exemplary attitude by a parent especially in light of the traumatic circumstances of the separation, trauma that certainly played out in the mother’s inappropriate behaviour in assaulting the father, in [X]’s presence. The mother owns that behaviour. She does not seek to deny it, trivialise it or in any way disavow her responsibility. Hence, that level of anger directed towards the mother by the father and grandmother, at that point in time is, at the very least and in the most euphemistic fashion, unhelpful and certainly undeserved. The mother had gone out of her way to address her hurt, so as to ensure, as she opined during her evidence in cross-examination, that both parents could be actively involved in parenting both children including the very young babe-in-arms, [Y].
Things have moved on from there, however. It would seem that the posts were either taken down or have, at least, been limited as to whom might view them. They have not been repeated or substantially so.
The troubling aspect is that by the time of the Family Report interviews in mid-2018, the father – Ms A was not interviewed – whilst acknowledging that the posts were problematic, sought to justify them, the father suggesting that the comments made in relation to Ms Frank were based in fact. There would not appear, on the evidence, to be any reason to accept that they are or were ever based in fact.
Again, things have moved on since then. I do not accept that Mr Gilroy continues to harbour such thoughts. I accept, without reservation, the submission that is appropriately put by Mr Gilroy’s counsel that the father respects the mother even though he does not trust her. Mr Gilroy had gone so far, as opined by counsel for the Independent Children’s Lawyer, to suggest that if certain other things had been, or in the future became, different, that he might support [X] passing to live with the mother so that both children were together in her care. I do not, for one moment, suggest that as a concession Mr Gilroy makes as to the arrangements that should apply.
The denigration issue, however, is not one-sided. The father suggests that the mother has, in the past, been, at the very least, dismissive or disinterested, and, at worst, rejecting of his role both as a father (and of the role of extended paternal family) and as an Aboriginal father (these children being Aboriginal and deriving that identification and heritage from their father and paternal family). I will come to the latter issues as regards the legislative provisions and a consideration of culture and cultural practice.
At this point, however, it is germane to observe that the evidence of Mr Gilroy is that the mother had described his culture as “rubbish” or something of similar nature. Further, Ms A indicated that she had, on one occasion, sought to have a discussion with the mother in relation to culture, discussing ancestors and the like, and that the mother appeared, at the least, disinterested.
The criticisms of the mother go beyond that. It is suggested that the mother has been derogatory towards the father, particularly during telephone conversations with young [X]. The mother annexes substantial transcripts of phone conversations between herself and [X]. The father annexes portions of them also. Each annexes them for different reasons. What the transcripts would reflect is perhaps little support for the position that each advances.
The mother certainly involves [X] in a greater deal of discussion about his father and criticism of the father than would be ideal. I do not suggest that it is or even verges upon concern or unacceptable risk. Again, those discussions are, perhaps, at least in part, inappropriate but explicable in the circumstances.
What is also clear from the records is the involvement of both parties in arguments with each other during what are ostensibly telephone calls between mother and child with the father described, albeit by the nomenclature “male in the background” yelling and commenting, at least for some of the conversations.
To the extent that each parent seeks to criticise the other, there is little to be gained by pursuing the issue. The matters arising from the calls are somewhat historical, and, in any event, each would appear to be inappropriate to a similar extent as the other.
Certainly, what is clear is that during those phone conversations, young [X] is upset, at times expressing that he misses his mother, explicably so. He has a close and important relationship with her as well as with his father.
To the extent that there are issues and concerns about denigration, the balance, if it might be so described, tips in favour of the mother. Her complaints regarding denigration would appear to be both more significant in magnitude and more likely to occur in the future. The complaints are quantitatively and qualitatively worse.
Ms A was, during her cross-examination – and she is otherwise a profound and credible witness – quite clear, not only through her words but, as described by Ms B during her cross-examination – her tone, as to her disdain for the mother and, to some extent, Ms B herself.
It was somewhat telling that Ms A could not make the same concessions of Ms B as were made by the Family Report writer, those to which I have already referred, that Ms B presented as being balanced, thoughtful and genuine.
Ms B is a woman in a difficult position at this point in life. She had not volunteered to be a witness in the proceedings until today and at a point when a call had been made for her to be produced to give evidence lest submissions would be made per Jones & Dunkel (1959) 101 CLR 298. That was particularly so as Ms B was involved in Family Report interviews and, to the extent that anything that was to be challenged as to the accuracy of the reporting of Ms B, her absence would irresistibly lead to an acceptance of the report writer’s description. After Ms B’s cross-examination, there is no serious challenge to the accuracy of the reporting.
Ms B is, perhaps, in a more difficult position as a consequence of other aspects of the evidence, particularly the evidence of Ms F and portions of the social media communications between the mother and Ms B. I am not critical of the mother for that communication save and except that the subject matter of the communication would appear to be less of an apology, as Ms Frank suggests, than detailing a significant degree of suggested philandering on the part of Mr Gilroy, those activities being otherwise unknown to Ms B. Those matters might cause some real distress if revealed.
I had expressed, at the conclusion of Ms B’s cross-examination, and do so again now, my gratitude, for the sake of Ms B if nothing else, let alone the dignity of this process, that the nuanced cross-examination of Ms B by Ms Frank’s counsel, stopped at the very point where it was appropriate to stop, a concession made that would enable submissions to be put as to credit but stopping short of opening the door to the impeached evidence of Mr Gilroy, evidence that would potentially cause significant distress to Ms B and possible disadvantage to poor young [C] who presently has two parents in his life, albeit not residing together in the same home. It would be a tragedy if one case, dealing with the sequelae of separation of parents, led to another separation and disadvantage of another child.
The manner in which the cross-examination of Ms B was conducted by Ms Frank’s counsel was exemplary.
Ms B, in that difficult position, has attended to give evidence. That follows the mother having made contact with Ms B yesterday morning, before the trial commenced, inquiring of her well-being. Again, that is not a criticism. Ms Frank is entitled to do so, and one would hope that it was with the purest of motives only. In any event, Ms B having now attended, her evidence is clearer.
Ms B does not significantly depart from anything that she had previously indicated to the family consultant although she is clear in suggesting that some of the matters that she raised have now changed a little, particularly that young [X] is now all the more settled than he was 10 months ago when the report interviews occurred.
The issue of denigration need not be canvassed further save that it will be touched upon when addressing the relevant legislative provisions.
April 2018
The second issue of controversy surrounds [X]’s move to his father and the period July 2017 until April 2018, the commencement of these proceedings.
There is no dispute that the mother instigated [X]’s passage into the father’s care in July 2017. The only issue is whether it was initially for a short period, whether it was intended to be forever and, if it was for a short period, whether there was ever any agreement to extend it beyond Christmas 2018.
In relation to those matters, I accept and prefer the evidence of Ms Frank. This is certainly not a case, as is submitted appropriately by counsel for Mr Gilroy, where findings of credit are a significant issue. They are not.
It is entirely possible and, again, I accept that it is so, that each of the parties may well have held a genuine belief that their perception of the arrangement was true or correct. Thus, it may well be that the parties simply misunderstood what was proposed or intended by the other.
Ms B’s remarks to the family consultant (the accuracy of which was confirmed by the family consultant in consulting with their notes) gives credence to, if not corroboration to, Ms Frank’s evidence. Ms B, at the time of the Family Report interviews, which occurred only some months after the catastrophe of April 2018, was clear that her belief had been that young [X] was staying until Christmas and then going home to his mother. Whilst Ms B’s evidence during cross-examination was that the position may well have changed, and she perceived that it had, that is not inconsistent with what the family report writer, I accept, was told by Ms B and recorded in her notes that being that the original agreement had been until Christmas.
I accept that a significant turning point for the father’s trust of Ms Frank was April 2018 and the child’s retention. In fact, going beyond that, the mother’s obtaining of the child into her care through chicanery. Can the mother be criticised to a significant extent for that? The answer would depend upon her understanding of when the child was to be returned to her. It may well be that the mother can assert, as she does, that on the basis that the child was retained from her in December, she felt she had no other course available.
Ms Frank, during cross-examination, indicated that she had sought advice and had been advised that if she had an order for the child to live with her that she was entitled to obtain and retain young [X]. Appropriately, counsel have not sought to further flesh out that evidence or to seek to explore the advice that was or was not given. It was unhelpful, though not necessarily inaccurate, advice at the very least as, without that action, these proceedings may never have eventuated. Perhaps the silver lining to that particular cloud is that if these proceedings had not eventuated, then the very thing that each party agrees should occur – the children’s reunification in one household – may yet not have been considered.
I am satisfied that:
a)[X] passed to the father’s care with the mother’s full knowledge and agreement, indeed at her instigation;
b)The mother’s intention was that the child would be with the father for some weeks although, subsequently, that was changed, with the mother’s agreement, to be a stay of some months, at least until Christmas.
c)The mother had not actively agreed to the child remaining with the father beyond the originally agreed time, Christmas 2017 and thus, in her perception at least, the child was retained by the father; and
d)The mother then unilaterally and with some degree of chicanery took the child back into her care, leading to these proceedings.
Each of the parties suggest that this young lad has “acted out”, at different times, as a consequence of things that are said, perhaps connecting this issue back to that of denigration.
It is suggested that [X] has said to the father, asserted as positive evidence, “Tasmania is my only home”. The criticism is then raised, particularly by Ms B, that the child now says “Tasmania is not my only home”, inferring that the mother has been involved in changing the child’s belief (assuming it was genuinely the child’s belief). It would seem probable, although I need make no finding that it is so, that the child is fully aware of the attitudes of each of his parents and quite probably fully aware of the attitudes of other extended family members.
Notwithstanding the above, Mr D is quite clear in his evidence, (again, there is no criticism of him at all), that he leaves the parenting of [Y] and [X] to the mother. He does not involve himself in it. As he states, they are not his children. That is not to suggest that he does not love them, have affection for them, interact with them warmly or that he is not a person of importance to these children. Merely, that he delineates his role thus. He parents his child, [J], the mother parents her children. Whilst they are both involved, it is not for him to make decisions. Again, a refreshing and appropriate attitude for Mr D to express. Mr D wholeheartedly understands that he has a role and it is not as a surrogate parent to [X] and [Y].
Mr E, of course, does not involve himself in the parenting of these children or decisions with respect to them in any negative fashion. He is, however, a person of great significance to both of these children. Mr E could not be suggested to be a person who plants things in the children’s minds that are disadvantageous. Similarly, Mr Gilroy does not do so, nor Ms Frank.
There is the lingering concern, explicably so, that the strength of vitriol expressed by Ms A in the past, may arise again in the future. Certainly Ms A’s presentation and demeanour, with respect to the mothers of each of [X], [Y] and [C], suggests that her views of those mothers are not high.
Ms Frank’s evidence goes further, to suggest that the negative view of her was formed at a very early time, before she even gave birth to [X], and that similar views have been expressed by Ms A of and to the mothers of other grandchildren. The latter aspect of the evidence would not be safe to accept without reservation as it was not really put to Ms A. However I do accept the mother’s evidence that her relationship with Ms A has never been particularly warm and effusive and, thus, she has not felt, whether she has been or not, supported as a parent.
What all of this connects with, in terms of [X]’s placement and the arrangements that have applied, is that [X] may well have had to endure some difficulties in mediating for himself the attitudes of various adults and not necessarily restricted to or always his parents.
Stability
Thirdly, there is dispute, perhaps more an issue of submission and interpretation than fact with respect to the stability of relationships and accommodations of each of these parents.
Ms Frank is criticised for her frequent moves. Indeed, she has had quite a number. Six since separation in 2015, about four years ago. To some, such moves may not be a significant issue. Indeed, there are many cultural practices that would see people continuously moving, such as the Romany or traveller peoples. The mother’s moves should, however, be seen in a context, as is submitted by her counsel.
The mother’s initial move, the first of the six, was from the shared home of the parties, the home in which the father continues to reside, to share accommodation at Town L. The home at Town L is owned by Mr E, was occupied by Ms Frank, [X], and various of Ms Frank’s relatives.
The mother’s next move, the second, was to Town H. That move was with the full knowledge of the father. I do not suggest that this was an easy decision for him. Indeed, I would go so far as to suggest that it was an extremely difficult but selfless and insightful decision.
The third move was to Queensland. The fourth move was from Queensland to Town G, the fifth from Town G to Canberra, the time in Town G having been extremely brief, a matter of weeks, and then, finally, the move from Canberra back to Town G.
Within the context of the above history, one must also consider that the moves, whilst they are described by the father as being for the mother’s own interests, are not suggested to have been disadvantageous to [Y]. For the majority of the time, they have not been disadvantageous to [X]. He has not been in the mother’s care. The mother concedes, through her counsel, that it would have been disadvantageous for [X] to have had such moves if he had been with his mother (he is, if nothing more, of school age) but, of course, one will never know. If [X] had been with the mother, the moves may not have occurred.
The move from Town H to Queensland would appear to have been initiated for one, if not two, reasons. Firstly, Mr D’s parenting responsibilities and, secondly, Mr D’s employment. Mr D was the sole income earner in the home. The work he was doing in the Town H area was completed. As he described, he had “built himself out of a job” by completing the work quickly. Accordingly, he went to where the next job was. He was then injured and returned home to his family area where he owns a property, at Town G, bearing in mind that he could not work or work substantially or for the same income.
Mr D and the mother then had a brief period of separation. The mother moved to pursue her interest in equine therapy but also, perhaps more importantly, to again have the support of her father, Mr E, who is, even when in a different state, incredibly supportive of his daughter. Upon reconciliation, she has returned to Town G.
Whilst there have been a number of moves, I am not satisfied that they could be described as representing “instability”. It is suggested as a significant issue as, at the time of the Family Report interviews, the mother was living in Canberra and has since moved again. As she was then separated from Mr D he did not, as it were, rate a mention in the report. He was not interviewed. There was no need for him to be interviewed. Upon that relationship reconciling, the mother moved back to Town G. The concern caused by the last move, as the Family Report writer expressed, is that the mother had been clear, specific, indeed strident, that she intended to remain where she was in the Canberra region.
However, plans do change, and the mother’s plans changed. The change was a determination to return to a loving relationship, which she had previously left. Accordingly, I am not as critical of the mother as Mr Gilroy would ask me to be.
I accept that the mother intends to remain in her relationship with Mr D. The Court cannot, any better than the mother or Mr D, predict whether the relationship will last until the death of each of these parties. Indeed, relationships come and go with more frequency, in this age, than perhaps they ever have. Or, perhaps, we now monitor and record such statistics better than we ever have. I do not refer to it in these terms to suggest to Mr D or Ms Frank, sitting listening to these reasons, that I have any doubt of their commitment to their relationship with each other. It is simply that the vicissitudes of life cannot be predicted with certainty. If they could, great profit would be made.
To the extent that it is suggested that the father’s arrangements are more stable there is, on its face, some real merit to that position. The father remains living in the same accommodation that he was living in at the time these parties separated. There are a number of matters which might, in the foreseeable future, impact upon that stability.
Firstly, the father is not the sole proprietor of the property. During cross-examination of the father, the dreaded term “property settlement application” was referred to several times. One can well envisage that an application might be forthcoming, at some point in the foreseeable future. Indeed, it would need to be so as time limits are very much upon these parties. The mother is one of the three registered proprietors of the property. Thus she has a present legal interest in the property and the Court would have jurisdiction to address that interest (as would State Courts). Resistance to an application on the basis of time periods or otherwise would be, as it were, futile. That would simply leave the mother with remedies under State law to obtain release of her one-third interest. Accordingly, the property may be the subject of some attack in the not-too-distant future.
Secondly, there is the vexed issue of the father’s Tinder membership (and possibly other dating applications). I accept the submission by counsel for Mr Gilroy that there is no evidence at all that the father, being a subscriber to those applications, has done anything with them or that such membership or subscription has impacted, or would have any impact at all, upon these children.
Again, I make very clear, this is not a Court of morals. Parents and adults are entitled to engage in their life fully and productively as adults and as they choose.
It could not be truly said that there is no evidence that Mr Gilroy has engaged at all with dating apps other than to download them to his phone. There is, of course, the evidence of Ms M who was “super liked” by Mr Gilroy. That is the sole focus of her evidence. Her evidence does not suggest that they met. It does not suggest that others had been liked or super liked by Mr Gilroy.
What Ms M’s evidence suggests, in combination with other aspects of the evidence, is that the relationship between Mr Gilroy and Ms B and, sadly, for [C], the child of their relationship, may not be as stable as is suggested. This is particularly so as Mr Gilroy, when confronted with those issues, suggested that it was his belief that he and Ms B were in an “open relationship” and that this was also Ms B’s understanding, if not desire.
Ms B’s evidence, suffice to say, could not have been more different. She believes that she is in a committed, monogamous relationship. That is an issue that Mr Gilroy should address for the sake of himself, Ms B and, most importantly, young [C]. He is presently spending relatively frugal time with [C] when he has Ms B as a co-parent who supports him. If that were to come apart, and particularly if Ms B were to be somewhat less understanding or forgiving than Ms Frank after [Y]’s birth, it may well impact his relationship. Remembering, of course, that Ms Frank is in communication with Ms B, shares information with Ms B and Ms B has opined to Ms Frank, in relation to Ms Frank’s discovery of the relationship between Mr Gilroy and Ms B, that “I would be one pissed off, evil woman if it was the other way around”. Clear warning has perhaps given.
I do not refer to those matters to embarrass Mr Gilroy. Again, he is entitled to conduct his adult affairs, if the pun might be excused, as he desires. They are entirely matters for him. Except, of course, they are not entirely for him. They also impact his partner and his children.
Thus, to the extent that I am asked to accept that a previous separation between Ms Frank and Mr D, however it may have come about, might give an indication that the relationship is fragile and may fail, with disadvantage to [Y] and/or [X] if in the mother's care, I might have similar concerns in relation to the future for the children if in the father's care, not because Ms B lives full-time within the home, but simply because there would be a similar degree of instability.
Accordingly, with respect to that factual controversy, I am not satisfied that I could or should be satisfied that either parent is more settled than the other.
I am also conscious, in light of the controversy as to whether the child was or was not retained by Mr Gilroy in December 2017, of that which fell from the Full Court in earlier decisions such as Cowling & Cowling (1998) FLC 92-801, Griffiths (1981) FLC 91-064, and Cilento & Cilento (1980) FLC 90-847 and Rainer & Rainer (1982) FLC 91-239. While certainly the Full Court in Goode & Goode [2006] FamCA 1346 and Marvel & Marvel (No. 2) [2010] FamCAFC 101 has disabused any notion that these cases remain good authority as to how an interim determination is made, certain aspects of those decisions remain relevant, including the caution to not treat as a settled arrangement an arrangement that comes into place through unilateral action merely because time has passed whilst the proceedings are before the Court.
Certainly, a further 10 months has passed since the Family Report was prepared and that has been, on any view of the evidence, a period when young [X] has done perfectly well. He has friends at school. He is described as a friendly, outgoing and gregarious, confident child who makes friends readily. His needs are clearly being met. His relationships with his mother and sister are continuing and continuing well. However, the stability that is referred to could not be described as being with the consent of both parents. Clearly, since April 2018 both have been on notice of the position the other suggests should apply.
Beyond those matters, it is difficult to apprehend any real factual controversy between the parties. There are other factual controversies, but they are fairly modest. I am satisfied that they can be adequately and properly addressed by reference to the legislative provisions, save to briefly consider the Family Report.
The Family Report
The Family Report writer recommends that the children live with their mother and spend school holiday time, perhaps not all of it, with their father. As is submitted by counsel for Mr Gilroy, again appropriately so, the Family Report is not determinative of the proceedings.
The Full Court has, from the inception of the jurisdiction, by decisions in Wood (1976) FLC 90-098 and Harris & Harris (1977) FLC 90-276 through to Andrew & Delaine [2009] FamCAFC, made clear that a Family Report is merely part of the evidence, albeit an important part of the evidence. The Report’s recommendations need not be followed, though they should not be lightly disregarded. The report and any recommendations can be subject to challenge and acceptance of recommendations requires that factual assumptions relied upon by the Report writer are established. Parties can challenge the veracity of the evidence that is advanced, the qualifications of the Report writer, (although that is not challenged), and ultimately, in this case, considering the impact of a further 10 months having passed since the Report was prepared.
The gravamen of the Report, to paraphrase a detailed and nuanced Report, one would hope not impermissibly, is that, at the time the Report was written:
a)[X] had a secure relationship with both of his parents, a well-developed and well established relationship with both;
b)[Y] had a good relationship with both parents, but a far more secure relationship with her mother. This was, to some extent, tacitly corroborated by Ms B's observations, although I do not suggest in the manner of expert evidence. [Y]’s secure relationship with her mother was certainly corroborated by the observations of the Report writer, (for example, at paragraph 69 when [Y] was described as being comfortable in the father's care, but at paragraph 72 “more confident, vocal and directive in her interaction with the mother, consistent with a general expectation of an interaction between a child and their primary caregiver”, not suggesting that the Report writer uses the latter term as a term of art.
It is explicable that [Y] would have a better and more deeply developed relationship with her mother. She has lived with her mother since birth and she was born after the parents separated. She has never had the lived experience, as has [X], albeit ending at a fairly early stage of his life, of living with both of her parents nor of living with her father.
Young [Y] has practised a relationship with her father, again, in the most unusual circumstances. This mother, Ms Frank, at a time when [Y] was four months old, weaned the child so that [Y] could begin to spend overnight time with her father, time that very few parents of children at that age, at least not those who come before this Court, would countenance without an order being made over their objection.
That was an arrangement that was not only voluntarily put into place by the mother, indeed, driven by her it would seem, but at a time only some few months after separation and the traumatic circumstances thereof. It is a real credit to Ms Frank. It demonstrates real child focus. It is also a credit to Mr Gilroy, who sought and gleefully accepted that commitment and involvement in the child's life.
Ms Frank is somewhat critical of Mr Gilroy in that, before her departure from Tasmania, moving to the mainland, Mr Gilroy delegated to his mother, Ms A, the child's paternal grandmother, a quantity of [Y]’s care. Ms Frank complains, for example, that the child slept in a cot in the grandmother's room rather than with the father. Nothing whatsoever turns upon this issue and I will leave any further discuss until a consideration of the legislative provisions.
The Family Report writer is, ultimately, clear that each of these children, certainly at the time of the Report completed 10 months ago, and the Report writer confirms in oral evidence, perhaps more so now, will likely experience some degree of distress in being moved from the placement in which they are now and have now been for some little time. In [Y]’s case, all of her life, and in the case of young [X], for nearly the last two years.
One of the issues raised and addressed, particularly in submissions by the counsel for the Independent Children’s Lawyer, is whether the short term distress to the children should be avoided by leaving arrangements as they are, whether that is long term or for some further period of time before change is instigated, urging the Court to approach, with caution, the proposed moves for these children, perhaps more so [Y], but certainly each.
I accept that there will be a degree of distress for either child. The Report writer is clear and unchallenged in that regard. I accept that the distress would be greater for [Y] in light of her lived experience. She has never lived full-time with her father. She has, at best, spent periods of up to three weeks with her father. That is not to suggest that those periods have not gone extremely well. Indeed, they have. [Y] has a relationship with her father of real strength. That is a child not yet four and who has, for a significant portion of her life, lived in a different state and had visits that have been punctuated by gaps of 10 weeks or so.
I do accept that the potential distress for either child would be real and that it would be greater for young [Y]. The issue then becomes, an issue which I will address by reference to the legislative provisions, the extent to which short term distress or disadvantage is balanced against the medium to long term benefits that are certainly perceived by the parents, and spoken to by the Family Report writer, in these children living together in one household.
Legislative Provisions
I must commence with section 60CA which reminds the Court that, in all that is done, the child's best interests are the primary consideration.
I must then turn to section 60B, the objects and principles, which I incorporate herein.
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.
2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
d)parents should agree about the future parenting of their children; and
e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
3) For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
a)maintain a connection with that culture; and
b)to have the support, opportunity and encouragement necessary:
i.to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
ii.to develop a positive appreciation of that culture.
4) An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
The objects and principles do not form part of the substantive law to be applied to the facts of the case. They do, however, guide the philosophical outcome which the Court should aim to achieve, as well as assisting in the interpretation and application of the provisions that are applied directly to the evidence.
The Court should make orders that ensure that the best interests of children are met by ensuring that they have the benefit of both parents having a meaning involvement in their lives to the maximum extent consistent with their best interests and that they are protected from physical or psychological harm through subjection or exposure to abuse, neglect or family violence.
I do not apprehend, by the close of submissions, that either party contends that the children will be exposed to abuse or family violence as defined in sections 4 and 4AB respectively of the Act or neglect, undefined as it is.
Each of the parties certainly raises concern with respect to the children, but those concerns are principally focused upon the extent to which each might share adult business with the children, or allow or permit others to do so, and the extent to which the child or children, they being individuals after all, although treated equally for the purpose of this determination, are affected by any change which will occur in their life. That does not, however, elevate those matters to the point where the Court need engage its protective lens.
These children will be parented, as both parents concede of the other, and indeed as all witnesses with the possible caveat of Ms A, concede, by good parents. Both parents are focused and insightful with respect to their children. Ms A is not completely negative in that regard. She is simply wholly positive of her son and perhaps more begrudgingly positive of Ms Frank and in more limited respects. There is, however, no need to consider protection and I will not address it further including by reference to the primary considerations.
In ensuring the benefit of both parents having a meaningful involvement in the lives of these children and each of them, it must be acknowledged that their needs are very and fundamentally different. [X]'s needs are now based in his paradigm of living with his father, [Y]'s with her mother.
One of the most positive parts of the evidence, to which I have already referred, but will now return to, is the glee, appropriately described, with which each parent, and the witnesses who have been called, describe the relationship between these children. True it is that the relationship has developed for nearly two years with the children not living together.
Thus the rhetorical question might be put “If the relationship has developed perfectly well why do we need to change anything?” That is especially so if the relationship will continue whether they live together or not.
This question might be answered by posing a further rhetorical question “If I accept the glee with which all describe the relationship between these children, that the parents light up when they discuss how warm and affectionate the relationship between [X] and [Y] is, why would I deny that to these children on a day-to-day basis?”
If the sibling relationship is of such importance to these children, if it brings them such joy, why should they only experience it six to eight weeks per year? The answer to that question is suggested by the phrase “to the maximum extent consistent with their best interests” and by reference to the balance of the legislative provisions.
Clearly, if the children are to be reunited, (and I make clear at this point that they will be reunited as I am not satisfied that there is a sufficient benefit to the children in remaining in their present placements, purely to avoid the distress one or other might feel, disproportionate or otherwise, in leaving the parent who presently cares for them such as to outweigh the positive benefit of reunification) the issues becomes with which parent?
The children’s best interests must be positively assessed by reference to the Act.
The involvement that the children can practically have with each parent is agreed between the parents. It is school holiday time and by the parent who does not live with the children travelling to their locality during school terms. There is, of course, in this day and age, as the parents and others have discovered through their use of social media, electronic means of communication using such services for good rather than evil. It would be nice to think of a positive use for Facebook other than service of process.
These parents can engage in Skype, FaceTime and other video based communications with their children. I pause to observe that this is not the same as being with your child. It is not the same as collecting them from a school gate, speaking to the teacher and the parents of the other children. Speaking to a child by FaceTime is not a substitute for tucking them into bed and reading them a story, but it is the best that can be done when the parents live in different states, quite some distance apart. These parties have the further disadvantage inflicted upon them by the Hobart international airport being treated as a regional airport and thus flights are infrequent and expensive and with no direct flight to the place that these parents will need to travel, (i.e., Canberra).
Those difficulties can be overcome. However, the involvement that each parent can have is tempered by that practical difficulty.
Of course, if one could deal in optimal solutions, the very thing on which the High Court has been clear in MRR & GR (2010) 240 CLR 461 cannot be aspired to or achieved, these parents would move back in together and co-parent their children until their majority. If the Court had the power to make such an order it might be made, although it is difficult to understand how it could be made in many cases, certainly not in this one. There are a good many other people who might wish to be consulted. Accordingly, the maximum extent of involvement of each parent is, on any proposal, largely confined to school holidays and communication by other means.
The Court must make orders that ensure the children receive adequate and proper parenting. They do and they will. Neither parent suggests that the other is not a good, capable parent. That is one of the ironies of this case. A case with two competent parents, two delightful children and very little factual dispute. Perhaps, as is put by counsel for the Independent Children’s Lawyer, the issue is that it is a decision that is too difficult for either parent to make. It is a difficult decision for the Court.
When one parent is so repugnant that their behaviour requires that they be cut from a child's life such decisions, whilst burdensome, are relatively straightforward. Cases such as this, where the emotional stakes for these parents and children are so high, are difficult, at least on one level. Hence the benefit and comfort of the legislative provisions which guide the decision‑making process. Whilst the Act is often criticised as being unduly prescribed and complex and cumbersome, it is a real comfort in cases such as this. There is also real comfort in knowing that any order that is made will, of necessity, see these children receiving adequate and proper parenting.
The Court must also make orders that see parents fulfil their duties and meet their responsibilities. There is no order this Court need make in that regard. These parents willingly meet those duties and responsibilities. That is not to disregard the matters that are raised by Ms Frank as to past assessment and/or payment of child support nor, for that matter, the issues touched upon in a similar vein by Ms B. Those issues are far from dispositive. In any event, for the last two years or so, each parent has parented a child and met that child’s needs. Thus, each has fulfilled their duties perfectly well.
The principles underlying the objects create what might be described as rights for these children. They are expressed in those terms as the recognition of the child's rights and leads to and creates corresponding duties or responsibilities of the parents. If it is the child's right then it is the duty of the parent to ensure that the right is enlivened, practised and protected.
All of those matters, I accept, are at the forefront of the mind of Mr Gilroy and Ms A. They are important matters, and that is where they should be, at the forefront of their respective minds. Beyond that, however, I can only deal with culture to the extent that I have evidence that allows me to do so.
One aspect that I might infer, for example, relates back to the criticism that Ms Frank raised as to the involvement of Ms A in parenting [Y] at an early age. I accept that it was not raised to be in any way critical of, or offensive to, Aboriginal kinship practises. It was raised to demonstrate her belief that Mr Gilroy was more interested in other activities - playing cricket, for example – than caring for children. But Ms A’s involvement in [Y]’s care might be seen as a perfectly understandable kinship practise. It is one of the difficulties of, not only our legal process but our social science, that Anglo-normative lenses are used to view all, whether they are for Aboriginal cultures or CALD communities.
Not everyone parents like Anglo-normative people. Indeed the vast majority of the world’s population do not. Non-Anglo-normative peoples were not studied by Bowlby. Yet they are the people who are often judged by reference to Bowlby’s theories, of singular primary attachment to one caregiver. Such a lens (and I accept that there has been much expansion on such theories including in a cultural framework) creates difficulty. It may lead to misunderstanding, describing as an insecure or disorganised attachment, or perhaps even a disinterested or uncaring parent, when children are cared for by extended family, as described in the submissions of counsel for the mother, “the village”, as it were, where grandmothers, aunts, uncles and others, all play a significant role.
Perhaps if Anglo-normative society could remember back to pre‑Industrial Revolution times, before the working classes were all herded into the factory and the workshop to produce the profits of capitalism, we might remember that we lived in small communities and villages that had several generations of our families all living together, of necessity perhaps, to ensure that the needs of all were met.
Culture cannot be addressed more specifically in this case than to apportion time. There is no specific evidence that would allow it to be so.
I must then turn to section 61DA, the presumption of equal-shared parental responsibility. Each parent seeks an order for equal-shared parental responsibility. I am satisfied the order should be made.
It is vastly to the credit of Mr Gilroy that, whilst I have already commented upon Ms Frank’s extraordinary behaviours moving on from the traumas that underlined their separation, so has Mr Gilroy.
Mr Gilroy was assaulted. There is no dispute by Ms Frank that it is so. The assault, singular, occurred on the date of separation. Mr Gilroy was kicked in the testicles, punched, and had things thrown at him. He did not go to the police, he did not seek a protection order, he did not seek to include young [X] in a protection order or to have the child placed in his care and then engage in two years of litigation protesting that the mother must have supervised time only.
He acted like a grown up. He did not seek to use an event that, in reality, did not concern him. That is not to suggest that people who are assaulted cannot and should not seek assistance. However, such scenarios, sadly, are presented before the Court with great regularity and often with little merit of basis. In this case, on the basis of Ms Frank’s concession that she visited violence on the father, the presumption could not apply. It does not apply if there are reasonable grounds to believe that a parent has engaged in family violence. It must be so as Ms Frank concedes it. But whether the presumption applies or not, does not dictate the order that will be made.
The order allocating parental responsibility that must be made is that which is focused upon the child’s best interests. Mr Gilroy puts that event in a context. From his perspective, it did not trouble him. Indeed, it is one of the aspects of the evidence that counsel for the mother has commented upon. Ms A referred to assaults plural. The parents themselves refer to a singular assault.
It may be that Ms A has extrapolated several assaults from one event. It may be that she has been told things and assumed they were different events. I do not seek to castigate her. But what it does mean is that Mr Gilroy makes it quite clear that he has not felt coerced and controlled and, at this point in time at least, and perhaps other than momentarily, is not, and has not been, fearful. Accordingly, I will consider all arrangements at large by reference to section 60CC to which I now turn.
I must have regard to the primary considerations. Only one of the primary considerations is in play as there is no issue regarding protection. Hence, I am left to consider the benefit to the child of a meaningful relationship with both parents.
As the Full Court has been clear in Burton & Churchin & Anor [2013] FamCAFC 180, the primary consideration in section 60CC(2)(a) is confined to the parents, not others. I do not consider, at this point, the relationship of the children with each other, or with their grandparents, merely [X] and [Y]’s relationships with their dad and their mum.
The benefit to these children of a meaningful relationship with both of their parents is conceded by each of the parents and readily demonstrated on the evidence. They are good parents, child focused, certainly subject to constraints and difficulties with their communication at present, but both have a commitment to at least attempt to address those difficulties. These children will receive nothing but advantage through a meaningful relationship with their parents.
That phrase, and the importance of the prefix “meaningful” was discussed by Brown J in Mazorski v Albright (2007) 37 Fam LR 518 and subsequently adopted by the Full Court. What should also be commented upon, beyond Her Honour’s discussion, is that a meaningful relationship is not founded solely in time. A meaningful relationship is created by many circumstances including an absence of conflict, a competence of parenting, parents being present in the moment, parents being emotionally available to children and being adequate in their practical skills in caring for them.
These parents, clearly, have developed a meaningful relationship with each of their children, notwithstanding that, in the case of Mr Gilroy, he has never lived full-time in the same house as [Y] and, in the case of Ms Frank, she has not, for nearly two years now, lived full-time with [X]. Perhaps the distinction is that which the Family Report indicates: that the lived experience of these children is that they were, until July 2017, both predominantly parented by their mother.
That is also accepting the mother’s description of care arrangements for [X] whilst the parents were still together prior to separation. From July 2017, the children have been separated but [Y] has never been separated from her mother. Thus, [Y]’s most meaningful relationship is with her mother, developed not only from time spent but as demonstrating the depth and quality of care that has been provided.
One of the issues raised (although ultimately there is no evidence at all to support it as an issue of controversy) is the mother’s mental health, perhaps not now, but at earlier times. The mother was diagnosed as suffering post-natal depression following [Y]’s birth. It would be extraordinary if she were not. She was a single mother of two children, one newly born, having very recently separated and knowing that in a few months’ time a sibling of [Y] and [X] would be born to another woman. That would have been an inordinate stress for the mother, but she dealt with it. She sought assistance. She was insightful into the need for that assistance. She obtained assistance. She was compliant with treatment. She addressed her difficulties. That must be apparent in the depth of relationship observed between [Y] and the mother. If the mother had remained mentally ill or disordered throughout the period that she has cared for [Y], it would be impossible for her to have developed the meaningful and secure relationship or attachment that she has with [Y].
Similarly, young [X], at the time that the mother relocated to the mainland, had developed a close and secure relationship – a relationship of real meaning – with both parents. That relationship has been maintained and has subsisted through the practise of relationship the parents have put into place, and through, I accept, the support that each has for that relationship.
If either of these parents had desired that time not occur it would not have occurred. They have supported the children’s relationships with each other and with each parent, at a significant cost and over significant distance, including one or both of the parents having to travel with the children. These children are now at, or approaching, an age where they can travel unaccompanied and those difficulties might be ameliorated somewhat. It will still remain expensive travelling on at least two flights and to what is, in Hobart, a regional airport.
The benefit to the children of a meaningful relationship with both parents does not assist in picking a winner, as it were, between the proposals of these parties. Each proposal would bring benefit to the children of a meaningful relationship, with one possible exception: the degree of distress that the Family Report writer describes in relation to the separation of each of these children from the parent with whom they have been living. The distress would be greater in the case of [Y]. If a child is distressed and separated in that circumstance, the Family Report would appear to support the proposition that it will be difficult for that child to then continue to form and practise a relationship of the same depth and meaning with their new carer. For [X] it is less of an issue, as identified by the Report. He already has well settled and established relationships with each parent. There is no benefit in seeking to mathematise those relationships as between the parents. Both relationships are strong.
[Y]’s relationship with her father is strong. I accept his evidence and that of Ms B. The relationship between [Y] and her father is extraordinarily so in light of her birth after separation and the fractured periods that have occurred. That must speak volumes to Mr Gilroy’s parenting capacity as well as to Ms Frank’s support of the relationship. If she had wanted to cause mischief she could have very readily and very easily done so. Clearly she has not.
This all gives me confidence for the future that Ms Frank will support the relationship. It gives me some slight concern for the future that if [Y] were removed from her mother as her primary carer that it would cause a degree of distress for the child that may impact upon the child’s ability to substitute or supplant a relationship of equal strength and quality with her father in the short-term. Thus, this factor lends some little support, albeit on very fine balance, to the mother’s case.
I must then consider the additional considerations. They are not inferior or subservient.
Views
There is no clear or express evidence as to the views of either child with respect to future parenting arrangements. The best that is gleaned is perhaps the comments of [X] as regards his relationship with his sister. He is clear that he loves and enjoys spending time with both of his parents. His comments in relation to his relationship with his sister, and his observed delight in that relationship, are extremely important.
That is not to disregard other relationships. Mr Gilroy describes that [C] and [X] get along famously. They also have less than full-time engagement with each other, but that perhaps speaks to the reality that relationships are based in things other than purely time. [C] does not have to live with his father and [X] full-time to have developed such a strong relationship. It is because the relationship is supported. It is regular. It is frequent. It is because Mr Gilroy is a good parent when the child is with him, and he has the support of Ms B. He also has the assistance of his mother and others if and when that is ever needed. That is as far as one could take any discussion of wishes.
Nature of the child’s relationship with each parent and with others, including any grandparent or other relative
It is at this point that the sibling relationship becomes important. I return to the rhetorical questions posed previously. If I accept, as both parents describe, that these children experience such great delight in their relationship with each other, why should they be deprived of it?
That does not determine which parent the children would live with together but it does, to my mind, determine the alternate proposition – although I do not apprehend it is advanced with any real strength, other than to be thorough in addressing all possibilities – the contention that the children might remain apart. I accept there will be some distress for either child – indeed in all probability both – in coming back together when they have been separated, one of them of necessity, leaving a carer with whom they have lived. But the strength of the sibling relationship would suggest that any short-term pain will pass far more quickly than the long-term detriment of a loss, to these children, of a continuous practise of their relationship with each other.
If one then turns to the other relationships, there is clearly some degree of strain in the relationship between Ms Frank and Ms A, as well as between Ms B and Ms A. That is not fully explained or understandable from the evidence, but it is apparent from the evidence of all three women. There is the loving relationship that the children have with Mr E. They also have a loving relationship with Ms A and a broad array of relatives on the father’s side.
One aspect of the evidence that might give some succour to Mr Gilroy, although I doubt that it will be so in any genuine way, is to reflect upon his experience of childhood, albeit that he was a little older than [X] and [Y] at the time that it occurred, when he lived separate from his brother. As he describes, that had a significant effect upon his relationship with his brother, although now well and truly on its way to repair, if not in fact repaired.
But that perhaps might give some signal to the future for these children, [X] and [Y], if they are not re-united in one household. That will be a life-long relationship, one which, one would think, will outlive their relationship with their parents and each of them, and which is fundamentally important to them. They will have each other to turn to and practise and understand and engage in culture with. They will have each other for support. They will have each other every day. The children’s relationship with others, beyond their relationship with each other, is fairly equal and balanced. There are more relations on the father’s side, but the evidence does not speak in any qualitative or quantitative way to those relationships such as to tip the balance.
The children’s relationship with each other is important. It does not assist in determining which parent they will live with, but it does manifestly dictate they must live together.
The extent to which each parent has taken, or failed to take the opportunity to participate in decision‑making, spend time with, communicate with the child
Neither has failed. Neither suggests that the other has. Neither suggests, more negatively, that the other has interfered in that ability, save and except for the retention that each alleges in December 2017 and April 2018 respectively.
The extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child
This is already discussed. It is so far from dispositive that it does not require reputation.
Likely effect of change, including separation from either parent or any other child or person with whom the child has been living
This is, perhaps, the gravamen of this case, the fulcrum upon which the fine balance tips.
As may be apparent, I accept the Family Report writer’s evidence that the distress that [Y] would experience, when she has a far more developed relationship with her mother than her father, of necessity in light of her birth post-separation, would tip the balance in favour of the mother assuming a predominance of care. I am also conscious of the reality that this was, in January 2017, the agreed position of these parties.
Of course, they are not bound by what they agreed to over two years ago. But in January 2017, there was no controversy that both children would live with their mother outside of Tasmania. Orders were made by consent.
On one view that outcome could be achieved by simply discharging the order made in April 2018 (which suspended the order made by the Family Court on a final basis). However, there are other matters which require address and, accordingly, that simplicity is not available.
The effect of change on the children will, in the short term, be significant. I accept [X] will be distressed. I accept, however, that [Y] would be more distressed. Far more importantly, I accept that both children would be far more significantly disadvantaged, beyond the transitory distress that they will suffer as described by the Family Report writer, even with the passage of a further 10 months after the Report’s release taken into account, by remaining separated from each other.
Practical difficulty and expense
This is manifest. But the parents agree on a plan for its address. The children will need to travel. The parents agree on how that will occur and who will pay for it. Accordingly, those orders can be made effectively by consent.
But that is not the end of reasonable practicality as discussed in section 65DAA(5). I must also have regard to the capacity of the parents to implement an arrangement for the children spending equal or substantial time. Neither can make that occur unless they live in the same locality. They have, however, demonstrated their ability to make the arrangement that is presently in place work, and work well, with the singular exception of Easter past.
The parents’ capacity to communicate and resolve difficulties is far from ideal, but these parents, at this point, communicate little. When they do communicate it is effective and relatively polite. Some further assistance might aid orders, such as for the parties to engage with family counselling services to provide some further assistance and scaffolding.
The impact of the arrangement on the child
This will be profound for both children, both in a positive and negative sense. There will be short-term distress and there will be long-term benefit. I am satisfied that the long-term benefit outweighs and tips the balance in favour of the change.
The capacity of each of the parents to meet the children’s needs
Both can meet these children’s needs including their emotional and intellectual needs. These parents have each indicated, clearly, and I accept them both as witnesses of truth and candour, that they will do what they can. It may not be everything that could be done, but what they have within them, and with the supports they have, including the excellent mutual support of Mr E, will make things work for the benefit of their children.
Maturity, sex, lifestyle and background of the children and the parents
I am satisfied this factor does not require further specific address, it is addressed above. These children are Aboriginal. They have a right to enjoy their culture, including with others of that culture. The impact upon that right of the parenting orders I propose to make is a vexed issue. Certainly, for [X], his engagement with his father, grandmother and further paternal family, will be more limited if he lives with his mother than with his father. If the children remain as they are, [Y]’s engagement is extraordinarily limited, and would continue to be so. If both pass to their father, they will have more opportunity to engage with and practise their culture with their paternal family, although for [X] in particular he has an acute awareness of his culture already.
I take some comfort from the evidence of Ms A that it should be possible for these children to continue to engage with and learn their culture, practise it and experience it, on a daily basis, not only when they are with their father. Their culture is them and within them. Certainly, their culture involves a strong connection to place and to land, an understanding of their land and of the night sky, as Ms A describes. But their learnings and their understanding of themselves, and their place within culture, travels with them. It is mobile, not static. That is because it is not a thing. It is not a set of customs or ceremonies. It is something innate to them, who they are and how they think of themselves.
They also have each other for support in culture. They have the other means of practise, including spending substantial time during holidays on country with their family and electronic communication at other times. Culture, of course, is not static, as already described, and thus the engagement with electronic communication methods is one means by which culture is impacted, potentially beneficially.
The attitude to the child and responsibilities of parenthood
This is already discussed. These are two excellent and insightful parents.
Family violence
This is not raised as an issue, and to the extent that the evidence speaks to it, there is a singular event well and truly consigned, by the parties, to history. There are no family violence orders and there have never been. There was only an order as between Ms Frank and Ms B, long ago expired. They would appear to have reached a point of reconciliation in their relationship with each other.
Whether it is preferable to make an order that will least likely lead to the institution of future proceedings
The best that can be done in this regard is to make orders that are clear, certain and intended to be relatively long lasting though not unchangeable. Orders that are intended to meet the needs of these children for at least the next few years. Scaffolding through family counselling will also assist.
Conclusion
It is for those reasons that I propose to make orders substantially in accordance with the mother’s application. The case is finely balanced, more finely balanced than many. It is a phrase often used, perhaps to alleviate emotional distress for parents at times, but in this case it is genuine.
Each of these parents have so much to offer these children it is regrettable that they cannot both be involved far more frequently. This will remain so unless one wishes to fundamentally change their lifestyle and move either to the mainland or return to Tasmania. Ms Frank gives very clear evidence as to the reasons why she does not wish to return to Tasmania, not that she is required to demonstrate compelling reasons. Her evidence is supported by her father who is clear that his daughter is far happy away from this isle. Mr Gilroy does not contemplate leaving Tasmania. In those circumstances, sadly, the best that can be achieved is for the children to spend time with their absent parent during school holidays.
[X]’s transition into his mother’s care will occur during the term 2 2019 school holidays and I will leave it to the parties and their abundantly capable legal representatives to work out what we do about that subject to being clear that I do not have in mind that mum gets no time during those holidays and just gets [X] at the end. She will need him early to organise uniforms, books, and all those things.
I certify that the preceding two hundred and sixty-two (262) paragraphs are a true copy of the reasons for judgment of Judge Harman
Date: 31 May 2019
Annexure ‘A’
| DATE | EVENT |
| … 1985 | Mr Gilroy (‘the Father’) is born. |
| … 1986 | Ms Frank (‘the Mother’) is born. |
| 2003 | The parties commence cohabitation. Both parties are in their late teens. |
| 2008 | Maternal Grandmother becomes ill from cancer. |
| 2009 | Maternal Grandmother dies. |
| 2011 | Maternal Grandfather moves from Hobart to Canberra. |
| … 2012 | [X] (‘[X]’) is born |
| 2012 | The parties purchase a property in Town N in conjunction with the Father’s father. The parties live in a one bedroom home. |
| 2015 | |
| 8 March 2015 | The Mother becomes aware the Father has begun a relationship with Ms B. The parties separate on a final basis and the Mother leaves the Town N home with [X]. The Mother moves to a maternal family home in Town L, Tasmania. [X] is aged 2.5 years old at the time. |
| May 2015 | The Mother assaults the Father in front of [X]. The Mother alleges that the Father had lied to her about his relationship with Ms B, saying that it had ended, but it had not. |
| April 2015 | The parties undergo relationship counselling with psychologist, Ms O. |
| … 2015 | [Y] (‘[Y]’) is born. |
| July/August 2015 | The Mother is prescribed Escitalopram to assist with depression and anxiety. |
| Late August 2015 | The Mother goes to mainland Australia leaving [Y] (aged 6 weeks) and [X] in the care of the maternal grandmother and father for a period of 6 weeks. |
| September 2015 – January 2016 | The Mother leaves the children in the care of the Father on 3-4 occasions for between 2-3 weeks at a time. Mother alleges that the Paternal Grandmother cares for [Y] when [Y] is in the Father’s care. Mother observes [Y]’s cot situated in the Paternal Grandmother’s bedroom. |
| 17 November 2015 | 12 month Restraint Order made against the Mother by Ms B, the Father’s partner. |
| 2016 | |
| Unspecified | The Mother takes the children on a number of trips to the ACT and NSW for holidays and to visit family. Mother takes solo trips to NSW. |
| 7 February 2016 | [X] returns to Tasmania undernourished and barely able to walk. GP says that [X] showed signs of emotional and physical neglect. |
| Unspecified | The Mother says that she is going to take the children to the mainland and that “she was going to find them a new father and home and that Mr Gilroy will never see them again”. |
| … 2016 | Father’s son [C] is born. [C]’s mother is Ms B. |
| 2017 | |
| 30 January 2017 | The parties enter into Consent Orders. The Father agrees to the Mother relocating to NSW with the children. The Father is to spend time with the children in Tasmania in school holiday periods. |
| February 2017 | The Mother and children relocate to Town H, New South Wales. Children are 4.5 and 1.5 years old at the time. |
| April 2017 | The Mother says to the Father that [X] wanted to return to Father and was misbehaving. |
| June/July 2017 | The Mother and Father verbally agree [X] will return to Tasmania to live with the Father. The Mother alleges that this was only to be until the end of the year and that [X] would return for the start of school at the start of 2018. [X] is enrolled in Town H Primary School in anticipation of his return to the Mother’s care. [X] is 4.5 years old. |
| September 2017 | The Mother and [Y] move to Town P, Queensland and commence living with her current defacto partner, Mr D. |
| … 2017 | The Mother takes [Y] on a trip to Tasmania for [X]’s birthday. The Father refuses to return [X] to the Mother’s care and informs the Mother he has enrolled [X] in Town N Primary School. [Y] becomes ill and is admitted to hospital. The Mother is notified after admission. The Father advises the Mother that [Y] is diagnosed with a herpes virus in the mouth and on her face. The father allegedly tells the mother not to “worry about” coming to coming to Tasmania. |
| November 2017 | The Mother leaves [Y] in the Father’s care in Tasmania up until December 2017. The Mother alleges that the children were cared for by the Paternal Grandmother. |
| 26 December 2017 | The children return to the Mother’s care. The Father accompanies the children to Queensland and stays for 10 days. |
| 2018 | |
| Early January 2018 | The parties and the children return to Tasmania for [Y] to undergo a tonsillectomy on 10 January 2018 funded by the Maternal Grandfather. |
| Mid-February 2018 | The Mother and [Y] leave Tasmania and return to Town P, Queensland. The Mother alleges that [X] wanted to return with her. The Father refuses to allow [X] to leave and threatens legal proceedings |
| March 2018 | Mother’s partner Mr D injures his shoulder at work and cannot undertake work as a tradesman. |
| April 2018 | The Mother removes [X] from Tasmania without the Father’s consent. The Father alleges that the Mother planned to do this and lied to the Father in order to facilitate her taking of [X]. The Mother takes [X] to a GP in Town P, to obtain a mental health care plan for him. |
| 10 April 2018 | [X] attends a session with a child psychologist in Town P, Queensland. |
| 11 April 2018 | The Father files an Application for Recovery Order for [X]. [X] is in Queensland with the Mother. The Mother had not disclosed her location or that of [X] or [Y] to the Father. |
| 13 April 2018 | The Mother alleges that she received a letter from the Father’s solicitor dated 5 April 2018. The letter proposes conditions on [X]’s time with the Mother for the agreed two-week visit with the Mother in Queensland. |
| 18 April 2018 | Recovery Order application listed in the Hobart registry. Consent Orders are made, including that the Order dated 31 January 2017 be suspended. Interim Orders are made providing, inter alia, [X] to live with the Father and [Y] to live with the Mother. An Independent Children’s Lawyer is appointed. |
| April 2018 | The Mother relocates to Canberra, ACT. |
| April 2018 | The Mother relocates to Town Q, NSW. |
| May 2018 | The Mother and her partner Mr D together with their children relocate to Town G – Mr D’s home town. |
| May 2018 | [X] and [Y] spend the school holidays together. Children both spend ½ of the school holidays with each parent. |
| July 2018 | The Mother refuses to tell the Father of her and the children’s address. |
| July 2018 | [X] and [Y] spend the school holidays together. Children both spend ½ of the school holidays with each parent. |
| July 2018 | The Mother and Mr D temporarily separate. The Mother and [Y] relocate to Town Q NSW where the mother is offered work experience in Town Q. |
| July 2018 | [X] spends time with the Mother and [Y]. |
| July 2018 | [Y] spends time with the Father and [X]. |
| 31 August 2018 | Family Report completed. |
| 1 November 2018 | Matter listed for final hearing on 8 May 2019. |
| November 2018 | The Mother and Mr D reconcile and the Mother and [Y] return to live with Mr D at Town G NSW. The Mother refuses to tell the Father of their location until legal advisors become involved. |
| December 2018/January 2019 | The children spend four weeks together, two weeks with the Mother and two weeks with the Father. |
| 2019 | |
| 8 May 2019 | Matter listed for final hearing. |
0
5
2