Grella and Jamieson

[2016] FamCA 280

FAMILY COURT OF AUSTRALIA

GRELLA & JAMIESON [2016] FamCA 280

FAMILY LAW – CHILDREN – INTERNATIONAL RELOCATION – where the mother seeks to relocate with the four year old child to Europe – where the father opposes the relocation – where, in the alternative, the mother seeks to relocate to Melbourne –where the child’s time with her father has been somewhat sporadic –whether there is a benefit to the child of a meaningful relationship with her father – whether the child’s relationship with her father can be maintained and developed if the child relocates to Europe – where the mother’s application to relocate the child internationally is refused – where there is no substantive evidence to support a relocation to Melbourne – where the mother’s application to relocate the child to live in Melbourne is refused –the child’s  time with her father.

Family Law Act 1975 (Cth)

Banks & Banks (2015) FLC 93-637
Cox & Pedrana (2013) FLC 93-537
McCall & Clark (2009) FLC 93-405

APPLICANT: Ms Grella

RESPONDENT: Mr Jamieson

INDEPENDENT CHILDREN’S LAWYER: Legal Aid New South Wales

FILE NUMBER: LEC 126 of 2012

DATE DELIVERED: 22 April 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 22 and 23 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Priestley SC

SOLICITOR FOR THE APPLICANT: Crane Paskins Law

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Andrew

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid New South Wales

Orders

IT IS ORDERED THAT

1. All previous Orders and parenting plans are discharged.

IT IS ORDERED BY WAY OF FINAL ORDER THAT

1. The child, B, born … 2011, live with the mother in South East Queensland.

2. The mother have sole parental responsibility for the major long term issues for the child including in respect of:

   (a)the child’s education (both current and future); and

   (b)the child’s religious and cultural upbringing; and

   (c)the child’s health; and

   (d)changes to the child’s living arrangements save for any which make it significantly more difficult for the child to spend time with each parent.

3. Except in the event of an emergency involving the child, the mother is to consult with the father about decisions to be made in the exercise of her sole parental responsibility as follows:

   (a)the mother shall inform the father about the issue about which a decision needs to be made, the decision she would like to make in respect of such issue and the reasons for that proposed decision, in writing;  and

   (b)the mother shall give the father fourteen (14) days to respond;  and

   (c)the mother shall consider the father’s views/response when coming to her decision;  and

   (d)the mother will inform the father of the final decision she has made with respect to that issue as soon as practicable thereafter.

4. Each parent has responsibility for the day to day care, welfare and development of the child while she is in his or her care.

5. The father shall spend time with the child at all such times as may be agreed between the parties in writing and failing agreement as follows:

   (a)commencing on 30 April 2016: each alternate weekend from 9.00am to 2.00pm on each of Saturday and Sunday; and then

   (b)commencing 25 June 2016: each alternate weekend from 9.00am to 4.00pm on Saturday; and from 9.00am to 2.00pm on Sunday; and then

   (c)commencing 20 August 2016: each alternate weekend from 9.00am to 4.00pm on each of Saturday and Sunday; and then

   (d)commencing 12 November 2016: each alternate weekend from 9.00am Saturday until 12.00pm Sunday; and then

   (e)commencing January 2017: each alternate weekend from 9.00am Saturday until 4.00pm Sunday.

6. After June 2017, the time the child shall spend with her father pursuant to Clause 6(e) shall, during any Queensland gazetted school holiday period, be extended such that, instead of concluding at 4.00pm on Sunday it shall conclude:

   (a)from the start of Term 3, 2017: at 12.00pm on the Monday; and

   (b)from the start of Term 1, 2018: at 12.00pm on the Tuesday; and

   (c)from the start of Term 1, 2019: at 12.00pm on the Wednesday; and

   (d)from the start of Term 1, 2020: at 12.00pm on the Thursday.

7. From the start of Term 2, 2021, the child shall spend time with the father for half of each Queensland gazetted school holiday period as follows:

   (a)in even numbered years:

   i.for the first week of the Easter, Winter and September/October Queensland Gazetted holiday period, starting on the first Saturday after the conclusion of the school Term; and

   ii.for the first week of the December/January Queensland gazetted school holiday period and each alternate week thereafter, starting on the first Saturday after the conclusion of the school Term; and

   (b)in odd numbered years:

   i.for the second week of the Easter, Winter and September/October Queensland Gazetted holiday period, starting on the second Saturday after the conclusion of the school Term; and

   ii.for the second week of the December/January Queensland gazetted school holiday period and each alternate week thereafter starting on the second Saturday after the conclusion of the school Term.

8. In the event the child is in Australia for Christmas Day, she shall spend time with her father:

   (a)in even numbered years: from 9.00am on Christmas Eve (24 December) until 12.00pm on Christmas Day (25 December); and

   (b)in odd numbered years: from 12.00pm on Christmas Day (25 December) until 4.00pm on Boxing Day (26 December).

9. In the event that pursuant to this Order, the child would not otherwise be spending time with her father on the weekend on which Father’s Day occurs, and he is able to facilitate such time, she shall spend time with him that day from 9.00am to 4.00pm.

10. In the event that, pursuant to this Order, the child would not otherwise be living with the mother on the weekend on which Mother’s Day occurs, she shall be returned to her mother at 9.00am on that day.

11. Unless otherwise agreed between the parties in writing, changeovers shall occur:

    (a)until 1 December 2016: at the Region C Contact Centre; and

    (b)from 1 December 2016: at McDonald’s Restaurant Suburb D.

12. Each party shall be entitled to have another person attend changeover on their behalf, provided that such person is known to the child.

13. The costs of the changeovers at the Contact Centre shall be met by the father.

14. Neither parent shall approach the other, or that parent’s servant or agent, during changeover.

15. Each parent shall facilitate the child communicating with the other by telephone or Skype communication at all reasonable times as requested by the child and no less than two occasions every week with each parent to:

    (a)ensure that the child is available to receive the telephone call;  and

    (b)arrange for the child to telephone the other parent on the following night, if for any unforeseen circumstances, the child misses the telephone call from that parent;  and

    (c)ensure the child has privacy during the conversation.

16. Each parent shall facilitate the child communicating with the parent, with whom she is not then staying by telephone or Skype on the child’s birthday, with such communication to occur in the manner prescribed by Clause 16.

17. Neither parent shall consume any illicit substance at any time when the child is in his or her care or within 24 hours prior to the child coming into his or her care, and shall immediately remove the child from any place in which any person is consuming illicit substances.

18. Neither parent shall enrol the child in any activity which occurs during time she is living or spending time with the other parent without first obtaining the written consent of that parent.

19. From December 2017, the mother is at liberty to suspend the child’s time with her father for a period of up to four (4) weeks during the end of year school holiday period each year for the purpose of removing the child from the Commonwealth of Australia for a holiday provided that:

    (a)no less than sixty (60) days prior to the proposed travel, the mother provide the father notice in writing of the proposed dates of departure from and return to Australia, the locations to be visited and the details of the accommodation at which the child will be staying; and

    (b)in even numbered years: the date of departure shall not occur before 27 December; and

    (c)not less than fourteen (14) days prior to the scheduled departure, the mother shall provide the father with a copy of the itinerary for the trip with this to include, but not be limited to, the following information: the departure and return times and dates; a contact telephone number for the child whilst she is travelling and details of addresses at which the child will be based during the travel; and

    (d)when the child is out of the Commonwealth of Australia, the mother shall facilitate the child’s communication with the father in accordance with the terms of Clause 16 of these Orders.

20. In the event the mother does not remove the child from the Commonwealth of Australia pursuant to Clause 20 of these Orders, the child shall continue to spend time with the father as provided for in Clauses 7 and 8.

21. In the event the mother removes the child from the Commonwealth of Australia in accordance with Clause 20 of these Orders:

    (a)the child’s time with her father pursuant to Clauses 7 and 8 shall be suspended during the time the child is out of the Commonwealth of Australia ; and

    (b)instead of spending time with the father as provided by Clauses 7 and 8, the child shall spend time with the father during those weeks of the December/January gazetted school holiday period she is present in Australia in the following manner:

    i.in the holiday period commencing December 2017: for three non-consecutive periods of two nights; and

    ii.in the holiday period commencing December 2018: for three non-consecutive periods of three nights; and

    iii.in the holiday period commencing December 2019: for two non-consecutive periods of four nights; and

    iv.in the holiday period commencing December 2020: for two non-consecutive periods of five nights; and

    v.in the holiday period commencing December 2021, and for all subsequent years: for two non-consecutive periods of seven nights.

22. For the purpose of the child’s time with her father pursuant to Clause 22b, the father is to provide the mother no less than fourteen (14) days’ notice in writing of those dates during which he wishes to spend time with the child and, unless otherwise agreed, the time shall occur between those dates.

23. Unless otherwise agreed between the parties in writing, or otherwise specified in these Orders, the child’s time with her father shall commence at 9.00am and conclude at 4.00pm.

24. Each parent shall:

    (a)keep the other informed at all times of their residential address, telephone numbers, mobile numbers and email addresses and notify the other of any changes to the same within three (3) days of such change; and

    (b)keep the other informed of the names, addresses and contact details of any medical or other health professionals who treat the child; and

    (c)inform the other as soon as is reasonable practicable of any serious medical condition, or significant health issue suffered by the child; and

    (d)keep the other informed of any school, educational facility or extra-curricular activity provider attended by the child.

25. By this Order, the parents authorise any medical or other health professionals who treat the child to provide to each parent, at that parent’s request and cost, all such information lawfully able to be provided about the child’s attendance and treatment.

26. By this Order, any school at which the child attends is hereby authorised to provide to each parent, at that parent’s request and cost, all information lawfully able to be provided to a parent about the child’s attendance, progress and participation including copies of any school reports, newsletters, applications for class photographs and the like and any information in relation to the child’s educational and social progress.

27. By this Order, any day care centre or before or after school care facility at which the child attends is hereby authorised to provide to each parent, at that parent’s request and cost, all information lawfully able to be provided to a parent about the child’s attendance, progress and participation.

28. During the time the child is with either parent, that parent shall:

    (a)respect the privacy of the other parent and not question the child about the personal life of the other parent;  and

    (b)speak of the other parent respectfully;  and

    (c)not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent or their family in the hearing or presence of the child;  and

    (d)use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.

29. The process used for resolving future disputes about the child or the terms or operation of these Orders shall be as follows:

    (a)the parents shall consult with an agreed Family Dispute Resolution Practitioner at a Family Relationship Centre to assist with resolving any dispute in relation to the child; and

    (b)they shall pay the costs of the Family Dispute Resolution Practitioner equally; and

    (c)in the event that, for any reason, they are unable to have an appointment with the agreed Family Dispute Resolution Practitioner or cannot agree on an alternate Family Dispute Resolution Practitioner, the mother shall nominate three (3) practitioners and advise in writing details of their fees, experience and availability; and

    (d)the father shall choose one of the listed practitioners with seven (7) days of the receipt of the list; and

    (e)if the father fails to choose one of the listed practitioners within the prescribed time, then the mother may choose one of the listed practitioners.

30. Unless there are some emergency circumstances, before an application is made to a Court for a variation of this Order each parent shall take the steps referred to in Clause 30 of this Order.

31. Each of Ms Grella born … 1984 and Mr Jamieson, born … 1980 and their servants and agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of B, a female born … 2011, from the Commonwealth of Australia before 1 December 2017.

32. B, a female born … 2011, is hereby restrained from leaving the Commonwealth of Australia before 1 December 2017.

33. It is requested that the Australian Federal Police give effect to the preceding Order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist until 1 December 2017.

34. Upon expiration of the period referred to in Clause 34 and subject to any further order of a Court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s name from the Watchlist. 

35. Pursuant to section 11(1)(b)(i) of the Australian Passports Act 2005 (Cth), the child B, a female born … 2011 is permitted to have an Australian travel document.

36. The Independent Children’s Lawyer is discharged.

37. All outstanding applications are otherwise dismissed.

38. Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: LEC 126 of 2012

Ms Grella

Applicant

And

Mr Jamieson

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. B (the child) was born in 2011. Her parents (who had commenced a relationship in either late 2008[1] or late 2009[2] and lived together thereafter) separated finally in early December 2011.

   [1]          As the mother says.

   [2]          As the father says.

2. The child has always lived primarily with her mother and it is agreed she will continue to do so.

3. The parental dispute about matters relating to the child and her future care has a number of significant aspects: whether it is in her best interests to move to Europe with her mother to live;[3] whether her time with her father should be supervised or unsupervised; whether there should be an order according to the mother sole parental responsibility for major long terms issues relating to her; whether, if the mother’s application to relocate the child to Europe is unsuccessful, it is in her best interests to move from her current home in the Region C area[4] to Melbourne, and finally, the time it is in her best interests to spend with her father into the future.

   [3]          as her mother seeks

   [4]          speaking broadly

Competing proposals

1. The mother advances that the child’s best interests will be met by acceding to her proposal that the child move with her to live in Europe. If that occurs, the child’s opportunity to spend face to face time with her father will necessarily and realistically be limited – at best, to no more than that which can occur during a four week block in about July every year and, at worst for her, to time each alternate year.  

2. This arises because the mother proposes she and the child travel to Australia each alternate year and that the father travel to Europe each alternate year.  the child’s ‘in-person’ interaction with her father is proposed to be supplemented by the opportunity to engage in telephone or Skype communication with her father on a regular basis. 

3. The mother previously proposed that the child’s time with her father should be supervised because of his history of illicit drug use, his criminal convictions and instability and her concerns about the impact of the same on his capacity to care safely for the child.  That is, she initially proposed that the father’s future time with the child, in either Australia or Europe, occur on a supervised basis.  

4. However, she now accepts that the child has enjoyed and benefitted from her relatively recent opportunities to spend unsupervised time with her father.  She now seems to accept that the child’s safety is not compromised by spending three hours unsupervised with her father. She maintains her concerns about safety if the time is increased beyond about six hours duration.  She also says overnight time should not be considered until the father has demonstrated he can refrain from engaging in anti-social activities for at least two years and has shown himself to be stable for the same period of time.

5. The mother also proposes that she have sole parental responsibility for major long term issues relating to the child. She says such an order is in the child’s best interests because the parenting relationship between the parties is not one which enables them to make decisions jointly. Additionally, she does not want to engage or communicate with the father in the future because of his previous behaviour toward her.

6. The father proposes the child continue to live with her mother in the local area where both parents currently reside. He advances that her best interests will be met by providing her the opportunity to spend regular unsupervised time with him, his partner, their daughter (the child’s half-sibling) and his partner’s son: in particular, from 4.00 pm Friday until 4.00 pm Sunday each alternate weekend with changeovers to occur via a local Contact Centre. He also seeks to communicate with the child by Skype or telephone no less than twice per week “on the alternative week”.

1. The father advances that the child will be deprived of the opportunity to develop a meaningful relationship with him and her younger half-sibling, (who was born in 2015) because the tyranny of distance associated with a move to Europe will prevent regular and frequent face-to-face interaction between them. Whilst he accepts he has a history of illicit drug use and certain anti‑social behaviours - which have seen him convicted of criminal offences in the past - he suggests he has matured, settled down and no longer consumes illicit substances.

2. His case is that he has developed the parenting skills and personal capacities necessary to ensure the child will not be at an unacceptable risk of harm if her time with him continues to be unsupervised. He also advances, in essence, that while the relationship the child has with him has developed to the stage where she would suffer loss if deprived of the ongoing opportunity to continue to spend actual physical time with him on a regular and frequent basis, it is not at the stage where it could withstand absences of the duration which will necessarily occur if she moves to live in Europe.

   The father’s motivation

3. The mother has expressed the view that the father’s focus is on disrupting and/or controlling her life, rather than on spending time with the child.  She says he is not really interested in developing and/or maintaining a relationship with their daughter. She asserts these conclusions should be drawn because there have been occasions on which he failed to take up the opportunity to spend time with the child, he has previously been apathetic in making arrangements to spend time with the child and because he has previously said he will never agree that the child should travel outside Australia with her.

4. I do not accept that the child’s father is not really interested in developing or maintaining a relationship with her.  Rather, I accept he loves the child dearly and genuinely wants the opportunity to continue to develop a meaningful relationship with his daughter. I also accept that he genuinely wants the child to have the opportunity to develop a meaningful relationship with members of his family unit and, particularly, with her half-sibling.  I accept he seeks to be actively involved in the child’s life. 

5. Whilst he has certainly expressed his concern about the possibility of the child suffering harm if she travels away from Australia and he opposes this occurring, I consider he does so because of his professed concern and love for his daughter and not because he wishes simply to prevent the mother from travelling overseas. In any event, the mere fact of his opposition to the child being afforded the opportunity to benefit from international travel will not prevent her being afforded that opportunity if it is considered to be something that is beneficial to her and in her best interests.

   B’s time with her father to date

6. B has only recently[5] started to spend unsupervised time with her father. On 23 March 2016, the parties agreed that she have the opportunity to spend three hours (unsupervised) with him on 3 April and 17 April 2016. This time supplements the existing three hours of unsupervised time which occurs each alternate Saturday.  She is yet to spend any longer period of time in his care.

   [5]          On 7 November 2015.  

7. The child’s previous opportunities to spend supervised time with her father have been punctuated by lacunas: some resulted from the father’s periods of incarceration (between February and August 2014 and for about 21 days in March/April 2015) and some have occurred because she has travelled to Europe with her mother (between November 2012 and January 2013; between December 2013 and January 2014 and between 3 December 2015 and 13 January 2016).

   The history of the child’s time with her father

8. In May 2012, Federal Magistrate Demack (as her Honour then was) ordered that the child spend time with her father for one hour each week, supervised at a local Contact Centre. The mother says time did not commence immediately because the father failed to “comply with court orders”.[6] In any event, the child spent time with her father on 23, 24, 25 and 27 June 2012[7] facilitated by the mother. On 23 June 2012, the father provided the mother $50.00 to assist with the child’s expenses.[8]

   [6] Affidavit of the mother filed 12 June 2015 at [74].

   [7]          Affidavit of the mother filed 12 June 2015, at [35, 36, 37. 38].

   [8] Affidavit of the mother filed 12 June 2015, at [35].

9. Time thereafter occurred at the Contact Centre.

10. The mother says that there were at least four occasions between October 2012 and February 2013 (a total period of approximately 20 weeks) when the father did not attend at the Contact Centre to spend time with the child and she was asked to return to collect her.[9] The father says that, on three of these occasions, he was unable to attend due to transportation issues and he telephoned the Contact Centre to tell them this; on the fourth occasion, he had difficulty with his telephone.[10] Whatever the reason, I accept that there were a number of occasions on which the father failed to attend at the Contact Centre to spend time with the child during this period.

    [9] Affidavit of the mother filed 12 June 2015, at [75].

    [10] Affidavit of the father filed 5 August 2015, at [46].

11. On 8 February 2013, the child spent time with her father at the Contact Centre. When the mother returned to the Contact Centre to collect the child at the end of the visit, she was told by the Centre coordinator that there was an incident during the supervised visit: the co-ordinator considered the father’s behaviour had been “extremely aggro” and he “went off like a bomb” when she tried to have a conversation with him. The Centre expressed such concern about her safety that they sent a staff member to the carpark to ensure the father had left the premises before she arrived to collect the child.[11]

    [11] Affidavit of the mother filed 12 June 2015, at [76].

12. While the father “somewhat” disagrees with the mother’s recounting of this incident, (saying he considered the Contact Centre staff were treating him unfairly - like that “of an abusive father or paedophile”[12] and were unnecessarily watching him and intervening[13]) he does not really dispute that he reacted aggressively to this perceived behaviour.  Clearly, such behaviour is completely unacceptable. Fortunately, it does not appear to have been repeated.

    [12] Affidavit of the father filed 5 August 2015, at [47].

    [13] Affidavit of the father filed 5 August 2015, at [47].

13. In September 2013, Orders provided that the child’s time with her father increase to two supervised hours.  For reasons which are disputed (the mother says it was because the Contact Centre had concerns about the father’s capacity to manage the child and the father says it was because of financial constraints), the child appears to have spent only 1½ hours with her father. 

14. The father failed to attend a scheduled visit on 14 February 2014. The evidence reveals this was because he was incarcerated at that time and until August 2014. the child did not spend time with him during this period.  Whilst he was released at about the end of August 2014, time between the child and her father did not resume until 14 December 2014.[14]  The father says this occurred because, despite him making contact with the Contact Centre soon after his release from jail, the Centre was unable to provide supervision until then.  Whilst this seems a lengthy period, even for a Centre which is known to be busy, there is no independent evidence to contradict this assertion.

    [14] Affidavit of the mother filed 12 June 2015, at [79].

15. On 15 February 2015, the child’s time with her father at the Contact Centre was terminated after only 25 minutes. The mother was told this was because the child was “showing little interest in [the father]” and was becoming upset.[15] The father agrees that the child was very upset, crying hysterically and hid under a chair. He says this was because her mother had told her that she (her mother) was moving far away for work and she was never going to see him again. The notes of the visit do not reveal that the child’s time with her father ended early at the contact or that she was hysterical; they do reflect that she did show not a lot of interest in her father. It seems likely her reaction may well have been the result of the significant gap in her time with her father the year before.

    [15] Affidavit of the mother filed 12 June 2015, at [81].

16. On 7 March 2015, the father cancelled a scheduled contact visit because he was away working in E Town.[16]  He subsequently returned a positive test for the presence of methamphetamine and, because he was on parole at the time, was later incarcerated for about 21 days.  Whilst the scheduled visit on 26 April 2015 was cancelled by the paternal grandmother (who cited work reasons[17]), it is now clear that the father could not attend this visit because he was in custody.

    [16] Affidavit of the mother filed 12 June 2015, at [82].

    [17] Affidavit of the mother filed 12 June 2015, at [84].

17. On 8 May 2015, the Contact Centre withdrew its services for undisclosed reasons.[18]  However, on 29 May 2015, the Contact Centre proposed that the child’s time with her father recommence.  The Centre indicated this would be the father’s “last chance”.[19] the child resumed spending two hours per fortnight with the father at the Centre.

    [18] Affidavit of the mother filed 12 June 2015, at [85].

    [19] Affidavit of the mother filed 12 June 2015, at [86].

18. In late October 2015, the Principal Registrar made an Order that the child spend unsupervised time with her father for two hours per fortnight with changeovers to be facilitated by the Contact Centre. This unsupervised time was conditional upon the father producing clean urinalysis test results when requested by the Independent Children’s Lawyer.

19. On 1 November 2015, the child was introduced to Ms F and her half-sister (the father’s and Ms F’s recently born daughter).  The child was a little unsettled after the visit.  The mother also says that, for the next two weeks, the child refused to speak with her father on the phone and he became agitated and terminated the calls. While the father accepts that the child’s telephone calls with him were short in the time after she was introduced to her new half-sister, he denies terminating the calls – he says he always remained positive.[20]

    [20] Affidavit of the father filed 16 March 2016, at [13].

20. On 7 November 2015, the child spent unsupervised time with her father for the first time. The mother says the time went well.  The father says that, at the end of their time together, the child wanted to stay with him and was upset they had to return to the Contact Centre.[21]

    [21] Affidavit of the father filed 16 March 2016, at [14].

21. The child and her mother then travelled to Europe between 3 December 2015 and 13 January 2016.[22]  This meant the child’s time with her father was disrupted again. 

    [22]         Affidavit of the mother filed 3 February 2016.

22. After the child returned to Australia, she resumed unsupervised time with her father.

23. The father says, that, save for making comments which indicate to him that she knows her mother does not like him, his time with the child is progressing well.  He says she continues to be upset on returning to the Contact Centre for changeovers. Additionally, he says that, save for what he considers to be interference by the mother, the child’s Skype and telephone calls with him are also going well.

principles

1. As long as regard is had to the Objects of Part VII of the Family Law Act1975 (Cth) (“the Act”), the principles which underpin those Objects[23] and, subject to s 61DA, s 65DAB[24] and Division 6 of Part VII of the Act, the Court may make such parenting order as thought proper.[25] 

   [23] s 60B of the Act.

   [24]         Parenting plans.

   [25] s 65D of the Act.

2. In deciding whether to make a parenting order, I must regard the child’s best interests as the paramount consideration.[26] Whilst the matters to be considered in determining those parenting orders which are in the child’s best interests are set out in s 60CC of the Act, it is unnecessary for each prescribed consideration to be the subject of any particular discussion, particularly where the evidence relevant to it leads inexorably to a particular conclusion.[27]

   [26] s 60CA and s 65AA of the Act; but this is not the only consideration.

   [27]Banks & Banks (2015) FLC 93-637 – a decision involving the determination of interim orders but from which, in my view, generally applicable restatement of principle can be drawn.

Meaningful relationship

1. The Act does not define the term ‘meaningful relationship’. It does not prescribe criteria on which the Court should rely in order to assess how the child’s parents have, or should have, a meaningful involvement in her life. However,  the ‘preferred interpretation’ of ‘benefit to a child of a meaningful relationship’ is the ‘prospective approach’[28] – that is, the Court should consider and weigh the evidence at trial and determine how, if it is in the child’s best interests, orders can be framed to ensure that she has a meaningful relationship with both of her parents.

   [28]         McCall & Clark (2009) FLC 93-405 at [119]

2. An affirmative finding about this consideration does not depend simply on there being a lack of danger of physical or psychological harm to the child arising from time and/or communication with her father. Rather, I must determine whether, in fact, there is a benefit to the child of a meaningful relationship with both parents.

3. The two authors of the Family Reports prepared to assist the Court expressed significant reservations about whether there is a benefit to the child of a meaningful relationship with her father. In May 2013, Ms G opined that “the court would need to be satisfied that [the father] is functioning well psychologically; that he has fully reformed his criminal lifestyle and that he has fully reformed his longstanding drug taking habits before others could consider that this child would not be at an unreasonable risk with her father on an unsupervised basis.”[29] She then noted he did not have a history of being able to manage himself adequately, and had lived a largely itinerant life in which he had not been employed or adequately self-responsible.[30]

   [29] Family Report 2013 at [77].

   [30]         Family Report 2013 at [73]

4. Ms G also noted that, if the mother’s account of his behaviour was accepted, he had previously demonstrated poor impulse control, had behaved in a domestically violent manner and, by virtue of these behaviours, was likely to render the child vulnerable to witnessing criminal activities and/or physical abuse.[31]

   [31] Family Report 2013 at [75].

5. This view was, at least initially, echoed by Ms H who, in early 2015, considered that the father’s “current trajectory may indicate a life path which offers few positive reasons to actively promote the development of a meaningful relationship between the child and her father”.[32]

   [32] Family Report February 2015, at [75].

6. The father’s past behaviours certainly establish that he has previously struggled with substance abuse and has exhibited certain anti-social behaviours.

7. However, I note the positive observations recorded by the supervisors of the time between the child and her father – particularly that which occurred in 2015. Reference to the records maintained by these supervisors over time establishes that, on occasions, the child has spontaneously told her father she loved him ‘to the moon and back.’  She has certainly appeared happy to see him and to enjoy her time interacting with him. He appears to have developed parenting skills in his interactions with her. She expressed sadness when, having told her that he would put it on his fridge, he forgot to take with him a picture she had drawn for him. On one occasion, she was upset when he failed to attend at the Contact Centre for their time together.

8. These observations of the child’s interactions with her father – and others contained within the supervisors’ notes - persuade me that, from the child’s perspective, there is a benefit of being afforded the opportunity to have and develop a meaningful relationship with her father (as well as her mother). It is clear he loves her without reservation. It is also clear, from the majority of his comments to her, that he supports her relationship with her mother and has acted positively to reinforce the view that her mother is another person in her life who does ‘good’ things for her.

9. I therefore consider that there is a benefit to the child of having the opportunity to continue to get to know her father, spend time with him and learn about him and the role he has in her life as one of her biological parents. There is, at this stage, a benefit to her of having a meaningful relationship with both of her parents.

The need to protect the child from harm from being subjected to or exposed to abuse, neglect or family violence

1. The mother appeared to report to Ms G that she did not believe the father would intentionally place the child at risk but that he had done so by driving with her at excessive speeds and because he was unable to control his abusive behaviour.[33] 

   [33]         Family Report 2013 at [76]

2. As noted, the mother’s initial contention that the child’s time with her father should be supervised arose in the context of her concerns the child may be exposed to her father’s unstable lifestyle, drug use, criminal behaviour and family violence. During her cross-examination, she accepted the child had enjoyed the limited unsupervised time which has occurred to date and that there was nothing in her presentation on returning to suggest she was unhappy and/or reticent to see her father again.

3. Whatever the father’s past behaviours, there is no evidence to suggest that he has exposed the child to drugs or criminal behaviour of any kind or to family violence during their relatively recent and relatively short periods of unsupervised time together.

4. The father has a longstanding history of drug use. He told Ms G[34] in 2013 that he first used marijuana when he was 16 years old. He said he stopped using it completely after the child was born because he thought he would have to undertake urine analysis testing to see her.[35] He admitted using methamphetamine regularly during his relationship with the child’s mother and I accept as likely that, on occasions, his use was “heavy” as the mother suggests.

   [34]         Who authored the first Family Report.

   [35] Family Report 2013 at [46].

5. The mother was at all times aware of the father’s drug use: for example, she says she saw him use methamphetamine on the first occasion they met[36] and that, after she asked him to, he stopped taking speed for a period of about two months in late 2009/early 2010, although he continued to use marijuana.[37]

   [36] Affidavit of the mother filed 12 June 2015, at [6].

   [37] Affidavit of the mother filed 12 June 2015, at [11].

6. Whilst the mother denies ever using the drug “ice”, she admits having previously used speed and ecstasy. She admitted to Ms H some historic “opportunistic” drug use (occurring approximately twice per month) but says she ceased this when she learned she was pregnant and has not used drugs since.[38] Whilst the father asserts that the mother used drugs on a greater frequency than she says, he accepted, during the interviews for the second Family Report,[39] that her drug use ceased on her pregnancy.

   [38] Family Report February 2015, at [21].

   [39] Family Report February 2015, at [44].

7. On the mother’s account, the parties argued in about June 2010 about the father’s drug use. Following this argument, the father broke into the unit complex in which they were living, punched holes in the unit wall and caused other damage to property. He was subsequently charged for breaching his bail conditions and incarcerated for three months.[40]

   [40] Affidavit of the mother filed 12 June 2015, at [9].

1. The mother’s allegations that the father has been involved in criminal activities are based on at least two further events: the first, an occasion in about March 2011 when, after abusive and threatening phone calls had been received from the father’s cousin (with whom he was attempting to establish some sort of business), her car was set alight[41] and the second, in about November 2011, when she returned with the child to their unit to find the unconscious father had been the victim of a serious assault by two acquaintances of his that she recognised -  he suffered two fractured eye sockets, two black eyes, a split lip and a split above his eye.

   [41]         Which the father disputes happened.

2. Whilst the police attempted to investigate the event, the father refused to make a statement. He has also previously sworn that he did not know why he was assaulted by these acquaintances.[42] Whilst he initially maintained this inherently incredible assertion during cross-examination, he eventually gave an explanation that involved the assertion it had to do with him not paying $5,000.00 for a car and had nothing to do with drugs.  Whilst this explanation is not inherently incredible, his established willingness to lie on oath makes it difficult to know what to accept as the truthful explanation for the events which culminated in his assault.

   [42] Affidavit of the father filed 5 August 2015, at [18].

3. However, I do accept his explanation that he had refused to provide this (or any other) information to police or to file a complaint about this assault because he is not a “dog”:  that is, he is not an informer. 

4. In addition to the events outlined above, the mother also alleges that, in about December 2011, the maternal grandmother found a gun in a bag in her car after she had loaned it to the father. The mother says that, when she confronted the father about this, he said it was a replica.  She says she was too frightened to report this event to the police.

5. The father denies ever having a gun – replica or otherwise – in his possession on this occasion.  During his cross-examination of the maternal grandmother, it was revealed for the first time that she was working as a Child Safety Officer at the time of this alleged event:  despite this, and the child’s continued presence in the home, she did not make any report to any authority about it. She said she did not do anything to bring this information to the knowledge of authorities because she was frightened of the father; and her daughter was then still involved with him. 

6. The parties separated on 7 December 2011 on the mother’s account. She and the child left the previously shared accommodation. The father had been, she says, on a drug binge in the fortnight or so leading up to her decision to end their relationship. During this time, he was also arrested for various offences[43] including, perhaps, wilful damage and driving an unregistered vehicle unlicensed for which he was charged on 9 January 2012 and dealt with in late January 2012.

   [43] Affidavit of the mother filed 12 June 2015, at [24].

7. Despite the father’s known behaviours in the weeks leading up to the separation, the mother agreed to drive him to I Town on 12 January 2012 so that the child could meet her paternal uncle. She says that, when in I Town, she learned the father was delivering cocaine to his brother. The father denies any involvement in the delivery of illicit substances.  Unremarkably, there is no evidence independent of the parties to corroborate either account.

8. In any event, the mother allowed the father to stay at her home that evening.  The parties disagree significantly about what happened that night. It is, however, accepted that the father smashed her computer and punched a hole in the wall at some time during the night.[44] When the mother awoke later that morning, the father was still asleep on the couch. She says she tried to leave with the child but he chased after them, took the child out of the car and, when she confronted him and asked him to return the child, raised his fist towards her and threatened to hit her. Police were called. The father took the child to a local park. When the police arrived, she was returned to her mother’s care and the father was removed.

   [44] Affidavit of the mother filed 12 June 2015, at [27].

9. The father’s account is that he and the mother slept together that night.  He says the mother tried to take the child the next morning and told him he would never see her again. He then removed the child from her car seat and took her to a local park.  When he returned, the police were in attendance and the child was returned to her mother.

10. I accept that the parties were involved in a significant disagreement on this occasion.  I also accept as likely that the father’s behaviour in removing the child from her mother’s care is likely to have caused her mother significant upset and distress.

11. An interim Protection Order, in which the mother was named as the aggrieved, was made after this event. Subsequently, a final Protection Order was made without opposition from the father. He said he had not opposed the Order because he did not want to go near the mother. He also said she could ‘have’ an Order for as long as she wanted if it made her feel safe.

12. Despite the existence of a Protection Order, a subsequent confrontation between the parties occurred on 4 July 2012. The mother facilitated the child spending time with her father for his birthday. At some stage when they were in the car together, she raised the issue of him signing documents to enable the child to obtain a passport for her to travel with her mother to Europe for a holiday. She accepted she knew this topic would likely lead to an argument. I accept as likely that the father’s response was to tell the mother that:  he would not “sign shit”; “if the Court tells me I have to, I’ll tell them to shove it up their arse” and that he would make sure she never left Australia again.

13. The argument between the parties escalated.  When the mother asked him to get out of the car, she says he screamed and asked whether she wanted him to fucking kill her and said he then understood why people ‘kill their own children’ because it must be easier than having to deal with everything she had put him through.

14. The father has sworn that this event did not happen.[45] However, it is difficult to conclude from this alone that he denies the entirety of the event, particularly given that, during his cross examination, whilst he denied threatening to kill the mother, he accepted that he had made comments to the effect that he could understand what went through the minds of people who snap and kill the children of partners – he said he did not condone this or feel sorry for such people, but had said he could understand how that thought or thoughts went through their heads.

    [45] Affidavit of the father filed 5 August 2015, at [36].

15. Even if made during the height of a significant verbal argument between parents – as this clearly was – it is difficult to understand how the father could rationalise these comments with his love and affection for the child. Thankfully, there is no suggestion anywhere in the evidence that the father has ever made such incomprehensible comments again.

16. The mother subsequently applied successfully to vary the terms of the Protection Order to include her mother and the child as protected persons and to restrain the father from attempting to locate, contact or approach within 100 metres of them. The Order made 20 September 2013 remained in force until September 2015.[46]

    [46] Affidavit of the mother filed 12 June 2015, at [29].

17. There is no suggestion the father has ever been prosecuted for any breaches of the terms of the Protection Order. He did not contest the mother’s more recent application to have another Protection Order made to cover the period during which the trial occurred. His evidence was that he did not care if an Order was made as he did not want to go near the mother. He said the police opposed the extension of the Order. It appears from the mother’s evidence that she fully anticipates her application being dismissed when it is heard finally – it was brought for the purpose of asking, at the first hearing, that it be adjourned to after the trial dates so she could obtain a temporary Order. The father said he only appeared at the most recent Protection Order Application hearing to be able to be allowed to telephone the child and he achieved this. He has no qualms with an ‘extension’ of the Protection Order – his position is that, if the mother wants it extended, she can have it extended.

18. The content of documents obtained from the Queensland Police Service established that, in about mid October 2015, police were called to an argument between the father and Ms F. They have been in a relationship since about the beginning of 2014 and live together, with Ms F’s son J[47] from a previous relationship and their daughter, who was born in 2015.

    [47]who spends time with his father, who lives in Sydney, approximately every three weeks when he and Ms F fly there.

19. In broad summary, the police documents record that the father and Ms F were arguing as they arrived home. This seems to have been about money. It appears that when Ms F, who had very recently given birth to their daughter, stopped the car, the father removed the baby and took her inside. That a neighbour called police suggests that the argument was loud enough to be heard, at least across the street. When police arrived, Ms F told them she had been the aggressor during the argument; police provided the father and Ms F with the details of a family support network.

20. There is no other evidence before the Court to suggest that police have attended on any other occasion at the home of the father and Ms F. As the argument appears to have occurred in the context of them, dealing with the combination of the birth of their daughter, concerns about money and the fact that Ms F had to drive the father to and from work because he was unlicensed, I am not persuaded by the fact of it that the child will be at an unacceptable risk of harm if she continues to spend unsupervised time with her father.

21. It is trite to say that it is unacceptable that the child should ever be exposed by either parent to an environment in which any adult is using, or under the influence of, illicit substances. Given the fact that both have previously consumed these substances, both will be restrained from consuming any illicit substance during any time the child is in their care and both will be required to remove her from any environs in which any other person is using illicit substances.

The child: her attachments and relationships with other significant individuals

1. The child was only five months old when her parents separated.  She has always lived with her mother. Until October 2015, her time with her father was supervised.

2. As noted, there have been a number of hiatus in her opportunity to spend time with him:  some as a result of the child and her mother travelling to Europe and some as a result of her father’s incarceration. 

3. When Ms G saw the child in May 2013 she was nearly two years of age.  She was spending one hour per week with her father at a Contact Centre.[48]  She walked happily toward her father at the commencement of the observations and responded to his requests for a kiss.[49] His interactions with her were age appropriate.  Ms G considered he clearly loved her dearly. He sought affection from the child throughout their time together – she responded, rather than displaying such affection spontaneously.[50] Ms G thought he missed her behavioural cue at the end of the interviews (namely, that she was showing she wanted to be with her mother) and sought more from her despite her indications that this was not what she wanted.[51]

   [48] Family Report 2013 at [15].

   [49] Family Report 2013 at [59].

   [50] Family Report 2013, at [79].

   [51] Family Report 2013, at [79].

4. When Ms G spoke with the supervisor from the Contact Centre, she reported the father was initially quite distressed - to the point of making the child distressed by exposure to the same - when he met with the child. He did, however, respond to intervention from the facilitator and diverted the child from his distress. He often asked the child if she loved him and told her that he misses her.[52] She considered the child was forming an attachment to her father and reported that, on the most proximate supervised contact, the child had run to greet him.[53]

   [52] Family Report 2013 at [68].

   [53] Family Report 2013 at [69].

5. Ms G concluded that, despite their limited time together, the child was attached to her father.[54]

   [54] Family Report 2013 at [62].

6. The child was three and a half years old in February 2015 when Ms H saw her for the first time with each of her parents.  She greeted her father with a big smile and, when he asked, a hug. She was more boisterous, more easily distracted and her behaviour was sillier than when with her mother. She was also less responsive to direction from her father.[55] Ms H considered that this marked change in her behaviour could be indicative of a number of things: that her perception of her relationship with her father is focussed on fun (a likely and reasonable consequence of them having spent significantly less time together); that she does not see her father as a parental figure (possibly as a result of his lack of parental role in her life); and/or, his focus on making the child’s time with him fun.[56]  Given the relatively limited time they had spent together and the manner in which this had occurred, this seems likely. 

   [55]         Family Report February 2015 at [62-63].

   [56] Family Report February 2015 at [69].

7. I accept Ms H’s assessment at that time that the child had good quality relationships with both her mother and father.  I accept she appeared happy and relaxed in their respective company[57] during the observations.

   [57] Family Report February 2015 at [68].

8. The parents and the child were interviewed and assessed by Ms H again in September 2015.  The child was then four years of age and spending two hours with her father each alternate weekend at a Contact Centre and speaking to him by telephone twice weekly. The mother said that the child enjoyed seeing her father and speaking with him on the telephone[58] - she believed the telephone calls were positive for the child and her father’s relationship because it brought him into her life.

   [58]         Family Report September 2015, at [14,15].

9. I accept the child is primarily attached to her mother.  I accept Ms H’s assessment that the child has developed a good quality relationship with her father within the bounds of the time they have spent together.

The Mother: her parenting capacity, attitude to the child and the responsibilities of parenthood

1. The mother was born in Europe in 1984. In about 1998, when she was about 14 years of age, she moved with her mother from that country to live in Australia.  She completed her secondary education here.  She has completed an undergraduate degree (via external studies conducted through a local university). She is currently completing a Masters in a similar manner. She supports herself and the child via the receipt of government supplied financial payments and some ad hoc promotional work.

2. In responding to her criticisms about his lifestyle, the father expresses concerns about the mother’s association with Mr K, an individual he contends holds a position in a criminal organisation.[59]  The mother accepted she had spent time with this person. She denies ever having been in a relationship with him, describing him as a person with whom she has a loose friendship. The comments on the social media page print outs certainly suggest that, at some stage, their relationship may have been of a different nature.

   [59] Affidavit of the father filed 5 August 2015, at [17].

3. In February 2015, Ms H considered that the mother’s care of the child to date perhaps provided a positive indicator for the future of her ongoing care of the child if she were compelled to remain in Australia.[60]

   [60] Family Report February 2015 at [82].

4. However, in September 2015, when interviewed by Ms H again, the mother was tearful on a number of occasions when discussing her ability to cope if she remained on the Region C. She expressed feeling stuck and close to breaking point due to the pressures of single parenthood and a lack of support.[61] She reported feeling “at capacity” for the past year and said she had been working hard to “keep it together”.[62] She indicated she had been diagnosed as suffering from situational anxiety and depression, which she was managing with medication. Despite these matters, she told Ms H she did not consider there had been any impact on the child as a consequence of her stress.[63]

   [61] Family Report September 2015, at [13].

   [62] Family Report September 2015, at [17].

   [63] Family Report September 2015, at [17].

The Father: his parenting capacity and attitude to the child and the responsibilities of parenthood

1. The father was born in New South Wales in 1980. It is accepted he struggles with literacy.  He has been employed, on an intermittent basis as a tradesman. As at February 2016, he was working as a tradesman.  When not in paid employment – which appears to have been for large parts of his adult life – he has been supported by the receipt of government supplied financial payments.

2. At present, the father and Ms F appear to be staying with members of her family in Sydney so that the father can work. They return to Queensland so that they can spend time with the child. Ms F in particular is hopeful that they will continue to live and be based at the Region C.

3. Ms G interviewed the father in May 2013 for the purpose of preparing a Family Report. She considered that the father does not have a history of being able to manage himself adequately: having lived a largely itinerant lifestyle in which he has not been employed or been adequately self-responsible.[64] Ms G also considered that the norm by which the father measured his behaviour was lower in terms of what is acceptable than what others might have.[65]

   [64] Family Report 2013 at [73].

   [65] Family Report 2013 at [74].

4. Given the parties’ admitted history of using illicit substances, Orders have previously been made empowering the Independent Children’s Lawyer to ask them to undertake hair follicle testing. The mother’s test results do not establish the prior presence of illicit substances.

5. The father finally participated in hair follicle testing in about August 2015. His results did not establish the prior presence of illicit substances. In January 2016, he was requested to undertake a supervised urinalysis drug test. The first sample provided was unacceptable as a sample. A subsequent sample provided on 27 January 2016 did not reveal the presence of any illicit substance.

6. It is clear the father was first asked to undertake testing on 23 February 2015.  On 3 March 2015, his then solicitors informed the mother’s solicitors and the Independent Children’s Lawyer that he could not afford the hair follicle testing.[66]

   [66] Affidavit of the mother filed 12 June 2015, at [115].

7. The mother says this was untrue and that he was simply attempting to avoid providing a sample of hair. She also says she was informed by one of the father’s friends that he had shaved his head at around this time. She herself did not see him with a shaved head. The person from whom she obtained this information was not called in her case despite her appreciating the importance to her case in this respect of such evidence.

8. Whatever the position and whether the father shaved his head to attempt to avoid providing a hair sample for testing or not, other evidence clearly establishes that he returned a positive test for the presence of methamphetamine on 9 March 2015[67] – a matter revealed during a random test administered as part of his parole conditions. A confirmatory test performed on 12 March 2015 also tested positive, but to a lesser extent. The results of a further confirmatory test performed on 14 March 2015 were not before the Court.

   [67]         Exhibit 4.

1. Whilst the father denied knowingly consuming methamphetamine, he spent about 21 days in custody as a consequence of these results.

2. On 16 December 2014, the father was referred to a psychologist under a mental health plan. He subsequently attended upon that person on[68] 22 January 2015, 12 February 2015, 12 March 2015 and 2 July 2015.

   [68]         Affidavit of the father filed 5 August 2015 at Annexure D.

3. Ms H, interviewed the parents in January 2015.  She prepared the second Family Report. The father told her of his extensive history of drug use (which included speed, cocaine, ecstasy and marijuana[69]) but contended he had not taken any drugs since he was released from prison in August 2014. While he sought to place reliance upon regular drug tests as part of his parole conditions,[70] he also accepted that he had previously cheated on urine drug screens to achieve clean results.[71]

   [69] Family Report February 2015, at [42].

   [70] Family Report February 2015, at [42].

   [71] Family Report February 2015, at [45].

4. Ms H also interviewed Ms F, the father’s partner. Ms F demonstrated an awareness of the father’s drug history and said that any drug use in her house would not be tolerated. She believed the father was drug free, and relied – at least in part – on his clean urine drug screens as part of his parole.[72]

   [72] Family Report February 2015, at [67].

5. In September 2015, the parents were interviewed and observed by Ms H for the purpose of preparing an updated Family Report. The father told Ms H that, since February 2015, he moved house, gained full time employment, and completed his parole.[73] He did not tell Ms H about the positive test for the presence of methamphetamine he recorded in early March 2015. Ms F, his de facto partner, did not mention this either. In fact, the father continued to report that he was not using any drugs.[74] He acknowledged there had been a delay in him obtaining a hair follicle test as requested by the Independent Children’s Lawyer, however cited financial constraints.

   [73] Family Report September 2015, at [25].

   [74] Family Report September 2015, at [28].

6. Ms F was also interviewed in September 2015. She was, at that time, heavily pregnant with the father’s child. She reported that the father had been upset about the earlier Family Report’s conclusion that there would be little effect on the child if she were permitted to relocate.[75]

   [75] Family Report September 2015, at [37].

7. Both the father and Ms F denied the presence of any risk factors in their home.[76]

   [76]         Family Report September 2015, at [31, 39].

8. Ms H noted that, while it was “encouraging” that the father was, on his report, living a drug and crime free lifestyle, there remained “substantial concerns” about his ability to maintain this lifestyle, given the longstanding and persistent nature of these problems.[77] I certainly share in these concerns.

Likely effect on the child of changes in her care arrangements, including the likely effect on her of a separation from her father and her half-sister

[77] Family Report September 2015, at [57].

1. During her cross-examination, Ms H noted that if, as I find to have been the case, the child’s relationship with her father has continued to progress, and he has become a much bigger part of the child’s life, she would certainly miss him more and have more of a loss reaction if her relationship with him is now severed.

2. I accept Ms H’s evidence that, at the child’s age it is very difficult to consider that time during one block period each year will be sufficient for her to continue to develop - or even just maintain – her relationship with her father.  I also accept that, at her age, she needs more frequent contact and interaction to be able to maintain such a relationship, especially given what I consider to be the less than completely established nature of it.

3. I also accept that, for the child at her age and with the nature of her current relationship with her father, it would be very difficult – if not almost impossible – for her to maintain an ongoing and meaningful relationship with her father without the opportunity to interact with him physically on a frequent and regular basis.

4. Whilst, if she was older, she may be better able to maintain an established relationship with him and others in the face of significantly restricted or diminished opportunity to engage physically on a regular and frequent basis, her age is such that I accept this will be very difficult for that to happen at present.  I accept Ms H’s evidence that it would be difficult to maintain an already strong relationship in such circumstances.  I accept that this difficulty is amplified if the starting point for the relationship is not already strong: that is, I accept that it will be even more difficult for the child to continue to develop a relationship with her father given that their relationship has only just started to encompass the opportunities made possible by spending time together away from the Contact Centre.

5. I accept that, at the child’s age, there is a significant risk that, absent the opportunity to spend regular and frequent physical time with her father, her relationship with her father will simply fall away.

6. I accept Ms H’s evidence to the effect that the child is still too young for anyone  to be able to predict, with any certainty, that she would be able to maintain her relationship with her father in the absence of regular and frequent physical interaction with him. I accept that the risk of her relationship with him declining is greater now than if she was older and their relationship more fully developed and established.

7. I am not persuaded that the current strength of the relationship between the child and her father is yet such that she is likely to be able to maintain and develop it without the opportunity to engage in regular and frequent physical interactions with him. Their relationship is, I consider, still very much in a relatively embryonic state in that it is still developing and strengthening.

8. I also accept that, for the child to develop or progress her relationship with her father to a stage where it could be maintained absent the opportunity for regular and frequent physical interaction with him, will require her having the opportunity to spend sufficient time with him and also to have, during that time, lots of different experiences.

9. I also accept Ms H’s evidence that, at her current age, the child does not possess, developmentally speaking, the skills to hold people in her mind during periods of absence. I accept as likely that her capacity to do this will increase as she grows older and that this means it is likely, she will, over time, become able to tolerate longer periods of absence without adverse impact on the state or nature of her relationship with her father.

10. I also accept that, where the relationship between a child of the child’s age and a parent is a little weaker – as I consider it is here – maintenance of the same via electronic means such as Skype may well come to be seen by her as something of a chore. There is, it seems, less of a likelihood of this occurring if the existing relationship between the child and her father – that being the relationship sought to be maintained, via electronic means, is stronger.

11. Whilst I accept that, with a strong and established relationship with her father, the child may, as Ms H says, be able to manage the transition from Skype or screen interaction with him to in person interaction, I am not persuaded that her current relationship with him is presently strong enough and/or established enough to make this likely.

12. I am concerned that, given the matters adverted to above, Orders in terms of those sought by the mother are highly likely to result in the child being almost re-introduced to her father during each year. During that month long period, she would be required to spend intensive periods of time with him, only to revert to no face-to-face time for the following 12 month period. Given her age and the current state of her relationship with her father, I think it highly likely this may simply be too much for her to tolerate, with adverse effect.

13. Additionally, while she may tolerate time away from her mother better as she ages, there is a very real risk, in my view, that she may come to view her father as something of a stranger if she does not have the opportunity now to spend regular and frequent face to face time with him. An example of what is likely to occur can be found in her disinterest in spending time with him in early 2015 given she had spent very limited time with him the year before.

14. I consider that, for the child, the likely impact of a move to live in Europe now will be a failure to have any realistic opportunity to develop a strong relationship with her father, or even to maintain any form of meaningful relationship as well as the loss of opportunity to have relationships with members of the paternal side of her family, including, importantly, her baby half-sister.

15. Given Ms H’s evidence that children tend to have better outcomes across all domains if they are able to have strong, healthy and positive relationships with both of their parents, I consider there is a very real possibility that, if she relocates to live in Europe at this time in her life, the child will be unable to develop these relationships and consequently, may suffer adverse consequences into the future.

16. I also accept Ms H’s evidence to the effect that, for children, sibling relationships are very important because, usually, they provide for people an unconditional sense of love and support. They also have a greater possibility of outlasting parental relationships.  If she moved to live in Europe now, the child would not have any real chance to develop a relationship with her half-sister.

17. Of course, it is also necessary to consider the potential risks to the child if her mother’s Application is unsuccessful. Whilst her mother has experienced upset, she positively advanced to Ms H that the child had not suffered in her parenting as a consequence of this. The mother has established friendship networks in the local area where she has lived since 1988. She has been able to access support from her mother via Skype and electronic means and, obviously, because of her age, is able to maintain that relationship.

What orders are in the child’s best interests?

Parental Responsibility

1. The mother seeks an order that she have sole parental responsibility for major long term issues relating to the child. The father contends that an order for the child’s parents to have equal shared parental responsibility for her is that which is in her best interests.

2. Given the father’s admitted actions in damaging property, the presumption that it is in the child’s best interests that her parents have equal shared parental responsibility for her[78] does not apply. Consequently, the power to make parenting orders pursuant to s 65D of the Act is ‘at large’, albeit subject always to the paramount consideration of the child’s best interests.[79]

   [78] s 61DA of the Act..

   [79]         Cox & Pedrana (2013) FLC 93-537, [19]; s 60CA; s 65AA of the Act.

3. In determining whether it is in the child’s best interests to make an order that her parents have equal shared parental responsibility for major long term issues relating to her, it must be remembered that such order requires decisions about such issues to be made jointly by the parties[80] and that each party consult the other in relation to the decision to be made about that issue and make a genuine effort to come to a joint decision about it.[81]

   [80] s 65DAC(2) of the Act.

   [81] s 65DAC(3) of the Act.

4. The parties have had extremely limited interaction and or communication since their separation in about January 2012. The mother has obtained a temporary Protection Order for the purposes of the trial. The father says he does not want to go near the mother and, consequently, does not oppose any extension of a Protection Order. The mother has historically made decisions involving the exercise of parental responsibility without the father’s input.

5. All of these matters persuade me that it is unlikely that the child’s parents will be able to make decisions jointly. In such a circumstance, it seems more likely than not that a requirement that they do so will inevitably lead to further conflict. This cannot be seen to be in the child’s best interests.

6. Rather, I consider her best interests will be better served by permitting her mother solely to make decisions about major long term issues relating to her, provided that she invite the father’s response about the same.

   A move to live in Europe?

7. I am not persuaded that moving to live in Europe at this time is something that is in the child’s best interests. I consider that her relationship with her father is not sufficiently established to withstand the very large breaks in their face-to-face time that would attend such a move.

8. Additionally, given the father’s poor employment history and unreliable work history and that he has frequently been unemployed and reliant on Centrelink benefits, I am far from persuaded that he is likely in the future to be able to afford to travel – either alone or with his family, including the child’s half-sister – to Europe each alternate year.

9. I am not persuaded that the mother has really attempted to find employment on the Region C or in the Brisbane area. On her own evidence, she has really been waiting to learn whether she will be permitted to relocate the child to live in Europe. She is clearly accomplished and qualified. Her qualifications will soon improve as she completes her current study.

10. The evidence of the possibility of employment for her in Europe seems to me to amount to assertions of hoped-for opportunities. At best, her most tangible offer of employment appears to be one which involves assisting a friend or acquaintance in establishing a business selling tattoo after-care products, from which it appears she would receive remuneration on a commission basis. Whilst I have no doubt that she has significant aspirations and hopes to achieve financial security for herself and the child, I am not persuaded on the evidence that this is more likely to occur in Europe than it is in Australia.

11. Consequently, I am not persuaded on the evidence before me that the mother will necessarily herself be able to afford to return with the child to Australia every alternate year.

12. As a result, I consider it quite possible – and highly probable – that, if the child moves to live in Europe now, her opportunity for face-to-face time with her father – even on the limited basis proposed by the mother – would likely fall away over time.

13. Obviously, a move to Europe now will prevent frequent face-to-face contact between the child and her father. Given the more recent observations of her interactions with him, I am persuaded she is likely to experience a significant sense of loss if this occurs.

14. Additionally, whilst the child is yet to attend school, she has regularly attended at daycare/pre-prep and has regularly participated in playgroup. Consequently, I think it more likely than not that she may well experience feelings of loss of this sense of community, if she now moved to live in Europe.

15. The benefit to the child of developing a relationship with her father will be significantly greater if he is able to maintain a drug and crime free lifestyle. However, as I have already noted, I consider that there is already a benefit to her in the opportunity to maintain and develop an ongoing relationship with him.

16. Whilst the benefits to the child of a relocation to Europe may well include close proximity to extended maternal family members and the possibility of additional emotional and practical support which may be offered by them to her and her mother, it cannot be forgotten that the mother has successfully parented the child in Australia without such assistance. In fact, the maternal grandmother herself returned to live in Europe not long after the child was born.

17. I am not persuaded that continuing to remain in Australia in the current environs in which she has lived since she was 14 years of age is likely to have such impact upon the mother’s ability to continue to provide a good standard of care to the child as to outweigh what I think will be the inevitable loss of the child’s relationship with her father if a relocation to Europe is permitted at this time.

18. Consequently, I do not think it is in the child’s best interests to move to live in Europe at this time in her life. Of course, that situation may change in the future: for example, if she is older and her relationship with her father has reached a stage where it can withstand the impact of significant absences or, if her father fails, for whatever reason, to continue to spend regular and frequent time with her over an extended period of time.

    Moving to Melbourne?

19. In the event her primary proposal that the child travel to Europe to live is not favoured, the mother proposes that she and the child live in Melbourne. This would mean the child is removed from all that is known to her. She would leave her friends, her known surrounds and environs.

20. Whilst the father does not oppose this (in the sense that he would accept a move to anywhere in Australia rather than to Europe), or the child moving to live elsewhere in Australia - provided she has the opportunity to spend time with him every alternate weekend or thereabouts - there are, obviously, costs associated with this.

21. There is no evidence at all about the practicalities of the mother’s proposal to move to live in Melbourne. There is no evidence to provide a foundation for a conclusion that such a move will benefit the child. The only evidence is that her father - who lives there and has done so since about 2006 - is looking to obtain employment in, and return to, Europe to care for his ill mother.

22. I am not remotely confident that the father has the financial capacity to implement his expressed willingness to travel – or have the child travel – from Melbourne to Sydney or the Region C every alternate weekend to spend time together. As already noted, his employment history is poor and, using the past as an indicator, the most likely scenario is that he will continue to drift in and out of paid employment. Additionally, he is now responsible financially for his daughter with Ms F and their family unit.

23. Given that there is no evidence of the mother’s likely capacity to obtain paid employment in Melbourne – other than her broad assertion that capital cities such as Brisbane, Sydney and Melbourne have better opportunities than the Region C - I am not persuaded that it is more likely than not that she will be able to obtain employment there which will enable her to meet the costs (either entirely or in part) of ensuring the child has the opportunity to spend time with her father on an alternate weekend basis

24. All of these uncertainties prevent me from being persuaded that a move to Melbourne is in the child’s best interests at this time.

25. Of course, if the child’s parents themselves later agree that such a move is in the child’s best interest, they can implement any future agreement: for example, orders can easily be made by consent to ensure the child has the ongoing opportunity to spend regular and frequent physical time with her father in such an event.

    What time is it in the child’s best interests that she spend with her father?

26. I have taken Ms H’s evidence into account in formulating a regime of increasing time between the child and her father. I also take into account that, at present, she attends pre-prep from about 9.00am until about 4.00pm on three days of each week.

27. I consider it in her best interests that, in a graduated manner, she have the opportunity to spend sufficient time with her father to enable her to engage with him in a variety of activities and to be parented by him – as opposed to simply seeing him as a person she plays with for a limited amount of time each fortnight.

    Changeovers

1. I consider it in the child’s best interests that changeover continue to be facilitated via the contact centre until the end of this year. This will ensure that the child has the support of a known environment as she adapts to the regime of increasing time with her father. It will also enable the parties to have sufficient time to accept the reality of the new parenting regime imposed by the new parenting orders. Whilst the father has the financial responsibility of his child with Ms F, the fact that the mother’s currently studying persuades me that it is appropriate he be responsible for the Contact Centre’s costs of facilitating changeover.

2. Given that each of the child’s parents have a number of responsibilities such to her care, the care of other children, to work or study, it is, I think, appropriate that each is able to obtain assistance for changeovers, provided that any such person is known to the child.

   The exchange of information and other “standard” orders

3. I consider that it is in the child’s best interests that both of her parents have the ability to obtain information about her progress. It is important that both ensure that each is aware of appropriate contact details in the event of any emergencies. It is also important that each keep the other informed about matters relevant to the child, her health and education.

   Overseas travel

4. I consider it important for both the child and her mother that they have the opportunity to travel internationally to visit family or, simply, for holiday purposes. Not only will this enable the child to experience time with members of her extended maternal family, it will also enable the mother to obtain support from these family members on occasions.

5. Unfortunately, there has previously been a difficulty with the child leaving Australia for the purpose of holiday travel.

6. In September 2012, the mother filed an Application in a Case seeking to remove the child from Australia for the purpose of holiday travel to Europe. On 11 September 2012, an Order was made which permitted the child to travel to Europe for no longer than two months between November 2012 and January 2013.

7. Despite the existence of this Order, the child and her mother were stopped by members of the Australian Federal Police when they attempted to leave Australia in November 2012.

8. It appears this occurred because the child’s name had been placed on the Airport Watchlist after her father filed an Application in a Case on about 1 November 2012 seeking an order that the mother be restrained from removing her from Australia.

9. The mother subsequently brought a further Application on an urgent basis and Orders were subsequently made to permit the child to travel to Europe for a holiday.

10. I accept that this entire episode can only have been distressing for the mother. I also accept that she is genuine in her wish to avoid being placed in this situation ever again.

11. It is clear that the child’s father holds significant concerns about her safety if she travels internationally. Whilst it is, obviously, legitimate for any parent to hold concerns about their child’s welfare, risks exist in all environments.

12. In this case, the child is fortunate enough to have members of her extended maternal family living overseas. Spending time with them is highly likely to expose her to experiences which differ from those to which she experiences in Australia. This can only be beneficial for her in her development as a human being.

13. In my view, the benefits she is likely to obtain from the opportunity to continue to travel internationally for holidays – whether to visit members of her extended maternal family or, simply, to experience all that time in countries other than Australia has to offer – outweigh the risks associated with that travel.

14. The only limitations I consider are appropriately imposed on the child’s opportunities to travel overseas are those which will ensure that she is afforded every opportunity to build and consolidate her relationship with her father in the next 18 months or so.  There have already been a number of interruptions to her time with him and it is, I think, likely to be more beneficial for her to transition through the regime of increasing unsupervised time with him than to have this punctuated, again, by the time associated with international travel.

15. After the end of next year, however, there is nothing to suggest that the child should remain the subject of restrictions which limit her opportunity to travel overseas for a holiday with her mother annually to visit family.

16. For these reasons, the Orders made on a final basis will permit her to travel internationally for holiday purposes. In order to facilitate this international holiday travel, it will also be ordered that she is permitted to have an Australian travel document. Such Orders mean that, given the terms of s 11(1)(b) of the Australian Passports Act2005 (Cth), there will be no impediment to the child obtaining a passport and/or such other Australian travel documents as may be needed to facilitate any international holiday travel.

Is it in the child’s best interests that her surname is changed?

1. The mother seeks that the parties do all things necessary to change the child’s surname from ‘Jamieson’ to ‘Grella-Jamieson’. The father opposes this vehemently because he considers she should continue to be known by the surname by which she has always been known.

2. The mother accepted during cross-examination by Counsel for the Independent Children’s Lawyer that the child was enrolled at daycare as “B Jamieson” and knew herself by that name.

3. Given this, I am not persuaded that the asserted benefit to the child (namely, that, in terms of her identity, she will know she is a “Grella” too) is such as to warrant causing her the confusion which is likely to occur if she suddenly has to start to think of herself, and refer to herself, with a different surname. I have no doubt she already knows her mother’s role in her life.

I certify that the preceding one hundred and sixty-three (163) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 22 April 2016.

Associate:                 

Date:    22 April 2016