Gyles & Humes - [2022] FedCFamC2F 1778

Federal Circuit and Family Court of Australia
(DIVISION 2)
Gyles & Humes [2022] FedCFamC2F 1778

File number(s): HBC 658 of 2020

Judgment of: JUDGE TAGLIERI

Date of judgment: 22 December 2022

Catchwords:
FAMILY LAW – final parenting – relocation – where mother seeks to relocate primary residence of the child from Tasmania to South Australia – where child’s relationship with father is poor – where allegation of family violence to the child by the father – finding that the mother and the step-father have contributed to the poor relationship between the father and the child – relocation allowed – orders that the child live with the mother and spend time with the father – alternative spend time with orders if the child resides in the Greater Hobart area – s 68B injunctive orders

FAMILY LAW – contravention – where mother admits to contravening parenting orders without reasonable excuse – where mother has previously breached parenting orders for which suspended sentence handed down – suspended sentence – bond entered by mother to be of good behaviour

Legislation: Family Law Act 1975 (Cth) ss 60CA, 60B(1), 60CC(2), 60CC(2A), 60CC(2)(a), 60CC(3), 60CC(3)(a), 60CC(3)(b), 60CC(3)(ca), 60CC(3)(f), 60CC(3)(g), 60CC(3)(i), 60CC(3)(j), 61B, 61DA, 65DAA, 65DAA(3), 65DAA(5), 65DAC, 121

Cases cited:
A & A: Relocation Approach (2000) FLC 93-035

Adamson & Adamson (2014) FLC 93-622

Aldridge & Keaton (2009) FLC 93-421

B and B: Family Law Reform Act 1995 (1997) FLC ¶92-755

Dieter & Dieter [2011] FamCAFC 82

Gillespie v Bahrin; The Herald and Weekly Times Ltd (intervener) (1993) FLC 92-388

Goldrick v Goldrick [2007] FamCA 1260

Goode & Goode [2006] FamCA1346

Hedlund & Hedlund [2021] FedCFamC1A 84

Hepburn & Noble [2010] FamCAFC 111

In the Marriage of Smythe (1983) 48 ALR 677

Marvel & Marvel [2010] FamCAFC 101

MRR & GR [2010] HCA 4

Neubert & Neubert and Ors [2017] FamCA 903

Olssen & Wise(No.2) [2016] FCCA 884

Slater & Light [2011] FamCAFC 1

Star & Duggan [2009] FamCAFC 115

Taylor & Barker [2007] FamCA 1246

Division: Division 2 Family Law

Number of paragraphs: 173

Date of hearing: 28 – 30 November 2022

Place: Hobart

Counsel for the Applicant: Mr Trezise

Solicitor for the Applicant: Murdoch Clarke

Solicitor for the Respondent: Mr McKenna, Ogilvie Jennings

Counsel for the Independent Children’s Lawyer: Ms Ryan

Solicitor for the Independent Children’s Lawyer: Jacob’s Family Law
ORDERS

HBC 658 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS GYLES

Applicant

AND:
MR HUMES

Respondent

AND
INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE TAGLIERI

DATE OF ORDER:

22 December 2022

THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
2.The appointment of the Independent Children’s Lawyer is extended to 28 February 2023, subject to legal aid funding.
3.The Independent Children’s Lawyer serve on the step-father Mr B:
(a)A copy of these Orders; and
(b)A copy of paragraphs 161, 162, and 173 of the Reasons for Judgment delivered 22 December 2022.

Parental Responsibility
4.By consent, the Applicant Mother MS GYLES (“the Mother”) have sole parental responsibility for the child X born in 2009 (“X”) subject to compliance with Order 5 of these Orders.
5.By consent, the Mother must advise the Respondent Father MR HUMES (“the Father”) via email of any decisions that she intends to make concerning a “major or long-term issue” at least fourteen (14 ) days prior to those decisions being made; major long-term issues being issues of a long term nature about :
(a)X’s education (both current and future); and
(b)X’s religious and cultural upbringing; and
(c)X’s health; and
(d)X’s name; and
(e)Changes to X’s living arrangements that make it significantly more difficult for X to spend time with his Father.

6.By consent, the Father may respond to the Mother in writing with his feedback on her notice of the long-term or major issue which has arisen.
7.By consent, fourteen (14) days after providing the written notice referred to in Order 5 above the Mother may then exercise her parental responsibility and notify the Father in writing of the outcome.

Live With, Spend Time & Communication
8.By consent, X live with the Mother.
9.On condition that the Mother enters into the Bond referred to in Order 29 of these Orders including paying the required security, after 6 January 2023, the Mother is permitted to change X’s residential address to an address in South Australia.
10.X will spend time with the Father in Tasmania if he relocates residence with the Mother to South Australia as follows :
(a)During 2022:
(i)On Christmas Day in 2022 from 10:00am until 4.00pm; and
(ii)From 10:00am on 27 December 2022 until 4:00pm on 28 December 2022;

(b)During 2023:
(i)At Easter 2023 for three (3) consecutive nights;
(ii)During other term school holidays in 2023 for seven (7) consecutive nights; and
(iii)In the Christmas school holidays in 2023/2024 for seven (7) consecutive nights commencing from 28 December 2023 until 4:00pm on 3 January 2024;

(c)During 2024:
(i)At Easter 2024 for five (5) consecutive nights;
(ii)During other term school holidays in 2024 for seven (7) consecutive nights;
(iii)In the Christmas school holidays in 2024/2025 for seven (7) consecutive nights commencing in the afternoon of 23 December 2024 until the afternoon of 29 December 2024;

(d)After 2024, by agreement in writing between the parties or in accordance with X’s wishes; and
(e)On one additional occasion each calendar year until February 2025 for a period not exceeding seven (7) nights in Adelaide at the Father’s election in writing, provided that notice of the dates and place of residence in Adelaide during the time is given in writing to the mother at least twenty eight (28) days prior to the additional time commencing.

11.At any time when X resides with the mother in the Greater Hobart area, he will spend time with the Father as follows:
(a)During school term, from 5:00pm on Fridays until 3:45pm on Sundays and each alternate week thereafter, commencing on the same Friday that the Father has Y born in 2010 (“Y”) in his care.
(b)During mid-term school holidays for a period of five (5) nights, with the fortnightly term time in Order 11(a) of these Orders extending from the Friday at 5:00pm until the following Tuesday at 3:45pm.
(c)In the event that X is not already spending time with his Father, on Father’s Day from 10:00am until 3:00pm; and
(d)During the Christmas school holidays from 2024 and every year thereafter, for five (5) nights commencing at 5:00pm on the second Friday in January until 10:00am the following Wednesday; and
(e)On Christmas Day in 2022 from 10:00am until 4.00pm and each alternate year thereafter and on Christmas Eve in 2023 and each alternate year thereafter from 3:00 pm until 10:00am on Christmas Day.

Changeover of Care and travel costs
12.If X resides in Tasmania, changeover will occur at the paternal grandmother’s home unless otherwise agreed by the parties in writing.
13.If X resides in South Australia:
(a)the Mother is solely responsible for the costs of X’s travel to spend time with the Father and to facilitate his time;
(b)The Mother will ensure X’s airfare is booked at least seven (7) days in advance and will notify the father of the flight details and when he is to arrive at Hobart airport
AND THE COURT NOTES THAT, for the avoidance of doubt, if the only way X will travel to Hobart to spend time with the Father in accordance with these Orders requires the Mother with him, she must do so;
(c)The Father will ensure that he collects X from the Hobart airport; and
(d)The Father will ensure he enables X to board his return flight for travel back to Adelaide.

14.If the father elects to spend time with X as provided in Order 10(e), the Father will be solely responsible for the costs of travel to Adelaide and accommodation for him and X.

Injunctions & Responsibilities
15.By consent, within seven (7) days of the date of these Orders, the Mother will provide the Father with her interstate residential address, and thereafter within seven (7) days of any change to the parties’ residential addresses, email addresses or mobile telephone numbers they will inform the other party in writing of the new details.
16.By consent, X will remain enrolled in formal school and the mother is hereby restrained from home schooling X.
17.By consent, the mother will ensure X attends school daily.
18.By consent, any travel undertaken by X will not occur during school term.
19.By consent, both parties are at liberty to request they be provided with, at their own expense, copies of school photographs, X’s school reports, the school newsletter/bulletin, school notices and other such material from X’s school.
20.By consent, pursuant to Section 68B of the Family Law Act 1975 and for the personal protection of the parties MS GYLES and MR HUMES and the child X born in 2009, the parties will at all times use civil and respectful language when communicating with each other and are hereby restrained from:
(a)Speaking critically, abusively, insultingly, belittlingly, negatively or rudely about the other party, or that party’s partner and family, to X or within X’s hearing.
(b)Discussing these proceedings, including court orders and any allegations raised in the proceedings or any future dispute between them, in the presence or hearing of X.
(c)Subjecting X to any form of family violence and in the event X is exposed to family violence the party with care of him will immediately remove X from that violence.

21.By consent, pursuant to Section 68B of the Family Law Act 1975 and for the personal protection of the child X born in 2009, the parties MS GYLES and MR HUMES are restrained from consuming any illicit substance while X is in their care or for the twelve (12) hours prior to X coming into their care, or allowing X to remain in the presence of any third party doing so.
22.By consent, pursuant to Section 68B of the Family Law Act 1975 and for the personal protection of the child X born in 2009, the parties MS GYLES and MR HUMES are restrained by way of injunction from transporting or allowing a third party to transport X, in a vehicle by any person who is unlicensed or under the influence of alcohol or drugs.
23.Pursuant to Section 68B of the Family Law Act 1975 and for the personal protection of the child X born in 2009, the Mother MS GYLES and the step-father MR B are restrained by way of injunction from posting or publishing in any manner information concerning these proceedings, the parenting dispute, and the father or the child’s relationship with the father.
24.By consent, subject to any practice policies, all parties are each at liberty to communicate with any professionals, including but not limited to doctors, school staff and counsellors that have been or are providing services to X and in the event any of the parties are asked to authorise such communication with any other party to these proceedings, they will do so within seventy two (72) hours.
25.By consent, if X suffers any significant injury or illness or threat to his welfare, the party with care of X will inform the other party without delay of the nature of the event and the name and address of any health professional to whom the child has been referred and, in the event of an emergency, the party with care of the child will notify the other party immediately by telephone.
26.By consent, the parties will communicate by email in relation to the care, welfare and health of X, unless the communication is urgent, in which case they will use text messages.
27.By consent, the parties are hereby restrained from making sexual references on any social media platform and should the Mother’s partner Mr B continue to make such social media posts, the mother will cause X to ‘unfriend’ Mr B.

Pursuant to Father’s Contravention Application of 30 November 2022, THE COURT ORDERS THAT:
28.The penalty handed down to the Mother for admitted contravention of the Court’s orders without reasonable excuse on 23 October 2022 and 6 November 2022 and in breach of the Bond entered into by her is that the Mother is to serve a sentence of four (4) weeks imprisonment.
29.That the sentence of imprisonment is suspended upon the condition that the Mother enters into a Bond with security in sum of $500 and that she be of good behaviour and not breach any family law Orders for a period of twenty-two months (24) months from the date of these Orders.

THE COURT NOTES THAT:
A.The Court notes the Bond entered into today by the Mother marked “A” and attached hereto.
B.Pursuant to section 68C of the Family Law Act 1975 (Cth), a police officer may arrest without warrant if he/she holds reasonable belief that the order for personal protection in Orders 20, 21, 22, or 23 have been breached.
C.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 B and these particulars are included in these orders.

[Attachment removed due to identifying features that are unable to be anonymised]
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Gyles & Humes has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Taglieri
INTRODUCTION

These are parenting proceedings concerning X born in 2009 (“the child”) presently aged 13 years and in Grade 7. The parties, Ms Gyles (“the mother”) and Mr Humes (“the father”) are the child’s parents. They were in a relationship for about 5 years and separated in 2011. They also have another child, Y born in 2010 (“the younger sister”) who is not the subject of these proceedings and who lives with the maternal grandparents.
The mother has been partnered with Mr B (“the step-father”) for about 10 years and the father is single. The child has resided in the care of the mother and step-father since about 2015 and he has a half-brother, also called Mr B, who is aged 9 (“the half-brother”).
At the commencement of the defended hearing, through discussion with Counsel for all parties, it was agreed that the mother’s Amended Initiating Application filed 16 September 2022, the Father’s Amended Response filed 17 November 2022 and the father’s Contravention Application dated 16 November 2022 would be heard.
I was informed by Counsel for the mother that in respect of the contravention application she would plead guilty to two counts of breach of the court orders.
All Counsel were in agreement about the issues for determination and many of the contentions contained in the Case Outline filed by the Independent Children’s Lawyer (“the ICL”) on 24 November 2022. The agreed issues for determination were:
(1)Parental responsibility;
(2)Whether the child should spend defined and ordered time with the father;
(3)Whether the mother should have the ability to relocate the child’s principal place of residence outside Tasmania; and
(4)Protective orders:
(a)For periods the child spends with his father; and
(b)When in the care of his mother and step-father the step-father.
Many propositions, including the facts that supported them, were not in issue. It was agreed that the presumption of equal shared parenting responsibility does not apply because:
(a)Family violence has been a historical feature of the parties’ relationship, which more currently is confined to direct or indirect verbal denigration;
(b)The mother does not seek the father’s consent or input into the child’s care and the father presents as having an “inflexible thinking style and firm beliefs [which] may compromise his ability to appear calm when he feels challenged”;[1]
(c)The parents have not communicated directly for some time and, importantly, not since the Final Orders were made in 2019;
(d)The parents have demonstrated an inability to resolve difficulties that arise regarding the care of the child.[2]
[1] Family Report dated 27 January 2022 at [92].
[2] See s 65DAA(5) of the Family Law Act 1975 (Cth).
Noting the above agreements, after Counsel for the father took instructions, the parties informed me that they agreed that there should not be an order for equal shared parental responsibility. Further, Counsel for the father said there would be consent to an order that the mother have sole parental responsibility for the child, on terms that required the mother to give him prior notice of decisions taken. This was an entirely appropriate and child-focussed concession.
There was also extensive agreement about many of the considerations that inform what is in the child’s best interest, including relevant facts. To the extent that the parties were agreed and I am satisfied that their agreement is demonstrated on the balance of probabilities on the evidence before the Court, I have made findings accordingly below.
THE EVIDENCE OF THE PARTIES
Due to the extensive agreements noted above, the evidence at the hearing was confined to discrete areas pursuant to the order I made on 28 November 2022.
The mother’s case
The mother’s evidence
The mother’s affidavits filed 27 November 2020 and 16 September 2022 were read in evidence and taken as her evidence in chief. She filed a case outline on 24 November 2022 and tendered the following into evidence:
·Exhibit M-1: The s 69ZW response report from Child Safety Services dated 24 June 2022; and
·Exhibit M-2: Undated s 67ZA response report from Child Safety Services, received by the Court on 21 April 2021.
The Mother gave oral evidence about the subject of the father’s Contravention Application dated 16 November 2022. The mother admitted that on 23 October and 6 November 2022, without reasonable excuse, she breached the court order made on 15 February 2022, which provided for the child to spend alternate Sundays between 10:00am and 3:30pm with the father.
She said that she had sought permission about travelling interstate with the child during the period of the first breach, this was not forthcoming and she had gone despite this. She also sought to justify the interstate travel by saying the child had asked his paternal grandmother Ms C (“the paternal grandmother”) to raise the matter with the father. However, she then conceded that she was not setting appropriate boundaries by involving the child in such discussions.
As explanation as to why she had breached the order on 6 November 2022, the mother stated there had been difficulties in obtaining return tickets for the Spirit of Tasmania ferry on which they had travelled with a vehicle and caravan.

The mother admitted that they had been away for about six weeks and that the child had missed school. However, she defensively added that he was not behind at school and was doing home schooling on an app on her phone while they were away. She conceded that she had not sought advice or material from the school about what learning the child should do during this period, and sought to excuse or explain this by saying that there were other ways of learning during the travel.
The mother did not accept that the child’s relationship with his younger sister and the paternal family would come to an end if he lived interstate. She stated that they would visit Tasmania about two to four times a year.
When it was suggested that the mother and step-father were not really committed to moving to South Australia, she did not appear to agree. However, she acknowledged that Mr D and Ms E are the only persons they know in Adelaide, and that she had only been there once in her 36 years.
The mother did not accept that there would be opportunity for the child and father’s relationship to improve if he stayed in Tasmania and stated that the relationship could instead continue through electronic communication. However, there is no compelling evidence that communications by phone or text have been satisfactory in the past and the evidence conveys the opposite.[3]
[3] Affidavit of the father filed 17 November 2022 at Annexure Y.
When questioned about the truthfulness of the child, the mother said that he was honest and could be trusted in what he had told the Court Child Expert. Despite this, she then denied having told the child about the father’s offending “many years ago”, even though that is what the child had reported to the Court Child Expert. When asked again if, as the child is truthful, that was an accurate representation of what had occurred, she answered “possibly”.
The mother was cross-examined about the Facebook account ‘F’, which on her evidence is jointly operated by her and the step-father. She confirmed it was a public account and that the child was able to access it and read the posts. She also admitted the posts annexed to the father’s affidavit filed were ones made by the step-father, and that they were likely to negatively impact the child. She agreed they were offensive and the child should not be exposed to them.
Asked about a Facebook post, dated 16 September 2022,[4] she agreed that the post related to being in Tasmania and that the statement that the child was back in the gym and loving school was accurate. She added that the school was one which she and her siblings had attended and that the teachers there are good.
[4] Affidavit of the father filed 17 November 2022 at Annexure S.
The mother maintained that she and the step-father had tried to find work in Tasmania without success and that it is more expensive to live in Tasmania than in South Australia. Counsel for the father suggested to her that one reason she had not found work was that she was unvaccinated. She agreed that she is not vaccinated against Covid-19, and said she would be prepared to have a Covid-19 vaccination if required. She added, however, that it was not a requirement of jobs such as seasonal labour or fruit picking.
Confusingly, when asked about there being a real chance of the child having a good relationship with the father if she encouraged it, she replied “in time”. In connection with this, the mother denied “bad mouthing” the father, but said there were times when she and the step-father should keep their opinions to themselves. She claimed that the language appearing on the Facebook posts about the father were not the same as that used in the home.
The mother agreed that the child had spoken positively about some time he spent with the father.
When cross-examined about the address at which she intended to live in South Australia, the mother agreed they had previously stayed there without power or hot water and they had used the experience to “teach a life lesson” to the child.
When pressed about her ability to remain living in the rental property at Town G, the mother agreed that they could stay until the Court proceedings were resolved, but added “not forever”. Counsel for the father suggested that the housing in South Australia was not certain and the mother responded that there were lots of rentals and caravan parks available.
The mother’s evidence about the step-father’s employment was confusing and contradictory. In her affidavit, she stated that he had secured permanent work in South Australia, but in her oral evidence it was clear it was a casual or random arrangement with Employer H, a transport company, driving equipment to various locations in a vehicle not owned by him.
The mother stated that on occasion she intended to travel with the step-father, and in those instances the children would go with them and could be home schooled. However, later she conceded that she had not made any enquiries about education by home schooling, and that she would consent to an order that the children attend formal school and that she be restrained from home schooling.
Counsel for the father suggested that the allegation about the father holding the child’s head over the toilet had been concocted because it had not been raised in Court the very next day after it is alleged to have happened. The mother denied concocting it, and said that the child was afraid and she had gone to the police about the allegation rather than the Court.
The mother agreed that the first time she raised the toilet allegation in evidence in these proceedings was in her affidavit filed 27 November 2020, in excess of a year after she alleges it occurred. She denied inventing the allegation and said that she found these court proceedings stressful and scary, and so it was easier to go to the police.
Apparent inconsistencies in various accounts of the incident referred to at [28] were put to the mother, but she maintained that the child had been emotionally impacted by the incident and said she could get evidence about that from Mr J, the psychologist upon whom the child had attended four times.
When cross-examined by Counsel for the ICL, the mother gave evidence that:
(a)She agreed that the Facebook posts by the step-father were likely embarrassing and emotionally harmful to the child who had access to them;
(b)She agreed that the parenting dispute, along with her views and the step-father’s views of the father, were private family business not to be shared publicly;
(c)Despite her evidence referred to above, when asked what she would do about the step-father’s Facebook posts, the mother said she would speak with him and tell him it jeopardised their relationship if he did not stop because it affects the child and it goes against her in court. She also stated that she had previously asked him to remove the posts, but he had not;
(d)As further and better description of the house they intended to live in in South Australia:
(i)It was close to a primary school and a 10-minute bus ride to the High School which the child would attend;
(ii)It is in a suburb on the outskirts of Adelaide, is a three-bedroom house with hot and cold water, a shower, and with a decent fenced yard in a bushy area;
(iii)They are currently paying $360 per week to the owner who had agreed to hold the property until early next year, by when they hoped the court proceedings would be over. The rent for the property would remain at $360 per week after this time if they moved in; and
(iv)She would, if the Court accepted the recommendations of the Court Child Expert, plan and organise ahead of time to ensure she complied with orders the Court made for the child to spend time with the father.
Asked by Counsel for the ICL what she had told the child regarding his father’s criminal past, the mother said she had only told him when he was 13 years old because “he had a right to know”. She said that they had told him about the driving and drug related offences, but not the “yucky stuff”, which I took to mean the charges relating to sex with underage persons.
The mother agreed with Counsel for the ICL that the child was probably looking out for danger more than other children because of what they had told him, including that his paternal aunt was trying to get her jailed.
When asked why she would add to the child’s worry by telling him these things, the mother responded that the father had already told him and she had not gone into great, graphic detail.
Counsel for the ICL probed the mother about how she would manage the child’s response to the information he had about his father, but the mother’s response did not reflect any child-focussed parenting approach. It was only by leading questions that the mother agreed it may be good to obtain advice from a counsellor or psychologist about this.
The step-father’s evidence
It was uncontentious that the step-father has been in a relationship with the mother for nearly 11 years. He has participated in the interviews for the Family Report and has been a consistent presence in the child’s life.
Noting the above, it was surprising that he had not made an affidavit in the proceedings and was not intended to be called as a witness in the mother’s case.
The ICL had recognised the relevance of the step-father and his relationship with both the child and the mother in these proceedings, so had subpoenaed him to give evidence at the hearing.
Ultimately, his evidence was relatively brief and led by counsel for the mother about an email from the ICL and an undertaking he had been invited to give to the Court. In short, the step-father indicated that he was not willing to give the undertaking in the terms announced in open court by the ICL, being that until the child attains 18 years of age, he:
·would not interfere with the child’s ordered time with the father;
·would not directly or indirectly discourage the child from spending time with the father;
·would assist the mother in ensuring the child spent time as ordered with the father;
·would use civil and respectful language with the father if communicating with him;
·would not speak in a critical, abusing, belittling or rude manner; and
·would not to discuss the proceedings in the child’s presence.
When cross-examined about the Facebook posts attached to the father’s affidavit filed 17 November 2022 at Annexure R, the step-father stated he had never thought about the child reading them and added that the reality is that children “have a fair idea what mums and dads get up to” so he did not see it as a problem.
Counsel for the ICL suggested to the step-father that the child would take seriously what he said and posted because they are close and he looked up to him. The step-father’s response was telling and extraordinary, stating “as discussed with the jokers – ah, sorry, I mean lawyers … I believe that [the child] has his own opinion … I give [the child] enough respect to use his own brain and his own mind, I have enough confidence that [the child] will not be influenced by anyone anywhere”.
Referring to the specific posts in evidence as Annexures to the father’s affidavit, he admitted they were ones he had made and that he was not sorry for any of them except the reference to the father being an “aboriginal fuck”.
He agreed that the child’s friends possibly read the posts, but rejected the suggestion that in that case they were harmful to the child. He added that flushing the child’s head down the toilet, seeing his mother be bashed and being bashed by the father were harmful impacts.
The step-father agreed that the child had been absent from school for six weeks over October/November 2022, but said he got more education in that time “from seeing half of Australia”.
Asked if he agreed that the mother had asked him to delete the Facebook posts, he said, “yes, several times… right from the start when [her] lawyer was saying that this isn’t allowed on Facebook”. He agreed he had not deleted them and by way of justification said, “I’m not a party to this court [case], I’m only a witness”. When questioned about how this affected the mother, he said, “I don’t tell [her] what to do, I ask; and [she] doesn’t tell me what to do, she asks. We don’t force each other to do anything… I felt no obligation [to delete the posts]”.
When Counsel for the ICL suggested that persons reading the posts would react negatively, he rejected this and stated nobody had said anything negative. He also said that he had not thought of the child when making the posts.
He agreed that he had not taken the posts down or did not recall doing so.
The step-father’s overall demeanour and the answers he gave in evidence demonstrated that he was opinionated, inflexible, domineering and unable or unwilling to tolerate competing views or positions to his own. While professing love for and confidence in the child, he was unable to accept the possibility that his openly critical statements or opinions of the father or broadcasted views about alcohol, drugs and sex were capable of being emotionally harmful to the child. Further, he was unwilling to stop making such statements and posts.
The father’s case
The father’s evidence
The father relied on his affidavit filed 17 November 2022 and the affidavit of the paternal grandmother filed 17 November 2022. He filed a Case Outline on 25 November 2022.
The father tendered into evidence the following documents:
·Exhibit F-1: A handwritten list identifying the dates the child has spent time with the father; and
·Exhibit F-2: A letter from Mr J, the child’s psychologist, dated 3 December 2020.
The father presented and gave evidence in the same manner he was described as presenting in the Family Report interviews. His manner and speech was consistent with a person with a hearing impairment and he gave the impression of being unable to express his thoughts.
He stated that he is currently unemployed and is seeking full-time work as a labourer. He lives in a private rental property which he has occupied for 7 years; also at the residence is a housemate who has lived there for six years, but whom the father does not know well.
Counsel for the mother questioned the father about what he proposed for the child into the future. He replied that:
(a)He wants a “fair go” to build up a good relationship with the child, which they do not have currently but which they enjoyed prior to the issues of the last 12 months;
(b)He accepted that the mother has sole parental responsibility for the child and that the child live with her; and
(c)While he had concerns in respect of the step-father, he accepted that if the child resided in the mother’s household then he would be living with the step-father.
The father did not accept the proposition, when put to him by Counsel for the mother, that he and the mother had a violent relationship. He stated that they had arguments and disagreements as any couple does, and he can come across as loud and angry due to his hearing impediment. When pressed, he admitted that violence had been a feature of their relationship, but denied that he was violent towards the mother.
He attributes his limited role in the child’s life to the controlling behaviour of the step-father. When asked, he stated that his behaviour potentially had some influence on the child’s view, but not to a great extent as he has not spent time with the child recently.
In respect of the allegation that the father held the child over a toilet and threatened him, the father denied the event as reported by the mother and the child. He said that he, the child and the younger sister were playing in the lounge room when the child ran away from a tickling game. At the time the child was being rude and swearing, and the father told him that if he continued to act like that then the father would flush his head down the toilet. His evidence was that he was using it “as a figure of speech” with no intent behind it, but accepts now that it was the wrong thing to say. The father’s assumption is that the child reported this to the mother and step-father, who “twisted it”.
When Counsel for the mother put to him that the child was genuinely frightened following the incident, the father accepted this.
The father denied that he had threatened the mother or the step-father in front of the child. He accepted that he had a criminal history, however he said that it is in the past and he is addressing their current issues though the correct process, meaning this Court.
In respect of accusations that he is using drugs presently, he referred to recent clear drug screening tests. He stated that he does not grow illegal plants in his yard, and that the plant in a photograph apparently taken by the child,[5] was a tomato plant rather than a marijuana plant as alleged by the mother. He denied that this photo was the antecedent for threatening to flush the child’s head in the toilet.
[5] Family Report at [74].
As to the child’s proposed relocation to South Australia, the father told the Court that that while he wants the child to be happy, he does not believe that it is in his best interests. The basis for this is that the child has friends and family here and not in South Australia, and that he is doing well in school. He further stated that the child should remain in southern Tasmania as the mother has not complied with court orders previously, necessitating the filing of multiple contravention proceedings, and if she is permitted to relocate to South Australia she will continue to contravene.
He accepted, when it was put to him by counsel for the mother, that he does not fully understand the child’s needs. He also accepted that the child does not want to spend time with him, however his explanation for this was that the child has been negatively influenced by the opinions and attitudes of the mother and the step-father.
Counsel for the Independent Children’s Lawyer questioned the father about whether he had contributed to the poor state of the relationship between the child and him, and he did not accept that he had. However, when the question was later rephrased, he conceded that his behaviours had contributed. He said that he would change the way he speak to the child. For example, he would not make threats such as flushing the child’s head in the toilet when correcting the child’s behaviour.
When Counsel for the ICL questioned him about the toilet incident, the father denied that he was angry with the child. He is of the opinion that the child was “looking for issues to take home” to the mother and step-father. He accepted the possibility that the child took it as a legitimate threat, and said he would be more careful with his words in the future.
Regarding the Family Report at [76], the father denied that he had spoken to the child about searching for a gun during a camping trip, however conceded that another adult present had done so. He did not accept that the child would be scared of such discussion, as the child had previously gone shooting with him.
The father said that the time he seeks that the child spend with him is:
(a)In the event that the child remains in Tasmania, every second weekend from Saturday morning to Sunday afternoon; or
(b)In the event that that the child is permitted to relocate to South Australia, half school holidays.
In response to questions posed by me, the father said that he always says good things about the mother when the child is present and does not condone anyone putting the mother down. He stated that it is in the current orders and he has complied with it. Further, he said that he does not speak about the step-father, whom he does not know and has only met briefly at a counselling session. The only issue the father reports that he has with the step-father is that he controls the time the child spends with the father.
The ICL’s case

The ICL filed a Case Outline on 24 November 2022. Counsel for the ICL tendered the following documents in to evidence:
·Exhibit ICL-1: A Tasmania Police disclosure report dated 6 September 2019;
·Exhibit ICL-2: Prior convictions of the parents, produced by Tasmania Police;
·Exhibit ICL-3: A bundle of Facebook posts by the step-father (5 pages);
·Exhibit ICL-4: The Child Inclusive Memorandum dated 9 April 2021;
·Exhibit ICL-5: The Family Report dated 27 January 2022;
·Exhibit ICL-6: The Specific Issues Report dated 15 November 2022;
·Exhibit ICL-7: Facebook posts by the step-father dated 29 and 30 November 2022, after the Court made non-publication orders on 29 November 2022; and
·Exhibit ICL-8: A proposed minute of order.
The Court Child Expert’s evidence
Counsel for the ICL provided the Court Child Expert with information about the evidence given at the hearing, specifically that of the step-father. When asked whether that altered her assessment of the family dynamics, she stated that the step-father’s denigration of the father and his influence on the child’s opinion was more pronounced than it had appeared to her during her interviews with him. She has concerns, given the long-standing difficulties with the arrangements for the child to spend time with the father, that the step-father would continue to act in a way which will influence the child’s opinions. However, she noted that a range of factors have contributed to the child’s current attitude.
The Court Child Expert stated that the father is a black-and-white thinker and is not soft or dynamic in his way of engaging with others. He does not know “at what level to pitch his interaction” with the child. In her opinion this is due partly to lack of opportunity and partly to his way of thinking. She would not recommend parenting course as the father’s nature is not likely to change in response to suggestions or advice.
She confirmed that the father has a sense of entitlement regarding the child spending time with him, were certainly rights paramount to those of the step-father. Evidence of this is his attitude that he would not spend time with the child if the child were permitted to relocate, although I note that his position at hearing was different.
She deposed that during the interviews, the child was standoffish with the father but not hostile, which the father reported to her was typical of his presentation when spending time with the father. Her observations of the child were that he was not chatty or affectionate with the father, but appeared content. He played and “made the best of the situation.”
The Could Child Expert reported that she cannot say with certainty whether in it is in the child’s best interests to relocate as she did not test benefits of the relocation with the mother. The child stated to her that he wished to move to South Australia, but in her opinion, that is based on the mother and step-father’s influence.
When asked about the child’s response to the relocation not being permitted by the Court, she said that it would depend on the reaction of the mother and step-father as experienced by the child. Further, the child would not respond well to additional time with the father; he has been tolerating the present arrangements as he is under the impression that the mother will be imprisoned if he does spend time with the father as ordered. The child has only spent overnight time with the father on a few occasions, and would not tolerate large block time.
As to her recommendation that the child’s time with the father be according to his wishes once he turns fifteen,[6] the Court Child Expert stated that this was not a precisely chosen number, more that she hoped by including such an order would give the child a feeling of control which may allow him to experience his time with the father more positively.
[6] Family Report at [105].
In response to questions by me, the Court Child Expert said that the child is not particularly mature for his age and will need solid guidance for a little longer than some other children. She noted reported developmental delays in materials provided by Child Safety Services, which may be ongoing given the child’s difficulties at school with his behaviour. She also noted that the child is not doing hobbies unsupported or independently of his peers.
In response to questioning by Counsel for the mother, the Court Child Expert said that:
(a)She believes that the child was honest with her about his reasons for not spending time with the father, which she reported in the Family Report at [73]. In her opinion, it is likely that the father has told the child about his criminal history and may have been well-meaning in doing so;
(b)In relation to the child’s report of the toilet incident as she reported in the Family Report at [75], her impression was that the child was genuinely frightened;
(c)The child is “on the lookout” for illegal behaviour at his father’s home, which is reinforced by the opinions of the step-father. His queries regarding plants in the father’s garden is an example of this;[7]
(d)The current spend time arrangements are unlikely to improve the child’s relationship with the father. The benefit of maintaining it is that it allows the child to spend time with other paternal relatives; and
(e)Permitting the child to relocate to South Australia will not make the relationship between the father and the child worse, given its current state.
[7] Family Report at [74].
In response to questioning by Counsel for the father, the Court Child Expert said that:
(a)It is highly likely that at some stage whether child is older he will choose to remain in mother’s family unit and not interact with his paternal relatives;
(b)The step-father’s denigration of the father, if it continues, may have a negative impact on the child’s self-esteem. It can be difficult for a child to reconcile a poor opinion of one parent with their own self-image, even if children go along with it at the time;
(c)The child relocating to South Australia would “not be helpful” to his relationship with the younger sister;
(d)The difficulties of maintaining the spend time arrangement will be greater if the child is permitted to relocate interstate. In her opinion the child would not travel to Tasmania, and may even refuse to get on a plane, unless the mother and the step-father came too;
(e)She is concerned that the opportunity for the child to have a meaningful relationship with his father has already been lost.
PARENTING – LEGAL PRINCIPLES
In parenting proceedings, the paramountcy principle applies and the court is required to make orders that are in the best interests of the child/children.[8] Express direction is provided in section 60B(1) of the Family Law Act 1975 (Cth) (“the Act”) that this object is to be achieved by ensuring that the child has the benefit of both of their parents having meaningful involvement in their life, to the maximum extent consistent with the child’s best interests. The court is to inform itself of the child’s best interests by the considerations in section 60CC(2) and (3) of the Act.
[8] Section 60CA of the Act.
Section 60CC(2) requires the Court to make orders that are conducive to a child having a meaningful relationship with both parents, but not if this would detract from necessary protection of the child from physical or psychological harm or exposure to abuse, neglect or family violence. The assessment required also involves consideration of the many considerations in section 60CC(3) as relevant to the circumstances of any given case, but there is no ranking of importance or order of consideration of the relevant considerations.[9]
[9] Aldridge &Keaton (2009) FLC 93-421; Slater & Light [2011] FamCAFC 1.
The evaluation of risk of harm required by subparagraphs (a) and (b) of section 60CC(2) is a challenging one to be undertaken on the basis of findings of fact about the nature and degree of risk of harm to the child and the likelihood of it eventuating.[10]
[10] Dieter & Dieter [2011] FamCAFC 82 and Marvel & Marvel [2010] FamCAFC 101.
In addition to the foregoing, the Court is also to apply a rebuttable presumption that it is in a child’s best interests for the parents to have equal shared parental responsibility.[11] This presumption accords with the objective referred to in section 60B(1) of the Act. The meaning of parental responsibility is expressly but not exhaustively provided for in the Act.[12]
[11] Section 61DA(1) to 61DA(4) of the Act.
[12] Sections 61B and 65DAC of the Act.
Except in the case of consent orders, if the court is satisfied that the presumption of equal shared parental responsibility applies and is not rebutted it must first consider if the child spending equal time with each parent would be in their best interests and if practicable, make such an order.[13]
[13] Section 65DAA of the Act.
If not persuaded to make an equal spend time with order, the court must then consider whether the child spending substantial and significant time with each parent would be in the child’s best interests and if so and it is reasonably practicable, an order for substantial and significant time should be made. The meaning of the phrase substantial and significant time is provided for in subsection 65DAA(3).
In MRR & GR [2010] HCA 4, the High Court provided guidance in relation to how the provisions in section 65DAA are to be applied and I have had regard to that authority.[14] I am also mindful of the required decision making pathway established in Goode & Goode [2006] FamCA1346. All the considerations in section 60CC are to inform what is in the best interests of a child, which is relevant to making an order for equal shared parental responsibility if the presumption in section 61DA(1) does not apply by virtue of section 61DA(2), or making orders about equal or significant time when the presumption has been rebutted.
[14] Especially at [9], [12], [13] and [14].
Relocation Principles
In cases such as this, where one parent seeks an order that the children live with them in a location different to the other parent, it is common to refer to the matter as a ‘relocation case’. Despite this, it is established that the Court’s over-riding task is to make parenting orders about residency and parental responsibility that are consistent with the best interests of the children.[15] Indeed, in B and B: Family Law Reform Act 1995 (1997) FLC ¶92-755, Nicholson CJ, Fogarty and Lindenmayer JJ said that:[16]
… it is noted that relocation cases are not some separate category within the Family Law Act, to be determined by their own principles and rules. Each is a case under Part VII relating to the best interests of the children but within a particular context and, as with any other relevant case relating to children within the jurisdiction of this Court, is to be determined in accordance with the principles contained in that Part …
[15] A & A: Relocation Approach (2000) FLC 93-035; Taylor and Barker (2007) FLC 93-345.
[16] At 84,194.
Their Honours Bryant CJ, Faulks DCJ and Finn J in Taylor & Barker [2007] FamCA 1246 gave guidance as to the approach which courts are to take in such matters, saying:
62.…given that the concept of the child’s best interests is the determinative factor in the application of so many of the provisions of Part VII, and given that s 60CC(1) provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsection (2) (“primary consideration”) and subsection (3) (“additional considerations”) of that section, it would seem only logical that the Court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child’s best interests.’
Further, in Star & Duggan [2009] FamCAFC 115, their Honours Boland, Thackray & Watts JJ outlined a ‘logical approach’ in addressing the relevant legislative provisions at [38], being to:
•first make findings concerning the relevant s 60CC factors;
•then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
•then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.
This methodology was affirmed in Hepburn & Noble [2010] FamCAFC 111 as favourable over the previous approach in A & A: Relocation Approach (2000) FLC 93-035.
Importantly, in determining what course is in the best interests of the children, the Court cannot hear the issue of relocation discretely from other applications as to where and with whom the children ought to live. Their Honours said in Taylor & Barker:
53.We agree that when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible (see U v U (2002) 211 CLR 238; (2002) FLC 93-112 and Bolitho & Cohen (2005) FLC 93-224).
AGREEMENTS AND FINDINGS
Concerning s 60CC(2)(a) of the Act regarding the child’s meaningful relationship with both parents, the parties were agreed that:
(a)The child enjoys a meaningful relationship with the mother;
(b)Currently the child does not enjoy a meaningful relationship with the father, but the cause for this is in dispute;
(c)The mother suggests that the child does not have a meaningful relationship with the father because of the child’s experience of the father, but the father says it is because he has been denigrated and alienated; and
(d)The child may benefit from a meaningful relationship with the father if it could be established, noting that the Court Child Expert reported: [17]
It is rarely in a child’s best interests to spend no or more limited than alternate weekend time with a parent. For [the child], his Father is also a conduit for all his other paternal relationships including his sister [the younger sister].
[17] CIC Memorandum at [36].
Concerning protection of the child and the need to prioritise this,[18] the following were agreed and I find:
(a)The father has an extensive criminal history, but notably his last serious offences occurred in January 2014. The father’s last offence, being driving with illicit substance in his system, occurred in 2017;
(b)The mother’s last offence was in 2019 for driving unlicensed;
(c)Both parents have engaged in conduct that has warranted the removal of their children from their respective care by Child Safety Services when they were infants. The mother has had two of her children reunified into her care and two of her children remain in the care of the maternal grandparents;
(d)The father agreed that he may have said in jest to the child that he might have to put child’s head in a toilet bowl;[19] and
(e)The father acknowledges his criminal past to some extent, and reportedly suggested to the Court Child Expert that he is “not the person he was then and [the mother] and [the step-father] live in the past”.[20]
[18] Sections 60CC(3)(b) and 60CC(2A) of the Act.
[19] CIC Memorandum at [10].
[20] Family Report at [51].
Concerning s 60CC(3)(a) of the Act, the parties agree that the child has expressed consistent views through Court Child Experts since 8 April 2021 that it is his preference not to spend time with the father, or minimal time if required at all. The child was able to speak about positive experiences with the father in April 2021.[21]
[21] CIC Memorandum at [32].
In addition, it was agreed and I find that:
(a)The child also has a close relationship with the half-brother and the step-father;
(b)The father facilitates a relationship between the child on one hand and the younger sister and the paternal grandmother on the other;
(c)The child has not lived with the father since prior to his turning two years of age;
(d)The child has not consistently spent time with the father, due in part because of the father’s imprisonment and the mother’s breach of orders of this Court;
(a)The father has repeatedly attempted to participate in the child’s life by pursuing court proceedings. The mother has failed to facilitate time on multiple occasions with no reasonable excuse; and
(b)The mother plays an active role and participates in the child’s life in her role as his primary carer.
With respect to s 60CC(3)(ca) of the Act regarding the obligation to maintain children, it is uncontentious that each parent provides for the child when he is in their care and that they do not have significant means, being largely reliant on Centrelink benefits and/or a modest income.
Regarding s 60CC(d) and (e) of the Act, it is agreed and I find that in the event of a change to the current circumstances:
(a)If the child no longer spends any time with his paternal family, he will be separated from the father and paternal grandmother. He will also be separated from the younger sister, with whom he is close in age and with whom he has previously lived;
(b)There is currently minimal practical difficulty and expense in the child maintaining a relationship with the father while both parties reside in the greater Hobart area, but that will change if the mother is permitted to relocate with the child;
(c)There is little evidence as to how the mother would meet or contribute to the expenses associated with the child spending time with the father if she is permitted to relocate the child to live outside of Tasmania.
As to the capacity of the parties to provide for the child’s needs,[22] there is dispute about the father’s capacity noting that the Court Child Expert opined that he:[23]
…seems to have superficial insight into [the child]’s emotional and other needs…His belief that he should be more of a father to [the child], stems from feelings of entitlement rather than having an understanding about the impact on [the child] of his limited role in his life…
[22] Section 60CC(3)(f) of the Act.
[23] Family Report at [99].
Further, it was agreed that the child and the younger sister were removed from the parents’ care in 2011, and the child was reunified with the mother in about 2013.[24] The care and protection order lapsed in 2015. During this period, there were significant concerns as to the parties’ capacity to protect, supervise and provide for the child and the younger sister.
[24] Family Report at [8].
Concerning the mother’s capacity as a parent, there was consensus that:
(a)The mother does not care for her eldest child, K, and does not spend time with the younger sister, but she asserts that this is as a result of a fractured relationship with the maternal grandparents;
(b)The mother historically entered into violent relationships and her children have been exposed to those volatile relationships;
(c)Child Safety Services removed the half-brother from the care of the mother and the step-father for the first 7 months of that child’s life;
(d)The Family Reporter describes the care that the mother and the step-father provide for the child as “adequate”;[25] and
(e)There are no reported concerns for the younger sister in the father’s care. The younger sister spends each alternate weekend with the father and has done so since the Final Orders were made in 2019.
[25] Family Report at [100].

There are allegations that the step-father may put the child at risk through his own behaviours, but no apparent concession was made about this as a fact.
Concerning s 60CC(3)(g) of the Act, it was agreed and I find that:
(a)“[The child] is a vulnerable young teenager on account of his early childhood experiences and noted early developmental delays;”[26]
(b)The child was exposed to the mother’s subsequent partners’ violence and/or the outcome of that violence on the mother;
(c)The father of K died following a tragic accident;
(d)The mother was engaging in criminal behaviour and reportedly neglecting the child and the younger sister before he reached two years of age;
(e)The child was removed from the mother’s care at 23 months of age;
(f)The child was placed in the care of his maternal grandparents when he was two years of age, along with two of his siblings;
(g)The child was returned to the care of the mother and the step-father, and no longer lived with his sisters, from around 2014/2015; and
(h)The child has lived with the mother and the step-father for the past seven years.
[26] Family Report at [98].
The parties did not place relevance on promotion or support of the child’s aboriginal heritage.
Regarding the parents’ attitude and responsibility to parenting,[27] there were competing claims about the parties’ respective parenting attitudes, particularly around the mother’s failure to facilitate time between the child and his father and speaking in a derogatory manner about the father to the child. About the father, the Court Child Expert expressed concern that the father’s motivation for wanting to spend time with the child “stems from feelings of entitlement”,[28] but there was agreement that another motivation may be his attitude to the importance of the child maintaining a close relationship with the younger sister.
[27] Section 60CC(3)(i) of the Act.
[28] Family Report at [98].
The parties also agreed that it was relevant to the mother’s parenting attitudes that the Court Child Expert suggests that the child’s hypervigilance in the father’s care could be arising from the mother’s genuine concern because:[29]
…it is usual for a concerned parent to focus on and perhaps encourage children to report negative information about their other parent and this could be part of what is occurring for [the child].
[29] CIC Memorandum at [35].
Concerning s 60CC(3)(j) of the Act regarding family violence, as noted elsewhere, the parties agreed that there was family violence in their relationship historically and for some time confined to direct or indirect denigration. It was also agreed that:
(a)There is no evidence that the father has directly threatened the mother or the step-father since 2011; and
(b)There is no evidence that the father has carried through with threats that have been allegedly made to the child, despite his demonstrated frustrations that the mother has repeatedly breached the orders of this Court.
Relevant to the type of orders less likely to lead to further proceedings, the parties agreed and I find that:
(a)The mother has been non-compliant with previous orders on many occasions without reasonable excuse;
(b)The child has been the subject of court proceedings for the majority of his life, with child protection proceedings in the Magistrate Court commencing just prior to his second birthday for his removal from the care of the mother; and
(c)Proceedings have continued in this jurisdiction between 2017 and the present.
KEY DISPUTED FACTS AND CONSIDERATIONS
There is dispute about whether the mother has denigrated the father to the child to such an extent that it has adversely influenced his view and alienated him from his father.
A number of aspects of the mother’s evidence was internally inconsistent and contradictory. I have no hesitation in concluding on the balance of probabilities that she and the step-father have denigrated the father and adversely influenced the child.
It is apparent that the mother views the father as a strongly negative factor in the child’s life, and she and the step-father have formed an isolated family unit, detached from significant others including the mother’s relatives. I do not accept that the mother and step-father do not speak of the father to the child in the home in the same style and manner as in the Facebook posts. The step-father admits “old dogs, new tricks… it don’t happen”[30] and I am confident that he would be unable to restrain himself from speaking his personal views in the presence of the child given his evidence.
[30] Affidavit of the father filed 17 November 2022 at Annexure Q.
Similarly, I do not accept that the mother would have any power over the step-father to influence him from desisting from denigration. I am confident that she would condone it, such that the child is left with the belief that the views are common and shared.
In addition, the self-righteous, domineering and opinionated attitude of the step-father, as amply demonstrated by his evidence, has likely led to the child feeling he must choose between:
·his mother and the step-father on one hand, who have provided stability and comforts; or
·his father on the other hand, whom he probably does not know well and with whom he has not had opportunity to bond.
Although the Court Child Expert was of the opinion that the child’s view of his father had not been particularly influenced by the mother and the step-father, she admitted in cross-examination that she did not have the view of step-father as evidenced by the Facebook posts or his evidence to the Court. Therefore, I do not accept this aspect of her opinion.
Based on my findings at [90] to [105] and some aspects of Court Child Expert’s opinion, I conclude that there are at least four reasons why the child does not have a meaningful relationship with his father. They are:
(1)The absence of the father as a regular, stable and secure presence during the child’s formative years including due to imprisonment, the details of which are evidenced in Exhibit ICL-2;
(2)The denigration of the father by the mother and step-father, along with the isolation of the child from other relatives, both paternal and maternal ones;
(3)The mother’s actions in failing to comply with court orders since at least 2017; and
(4)The father’s lack of parenting capacity along with his manner and style of communication and interaction, including inappropriately disclosing information about his criminal past.
I reject the allegation by the mother that the father has committed family violence against the child, by alleged actions involving picking him up and/or holding his head over the toilet and flushing it. The various descriptions of this incident given by the mother, the step-father and the child vary. I prefer the evidence of the father about when and how he uttered words that threatened the child. I prefer the father’s account because it has been consistent and because:
(a)The mother’s account of reporting the incident to police soon after it occurred in September 2019 is not corroborated by the information taken by police and recorded in the Disclosure Report tendered in evidence;[31]
(b)The step-father’s account to the Court Child Expert that “police were right onto it”[32] is plainly not the case;
(c)It is unlikely that the father, given his relative size to the child, could “lift him up by the legs”[33] or “dangle”[34] his head over the toilet bowl as the child reported on different occasions;
(d)The child did not disclose this to the police when his mother presented him allegedly for that purpose and he gave other reasons for not wanting to spend time with his father;[35]
(e)The child apparently did not report the incident to Mr J when he had his first visit, and he instead gave other reasons for not wishing to spend time with his father.[36] A report of the nature alleged if made by the child would need to be subject of mandatory notification by Mr J to Child Safety Services. There does not appear to be such a notification and instead the inference from that which is reported on 5 December 2019 is that the mother made a report about this alleged incident;[37]
(f)The child only reported the incident to Mr J when his mother was present on a subsequent visit; and
(g)The father’s alleged actions are incongruous with the description of the father being “calm” as the child described him to Mr J.
[31] Exhibit ICL-1.
[32] Family Report at [68].
[33] Exhibit F-2.
[34] Family Report at [75].
[35] Exhibit ICL-1.
[36] Exhibit F-2 at [2].
[37] Exhibit M-1.
The assessment of the Court Child Expert about this incident was:[38]
…It seems possible that [the father’s] talk and/or actions of threatening to flush [the child]’s head in the toilet bowl were experienced by the child as threatening. While it is difficult to believe a parent would act in this way, [the father’s] police record notes many instances of behaviour that falls well outside typical social norms. [The father’s] tendency towards volatility may have ameliorated as he has aged or due to other factors, as asserted by him. However, his inflexible thinking style and firm beliefs may compromise his ability to appear calm when he feels challenged.
[38] Family Report at [92].
The Court Child Expert appears to rely on the criminal record to consciously or unconsciously influence her opinion without reflection and acknowledgment that it includes only one conviction for assault in 1994 when he was aged 16 years and one conviction relating to “threaten” a police officer in 2011. The balance of the very extensive criminal record relates to stealing, burglary, aggravated burglary to property, breaches of bail, failing to appear and alcohol or drug driving offences, which are distinguishable in character to what the father is alleged to have done with the child.
I am not satisfied the father did what the mother alleges, but I find that he made the verbal remarks to which he admits. To the extent the Court Child Expert suggests that the child appeared genuinely frightened describing the toilet incident, it is plausible that the child is frightened because:
(a)He has been influenced to inaccurately report or exaggerate what did happen and was said;
(b)He may also be impacted by witnessing family violence between the parents, but also between his mother and other partners. All which likely lead to hypervigilance on his part; and
(c)The child may be worried or afraid of facing his father and his potential reaction to his reporting of the incident. This is informed by the Court Child Expert’s view at [92] of the Family Report.
I do not accept the contention that the father has pursued these proceedings solely due to a sense of entitlement, being selfish reasons. It is evident that the father has adopted a sensible position and largely pursued orders based on legal advice. He acknowledges his own limitations in being able to provide care for the child and has now made appropriate concessions about parental responsibility.
Nevertheless, I consider that the father has contributed to the child’s reluctance to spend time with him by inappropriately communicating with the child, including about his criminal past and making a statement in a way that was perceived as a threat about his head being flushed. This is likely to have created, if not fear, then at least a sense of insecurity in the father’s care because:
(a)His answers to questions in cross-examination demonstrated simplistic formulations of concepts of child-focussed care and bonding with the child. He lacked the ability to elaborate on what this should involve;
(b)His admission that his choice of words could be threatening; and
(c)His tendency to speak loudly due to a hearing impairment that may portray anger when it is not intended;
all of which are consistent with the views of the Court Child Expert about the father’s thinking and personality.[39]
[39] Family Report at [92].
I accept that the father poses a small and slight risk of physical harm to the child because of the limitations described by the Court Child Expert, and which he himself acknowledged.[40] More possible due to his limited experience in parenting, communication and manner he poses a moderate risk of emotional harm, which will be a barrier to building a meaningful relationship. I accept part of the Court Child Expert’s views at [99] of the Family Report that:
…..[The father] presents as having poor ability to shield [the child] from his negativity about [the mother] and [the step-father] ongoing. [The father’s] concrete thinking style and poor reflective capacity will hinder his ability to engage in therapeutic or other interventions to assist in his understanding about how he might behave differently to increase [the child]’s feelings of security in his care.
[40] At [54] and [62] of these reasons.
But the likely actions and statements of the mother and step-father have inappropriately and disproportionately raised alarm and adversely influenced the child’s view of his father.
EVALUATION
The father does not seek orders that the child live with him or spend extensive time with him. This is a child-focussed position on his part because it demonstrates recognition that he has not formed a strong child/parent relationship that would be required of a primary care giver.
The parties advised that they have reached agreement about the protective and restraint orders the Court should make. The agreed orders are contained in the ICL minute of proposed orders marked Exhibit ICL-8 at paragraphs [10] to [21].
Should the mother be permitted to relocate the child’s residence?
Counsel for the mother submitted that applying established legal principles, such as those in Adamson & Adamson (2014) FLC 93-622 (“Adamson”), the mother did not carry an onus of proof and should not be unduly restricted in her choice of where she resides with the child. Accepting that the stated principles are relevant, they are not solely determinative because the parents’ right of freedom of mobility defer to the paramount consideration of a child’s best interests.[41]
[41] Adamson at [66].
Nonetheless, the Full Court’s reasons in Adamson at [66] to [69] clearly convey that it is only if the child’s best interests would be so adversely affected, that the Court should interfere with the parental right of freedom of movement. Accordingly, as I observed during the hearing, the Court still ultimately needed to have a level of persuasion that the mother’s proposal for living in South Australia is in the child’s best interests. This proposition was not rejected by counsel for the mother.
Counsel for the mother submitted that when the Court assessed the two competing proposals of the parties, the best interests pointed to permitting relocation over the father’s proposal. I enquired whether it was open for the Court to assess the mother’s proposal against the existing interim arrangements. Counsel stated that was open, but emphasised that the father’s Amended Response sought orders for considerably more time with the child, being a whole week in the mid-term school holidays and every second weekend during school terms.
The mother’s evidence about the proposal that the child live with her, the half-brother and the step-father in South Australia was thin, lacking in detail and uncorroborated. It did not appear to be particularly well thought out and I have little confidence that the arrangements said to be in place have in fact been fully confirmed and made. I also have doubt about whether the overall desire to live there will last.
There was no corroborative evidence such as that often seen in relocation cases where the proposal involves an untested living arrangement. For example, there was no:
(a)Written confirmation of enrolment of the child in L School;
(b)Copy of a fixed-term lease agreement showing security of housing at M Street, Town N in South Australia, where the mother said they would reside;
(c)Contracts of employment or letters from either her future employer or in relation to the step-father’s proposed employment; and
(d)Evidence about the incomes the mother and step-father would earn and how this compared to their earning capacity presently in Tasmania.
The absence of such corroborative evidence was the topic of submissions during the case management hearing on 19 October 2022, yet it was not addressed. In this context, I have scepticism about the motive of the mother in bringing the relocation application contained in the Amended Application dated 16 September 2022. I also consider the cause of the poor state of the father’s relationship with the child to be relevant.
Counsel for the mother and ICL submitted that the cause of the poor relationship was not relevant, but I reject that because of the extensive history of the mother’s non-compliance with court orders for the child to spend time with the father, which collectively relate to the capacity of a parent to support and promote a child’s relationship with the other parent.[42]
[42] Goldrick v Goldrick [2007] FamCA 1260; In the Marriage of Smythe (1983) 48 ALR 677 at pp 684 & 685.
In particular, his Honour Neville J in Olssen & Wise(No.2) [2016] FCCA 884, quoting their Honours Finn, Warnick and May JJ in Goldrick v Goldrick [2007] FamCA 1260 at [41], said:
139.More recently, and more generally in relation to parental “capacity” (as opposed to “conduct”), the Full Court (Finn, Warnick and May JJ) said, at [41] (emphasis added):
In our view, it is clear that, while the impact of any parent’s relevant actions should, if the evidence permits, be identified, the references to “fulfilled, or failed to fulfil responsibilities as a parent” and “…facilitated, or failed to facilitate” demonstrate that the actions of each parent in the relevant respects are to be evaluated for something beyond consequence alone; namely what those actions say of the person’s capacity to parent.
I am satisfied that the mother and step-father have exposed the child to emotional harm by adversely influencing the child’s view of the father and portraying the father in a wholly negative fashion. This is supported by the opinions of Court Child Expert in the Family Report at [93] and the evidence before the Court referred to elsewhere in these reasons.
Nevertheless, if my findings about all the considerations that inform what is in the child’s best interests balance in favour of demonstrating that his best interests will not be so adversely affected by the mother’s proposal to relocate, then she should be permitted to relocate the child’s residence.[43]
[43] Adamson at [67].
Benefits and detriments of the proposals
The mother’s case hinged on moving to South Australia because her household would be better off financially, including having employment and less expensive housing.
There was also a vague claim that the lifestyle in Adelaide was better because it was “livelier” or “freer”. The latter constitutes a subjective contention without evidentiary foundation, which I give no or little weight.
The mother’s evidence about the claimed benefits of relocating was not persuasive and has been rejected for the reasons referred to at [133] and [134] of these reasons. Further, Mr D or Ms E did not give evidence, and the impression gained from the mother’s evidence is that she does not know them well. She also conceded there were no family supports and it is open to infer that wider friendships are also absent.
The suggestion by the mother that she would work in a warehouse-like setting operating a forklift without the appropriate licence was frankly fanciful. She conceded that the step-father’s work would be “random” and “casual”. Accordingly, I have no sense of satisfaction that the family unit could be more financially secure if living in South Australia.

Although the mother denied that being unvaccinated had deprived her of work opportunity here in Tasmania, the contemporaneous entries made to the Facebook account she maintained with her partner tell otherwise.[44]
[44] Affidavit of the father filed 17 November 2022 at Annexure S at page 120.
The mother’s evidence about the limited unskilled work she had done historically, statements such as that made by the step-father that “my back is fucked”,[45] and being asked about vaccination by potential employers,[46] strongly lead to me to the view that their employment prospects would be similar in each State.
[45] Affidavit of the father filed 17 November 2022 at Annexure R at page 117.
[46] Affidavit of the father filed 17 November 2022 at Annexure S at page 120.
Further, the mother conceded that the step-father could continue to do the work with Mr D if they resided in Tasmania.
Given the history of these proceedings and with a the imposition of a suspended sentence in the past for contraventions, there is an inference available that the relocation which has come late in the proceedings is a means of frustrating the Court from making final orders for the child to regularly spend time with the father and enforce those. The step-father’s Facebook post adds persuasive weight to making this inference. It says:[47]
[…] as everyone knows we were moving to Brisbane then coved kept us here after that we had court case with [the child]’s fake dad.. any way we been unsure if our future WELL after my long stint last week iv done a lot of thinking [the child] is now back in a boxing jym he loves & both boys love there school & doing well SOOO [the mother] and I both going hard for full time jobs it’s only way we can afford to stay in this very expensive state. Sum it up if we can both get work we staying in tas
[sic]
[47] Affidavit of the father filed 17 November 2022 at Annexure S at page 119.
The child has expressed a wish to move to South Australia and live with his mother.[48] This is based on his experience of a short holiday period and due to his alignment with the mother, step-father and half-brother, which is unsurprising in the circumstances demonstrated by my reasons at [143] below.
[48] Single Expert Report at [13].
The child has not experienced the typical day-to-day life he would lead if relocation of residence were permitted.
Although I take into account the child’s wish, I do not give it significant weight as suggested by the mother and ICL because of the authorities cited above and the reasons at [85] to [89] and [123] of these reasons and because:
(a)It is not based on objective and realistic daily experience; and
(b)Is expressed of by a child described as relatively immaturity for his age; and
(c)It has been influenced inappropriately.[49]
[49] Court Child Expert evidence at [69] and [72] of these reasons.
Weighing in favour of the relocation is the existence of a loving and meaningful relationship between the child and the mother and the step-father. The contents of the Family Report suggest that the foundation of the meaningful relationship is based on consistent presence, attention, and provision of his needs.[50] The strength of this meaningful relationship has been built, in part, at the expense of the father.
[50] Family Report at [82] and [97].
Counsel for the father submitted that if the mother is permitted to relocate the child’s residence to South Australia and it is a permanent move, then the chance of any relationship between the child and the father will be effectively lost. I would accept the merit of the submission if I were satisfied that there was no effective means of enforcing the orders for the child to spend time with the father, but that is something about which I am not entirely persuaded.
The child will probably feel a sense of disappointment and grievance if not permitted to relocate and that may further adversely influence his relationship with the father.
Counsel for the ICL effectively submitted that the mother and her family unit would make things work in South Australia, because they had made a happy and adequate life here in Tasmania.
Weighing against the proposed move to South Australia is that it will entail cost and instability to the child’s day-to-day living and education should they then return. This appears to be a possibility, given the concession that the intention was to move to Queensland, then South Australia, then a position taken that they would stay, and then relocation was ultimately pursued at the defended hearing.
Permitting relocation involves a high risk of further alienation of the child from his extended paternal family, the younger sister and maternal family, which can be expected to be emotionally disadvantageous.[51]
[51] At [77(c)] of these reasons.
The mother gave evidence that the child could maintain contact and communication by electronic means, but I do not accept that would occur satisfactorily and without risk of emotional harm. This risk exists because of the history of the parties’ inability to co-operate and the isolation and alienation that has occurred between the child and the paternal family, and indeed the maternal family, while the mother has been his primary carer.
Furthermore, the evidence establishes that electronic communication has been problematic and predictably there are likely to be difficulties with coordinating time for the communication.[52] This is especially so given the time zone differences between States. Further, there appears to be a reluctance on the part of the mother to support it taking priority over other activities for the child.[53]
[52] Especially because of time zone differences between States.
[53] Affidavit of the father filed 17 November 2022 at Annexure W.
The likely detriments to allowing relocation also include taking the child away from a school, friends, and a boxing gym with which he is familiar and enjoys. While these advantages might be replicated in South Australia, that is unknown.
The mother’s family unit do not have any family supports in South Australia. It also can be inferred that the step-father will be absent from home quite regularly due to the transport/driving work he apparently has arranged to do. The risk of the mother and the child being even further isolated from supports is obvious if relocation was permitted.
Conclusion
It is self-evident that the mother has failed to persuade me of any clear advantages for the child in the relocation she proposes. In addition, the disadvantages to the child of permitting the relocation are those identified at [148] to [153].
However, the disadvantages of the relocation do not reach the threshold of being sufficient to refuse the mother’s application because of the broken nature of the relationship the child has with the father.
The denigration of the father to the child and negative influence of the mother and step-father have jeopardised a meaningful relationship with the father and that is concerning. It quite possibly will continue, but will certainly continue or become worse if relocation is refused.
In addition, the father’s lack of parenting capacity and his own contribution to erosion of a meaningful relationship with the child, likely means that refusing permission to relocate will only worsen the chance of any improvement in the tenuous nature of the relationship between the child and his father. The views of the Court Child Expert referred to at [77(e)] of these reasons have weighed heavily in arriving at this conclusion, given her expertise.
I have reluctantly concluded that the mother should be permitted to relocate but the child should spend substantial time with the father during available school holidays. This will hopefully provide an avenue for improvement in their relationship as the child matures and is less likely to be influenced negatively by his mother and step-father.
Considerable time with the father during school holidays will also enable the child’s relationship with his sister and paternal family to continue.
As I also consider that the mother’s plans about residing in South Australia are speculative and the potential for the move to prove unsatisfactory needs to be provided for in view of s 60CC(3)(l) and (m) of the Act. I will make alternate orders for the child to spend time with the father on the basis that the mother lives in the Greater Hobart area.
To ensure that the mother and the step-father do not completely destroy the chance of repair of the relationship between the child and the father, which they have played a considerable part in damaging, there will be injunctive restraints for the personal protection of the child. Although the step-father is not a party to the proceedings, there appears to be authority for the proposition that an injunctive order made pursuant to s 68B(2) of the Act can operate to bind non-parties and be enforced.[54]
[54] Gillespie v Bahrin; The Herald and Weekly Times Ltd (intervener) (1993) FLC 92-388 approved of in Neubert & Neubert and Ors [2017] FamCA 903.
The nature and purpose of the injunctive orders are for the protection of the child and to promote his wellbeing in circumstances where the mother and the step-father have inappropriately contributed to the fracturing of the child’s relationship with the father. Their objective and scope are well explained in the decision of Hedlund & Hedlund [2021] FedCFamC1A 84 at [112] to [125].
Further, there needs to be strong incentive for the mother to encourage and facilitate the child spending time with the father and the wider paternal family. The Court’s consequential orders in the Contravention proceedings will operate as the incentive.
Contraventions
As noted above, the mother has pleaded guilty to two counts of breach of court orders without reasonable excuse. This occurs in the context of multiple contraventions as set out at [11] of these reasons.
The contraventions by the mother are very serious as the gravity of them is to be assessed in the context of the extensive past breaches, which in my view demonstrate a clear disregard for the Court’s orders. Even when subject to a suspended sentence pursuant to McGuire J’s orders of 10 February 2021, she breached the orders on two occasions contrary to the bond she had given to be on good behaviour.
It was plain from the evidence given by the mother after she was recalled following the step-father’s evidence that she does not consider herself influenced, controlled or oppressed in any way by the step-father. This is at odds with my assessment of their relationship dynamic, as I commented upon during the hearing.
However, the mother stated she would continue a relationship with the step-father, if the Court were to order that she not bring him into contact with the child. Further, she has continued with the relationship despite the fact that the step-father has refused to remove offensive Facebook posts at her request despite knowing it would “go against her in court”.
There is no evidence of reported incidents to Child Safety Services involving risk of violence or abuse between the step-father and the mother. In the above circumstances and given her evidence, I must conclude that she had a choice or option of not travelling with the step-father in October 2022 and by deciding to do so and take the child with them, she consciously and freely decided to deliberately breach the Court’s orders.
It is not feasible to require the mother to pay a fine because of the history of breaches and her modest financial means. In addition, her conduct and attitude to date convinces me that a firmer sanction is needed to achieve the purpose of Part VII, Division 13A of the Act, and to ensure the child spends time with the father according to court orders.
I have decided that for the two breaches in 2022 and for breach of the Bond she had given to be on good behaviour until 10 February 2023, the mother should be subject to a period of imprisonment of four weeks. This will be suspended on the condition that she does not breach the orders made pursuant to this judgment and enters into a further bond.
One of those orders will be an order pursuant to s 68B of the Act which requires her to deliver the child for changeover according to the Court’s final parenting orders. If a police officer forms a reasonable belief that she has breached the injunction, she may be arrested without warrant and brought before this Court, at which time the Court will decide whether to imprison her, after giving her opportunity to show cause why that should not occur.
While the extent of the mother’s disregard of and contravention of Court orders is serious, she has been and is the primary carer of the child, and the father does not present as a suitable and emotionally safe primary carer of the child. I certainly would seek to avoid leaving the child solely in the care of the step-father because of his total lack of insight and acknowledgment of risk of emotional harm to the child given:
(a)The reasons given elsewhere in this judgment;[55] and
(b)His statements on social media, in evidence in Court and statements and actions subsequent to making orders to prevent and ameliorate breaches of s 121 of the Act on his part.
[55] At [40], [41] and [43] of these reasons.
I intend to refer the conduct of the step-father concerning potential breach of s 121 of the Act to the Office of the Commonwealth Director of Public Prosecutions, but before doing so, I grant him leave to make written submissions by 30 January 2023 as to why I ought not do so. In the alternative, I invite him to reconsider and give the Undertaking referred to at [39] of these reasons by 30 January 2023, in which case I will be satisfied a referral to the Office of the Commonwealth Director of Public Prosecutions is not necessary for now.

I certify that the preceding one hundred and seventy-three (173) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri .
Associate:
Dated: 22 December 2022

File number(s):	HBC 658 of 2020
Judgment of:	JUDGE TAGLIERI
Date of judgment:	22 December 2022
Catchwords:	FAMILY LAW – final parenting – relocation – where mother seeks to relocate primary residence of the child from Tasmania to South Australia – where child’s relationship with father is poor – where allegation of family violence to the child by the father – finding that the mother and the step-father have contributed to the poor relationship between the father and the child – relocation allowed – orders that the child live with the mother and spend time with the father – alternative spend time with orders if the child resides in the Greater Hobart area – s 68B injunctive orders FAMILY LAW – contravention – where mother admits to contravening parenting orders without reasonable excuse – where mother has previously breached parenting orders for which suspended sentence handed down – suspended sentence – bond entered by mother to be of good behaviour
Legislation:	Family Law Act 1975 (Cth) ss 60CA, 60B(1), 60CC(2), 60CC(2A), 60CC(2)(a), 60CC(3), 60CC(3)(a), 60CC(3)(b), 60CC(3)(ca), 60CC(3)(f), 60CC(3)(g), 60CC(3)(i), 60CC(3)(j), 61B, 61DA, 65DAA, 65DAA(3), 65DAA(5), 65DAC, 121
Cases cited:	A & A: Relocation Approach (2000) FLC 93-035 Adamson & Adamson (2014) FLC 93-622 Aldridge & Keaton (2009) FLC 93-421 B and B: Family Law Reform Act 1995 (1997) FLC ¶92-755 Dieter & Dieter [2011] FamCAFC 82 Gillespie v Bahrin; The Herald and Weekly Times Ltd (intervener) (1993) FLC 92-388 Goldrick v Goldrick [2007] FamCA 1260 Goode & Goode [2006] FamCA1346 Hedlund & Hedlund [2021] FedCFamC1A 84 Hepburn & Noble [2010] FamCAFC 111 In the Marriage of Smythe (1983) 48 ALR 677 Marvel & Marvel [2010] FamCAFC 101 MRR & GR [2010] HCA 4 Neubert & Neubert and Ors [2017] FamCA 903 Olssen & Wise(No.2) [2016] FCCA 884 Slater & Light [2011] FamCAFC 1 Star & Duggan [2009] FamCAFC 115 Taylor & Barker [2007] FamCA 1246
Division:	Division 2 Family Law
Number of paragraphs:	173
Date of hearing:	28 – 30 November 2022
Place:	Hobart
Counsel for the Applicant:	Mr Trezise
Solicitor for the Applicant:	Murdoch Clarke
Solicitor for the Respondent:	Mr McKenna, Ogilvie Jennings
Counsel for the Independent Children’s Lawyer:	Ms Ryan
Solicitor for the Independent Children’s Lawyer:	Jacob’s Family Law

HBC 658 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS GYLES Applicant
AND:	MR HUMES Respondent
AND	INDEPENDENT CHILDREN'S LAWYER

order made by:	JUDGE TAGLIERI
DATE OF ORDER:	22 December 2022