HABERMAN & ACEDA (No.2)

[2020] FCCA 2573

FEDERAL CIRCUIT COURT OF AUSTRALIA

HABERMAN & ACEDA (No.2) [2020] FCCA 2573

Catchwords:
FAMILY LAW – Parenting – whether mother should be permitted to relocate residence of child aged four and a half from City C to Brisbane – whether mother at risk of harm from father – where court satisfied mother not so at risk - long history of antagonism and conflict between the parties - where relationship between child and both parents close – where child’s extended paternal family live in City C - where Aboriginal child – where father unlikely to easily find secure employment in Brisbane – child permitted to relocate in 2 years’ time.

Legislation:

Family Law Act 1975 (Cth) ss.4AB(1), 60CC(2), 60CC(3), 60CG, 61DA,

65DAA

Cases cited:

Jones v Dunkel (1959) 101 CLR 298

Applicant: MS HABERMAN

Respondent: MR ACEDA

File Number: DNC 232 of 2019

Judgment of: Judge Young

Hearing dates: 28, 29, 30 & 31 July 2020

Date of Last Submission: 31 July 2020

Delivered at: Darwin

Delivered on: 11 September 2020

REPRESENTATION

Counsel for the Applicant: Ms V. Farmer

Solicitors for the Applicant: Withnalls Lawyers

Counsel for the Respondent: Ms J. Holtham

Solicitors for the Respondent:	Story & Associates
Counsel for the Independent Children's Lawyer:	Ms M. Romeo

ORDERS

1. The parents have equal shared parental responsibility for the child X born in 2016 (“the child”).  

2. The child is to live with the mother.

3. The mother be permitted to relocate the child’s residence to Brisbane in 2023 prior to the commencement of the first school term in Queensland in 2023.

Spend time orders

1. The child shall spend time with the father in City C until the mother may relocate the child’s residence to Brisbane in 2023 as follows:

   (a)Commencing Thursday 24 September until the end of the 2020 Northern Territory school year:

   (i)Until the child commences school, each alternate weekend from 3 pm Thursday to 9 am Monday; and

   (ii)Once the child commences school, each alternate weekend from after school on Thursday to before school on Monday ;

   (b)Commencing from the start of the 2021 Northern Territory school year:

   (i)Each alternate weekend from after school on Thursday to before school on Tuesday;

   (c)For each Northern Territory school holiday period commencing from the September/October 2020 school holiday period:

   (i)For half of the school holiday period as agreed between the parents, and in default of agreement, with the father for the first half in even numbered years and with her mother for the first half in odd numbered years.

2. On days of special significance prior to when mother is permitted to relocate the child’s residence to Brisbane in 2023, the child shall spend time with the parties as follows:

   (a)With the mother on Mother’s Day commencing from 6:00pm on the Saturday before Mother’s Day to before school on the following Monday;

   (b)With the father on Father’s Day commencing from 6:00pm on the Saturday before Father’s Day to before school on the following Monday;

   (c)With the mother from 12:00pm Christmas Eve to 3:00pm Christmas Day in odd numbered years and from 3:00pm Christmas Day to 2:00pm Boxing Day in even numbered years; and

   (d)With the father from 12:00pm Christmas Eve to 3:00pm Christmas Day in even numbered years and from 3:00pm Christmas Day to 2:00pm Boxing Day in odd numbered years.

3. Changeover pursuant to the above Orders 4 and 5 is to take place as follows:

   (a)At the child’s school once she commences school. For the purpose of this order the father and mother are not to approach or speak to each other at the child’s school.

   (b)Until she commences school, or in the event that changeover cannot take place at the child’s school, changeover shall take place at B Family Services, City C or, in the event B Family Services is not available, at the City C Police Station.

4. The child shall spend time with the father in City C after the mother is permitted to relocate the child’s residence to Brisbane in 2023 as follows:

   (a)For each Queensland school holiday period, for half of the school holiday period as agreed between the parents, and in default of agreement, with the father for the first half in even numbered years and with the mother for the first half in odd numbered years.  

5. For the purpose of Order 7 the parties will contribute towards the cost of all flights with:

   (a)The father to book and pay for the child to travel from Brisbane to City C and provide the mother a copy of the itinerary no less than 14 days prior to the date of travel; and 

   (b)The mother to book and pay for the child to travel from City C to Brisbane and provide the father a copy of the itinerary no less than 14 days prior to the date of travel.

6. For the purpose of Order 7 the child shall be permitted to travel unaccompanied in accordance with the requirements of the relevant airline and each party is to deliver and collect the child to and from the airport in their city of residence.

7. On days of special significance mentioned in Order 5, after the mother is permitted to relocate the child’s residence to Brisbane in 2023, the child shall communicate with the other party who does not have the child in their care by video call or telephone at a reasonable time on the day of special significance.

General orders

1. That the child be permitted to travel intrastate, interstate and/or overseas with either of the parties during the time provided for in these orders provided that the party with whom the child is to travel gives to the other party not less than 14 days written notice and gives itineraries, correct addresses and telephone numbers for the children so that the child can communicate with the other party at all reasonable times.

2. That the parties will: 

   (a)Communicate with each other only about matters regarding the child;

   (b)Communicate by text or email except in the event of an emergency when communication will be by telephone;

   (c)Keep each other informed of their current contact details in including their residential and postal addresses, telephone numbers, email address and Skype details and will inform the other party of any change to any of these details within seven days of any change; and

   (d)Advise each other of any medical or other emergency involving the child whilst in their respective care.

3. That a copy of these Orders authorises the child’s school and medical practitioner to provide each of the parents:

   (a)Copies of school reports, school newsletters, school photo application forms, parent/teacher interview notices and so forth regarding the educational needs of the child; and

   (b)Copies of medical reports including any referrals, information regarding any medical condition suffered by either of the children, including treatment and any other information or material concerning the health and wellbeing of the children.

4. That each parent is permitted to attend at the child’s school for school assemblies, sports days, concerts and other activities or events routinely attended by parents.

5. That each parent is restrained and an injunction is granted restraining them from:

   (a)Denigrating the other parent or the parent’s partner or members of that parent’s family in the presence of or within the hearing of the child and each parent is to remove the child from the hearing of anyone else who may be denigrating the other parent or that parent’s partner or family;

   (b)Exposing the child to family violence;

   (c)Posting on social media any negative comments about the other party or these proceedings;

   (d)Discussing the court proceedings with the child or allowing the child to read or view any court documents;

   (e)Filming or taking photos of either party or the child at change overs; and

   (f)Permitting, allowing or encouraging a third party to do any of the above.

IT IS NOTED that publication of this judgment under the pseudonym Haberman & Aceda (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 232 of 2019

MS HABERMAN

Applicant

And

MR ACEDA

Respondent

REASONS FOR JUDGMENT

1. This is a parenting application concerning a child, X, who is 4 ½  years old.  X presently lives with her mother for eleven nights a fortnight and with her father for three nights a fortnight.  The parties live in City C.

2. The mother is 25 years old and is presently unemployed, having resigned from her employment in circumstances discussed below.  The father is in full-time employment and is employed as a customer service officer with Employer H.  The father is 44 years old. 

3. The mother has three other children: J, aged 9 years, K, aged 7 years, and L, aged 9 months.  She is presently pregnant with another child.  It appears that J and K, who have different fathers, do not spend any time with their fathers although the mother said that J has some contact with his paternal family who live interstate. There was no evidence about J’s contact with his father and it appeared from cross-examination of the mother that there is none. She said that she receives child support from J’s father. The mother said that K’s father is a methamphetamine user and she is opposed to K having contact with him. She said she did not receive child support from him. Until relatively recently K was spending time with her paternal grandmother and paternal family in City C but the mother had ceased to facilitate the continuation of this time because, according to the mother, K’s grandmother had been critical of her in relation to Mr Aceda.

4. Mr Aceda also has a child of a previous relationship, Mr M, who is an adult and has two young children of his own. Mr M lives in Sydney. Mr Aceda said in his trial affidavit that he has a close relationship with his son and maintains regular contact, having last seen Mr M a few months before in City C. Cross-examination revealed a more nuanced picture. The father said that Mr M’s mother had relocated when the child was four years old. The father said he had no contact with his son from between the age of six years or eight years old until Mr M turned 18. He had not pursued proceedings to ensure a relationship with Mr M. He conceded that “something was lacking” in his relationship with his son.

5. The mother said that she did not receive child support from Mr Aceda, although it appears she has not applied for a child support assessment. The reason for that was unexplained, as was the father’s apparent failure to offer child support.

   Credibility

6. The mother's trial affidavit, which was affirmed 11 days before the beginning of the trial, deposed that the father of L was Mr N. She said that Mr N had no objection to her removing or relocating the residence of L to Brisbane.  However, during cross-examination the mother said that the father of L was probably a Mr O who she said is also the father of her unborn child.  She said that when she affirmed her affidavit she was uncertain of the paternity of the child.  However, the affidavit did not indicate any such uncertainty.  It seems that the reason for the mother's change of evidence was that the father had obtained some SMS messages between the mother and Mr O's partner.

7. The mother's trial affidavit also deposed that she had been sexually assaulted recently by a senior manager of her then employer.  She said that as a result of the assault she was forced to resign her employment.  In cross-examination she said that the manager who sexually assaulted her was Mr O. She said that she had not reported this assault to police but had reported the matter to her then employer.  The sexual assault, according to the mother, consisted of Mr O touching her breasts and rubbing himself against her on one occasion in the workplace.  This was at a time when, according to the mother, she was in a continuing sexual relationship with Mr O.

8. The nature of the mother's relationship with Mr O is of marginal or no relevance to the issues in this case but having decided to give evidence that the father of L, said to be Mr N, did not object to her relocation to Brisbane she was obliged to give evidence that was not misleading. Similarly, the question of whether or not the mother was sexually assaulted and forced out of her employment is not a central issue but when the mother put that forward as a reason for relocation she was obliged to give that evidence in a way that is not misleading. I am satisfied that in relation to these issues, and in other respects, the mother’s trial affidavit was misleading. 

9. An instance of evidence by the mother that I am satisfied is false concerned an incident on 3 July 2019 at a shopping centre in City C, the C Plaza.  The mother gave evidence that she had been having breakfast with her mother at a coffee shop in the mall area of the C Plaza when the father walked into the area, circled the mother's table, making faces and poking his tongue out at her.  She said she felt threatened.  This behaviour, if true, would have constituted a breach of the then domestic violence order in place against the father, with the mother and her children, other than X, as protected persons.  She made a complaint to police.

10. It transpired in cross-examination that the C Plaza building was the father's place of employment.  He worked on one of the upper floors and the entrance to his workplace was through the mall area where the mother was sitting.  The written police report in relation to the incident indicates that the police officers viewed CCTV footage of the incident.  According to the police report, the CCTV footage showed the father entering the mall area, apparently from a car park, and walking past the mother towards the lift.  He made no movement towards her, did not look in her direction, or in any other visible way respond to her presence.  The mother immediately took photographs of him.  The father waited at the lift doors speaking to a colleague.  He then left the colleague and walked to another coffee shop in the area.  The mother's mother was sitting away from the mother speaking to a friend or another person at that coffee shop.  The CCTV footage showed the father purchasing a coffee and speaking briefly to the mother's mother before leaving the area and taking a lift, presumably to his workplace.

11. The mother said that the police report was wrong.  She said the incident unfolded as she described it.  In cross-examination the mother also said that she had been aware at all times that the father worked in that building.  She said that she was aware he entered his workplace through the mall area.  She said she was aware that he generally commenced work at around 8:30 AM in the morning, which was the time she was having breakfast with her mother.  The mother said that she regularly attended the C Plaza for coffee or for other reasons.  She said she saw no reason to stop attending there.  The mother also said the police had advised her that she was likely to meet the father if she continued to attend at the mall.  In evidence she said that she had seen the father on a number of other occasions at the C Plaza and that he had engaged in behaviour which threatened or frightened her.  She said that on one occasion he stood on the footpath having a cigarette while she and the children left the Plaza and on another occasion he had shouted at her and the children.  The mother insisted that on each of these occasions she was frightened and felt threatened.

12. The mother agreed that there were other coffee shops and shops in the City C area where she could attend.  Her own workplace was outside the CBD area of City C and there was no necessity for her to be present at the C Plaza.

13. I am satisfied that the mother's evidence about this incident is deliberately false. I am satisfied the mother was aware that she was likely to see the father if she sat in the mall area of the C Plaza at 8:30 AM on a weekday morning.  The fact that she sat relatively near an entrance to the mall area from the car park would indicate that she was aware there would be a real chance of the father walking in her direction or near her to enter his workplace.  The alacrity with which she took a photograph is suspicious.  I suspect that the mother was intending to obtain evidence that the father was in breach of the domestic violence order which restrained him from approaching her or remaining in her presence.  However, in any event, I am satisfied that the mother's behaviour indicates that she is not truly frightened or threatened by the father as indicated by her continued visits to the C Plaza.

14. The father was also an unreliable witness.  The father was cross-examined at some length about an incident occurring on 31 January 2018 when the husband had attended at the mother's home and they had arranged to share a meal.  The parties began to argue and the father telephoned the police complaining that the mother had tried to "rip" the child from his arms.  He told the police, according to the police record, that “the mother will say he assaulted her, but he did not”.  He told the police there was a domestic violence order in place with him as the protected person.

15. The police attended.  According to the report of the incident, both parties were spoken to, and gave a similar version of the event.  They said they had arranged to have a meal together but then the father decided to leave early after the mother told him about her new partner. The parties had intended that the child would be bathed at the mother's home.  However, the father took the child and went home.  The police record said there was no mention during their interview of the parties of the child being violently or roughly snatched from one parent by the other.  The report said that both parties appeared to agree that they had overreacted and there were no concerns about the child, she was not injured and was observed by the police officers to be relaxed and a little tired.  The final note of the visit said there had been no complaints, no injuries and no violence.

16. The next day the father attended at the police station and told the police he wished to make a complaint against the mother for breaching a domestic violence order.  He alleged that the mother grabbed the child by her upper arms and attempted to "reef her down and away” from the father.  His statutory declaration said that the mother needed to "understand the consequences of breaching this order”.  The police declined to take the matter further.

17. It was put to the father that his complaint contained false elements, given that the police report of their visit said that neither the father nor the mother made any complaint of the child being violently or roughly snatched from one parent to the other; there was no sign of injury to the child; and both parties had agreed they had over reacted.  The father's responses were far from satisfactory.  I am satisfied that his statutory declaration was misleading or significantly exaggerated. 

18. I am satisfied on the balance of probabilities that this was an example of the father making a false or exaggerated report to police with a view to having the mother arrested and charged and, if possible, found guilty of a breach of the domestic violence order.

19. I am not satisfied that either of the parties is reliable and I am not willing to accept contested evidence from them unless it is corroborated.

    Further background

20. The parties began to live together in about 2015. X was born in 2016.  The parties separated sometime in 2017 or perhaps early 2018.  Their relationship was marked by a high level of conflict, including physical violence.  The parties gave evidence of a number of incidents where they had thrown objects at each other and pushed and shoved each other.  On occasion the incidents involved alcohol. In one incident in 2015 the mother self-harmed by cutting herself on the right wrist.  On 17 and 18 July 2016 an incident between the parties stretched over two days. Among other things, the mother hit the father on the head with a fruit bowl and was subsequently charged with assault of the father and breach of an existing domestic violence order.  She was subsequently found guilty and received a sentence of four months imprisonment fully suspended.

1. These events took place while children were present.  Territory Families substantiated a complaint of emotional harm of the children against the mother arising from the events of 17 and 18 July 2016. 

2. The police records contain hundreds of pages concerning the parties. According to the submissions of the independent children's lawyer there had been 55 incidents recorded by the police between the parties up to October 2019. The records of Territory Families show multiple complaints by or against the parties. The reports to Territory Families primarily concern allegations of exposing the children to family violence.  The two incidents during which emotional harm to the child was substantiated by Territory Families were the incident in July 2016 mentioned above resulting in the mother being dealt with for assault and an incident on 26 May 2016 when the mother was believed by Territory Families to have assaulted the father while he was holding the child.

3. After the parties separated in 2017 or early 2018 there were no substantiated incidents of family violence between the parties.  However, the Territory Families file and the police records indicate that the parties continued to see each other and there were arguments and disputes in front of the children.  Each party continued to make reports against the other to Territory Families and the police. Each obtained domestic violence restraining orders against the other.

4. In March 2019 the father made a report to Territory Families alleging that the child had referred to her vagina as her "yummy pussy" and the child was reported by the father to have made other remarks of a sexual nature. After she became aware of the allegation the mother attended with the child at the Sexual Assault Referral Centre at the City C hospital. The child was examined. No evidence of any sexual abuse of the child was found.  Territory Families was not satisfied that the allegations met the threshold to investigate.

5. In July 2019 the parties made simultaneous applications to the Court arising out of that episode. The father withheld the child and the mother sought an order for the child’s return. The father sought an order that the child live with him and spend supervised time with the mother. Orders by consent were made on 1 August 2019 that the child be returned to the mother and the child not be left with the mother’s partner, Mr N.  

6. At the time of trial the father said that he did not believe the child had been sexually assaulted or sexually abused but that she had been exposed to inappropriate language of some kind in some unknown context. Neither party asked me to make particular findings about this matter.

7. In an example of the multiple fronts in the conflict between the parties, proceedings between the parties arising out of this episode also took place in the Local Court. When the father raised his allegations about the child directly with the mother by telephone this degenerated into an unpleasant exchange, followed by insulting and threatening e-mails and SMS messages from the father to the mother. The father sought a domestic violence restraining order against the mother in the Local Court. This was apparently dismissed. An application by the mother for a domestic violence restraining order against the father was granted on an interim basis on 17 April 2019 and made final on 29 November 2019 for 12 months.

8. The conflict involved not only the parties.  In May 2019 there was an incident at a children's contact centre operated by B Family Services. The father refused to deliver the child to the mother, complaining that she had been late.  It transpired in evidence that the parties had agreed that changeover was to be 15 minutes earlier than the time provided for in the interim orders.  The mother, it was claimed by the father, arrived a few minutes later than the time agreed. It was not contested that she was still within the time provided for in the orders, so her lateness, if it was lateness, was a few minutes at most. Notwithstanding this and the fact that the mother was present, the father refused to permit changeover of the child and the child was subsequently withheld by him.  According to the contact centre notes the father became distressed and aggressive towards staff. Subsequently the contact service suspended the service offered to the parties.  I am satisfied the father's behaviour on this occasion was arrogant and high-handed in the extreme. The response of the children's contact centre was merited.  However, it seems the centre and the father entered into further negotiations and the father apologised and agreed to abide by the centre’s guidelines. The centre has agreed that changeover may resume.

9. On 18 October 2019 another incident occurred.  According to a letter from the child's day care centre the father became aggressive and intimidating towards staff and he commenced to video record them (presumably on his smartphone).  Again, the father's behaviour was observed to be dysregulated.  Subsequently the day care centre refused to agree to changeover at the premises. As noted, changeover has reverted to the children’s contact centre.

   Relocation 

10. The mother wishes to relocate the residence of the child to Brisbane.  She said that her mother, Ms P, resides in Brisbane and has a home there and she would benefit from the support of her mother. However, in cross-examination the mother revealed that her mother has been residing with her in City C and has done so for many months.  Ms P is employed as a public servant.  She is presently employed by Employer Q but is permitted to work remotely due to the COVID-19 pandemic. According to the mother, it is uncertain if or when Ms P will be required to move to Melbourne.  According to the mother, at present Ms P is living with the mother in City C and doing her work online. There does not appear to be any likelihood of that changing in the short or medium term.

11. Ms P did not give evidence.  In cross-examination the mother said that an affidavit had been prepared by her mother but it had been decided not to use the affidavit in the proceedings.  It was put to the mother in cross-examination that Ms P did not agree with her proposal to relocate. The mother denied that was the case.  In the absence of any evidence from Ms P, I am not prepared to make any finding about what she may wish to do or her attitude to her daughter and grandchild’s relocation. I am not prepared to find that the mother would receive close support from her mother if she were to relocate to Brisbane. I am satisfied, having regard to the principle in Jones v Dunkel (1959) 101 CLR 298 that Ms P’s evidence would not assist the mother’s case.

12. The mother asserted that the father could easily move to Brisbane himself if he wished and obtain employment. I am not satisfied that is the case. The father has been employed since 2013 in the Employer H. Although the father did not give detailed evidence about his employment I am satisfied that it is permanent and secure employment. The precise nature of the father’s employment was unclear. At one point the mother described him as “some kind of office worker”. The father described himself as a “customer service officer”. He does not appear to have any professional qualifications. I am satisfied that the father has secure, long term employment in City C. I am satisfied that he would find it difficult, or even impossible, to find similarly secure employment in Brisbane.

13. I am satisfied the principal reason why the mother wishes to relocate is to move away from the father.  It seems that her relationship with Mr O has also sharply deteriorated and that may be an additional factor in her desire to relocate.

    The family report

14. The family report canvassed the various claims of the parties, particularly in relation to family violence.  The family report recorded an allegation by the father that the mother had killed three puppies by crushing their heads in front of the children.  Not surprisingly, the family consultant regarded this allegation as especially concerning. 

15. While I am satisfied that both parties have acted violently at times towards each other while their relationship subsisted and I am also satisfied that the mother was capable of physical retaliation from time to time this allegation is a particularly serious one.  There is no doubt that the mother is capable of acting violently. In addition to the events leading to her conviction for assault of the father, she admitted to using a knife to cut the tyres of her mother's car many years ago, resulting in a domestic violence order against her being taken out by her mother. However, the father while making the allegation about the puppies in an earlier affidavit did not repeat it in his trial affidavit.  In cross-examination he said that, after considering the matter with his lawyer, he decided that it was best to "move on" and focus on the future rather than the past.  He nevertheless repeated the allegation in cross-examination with apparent conviction. 

16. There was no corroborative evidence of the father's claim about the puppies.  In an affidavit of 4 July 2019 the father alleged that during the extended incident on 17 and 18 July 2016 referred to above that he had been attacked by the mother and sustained a “broken hand”. The hospital notes of the father’s attendance after this incident were tendered in evidence but did not refer to any broken bones. I am satisfied the father suffered some scratches and bruises in this incident but I am satisfied he did not suffer a “broken hand”. His evidence to that effect is untrue.  

17. In relation to the allegation that the mother killed three puppies in the presence of the children the father made a statement to the police on 19 July 2016 about the incident of 17 and 18 July 2016. The statement, extending over five handwritten pages, gives a detailed account of the incident between him and the mother.  He made no mention of the mother killing puppies.  In cross-examination the father admitted that he did not tell the police about that but he said he had been unable to “process” what had happened.  The first evidence of the father making this claim is in his affidavit of 4 July 2019.  On 25 July 2016 the Territory Families records show that there was a face-to-face meeting with welfare workers and the mother at her home to assess the welfare of the children following the incident of 17 and 18 July 2016. Her remarks to the welfare workers were recorded as follows (without alteration):

    Ms Haberman said she had become ill with "gastro" bug while in the Watchhouse.  She explained that Mr Aceda had come over on Saturday to see the children and had stayed the night.  They had begun to argue on Sunday and she admits throwing objects at him (veggies, fruit, metal bowl).  She showed us her bruising on leg and said he had also thrown things at her.  The children were witness to this incident.  She said she felt it was a shame this had happened.  The children were brought back to her by Mr Aceda on wednesday evening when she was released.  baby X remains in the care of Mr Aceda and his sister but Ms Haberman indicated that this was temporary as Mr Aceda was struggling and had to return to work in two weeks’ time.  She acknowledged that she was keen to continue to engage with the social and emotional well-being team for her support and also possibly R Counselling for counselling if Mr Aceda agreed.  This was to enable them to parent separately but with better outcome for the children. 

    There is a further comment recorded as follows:

    She told us about the puppies in the house (eight pitbull puppies) who were fast asleep and very healthy. mother dog was outside having a break.

18. It was submitted by counsel for the mother that this showed the Territory Families workers had confirmed that the full complement of puppies were alive. The father had claimed in cross-examination that mother had killed three of seven puppies during the incident of 17 and 18 July 2016.  Counsel for the father submitted that the passage should be interpreted to mean that the mother simply told the welfare workers that the puppies were healthy but there was no evidence that the workers had seen eight puppies.  In my view, the note made by the welfare workers is ambiguous but it would seem surprising, if the welfare workers were relying on the report of the mother only, that the mother would say that there were eight healthy puppies in the house if she had previously killed three of seven of them.  Given my finding that the father is an unreliable witness, I am not satisfied the mother killed any puppies.

    The child and her parents

19. The family consultant observed the child with both parents and was satisfied a close bond existed in each case. The parents were well attuned to the physical needs of the child and she was comfortable with each parent.  The family consultant was satisfied that the child was strongly attached to her father.  This was not denied by the mother.

20. The family consultant was of the view that the mother's relocation with the child to Brisbane would result in a significant deterioration in the relationship between the child and her father.  The family consultant was satisfied that such a relocation would only be in the child's best interests if it was necessary to ensure the safety and physical and emotional well-being of the mother.

21. The family consultant also expressed the view that the father’s large, extended family, including the child’s grandmother and many aunts, uncles and cousins, was important to the child. It was not seriously challenged that the child was close to this extended Aboriginal family and benefited from exposure to it and its wider cultural connections. On the other hand, the mother’s evidence about her engagement with her extended family in Queensland, if any, was lacking in detail. I am satisfied there is not likely to be any comparable involvement by the child with her maternal family or Aboriginal culture in Queensland.

22. I generally agree with the family consultant’s assessment of the parties and his opinion.

23. I am satisfied that the mother finds the behaviour of the father difficult and challenging. I am satisfied that, while there has not been physical family violence since, at the latest, early 2018, the behaviour of the father still tends to be controlling and manipulative. An example of his manipulative behaviour was a series of text messages sent to the mother’s partner in mid-2018 alternating between insults and claims that the mother had recently made sexual advances to him, the father. His evident intention was to undermine the mother’s relationship with her then partner. An example of the father’s controlling behaviour was his refusal to deliver the child to the mother at changeover at B Family Services in October 2019. The father expressed regret at various points for his conduct towards the mother and others but I am not satisfied his contrition was genuine.

24. I am not satisfied that the mother’s physical safety is at risk from the father. I am not satisfied that she is afraid of him for the reasons mentioned in relation to the C Plaza incident referred to above. I am also not satisfied that the mother is likely to find emotional support from her mother that is not available in City C or that relocation to Brisbane is necessary for her emotional wellbeing. I am not satisfied that the conflict is significantly undermining the mother’s parenting capacity or her psychological health at the present. The mother did not rely on any expert psychological evidence.

25. Nevertheless, I am satisfied that the mother finds the continuing conflict with the father trying and vexing and that the hostility between the parties is entrenched. I accept that, in the long term, conflict between the parties has the potential to significantly affect the mother and her psychological and emotional health.

26. I am satisfied that the nature and sharp deterioration of the mother’s relationship with Mr O, the father of her two youngest children, is a factor in her desire to relocate but to what degree this has influenced her desire to move I cannot say.

27. I accept the family consultant’s observation that the child is very close to both parents. I accept the family consultant’s view that the father is “devoted” to the child. The mother accepted that the child had a close relationship to the father.

28. I am satisfied that any relocation of the child’s residence to Brisbane will undermine the relationship between the child and her father, certainly at this stage of her development. The fact that the mother has poor or non-existent relationships with the fathers of her other children and those children do not have relationships with their fathers is of real concern. Of course, I do not assume that is solely or necessarily the fault or responsibility of the mother but I do not believe the mother will foster a relationship between the child and her father. I have no reason to believe she will not comply with orders of the court but, similarly, I have no reason to confidently assume she will. The mother has, on occasion, withheld the child in breach of orders.

29. The proposal of the mother is that she have sole parental responsibility for the child, that the child live with her and she be permitted to relocate the residence of the child to Brisbane. She proposes that the child spend half of school holiday time with the father. If she is not permitted to relocate with the child she seeks orders that the child spend four nights a fortnight with the father, as is the case at present, and school holiday time.

30. The father’s proposal is that the parents have shared parental responsibility and that the child live with each parent in a week about arrangement and for half of the school holidays.

31. The independent children’s lawyer did not support the mother’s relocation unless it was deferred at least until the child turned six years old and proposed that the time orders be varied to provide for the child to spend five nights a fortnight with the father.

    Consideration

32. The resolution of a parenting dispute under the Family Law Act (“the Act”) requires adherence to the legislative pathway set out in Part VII of the Act.

33. In determining what is in the best interests of a child the court must consider the matters in subsections (2) and (3) of section 60CC of the Act.

34. Turning to subsection 60CC(2), the primary considerations in determining the best interests of the children are:

    (a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and

    (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

    When applying section 60CC(2) factors, the court is to give greater weight to the consideration set out in (2)(b).

35. I am satisfied that there is benefit to the child in having a meaningful relationship with her father. I am satisfied that for the time being, at least,  having regard to the child’s age and stage of development, the only way in which the child can have a meaningful relationship with both parents is if they continue to live in close proximity to allow each parent to participate in the day to day life of the child. However, this is not the only matter to be considered.

36. I am satisfied that the high level of conflict between the parents has likely been damaging to the child. I am satisfied the parents have exposed the child to family violence as defined in s.4AB(1) of the Act. I consider the parents are both responsible for this behaviour.

37. I am satisfied that there is a risk the child may be exposed to conflict between the parties if both remain in City C. However, I consider the likelihood of further family violence as defined by the Act is low if there is a clear regime for changeover and the parties do not come into contact with each other. I acknowledge there is a risk of psychological harm to the child through exposure to conflict falling short of family violence, that is, behaviour that is coercive or controlling or causes fear, as defined in the Act.

1. I will now turn to the additional considerations in subsection 60CC(3).

2. In relation to (a), the child’s views, the child is too young at 4 ½ years old to express a view.

3. In relation to (b), the nature of the relationship of the child with her parents and any other persons, the child is strongly connected to both parents. The child has a close relationship with the father’s large extended family in City C, including the paternal grandmother, aunts, uncles and many cousins. The evidence about the child’s relationship with the maternal family was scant. I assume the child has a good relationship with the maternal grandmother who currently resides in City C with the mother but there was no convincing evidence about other members of the maternal family who, in any case, reside in Queensland.

4. In relation to (c), the extent to which each of the parents has taken, or failed to take, the opportunity to participate in decision-making about major long-term issues for the children and spending time with and communicating with the children, both parents have been actively involved in all aspects of the child’s life.

5. In relation to maintenance of the child under part (ca), the evidence was that the father did not pay child support and the mother had not sought an assessment. In part this may be explained by the fact that in the past the child spent approximately equivalent time with each parent, although that is not the current situation.  The mother said she intended to seek a child support assessment.

6. In relation to (d), the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of their parents or any other child or other person with whom they have been living, a change in the children’s residence from City C to Brisbane will separate the child from her father with whom she has a close and loving relationship and remove him from her day to day life. It is likely to have an adverse effect on the child’s relationship with her paternal family, including her grandmother, aunts and uncles and cousins.

7. In relation to (e), the practical difficulty and expense of the child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents, it is clear that if the parents reside many thousands of kilometres apart that will necessarily affect the child’s relationship with her father and there will be significant expense in the child spending time with him. 

8. In relation to (f), the capacity of each of the child’s parents to provide for the needs of the child, including emotional and intellectual needs, there appears to be little doubt that both parents love the child and are competent, on a physical level, to care for her.

9. The most concerning aspect of the parents’ capacity is their failure to prevent the exposure of the child to ongoing parental conflict and the likely deleterious effect of that on the emotional and intellectual life of the child. I am satisfied that there is likely to be ongoing conflict between the parents. However, this can be mitigated if they do not come into contact with each other, with “parallel parenting”. However, the risk of harm to the child through exposure to conflict short of family violence must be weighed against the child’s right to a meaningful relationship with her father which, in my opinion, can be ensured only if the child remains living in City C until she is older.

10. In relation to (g) the maturity, sex, lifestyle and background of the child and of either of the child’s parents, and any other characteristics of the child the court thinks are relevant, there is nothing requiring further consideration.

11. In relation to (h), the child is an Aboriginal child and has a right to enjoy her Aboriginal culture, including the right to enjoy that culture with other people who share that culture. The mother was dismissive of the father’s engagement with Aboriginal culture and there was some evidence that the father had used racially derogatory language in one of his arguments with the mother. However, I am satisfied that the father identifies as an Aboriginal person. There was evidence that the father and his extended family had been invited to the commemoration of the cessation of tourists climbing Uluru. He had wished to take the child to the event but he and the mother were unable to agree on terms for that. I am satisfied the father wishes to encourage the child’s enjoyment of her Aboriginal culture. In the context of this case the child’s right to enjoy her culture consists primarily of the time she is able to spend with her extended Aboriginal family who, according to the father, have their ancestral roots in northern South Australia and central Australia. This was not challenged. I consider this aspect of the child’s identity has substance and should be given weight. I was not persuaded that the child would benefit in the same way from the mother’s extended family in Brisbane. The mother’s evidence about this was meagre.

12. In relation to (i), the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents, both parents love the child but their capacity as parents suffers from the limitations described above.

13. In relation to (j), any family violence involving the child or a member of the child’s family, both parties alleged they were the victim of family violence perpetrated by the other. I am satisfied that both parties have exposed the child to conflict and violence, although this was not always family violence as defined in s.4AB(1) of the Act, in particular “… behaviour that coerces and controls a member of the person’s family…or causes the family member to be fearful”. The mother was convicted of assaulting the father and breaching a domestic violence order after she hit him in the head with a metal bowl. However, I am satisfied that the father was rarely, if ever, simply the innocent victim. I consider that he often provoked, insulted and denigrated the mother. There was evidence of this in SMS texts. Further, I am satisfied there was often a coercive and controlling aspect to the father’s conduct, for example his bad behaviour at the children’s contact centre. Both parties sometimes sought to manipulate situations, for example by making false or exaggerated reports to police, for imagined advantage. Both parties have been or are subject to domestic violence orders protecting the other.

14. In relation to (m), any other fact or circumstance that the court thinks is relevant, there is no other such fact or circumstance.

15. Section 60CG of the Act requires the court to ensure that any order is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence. There is a present family violence order for the protection of the mother. The orders I make are intended to ensure there is little or no contact between the parties.

16. Given that I am satisfied there has been historical family violence the presumption of equal shared parental responsibility under s 61DA does not apply. Nevertheless, I am satisfied that it is appropriate that both parents should be involved in long term decisions concerning the child. Both parties are involved in the child’s life. There was no real evidence that they had been unable to reach such decisions about the child in the past and there seem to have been periods when the parties were able to communicate reasonably about the child. The real problem is that this has been punctuated regularly by emotionally dysregulated conflict.

17. As there will be an order for shared parental responsibility the court is required by s.65DAA to consider whether the child spending equal time or substantial and significant time with each parent is in the best interests of the child.  If both parents live in the same area, equal time or substantial and significant time with the father becomes possible. The child spent equal time with each parent under the parenting plan they entered into in 2018. However, this broke down due to the father withholding the child because of alleged concerns about the mother’s parenting. Despite attempts at mediation other agreements appear to have broken down because of poor communication.

18. Having regard to each of the matters in s.65DAA (5), I am not satisfied that it is reasonably practicable for the child to spend equal time with the father, in particular because I doubt the parents’ capacity to implement such an arrangement and because I consider the capacity of the parents to communicate with each other to resolve difficulties is limited.

19. The child presently spends four nights a fortnight with the father from Thursday to Monday in alternate weeks. The mother opposed any extension of this time. The family report did not canvass the time issues, focussing on the question of relocation. The independent children’s lawyer submitted that the child should not be permitted to relocate until she is six years old, another 18 months, in order for the child’s relationship with the father to “solidify”. She said the child’s time should be extended to five nights a fortnight, from Thursday to Tuesday.

20. I generally accept the submissions of the independent children’s lawyer. I also accept that the mother’s present conflictual relationship with the father is trying and vexing, although I am satisfied there are other, unrelated factors that are also proving testing for her. I accept that in the long term this has the potential to undermine her parenting capacity and, as she is the primary carer, this must be avoided. However, I am not satisfied that the mother’s mental health is or will be compromised by her remaining in City C or that her physical and emotional well-being is at risk from the father by reason of family violence or any other factor.

21. I also give significant weight to the fact that the mother has a right to free movement and this should not be curtailed unless there is a clear reason relating to the welfare of the child.  I have also given consideration to whether it would be reasonable for the father to relocate to Brisbane. For the reasons given above, I am satisfied that in doing so he would be giving up secure, long term employment in City C and that, without transferable qualifications, there would be a real chance he would not be able to find employment in Brisbane.

22. I do not propose to make an order permitting the mother to relocate the child’s residence to Brisbane at this point. However, I do propose to make an order that the mother may relocate the residence of the child to Brisbane at the beginning of 2023 when the child turns seven. I am of the view that an extended time in City C is necessary to properly establish the child’s relationship with the father, primarily, but also with the extended paternal family and her enjoyment of her Aboriginal culture as a member of that family. When the child turns seven she should also be able to fly unaccompanied. I am also satisfied that an order that requires the mother to remain in City C, against her wishes, for many years is unreasonable having regard to the conflictual relationship between the parties and the mother’s right of movement.

23. I also propose to extend the amount of time the child spends with the father. She currently spends three nights a fortnight with the father. This will be extended to four nights immediately, from Thursday to Monday in alternate weekends, and five nights, from Thursday to Tuesday, once the child commences primary school, which I presume will be in January 2021.

24. Otherwise the orders I propose to make will be conventional orders for shared time over school holidays and other matters.

I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date: 11 September 2020