Hackman & Woolley
[2023] FedCFamC1F 339
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Hackman & Woolley [2023] FedCFamC1F 339
File number(s): ADC 19 of 2021 Judgment of: KARI J Date of judgment: 5 May 2023 Catchwords: FAMILY LAW – PARENTING – Relocation – time-spending – best interest considerations – where there is no dispute that the mother is to retain the primary care of the children– Where the mother has continued to support the children’s relationship with the father despite the acrimony between the parties – Where the mothers mental health symptoms will likely diminish if she is permitted to relocate to live closer to her maternal family networks – Where the Court finds that the mother should be permitted to relocate the children Legislation: Family Law Act 1975 (Cth) ss, 4AB, 11F, 60B, 60CC Cases cited: Goode & Goode (2006) FLC 93-286 Division: Division 1 First Instance Number of paragraphs: 150 Date of hearing: 15-17 March 2022, 21 March 2022, 24-28 October 2022, 4 November 2022, 29 November 2022, 2 December 2022, 8 February 2023 Place: Adelaide Counsel for the Applicant: Mr Roberts Solicitor for the Applicant: Marilyn Lennon Counsel for the Respondent: Ms Pyke KC Solicitor for the Respondent: Stanley & Co Lawyers Counsel for the Independent Children's Lawyer: Mr Lewis Solicitor for the Independent Children's Lawyer: Legal Services Commission of South Australia ORDERS
ADC 19 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR HACKMAN
Applicant
AND: MS WOOLLEY
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
KARI J
DATE OF ORDER:
05 May 2023
THE COURT ORDERS THAT:
1.That all previous parenting orders are hereby discharged.
Parental Responsibility
2.That the mother have sole parental responsibility for the children X born 2018 and Y born 2020 (''the children") UPON CONDITION THAT she:
(a)Provide the father with no less than six (6) weeks' notice in writing of her intention to make a decision in relation to any major long-term issue affecting the children, or either of them, SAVE AND EXCEPT in the event that the said issue involves a medical emergency affecting the children, or either of them;
(b)Take into consideration any view expressed by the father in relation to the said issue, such view to be communicated by the father to the mother in writing no later than four (4) weeks after receipt of the mother’s notice pursuant to order herein; and
(c)Notify the father in writing of the decision that she ultimately makes in relation to the said issue.
Living Arrangements
3.That the children live with the mother.
Father’s time spending pending relocation
4.That the children spend time with the father as follows:
(a)From the date of these Orders until Y attains the age of three (3) years, in each alternate week in accordance with the rotation established pursuant to order 1 made 4 November 2022:
(i)From 9am Wednesday until 4pm on Saturday; and
(ii)From 9am until 4pm on Sunday.
(b)Upon Y attaining three (3) years of age until the commencement of Term 1 2024, in each alternate week from 9am on Wednesday to 4pm on Sunday in accordance with the rotation established pursuant to order 4(a) herein.
Special Occasions pending relocation
5.That each party's time with the children as provided for at paragraphs 3 and 4 hereof be suspended where necessary to facilitate the children spending time with each party as follows, unless agreed otherwise between the parties in writing:
(a)On Father's Day, with the father from 9am until 4pm.
(b)On Mother's Day, with the mother from 9am until 4pm.
(c)On the each of the parents' birthdays and the children's birthdays, with the parent with whom the child did not wake up with, from 3pm to 7pm.
(d)UPON CONDITION that the father is not working, for Christmas 2023:
(i)With the father from 2pm on 24 December until 2pm on 25 December; and
(ii)With the mother from 2pm on 25 December until 2pm on 26 December.
Relocation and father’s time spending following relocation
6.That as and from the Saturday immediately two weeks prior to the commencement of the New South Wales school Term 1 in 2024, the mother be permitted to relocate the permanent residence of the children to City B, New South Wales.
7.That no later than 7 days prior to such relocation the mother shall provide to the father in writing her proposed new residential address.
8.That the children shall thereafter spend time with the father as follows:
(a)During the New South Wales School term, should the father visit City B, on no more than two occasions per term, for not more than 4 consecutive nights, with such time to occur in City B commencing from the conclusion of school on the first night (or 3pm if a non-school day) and concluding on the commencement of school on the fourth day (or 9am if a non-school day) UPON CONDITION that:
(i)The father notify the Mother in writing of the intended travel to City B 28 days prior to the commencement of the proposed time spending with the children;
(ii)The father provide to the mother in writing no less than 7 days prior to the commencement of the proposed time spending with the children, booking confirmation together with location and contact details for the father and the children's accommodation during any such time spending; and
(iii)The Father ensure the children attend school and/or scheduled extra-curricular activities and/or school events that may occur during such time spending.
(b)During all New South Wales short-term school holiday periods (being those at the end of Terms 1, 2 and 3), for a period of 7 consecutive nights in South Australia as agreed between the parties in writing 6 months prior to the commencement of each school holiday period and in default of agreement, from the day following the conclusion of the school term until the middle Saturday at 12noon, SAVE AND EXCEPT if Easter occurs in the school-holidays, the father shall spend time with the children for the 4-day Easter weekend in each even year and the mother shall spend time with the children for the 4-day Easter weekend in each odd year.
(c)During the New South Wales Christmas school holiday period (at the conclusion of Term 4), for a period of 21 consecutive nights in South Australia with those nights to occur as follows:
(i)To commence the day following the last day of Term 4 in 2024 and each alternate year thereafter; and
(ii)To commence on 1 January in 2025 and each alternate year thereafter.
(d)At such further and other times as may be agreed between the parties in writing.
9.That the mother shall be solely liable for the cost of the children's travel between City B and Adelaide pursuant to Orders 8(b) and 8(c) herein with the mother and any accompanying adult to be at liberty to transport the children by car to and from South Australia for the purposes of the time spending pursuant to Order 8(c) herein.
Hand overs
10.That handovers occur as follows:
(a)That for the purposes of orders 4 and 5 herein handovers shall take place at McDonalds City C;
(b)That upon the mother’s relocation to City B:
(i)For the purposes of order 8(a) herein handovers at the conclusion or commencement of school shall occur by way of the children being collected from/delivered to school, and in the event of a non-school day at such location as agreed between the parties in writing.
(ii)For the purposes of school holiday time spending pursuant to orders 8(b) and 8(c) herein at Adelaide Airport in the event that the children are travelling by air travel, or at City C McDonalds if the children are travelling by car.
Communication
11.That the mother facilitate FaceTime communication between the father and the children every third day when the children are not in the fathers care.
12.That the father facilitate FaceTime communication between the mother and the children every third day when the children are in his care.
13.That the parties do communicate in relation to the care, welfare and development of the said children as follows:
(a)Via an agreed parenting communication app; and
(b)Via text message or telephone in the event of an emergency only.
Other Orders
14.That each of the parties is at liberty to attend at any and all school or extracurricular events or functions relating to the said children to which parents are invited to attend.
15.That, by this Order, each of the parties is at liberty to, at his or her own expense, communicate with and obtain information and material that would ordinarily be provided to parents from:
(a)the children's school or such other organisation (for example any extra-curricular activities) at which the child attends including but not limited to notices, newsletters, communications from teachers, coaches, reports and photographs.
(b)Any medical practitioner upon which the child attends.
16.That the parties keep each other advised in writing with any changes to their residential address and/or telephone number.
17.That the Order for the appointment of the Independent Children's Lawyer is hereby discharged, subject to any appeal.
18.That all extant applications do stand dismissed as finalised.
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 the pseudonym Hackman & Woolley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
KARI J
INTRODUCTION
These are parenting proceedings in relation to the parties’ two young children, X who is four years old and Y who is two years old.
While the parties are in dispute about the children’s living arrangements, there is also a dispute between them as to whether the mother be permitted to relocate the children’s principal place of residence from City C in South Australia, to City B in New South Wales (‘NSW’).
There is however no dispute between the parents that regardless of which state the mother and the children reside, the mother is to have the primary care of the two children.
The father’s position is that the children gradually build up the amount of time that they spend with him such that they ultimately live with him for four consecutive nights a fortnight together, with time each alternate Sunday from 9am until 4pm, to coincide with his work arrangements.
If the mother remains living with the children in or near the City C area, she has no difficulty with the time spending arrangements proposed by the father. The mother’s primary position however is that if she is permitted to relocate the children to City B then she intends to do so, in approximately a years’ time, being from the commencement of Term 1 2024. Thereafter the mother proposes that the children spend time with the father as follows:
(a)During the school terms on two occasions of up to four nights in City B;
(b)During the short school holidays for seven consecutive nights in South Australia;
(c)During the Christmas school holidays for 21 consecutive nights in South Australia; and
(d)Such other times as the parents may agree.
For the reasons that follow, the Court has determined that the children are to live primarily with the mother and that she be permitted to change their primary place of residence to City B.
BACKGROUND
The father was born 1992 and he is 31 years of age.
The mother was born 1995 and she is 28 years of age.
The parties met in approximately 2017, when they were both working in E Town in South Australia. Within short compass of meeting each other, the parties began living together in the home of the paternal grandparents in City C when they were not otherwise in E Town.
At the time that the parents met, the mother was living with the maternal grandfather in Suburb N, having relocated to South Australia from City B in NSW some time in about 2017 to take up her employment. The maternal family continue to reside in and around the City B area. In addition, the maternal grandfather has now also returned to live in the City B area.
The father and the paternal family live in and around the City C area; albeit that the paternal aunt (who gave evidence in these proceedings) has recently moved and now lives in Adelaide.
The mother asserts that she became pregnant within six months of the commencement of the relationship with the father.
The child X was born 2018. At the time of X’s birth, the parents were still residing with the paternal grandparents, together with the paternal aunt Ms D and the paternal uncle Mr F.
Sometime in early to mid-2019 the parents purchased and moved in to their own home in City C.
The parents became engaged in early 2020, however they did not ultimately marry.
The child Y was born 2020.
After the birth of Y, the mother suffered from significant post-natal depression. The mother sought professional support during this period, which included a period of residential support at G Health Service together with Y for approximately a month in 2020. During this period the father did not work and cared for X. The father also regularly visited the mother and Y, together with X while they were at G Health Service. Additionally, the parents received support from the paternal grandparents. This support included the family moving in to live with the paternal grandparents for a period of time.
The parents separated on 28 November 2020, after an incident that took place in the home of the paternal grandparents. The parents were still living with the paternal grandparents at this time. The incident saw the mother arrested and charged. As a result of these charges, an interim Intervention Order was made naming the mother as the defendant and the father as a protected person. In addition, the mother was subject to bail conditions that required her to live at the former family home. As a result, the children were not returned to the mother’s primary care following the incident until approximately 2 December 2020.
In late 2020, both the charges and the Intervention Order were withdrawn.
THE LITIGATION
The litigation was commenced by the father on 5 January 2021, against the very fresh backdrop of the incident on 28 November 2020, the mother’s arrest and charges, the making of the Intervention Order, and the subsequent withdrawal of both the Intervention Order and the charges in late 2020.
After the commencement of the proceedings, the matter was allocated to the Evatt List in Division 2 of the Federal Circuit and Family Court of Australia. This allocation helpfully resulted in certain orders being made to prepare the matter and gather information in readiness for the first contested hearing. Those orders included:
(a)The appointment of an Independent Children’s Lawyer (“ICL”);
(b)Arrangements for the preparation of a preliminary report by a Family Consultant pursuant to s 11F of the Family Law Act 1975 (Cth); and
(c)Orders for the gathering of information from each South Australia Police (“SAPOL”) and the Department of Child Protection (“DCP”) pursuant to s 69ZW of the Family Law Act 1975 (Cth).
At the first contested hearing in the matter on 16 March 2021, the parties were able to agree parenting orders which were made by a Senior Registrar. Relevantly, those orders included:
(a)That the children live with the mother;
(b)That the children spend time with the father each alternate week on Thursday, Friday, Saturday and Sunday from 9am until 4pm;
(c)Daily FaceTime calls between the children and the father when he worked in E Town; and
(d)The preparation of a Family Assessment Report pursuant to s 62G(2) of the Family Law Act 1975 (Cth).
At a hearing on 18 May 2021, the parties were able to agree an increase in the father’s time spending with the children. The Senior Registrar again made an order by consent, which included orders for the father’s time spending to include “… fortnightly overnight time, being each alternate Friday from 3.00pm until 4.00pm on Saturday…”
On 16 September 2021, the proceedings were set down for trial before me, when I was a Judge in Division 2 of the Court, commencing 16 November 2021.
On 28 October 2021, the proceedings were transferred to Division 1 of the Court. The proceedings were subsequently set down for trial before me commencing 15 March 2022.
The trial hearing commenced on 15 March 2022. Unfortunately, as a result of issues that arose during the course of the evidence, the trial was adjourned part heard until October 2022 on the application of the mother.
To the credit of the parents, they were again able to agree parenting arrangements for the children in the midst of the trial hearing. The Court accordingly made orders with the mutual consent of the parties on 21 March 2022 effecting a further increase to the father’s time spending with the children ostensibly in the following terms:
(a)Until Y’s birthday in 2022, in each alternate week from 9am until 4pm on both Wednesday and Thursday, and from 3pm Friday until 4pm Sunday;
(b)Following Y’s birthday in each alternate week from 9am Wednesday until 4pm Thursday, and from 9am Friday until 4pm Saturday, and from 9am until 12 noon on Sunday.
The trial hearing did not conclude within the additional sitting days allocated in October 2022. This resulted in additional sitting days in November 2022 and a separate additional day for closing submissions on 8 February 2023.
During this period a subpoena was issued by the ICL to obtain a copy of the mother’s video record of interview conducted after her arrest in late 2020.
Again, during this period and to the credit of the parents, they were able to agree a further increase to the father’s time spending with the children, resulting in orders made on 4 November 2022. Those orders in essence provided for the father’s time with the children to further increase such that it occur in each alternate week from 9am Wednesday until 4pm Saturday, and from 9am until 4pm Sunday.
THE LEGAL FRAMEWORK
Part VII of the Family Law Act 1975 (Cth) (“the Act”) is where the legislative provisions concerning parenting cases can be found. The purpose of the legislation is to provide a pathway for the Court when making parenting orders. The central focus underpinning the legislation is to make parenting orders which are at all times in a child’s best interests.
A parenting order can encompass and deal with all aspects of a child’s care, welfare and development, or any aspect relating to the parental responsibility for a child.
In making any parenting order the Court must have regard to the aims of the legislation set out in s 60B(1), which provides as follows:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(Emphasis added)
The principles underpinning the aims of the legislation are contained in s 60B(2) which provides:
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(Emphasis added)
In determining what is in a child’s best interest, the Court is to have regard to a long list of considerations set out in s 60CC of the Act. Those considerations are separated into primary considerations and secondary considerations.
The primary considerations to which the Court is to give greater weight are:
(2) The primary considerations 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.
(Note omitted)
The additional considerations are:
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
(ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
The legislative pathway to be adopted in a parenting case has been identified by the Full Court in Goode & Goode (2006) FLC 93-286.
The Act provides a presumption that parents should have equal shared parental responsibility for their children. However, the presumption of equal shared parental responsibility is specifically rebutted if there are reasonable grounds to believe that a parent (or a person who lives with a parent) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence. [1]
[1] Family Law Act 1975 (Cth), s 61DA(2).
Family Violence is defined in s 4AB of the Act as follows:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d)cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
If the presumption of equal shared parental responsibility is to be applied, then the Court is required to consider whether the child should spend equal time with each of their parents, provided that any such equal time arrangements are in the child’s best interest and are reasonably practicable.
If the presumption as to equal shared parental responsibility is rebutted, then the Court is required to make orders that are in the child’s best interests with reference to those factors set out in s 60CC.
THE APPROACH
The legislative pathway requires the Court to determine the question of parental responsibility as a precursor to determining those orders that are in the children’s best interests.
The mother has asked the Court to make an order that provides her with sole parental responsibility for the children.
I accordingly propose to approach the matter with reference to the relevant legislative provisions and the evidence of the parties in the following manner:
(c)Firstly, consideration as to whether there is a basis to depart from the presumption that the parties share parental responsibility for the children; and
(d)Secondly, with regard to the s 60CC considerations to determine those orders that that are in both children’s best interests.
THE EVIDENCE
Each of the parents filed a trial affidavit in the proceedings and they each gave oral evidence during the trial.
In addition, the father relied upon a number of witnesses who each also filed an affidavit and gave oral evidence during the trial, namely:
(e)The paternal grandfather, Mr J;
(f)The paternal grandmother, Ms K;
(g)The paternal aunt, Ms D.
The father additionally sought to rely on reports prepared by a family therapist, Ms H. While the father did not file those reports under cover of an affidavit from Ms H, events during the first tranche of the trial resulted in not only the parties obtaining Ms H’s notes from her consultations with each the father, the paternal grandparents and the paternal aunt (and an adjournment to enable those notes to be obtained), but also Ms H giving oral evidence.
The mother relied on the following additional witnesses who each filed an affidavit and gave oral evidence during the trial:
(a)The maternal grandmother, Ms L;
(b)Her treating Clinical Psychologist, Ms M who had additionally prepared a reports dated 5 February 2021, 18 October 2021; and
(c)Her perinatal mental health nurse, Ms O who had additionally prepared a report outlining her therapeutic relationship with the mother dated 15 December 2020.
The Court also had the benefit of a Family Assessment Report prepared by Family Consultant, Ms P dated 23 August 2021. Ms P also gave oral evidence at trial.
The evidence of the Family Consultant
The report prepared by Ms P was prepared over a year prior to her giving oral evidence in the trial.
That passage of time, coupled with the children’s young ages necessitated Ms P giving further consideration to her opinion and recommendations when giving her oral evidence.
In her report, Ms P insightfully identified that:
72.Issues of relocation are extremely difficult and often decisions are made within a context of multiple issues in dispute, with multiple issues to balance, as if a dilemma of labyrinthine complexities…[2]
[2] Family Assessment Report filed 23 August 2021, paragraph 72.
In her report Ms P recorded:
(a)Both parents spoke of “their desire to co-parent in the future” (at [33]);
(b)The mother raised no safety concerns in relation to the father’s care of the children (at [34]);
(c)The mother recognised that the children have a close and loving relationship with each the father (at [55]) and the paternal grandparents (at [56]);
(d)The children interacted equally positively with each the mother (at [65]), the father and the paternal family (at [66] and [68]), with the interactions described as a “delight to observe and all depicted close, loving and meaningful relationships between the children and their mother, father and paternal grandparents”, with each of the parents and the paternal grandparents described as being “equally attentive, nurturing and confident in their care of the children” (at [70]).
Significantly, Ms P recorded that from the mother’s perspective she:
(a)Denied that she presented any risk to the children (at [34]);
(b)Felt the father and his parents were “ganging up on me” during the incident in late 2020 (at [34]);
(c)Admitted to thoughts of self-harm but denied ever intending to act on those thoughts (at [39]).
Significantly from the father’s perspective, Ms P recorded that the father:
(a)Expressed concerns over the children’s safety in the mother’s care (at [36]);
(b)Expressed concerns that the mother was not “engaged with a therapist to support her mental health needs despite her history of depression and anxiety” (at [40]);
(c)Expressed concerns about the mother’s physical abuse of the children (at [36]);
(d)Expressed concerns that the mother was struggling to be “consistent in her care of the children” (at [44]);
(e)Expressed concerns over the quality of the attachment between the mother and the children (at [58]).
Ultimately, from all of her observations, Ms P concluded that neither of the children were at risk in the care of either of the parents (at [74]), and that both children would benefit from an ongoing relationship with both of their parents.
Ms P was equivocal on the topic of the mother’s proposal to relocate the children to City B, commenting that this question was ultimately an issue that required determination by the Court, but identifying that she considered that orders be made restraining the mother from doing so.
In that context, Ms P turned her mind to appropriate time spending arrangements between the children and the father under the two competing scenarios promoted by each of the parents, and to that end:
(a)If the mother was permitted to relocate the children to City B, then Ms P recommended that the children spend as much time with the father as possible both in City B and in South Australia (at [102]).
(b)If the mother was not permitted to relocate, then Ms P proposed a gradual increase to the father’s times spending with the children, such that by the time the youngest child Y became school age, the children were spending five consecutive nights a fortnight with the father in accordance with his work roster.
During her oral evidence, Ms P revisited her opinion in light of a range of events that had occurred since the publication of her report and the matters traversed with her during cross-examination, principally:
(a)The increases to the father’s time spending with the children that had been implemented; and
(b)The change in the father’s case such that he was now only seeking to spend four consecutive nights a fortnight with the children as against the five night a fortnight regime that he had proposed at the commencement of the trial.
During her oral evidence, Ms P expanded on the reasons she had given in her report that she considered it appropriate that any relocation of the children to City B be delayed, if the Court was to accede to the mother’s application. To that end, Ms P opined:
(a)That the older a child is, and the more established and secure their relationship is with the non-relocating parent, the better the child is able to “weather a relocation” and maintain a meaningful relationship with the non-relocating parent.
(b)That for these children, and particularly with regard to Y, a delay of any relocation would be best delayed until Y turned five years of age. This is because she considered that the time in a child’s life before commencing schooling presented as an “optimal time to spend relaxed, fun quality time with a parent”,[3] enabling the child to develop their language skills to verbalise their memories; in this instance particularly with the non-relocating parent.
(c)There was a balancing act to be had between the mother’s proposal that she relocate prior to X starting school, so as not to disrupt her schooling, and delaying the relocation to enable Y in particular to form a secure attachment with the father, ultimately concluding that in her opinion the latter course was the more preferred option on balance.
[3] Transcript 2 December 2022, p. 16, line 43.
The evidence of each of the parents
The oral evidence of each of the parents was of great assistance to the Court.
It was clear from the evidence of each of the parents (as confirmed by Ms P), that each of the parents love the children deeply and are striving for what they consider to be the best arrangement for them.
From the mother’s perspective and in the context of the father agreeing that she is to remain the primary carer for the children, the optimal outcome for the children is one where the mother is best able to continue providing the primary care of the children. The mother considers she is best able to do this with the support of her family and friends in City B; such support including, not only emotional support, but also housing support, assistance with the children and general support, which would fulfil the mother emotionally but also enable the mother to retrain, find secure employment and stand on her own feet financially.
From the father’s perspective the optimal arrangement is one where he and the paternal family are able to spend as much time with the children as possible.
As the mother’s counsel identified during her cross examination of Ms P, often the optimal outcome for children is having parents who are not separated and who are able to sort out parenting arrangements without conflict and Court intervention. That however is not the reality for these children. As a result the Court is asked to consider outcomes that enable the children to have a meaningful relationship with each of their parents, which on any view are less than the optimal outcome, particularly where one of the parents’ wishes to relocate some distance away from the other parent.
Over the course of the trial, and when coupled with the oral evidence of the paternal family (discussed later in these reasons), the distinct impression formed is that the father and the paternal family were fixated in their opposition to the mother’s relocation of the children to City B. While this conclusion was open on the totality of the evidence before the Court, nothing was more illustrative of this conclusion than the father’s inability to articulate in his oral evidence in any meaningful way his proposals for time spending if the relocation was permitted; only doing so through his legal representatives at the eleventh hour when pressed to do so by the Court (Exhibit F15). That the father had not turned his mind to this possible outcome was all the more jarring as it was a topic central to the litigation and had been traversed without success by Ms P when she met with the father in August 2021 some 12 months prior.[4]
[4] Family Assessment Report filed 23 August 2021, paragraph 24.
Understanding the evidence of the father through this prism gives some further context to the evidence that he gave.
The mother presented as a person who is deeply affected by the circumstances that she now finds herself in. The mother appears deeply impacted by all of the events following Y’s birth, coupled with the incident in late 2020 and the quick onset of litigation. To her credit, she has accessed appropriate professional support and appears to have developed significant insight as to how she might best manage her own mental health, but also as to how she is best able to parent the children. Illustrative of this conclusion is the mother’s answer to a question from the father’s counsel during cross examination which challenged her about prioritising her own needs ahead of the children’s in seeking to relocate. In response to that question the mother identified that she needed to prioritise her own needs to be the “best version” of herself and the “best mother” she could be, which in turn ultimately prioritised the children’s needs and her ability to optimally meet their needs.
The evidence of the paternal family
The evidence of the paternal family (and to her credit reinforced by the mother), is that the paternal family have played a very significant role in the lives of the children and their family unit, both when the relationship of the parents was intact, and also in the post separation period.
In addition, it is clear from the evidence of each of the parents and the members of the paternal family, that the paternal family are a very close and connected extended family unit. This connection was evidenced by the actual evidence that the paternal family members gave (in writing and orally), but also by virtue of the fact that they were each prepared to give evidence in these proceedings, and that the paternal aunt herself, after giving evidence, was present in Court to support the father throughout the balance of the trial.
More explicitly however, the paternal grandfather and the paternal grandmother each gave evidence to the effect that they supported the father unquestionably, including that they believed him and his version of events, as they had no reason to doubt him. While on the one hand this collective approach by members of the paternal family is perhaps understandable, it equally leaves no margin for human frailty and error, or differences in opinion and perceptions; particularly those where the mother is concerned.
To that end the evidence of the paternal family was particularly confounding and at times difficult to rationalise beyond a basic understanding that they each supported the father unequivocally and the father’s desired outcome in these proceedings; which was to obtain the maximum time spending arrangements with the children possible, and which from their perspective necessitated strident opposition to any relocation of the children to City B.
In that context, what was most concerning for the Court was that the paternal family considered it necessary to air every conceivable grievance, concern and confidence they had shared about or with the mother, whether relevant or not, in order to oppose the mother’s relocation, with little thought or care of the impact of doing so upon the mother, and her ability to remain living proximate to the father and the paternal family in South Australia.
This approach was all the more concerning and confounding in circumstances where the position of the father was always (at least from the time of Ms P’s appointments in August 2021), that the mother should continue to have the primary care for the children. This position necessarily meant that the father’s case was not ever one that the children were at risk of harm in the mother’s care.
Moreover, while the paternal family members on the one hand verbalised that they would continue to support the mother if she were to remain living proximate, the balance of their collective evidence left little doubt that they were not persons that the mother could turn to in the future if she needed help or assistance in any form and/or that she would feel comfortable to do so, given in particular the needless vitriol with which the members of the paternal family described the mother and the very real prospect of ongoing conflict. These difficulties with members of the paternal family are all the more prescient in this case in circumstances where the father is a worker in E Town and the mother, if she remains living in City C has limited external support networks beyond the members of the paternal family.
With all of that in mind, the evidence of each of the members of the paternal family vacillated between being their unvarnished criticisms of the mother which lacked any apparent foundation and/or relevance to the issues in dispute, to at times appearing rehearsed (particularly as to certain aspects of their respective evidence), to at other times appearing unrehearsed and inconsistent.
Unvarnished criticisms of the mother
Examples of the unvarnished criticisms of the mother without evidence to support any such findings, and which were delivered by each member of the paternal family in a an unequivocal matter-of-fact fashion, included:
(a)The paternal grandfather variously and repeatedly describing the mother as “angry”, “aggressive” “gruff”, “unresponsive”, “unpredictable”, that her communication had “an air of tension”, that she “embarrassed” the father who had to make excuses for her, that she was a negative person with no positives, she was a “young lady” with “issues”, that the she was “one hundred percent” ungrateful for the assistance the paternal family had given her.
(b)The paternal grandfather asserting that the mother was not the children’s primary carer as she could not manage on her own. This was said despite the fact that the mother’s primary care of the children both during the relationship and in the post separation period was something that was not ever in dispute between the parents.
(c)The maternal grandmother variously and steadfastly describing the mother as being someone who snapped, was “not very talkative”, and was “angry”.
(d)The paternal aunt describing the mother’s behaviour as “intimidating and violent” and that she felt she was “walking on egg shells” with the mother.
(e)Allegations by each of the members of the paternal family (particularly during their oral evidence) that the mother had physically injured the children, including but not limited to biting, pinching and hitting the children leaving red marks and bruising. These matters became significant in the context of the final hearing, because firstly they were not allegations made by the father in his trial affidavit nor in the respective trial affidavits of each the paternal grandfather or paternal grandmother, but secondly because this topic featured heavily in events which unfolded during the trial as discussed later in these reasons, which leaves me in no doubt that the paternal family members engaged in discussions during the course of the trial about the evidence they had given or were to give.
Evidence which appeared rehearsed
Examples of the evidence given by the family members which appeared to have an air of rehearsed consistency, included the evidence given by the paternal grandparents about the incident in late 2020, together with the evidence given by each the father and the paternal family as to why they had each attended upon family therapist Ms H in the post separation period.
So far as the incident in late 2020 was concerned, the first topic that had an air of confection and rehearsal was in relation to the description given by each of the paternal grandparents over the knife that was alleged to have been used by the mother during the incident.
(a)Each of the paternal grandparents (the paternal grandfather giving oral evidence first, then followed by the maternal grandmother), gave what appeared to be a rehearsed (almost sing-song in delivery), precise and virtually identical description of the alleged knife, describing it as a “bone handled paring knife used for cutting meat and vegetables”.
(b)This identical description appeared all the more rehearsed in circumstances where in their respective affidavits each of the paternal grandparents had been far less precise and synchronised in their description; the maternal grandmother describing the knife as a “sharp bone handled knife”,[5] and the paternal grandfather not deposing to any description of the knife in his trial affidavit, but annexing a copy of the statement he gave to the police on the day of the incident where he described the knife as “knife bone coloured handled, with a blade length of about a 3 to 4 inch”.[6]
(c)After the paternal grandmother gave the identical description of the knife to that given by the paternal grandfather, the paternal grandmother was challenged as to whether she had discussed the description of the knife with the paternal grandfather. She denied that she had done so. For all of the reasons I have outlined, I reject that denial. I am satisfied that it likely that the paternal grandparents had some discussions about the evidence they were to give and/or had given about the description of the knife used in the incident.
(d)The clear impression I formed having heard the oral evidence of the paternal grandparents is that they were attempting to emphasize the type of knife used as one which would have caused significant injury if deployed by the mother against the father.
(e)This description of the knife became all the more relevant, because there was a dispute between those present during the incident as to whether the knife had been wielded by the mother towards the father and/or the father and the paternal grandfather during the incident, which will be discussed later in these reasons.
[5] Paternal Grandmother’s affidavit filed 27 October 2021, paragraph 32.
[6] Paternal Grandfather’s affidavit filed 27 October 2021, Annexure “MJ1”, paragraph 11.
So far as the attendances upon the family therapist Ms H are concerned:
(a)Each member of the paternal family gave evidence that in the post separation period they had each attended upon Ms H for the purposes of therapy.
(b)Each member of the paternal family was challenged about the reasons for attending upon Ms H and whether they as a family had engaged in discussions about their respective engagement and attendances upon Ms H and the reasons for all doing so seemingly simultaneously.
(c)Each the paternal grandfather, the paternal grandmother and the paternal aunt gave evidence to the effect that there had been a family discussion following the incident in late 2020. That as a result of that discussion each of the family members determined that they had different grievances and experiences with the mother that they wished to air and obtain some professional support about.
(d)Each of the paternal family members (paternal grandfather, the paternal grandmother and the paternal aunt) were keen to eschew any notion that they had attended upon Ms H so that there was a record of their grievances about the mother in the context of this litigation and/or to discuss the litigation.
(e)These answers by the paternal family are those that had an air of rehearsal and confection.
(f)This is particularly so when regard is had to the notes of the attendances of each of the family members upon Ms H, as it appears that the predominant and/or sole focus in each session with each of the paternal grandparents and the paternal aunt was a discussion about this litigation and a canvassing of Ms H’s views as to what they should each do, the approach that should be taken to the litigation and the mother, the topic of the mother’s desire to relocate to NSW and their opposition to the same and what parenting arrangements were appropriate for the children.
(g)Moreover, it appears that in those sessions, and not otherwise raised in their respective affidavit material (which significantly were filed prior to obtaining Ms H’s notes), each of the paternal grandparents members sought to make allegations about the mother and her alleged physical abuse of the children.
(h)The impression formed from the collective evidence of the paternal family and that of Ms H as to why it was necessary for the members of the paternal family to attend en masse for counselling, is that they were each rallying and positioning themselves for this litigation.
Inconsistent evidence of the paternal family
Examples of the evidence given by the paternal family members which appeared unrehearsed and contained inconsistencies, included the contradictory evidence from each of the paternal grandparents as to whether a phone call had been made to the person the mother suspected the father was having an affair with which precipitated the incident in late 2020, together the evidence of the paternal family over whether the mother had charged at the father with a knife during the incident in late 2020.
So far as the phone call was concerned:
(a)The paternal grandfather was adamant in his oral evidence that he had not made a telephone call to the woman with whom the mother suspected the father was having an affair.
(b)The paternal grandmother however gave evidence that the paternal grandfather certainly did make a call to this woman and that she was present when the call was made.
(c)While it is not necessary for the Court to resolve this inconsistency, that the inconsistency in the evidence about one of the catalysts to the incident in late 2020 exists is of some concern.
(d)Moreover, it seems plausible that a possible explanation for the inconsistency is a desire, at least on the part of the paternal grandfather to paint the father in as positive a light as possible.
So far as the incident in late 2020 was concerned:
(a)The father deposed in his trial affidavit that the mother had “attacked” him and the paternal grandfather with a knife “in front of the children in my parent’s home” in late 2020.[7] The father went on to depose a denial that he had “told police [Ms Woolley] had not tried to stab me”, suggesting that the statement he had given to police on the night had been misinterpreted, and what he had actually meant was that the mother had not tried to stab him “before” the incident. That statement to police being recorded in the father’s trial affidavit as:[8]
[7] Father’s affidavit filed 26 October 2021, paragraph 74.
[8] Father’s affidavit filed 26 October 2021, paragraph 75.
I don’t have any injuries from the assault or the knife. She has never tried to stab me as such but when she was charging so fast I didn’t know what to do.
(b)This allegation by the father that the mother charged at him with a knife during this incident was repeated by the father to Ms P in the father’s appointment with her for the purposes of the Family Assessment Report.[9]
[9] Family Assessment Report filed 23 August 2021, paragraph 35.
(c)The paternal grandfather did not specifically depose to anything about the incident in in his trial affidavit. Rather he simply annexed the statement that he had given to police that day. In that statement the paternal grandfather deposed:[10]
[10] Paternal Grandfather’s affidavit filed 27 October 2021, Annexure “MJ1”, paragraph 11.
I observed [Ms Woolley] move from the lounge area of the house, around the kitchen island bench near the fridge and move towards the sink. From inside the kitchen she took ahold (sic) of a knife from the centre island bench. I would describe the knife bone coloured handled, with a blade length of about a 3 to 4 inch. I observed her raise the knife in her right hand at about head height. She held the knife there. She moved towards [Mr Hackman] from the kitchen towards the dining table. [Mr Hackman] at this point was in front of her and put his hands up. [Ms Woolley] moved to within an arms-reach of [Mr Hackman], less than half a meter. It appeared to me she was going to lunge at [Mr Hackman] with the knife and I was in fear he was going to be stabbed. At this point I intervened. I was next to [Mr Hackman] and stepped into separate [Mr Hackman] and [Ms Woolley]. I stepped into the middle of them and put my hands across lengthways to separate them. [Ms Woolley] threw the knife onto the kitchen bench.
(d)The maternal grandmother in her trial affidavit deposed to the events involving the knife in the following terms:[11]
[11] Paternal Grandmother’s affidavit filed 27 October 2021, paragraph 32.
[Mr Hackman] was holding [Y] and [Ms M] had [X] and [Ms Woolley] went around the kitchen bench, picked up a sharp bone handled knife, yelling abusive language and had her arm raised above head height charging at [Mr Hackman] and [Ms M] looking like she was going to stab them. We were all yelling at her to stop.
(e)As can be seen from these varying descriptions, each of the paternal family members present during the incident gave conflicting evidence as to whether the mother had tried to stab the father and/or charged at the father and/or charged at the father and the paternal grandfather holding a knife.
(f)These inconsistencies were not resolved during the course of the oral evidence of the father and the paternal grandparents.
(g)Importantly however, the father responded to questions from the mother’s counsel during cross examination, that the statement that he had made to police after the incident was accurate. Specifically, the father adopted matters recorded as his version of events in the Police Apprehension Report (Exhibit M1), which recorded as follows:
…The victim states he was in the kitchen area when he and the accused were having a verbal argument, over an ongoing matter where [HACKMAN] accused him of cheating. The victim states they then had an argument about [WOOLLEY] wanting to take their children to [CITY B] NSW. The victim states the argument became quite heated, and [WOOLLEY] pushed him using her two clenched fists into his chest. The victim states he walked away in the direction of the dining table, and saw [WOOLLEY] walking towards him with a clenched fist raised around her head height. The victim further states he realized [WOOLLEY] was holding onto a knife in her right hand, and was walking towards him slowly, but did not lunge or attempt to attack him. The victim described the knife as being a small bone handled pearing knife, approximately 3 to 4 inches in blade length. The victim states [WOOLLEY] did not say anything during this time or make any threats at him…
(h)As can be seen from that version of events, the father’s description of the incident, as recorded by police and adopted by the father during his oral evidence, has yet another complexion.
(i)In contrast the mother gave consistent evidence (that which she deposed in her trial affidavit, that which she gave orally and that which she gave in her police video record of interview given when she was arrested after the incident) as to the events that occurred during the incident. Those events were:[12]
29. I wanted to leave and remove the children from the conflict between [Mr Hackman] and I and his parents. I felt powerless and wanted to go home where I felt safe. [X] was awake and she appeared to be aware of the argument. I tried to remove [X] from the conflict with no success. [X] was held by the paternal grandmother.
30.I reached for my phone and started to dial 000. [X] was crying out for me with her arms outstretched and paternal grandmother refused to hand her to me. [Mr Hackman] was walking towards me in an intimidating manner with his forehead practically touching mine. I was walking backwards in an attempt to get away from him. I was backed up against the kitchen stools with [Mr Hackman] towering over me. I pushed him away with my open left palm, my right hand still clutching my phone. [Mr Hackman] then pushed me aggressively with force into my chest. I lost my balance and slammed my left hand on the kitchen bench to stabilise.
31.There was a bone-handled butter knife there amongst other items that my left hand inadvertently landed on. I still had my mobile phone in my right hand. The paternal grandfather yelled, “She’s got a fucking knife, [Ms K], grab the kids” and they proceeded with the children out the back-sliding door.
(j)Taking into account all of these matters, and in particular the version of events that the father adopted in his oral evidence, I am satisfied on the balance of probabilities that the mother’s alleged brandishing of the knife and charging at the father and/or the father and paternal grandfather was not as described by the father or members of the paternal family. Rather I am satisfied and I accept the mother’s version of events that her hand inadvertently and without malice landed on the knife that was sitting on the kitchen bench.
(k)I am also satisfied on the balance of probabilities in light of all of the evidence that the paternal family escalated the incident out of all proportion (including as to agreeing on a description of the knife during the trial), to leverage that incident against the mother both on the evening of the incident in opposition to the mother taking time out with the children but also in the context of these proceedings. This conclusion is all the more salient when regard is had to the submissions made by the father’s counsel that the incident was situational, rather than indicative of ongoing family violence or concerns as to the mother’s parenting capacity.
[12] Mother’s affidavit filed 22 October 2021, paragraphs 29 – 31.
While the manner in which the father and the paternal family approached the incident in late 2020 in the context of the proceedings was concerning, of more concern however is that the matters discussed to this point raise significant concerns over the willingness of the father and the paternal family to collude about their evidence in an effort to obtain the father’s desired outcome in this litigation.
In that context, most egregious were events that unfolded during the course of the oral evidence of the paternal aunt, which left the Court with little doubt whatsoever that the father and the paternal aunt had discussed and colluded with each other over the evidence of the paternal aunt; despite warnings given to each of the witness’ (including the paternal aunt) not to discuss their evidence with anyone during the course of their respective cross examination.
The topic about which I am satisfied that the father and the paternal aunt colluded, was in relation to allegations made by the paternal aunt that the mother had physically injured one or both of the children on various occasions during the parent’s relationship.
As identified earlier in these reasons, generalised allegations that the mother had physically injured the children are ones that the paternal family members each made during their appointments with Ms H. As earlier identified, neither of the paternal grandparents repeated these allegations in their respective trial affidavits. The paternal aunt however did make allegations of this nature in her trial affidavit. These allegations were repeated during the oral evidence of the paternal aunt and additionally were made by the paternal grandparents during their oral evidence, in particular by the maternal grandmother. The allegations included that the mother had caused bruising to the children, including bruising that resembled a hand and/or finger marks.
When the paternal aunt was challenged about those allegations and whether she had acted on her concerns, the paternal aunt indicated that she had taken photographs of the alleged injuries; copies of such photographs she asserted she had previously given to the father’s solicitor and others she asserted remained on her mobile telephone.
In response to this evidence the paternal aunt was asked to produce the photographs to the mother’s solicitors at Court the following day (in circumstances where the paternal aunt’s evidence would continue over from an afternoon sitting of the Court and into the morning sitting the following day). In making that request of the paternal aunt, she was specifically reminded by me that she was not to discuss her evidence with anyone, she was simply to produce the photographs to which she had referred in her oral evidence. Significantly, the father was present in Court during this evidence of the paternal aunt, and he heard the warnings that were given.
Despite all of this, when the paternal aunt gave evidence the following day it became patently clear that there had been some level of collusion and discussion between the paternal aunt and the father over the adjourned period. What the court ultimately learnt from the paternal aunt (delivered without any appreciation of the inappropriateness of her conduct), was that immediately upon departing the Court hearing the previous evening, the paternal aunt and the father had a discussion whilst they were in the precincts of the Court (literally outside the courtroom) as to the photographs that existed and that which were to be produced. Moreover, the paternal aunt and the father then engaged in a text message exchange, which included an exchange between them of the photographs that were to be produced by the maternal aunt.
All of these events left the court with a distinct impression that the father and the paternal aunt had scrambled between themselves to find photographs that best illustrated the alleged injuries to the children caused by the mother.
While the Court accepts that some of the photographs received as exhibits in the proceedings show marks on the children (at least one of which the mother alleged was a birth mark), the weight to be attached to these photographs is negligible; particularly in the absence of further context and/or medical evidence and/or other contemporaneous evidence that the children indeed suffered injuries at the hands of the mother.
What is more concerning however is that again, where the father’s case is that the children are not at risk in the primary care of the mother, and that she is to continue to have primary care of the children, it is difficult to comprehend why such elaborate efforts were made by the father and the paternal aunt to put these matters before the court. In that context, any proposition that suggests the photographs evidence anything more than general childhood rough and tumble is specifically rejected.
When combined, all of these matters left the Court with the distinct impression that the paternal family had little regard for the mother, and that collectively, they would stop at nothing in their criticism of the mother.
More importantly however, all of these matters leave the Court with no alternative but to disregard the evidence of the paternal family wherever it conflicts with that of the mother. In particular, as previously identified, I accept the mother’s version of events, over that of the paternal family in relation to the incident in late 2020, together with that pertaining to the mother’s alleged physical abuse of the children.
The evidence of the maternal grandmother
The maternal grandmother presented as an honest and reliable witness who was not prone to exaggeration or embellishment. Rather she gave her evidence in a forthright and open fashion.
Of significance from her evidence I am satisfied that:
(a)The maternal grandmother and the mother have a close and supportive relationship.
(b)The maternal grandmother is willing and able to provide housing and financial support to the mother and the children in her own home until such time that the mother is able to establish her own home in the City B area, if she was permitted to relocate.
(c)The maternal grandmother supports the children having a meaningful relationship with the father and is willing to assist in facilitating that relationship.
(d)In the event that the mother was not permitted to relocate with the children to City B, the maternal grandmother would continue to provide support to the mother and the children and visit them as regularly as possible.
(e)The maternal grandmother has assisted the mother to fund her legal expenses in these proceedings in the amount of approximately $100,000 and she understood that the maternal grandfather had assisted in the amount of approximately $80-$90,000.
Of some importance, when addressing the possible relocation of the mother and the children to the City B area, the maternal grandmother indicated that she is willing to financially assist the mother with the travel costs of the children for the purposes of time spending with the father. In particular, the maternal grandmother indicated that she and her husband would be willing and able to fund between three to four round-trip airplane costs for the children’s travel between South Australia and New South Wales; albeit whilst acknowledging that driving would be preferable and more viable.
Having heard the evidence of the maternal grandmother, I am satisfied that she will continue to support the mother emotionally and financially into the future.
I am also satisfied that the maternal grandmother will support the mother to comply with the Court orders, to ensure that the children maintain a meaningful relationship with the father including in the event that the children were to relocate to City B; particularly so far as travel costs and/or accompanying and/or driving the children between South Australia and New South Wales.
The evidence of the treating therapists
Each of the mother’s treating therapists gave evidence in these proceedings; namely her Clinical Psychologist Ms M, and her Mental Health Nurse Ms O.
Each of the mother’s treating practitioners were highly skilled and qualified, and the respective expertise of each practitioner was not challenged.
Each Ms M and Ms O gave considered evidence in relation to their therapeutic relationship with the mother.
Ms O’s therapeutic relationship with the mother commenced and subsisted for a short period after the birth of X. Thereafter Ms O resumed her therapeutic relationship with the mother after the birth of Y, and this continued until approximately late 2020 / early 2021.
Ms O did not attempt to put any gloss on the seriousness of the mother’s mental health difficulties during each of the post-natal period’s that she provided assistance; albeit that the mother’s mental health difficulties were more significant after the birth of Y, resulting in Ms O arranging for the mother to voluntarily attend G Health Service with Y for treatment.
I am satisfied from Ms O’s evidence that the mother has significant insight and that she at all times has sought to access and receive the appropriate treatment and services.
Ms M’s therapeutic relationship with the mother commenced in 2020 after the birth of Y, and has continued to the present day. In addition, it is clear that it is intended that Ms M will continue to provide ongoing psychological support to the mother for so long as is necessary, regardless of whether the mother resides in South Australia or New South Wales.
From the evidence of Ms M I am satisfied and I accept her opinion and/or observations that:
(a)The mother’s post-partum mental health difficulties have resolved (which included suicidal ideation).
(b)That the mother’s present psychological support is now focussed on her significant presenting symptoms of anxiety, depression, stress, low mood and disturbed sleep patterns, stemming in significant part from these proceedings, the parties’ separation, the circumstances the mother now finds herself in, and the tyranny of distance between the mother and members of the maternal family.
(c)The current focus of Ms M’s therapeutic relationship with the mother is to provide her with support and coping strategies.
(d)One of the coping strategies the mother has adopted in relation to how she manages her relationship with the father and the associated symptoms she suffers is to minimise the contact that she has with him to reduce her levels of stress and anxiety associated with those interactions.
(e)While she considers that the mother’s capacity to continue to appropriately parent the children will exist wherever the mother resides with the children, she considers that if the mother was permitted to relocate to live closer to her family and support networks, the mother’s stressors would be diminished and her presenting symptoms would be significantly reduced.
IS THE PRESUMPTION OF EQUAL SHARED PARENTAL RESPONSIBILITY REBUTTED?
A significant matter in determining whether the presumption of equal shared parental responsibility applies, or is to be rebutted relates to matters pertaining to family violence.
The father’s counsel made it clear in his closing submissions that the incident in late 2020 is to be seen as situational episode, rather than anything more significant so far as family violence considerations are concerned. Even if that were not the case however, inherent in the father’s position that the mother should retain primary care of the children, is that he does not consider there to be any ongoing risks factors pertaining to the mother’s care of the children that arise from this incident.
These issues however are not the only matters that are relevant when considering the question of whether these parents are able to effectively share parental responsibility for the children.
While I am satisfied that so far as day to day parenting issues, these parents are able to civilly and effectively communicate, in light of all of the issues that I have discussed in these reasons, and particularly the very poor attitude that the father and the paternal family (whom he turns to for support and guidance) have towards the mother, I have little confidence that the parents will be able to effectively communicate and agree issues of significance in the lives of these children into the future, including but not limited to educational choices and health and medical treatment.
In addition, and because I am satisfied that the mother’s relocation of the children to live in City B is to be supported, the capacity for these parents to share parental responsibility is further diminished.
It is for all of these reasons that I consider it appropriate that the mother should have sole parental responsibility, but that it be tempered by a requirement that she consult the father and consider his views, as she has proposed to do.
BEST INTEREST CONSIDERATIONS
I have already considered several of the considerations set out in s 60CC of the Act when discussing the various allegations that have been made by the parties. I do not propose to repeat those matters in the discussion that follows. Nor do I propose to discuss those considerations that are irrelevant and or do not impact upon my considerations.
The Primary Considerations
The benefit to the child of having a meaningful relationship with both of the child’s parents; and
the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
As I have already identified, there are no family violence or risk factors that require consideration and/or which act as a bar to the children having and maintaining a meaningful relationship with both of their parents.
It is clear from Ms P’s evidence that the children gain significant benefit from the relationships that they have with each of their parents, and there is no reason for the Court to have any concerns about the quality of those relationships.
The Additional Considerations
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
The children are too young to express any views about their living arrangements and/or for those views to be given any weight.
The nature of the relationship of the child with each of the child’s parents other persons (including any grandparent or other relative of the child)
I have already discussed the children’s secure positive and close relationship with each of the parents. I have had regard to Ms P’s opinion in that regard as expressed in her report and additionally in her oral evidence.
In addition, I am satisfied that the children have secure and close relationships with extended members of the maternal and paternal family; albeit that the maternal family were not involved in the family assessment process and additionally I suspect that by virtue of the fact that the children have lived more proximate to the paternal family, the frequency of interactions with the paternal family and their role in the children’s lives has been more present.
On any view, any relocation of the children to City B has a risk of altering the nature of relationship that the children have with the father and the members of the paternal family, as there is the potential for the frequency of scheduled time spending to be reduced, together with the inability for impromptu time spending.
The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
I am mindful of the evidence of Ms P that there is less risk of a deleterious impact of any relocation of the children on their relationship with the father (and presumably members of the paternal family) if the relocation is delayed to enable Y in particular to mature and develop his relationship and attachment with the father.
To her credit, the mother has been receptive to the views expressed by Ms P in her first report. During her oral evidence the mother indicated that she found the professional opinion and expertise of Ms P helpful in navigating her thinking and proposals around the parenting arrangements for the children.
Significantly, the mother has willingly agreed to increases in the father’s time spending with the children as recommended by Ms P. That these increases have voluntarily occurred in the context of such acrimonious litigation, and particularly despite the evidence and attitude of the paternal family which I have already discussed, is to the mother’s credit. These matters supports my conclusion that not only has the mother exhibited the strength of her capacity to support the children’s relationship with the father whether she remain in South Australia or New South Wales, but additionally that she has not sought to oppose the father’s time spending as a means of bolstering her position and desired outcome in these proceedings. This suggests to me that the mother has the ability to prioritise the children’s needs.
In addition, I am mindful and I accept the submissions made on behalf of the mother, that the mother’s proposals for the father’s time spending with the children upon any relocation to City B (Exhibit M14) when considered in conjunction with the father’s work arrangements and his proposals for time spending (Exhibit F15) aggregate such that if the father takes up the time spending proffered by the mother, the cumulative time spending between the father and the children is not significantly reduced when compared to the mother and the children remaining to live in South Australia.
All of these matters suggest that the potential diminishment of the children’s relationship with the father and members of the paternal family upon any relocation to City B is likely to be ameliorated by the mother’s willingness to continue to support the children’s relationship with the father.
In addition, the mother to her credit has proposed delaying her relocation to City B until early 2024, to ensure that the children have the opportunity to cement their relationships and attachments with principally the father, but additionally members of the paternal family. This again evidences the mother’s willingness to prioritise the children’s needs and interests.
I am mindful that Ms P considered there was a balancing act to be met when considering the timing of any relocation to New South Wales, between any disruption to X’s schooling and the development of the children’s attachment with the father, in particular Y’s.
I am equally conscious that on balance Ms P’s opinion was that the balance favoured delaying any relocation for another year to that proposed by the mother.
I however have come to a different conclusion, and I prefer the approach proposed by the mother.
I have come to this conclusion in circumstances where I have the benefit of the totality of the evidence before me, including all of those matters that I have already discussed in these reasons. In particular, I do not consider that the only factors that weigh upon the decision of the timing of any relocation are those considered by Ms P. Significantly, while the mother’s mental health symptoms caused by her post-natal depression have largely resolved, I remain concerned that the mother has numerous ongoing mental health symptoms as identified by Ms M which impact her functioning, requiring ongoing management, which Ms M is of the view will significantly diminish if the mother relocates to live closer to her maternal family support networks.
In addition, I have significant concerns emanating from the evidence of the paternal family, and the toxicity that they have towards the mother, that the mother’s time in South Australia and the anxiety and stressors that the father and the paternal family create for the mother pending relocation will not improve, despite the resolution of this litigation.
It is for these reasons that on balance, and accepting that it is finely balanced, the mother’s relocation should occur in early 2024 as she has proposed.
The extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long‑term issues in relation to the child, and to spend time with the child, and to communicate with the child
I am mindful that the parties agree that the mother has been and shall continue to be the primary carer of these children.
Accordingly, it is only necessary that I consider the father’s approach to his parenting obligations and willingness to participate in the lives of the children.
I am satisfied that the evidence supports that the father has acted appropriately in taking up the opportunity to spend time with the children and to participate in their lives to date.
I have some concerns that during his oral evidence the father expressed some reluctance to travel to City B to take up time spending with the children in City B.
The father however is encouraged to give such opportunity for time spending favourable consideration. This is not only because it affords the father with the opportunity for an additional two periods of time spending each school term, but additionally because it allows the father to involve himself in the children’s day-to-day lives, their schooling, their friendships and extra-curricular activities.
The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
I am satisfied that there are no concerns as to the ability, and importantly the willingness of the father to continue to support the children financially through the payment of child support.
The father remains employed and there are no complaints from the mother that he has shirked his child support obligations.
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
Any relocation of the children to City B will create a financial impost that would not otherwise exist if the children were to remain living proximate to the father.
I am however satisfied that the mother, with the assistance of at minimum the maternal grandmother, but also likely the maternal grandfather will bear the brunt of that financial impost, given her proposal that she meet the costs of the children’s travel to and from South Australia; whether it be airplane or travel by car.
While I accept that if the father takes up the opportunity to travel to City B for time spending with the children, he will have costs associated with doing so (both travel and accommodation), I am satisfied that he has the capacity to meet those costs given his evidence that he is earning approximately $120,000 per annum. Moreover, I am satisfied from the unchallenged evidence of the maternal grandmother in particular, that with planning, the costs of air travel can be significantly reduced if flights are booked in advance.
The parents, and in particular the children are in the fortunate position where they are able (with the assistance at the mother’s end from the maternal grandmother) to meet the costs of travel in order to facilitate the children spending regular time with the father.
The capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
I am satisfied, particularly in light of Ms P’s evidence there are no concerns regarding the ability of each of the parents to meet the needs of the children in every way.
I am equally satisfied, particularly as neither party makes complaint, that there are no concerns that the children’s grandparents on both sides are equally able to meet the needs of the children.
CONCLUSION
It is for all of these reasons, as identified at the outset, that I am satisfied not only that the children should continue to primarily live with the mother (which is not the subject of dispute), but that in addition, that the mother be permitted to relocate the children to live with her in City B, New South Wales.
So far as parental responsibility is concerned, I have already identified that I consider it appropriate that the mother should have sole parental responsibility. To the mother’s credit, she has proposed to keep the father informed and that she consult him in her exercise of parental responsibility. Given the mother’s exhibited ability to facilitate the children’s relationship with the father and the paternal grandparents despite the acrimony that exists, I am satisfied that the mother’s position is genuine and that she will meaningfully consider the father’s views when exercising parental responsibility.
I accordingly in all of the circumstances propose to make those orders promoted by the mother as found at the commencement of these reasons.
I certify that the preceding one hundred and fifty (150) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 05 May 2023
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