Halifax and Temple

FEDERAL CIRCUIT COURT OF AUSTRALIA

HALIFAX & TEMPLE

[2014] FCCA 1808

Catchwords:
FAMILY LAW – Parenting – parental responsibility – relocation – where the parties both have a history of drug abuse – where they currently live about 2500 kilometres apart – whether it is possible for the child to maintain a meaningful relationship with the father if the mother and child remain living so far from the father.

Legislation:

Family Law Act 1975, ss.61DAA, 4AB, 60B, 62B, 60CA, 60CC, 61DA

Mazorski v Albright (2008) 37 FLR 518
Tait & Dinsmore [2007] FamCA 1383
Godfrey & Sanders [2007] FamCA 102
Kirke & Mason (No.2) [2009] FMCAfam 1346
A & A [2000] FamCA 751
Goode & Goode [2006] FamCA 1346

Applicant:

MS HALIFAX

Respondent:

MR TEMPLE

File Number:

DGC 1161 of 2013

Judgment of:

Judge Small

Hearing dates:

31 March – 2 April 2014

Date of Last Submission:

2 April 2014

Delivered at:

Melbourne

Delivered on:

15 August 2014

REPRESENTATION

Counsel for the Applicant:

Ms Campbell

Solicitors for the Applicant:

Ms Campbell was instructed by the Family Law Assistance Program

Counsel for the Respondent:

Ms Wilson

Solicitors for the Respondent:

Rennick Lawyers

ORDERS

All previous orders in relation to the child [X] born [in] 2012 (“the child”) are discharged.
The parties shall have equal shared parental responsibility for the child.
The child shall live with the mother.
The mother is permitted to remain living in Melbourne with the child.
The child shall spend time and communicate with the father by agreement and failing agreement as follows:
A. Until the child goes to school:
(a)On the last weekend of each month from 10:00 am to 5:00 p.m. on Saturday and Sunday for a period of four months;
(b)Thereafter on the last weekend of each month from 10:00 a.m.      on Saturday until 10:00 a.m. on Sunday for a period of four      months;
(c)Thereafter on the last weekend of each month from 10:00 a.m.      on Saturday until 5:00 p.m. on Sunday;
(d)Once the child turns four for one week in the long summer holiday by agreement and failing agreement from 10:00 a.m. on     the first Saturday in January 2017 to 10:00 a.m. on the second       Saturday;
(e)By telephone, Facetime or other electronic means by agreement between the parties and failing agreement:
(i)between 6:00 p.m. and 6:30 p.m. each Wednesday and Saturday;
(ii)at 8:00 a.m. on the child’s birthday and the father’s birthday each year should they not fall on a day when the child is spending time with the father pursuant to these orders;
(iii)at 8:00 a.m. on Christmas Day each year should it not fall on a day when the child is spending time with the father pursuant to these orders;
with the father to make the call and the mother to ensure that the child is available to receive it.
(f)At such other times and places as may be agreed between the    parties from time to time.
B. Once the child begins school:
(a)During Victorian school terms on the last weekend of each month from 10:00 a.m. on Saturday until 5:00 p.m. on Sunday;
(b)For half the Victorian school term holidays by agreement and failing agreement from 10:00 a.m. on the first Saturday until 6:00 pm on the second Saturday;
(c)For two weeks in the Victorian long summer holiday by agreement and failing agreement:
(i)From 12 noon on the first Sunday to 12 noon on the third Sunday in odd numbered years;
(ii)From 12 noon on the third Friday to 6:00 pm on the fifth Friday in even numbered years.
(d)By telephone, Facetime or other electronic means by agreement between the parties and failing agreement:
(i)between 6:00 p.m. and 6:30 p.m. each Wednesday and Saturday;
(ii)between 8:00 a.m. and 8:30 a.m. on the child’s birthday, the father’s birthday, Fathers’ Day and Christmas Day each year should they not fall on a day when the child is spending time with the father pursuant to these orders;
with the father to make the call and the mother to ensure that the child is available to receive it.
(e)At such other times and places as may be agreed between the parties from time to time.
For the purposes of the monthly time spent, the mother shall travel to Townsville with the child on the first occasion after the date of these orders and on each alternate occasion thereafter, and the father shall travel to Melbourne on the second occasion after the date of these orders and on each alternate occasion thereafter.
When the mother travels to Townsville she shall pay for all travel expenses for her and the child, and when the father travels to Melbourne he shall pay for his travel expenses.
The time specified in paragraph 5B(a) hereof shall suspend for the period of the Victorian school holidays each year.
The parties shall keep each other informed of their current address and contact details at all times and each shall notify the other within seven days of any change to those details.
Each party shall notify the other as soon as practicable should the child suffer any illness or injury requiring the attention of a registered medical practitioner.
Neither party shall be under the influence of alcohol (ie have a blood-alcohol level of more than 0.05%) while the child is in his or her care.
For 24 hours immediately prior to the commencement of any period of time spent (including any period during which the child is residing with him or her), and during all periods of time spent (including all periods during which the child is residing with him or her), the parties are restrained by injunction from ingesting, consuming or using, or otherwise being under the influence of, any legal or illegal drug or substance, save and except for:
(a)any legal medication prescribed for him or her by a registered medical practitioner, and taken or used by him or her strictly in accordance with such prescription; and
(b)any over-the-counter legal medication or pharmaceutical substance ordinarily sold in major supermarkets, and taken or used by him or her strictly in accordance with the directions appearing on such medication or pharmaceutical substance.
For a period of twelve months from the date of these orders, within 36 hours of a request from the father in writing, including by text message or email or other electronic communication, the mother shall undertake supervised drug screen testing (“the Testing”) at a registered pathology facility and shall provide the results of that screen to the father within 24 hours of receipt, and the father shall not make such a request more than once in any calendar month.
The father shall have liberty to apply if the results of any of the mother’s drug screens show positive results for illicit substances and the mother does not provide a letter from her general practitioner that fully explains the presence of illicit substances in her sample.
Both parties are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other to or in the presence or hearing of the child, and from permitting any other person so to do.
The father shall provide to the mother a photograph of himself, such photograph to be renewed every six months, and the mother shall ensure that the photograph of the father is placed in the child’s bedroom where the child can see it from his bed, and shall encourage the child to understand that the photograph is of his father.
The father shall have leave to send to the child cards, letters, photographs and gifts from time to time on occasions other than those described in paragraphs 5A(e)(ii) and (iii) and B(d)(ii), but no more than once every two months.
Save for the situation described in paragraph 14 hereof, the parties shall attend family dispute resolution before issuing any further proceedings in relation to the child’s care arrangements.
All extant Applications are otherwise dismissed.

AND THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.

IT IS NOTED that publication of this judgment under the pseudonym Halifax & Temple is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 1161 of 2013

MS HALIFAX

Applicant

And

MR TEMPLE

Respondent

REASONS FOR JUDGMENT

Introduction

[X] (“[X]” or “the child”) was born on [omitted] 2012. He lives in Melbourne with his mother, Ms Halifax (“Ms Halifax” or “the mother”).
[X]’s father, Mr Temple (“Mr Temple” or “the father”), lives in Townsville. The parties moved to Townsville from Melbourne in late 2011 and separated in March 2013 while Ms Halifax was in Melbourne on holiday with [X].
It is agreed between the parties that [X] should remain in the primary care of his mother, at least at this time in his young life.
Mr Temple seeks orders that Ms Halifax return to Townsville to live with [X] so that [X] can have a close and meaningful relationship with his father.
Mr Temple has re-partnered in Townsville with a woman who has children who are the subject of court orders providing for them to spend regular time with their father, an [occupation omitted] who is [employed] in Townsville. In those circumstances, Mr Temple says it is not practicable for him to move to Melbourne.
Ms Halifax wants to stay in Melbourne where she has family who can provide practical and emotional support to her.
It is common ground that both parties have used illicit drugs in the past, particularly heroin. Ms Halifax’s history in this regard is somewhat more extensive than Mr Temple’s. Mr Temple is concerned that Ms Halifax has reverted to using drugs. Ms Halifax denies that she has done so.
There are also mutual allegations of family violence having occurred during the relationship.
The issues in this case, as agreed between the bar and the bench on the first day of trial, are:
A.Are the allegations of family violence serious enough that the presumption of shared parental responsibility contained in s.61DAA of the Family Law Act 1975 (“the Act”) does not apply?
B.Is the presumption rebutted by evidence that it would not be in [X]’s best interests for his parents to share parental responsibility for him?
C.What has each of the parties done to facilitate the relationship between [X] and Mr Temple?
D.
Is it reasonably practicable for [X] to have a meaningful relationship with Mr Temple if he lives in Melbourne and

Mr Temple in Townsville?
E.What level of support does Ms Halifax have in Melbourne and would her parenting capacity suffer if she were to move to Townsville away from that support?
F.What are the financial circumstances of the parties and is it reasonably practicable for the recommendations of the family report writer to be effected?
G.Is Ms Halifax’s evidence in relation to her drug use credible?

Background

The parties’ relationship began in late 2010 or early 2011 and they began living together in May 2012. They separated in March 2013.
There is one child of the relationship, that being [X].
The parties lived in Melbourne until late 2011 when Ms Halifax moved to Townsville to live with her sister. Mr Temple followed her to Townsville a few months later and they began living together in Townsville in about May 2012.
Ms Halifax says that there were several periods of separation in the relationship because of Mr Temple’s infidelity and family violence perpetrated by him. Mr Temple says that any periods of separation were the result of Ms Halifax using drugs.
The relationship ended when Ms Halifax came to Melbourne with [X] for what was initially intended to be a holiday in March 2013 and did not return.
Mr Temple worked throughout the relationship (and continues to work) as a [omitted], and Ms Halifax worked in the initial stages of the relationship but ceased work in late 2011. She is not currently working and looks after [X] full time while undertaking a [qualification omitted]. She hopes to secure an apprenticeship once her [omitted] course is completed.

Procedural History

On 6 May 2013 Ms Halifax filed an Initiating Application seeking orders that [X] live with her and that she have sole parental responsibility for him. She also filed a Notice of Child Abuse, Family Violence, or Risk of Family Violence.
On 19 July 2013 Mr Temple filed a Response seeking orders that [X] be immediately returned to live in Townsville with him and the parties have equal shared parental responsibilities.
Interim parenting orders were made on 6 August 2013 providing for [X] to spend time with Mr Temple on several occasions in August 2013 and the matter was then adjourned to an interim hearing on 6 September 2013.
On 6 September 2013 Judge Curtain suspended all previous parenting orders and implemented a somewhat looser arrangement for [X] to spend time with his father by agreement. A restriction on the parties consuming illicit drugs was ordered and the parties were to undergo supervised drug screens.
At that hearing the parties were also referred to s.11F counselling with a Family Consultant and the matter was to be returned to me in the Duty List in November 2013.
On 11 November 2013 the parties returned before me after participating in a child dispute conference with Family Consultant

Mr M (“Mr M”) on 29 October 2014. They having been unable to achieve any agreement as to where [X] should live, the matter was set down for trial with trial directions and an Order for a Family Report.
The Family Report prepared by Ms S was released on 17 February 2014.
In her Outline of Case Document prepared for trial Ms Halifax sought orders that she have sole parental responsibility for [X], that he live with her and spend time with Mr Temple by agreement between the parties.
Mr Temple’s Outline of Case Document did not detail the orders he sought but a Further Response filed a week earlier on 19 March 2014 sought orders for the parties to have equal shared parental responsibility for [X], that he live with Mr Temple and that he spend time and communicate with Ms Halifax once per month in each of Townsville and Melbourne and on special occasions. The orders sought to oblige Ms Halifax to spend time with [X] at least every two months. That Response also sought various other orders in relation to the parties’ conduct.
However, at trial, the father conceded that [X] should live with

Ms Halifax, at least while he is of tender years, and the issue became whether he should do so in Townsville or in Melbourne.
The trial was listed for 31 March 2014 but was not reached until 1 April 2014. It ran for three days after which I reserved my decision on 3 April 2014 with the parties having come to agreement about arrangements for [X] to spend time with Mr Temple over the ensuing few months.
Ms Halifax’s presentation on Day 1 of the trial was remarkable. She appeared agitated and distressed, she scratched her face and body almost continually, she appeared unable to keep still, her speech was slightly incoherent, and she appeared not to be in control of her mouth and facial movements.
She had brought a non-specific medical certificate to court and said that she had not slept the previous night. However, although she began to give evidence, she had to leave the witness box in distress during her evidence-in-chief while her own counsel was asking what seemed to me to be fairly innocuous questions. In those circumstances the trial was adjourned to the next day.
Through his counsel, Mr Temple referred to Ms Halifax’s presentation and sought an order that because of her clear distress (which he believed was the result of her having taken some illicit substance) [X] should stay with the maternal grandparents that night so that

Ms Halifax could compose herself and have a good night’s sleep. That course of action was agreed although no order was made.
On the following day, Ms Halifax’s presentation was more normal. She was still a little teary when asked questions about the possibility of being ordered to live in Townsville, but her speech was much more coherent and she answered questions much more clearly. She still appeared somewhat restless and continued to make mouth/facial movements which seemed to be more under her control. She did not scratch so much.
On the third day of trial, Ms Halifax was still making what appeared to be unconscious mouth movements but was significantly calmer and less restless.
There is no evidence before me as to the specific cause of her distress but her presentation appeared to be more agitated than the entirely understandable nervousness litigants often display during trial. While I cannot make any finding of fact in relation to that, it did not give me great confidence that the evidence she gave of no longer using illicit substances was entirely candid.
Mr Temple’s presentation at trial was entirely non-remarkable.

Issues and Evidence

A. Are the allegations of family violence serious enough that the presumption of shared parental responsibility contained in s.61DAA of the Family Law 1975 (“the Act”) does not apply?

Both parties allege family violence against the other.
Ms Halifax’s evidence is that Mr Temple was physically and verbally abusive towards her and that that abuse intensified over the final 12 months of the relationship.
She deposes to incidents where Mr Temple attempted to strangle her after breaking a door off its hinges in order to do so, where he pushed her through a hedge during an argument, and grabbed her arms during an argument such that she suffered significant bruising[1].
[1] Affidavit of the mother sworn 6 May 2013.
She does not allege that Mr Temple was physically abusive towards [X].
She further deposes that when she returned to Townsville after separation in order to collect some belongings, Mr Temple told her she could take [X] back to Melbourne if she agreed to have sex with him.[2]
[2] Affidavit of the mother sworn 5 August 2013.
At trial, Ms Halifax expanded on those incidents.
In relation to her allegation that Mr Temple tried to strangle her,

Ms Halifax said that during an argument with Mr Temple in the first week of [X]’s life she had retreated to the toilet and closed the door. She says the door “just came off the hinges” but was unable to expand on how that it happened. She said that while the parties were arguing Mr Temple had put his hands around her neck and shoved her against the wall for about five seconds. She said she did not remember how the argument had ended.
Ms Halifax tendered colour photographs on her counsel’s iPad, those photographs having previously been attached in black and white to her affidavit material. Those photographs showed her with a significant red mark around her throat and some further red marking on the upper portion of her chest. They also showed a toilet cubicle with the door off its hinges and resting against the wall.
Ms Halifax’s evidence was that [X], who was less than a week old, was in the house at the time but that he was in another room. She said that she had not called the police as she believed that the relationship would have ended there and then had she done so. She had only days before given birth to [X] and wanted to make the relationship work.
When it was put to her in cross-examination that the bruises in the photograph were not the result of an assault by Mr Temple in the week that [X] was born she said: “That’s fine, if that’s what you want to think but it’s incorrect.” I note that no alternative explanation for the bruising was put to her.
While she conceded that there was no date on the photographs presented to the Court she said she could investigate whether the original photograph had a date imprinted on it. That line of questioning went no further.

She gave evidence in relation to what was referred to as “the hedge incident” in mid-December 2011 where, she says, she was pushed through a hedge onto her back during an argument with Mr Temple while she was pregnant.
She denied having any weapon in her hand at the time and also that she attempted to punch Mr Temple. She said that while Mr Temple’s friend [name omitted] was present he did not intervene in the altercation. She said that a group of her friends had then attended at Mr Temple’s home and removed her from the scene.
Ms Halifax denies that she was affected by drugs on that day although she conceded that she was undergoing a heroin withdrawal program under the supervision of a drug counsellor at the time.
Ms Halifax confirmed a separate incident reported to the family report writer but not contained in affidavit material, in which she says

Mr Temple assaulted her and attempted to strangle her while the then two month old [X] was in her arms.
She further confirmed under cross-examination that conflict and arguments were the norm in the parties’ relationship. She said arguments were very frequent and that “there was more arguing than getting along”.
In relation to an incident that occurred at Mr Temple’s workplace in Townsville on 19 March 2013 and was described by Mr Temple in his affidavit material, Ms Halifax said that while her voice had been raised she had not been screaming at him. She said that she was angry that

Mr Temple had taken [X]’s piggybank which had been bought for him at his birth.
She further denied under cross-examination that she had attempted to seduce Mr Temple a few nights later while admitting that she had attempted to persuade him to sign a document stating that he agreed to [X] living in Melbourne with her. In fact it is her evidence that

Mr Temple said that he would allow her to return to Melbourne permanently with [X] if she had sex with him.
Mr Temple’s evidence about these incidents is very different.
In relation to the incident where Ms Halifax alleges that he assaulted her after ripping the hinges of the toilet door Mr Temple denies having broken the door off its hinges in order to assault Ms Halifax. He says he has no idea how Ms Halifax sustained bruises on that day but that it was not as a result of any assault by him.
He does acknowledge however that the parties “may have had an argument on that day as we were arguing a lot around that time”.[3]
[3] Affidavit of Mr Temple sworn 19 March 2013.
In oral evidence he said the following:
Well, I can see by the photos that Ms Halifax has got marks and the door’s off the hinges. Me and Ms Halifax used to argue a lot. Our relationship was real toxic but it wasn’t violent, it wasn’t aggressive, it wasn’t physical. It was all verbal. I’m unsure of how she would have had any markings on her.
He deposes to an incident in mid-December 2011 when Ms Halifax attacked him with a tyre iron before being subdued by a friend of his. She then dropped the tyre iron and attempted to punch him with her fist. In his Affidavit evidence he said that his friend grabbed her under her arms and threw her to the ground to prevent her from assaulting him further.
This is the incident where Ms Halifax says she was pushed through a hedge during an argument with Mr Temple.
In oral evidence Mr Temple said that after she had dropped the tyre iron and his friend had loosened his grip on her she had attacked him (Mr Temple) again and that while he was grappling with her to try to prevent her from hurting him he moved to the side and Ms Halifax fell over a 15 cm hedge which was beside them.
He says that a carload of Ms Halifax’s friends then arrived at his home and he and his friend went inside while the people in the car took

Ms Halifax away.
In relation to the incident that occurred at his workplace on 19 March 2013, he says in affidavit material that Ms Halifax had attended at his workplace to collect a car which she had driven while in Townsville and which Mr Temple had bought. In his oral evidence he said that she was determined to retrieve a piggybank which had quite a substantial amount of money in it and that she was refusing to leave unless she had retrieved it.
Mr Temple says that Ms Halifax was angry and abusive, punching him in the face and calling him a “worthless stupid black cunt”. He concedes that he had called her a “junkie” but denies any violence on that day. He said in oral evidence that Ms Halifax “took a swing at me and punched me” before leaving the premises.
He says that far from offering to agree to allow [X] to move to Melbourne on a permanent basis if Ms Halifax agreed to have sex with him, it was Ms Halifax who attempted to seduce him into signing papers of agreement to [X] moving. He says that when he refused to sign the papers after they had had a shower together, Ms Halifax again called him a “stupid black cunt” before leaving. I note that in cross-examination Ms Halifax did not deny that the parties had showered together on that evening.
He deposes further that on 23 March 2013, Ms Halifax again attended at his home uninvited and took more of [X]’s belongings. He says that she again called him a “stupid black cunt” before leaving.
I note that Ms Halifax was not questioned at trial about whether she had used racial epithets in any arguments with Mr Temple and the issue was not raised with Mr Temple either.
Overall, I find that the relationship between the parties was both physically and verbally abusive and that both are more likely than not to have instigated and taken part in violent and abusive incidents which come under the definition of family violence found in s.4AB(a), (d) and (e) of the Act. I find that at least some of those incidents are likely to have taken place in [X]’s presence or hearing.
Section 61DAA of the Act states that when making parenting orders, the Court must apply a presumption that it is in a child’s best interests for his/her parents to have equal shared parental responsibility for him/her.
Mr Temple asks me to apply the presumption and make an order for equal shared parental responsibility.
Ms Halifax seeks an order for sole parental responsibility to rest with her.
Pursuant to s.61DA(2), the presumption does not apply if the Court has reasonable grounds to believe that a parent has engaged in abuse of a child or in family violence.
Having found that the relationship between these parents did involve multiple incidents of family violence, I find that the presumption of equal shared parental responsibility does not apply.
However, while I have found that both parents have engaged in family violence during the relationship, there is no evidence before the Court that that violence has continued after separation.
Indeed there is some evidence that at times when Mr Temple has visited Melbourne the parties have been able to arrange for him to spend time with [X] satisfactorily, albeit with some minor verbal conflict between the parties at changeover.
In those circumstances I will make an order for parental responsibility for [X] to be equally shared between his parents.

B. Is the presumption rebutted by evidence that it would not be in [X]’s best interests for his parents to share parental responsibility for him?

Having decided that the presumption does not apply in this case, it is not strictly necessary for me to decide whether it is rebutted under s.61DA(4) as not being in [X]’s best interests. However, I state here and do believe that an order for equal shared responsibility is in [X]’s best interests for the reasons stated above and in paragraphs 173 to 233 of these Reasons.
The answer to this question is therefore “no”.

C. What has each of the parties done to facilitate the relationship between [X] and Mr Temple?

Ms Halifax’s evidence is that while she is and has always been [X]’s primary carer, she wishes for Mr Temple to be “part of ([X]’s) life”.
She concedes that when [X] was born Mr Temple was a “hands-on Dad” to [X] and that he also cooked dinner on most nights.
In response to allegations that she had not attempted to facilitate a relationship between [X] and him since she returned to Melbourne

Ms Halifax said the following at trial:
I’ve been continually encouraging a relationship between the two of them since the start. I realise the interstate is a big problem (sic), but when Mr Temple comes down, I have always tried to make it as comfortable as possible for [X] to warm up to

Mr Temple.
She went on to say:
I’ve been trying every single time he comes down if he wants to see him. One issue has been that Mr Temple doesn’t want me anywhere there. He basically wants him dropped and gone. He just doesn’t understand that [X] is not at that stage where he can just be happy with it, and he was really distressed that time that Mr Temple had taken him.
Ms Halifax said that at first [X] had been happy to go with Mr Temple because he was happy to go with anyone, but that he had reached a stage of becoming quite clingy with Ms Halifax and that Mr Temple did not understand that there had been a change. She said in evidence that on one occasion she had said to Mr Temple: “Well just take him” and that Mr Temple had replied: “If he doesn’t remember me, then why bother?”
She conceded that she had told Mr Temple that she would take [X] to Townsville to celebrate his first birthday in [omitted] 2013 but that she had changed her mind about a week and a half before the date and decided that she would have his birthday celebrations in Melbourne with her family.
It was her evidence that she had offered to pay for an airfare for

Mr Temple to come to Melbourne to be part of [X]’s first birthday celebrations but that Mr Temple had refused saying “it’s not the money, it’s the principle.” In any event Mr Temple did not come to Melbourne for [X]’s first birthday celebrations.
Nor, according to Ms Halifax’s evidence, did he send [X] a birthday present.
She further conceded that there were times when she had not responded to text messages from Mr Temple in relation to [X]’s welfare although she said that those times were few.
It was her evidence that she had offered Mr Temple FaceTime contact with [X], but that Mr Temple had declined the offer saying that it was not the same as a spending time with him in person.
She said that Mr Temple initially took little interest in [X] after she moved to Melbourne. However she conceded under cross-examination that she had received a letter from Legal Aid Queensland dated 12 April 2013, just over two weeks after she had left Townsville, informing her that Mr Temple did not consent to [X]’s permanent removal to Melbourne and saying that if she did not return to Townsville with [X] within 72 hours of receiving the letter Mr Temple may initiate Court proceedings to recover him.
Ms Halifax said in evidence that she believed that Mr Temple had taken that action in an attempt to try to get her to return to the relationship as much as it was an attempt to have [X] returned to Townsville. In response to questioning on that issue she said:
With [X] as well but I think that’s the main thing because after he was aware that I was down here there was a long patch of no contact from him whatsoever. I was trying – messaging him. Like I said before, trying to get him to FaceTime [X]. There was no interest in [X] for a very long time. And then he has picked up this sudden interest after the last hearing. And then that’s when I’ve been getting messages concerning – concerned on what [X] is doing, how he has been, all that sort of thing. Before that there was nothing.
Ms Halifax repeated throughout her oral evidence that until the hearing of the matter in November 2013, Mr Temple had shown little interest in [X]’s welfare, that he had not enquired about his health, and that apart from filing documents in these proceedings he had made few attempts to be in contact about him.
She conceded that from November 2013 Mr Temple had shown much more interest in [X], sending texts enquiring about his welfare and generally seeking to be much more connected with him.
Later, when it was put to her that she had been exaggerating incidents of violence and Mr Temple’s anger in order to prevent him from seeing [X] she said:
I’ve encouraged for him to see [X]. I don’t feel that he’s angry with [X]. Like I said from this whole thing, the first affidavit, all the way through I encouraged Mr Temple to be an active part in [X]’s life, because I actually loved [X] enough to put aside my massive differences with Mr Temple. I don’t want him to miss out on having the father in his life, and I said it the whole way through.
She said further:
I have said, and everyone here has heard it, that Mr Temple was a hands-on Dad and when he’s with [X] he’s been good. Besides the few incidents, like where he was pushing me with [X] in my arms, every other time he has been amazing, he has been a good Dad, but when I left I was very shocked of the lack of contact. I was shocked that he refused to do FaceTime. I was shocked at – because I knew that, regardless of the fact that he was a very – not suited to me and not a good partner and – well, I felt that he was a good Dad, and it came into question after months of me trying to contact him and he wanted no part of it.
And further:
I haven’t changed my theory from the start. I don’t think [X] should miss out on having his dad in his life, otherwise why would I agree to flying [X] up there? Why would I be in communication? For the last 12 months why would I – even contacted him or respond to anything, if I didn’t want him to be part of his life? I sure as hell would have blocked him before now.
One can only admire the candour of that last statement.
Further evidence was given that the parties had agreed in October 2013 that Ms Halifax would fly to Townsville with [X] so that he could spend time with his father if Mr Temple paid for the tickets. Mr Temple was unable to do so immediately as he needed to save up for those tickets and Ms Halifax was concerned that the weather would be too severe by the time he was able to do so. In any event, while agreement was reached on the principle, Ms Halifax did not travel to Townsville with [X] at that time.
Much was made at trial about what happened after the interviews with the family report writer on 17 January 2014. However after rereading the transcript and the affidavit material it appears to me that the parties had some disagreement about the detail of the time Mr Temple should spend with [X] at that time, but that that disagreement was resolved on the spot in a satisfactory manner.
As has already been stated, [X] spent the first night of trial at the home of the maternal grandmother where Mr Temple visited him for several hours. That visit was reported to have gone well, and Ms Halifax acknowledged upon questioning from the bench that that fact augurs well for a future relationship between [X] and Mr Temple.
Upon further questioning Ms Halifax said that she would be prepared to have a photograph of Mr Temple in [X]’s bedroom and that she would encourage him to say “Good night” to his father via the photograph.
Ms Halifax also said that she could not see any barrier to a close relationship being developed between [X] and his father apart from the physical distance between them.
Mr Temple denies that he is or has ever been an uninterested father.
It was his evidence at trial that he had sought legal advice in relation to this matter almost immediately after Ms Halifax had left Townsville with [X] in March 2013. He said that he had had a one hour appointment with a Legal Aid solicitor who had advised him of his options and made a further appointment for him a week or so later. It was at that second appointment on 12 April 2013 that the letter to

Ms Halifax was drafted.
He said that after the letter was sent he obtained legal aid funding to make an Application to this Court through its Townsville registry, but that Ms Halifax’s application was filed in Melbourne before that could be done. Legal Aid Queensland then withdrew his funding saying that he would have to make a further application for funding through Victoria Legal Aid. It is his evidence that Victoria Legal Aid refused his funding application, and that he was then self-represented until obtaining the services of his current lawyers about a month before trial.
In relation to his wish to have an ongoing relationship with [X], he gave the following evidence in chief at trial:
That’s the whole reason that I’ve been coming to Melbourne, and trying to basically just see him as much as I can because I want to be a good dad to him. I don’t just want to be like a fill-in Dad who isn’t there to go take him to sports and look after him, have him know that you’re there in case they need a shoulder to cry on or someone just for support. Like I just want to be there all the time and I want to be an active part of his life.
His further evidence was that he would love to come to Melbourne to visit [X] more often but that it was financially impossible for him to do so, especially as those visits involved him taking some time off work.
In relation to [X]’s first birthday Mr Temple denies that Ms Halifax ever offered to pay for his flight to Melbourne but otherwise essentially agrees with Ms Halifax’s evidence about events around that time.
It was his evidence at trial that the first time he saw [X] after

Ms Halifax left Townsville was in August 2013 when he travelled to Melbourne for an interim hearing of this matter before Judge Curtain. He did not spend overnight time with [X] at that time.
He spent further time with [X] pursuant to the orders of Judge Curtain in September 2013 when he again travelled to Melbourne for a further interim hearing.
The next court hearing was on 11 November 2013. At trial Mr Temple confirmed his affidavit evidence that he had sought to spend overnight time with [X] on 9 and 10 November. He said that the response to that request was that there would be no overnight time and that [X] needed to sleep in familiar surroundings. He subsequently spent day time with [X] on 15 and 16 November 2013. His partner had accompanied him and this was the first occasion on which she met [X].
Mr Temple gave evidence that while the August and September visits with [X] had gone smoothly, Ms Halifax had caused some difficulties at the third visit, causing unnecessary distress to [X] by standing in his line of sight and then walking away at changeover. Mr Temple notes that his new partner was present at his parents’ home on that occasion.
Mr Temple next spent time with [X] while he was in Melbourne for the family report interviews in mid-January 2014. His partner had accompanied him and they had spent time with [X] on the Saturday before the family report interviews on the Monday. It was his evidence at trial that that time had gone extremely well and that [X] had been happy all day, showing no signs of distress.
It is clear from the family report that [X] was somewhat distressed on the day of the interviews. Mr Temple believes that that is because [X] had spent the previous night with his maternal grandparents and had not seen his mother since the previous day.
Mr Temple extended his stay in Melbourne at that time and spent further time with [X] on 26 and 27 January 2014. There is no evidence before me to indicate that that visit was other than successful and happy. At the time of trial [X] had spent no further time with his father, but I note that arrangements were made for time to be spent on the first evening of the trial.
Further evidence was adduced at trial that Mr Temple had had no indication that [X] had been enrolled in child care until he read

Ms Halifax’s affidavit material. He said that he was not consulted about that decision and that Ms Halifax did not inform him in general about [X]’s progress and activities.
On the basis of the evidence before me I find that Mr Temple has done much, although perhaps not all he could initially, to be an involved father to [X] and that Ms Halifax, while not perhaps behaving optimally in this regard, has made some attempt to facilitate the relationship between [X] and his father, particularly while Mr Temple has been in Melbourne to attend hearings in the course of these proceedings.

On that basis, I have some confidence that the parties will comply with any orders I make which provide for [X] to spend time with

Mr Temple.

D. Is it reasonably practicable for [X] to have a meaningful relationship with Mr Temple if he lives in Melbourne and Mr Temple in Townsville?

The question of whether a child is able to maintain and develop a meaningful relationship with a parent who lives at some distance has been addressed in many cases in this and superior courts.
The statement of Brown J in Mazorski and Albright,[4] which has been cited with approval in many subsequent cases, makes clear that the words “meaningful relationship” in ss.60B and 60CC of the Act refer not to any particular quantity of time to be spent between a child and his/her parent, but to the quality of that time.
[4] Mazorski v Albright (2008) 37 FLR 518
In that case, Her Honour said, at paragraph 26:
I proceed on the basis that when considering the primary considerations and the application of the objects and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one.
Indeed, it could be said that it is now settled law in Australia that the actual amount of time a parent spends with a child does not on its own deny the possibility of the parent and child having “a meaningful relationship” as the Act describes.
Townsville is a considerable distance from Melbourne, there being some 2,500 kilometres and one or two plane journeys taking about half a day between them.
If Ms Halifax remains in Melbourne and Mr Temple remains in Townsville, it is clear that face-to-face time between [X] and his father will be considerably restricted.
Of course face-to face time, while perhaps the optimal circumstance, is not the only way for parents and children to maintain a meaningful relationship.
We now have multiple methods of electronic communication which involve a child seeing and speaking to a parent, as well as the traditional telephone contact. In addition, there are always the letters, cards, photographs and gifts that a parent can send to a child and vice versa.
That may not be the optimal way to develop and maintain a relationship between parent and child. However, in Tait & Dinsmore [2007] FamCA 1383, Cronin J considered the distinction made by Kay J in Godfrey & Sanders [2007] FamCA 102 between an optimal relationship and a meaningful relationship, and said, at paragraph 170:
Kay J distinguished between the optimal relationship and the meaningful relationship. … The distinction is clear. An optimal relationship is one which is second to none, unmatched and unequalled. That cannot be what the legislation intended. To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child.
In those circumstances I believe that while not optimal, it is reasonably practicable for [X] to develop and maintain a meaningful relationship with Mr Temple in circumstances where he lives in Melbourne and

Mr Temple lives in Townsville.

E. What level of support does Ms Halifax have in Melbourne and would her parenting capacity suffer if she were to move to Townsville away from that support?

Ms Halifax’s evidence is that she has no supports in Townsville and that if she were forced to move there with [X] it would be detrimental to her parenting capacity as she would be isolated and initially homeless.
She says that she has the support of friends and family in Melbourne and that [X] is now enrolled in child care in Melbourne. She says that all the people who support her both personally and in caring for [X] are in Victoria.
It was her evidence in chief at trial that she has no friends in Townsville, that there were a few people she associated with in Townsville but that the main one has now moved away and that she would feel alone and isolated were orders to be made that [X] live there. She says that her friends in Melbourne are of long standing, and I note that she only lived in Townsville for some 15 or 16 months.
Ms Halifax also says that the weather in Townsville is much too hot for her. It is her evidence that she suffers greatly from the heat and that it would be impossible for her to go out very much because it would be too uncomfortable for her. She says that that issue would exacerbate her isolation were she to move to Townsville.
Her further evidence is that her qualification in [omitted] would not be as likely to provide her with work in Townsville as it would in Melbourne and that that would affect her capacity to provide for [X]. In addition the need to work outdoors would mean that her intolerance of the heat would cause her great distress even if she were able to obtain work in Townsville.
In her oral evidence to the court, when asked to tell the court how she would cope if she were to return to Townsville Ms Halifax said the following:
I don’t know how I will handle it. I know it’s not all about me – it’s about [X] too – but I won’t handle going to Townsville. I hated really every minute of it up there. I’ve got none of my friends or my family.
And further:
There is nothing that I can see that will be positive out of it. I will be very alone. [X] will have both his parents, but I just don’t know how I will handle it at all. I don’t think I will handle it well at all.
I note that Ms Halifax became quite emotional when discussing the possibility of returning to Townsville.
It was noted during the trial that none of the people, friends and family, who Ms Halifax says are her supports in Melbourne filed affidavits or gave evidence at trial. Ms Halifax explained this by saying that the student lawyer who she had consulted as part of the Family Law Assistance Program had advised her that it would not be necessary for those people to swear affidavits.
The Family Law Assistance Program is an initiative of the Monash Oakleigh Legal Service and the Law School of Monash University which provides law students with invaluable supervised experience in dealing with family law litigants who are otherwise unrepresented in court. The assistance given to unrepresented litigants in the duty list of the court at Dandenong is of great assistance and is greatly appreciated by the court. It is unfortunate that in this case it appears that Ms Halifax was given advice that might not have been particularly helpful in the particular circumstances of this litigation.
In contrast, Ms Halifax’s sister, [name omitted], who lives in Townsville, did file an affidavit which stated that she would assist

Ms Halifax in any way she could if she were to return to Townsville.
However it was Ms Halifax’s evidence that she had had a falling out with her sister in Townsville because her sister’s partner had filed an affidavit in support of Mr Temple.
Ms Halifax is [X]’s primary carer at this time in his life. It is vital that her emotional health is as strong as possible so that she is able to take care of him at the highest possible level.
There is no evidence before the court from friends and family who,

Ms Halifax says, are her supports in Melbourne, but neither was her evidence about that support impugned in any way.
Ms Halifax’s presentation on the first day of trial indicates that she is somewhat fragile emotionally and that she will need the support of people she loves and trusts in order to be the best possible primary carer for [X].
In this regard the family report states at paragraph 90:
Again trying to reconcile the location request by Ms Halifax with the best interests of the child provision brings into focus all the factors that must be considered on a case-by-case basis. Ms Halifax’s mental health and set of circumstances is such that her support is now in Melbourne, whilst her former partner has now established himself in Townsville and gained his own support through re-partnering. If Ms Halifax as the primary parent believes that her needs are discounted she may not be able to parent effectively or encourage the child’s relationship with the other parent. The psychological response of the relocation issue, regardless of whether it is permitted or blocked, needs to be considered.
And later:
If it is accepted that Ms Halifax’s support in Queensland is poor then her request to stay in Melbourne is supported.
In all of the above circumstances I find that it is probable that

Ms Halifax has the support of friends and family in Melbourne and that it would negatively affect her parenting capacity in relation to [X] if she were forced to return to Townsville to live.

F. What are the financial circumstances of the parties and is it reasonably practicable for the recommendations of the family report writer to be effected?

The recommendation of the report writer is that if Ms Halifax is to stay in Melbourne, [X] should see his father on two occasions per month with each parent undertaking the travel to and from Queensland once a month, and that [X]’s time should be supplemented with FaceTime. There is also a recommendation that Mr Temple consider some of the suggestions in the report for maintaining his special relationship with [X], for example through an “absent parenting kit”.
No sworn Statements of Financial Circumstances were filed in these proceedings, although Mr Temple included information about his income and expenses in his affidavit sworn 19 March 2014.
However, both parties gave evidence at trial of their financial circumstances.
Ms Halifax says that paying for travel to Queensland once each month is not viable for her. She says that once every two months would be possible and that “it’s worth the struggle of having less money for a while in order to actually keep [X] in (the father’s) life”. She also said that if she were to obtain employment as an [omitted] in Melbourne she might be able to facilitate more frequent time between [X] and his father, depending on what her income would be.
As stated before, Ms Halifax also expressed a keenness for [X] to spend time with his father via FaceTime.
I note in relation to Ms Halifax’s financial circumstances that she was represented in these proceedings essentially without or with minimal charge to her.
In cross-examination Ms Halifax said that her only income at that time was Centrelink benefits, the total of which she was unsure about, but she did not deny that her income was approximately $587 per week on average.
She accepted the proposition that from January to April 2014

Mr Temple had been assessed to pay approximately $142 per week in child support but that from April he would be paying only about $67.00 per week.
It was her evidence that she pays $200 per week in rent and that she has no debt, no regular expenses other than the usual household bills and childcare fees, those fees being approximately $15 per day after Centrelink assistance through the JET program.
She accepted that only one airline, Jetstar, flies directly between Melbourne and Townsville, and that if [X] or Mr Temple were to travel on another airline they would have to fly through Brisbane.
Ms Halifax was not asked about the cost of airfares between Townsville and Melbourne at trial.
Mr Temple’s evidence is that he is in full-time employment as a [omitted] in Townsville and that he earns $920.00 a week before deductions[5]. His hours of work are 7:30 AM to 4:30 PM and sometimes later.
[5] Affidavit of Mr Temple sworn 19 March 2014
He deposes to having expenses of $1,221.50 per week. Those expenses include child support and legal expenses as well as rent and other household expenses including home phone, internet and Foxtel expenses. He conceded under cross-examination that when his child support was reduced pursuant to the current assessment and he no longer had to pay his personal loan his expenses would be about $982 per week. I note that Mr Temple has re-partnered and that his de facto partner also works. There is no evidence before the court about her income and expenses.
In relation to his ability to pay for airfares to come to Melbourne to see [X], Mr Temple gave the following evidence at trial:
Pretty much me and [Ms J] don’t really have that much money. We struggle all the time and I’m sure everybody else does exactly the same, but we are a team and we said that we will work it out. So we’ve worked out that, having both of us make certain sacrifices with our lifestyle that we can accommodate for me seeing [X].
And later:
I’m willing to make – me and [Ms J] are willing to make personal sacrifices to make our relationship with [X] stronger.
In those circumstances I find it is not financially viable for either of the parties to pay for airfares once per month as recommended by the family report writer.
However both were clear in their evidence that they would make financial sacrifices and do all they could in order to facilitate less frequent time between [X] and his father than that recommended by the family report writer, Ms Halifax saying in evidence at trial that she would be able to afford once every two months.
The only real evidence I have from the parties about the cost of the airfares is that if booked with sufficient notice, airfares of $99 each way are available from Jetstar. Therefore it appears that if a regular regime were to be instituted where [X] spent face-to-face time with his father every month, the airfares would cost each party about $200 every second month, at least while [X] is young enough not to incur a fare in his own right.
I note in that regard that I am bound by law to make orders not only that are in a child’s best interests but which are reasonably practicable in all the circumstances.

G. Is Ms Halifax’s evidence in relation to her drug use credible?

Ms Halifax is adamant that she has ceased using illicit drugs altogether and it is clear that the drug screens she produced during the proceedings were clean.
In his affidavit material Mr Temple deposes to an incident in Townsville where he says that he observed Ms Halifax removing the entire contents of a box of Nurofen Plus capsules and mixing them with water before drinking them. It was his evidence that he believed that Ms Halifax was attempting to obtain a “high” from ingesting the medication in this way. He adamantly confirmed that evidence in his oral evidence at trial and said that the incident had happened while

Ms Halifax was pregnant with [X].
Ms Halifax’s response at trial was that such an incident simply never happened, that she had been pregnant at the time, and was aware of advice that she should not take any such drugs during her pregnancy. She said that having ceased to take heroin, she would be unlikely to take another drug that she knew might be dangerous to her unborn child.
Mr Temple gave evidence that when Ms Halifax moved to Melbourne he noticed several items on his credit card statements which indicated that Ms Halifax, who had been using his card, had been in the [S] area of Melbourne.
It was Mr Temple’s evidence that during the relationship when the parties were using heroin, Ms Halifax often travelled to [S] to obtain her drugs.
[S] is about 50 kilometres and 60 minutes driving time from [N] where Ms Halifax lives, and Mr Temple says that she has no reason to go there other than to obtain drugs.
Ms Halifax’s evidence at trial in that regard was that she had been to visit friends in [suburb omitted] and had stopped in [S] on the way back to have a meal at McDonalds. She flatly denied that she had been in the area to procure drugs.
However she did concede that she had attempted to get in touch with a previous boyfriend who, Mr Temple says, was involved in drug dealing. It was her evidence that her previous boyfriend was at work on that day and that she did not see him. She denied that her attempt to contact him was anything more than an attempt to see an old friend.
She said further that she had no friends who were currently using illicit drugs.
Ms Halifax described the allegations of her current drug use as “ridiculously upsetting”. She understood that it would be an issue for the court if she were to be using heroin or any other illegal substance currently, but then said:
I know I shouldn’t be given a pat on the back because I was a heroin addict, but I feel that it should be at least respected or appreciated that I’ve thrown that all in the past and I’ve actually changed my life…. I just wish you could see the inside of my life.
The fact that Ms Halifax provided clean drug screens during the proceedings appears to indicate that she is not habitually using drugs.
However her presentation at trial as described in paragraphs 27 to 32 herein was at very least suspicious in that regard, that behaviour being similar to and consistent with the symptoms displayed by habitual drug users.
In these circumstances I am not entirely convinced that Ms Halifax is not using any illicit substances and will make an order that she continue to undertake drug screens on a random basis for a further 12 months with the results being provided to Mr Temple. I will further make an order that Mr Temple have liberty to apply should Ms Halifax return positive drug screens for illicit substances in that time.
Having addressed the issues raised in this case, I turn now to the law.

The Law

This is essentially a relocation case. Ms Halifax seeks orders that she be permitted to remain in Melbourne with [X] having moved back to Melbourne from Townsville in March 2013.
It is almost trite to say that a relocation case is to be treated no differently than any other parenting case. There are no special rules or considerations for relocation cases and each is to be decided on the principles and considerations set out in Part VII of the Family Law Act 1975.
Section 60B of the Act sets out the objects of this Part and the principles underlying it and I will set out the relevant sections of those objects and principles for the benefit of the parties:
Section 60B(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 and 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.
Section 60B(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 communicating the bank 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).
Section 60B(3): for the purposes of subparagraph (2)(e), an aboriginal child is or Torres Strait Islander child’s right to enjoy his or her aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.

Section 60CA of the Act makes clear that when deciding whether to make a particular parenting order in relation to a child the court must regard the best interests of the child as the paramount consideration.
Section 60CC of the Act sets out the matters that a court must have regard to when deciding what is in the best interests of a particular child.
Section 60CC(2) sets out what are considered to be the primary considerations.
Section 60CC(2)(a) – the benefit to the child of having a meaningful relationship with both the child’s parents
I have already discussed the meaning of the benefit of a meaningful relationship and its relevance in this case in answering question D above.
Section 60CC(2)(b) – the need to protect a child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The need to protect [X] from physical or psychological harm from being exposed to abuse, neglect or family violence is perhaps the salient feature of this case.
[X]’s parents lived in a volatile and somewhat toxic relationship where loud arguments and some physical abuse appear to have been the norm.
While there have been no allegations of physical abuse between the parties since the immediate aftermath of separation, and the parties seem to have been able to organise for Mr Temple to spend time with [X] while he is in Melbourne, the verbal arguments between the parties appear to have continued, albeit at a somewhat lower level.
It is important for [X] to be shielded from these arguments and I will make orders which attempt to do just that.
I note that s.60CC(2A) requires me to give greater weight to this consideration than to that found in s.60CC(2)(a).

Section 60CC(3) - additional considerations

Section 60CC(3)(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.

[X] is only just two years old. Therefore even if his wishes were known, they would be given little or no weight because of his tender years.
Section 60CC(3)(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);
The family report of Ms S (“Ms S”) states that [X] is “emotionally secure and attached to his mother”. Her observation of [X] with his mother revealed that she engaged with him in an age appropriate manner and there is no other evidence before me to indicate that [X]’s relationship with his mother is other than entirely appropriate, close and loving.
[X]’s relationship with his father is of course much less settled in circumstances where [X] lives in Melbourne and his father in Townsville. Ms S’s observation was that [X] did not respond to his father and that he became distressed when his mother left the room.

Mr Temple and his partner Ms J attempted to soothe [X] but were unable to do so. Ms Halifax was then asked to come back into the room and [X] was much more settled in her presence although still very wary of Mr Temple.
From Ms S’s observations it would seem that [X]’s relationship with his father is quite weak at this stage, although while his mother was present he was able to interact positively with Mr Temple albeit at a distance.
However, evidence was adduced at trial that the time [X] spent with his father after the family report interviews was positive, and that he was also happy to interact with his father when spending time with him on the first evening of the trial.
The fact that Ms Halifax is prepared to facilitate a relationship between [X] and his father is a positive sign and I will make orders that ensure that that relationship is fostered as much as is practicably possible.
There is evidence before the court that [X] also has a close, consistent and loving relationship with his maternal grandparents and, to a lesser extent, with his paternal grandparents, all of whom live in Melbourne.
I note in this regard that Mr Temple has no relatives living in Townsville, and that Ms Halifax has only her sister with whom she has fallen out during these proceedings.
Section 60CC(3)(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;
Ms Halifax maintains [X] by way of her income from Centrelink benefits and perhaps, by the time this judgment is delivered, from some employment. She is responsible for [X]’s day-to-day care financially and there is no evidence before me to indicate that she has not fulfilled that obligation to the full.
Ms Halifax’s evidence was that Mr Temple’s record of making child support payments had been irregular since separation while Mr Temple says that he has made regular payments which are deducted automatically from his pay each fortnight.
Documents from the child support agency show that regular amounts have been deducted for child support from Mr Temple’s pay packet at least in the months immediately prior to trial.
However Ms Halifax’s bank statements show that those payments are not made regularly into her bank account and that they are made in varying amounts over varying periods. It would appear that there is some delay or anomaly in the process within the Child Support Agency that result in Ms Halifax not receiving the regular payments as they are made by Mr Temple.
No documentary evidence was produced at trial to support or refute

Ms Halifax’s claims that Mr Temple had been in arrears with his payment of child support for [X] in 2013.
I am satisfied in all the circumstances that Mr Temple is currently fulfilling his obligation to maintain [X], albeit that his deductions have been assessed to reduce after April 2014.
Section 60CC(3)(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;
If I make an order that [X] move to Townsville with his mother in circumstances where he has been living in Melbourne since March 2013, it will inevitably have a significant impact on his young life.
It is not the move alone which would have an impact on [X]’s life but the fact that his mother, who is his primary carer, would be moving because she was ordered to and entirely against her will. The distress that that would cause the mother on the evidence before me cannot help but have an impact on [X].
[X] would be separated from his grandparents, and other family members, as well as the four housemates with whom Ms Halifax has been living since her return from Townsville and with whom he is reported to have a stable and warm relationship.
On the other hand, if I make an order permitting [X] to remain living with his mother in Melbourne it will separate him from his father, as well as his father’s partner and her children, who make up the father’s new family.
The impact of this separation has already been seen in Ms S’s observation of [X] with Mr Temple. However, I note that at that time [X] had been separated from his father for some months and had not been seeing him on a regular basis.
The evidence before the court also indicates that [X] had been staying with his maternal grandparents for the two nights before the family report interviews, and that he had therefore not seen his mother for some 48 hours at that time.
Section 60CC(3)(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;
If the parties are to live 2,500 kilometres apart, it is blindingly obvious that there will be practical difficulties and significant expense involved in ensuring that [X]’s right to maintain personal relations and direct contact with both parents is maintained.
That distance cannot help but substantially affect that right in the practical sense. I will therefore make orders that to the greatest extent possible protect [X]’s right to maintain his relationship with both his parents.
Section 60CC(3)(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;
There is no evidence before the court to indicate that either parent lacks capacity to take care of [X]’s physical, material or intellectual needs. The issue in this case is whether they are able to meet [X]’s emotional needs.
As I have said before the relationship between the parties has a history of volatility and toxicity. Exposing [X] to physical violence or verbal abuse between his parents will have a profound effect on him emotionally. Exposing a child to family violence constitutes an act of child abuse in itself pursuant to s.4 of the Act and it is vital for [X]’s emotional and psychological development that he be shielded to the greatest extent possible from any family violence, whether verbal or physical, between his parents.
Ms S’s family report describes Mr Temple greeting [X] with the words “Did you miss me?”, with [X]’s response being one of confusion. From that observation and Ms S’s view that “Mr Temple did not present as knowledgeable about the needs of the toddler”, it would appear that

Mr Temple might benefit from completing a parenting course as suggested by Ms S in order to become more familiar with his son’s emotional needs.
Were it to be shown that Ms Halifax had returned to her drug-using lifestyle, it would almost inevitably result in her neglecting [X]’s physical and emotional needs as she pursued her addiction. While I have not made a finding that Ms Halifax is using drugs again, there is some evidence that causes me concern in that regard, and I will, again, make orders that protect [X] as far as possible from that potential neglect.
Section 60CC(3)(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;
The parties in this matter are relatively young, both being 25 years old. According to them, their current lifestyles should cause the court no concern. Mr Temple has re-partnered and lives with his partner and her children in a five bedroom house in circumstances where he is employed full-time. Ms Halifax lives in a shared house in which she and [X] have their own rooms and bathroom. She was studying at the time of trial and hopes to find employment as an [omitted]. The maturity of both parties is in question with both conceding that the relationship was extremely volatile and with arguments continuing on several occasions at changeover since separation.
There are no particular characteristics that the Court needs to take into account in relation to [X] apart from the fact that he is now two years old and therefore completely dependent on the adults in his life for his safety and security.
Section 60CC(3)(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;
There is no indication or evidence before the Court that Ms Halifax is of Aboriginal descent.
Ms Halifax did not check the box on her Initiating Application form to indicate that Mr Temple is of Aboriginal descent and indeed marked the “No” box in that section of the form. There is no indication in either party’s affidavit material to indicate such a background.
However, it was Mr Temple’s clear evidence on affidavit that during the incident outside his Townsville workplace on 19 March 2013, and in the days following, Ms Halifax called him a “stupid black cunt” on multiple occasions. I note that neither Ms Halifax nor Mr Temple was questioned at trial about that specific matter.
I can take that issue no further save to say that any racial epithet hurled at one parent by a child’s other parent indicates a lack of insight into the child’s own heritage and into the effect on the child’s sense of identity of such epithets.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
Both parents clearly love [X] very much and both are concerned that his future be safe and secure.
It could be said that Ms Halifax’s actions in remaining in Melbourne with [X] after the relationship was clearly over and in circumstances where she was clear via the Legal Aid Queensland letter that

Mr Temple did not agree to that course of action, shows a lack of insight into the impact on [X] of being separated from his father, and therefore a lack of understanding of her responsibilities as [X]’s parent.
Similarly, Mr Temple’s actions in attempting to force Ms Halifax to return to Townsville against her will in circumstances where she has on the evidence before the Court no real supports in Queensland could indicate a lack of understanding on his part on what the effect of that return might be on [X].
Section 60CC(3) (j) any family violence involving the child or a member of the child's family;
I have already dealt with the issue of family violence in the relationship in paragraphs 34 to 64 of these Reasons.
Section 60CC(3)(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;
I am unaware of any family violence order in existence between the parties.
Section 60CC(3)(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;
[X] is just two years old. His life will change inevitably as he grows and his circumstances change. It is almost impossible for a Court to make orders for a two-year-old that would still be appropriate when he is at primary or high school. In about 3 ½ years or so he will go to school, and Mr Temple has indicated that he wishes to revisit [X]’s care arrangements at that time.
Therefore I will make orders suitable for [X]’s care until he goes to school, but including arrangements which provide for his relationship with both parents after he goes to school as well. It is a matter for

Mr Temple whether he wishes to make any application to this Court in relation to [X]’s care at that time.
Section 60CC(3)(m) any other fact or circumstance that the Court thinks is relevant.
Ms Halifax has a history of drug abuse going back several years. It is her evidence that she no longer uses illicit substances. The journey from addiction to being drug-free is a long and difficult one, and

Ms Halifax needs all the support and assistance she can get.
I consider her need for support in that context to be every bit as significant as her need for support in caring for [X] in the circumstances of this case.
In submissions, counsel for the mother referred me to the case of Kirke & Mason[6] which involved a child having been relocated from New South Wales to Tasmania. The (then) Federal Magistrate took into account the factors to be considered in relocation cases as set out in the case of A&A[7], and decided to allow the mother to relocate to Tasmania.
[6] Kirke & Mason (No.2) [2009] FMCAfam 1346.
[7] A & A [2000] FamCA 751.
In A&A the Full Court set out six considerations for a trial judge to have regard to in a relocation case, and I was referred specifically to the second and fifth of those considerations.
The considerations are:
·    The welfare or best interests of the child, as the case may be under the relevant legislation remains the paramount consideration but it is not the sole consideration.
·    A court cannot require the applicant for the child’s relocation to demonstrate “compelling reasons” for the relocation of a child’s residence contrary to the proposition that the welfare of the child would be better promoted by maintenance of the existing circumstances.
·    It is necessary for a court to evaluate each of the proposals advanced by the parties.
·    A court cannot proceed to determine the issues in a way which separates the issue of relocation from that of residence and the best interests of the child. There can be no dissection of the case into discrete issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be 'permitted'."
·    The evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child's best interests.
·    It is necessary to follow the legislative directions espoused in s.60B and s.68F of the Family Law Act (Cth) 1975. The wording of s.68F(2) makes clear that the Court must consider the various matters set out in (a) – (l) of that subsection.
I note that the legislative path to be followed by a trial court in any parenting case after amendments were made to the Act in 2006 was set out by the Full Court in Goode & Goode[8] but the principle remains the same.
[8] Goode & Goode [2006] FamCA 1346.
I believe that this judgment complies with the requirements of the decision in A&A.
In Kirke & Mason, the father was willing to relocate to Tasmania in order to maintain and develop a relationship with his 21 month old child.
That is not the case here. Mr Temple has re-partnered and a move to Melbourne would be extremely difficult for him in circumstances where his partner has children who are the subject of family law orders which require them to spend time with their father, who is [occupation omitted] and is [employed] in Townsville.
If the inference sought to be derived from the decision in Kirke & Mason is that Mr Temple is somehow less committed to [X]’s welfare because he is unwilling to move from Townsville, I do not take that inference in this case.
When I take all the above considerations into account, and weigh the parties’ proposals against each other within the framework of what is in [X]’s best interests, I find that it is in [X]’s best interests for him to remain living with his mother in Melbourne.

Conclusion

The parents in this case have made what might be considered to have been some poor decisions over the history of their relationship, decisions which have had an impact not only on their own lives but on the life of their young son.
It is to be hoped that they can find a future where [X]’s relationship with his father is developed and maintained so that it can be, as much as is practicable, as close as possible into his childhood and looking even further forward, to his adulthood. That will take maturity, and a commitment to putting [X]’s welfare ahead of their own, on the part of both parents.

I certify that the preceding two hundred and thirty-five (235) paragraphs are a true copy of the reasons for judgment of Judge Small

Date: 15 August 2014

[2014] FCCA 1808

15 August 2014

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Procedural Fairness

Remedies