Halleran & Saffold
[2024] FedCFamC2F 954
•24 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Halleran & Saffold [2024] FedCFamC2F 954
File number(s): HBC 92 of 2023 Judgment of: JUDGE TAGLIERI Date of judgment: 24 July 2024 Catchwords: FAMILY LAW – parenting – discrete issue for Court to determine – whether children live with father or mother – parents living in different states – family violence and illicit substance allegations against father by mother – mother’s history of ill-health – need for stability and avoidance of untested long-term care with the mother in a new environment – no risk of unacceptable harm if children remain living with the father – order made for children to live with father – alternate order made for equal time and live with if mother relocates to Tasmania Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA & 65DAC Cases cited: Aldridge & Keaton [2009] FamCAFC 229
Goode & Goode [2006] FamCA 1346
Isles & Nelissen [2021] FedCFamC1F 295
Isles & Nelissen [2022] FedCFamC1A 97
MRR & GR [2010] HCA 4
Slater & Light [2011] FamCAFC 1
Division: Division 2 Family Law Number of paragraphs: 64 Date of last submission/s: 30 April 2024 Date of hearing: 22-23 April 2024 Place: Hobart Solicitor for the Applicant: Mr Saric, Jim Saric Law Solicitor for the Respondent: Ms Watson, Tasmania Legal Aid Counsel for the Independent Children's Lawyer: Mr McKenna The Independent Children's Lawyer: Ms Pagett, Pagett & Associates ORDERS
HBC 92 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR HALLERAN
Applicant
AND: MS SAFFOLD
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
24 JULY 2024
THE COURT ORDERS THAT:
1.All previous parenting Orders relating to X, born in 2015, and Y, born in 2016, (collectively “the children”) be discharged.
2.Mr Halleran (“the Father”) and Ms Saffold (“the Mother”) (collectively “the parents”) have equal shared parental responsibility for the children in relation to major long-term issues AND for decision making in accordance with this Order:
(a)“Major long-term issues” has the meaning provided in s 4 of the Family Law Act 1975 (Cth) and includes the children’s education, health, extra-curricular and recreational activities, and changes to their living arrangements;
(b)The parent who intends to make a major long-term decision in relation to either or both children must provide the other parent 14 days written notice of the intended decision (“the Notice”);
(c)The parent receiving the Notice will consider the Notice and provide their views about to the other parent about the intended decision within 7 days of receiving the Notice;
(d)Upon receipt of the other parent's views, the parent who gave the Notice will consider same and inform the other parent of what they consider to be in the best interests of the child or children and the decision that ought be made;
(e)If the parents are in agreement about the intended decision they will implement that agreement; and
(f)If the parents are in disagreement about the intended decision they will participate in family dispute resolution unless exempted from doing so.
3.The children live with the Father.
4.The children spend time with the Mother on the following basis:
(a)During school holidays, unless otherwise agreed by the parents:
(i)Commencing from the first Saturday of each Tasmanian gazetted public school term 1, 2 and 3 school holidays for the duration of the school holidays, with the children to return to the Father by 4:00pm on the Saturday immediately prior to the Children returning to school;
(ii)For the Christmas holiday period in 2024 and each alternate year thereafter, from the first Saturday of the Tasmanian public school Christmas holidays for a period of 18 nights (being 19 consecutive days); and
(iii)For the Christmas holiday period in 2025 and each alternate year thereafter, from 4:00pm on the 19th day of that school holiday period until 4:00pm on the Saturday immediately prior to the children returning to school.
5.In addition to Order 4, if the Mother is travelling to Tasmania as agreed between the Parents in accordance with the following:
(a)On up to 5 occasions each calendar year;
(b)For periods not exceeding 5 consecutive nights as agreed;
(c)The Mother must give the Father 14 days' notice of her intention to spend time with the children in accordance with this Order; and
(d)In the absence of agreement, time will occur from the conclusion of school on a Friday (or 4:00pm if not a school day) to the return to school Monday (or 4:00pm if not a school day)
6.The children will spend time with the mother at such other times and other days as may be agreed between the parents in writing.
7.If the parents live within 30km of each other in the greater City B area, the children will live equally with the parents and as follows:
(a)Changeover will commence once a week on a Friday; and
(b)The time for changeover is the conclusion of school on Friday or if not a school day 4:00pm.
Costs of the children’s travel
8.The parents shall pay the following costs associated with the children's return airfares between City B and Melbourne while the mother resides in Victoria and when spending time in accordance with Order 4 of these Orders approximately equally AND FOR THIS ORDER:
(a)The Mother will purchase the children’s airfare for the flight departing Tasmania;
(b)The Father will purchase the children’s return airfare for the return flight to Tasmania;
(c)The parents will use their best endeavours to purchase the lowest price ticket on days and times that enable each parent to comply with these Orders;
(d)The children’s airfare tickets must include a carry on and checked baggage allowance for each of the children; and
(e)Until the age of 12 or such other age as the parent's agree, the children must be accompanied by one of the parents on each flight to and from their intended destination. For the avoidance of doubt, this obligation is one to be shared equally by the parents.
Communication between the children and parents
9.The parents will facilitate the children's communication with the parent with whom they are not living/spending time with (“other parent”) in accordance with these Orders as follows:
(a)As agreed between the parents and failing agreement, not less than three times per week via video call on Tuesday, Thursday and Sunday between 5:00pm and 5:30pm.
(b)At all other times requested by the children with such calls to occur using the children's iPad with FaceTime or similar mode of communication and these calls will be facilitated by the parent the children are living/spending time with; and
(c)For special occasions as set out in Order 11 of these Orders, if the children are not already in the other parent's care for those special occasions.
10.For the purposes of enabling communication between children and other parent each parent must:
(a)Provide a quiet space for the children to call free from other distractions, ensure any relevant communications devices are charged and ready, engage the call connection and then hand it to the children for the purposes of communication and leave the room;
(b)Provide to the other parent a telephone number or other such required contact information to engage in video calls, to the other for the purposes of any such communication; and
(c)In the instance of a change of a contact telephone number or other information required for the purposes of engaging in video calls, each parent will advise the other within 48 hours of the same.
Communication with the children on special occasions
11.On the following special occasions, unless otherwise agreed, communication will occur between the children and parents as follows:
(a)On Mother's Day and Father's Day: If the children are not living/spending time with the Mother on Mother's Day and Father on Father's day: The children will communicate with that parent at 10:00am, with the parent the children are living/spending time with to initiate a video call to the other parent to enable the children to speak to the other parent.
(b)X and Y's birthdays:
(i)For X's birthday, the parent who does not have the children living or spending time with them will initiate a video call to speak with X prior to school on school days and on non-school days at 10:00am.
(ii)For Y's birthday, the parent who does not have the children living or spending time with them will initiate a video call to speak with Y prior to school on school days and on non-school days at 10:00am.
(c)For C's birthday (the children's sibling): The parent the children are living/spending time with will facilitate a video call between the children and their half sibling C.
(d)For Easter Sunday and Christmas Day: The parent that does not have the children living/spending time with them will initiate a video call to the children at 10:00am.
Communication between the parents
12.The parents will communicate with the other via text message or an agreed parenting application only with the exception that in circumstances of emergency in relation to either of the children in which case they will telephone the other as soon as practicable providing information to the other parent relevant to the child/children's circumstances (e.g., treatment, including any diagnosis, medication prescribed and status of the child/children's general wellbeing).
13.All communication between the parents is to be civil, respectful and child focused in nature.
Changeover arrangements
14.For any changeover to give effect to living and spend time arrangements for the children:
(a)If changeover is occurring on a school day, changeover occurs at school;
(b)If not a school day, changeover will occur at City B or Melbourne airport or such other place as the parents agree;
(c)Each parent will ensure handover is prompt and that any words spoken are polite and not related to family law matters; and
(d)Each parent may nominate a third party known to each other and the children to attend and facilitate handover provided that is communicated to the other parent before handover.
Parental authority and related
15.The parents must do all things necessary to ensure both are each named on the children's:
(a)School or extra-curricular enrolments; and
(b)Medical, health and allied health service contact and/or consent authority AND for this subparagraph, within 7 days of the date of these Orders, the parents are each to disclose to the other all medical, health and allied health services the children have engaged in.
16.These Orders act as an authority for the parents to:
(a)Communicate with the children's school and receive all relevant communications including in relation to the children including, but not limited to, reports, attendance records, newsletters, school photographs; and
(b)Communicate with and obtain information in relation to each of the children from the children's treating allied health or medical practitioner(s).
Personal protection orders and related
17.Pursuant to s 68B of the Family Law Act 1975 (Cth) and for the personal protection of the children, the parents are restrained from consuming any illicit drugs (defined to mean and include any drug that is illegal to have (for example, cannabis, methamphetamine, and cocaine)), the non-medical use of drugs that are legally available but not prescribed to a parent (such as pain killers and sleeping pills) and prescription drugs used not in accordance with the prescription while the children are in their care or for the twelve (12) hours prior to the children coming into their care, or allowing the children to remain in the presence of any third party if the parent caring for the children reasonably suspects that the third party is doing so.
18.Pursuant to s 68B of the Family Law Act 1975 (Cth) and for the personal protection of the children, when the children are living or spending time with a parent that parent is restrained from drinking alcohol to excess (defined to mean having a blood alcohol concentration (BAC) above 0.05% (0.05g of alcohol in every 100ml of blood)) at all times the children are in their care and for the twelve (12) hours prior to the children coming into their care.
19.Pursuant to s 68B of the Family Law Act 1975 (Cth) and for the personal protection of the children, the Father is restrained from exposing the children or the Mother to family violence as defined by s 4AB of the Family Law Act 1975 (Cth).
20.Pursuant to s 68B of the Family Law Act 1975 (Cth) and for the personal protection of the children and the Mother, the Father is restrained from entering onto the Mother's place of residence.
21.For the personal protection of the parents, and by way of ancillary Order, each parent is restrained by injunction from:
(a)Denigrating, belittling, abusing, intimidating, harassing and/or rebuking the other parent or members of their respective families to and/or within the hearing of the children or either of them;
(b)Discussing these proceedings or any documents prepared in relation to these proceedings save for explaining the living and spend time with provisions of these orders, to and/or within the hearing of the children or either of them;
(c)Allowing the children to remain in the presence of a third party doing the things referred in subparagraphs (a) and (b); and
(d)Knowingly permitting the children or either of them having access to any documents prepared in relation to these proceedings or any associated proceedings.
Ongoing support for the children
22.Unless they have already done so, within 7 days the parents must arrange to obtain a mental health care plan for the children and obtain a referral for them to attend a psychologist AND for this Order, each parent must follow the reasonable directions of the children's psychologist and facilitate the children's attendance at same until such time as the children's psychologist deems it appropriate to cease engagement and confirms the same in writing to both parents.
Parenting education and supports
23.The Father must do all acts and things including but not limited to signing all documents necessary to:
(a)Enrol in within 14 days of the date of this Order and thereafter complete the Tuning into Kids parenting support program and endeavour to complete same within six (6) months of the date of these Orders; and
(b)Contact D Organisation within 14 days of the date of these Orders to arrange for counselling in relation to his use of alcohol and illicit substances AND follow all reasonable directions of that service.
24.The Father will provide to the Mother confirmation of his enrolment and completion of the Tuning into Kids and within six (6) months of the date of these Orders a letter from D Organisation confirming he has engaged with that service.
25.The Mother continue to engage with her psychiatrist Dr E of F Centre in Suburb G, Victoria until such time as her psychiatrist deems it appropriate to cease engagement.
Disclosure
26.In the event any of the following applies to the Father, he must within 48 hours of same occurring, notify the Mother in writing and to the extent he is lawfully permitted to do so, provide to the Mother documentary evidence confirming same:
(a)Named as the applicant or respondent or person restrained or person protected (or words to those effect) in a Family Violence Order, Police Family Violence Order or Restraint Order;
(b)Charged with an offence relating to a Family Violence Order, Police Family Violence Order or Restraint Order;
(c)Charged with a Family Violence offence;
(d)Charged with drug and/or alcohol related offence; and/or
(e)Charged with an offence involving a person the father is in relationship with including, for example, a common assault charge involving an intimate partner or member of family.
Publication of these Orders & related matters
27.Each of the parents and the Independent Children's Lawyer may provide a copy of these Orders to:
(a)Any school the children attend; and
(b)Any medical or allied health professionals engaging with the children AND for this subparagraph within 7 days of the date of Order, each parent is to provide to the other the names and contact details of any medical or allied health professional the children is engaged with or has engaged with (in the 12 months prior to date).
Review
28.Prior to X commencing his year 7 education, the parents will engage in Family Dispute Resolution with a Family Dispute Resolution Practitioner to review the children's ongoing parenting arrangements and these Orders.
Costs
29.The parents are each individually responsible for their costs of and incidental to these proceedings.
Independent Children's Lawyer appointment
30.The Independent Children's Lawyer’s appointment is extended to continue for a period of two weeks from the date of these Orders.
THE COURT NOTES THAT:
A.Pursuant to s 68C of the Family Law Act 1975 (Cth), a police officer may arrest without warrant if that officer holds reasonable belief that the order for personal protection in Orders 17, 18, 19 or 20 has been breached.
B.Order 30 of these Orders has been amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 24 July 2024.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE TAGLIERI
These parenting proceedings concern two children, X born in 2015 and Y born in 2016 (“the children”). The children are currently 9 and 7 years old respectively.
Mr Halleran (“the father”) and Ms Saffold (“the mother”) are the parents of the children. They commenced a relationship in 2014 and separated in 2021. Prior to the parties establishing a relationship, the mother had a child, C, with another partner. C is now aged 11 years and not the subject of these proceedings.
In early 2021 the mother moved to Victoria with the children. After the mother being hospitalised for a period of time in mid-2021, by agreement the children returned to live with the father in City B.
Over the Christmas holiday period in 2022/2023, the children travelled to Melbourne to spend time with the mother. A dispute subsequently occurred about the children returning to City B to reside with the father. As a consequence, these proceedings were initiated by the father on 6 February 2023. On 8 February 2023, an Interim Order was made by the Court for the children to be returned to the father to live in City B.[1]
[1] Orders 14 and 15 of the Orders dated 8 February 2023.
THE PARENTING ISSUES TO BE DECIDED
Noting the largely uncontentious background facts above, the primary issue for determination by the Court is whether the children should remain living with the father in Tasmania or alternatively, relocate and live with the mother in Victoria. Consequent to the determination about the primary issue, the Court will need to make orders about the time the non-resident parent should spend with the children.
Relevant to the primary issue of with whom the children reside, the mother’s contentions are that she is best placed to provide stability and risk mitigation for the protection of the children from the father’s family violence, anti-social behaviours and illicit drug use.[2]
[2] Mother’s written closing submissions filed 30 April 2024 at [2].
Conversely, the father’s contentions are that the mother’s evidence of family violence and alcohol and illicit substance misuse is not entirely reliable and, in any event, incidents of this nature are historical and no longer pose a risk to the children. Further, he relies on the status quo of the children living in Tasmania and the stability and positive progress they experience whilst in his primary care.
As the Agreed Minute of Final Orders demonstrates,[3] the parties and the Independent Children’s Lawyer (“the ICL”) are largely agreed about the spend time with orders for the parent with whom the children are not to reside, as well as orders surrounding communication, personal protection and supports. In addition, the parties are agreed that the Court ought to make orders for equal shared parental responsibility.
[3] Marked by the Court as MFI-3.
EVIDENCE RELIED UPON BY THE PARTIES
The father relied on his affidavit filed 11 April 2024, as well as the following documents:
(a)Family Report of Court Child Expert (“CCE”) Ms H dated 1 December 2023;
(b)Child Impact Report of CCE Ms H dated 20 April 2023;
(c)Subpoena documents produced by the Department of Education, Tasmania in 2023;
(d)School reports for the children from 2024; and
(e)Section 69ZW response from Tasmania Police dated 14 March 2023.
The mother similarly sought to rely on the Family Report, the Child Impact Report and the Section 69ZW Response from Tasmania Police of early 2023. She also relied on her affidavit filed 18 April 2024, as well as the:
(a)Response to Final Orders filed by her on 17 March 2023;
(b)Section 69ZW response from Child Safety Services filed 22 March 2023; and
(c)Subpoena documents produced by:
(i)Tasmania Police in 2023 and 2024;
(ii)Department of Education, Victoria in 2023; and
(iii)Child Safety Services in 2023.
Other than some documents already described above at [9] and [10], being the two reports of CCE Ms H and the two section 69ZW responses, the ICL also sought to rely on various documents produced under subpoena and compiled in the ICL’s Court Book.
In addition, each party tendered various documentary exhibits that were received by the Court at the defended hearing on 22 and 23 April 2024 and which are referred to in this judgment.
The father's evidence
The father is employed full-time as a professional. The children currently live with him in a house in City B and attend J School, where they will remain until high school.
Through cross-examination, in summary, the father’s evidence as follows:
(a)He denied applying for an out of area enrolment for at J School because he had been “living between [K and L Street]”, the latter being the home of Ms M, who the mother alleges is or was the father’s partner. When Exhibit R1 was put to him, he admitted it was an “Out of Area Enrolment” document completed by him stating “we live between [Suburb N] and my partner’s place at [L Street, Suburb O].”
(b)When asked about the children’s progress at school, the father stated that there were no issues with Y but there had been behavioural issues concerning X and a diagnosis of ADHD was being considered. He is liaising with the school as to an assessment for this.
(c)X’s behaviour had improved and he was no longer getting messages from the school about frequent behavioural issues. He denied that the school raised behavioural issues on a weekly basis.
(d)When asked about X’s progress at school, the father agreed that there had been behavioural issues in 2021 and 2022, which is why the school was investigating ADHD. He added that he had also asked his doctor for a referral.
(e)He disputed that X’s behavioural issues at school were all about violence. The school records concerning X were received in evidence as Exhibit R2.
(f)He rejected the proposition that he considered X’s problems to be the mother’s fault however, he agreed he had told the school in early 2023 that the mother had “gone off the rails” and this had upset the children. He said that this formed part of X’s issues but also referred to the potential ADHD diagnosis.
(g)He agreed he had not accessed the P Program, as recommended by the CCE in the Child Impact Report.[4] Asked about recommendations in the Family Report,[5] he agreed that he had also not completed the “Bringing Up Great Kids” or “Tuning Into Teens” courses.
[4] Exhibit R11, Child Impact Report of Court Child Expert Ms H dated 20 April 2023.
[5] Exhibit R12, Family Report of Court Child Expert Ms H dated 1 December 2023.
(h)He agreed that for the purposes of the urgent recovery application in 2023 he had stated in his affidavit that the children were doing well at school and had not disclosed X’s behavioural issues.
(i)He outlined his employment over the preceding five years. He agreed he had been a patron of Q Company for 12 months before he took over the business in 2015 and eventually ceased operating it in 2020. He described its opening hours, including that it was open until 3:00am on Saturdays.
(j)He denied working for Q Company for long hours because he had a manager, and stated that once a week he would work into the small hours of the morning. He agreed he would consume alcohol on these occasions.
(k)He agreed that on one occasion while operating Q Company he had come to the attention of the authorities and that the offences listed in his prior convictions related to the operation of the business.[6]
[6] Exhibit R3.
(l)He agreed he had been convicted of being in possession of cannabis in 2012. He denied selling cannabis or using other illicit drugs but agreed he had previously used cannabis monthly or weekly, depending on its availability. He stated he had not used marijuana since the conviction in 2012.
(m)He agreed that he had not included information about his history of drug use in the recovery application, only about the prior convictions in 2012 recorded in Exhibit R3.
(n)It was put to him that he frequently asked his brother, Mr S, to look after the children. He disagreed and stated that although his brother assisted with the care of the children, they did not “live” with him. When Mr S’s affidavit was put to him,[7] he agreed that the children stayed with Mr S “generally” once per week but that this had stopped approximately one year ago.
[7] Exhibit R15.
(o)The father denied there had been violence between himself and Ms M. When shown Exhibit R4, a videorecording, he agreed it showed him at the Ms M’s home kicking down part of the gate. He also agreed punching her door.[8] In an attempt to explain Exhibit R4, the father stated that he was supposed to stay with Ms M that night but he returned home and their keys were locked inside. When it was suggested that he had tried to hide this incident from the Court he denied it.
[8] Exhibit R5.
(p)When asked if he considered himself violent, he disagreed but conceded he had been involved in a number of family violence incidences, including one with a former partner in 2013 resulting in mutual police family violence orders being issued.
(q)He denied that an incident in mid-2014 occurred in the manner described by the mother, maintaining that parts of her report were made up.
(r)Concerning another family violence incident report from late 2015,[9] he agreed he had grabbed the mother’s arm and had pleaded guilty to such. He denied the mother’s description of the incident but agreed he had a conviction recorded and was placed on an undertaking to be on good behaviour for two years.[10]
[9] Exhibit R6.
[10] Convicted in early 2026, Exhibit R3.
(s)He said the mother had left the home with X and C after the incident in late 2015. He agreed there had been a reconciliation between the parties after this.
(t)Regarding a family violence incident report of early 2021,[11] the father denied he had “blocked” the mother in with his car and said the description given by her to police for the purposes of their report was incorrect. Instead, he stated that he had not locked her in, had actually encouraged her to call the police and that no violence occurred during this incident. He said he had not been interviewed or charged and claimed that police had released him without charge after they viewed CCTV footage of the event that was accessible on his phone, given the SD memory card was removed by the mother.
[11] Exhibit R7.
(u)As to the incident at Ms M’s home, he agreed that she would have been scared. When questioned about the impact of the family violence incidents on the children, the father stated that they had not been present.
(v)He denied that he had an extensive criminal history and, while admitting he had done a burnout with the children in the car in 2022, stated there was no risk because he was not speeding. He agreed he had a number of driving offences but nothing after the incident in 2022 and conceded it was “not OK” to have done the burnout with the children in the car.
(w)Asked what assurance he could give the Court about not exposing the children to harm given his history of driving, drug offences and family violence, he stated he had reflected a lot about the impact of his behaviours. He said he has benefited greatly from courses he attended[12], had curbed his drinking and, while recognising he has not always been the best partner, said he has always been there for his children.
(x)He accepted that the mother is scared. He said, following the courses, he has engaged with her by text about the children and sporting or school updates, has tried to avoid communication with her unless necessary and keeps his communication brief, friendly and factual.
(y)He said he was “pretty sure” he had informed the mother before changing the children’s school to J School.
(z)He agreed that communication could be via a parenting app.
(aa)That he facilitated time between the children and their half-brother, C, usually one weekend per month, but did not facilitate time with the maternal grandmother.
(bb)He maintained his assertion that the mother suffers from a mental health condition, stating they had a number of conversations about it and he did not think all the relevant medical records had been provided.
(cc)Regarding allegations by the mother about use of illicit substances, he agreed recording a positive saliva test result for illicit drugs in 2023 but maintained he had later returned a negative blood test, despite it being put to him that there was no record of such. There was no charge resulting from this.
(dd)He also agreed he had returned a positive hair follicle test for illicit drugs in early 2023 and then refused to undergo further testing when requested by the mother in 2024.
(ee)Regarding the Notice to Admit and messages attached,[13] he agreed they were messages between himself and Ms M about their relationship, likely from around 18 months prior. He also agreed that the messages were accessible on X’s iPad and that it was best that they could not be accessed by a child.
[12] Being the “MENS program” and the “Parenting Separately” course (father’s affidavit filed 11 April 2024 at [49]-[51]).
[13] Exhibit R8.
When cross-examined by counsel for the ICL, the father’s evidence was:
(a)The father agreed he could and would pay for airfares for the children one way. He also stated he would accompany them, at his own expense, for supervision and believed the mother should do likewise.
(b)In person changeovers had been going well and there was no communication between the parties at the changeovers, with the arrangements being made beforehand via text.
(c)He explained that he didn’t facilitate time between the children and the maternal grandmother because they had spent very little time with her in the past, which he said was the mother’s choice, and he didn’t believe she was a good influence. He wasn’t aware the mother and maternal grandmother had resumed what he described as an “on and off” relationship but agreed that it was generally important for children to spend time with family.
(d)He maintained he and the mother had discussed her mental health condition when together and that she had taken medication for such, and he was not confusing the discussion for one about another mental health condition.
(e)He accepted that the children have a safe and loving relationship with the mother.
(f)Reflecting on the family violence incidents discussed at the hearing, the father accepted that there were probably occasions where he had raised his voice and that attending police had formed the view the mother was distressed. He also accepted that the parties’ arguments were often fuelled by alcohol and that the children, by hearing the arguments, had experienced family violence.
(g)He had previously accessed counselling through the Men’s Program and spoken with a psychologist in Suburb T at the time the children were withheld by the mother.
(h)He didn’t agree he needed alcohol counselling because he had dramatically limited his consumption, but would agree to such if the Court considered there was benefit. He said he would also agree to an order requiring him to inform the mother of any new charge against him and one restraining him from taking any illicit substances.
(i)He agreed that Y missed the mother and said he supports her by facilitating calls with the mother and doing activities with her. He said he would agree to an order requiring him to obtain a mental health plan for Y, to allow her to have the benefit of time with a psychologist.
(j)He would continue facilitating time between the children and their half-brother C as this was an important relationship and he had been involved in their life for years.
(k)He would not consider moving away from Tasmania as his family and life are here.
(l)He agreed he uses a babysitting service sometimes but said it was only once every ten days or so, and it allowed him to have a break and some “me time”.
In re-examination, the father confirmed he had deleted the messages on X’s iPad (referred to above at [14](ee)) as soon as he became aware of them and that he had paid and apologised for the damage he caused to Ms M’s property during the incident recorded in Exhibits R4 and R5. The father also stated that the SD memory card removed by the mother (referred to above at [14](t)) contained footage showing that he had not “barricaded” her in the driveway as she alleged.
The mother’s evidence
The mother was cross-examined and in substance, her evidence was as follows:
(a)She currently works five days per week between 8:30am and 5:00pm, with travel to and from work taking between 30 to 60 minutes.
(b)She resides in Melbourne with her partner and on alternate weekends his 13 year old son also resides there.
(c)She had last seen the children for a week in Victoria in early 2024. She was able to secure leave for the part of that time and the rest of the time her partner assisted with the children’s care. Prior to this, the children had last been with her in Victoria over the 2023 Christmas period for approximately five weeks, 14 days of which she had to attend work.
(d)She agreed she had come to Tasmania for a special occasion and X’s birthday. She disagreed there had been discussions about there not being a “break” in her time with the children but acknowledged the father had agreed to a variation in time to allow her to take the children to school.
(e)She usually arrives home from work between 5:40pm and 6:00pm and her partner finishes by 2:30pm. She stated that schools in Victoria typically finished between 2:45pm and 3:00pm and that after school, either her partner would care for the children or they would attend after school care. She had looked online at, but not made enquiries about, after school care programs or their availability to take the children.
(f)When the children are with her, she facilitates them communicating with the father by telephone and gives them privacy to do so.
(g)She had not seen the father in person since separation in April 2021, other than at changeovers or in Court, and their only communication was via text. She agreed there had been no allegations of family violence against the father since separation.
(h)She knew what school the children attended and contacted the school to obtain attendance records and “everyday plans” for them, but it had taken her a while to be able to access the parenting app. She last contacted the school a few weeks before the hearing date and agreed she had not had much contact before then. She said the school had not spoken with her regarding any of X’s behavioural issues.
(i)She agreed she received a payout $100,000 in late 2022 from the parties’ financial settlement. She still had $20,000 in a savings account but otherwise had spent the rest on travel with her children interstate so that they could have life experiences. She said she had also used the money for living expenses and moving house.
(j)Concerning child support, she agreed there was an assessment for her to pay the father and as of February 2023, there were arrears of $1,138. Asked why she had not paid this from savings at the time, she said she had no reason. A Child Support Account Statement issued in March 2024 is annexed to the mother’s trial affidavit and shows that as at that date the balance owed by the mother, being $383.98, had lessened.[14]
[14] Mother’s affidavit filed 18 April 2024 at annexure X.
(k)The children had stayed with her over Christmas 2022 and this was when they had done their extensive travel. She agreed that notwithstanding earlier discussions regarding the return of the children to the father on 29 January 2023, on that date she had told him she would not be returning them, stating that they were scared of him and were refusing to return. She also agreed that if the Order to return the children to the father had not been made on 8 February 2023, she would not have returned them.
(l)When asked whether she had given the father’s driving and doing a burnout as a reason for withholding the children, she agreed. She said the other reasons included the children being left for multiple nights with Mr S or with babysitters aged 12 or 13 years old, which information she said the children had told her. She agreed she had not checked with Mr S about the accuracy of this despite being on good terms with him. Nor had she made enquiries with anyone else to verify the information.
(m)That the children had told her every day of their trip that they did not want to return to the father and were left alone all the time and afraid of him. She agreed she hadn’t been made aware of any concerns regarding the children being afraid of the father by their school.
(n)The mother agreed she had not engaged with U Centre or sought to reach an agreement about parenting matters outside of these proceedings, but stated that it may because it was during her period of hospitalisation.
(o)She agreed the children had returned to Tasmania to live with the father in mid-2021 after she had initially taken them to Melbourne with her but couldn’t remember how that decision was made. She stated that she was not well at the time and not in the best financial position to care for them. She did not specify that the return of the children was for a temporary period. She stated she had told the father she would be “more than happy” for the children to return to her care but couldn’t say whether she had directly asked him to return them.
(p)Text messages sent to Mr S in mid-2021 recording that the children had stated they wanted to live with the father were put to the mother.[15] She agreed they appeared to have been sent by her but didn’t remember doing so.
(q)She agreed her sister had cared for the children for 21 days when she was hospitalised in 2021. Asked whether her sister could provide help with ongoing care if her health deteriorated, the mother stated that she could not because she had her own “personal issues” and care of her own children.
(r)When asked about her medical history with R Medical Clinic and a specialist, Dr V, the mother agreed that she has had relapses in her medical condition but said it is more treatable now because she has the correct medication.
(s)There were a number of questions about the mother’s mental health history, which established that not all of her records from R Medical Clinic were produced or made available to the Court.[16] She agreed she had attended a psychologist to help let go of anger towards the father and consultation notes recorded that she had tried to seek treatment and psychological assistance. She also agreed she was taking prescribed medication in 2021 and that it had made her angry.
(t)She could not recall details of a family argument between herself and a former partner, Mr W, which had been reported to Child Safety Services.[17]
(u)Statements from a conversation between the mother and father in mid-2015 were put to her,[18] and she agreed she had made them. An audio recording of this conversation made by the father was received by the Court as Exhibit A3.[19]
(v)She agreed she removed the SD card with CCTV footage at the Suburb Z property in early 2021,[20] and had not given it to police at the time but denied this was because it would demonstrate the father’s version of events to be true.
(w)Asked about the letter from Dr E of 4 December 2023,[21] she agreed she currently takes prescribed medication, the former of which she takes to help her sleep. She said she had looked at the consumer information for her medication briefly and agreed it was a medication that could be used to treat a mental health condition.
[15] Exhibit A1.
[16] ‘Exhibit 12’ of the father’s affidavit filed 11 April 2024.
[17] Exhibit A2.
[18] Referred to in the father’s affidavit filed 11 April 2024 at [46].
[19] The parties agreed that the audio at 8:30 min - 13:30 min of that recording was to be received as Exhibit A3.
[20] Referred to above at [14](t) of these reasons.
[21] Annexure E to mothers affidavit filed 18 April 2024.
When cross-examined by the ICL, the mother's evidence, in summary, was:
(a)She does not see a psychologist. She sees a psychiatrist who recommended she undertake a domestic violence program but she hasn’t yet commenced such a program.
(b)Phone communications with the children were working well and that she speaks with X a lot but less with Y. She agreed it would probably work better for calls to occur between around 5:00pm to 5:30pm, rather than later during the children’s dinner time, and that she could facilitate calls then.
(c)She does not stay with the maternal grandmother when she spends time with the children in City B because she lives in a small unit with her brother but said the children have a good relationship with the maternal grandmother and their uncle.
(d)That the cost of a visit to City B, including accommodation for two to three nights, car hire and airfares, is between $1,000 and $2,000.
(e)She is not critical of the father using daycare but has concerns that the children don’t always know when they will be collected if they stay with Mr S. She said X had told her he does not want to stay there because his cousin is mean. She is satisfied the children are spending regular time with their half-brother, C.
(f)Her concerns about the father caring for the children were in respect of his alcohol and drug use and the risk of family violence. She agreed the father’s alcohol use had improved in the last year and that their communication had also improved, such that she could have a child focused conversation with him and was able to perform changeovers in person.
(g)Asked what she would like to be different, she said she would like not to be “blamed to the school”, which I took to mean blamed for the difficulties X experienced and which are the subject of the father’s evidence at [14](f) of these reasons.
(h)If the children relocated to live in Victoria with her, she would accommodate them seeing a psychologist and believes she has supports in place to be able to manage the change in their living arrangements.
In re-examination, the mother gave evidence that:
(a)In about early 2023, she tried to open the files on the SD memory card she had retrieved from the home CCTV system in early 2021 but it was encrypted and she has not been able to access them; and
(b)Responding to the suggestion that she had failed to put her full medical history before the Court, the mother explained the steps she had taken to try and obtain her full medical records from R Medical Clinic after discovering it had closed.
The mother’s financial statement filed 18 April 2024, an extract of Child Safety Services records, and the affidavit of Mr S filed 17 April 2023 were relied upon in the mother’s case and marked by the Court as Exhibits R13, R14 and R15 respectively.
Evidence of the Court Child Expert
The ICL relied on the Child Impact Report and Family Report (Exhibits R11 and R12) and CCE Ms H attended the defended hearing and gave oral evidence. In addition to the materials referred to in her reports, for the purpose of giving evidence the CCE had viewed by agreement Exhibits ICL1, R4, R5 and R8, being photographs, a video recording and a Notice to Admit.[22]
[22] Referred to above at [14](o) and [14](ee) of these reasons.
When cross-examined by counsel for the father, the CCE agreed that the two courses the father had completed would be of benefit to him in parenting and are courses that are regularly recommended if there are allegations of family violence and distrust. When informed about the father’s evidence regarding the “BIFF” practice,[23] the CCE agreed that the father’s approach, in keeping with the BIFF practice, is positive and proactive and a useful strategy to reduce the risk of family violence.
[23] Father’s affidavit filed 11 April 2024 at [51].
The CCE agreed that neither child had made any statements or disclosures at interview about being scared of the father. She also agreed that, setting aside the allegations of family violence, alcohol and drugs, the children were cared for well by the father and their needs were met. Asked about the changes in the children’s primary residence in April 2021 and January/February 2023, the CCE stated that multiple relocations are disruptive but noted that the impact of such on children is influenced by the circumstances, and care by, and attachment to, each parent. She also noted that when children were school-aged, relocation may disrupt their education and development.
When cross-examined by counsel for the mother, the CCE identified potential predictors of future family violence, stating drug use can change behaviour and cause behavioural dysregulation and so, if there is family violence, drug use and alcohol abuse will exacerbate those behaviours. Asked about the father's history of family violence, she stated that the history of incidents across a number of relationships suggested there was a likelihood it may occur in the future.
The CCE had not previously seen the videorecording of the incident involving property damage at Ms M’s property and said it showed someone being violent and aggressive towards a fence and door. She said the photographs and video footage suggested that the father uses aggressive behaviours inappropriately and those behaviours could result in family violence if not controlled.
Referred to [30] of Exhibit R12, in which the father described the incident with the property damage as a “misunderstanding”, the CCE said this demonstrates that he was not taking accountability for the level of action and if he did not see damage to property by him as family violence, this would increase the risk of similar behaviour because how family violence is perceived by others is relevant.
The CCE confirmed that a change in primary care may not be overly disruptive to the children even if it involved moving interstate. They had previously been in primary care of the mother and if there was to be a further change, it would be preferable for it to occur now rather than when the children were launching into puberty or a big developmental stage. The CCE confirmed that there would be an inevitable level of disruption in a relocation but that the children’s close, secure relationship with each of their parents would support them during any such change. She stated that her observations of the mother were that she was appropriately loving and caring.
Counsel for the ICL put various school reports for both children to the CCE,[24] and she agreed that any concerns she may have regarding their progress could be ameliorated by the Court making an order that both children receive support from a psychologist. She also agreed that, during interviews, both children presented as missing their mother but settled in their current living arrangements.
[24] Exhibits ICL2 and ICL3.
At the close of the evidence, the parties agreed that they ought to provide their closing submissions in writing. Those submissions have been received and considered by the Court, together with all other material relied upon by the parties or received by the Court as exhibits.
LEGAL PRINCIPLES – PARENTING
As these proceedings were heard and judgment reserved prior to 6 May 2024, the provisions of the Family Law Act 1975 (Cth) (“the Act”) prior to commencement of the Family Law Amendment Act2023 (Cth) apply to determining the issues in dispute. All references to the Act refer to its provisions as they were prior to 6 May 2024.
Pursuant to those provisions, the paramountcy principle require the Court to make orders that are in the best interests of the child.[25] Express direction is provided in s 60B(1) of the Act that this object is to be achieved by ensuring that the child has the benefit of both of their parents having meaningful involvement in their life, to the maximum extent consistent with the child’s best interests. The Court is to inform itself of the child’s best interests by the considerations in ss 60CC(2) and (3) of the Act.
[25] Section 60CA of the Act.
Section 60CC(2) of the Act requires the Court to make orders that are conducive to a child having a meaningful relationship with both parents, but not if this would detract from necessary protection of the child from physical or psychological harm or exposure to abuse, neglect or family violence. The assessment required also involves consideration of the many factors in s 60CC(3) of the Act, relevant to the circumstances of any given case, but there is no ranking of importance or order of consideration of the relevant factors.[26]
[26] See Aldridge & Keaton [2009] FamCAFC 229 and Slater & Light [2011] FamCAFC 1.
The Court is also to apply a rebuttable presumption that it is in a child’s best interests for the parents to have equal shared parental responsibility.[27] This presumption accords with the objective referred to in s 60B(1) of the Act. The meaning of parental responsibility is expressly, but not exhaustively, provided for in the Act.[28]
[27] Section 61DA(1) to 61DA(4) of the Act.
[28] Sections 61B and 65DAC of the Act.
Except in the case of consent orders, if the Court is satisfied that the presumption of equal shared parental responsibility applies and is not rebutted it must first consider if the child spending equal time with each parent would be in their best interest and if practicable, make such an order.[29]
[29] Section 65DAA of the Act.
If not persuaded to make an equal spend time with order, the Court must then consider whether the child spending substantial and significant time with each parent would be in the child’s best interests and if so and it is reasonably practicable, an order for substantial and significant time should be made. The meaning of “substantial and significant time” is provided for in s 65DAA(3) of the Act as it was.
In MRR & GR [2010] HCA 4, the High Court provided guidance in relation to how the provisions in s 65DAA of the Act are to be applied and I have had regard to that authority. I am also mindful of the required decision-making pathway established in Goode & Goode [2006] FamCA 1346.
The approach to be taken in applying s 60CC(2) of the Act as it was, is discussed in detail in the first instance and appeal judgments in Isles & Nelissen[30] in the context of the assessment of risk where the mother of a child alleged that the father had sexually abused the child. The principles stated in my view are applicable to assessment of the nature and extent of risks more broadly, including when assessing the risks of harm to the children alleged by the mother should they remain in the father’s primary care.
[30] [2021] FedCFamC1F 295; and [2022] FedCFamC1A 97.
DISCUSSION OF EVIDENCE AND FINDINGS
In view of the competing submissions summarised at [6] and [7] of these reasons, there is a need to make findings about disputed facts. Namely, about:
(a)The extent of the father’s family violence and whether it currently presents a risk of harm to the children; and
(b)The extent of the father’s use of illicit substances and whether this presents a risk of harm to the children.
As neither party asserted that the other was incapable of properly or adequately providing for the children’s day to day and basic needs, parenting capacity does not arise as a particularly relevant consideration in the assessment of what is in the children’s best interests.
Family violence
The mother’s case highlighted and relied upon four incidents of family violence,[31] and she submits that the children have been exposed to the perpetration of both physical and emotional family violence by the father.
[31] Mother’s written closing submissions filed 30 April 2024 at [7] to [15].
Concerning the first incident in mid-2014, I find that this incident involved mutual arguments between the parents. I am not persuaded that the father strangled the mother or attempted to do so, as submitted by her counsel.[32] It is unlikely that the mother would not have mentioned to police that the father had grabbed her neck if it had occurred despite her evidence that she was scared as she contemplated returning to the property to collect the rest of her belongings.[33]
[32] Mother’s written closing submissions filed 30 April 2024 at [7].
[33] Exhibit R9, section 69ZW response from Tasmania Police, p 6.
I also prefer the submissions of the ICL in relation to the incident of alleged family violence said to have occurred in mid-2015. I find that it was a verbal altercation and although I accept that the mother was likely distressed and feeling vulnerable at the time, it is probable that this resulted from each party wishing to retain X. The mother’s demeanour and statements at the time as evidenced by the audio recording demonstrate that she was agitated and the father was relatively calm.[34]
[34] Exhibit A3.
I am satisfied that the father physically assaulted the mother at AA Venue in late 2015, noting that he pleaded guilty to the charge of common assault relating to this incident.[35] Of relevance to this is that both parties had been consuming large quantities of alcohol and similar conduct on the part of the father towards the mother has not been repeated.
[35] Exhibits R3 and R6.
I find that the parties separated for a period after the assault in late 2015, then resumed cohabitation and married in 2016. Notably, there is no evidence of conflict or violence between the parties for some five years.
The parties’ evidence about when they separated and the final incident of alleged family violence in April 2021 is conflicting.[36] As the mother concedes that the father had moved to a different part of the house and that she instigated “final separation” four days before prior to the incident in April 2021, I find that it is likely the parties had temporarily separated earlier in 2021.
[36] Mother’s affidavit filed 18 April 2024 at [85] to [93]; and the father’s affidavit filed 11 April 2024 at [9]-[11].
The mother’s medical records in early 2021 corroborate the father’s evidence that she was quite unwell in this period due to her physical conditions and mental health state. I find that her experience of the conflict with the father in April 2021 is greatly contributed to by her physical and psychological symptoms and effects of medications she was taking at the time.[37]
[37] “Exhibit 12” and “Exhibit 14” to the father’s affidavit filed 11 April 2024.
Based on the content of the police records there was likely a basis for making a family violence order because of verbal aggression by the father towards the mother, but I do not accept as reliable the mother’s account that her presentation to police was due to serious threats of physical harm by the father. I am satisfied that the father was angry and frustrated and probably responded by verbally abusing the mother at the time of this incident. I draw this inference based on the type of aggression the father is clearly capable of, albeit while intoxicated, as depicted by the videorecording in evidence relating to the property damage he caused.[38]
[38] Exhibits R4 and ICL1.
I find that one or more children were present at the time of the final incident of family violence in April 2021, which likely was confined to verbal abuse and aggression by the father. Otherwise, I find that the children were exposed to both parties arguing and fighting given the reports to the CCE, which are demonstrative of their lived experience.[39]
[39] Exhibit R11, Child Impact Report, at [18], [23] and [25].
Although the mother submits that the father continues to pose a risk to the children based on exposure to family violence, I do not consider this likely and only a possibility of low risk of harm. In arriving at this conclusion, I note that the consistent evidence is that there has been no family violence by the father since 2021 and one episode of violent conduct in 2022 when the father was quite intoxicated.
I accept the views of the CCE that the behaviour of the father which I have found to be violent indicates a level of behavioural dysregulation[40] but I find that the likelihood and extent of this posing risk to the children is low in the future given the historical findings.
[40] Exhibit R12, Family Report, at [67].
Although the CCE suggested that the father minimised his violent behaviours, having had the benefit of hearing all the evidence and made the findings at [41] to [50] of these reasons, I do not accept that is so. He did deny some allegations against him (and I have not accepted all of those denials), but admitted others and showed contrition and willingness to undertake re-education and moderate his behaviour. The father’s presentation was not of a person who lacks insight to such an extent that he poses a material risk to the children in the future.
Illicit substance and alcohol use
Both parties admit to using illicit substances and alcohol to excess on occasions during the relationship. To deny this would have been fanciful given the content of the police reports before the Court.
The allegation that the father was dealing illicit substances is not made out. However, I find that it is likely that, based on his record of criminal convictions that between 2010 and 2012, he variously grew, possessed and provided cannabis to others, including the mother.[41]
[41] Exhibit R3, father’s prior convictions, at p 3 of 5.
I am also satisfied that the father has previously used illicit drugs recreationally, and is likely to continue to do so into the future, because of:
(a)His admitted historical use;
(b)The content of the messages produced by the mother at annexure Q of her affidavit filed 18 April 2024; and
(c)The positive saliva test result for illicit drugs in mid-2023.[42]
[42] Referred to above at [14](cc).
However, I am not satisfied that the father is a habitual and heavy user of any illicit substances because if he was:
(a)Police would likely have detected drugs during the search of his property in 2021 and charged him;
(b)It is unlikely he would be able to maintain full-time employment or full-time care of the children with no sign of neglect of their needs; and
(c)There would likely have been positive tests results for all three of the screens performed and there was not.
It is concerning that the father maintained he does not use illicit drugs, because that defies the objective evidence before the Court and I accept there is the possibility that he has not been truthful about ongoing use of illicit drugs. This possibility, however, needs to be evaluated in the context of the risk or harm to which his continued recreational use is likely to expose the children. Given the preponderance of evidence that the children are well-cared for and loved, attending school and performing satisfactorily and according to age expectations, I am not satisfied that the father exposes the children to a risk of harm from recreational use of drugs. Nonetheless, a protective injunction will reinforce the expectation that the father must never expose the children to illicit drug use and, appropriately, the parties have agreed to such an order being made.[43]
[43] Agreed Form of Final Orders, marked by the Court as MFI-3.
Other relevant findings
Aside from the findings above, it is necessary to make findings about other relevant ss 60CC(2) and 60CC(3) considerations in order to evaluate what parenting orders should be made in the children’s best interests. Accordingly, I find as follows:
(a)The children each have a meaningful and loving relationship with the mother and father and a close bond with each of their parents. In the mother’s case, she was the historical nurturer and primary carer and in the father's case, he has been the nurturer and primary carer since mid-2021, only interrupted by the mother withholding the children in January 2023.
(b)I find that the mother did withhold the children in January 2023 and that prior to the children travelling to see her for the Christmas holidays in 2022, there was an agreement between the parties that the children would live with the father indefinitely. In view of the evidence before the Court,[44] is likely that the parties would not have expressly agreed in mid-2021 that the children would only temporarily live with the father and then return to live with the mother, simply because of the gravity of the mother’s ill-health and it being unknown when and if she would recover sufficiently to resume primary care of the children.
[44] Summarised in the ICL’s written closing submissions filed 30 April 2024 at [26] to [29].
(c)I also accept the submissions of counsel for the ICL[45] and find that when the mother withheld the children, she did so motivated by a desire to gain a practical advantage over the father and use the holiday to influence the children’s wishes to remain living with her.
[45] ICL’s written closing submissions filed 30 April 2024 at [30] to [31].
(d)Both parties contributed to parenting during the relationship and post-separation the mother’s capacity to meet her obligations were sadly compromised by both physical and psychological ill health, as is clearly established by the medical records in evidence.
(e)Since the children’s return to Tasmania in mid-2021, the father has fully participated in parenting and providing for their physical and emotional needs.
(f)The views of the CCE were to the effect that the children would likely adjust satisfactorily to a change in primary care should the Court order that they live with the mother.[46] However, this view is premised on an assumption that the mother’s health will not decline again. In view of the extent of the mother’s medical condition and the objective evidence of her mental health difficulties,[47] there is a risk that she may be unable to care for the children again in the future. This risk, in my view, is real and significant noting that the mother’s case was that she would be working full-time, would require her partner’s support to care for the children and had limited extended family available to assist her.
(g)I do not accept the submission that the father has failed to attend to X’s behavioural challenges or facilitated psychological supports for both children. I find, because it was not contradicted, that the father has engaged with the school to address X’s behaviours and taken both children to limited counselling with BB Therapy.
(h)I also do not accept the suggestion by the mother that X’s behavioural dysregulation is because of alleged family violence by the father.[48] This is mere speculation, unsupported by probative expert evidence. The cause of X’s behaviours could be many including instability in living between his parents, their separation, a possible diagnosis of ADHD which is to be investigated in conjunction with the school.
(i)The father has facilitated the children’s time and communication with the mother.[49] The mother was, on the other hand, obstructive of the return of the children to live with the father in 2023. This causes me to infer that the mother would not support the children’s relationship with the father to the same extent as he supports their relationship with her.
(j)Both children have adjusted and coped well with the return to live with the father in Tasmania after being withheld in early 2023. They are regularly attending school, participating in social and recreational activities, and have friends and extended family in Tasmania with whom they regularly spend time.[50]
(k)Although Y reported missing her mother, that is to be expected given her age and stage of development. As Y ages and matures, there will be opportunity and practical ability for her to spend more time with her mother should she wish to do so.
(l)I infer that it is likely that the children would be adversely affected by yet another move and separation from their father with whom they have an established pattern of care, bond and activity routines.[51] There is also the risk that any move to live with the mother could be temporary only due to her unstable health, meaning further instability. It is also notable that X has expressed a wish to live with the father and it would be undesirable to separate the siblings.[52] Although the children have moved residence and schools, there is no evidence of these moves being particularly destabilising. The father has ensured that the children are adequately housed, cared for and educated.
(m)I find that the father did refuse to undergo another drug test in early 2024, but in view of the testing he had already undertaken and the cost of the test, I consider it was reasonable for him to refuse. Given my findings about illicit drug use by the father, I consider that the mother has a heightened and unreasonable view of his current use of illicit substances.
(n)I reject the submission that the father’s allegation about the mother suffering a mental health condition is malicious. The mother’s medical records demonstrate serious symptoms of psychological or psychiatric disorder, for which she sought treatment and was medicated.[53] Further, she was referred to a psychiatrist and regardless of what formal diagnostic label is attributed to her presentation, on any reasonable view the father had a basis for his evidence about the mother’s psychiatric health.
(o)Noting the mother’s concessions in oral evidence that the parents have been communicating about child-related issues, I am satisfied that their communication has improved and that the conclusion of these proceedings should serve to maintain child-focused communications.
[46] Exhibit R12, Family Report, at [74].
[47] Mother’s affidavit filed 18 April 2024 at [37]-[61] and pp 65-82; and father’s affidavit filed 11 April 2024 at pp 86-91, 140-141 and 143.
[48] Mother’s case outline filed 22 April 2024 at [43].
[49] See [17](d) and [18](b) of these reasons.
[50] Including C, their maternal half-brother.
[51] Exhibit R12, Family Report, at [66].
[52] Exhibit R11, Child Impact Report, at [15].
[53] Father’s affidavit filed 11 April 2024 at pp 86-91, 140-141 and 143.
EVALUATION AND DETERMINATION
Weighing and balancing the findings made in the reasons above and applying the relevant law, I am not satisfied that the father poses an unacceptable risk of harm to the children. To the contrary, he is a capable and willing parent who has attended to the children’s needs such that they present in a largely positive way.[54] There is a very small risk of the children being exposed to family violence or misuse of alcohol or drugs by him, but this will be mitigated by injunctive orders.
[54] Exhibit R12, Family Report, at [66].
If the Court ordered that the children live with the mother, this would involve uncertainty about future stability and whether the mother could cope with being the sole full-time carer assisted only by her new partner about whom there is limited evidence before the Court. This would carry greater risk of the children being destabilised and potentially harmed, with their needs not being met.
I accept the submissions of the ICL that the children should remain living with the father and spend significant time with the mother,[55] only restricted by the practical barrier of the mother’s choice to live in Victoria. As I have not accepted the extent of family violence alleged by the mother, I consider it likely that if she were to return to Tasmania, the parents could and would co-parent effectively, particularly given the unchallenged evidence about their ability to reach agreement about additional time and their mutual concern to ensure the children’s needs are met. However, I have not addressed the possibility of specific parenting orders tailored to suit the mother returning to Tasmania to reside, other than accepting that it is not unreasonable to make an order in similar terms to that which the parties sought by consent.[56]
[55] ICL’s written closing submissions filed 30 April 2024 at [39] and [40].
[56] See MFI 3, at [5].
For all the foregoing reasons, there will be an Order that the children live with the Father.
Although the mother’s submissions invited the Court to make an adverse finding to the effect that the father had not engaged the children with adequate psychological supports, the CCE suggested that the children could be supported by CC Organisation in respect of family violence exposure. The unchallenged evidence is that the father has facilitated sessions with BB Therapy and did not continue these based on recommendations from the counsellor/psychologist. I am not persuaded that the father would not follow recommendations of doctors, psychologists and educators about either of the children’s physical or mental health and management of such. There is no compelling evidence that the children now need to participate in counselling with CC Organisation however, the parties have agreed to an order that the children engage with a psychologist.
The parties were otherwise agreed about the Final Orders the Court should make.[57] Meaning that the only other determination necessary was about mechanical provisions for how the cost of travel should be paid to facilitate the mother spending time with the children if she remained living in Victoria. Initially, the father proposed that the parent who would spend time with the children should wholly pay for the children’s airfares, but under cross-examination and in view of his financial position, he agreed he ought to pay half of the children’s airfares. This was an entirely appropriate concession.
[57] MFI-3, Agreed Form of Orders.
I am persuaded that in view of the parties’ respective financial circumstances and the mutual obligation of the parents to facilitate a relationship between the children and the mother, the orders jointly proposed by the parties in MFI-3 are in the children’s best interests.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 24 July 2024
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