HALVILLE & TALMAGE

FEDERAL CIRCUIT COURT OF AUSTRALIA

HALVILLE & TALMAGE

[2019] FCCA 3621

Catchwords:
FAMILY LAW – With whom an 11-year-old child should live – where the expert opinion is not challenged at trial – where the mother has lived in more than 15 places since the child’s birth – where the child should attend high school.

Legislation:

Family Law Act 1975 (Cth), ss.4AB, 60B, 60CA, 60CC, 64B

Cases cited:

Mazorski v Albright [2007] FamCA 520

Applicant:

MR HALVILLE

Respondent:

MS TALMAGE

File Number:

MLC 2978 of 2017

Judgment of:

Judge Small

Hearing date:

18 February 2019

Date of Last Submission:

20 February 2019

Delivered at:

Melbourne

Delivered on:

13 December 2019

REPRESENTATION

Counsel for the Applicant:

Mr Glezakos

Solicitors for the Applicant:

Carew Counsel

Counsel for the Respondent:

Mr Thistleton

Solicitors for the Respondent:

Bayside Solicitors

Counsel for the Independent Children's Lawyer:

Ms Boymal

Solicitors for the Independent Children's Lawyer:

Altavilla Family Law

ORDERS

All previous parenting orders in relation to the child X born in 2008 (“the child”) are hereby discharged.
The parents shall have equal shared parental responsibility for the child.
The child shall live with the father.
The child shall spend time and communicate with the mother:
(a)During school terms:
(i)on each alternate weekend from the conclusion of school on Thursday to the commencement of school on Tuesday;
(ii)on each alternate Thursday from the conclusion of school to the commencement of school on Friday;
(iii)at other times as agreed between the parties in writing;
(b)For half of all school term holidays by agreement between the parties and failing agreement from the conclusion of school on the last day of term to 6:00pm on the second Saturday in even-numbered years and from 6:00pm on the second Saturday to the commencement of school on the first day of the next school term in odd-numbered years;
(c)For half of the long summer holidays each year by agreement between the parties and failing agreement for the second half in 2019-2020 and in each alternate year thereafter, and for the first half in 2020-2021 and in each alternate year thereafter, and for the purpose of this order the long summer holidays shall commence at the conclusion of school on the last day of the school year and shall conclude at 6:00pm on the last Sunday of the holidays;
(d)from 6:00 p.m. on Christmas Eve to 11:00 a.m. on Christmas Day in odd-numbered years, and from 11:00 a.m. on Christmas Day to 6:00 p.m. on Boxing Day in even-numbered years;
(e)from 6:00 p.m. on the day before Good Friday to 6:00 p.m. on Easter Saturday in even-numbered years, and from 6:00 p.m. on Easter Saturday to 6:00 p.m. on Easter Monday in odd-numbered years;
(f)for the child’s birthday by agreement between the parties and failing agreement:
(i)when the birthday falls on a school day, from the conclusion of school, or 4:00 p.m. if not a school day, to 7:00 p.m. on the day before the birthday in even-numbered years, and from the conclusion of school to 7:00 p.m. on the birthday in odd-numbered years;
(ii)when the birthday falls on a non-school day, from 10:00 a.m. to 2:00 p.m. in even-numbered years, and from 2:00 p.m. to 6:00 p.m. in odd-numbered years;
(g)from 6:00 p.m. on the evening before Mother’s Day to 6:00 p.m. on mother’s Day each year;
(h)from the conclusion of school, or 4:00 p.m. if not a school day, to 7:00 p.m. on the mother’s birthday each year;
(i)at other times by agreement between the parties in writing.
The child’s time with the mother shall suspend if necessary on the following occasions:
(a)for the child’s birthday by agreement between the parties and failing agreement:
(i)when the birthday falls on a school day, from the conclusion of school, or 4:00 p.m. if not a school day, to 7:00 p.m. on the day before the birthday in odd-numbered years, and from the conclusion of school to 7:00 p.m. on the birthday in even-numbered years;
(ii)when the birthday falls on a non-school day, from 10:00 a.m. to 2:00 p.m. in odd-numbered years, and from 2:00 p.m. to 6:00 p.m. in even-numbered years;
(b)from 6:00 p.m. on the evening before father’s Day to 6:00 p.m. on father’s Day each year;
(c)from the conclusion of school, or 4:00 p.m. if not a school day, to 7:00 p.m. on the father’s birthday each year;
(d)at other times by agreement between the parties in writing.
The time the children spend with the mother pursuant to paragraph 4(a) hereof shall suspend during all school holidays and shall resume after the holidays as if the holidays had not intervened.
When the child’s time with the father is expressed to commence or conclude at the conclusion or commencement of the child’s school day, then changeover shall take place at the child’s school, and at all other times changeover shall take place at the McDonald’s restaurant closest to the midpoint between the parties’ residences, or at such other venue as the parties agree in writing.
The father shall ensure that the child’s school makes available to the mother, at the mother’s expense if any, all school reports, photographs, information about parent-teacher interviews, sporting or cultural events, and information about all prizes or awards won by the child, and the parents, and their partners if any, shall all be at liberty to attend parent-teacher interviews, at different times should they so choose, and at all sporting or cultural events usually attended by parents.
The parties shall each inform the other of any serious illness or injury suffered by the child which requires hospitalisation or specialist treatment while she is in their respective care, and they shall authorise any treating medical or allied practitioner who is treating her to speak to the other parent about the child’s treatment.
Save in the event of an emergency, the parents shall communicate about the child’s care and welfare using a parenting application such as “2houses” or “Our Family Wizard”, and each shall bear his or her own cost of the use of such applications.
The parties and their servants and agents be and are hereby restrained by injunction from:
(a)abusing, insulting, belittling, criticising, rebuking or otherwise denigrating the other or any member of the other’s family or household in the presence or hearing of the child and from permitting any other person to do so;
(b)discussing these proceedings with or in the presence or hearing of the child (save to explain any changes in her living circumstances to her) and from permitting any other person to do so; and
(c)allowing the child to access, read, or have read to her, any portion of the Court’s Reasons for Judgment in this matter.
The child shall attend B School for her secondary education unless and until the parties agree in writing to enrol her in a different school.
The order of Judge Small of 29 May 2017 appointing the Independent Children’s Lawyer is hereby discharged.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 2978 of 2017

MR HALVILLE

Applicant

And

MS TALMAGE

Respondent

REASONS FOR JUDGMENT

Introduction

These are parenting proceedings between Mr Halville (“Mr Halville” or “the father”) and Ms Talmage (“Ms Talmage” or “the mother”).
There is one child of the relationship, namely X born in 2008 (“X” or “the child”).
The child currently lives with her father and spends time with her mother as follows:
·In week 1, from the conclusion of school Thursday until commencement of school on Monday;
·In week 2, from the conclusion of school Thursday until the commencement of school on Friday; and
· Half of all Victorian term school holidays.
The father seeks orders that the parties retain equal shared parental responsibility for X; that X live with him; and that she spend time with her mother on each alternate weekend from the conclusion of school on Friday until commencement of school on Wednesday, during school holidays, and on special occasions.
The mother seeks orders that the parties retain equal shared parental responsibility for X; that X live with her; and that she spend time with her father each alternate weekend from the conclusion of school Wednesday until commencement of school Monday, during school holidays, and on special occasions. Alternatively, the mother seeks week about equal shared care for X.
The Independent Children’s Lawyer supports the orders sought by the Father.
The issues to be decided in this case are:
A. Where and with whom X should live;
B. How much time X should spend with the non-resident parent; and
C. Where X should attend high school from the 2020 school year.

Background

Mr Halville was born in 1987 and is currently 31 years of age. He lives in Town C, Victoria and is a tradesman. He is in good health.
Mr Halville has re-partnered with Ms A (“Ms A”). He has two children with Ms A, namely D born in 2015 (“D”) and E born in 2016 (“E”).
Ms Talmage was born in 1989 and is currently 30 years of age. She lives in Suburb F, Victoria. She is engaged in home duties. She is in good health.
Ms Talmage has a child from a subsequent relationship, namely G born in 2014 (“G”), whose father is Mr H (“Mr H”). Ms Talmage was in a relationship with Mr H for three years while she was living in Town J in Victoria. Mr H does not have any contact with G. Ms Talmage has re-partnered with Mr K (“Mr K”), with whom she now lives.
X attends L School in Suburb M where she is in Grade 6. She will begin high school in 2020.
The parties met and had a brief encounter in about 2007. X is the result of that encounter, although upon her birth in 2008, Ms Talmage had the name of her then de facto partner registered as X’s father on her birth certificate.
Mr Halville says he was unaware of X’s birth until a friend made him aware of a photograph of her in a Facebook post in early 2011 and he recognised that she looked like him. He then contacted Ms Talmage, met X in about 2011, and commenced an intimate relationship with Ms Talmage in about 2011, that relationship breaking down in November of the same year.
Only when Mr Halville’s paternity was confirmed by two separate paternity tests was he named on X’s birth certificate as her father.
Over the succeeding years, Mr Halville’s contact with X was sporadic and irregular, as Ms Talmage moved her place of residence regularly, including spending 18 months living in Queensland.
Both parties allege the other was using illicit substances during that time.
Until November 2016, Ms Talmage had been X’s primary carer. From November 2016 until February 2017, the parties shared her care by agreement. Since approximately February 2017, X has resided in Mr Halville’s primary care and has spent significant and substantial time with Ms Talmage.
Mr Halville filed his Initiating Application for parenting orders on 28 March 2017.
Ms Talmage filed her Response on 19 May 2017 and an Independent Children’s Lawyer was appointed by order of the Court on 29 June 2017.
After several interim hearings and the preparation of a Family Report by Mr N (“Mr N”), Final Hearing commenced on 18 February 2019 and the matter ran for 3 days. The mother, the father and the Independent Children’s Lawyer were all represented by counsel.
Witnesses at trial included the Father, Ms A, and the Mother.
Neither Mr N, nor the paternal grandparents, Mr O (“Mr O”) and Ms P (“Ms P”), both of whom filed affidavits in the proceedings, were required for cross-examination.
Following the conclusion of evidence and submissions on 20 February 2019, I reserved my decision.

Issues and Evidence

It is not possible to refer to every fact and/or matter raised in the trial of these proceedings and nor is it necessary to do so. The parties should understand that I have had regard to the whole of the evidence, including my notes and the demeanour of the parties over the three days at trial, and if I have not referred to a particular fact or matter it does not mean that I have not considered it.

Issue A. Where and with whom X should live

An order providing for a child to live with a parent is a parenting order: see s.64B(1)(a) and s.64B(2)(b) of the Family Law Act 1975 (Cth) (“the Act”)
The law in relation to parenting orders is found in Part VII of the Act.
S. 60B sets out the objects and principles of Part VII and I set them out here 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 communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act states that in contemplating making any parenting orders the Court must take the best interests of the child or children as its “paramount consideration”.
Section 60CC then sets out 16 separate factors which the court must consider when it is making orders that are in a child’s best interests.
The first two considerations are called “primary considerations” and are found in s.60CC (2) which reads:
(2)    The primary considerations are:
(a)    the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)    the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note:     Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Section 60CC(2A) states that in applying those primary considerations the court must give greater weight to the need to protect a child than to the benefit to the child of having a meaningful relationship with both parents.
That is, while I must make orders which allow for meaningful relationships between X and both her parents to flourish, my main concern must be to ensure that she is protected from any harm.

Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents

The meaning of the term “meaningful relationship” has been addressed in several cases that have come before this court and the Family Court of Australia.
In an oft quoted passage from the judgment of Brown J in Mazorski v Albright [2007] FamCA 520, Her Honour said at paragraph 26:
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.
Clearly X has a meaningful relationship with her mother in the terms set out by Brown J. Her mother was her primary carer from her birth until February 2017, when she was about 8 ½ years old.
Indeed, Mr N’s evidence is that X’s relationship with her mother is so important, significant and valuable to her that she has developed an insecure attachment to her mother, which has led to her becoming somewhat parentified in that relationship.
In Mr N’s Family Report, which I note was not challenged at trial, he states, at paragraph 35:
[…] What quickly became apparent about X’s presentation was the level of anxiety she experienced when separated from her mother. While she conveyed a sense of dependence, trust and reliance upon her mother, there was also a significant, pervasive, anxious quality to the relationship. She worries about her mother when she is not physically with her mother; she is uncertain about whether her mother can care for herself, and in this regard, there was a reversal of roles. X acknowledged that when she goes to school, she worries about her mother’s welfare, what her mother will be doing, and what might happen to her; because of these worries, it can be difficult to separate from her mother and I suspect, it can be difficult to concentrate. […]
And, in paragraph 36:
[…] She elaborated that it was more important to be with her mother than to be with her friends, that she did not like leaving her mother, that being separate from her was frightening to her, and that it did not feel safe for her to not be physically in her mother’s presence. She was immediately teary when she spoke about how she was often frightened for her mother’s safety and well-being, and often fearful that something bad would happen to her mother. X is only temporarily reassured if she is physically in her mother’s presence, knowing that her mother is safe and well, but this feeling does not endure.
Mr N states, in the “Conclusions” section of his report, that “from a psychological perspective, what is the most significant and most relevant (feature of X’s presentation) is that X presents with not only features of separation anxiety, but an insecure, anxious and ambivalent attachment to her mother”.
At paragraph 54 of the Family Report, Mr N writes:
It is important to note that X does have a good relationship with her mother, but it is an anxious relationship. There was a frenetic quality to her interaction with her mother that was absent with her father. X wants to be with her mother, but there was also a desperate quality to want to cling to and return to her mother, amidst a preparedness on the part of X to dismiss the significance of social and personal relationships, including the stability of her school life in favour of being with her mother. Whilst at one level this might superficially be seen to be reflective of the strong relationship, it is more likely reflective of a relationship that has experienced stress and disruption, such that X does not feel a core sense of being absolutely safe to be separate, involved elsewhere, and pursuing her own goal oriented activities. In this regard, there is a quality of X’s presentation that is parentified, that is, that she is concerned for the welfare of her mother above and beyond concerns for herself; the ease with which she could dismiss her social network, familiarity of school, and friendships should not be taken lightly, and reflects something about the potential lack of investment in, and security of relationships, and more importantly reflects a template for future interpersonal functioning.
While Ms Talmage was critical of Mr N and denied that there was anything to be concerned about in X’s attachment to her, she did not call Mr N to give evidence under cross-examination at trial, and therefore her views could not be put to him.

Mr N’s comments about X’s relationship with her mother, untested and unchallenged at trial, cause the court considerable concern for X’s emotional development as she moves towards adolescence.
In contrast, Mr N states at paragraph 39 of the family report:
With her father, she was very different, more focused, settled and more contained both in the waiting area and when seen together in my office; she conveyed a sense of quiet but comfortable connection; she seemed more emotionally regulated. X remained focused and settled for the entire session.
X has now lived primarily with her father for more than 2½ years. The meaningfulness of her relationship with him is clearly seen in the above extract from the Family Report.

Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

At paragraph 49 of the family report, Mr N states:
Ms Talmage and Mr Halville have no foundation to their parenting relationship. In reality, they have no history of familiarity, they have little in the way of trust, they have never worked cooperatively, and X has been borne (sic) from casual circumstance. At no point have they shared a sense of parental preoccupation for their daughter, and at no point have a genuinely shared a sense of cooperative, mutual investment in her welfare. They have fought for time, and bargained for resources around her. There is no fundamental emotional contract between them about who, and how they should look after their child.
The section 69ZW report from the Department of Health and Human Services (“the Department”), dated 15 February 2019, sets out the circumstances of 12 child protection notifications received by the Department between March 2017 and September 2018 in relation to X.
It is clear from the section 69ZW report that most of the notifications to the Department had been made by one or other of X’s parents reporting concerns about her well-being or safety in the other’s care. There were, however, other notifications which clearly have been made by X’s school.
The concerns set out in the section 69ZW report may be summarised as follows:
·    that X had allegedly disclosed that Ms Talmage had told her that she (Ms Talmage) would kill herself if X did not come back to live with her
·    that X had allegedly disclosed that she was afraid of her mother’s partner, Mr K, “as he yells and threatens violence”
·    that X had allegedly drawn a picture “of a penis on lips and a penis ejaculating whilst at school”, and when asked, had said that she had seen pictures like that in Ms Talmage’s garage
·    that X was “allegedly distressed and concerned about looking after Ms Talmage and was worried that she would return home and find Ms Talmage dead”
·    that X had allegedly told her mother that her father had been aggressive and had “shoved Ms A and got into her face” during an argument
·    that X had allegedly told her mother that her father had called her (X) “an effing B”
·    that X had allegedly disclosed to another student that she wanted to kill and hurt herself, and when asked why she felt this way, she had said that she felt “like she was being pulled by her parents as they both wanted to talk about each other to her”
·    that X had allegedly disclosed that “when she watches movies, Ms Talmage makes her massage her and that she feels “weird” when Ms Talmage makes her watch it”
·    that X had told the psychologist at her school that she felt “like a rag doll being dragged between her parents homes”
·    that during a meeting with Child Protection Practitioners, Mr Halville had “raised further concerns that he felt that Ms Talmage sexualises X by allowing her to wear short clothing and make up, that Ms Talmage feeds X junk food and that X is not supervised at Ms Talmage’s home”
·    that allegations have been raised that X had been the subject of “inappropriate physical discipline by Ms Talmage and Mr K”
·    that allegations have been raised that X is at risk in her father’s care “due to his alleged long-standing use of methamphetamines and alcohol”
·    that X had not been sent to school for some time from the end of first term in 2017
Despite all of these allegations and concerns, there was no current Child Protection involvement with the family at the time of the section 69ZW report.
The Department’s view was that there was “no information to indicate that X is at a risk of harm in either of her parents care at this time. Child protection history indicates extensive reports received at intake level, with concerns primarily in relation to counter allegations of X in her parent’s care, which have not been able to be verified when follow-up has taken place”.
However, the Department’s view was that the ongoing Family Law Court proceedings, and the allegations made by her parents in her presence, were highly likely to place X at risk of “cumulative harm”.
I note that X has been seeing various counsellors both at school and in the community since these proceedings began.
It will be necessary to craft Final Orders that ensure that her right to have a meaningful relationship with both parents is properly balanced with her right to be safe, both physically and emotionally. In that regard, I note that s.60CC(2A) states that when those two matters are weighed by the court, the court must give more weight to the need to protect a child from physical or psychological harm from abuse, neglect, or being exposed to family violence than to the benefit to the child of having a meaningful relationship with both parents.

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’s views, as expressed to Mr N, and to her parents, could not be clearer.
She wishes to return to her mother’s primary care and to spend time with her father.
Ms Talmage believes that the court should follow X’s wishes.
However, Mr N’s view is that X’s behaviour at her assessment interview indicated that she was much calmer and more at ease in the company of her father than her mother, and that overall “X’s need for routine and stability, predictability and consistency should elevate above and beyond all considerations”.
He wrote that while it is “difficult to ignore the strength of her wishes, and the anxiety attached to these wishes”, or to “completely disregard the intensity of her wishes”, he “strongly encourage(d) the court not to be in any way swayed by her preparedness to give up her school and her school life in favour of being with her mother”.
In those circumstances, and considering X’s age and stage of development, I give her expressed views less weight than might otherwise be the case.

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)

Both parents claim to have close nurturing and supportive relationships with X, and their affidavit material, together with their oral evidence at trial, is replete with examples to support those views.
I have already discussed some of the concerns Mr N had about X’s relationship with her mother in paragraphs 37 to 45 of these Reasons and will not repeat them in any detail here.
In summary, while the court has no doubt that X loves her mother dearly and sees her as a very significant figure in her life, her relationship with her mother is said to be unhealthy for X, as she has a tendency to put her mother’s needs ahead of her own, which causes her to suffer from high levels of anxiety.
I note that at trial, under cross-examination by counsel for the father, Ms Talmage blamed X’s separation anxiety on the fact that she and X had been “joined at the hip since birth”.
Similarly, I have already discussed Mr N’s view of X’s relationship with her father, he seeing Mr Halville as a more consistent figure who can provide stability and continuity for X.
X’s relationship with Ms A, her stepmother, appears to be a caring and supportive one overall, although her relationship with her mother’s partner, Mr K, is reported to be less so, with X reporting that she is afraid of Mr K, who, she says, yells at her, fights with her mother, and, on occasions, hits her younger brother G.
When the relationship between Mr Halville and Ms Talmage was rekindled in 2011, X and her parents lived in self-contained premises on a property in Suburb Q, Victoria owned by Mr Halville’s parents, Mr O and Ms P. X and her mother moved back to those premises in August 2016 when they returned from Queensland.
Since they first met in 2011, all reports indicate that X has had an appropriately loving, caring and close relationship with her paternal grandparents, despite there having been some issues between them and her mother over the years in relation to her mother’s reliability, both financial and social. Indeed, while Ms Talmage and X were living in Town R, Queensland, Mr O and Ms P visited them in order to see X, and took X and Ms Talmage on a holiday to Town S, Qld.
Mr N states, at paragraph 27 of his Family Report:
I was not left with any concern for X at the home of her grandparents, as it was described by X, who identified her paternal grandmother as a significant and safe adult in her life.
It is Mr Halville’s evidence that he and his family visit his parents each weekend, and that when X is in his care she visits them as well.
Both Mr O and Ms P filed affidavits in support of their son in these proceedings, although they were not required for cross-examination.

Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(i) to communicate with the child

It is the father’s evidence that he did not know of X’s existence until she was two, and that thereafter he has taken every opportunity to participate in making decisions about her welfare, and to spend time and communicate with her.
However, he says that the mother’s peripatetic lifestyle, and her unwillingness to put X’s interests ahead of her own, have meant that he was, for the most part, prevented from being part of those decisions until X came into his care in about February 2017.
Since that time, he has taken every opportunity to make decisions for X about major long term issues, and to spend time with her.
He conceded at trial that his work commitments mean that he is unable to see X on every morning during the week, but it is his evidence that he spends time with her, and her two sisters, as a matter of priority whenever he is home on weekday evenings and on weekends.
That evidence is supported by his partner, Ms A.
Ms Talmage, too, has taken every opportunity to make decisions about X’s welfare and to spend time and communicate with her.
X lived with her from her birth in 2008 until February 2017, when X began to live with her father. During that period, Ms Talmage essentially made all major decisions about X’s life, including where she would live and where she would go to school.
Since X went to live with her father, Ms Talmage has spent time with X regularly and frequently.

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

Both parents have supported X financially when she has been living or spending time with them.
It is Ms Talmage’s evidence that in 2013 she asked the Child Support Agency to “stop child support payments to me” because of “the father’s domestic violence” (paragraph 39 of the mother’s affidavit affirmed and filed on 30 May 2017).
I infer from the remainder of that paragraph that she had obtained another Child Support Assessment in mid-2016, but that the father’s payments had been “sporadic” in the year since that Assessment. It was Ms Talmage’s view that his obligation to pay child support was a significant factor in Mr Halville’s decision to keep X in his care in February 2017.
In his trial Affidavit, affirmed and filed on 6 February 2019, Mr Halville states that he has “always paid child support and educational expenses for X”.
He does not appear to have been asked any questions about his child support payments at trial.
As far as the court is aware, in circumstances where Ms Talmage is reliant on Centrelink benefits and Mr Halville works full-time, Ms Talmage is not currently required to pay child support for X.

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 X continues to live with her father, she will be separated from her mother, and from her younger brother G, for much of the time. She will also be separated from her mother’s partner, Mr K.
Similarly, if she returns to live with her mother, she will be separated from her father, from Ms A, and from her younger sisters D and E, for much of the time.
X is said to be close to all her younger siblings, and there is evidence that she has developed an appropriate stepmother – daughter relationship with Ms A, who filed two affidavits in support of Mr Halville in the proceedings and gave evidence at trial.
X’s relationship with Mr K is said to be less established, and I note that he did not file any substantive affidavit material in these proceedings, save for a three line affidavit in July 2017 stating that he was not living with Ms Talmage, although by the time of trial 18 months later that was not the case. It was Ms Talmage’s evidence at trial that Mr K had not had time to file a substantial affidavit, although when it was pointed out to her that there had been some 14 months between the setting down of the trial and its first day of hearing, she said that he had not wanted to become involved in the court proceedings.
At paragraph 71 of the Family Report, Mr N states:
There can be no doubt that X is wanting more time with her mother, that she misses her mother, and that she is anxious, and especially at points of transition. She shows many of the hallmarks of separation anxiety. I seek to emphasise that this sort of clinginess is not characteristic of healthy psychological functioning, but more characteristic of disrupted relationships, lack of fundamental security, and a lack of certainty around issues of basic trust. Purely based on the chronological history of change and disruption, it is not difficult to categorise of how this may have occurred (sic). It is not psychologically healthy for X to consider giving up of her own psychological health and independence for the sake of her mother, and yet this is reflective of what she is prepared to do, and reflective of the separation problems that she has experienced.
In paragraph 72, Mr N goes on:
[…] My recommendations are based on the presumption that her healthy development will necessitate prioritising consistency, stability and predictability of routine, support around her school life, physical and material assistance and support, relationships with extended family, supportive networks, and continuation of social supports and school.
It was Mr N’s view that if X were to return to her mother’s primary care, her unhealthy attachment to her mother would be unlikely to abate, and that “the priority in the short term should be on maintaining stability, and especially so around to school life (sic)”.
In those circumstances, Mr N stated that: “I would support continuation of the current arrangement”.
Mr N did say that it was likely that X would wish to spend more time with her mother as she grows through adolescence, but says that, “the years up until that time in my view are crucial in terms of helping her academic achievement and psychological remediation. She is well supported at school, she has a circle of friends, her needs are well understood, and she has the stability of her father’s family and extended family”.

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

The father lives in Town C and the mother in Suburb F, the distance between them being roughly an hour’s drive.
There is little practical difficulty in X maintaining her relationship and direct contact with both parents on a regular basis no matter which parent she lives with, although I accept that the financial cost of the travel, even if the parents equally share the driving, is more significant to Ms Talmage, given her financial circumstances.

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 little evidence to say that X’s material needs are not being met in either household, although it is acknowledged that the father complains that the mother feeds her junk food, and sometimes sends her to school in inappropriate clothing.
The mother denies those allegations, saying that the father has portrayed rare occurrences as having been common.
I note in this context that the father removed X from her school at the end of the first term in 2017 and “home schooled” her for at least a month, although in his affidavit affirmed on 29 May 2017 he describes her as attending L School in Suburb M, where she had previously been enrolled.
His failure to ensure that X continued to attend school appears to be based on a fear that her mother would unilaterally remove her and take X back to live with her. That action displays a significant lack of capacity to meet X’s educational needs at that time.
The father’s description of the routine in his household indicates that X is encouraged to do her homework with assistance from her father and Ms A if necessary, and that Mr Halville is aware of X’s need for speech therapy.
He criticises the mother’s ability to support X’s educational needs , stating, at paragraph 37 of his affidavit affirmed on 29 May 2017:
Ms Talmage herself lacks the basic language and numeracy skills to assist X and she seems to lack the capacity and inclination to devote the necessary time and attention to education.
Ms Talmage denies that allegation, and it is her evidence that X has been to school on almost every day when X has been in her care.
I gained the impression from the parties’ oral evidence at trial, that both are now aware of X’s educational needs and are committed to meeting those needs and supporting her education.
It is in the area of her parents’ capacity to meet X’s emotional needs that the court has some considerable concern.
When the parties met in 2011, about 2 ½ years after X’s birth, Ms Talmage was living with her sister in Suburb T.
She conceded at trial, that between 2007 and 2018 she had lived in at least 11 different places, including moving to Town J in Victoria when her stepfather became ill, and to Town R in Queensland for 18 months.
Ms Talmage further conceded that the pattern of moving and being unable to settle for long periods in any one place would have had an impact on X’s sense of stability, but said she was doing the best that she could at the time, and blamed several of the moves on poor choices due to being in relationships in which she was the victim of family violence.
Under further cross-examination by counsel for the Independent Children’s Lawyer, Ms Talmage agreed that her constant moving would have contributed “to a certain degree” to X’s anxiety condition, but denied that her living situation had contributed to X’s falling behind in her educational development. She blamed X’s educational difficulties on the fact that Mr Halville had withheld X from her school from the end of the first term in 2017, saying that her 2016 school report had been “glowing”, and that her progress had not been delayed before the first term of 2017.

Ms Talmage further denied that her living arrangements during X’s early years were made for her convenience without regard for X’s needs. It was her evidence that all her moves, save that to Town R, had been planned, and, since X’s meeting with her father in 2011, she had informed him of each move.
In relation to her move to Town R, Ms Talmage conceded that she had told the father that she would be taking X for a holiday, but then decided to stay. She said she did not think that that move, from Town J in Victoria to Town R in Queensland, would be detrimental to X. In fact, she said that she thought then, and still thinks now, that that move was “fair to X”.
The mother’s lack of insight into the effect upon her daughter of never being able to settle in one place in the early years of her life is very concerning, particularly given her evidence that she had completed the Parenting Orders Program only a few months prior to trial.
Also of great concern to the court is Ms Talmage’s concession that she speaks to X about how she is feeling and involves her in adult issues. She conceded at trial that she had told X that she wants X to live with her, saying that she had only done so twice when X had asked, and that if she had not said that, X might feel rejected.
At trial, she was aware that X had told both her counsellor and Mr N that she was afraid that her mother might harm herself if she did not live with her, but Ms Talmage denied that she had ever said that to X. In fact, she told the court that she believed that X had been instructed by her father to say those things to her counsellor and to Mr N.
There is no evidence in the section 69ZW report, in the Family Report, or indeed anywhere else, to support that allegation, and I am satisfied, on balance, that Ms Talmage had told X that she might harm herself if X did not return to live with her.
When taken to paragraph 35 of the Family Report, which sets out Mr N’s concern about X feeling responsible for her mother and being worried about her mother’s welfare, Ms Talmage conceded that it was not good for X to be concerned about separating from her, but she otherwise demonstrated little insight into the serious psychological and emotional damage which appears to have been visited upon X as a result of that situation.
When probed further, Ms Talmage stated that she believes that the reason for X’s anxiety initially arose from her exposure to family violence in her previous relationships, including that with Mr Halville, and that it had been reignited by the court proceedings and X wanting to “come home”.
It was Ms Talmage’s evidence that she believes that Mr Halville issued these proceedings in order to control her, and that he had made multiple notifications to the Department for the same purpose. She said that Mr Halville had made “bogus reports to DHHS and has coached X into saying such things to suit his agenda”.
However when that evidence was probed further, she was forced to agree that she herself had made several notifications to the Department, that the school had made at least one, and that those made by Mr Halville had been disclosed in his affidavit material.
In relation to the notification made by the school, after X had drawn a picture of lips over an ejaculating penis, Ms Talmage first said that X could not have been copying a picture she had seen in her mother’s garage (which is what X told both her teachers and the Department), because there was no such picture. However, Ms Talmage claimed that X had seen a picture of a “half-naked man” which had been given to Ms Talmage by Mr O and Ms P, as well as other presents including a penis-shaped wine bottle stopper. Nevertheless, she agreed that X had drawn her picture after seeing what Ms Talmage said was the picture of the half-naked man in her mother’s garage.
It was the mother’s evidence that X’s father had put X up to telling her teachers that she had drawn the picture because of seeing a similar picture in her mother’s garage. However, when that evidence was further probed, she was forced to agree that X had drawn the picture, and that X had said she had seen a picture in her mother’s garage, and that that was what had given her the idea to draw her picture.
After that incident, Mr Halville, through his solicitors, had asked the mother to sign an undertaking that she would not expose X to inappropriate or pornographic material, but she had refused to do so, and at trial described that request as “outrageous”.
However, after her evidence had been probed has set out above, Ms Talmage agreed that the request for an undertaking had not been outrageous at all.
I found her evidence about that incident and its aftermath to be self-serving, lacking in corroboration, and quite unsatisfactory.
Later in her evidence, Ms Talmage stated that she thought it appropriate for X to use the Snapchat application, despite Snapchat recommending that only children aged 14 years and over use it.
She agreed with Counsel that she had allowed X to use the Snapchat application because X had wanted it, but denied being reluctant to say “No” to X.
Mr Halville had given evidence that X had told him that her mother had told her that D and E were not really her sisters, but that G was her brother because her mother had given birth to him.
When questioned about that evidence, Ms Talmage denied giving X the impression that the relationship between X and her mother was more important than the relationship between X and her father, saying that X needs both her parents. However, she then said she does believe her relationship with X is more important than that between X and her father, because she believes that she is better able to address/soothe X’s anxiety and “help her through it”, and that is why she believes that X should live with her.
Mr N reports in the following terms about Ms Talmage’s childhood and its effect on her parenting ability for X:
65. The family of origin experiences of Ms Talmage are likely, as a consequence of her mother's drug addiction and father's alcohol dependence, to have made her parents less stable, consistent, predictable and attuned to her, and this is likely to have shaped her parenting style; put simply, her parents’ child-rearing practices, and her specific attachment pattern developed as a child with her parents is likely to reflect in her style with X. Parents who grew up with an anxious attachment are inconsistent in how they relate to their children, which their children react to by forming their own anxious attachment patterns; this is what I am concerned has been manifest as X’s history of separation difficulties.
On the basis of Mr N’s Family Report, and on the basis of Ms Talmage’s own evidence, which at times I found self-serving and contradictory, I have serious concerns about Ms Talmage’s capacity to meet X’s emotional needs.
As for X’s father, Mr Halville has his own problems.
First, Ms Talmage accuses him of exposing X to family violence, both during his relationship with her and his relationship with Ms A, and I will return to that issue later in these Reasons.
Second, in her trial Affidavit sworn and filed on 14 February 2019, Ms Talmage accuses Mr Halville of upsetting X in the lead up to his taking her and the rest of his family to Country U for a holiday in 2018 by telling her that if her mother did not deliver her to her father as agreed on the night before the family’s departure, she would have to “run and escape out the front, where Dad will be tooting his horn lots to let me know he is there”. Ms Talmage describes X as being frightened and anxious about that possibility, saying that “her time was spent on edge and irrational due to Mr Halville’s behavior (sic)”. Ms Talmage says she delivered X to her father as agreed so that she could go to Country U, and the holiday proceeded without incident.
It is the mother’s evidence that she had sent Mr Halville a text “informing him about X behavior (sic) whilst with me as it was not long after X made the threat of harming herself and I was greatly concerned for her welfare and pleaded for him to stop doing such things”.
At trial, Mr Halville denied having any such conversation with X, claiming that when she was with him she was very excited at the prospect of going to Country U.
It is not possible for me to make a finding on whether Mr Halville did put X in fear of missing out on her family holiday to Country U due to an anticipated breach of an agreement between him and her mother, but if Ms Talmage’s allegation is true, it would indicate a serious deficiency in Mr Halville’s capacity to understand and care for X’s emotional needs.
Ms Talmage deposes that in about October 2017, around the time of the release of Mr N’s Family Report, “X’s anxiety was at a high”.
She alleges that during that period, Mr Halville told X that her mother had been in a serious car accident (though Ms Talmage does not say whether or not that was the truth), that he had noticed that Ms Talmage was lonely, and that “he was scared for me that I will ‘hang myself’ because she is not there with me and that without her, I might do something silly. X has had this conversation with me numerous times when she gets in the car, or before she does, she is regularly anxious to see me and worried that something is wrong like I have been physically injured/hurt. X has stated that Mr Halville has had these conversations several times and that Ms A is there to agree with Mr Halville and that she doesn’t know what to believe anymore”.
Mr Halville denies saying such things to X, and I have found, on the balance of probabilities, that it was Ms Talmage who put the idea in X’s mind that her mother might harm herself. The mother’s allegations that it was the father who put those ideas in X’s mind gives the court further concern about her ability to meet her daughter’s emotional needs.
Both parents accuse the other of illicit drug use, and while both concede that they have used illicit substances in the past, both appeared to be clean and sober at the time of trial. In particular, I note that the hair follicle test undertaken by the mother in June 2017 showed that she had been free of illicit drugs for some time.
Mr Halville’s decision to withhold X from her schooling and allow her to have no time with her mother at a time when X had come to live with him after living her whole life with her mother, certainly shows little understanding of X’s emotional needs at the time, particularly as her school was providing a stable environment for X at a time of great upheaval in her life.
Nevertheless, the evidence before the court appears to indicate that at the time of trial Mr Halville had generally “stepped up” and, with the assistance of Ms A, had provided X with stability and consistency in her life for the previous two years.
However, X’s reported statements to her counsellor that she was well aware of the current proceedings and the conflict between her parents, and that she was a “court kid”, indicate that overall, attention to X’s emotional needs has been somewhat lacking.

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

These parents were very young when X was born, and in that regard, I note again Mr N’s comments in paragraph 49 of the Family Report which are set out at paragraph 46 of these Reasons.
Ms Talmage’s childhood was much more turbulent than that of Mr Halville, and that is no fault of hers, but the parties’ lack of maturity at the time of X’s conception is certainly something the court takes into account.
The facts that X is reported to call herself a “court kid”, and her serious anxiety in relation to being separated from her mother, are characteristics that the court also notes.
Perhaps the most important characteristic displayed by X during these proceedings has been her overwhelming anxiety for her mother’s welfare, and as Mr N said in his family report, her living circumstances ought to be those which better address and attempt to reduce that anxiety. I note in this regard that X has seen several counsellors, and that at the time of trial her mother was attempting to obtain a further mental health plan for her so that she could continue her counselling with Ms V.

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;

X is not an Aboriginal or Torres Strait Islander child.

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

There is no doubt that both of these parents love X dearly and want only what is best for her.
However, over time, they seem to have seen her as a prize to be won, especially since the beginning of 2017, and she has keenly felt the push and pull of their disputes about her care. They remain critical of each other’s parenting commitment and ability to care for X’s particular needs, and especially her health and education needs. None of that is reflective of a positive attitude to X or to their parenting responsibilities. Of course, each blames the other for that situation, particularly in the context of treatment for various health conditions from which X has suffered.
The mother, in not providing a consistently stable place for X to live, and in moving her several times to meet her own needs, has displayed a less than optimal attitude to her responsibilities as X’s mother, despite loving her desperately.
For instance, at the time of affirming her first Affidavit on 18 May 2017, Ms Talmage stated that she was living in Suburb W in Victoria, and when she filed her third Affidavit on 30 May 2017 she gave her address as her friend Ms Y's rented house in Suburb Z. In that third affidavit, at paragraph 4, the mother states:
I am now living with my girlfriend Ms Y. […] I live in a four-bedroom home. I have my own bedroom, Ms Y has her own bedroom and when X stays with us. She has her own bedroom. (sic) My other son G born in 2014 (“G”) aged two years shares a bedroom with Ms Y’s son AA aged five years. This will be a permanent arrangement for my living conditions and I have decided to live with Ms Y to enable us both to give each other financial support and emotional support in the care of our respective children. We have been close friends for a long time and X is very comfortable in interacting with Ms Y and her son AA.
Nevertheless, in her Trial Affidavit sworn and filed on 14 February 2019, Ms Talmage deposes that she lives with Mr K in Suburb F, and it was her evidence at trial that she had been living with him for about a year, that is since early 2018, less than six months after deposing that her arrangement with Ms Y would be “a permanent arrangement for my living conditions”.
Notwithstanding that evidence, I acknowledge that the mother has completed several parenting and communication courses to try to improve her parenting skills, for which she is to be greatly commended.
It is her evidence that she has always ensured that X goes to school while in her care, that she has appropriately attended to X’s health and allied care needs, and that she has done her best to ensure that X is well cared for and happy.
I note that Ms Talmage arranged for a private counsellor for X when it became clear to her school that she needed help, and that she paid for that counselling herself.
However, letting X believe that she will suffer if X does not return to her care, thus causing X to feel responsible for her welfare, does not display a mature attitude either to X herself or to the mother’s responsibilities as a parent.
The father may have also involved X in disputes between him and her mother, and while there are no positive findings in relation to those matters, they are of concern to the court.
Overall though, Mr Halville has shown an appropriate attitude to X and to his responsibilities as a parent in several ways.
First, he sought out Ms Talmage upon learning of X’s existence, and since that time, has continued to strive to ensure that he maintains his relationship with X wherever possible.
It is his evidence, uncontroverted by Ms Talmage, that when she was living in Town J in 2014-2015, some 225 kilometres from his then home in Town BB, he spent every alternate weekend with X. It was his evidence that he did most of the driving, both ways, and that sometimes, Ms Talmage would not provide X for the weekend, despite him having driven to Town J to collect her.
When Ms Talmage took X to Town R in 2015, that arrangement was no longer possible, although Mr Halville and Ms A took D and E, who was born after X moved to Queensland, to Town R in 2015 so that they could spend time with X, and X could also spend time with her sisters.
By the time Ms Talmage and X returned to live in Victoria in November 2016, Mr Halville and Ms A had bought their own home in Town C, and were living there with D and E. They remain living in that family home, X having joined them regularly and frequently until February 2017, when she did not return to her mother and began to live with her father.
Mr N states, at paragraph 70 of the family report:
At a qualitative level, it appears that Mr Halville’s concerns are about X and her need for stability routine and predictability; Ms Talmage’s presentation is more about defending her position, and the allegations directed at her. It may of course be reasonable that she feels the need to defend her position if she feels under attack; X’s need for routine and stability, predictability and consistency should elevate above and beyond all considerations.
I gained a similar impression of the parties at trial, with Mr Halville’s evidence appearing much clearer and more straightforward than that of Ms Talmage, who at times appeared to be making her responses up as she went along.
On the positive side, I note that both parents are involved with X’s school, and both appeared familiar with her teachers and her school routine.

Section 60CC(3)(j) any family violence involving the child or a member of the child’s family

In her Notice of Risk filed on 19 May 2017, the mother states that the father “has severe mood changes and becomes aggressive particularly when he his (sic) under the influence of methamphetamines”, and that his failure to return X to her mother’s care had caused distress to both the mother and to G.
In her Affidavit affirmed and filed on 19 May 2017 mother refers to her Notice of Risk and repeats the above allegations in relation to family violence.
She states that the parties’ relationship between May and November 2011 was a short one “due to family violence directed by the Applicant towards me in front of X. That included verbal abuse which frightened both me and X”.
Later in the same Affidavit, Ms Talmage concedes that Mr Halville has stable employment but then asks “this Honourable Court to note that in 2013 due to the father’s domestic violence I asked child support to stop child support payments to me”.
In her Affidavit affirmed and filed on 18 July 2017, the mother makes no allegations of family violence, save to say that the father was a supporter of “the fascist dictatorship of Nazi Germany”, that he owned Nazi memorabilia, and that he “in fact displays a Nazi swastika tattoo on his arm”.
In relation to that allegation, it was the father’s evidence both in affidavit form and during his oral evidence at trial, that his paternal grandfather, who was a survivor of three concentration camps, had witnessed the execution of his parents by the Nazis, and that as a result he found the entire Nazi ideology repugnant. The “double S” tattoo on his arm, he said, was the result of his passion for a certain type of cars in his youth, and he explained the distinction between the symbol for the Schutzstaffel of the German Reich in the 1930s and 40s and the “Super Sports” badge.

I am not satisfied, on balance, that Mr Halville holds any Nazi sympathies.
In her Affidavit affirmed and filed on 6 December 2017, the mother deposes that the father had threatened to call the police if she did not return X either to her school or to his home on a day when the mother says X was ill.
Later in that affidavit, at paragraph 30 and following, the mother deposes:
30. […]it is of my firm belief that I have not been unstable in my living arrangements. As alleged by the applicant, in the past six years, I have relocated to 3 different towns commencing in Melbourne, Town J and Town R. The reason I have relocated with my children on those occasions was due to the Applicant and his family exposing my children and I to family violence.
31. The most recent occasion was when Ms P (the paternal grandmother) arrived at my property unannounced, verbally abusing me in the presence of my two year old son. Who was crying and clutching to myself (sic), while Ms P continued to verbally abuse me and provoke me to assault her. Calling me names such as slut, no hoper, scrag, bitch, cunt etc.
Ms Talmage says that Mr O’s visit was the result of her sending Ms P a text advising her that she would not be leaving X unsupervised in Ms P’s care because X had told her that she had seen “drunk female adults stripping off their tops and exposing there (sic) breasts” while in her grandmother’s care.
At paragraph 40 of the same Affidavit, when responding to the father’s allegation that she had excluded him from decision-making processes in relation to X’s welfare, Ms Talmage states that when she has excluded Mr Halville from those decisions, it was “due to family violence that has occurred in previous years”.
In paragraphs 44 and 45 of that affidavit, Ms Talmage deposes that she has never exposed X to family violence, “only that of the family violence the applicant and his family members subject X to”, and, in relation to her three-year relationship with G’s father, “X was not exposed to family violence and still has a fond memory of Mr H.”
In paragraph 48 of that affidavit, Ms Talmage deposes that “the Applicant has attempted to sexually impose himself on to myself between November 2016 to March 2017 at least twelve times if not more” and that while he had told Ms A about those incidents, “the Applicant has imposed himself onto myself since 2012 in (sic) some occasions in the presence of X, whilst claiming he is in a stable relationship with a fiancée.”
In paragraph 61 of the same Affidavit, the mother alleges that the father “has been known to threaten killing himself in the past to myself when things didn’t go his way this occurred since 2012”. I note in this context that a threat to commit suicide is a form of family violence.[1]
[1] Family Law Act 1975 (Cth) s4AB(1)
Paragraph 25 of the mother’s affidavit affirmed and filed on 14 February 2019 states, when discussing what she had learned from the parenting orders program:
I also learnt that yes to a degree, I did not help the situation between Mr Halville and me. I did not always handle situations in the past the best way. When there was violence or aggression in our relationship I would often move away to a distance where I felt X and I would be safe until issues between Mr Halville and I calmed down.
Ms Talmage alleges that X has told her that there are “regular serious and loud arguments and the children are smacked on a regular basis” in her father’s house.
In discussing events since December 2017, the mother alleges that she had instituted Intervention Order proceedings in late 2017 because “Mr Halville had been making harassing calls and was being abusive”.
At paragraph 68 of that affidavit, Ms Talmage claims that her relationship with Mr Halville ended earlier than he had said, saying:
I had enough of the Applicant’s family violence and him turning up at a whim, crying, begging for me to take him back to abuse and threats from my home and at my workplace (sic).
At paragraph 71, the mother states:
[…] I moved to Town R due to Mr Halville’s family violence and the fact I lost my dad. The applicant had become abusive once again and intolerable in the months after my father passing.
At paragraph 76, the mother claims that “X has never been exposed to drug use or family violence, only that of the Applicant”.
She states again, in paragraph 83, that her reason for moving to Town R in early 2015 was “due to the Applicant’s family violence”.
In relation to allegations made by the father that X had locked herself in her room at her mother’s house to escape family violence between her and her partner, Mr K, Ms Talmage says, at paragraph 115:
[…] X has never locked herself in her room due to family violence and that neither has Mr K ever put family violence onto either of my children. Nothing of this statement is true. X is scared of most men though due to the family violence that X has directly received from the Applicant. She is funny with male doctors, teachers, counsellors and adult friends.
Finally, at paragraphs 185 and 186 of her Trial Affidavit, when referring to section 60CC(3)(j), Ms Talmage states as follows:
There has been a history of family violence between the couple including IVO proceedings.
There is a current undertaking by the father naming the mother as an AFM.
I have set out above all, or at least the vast majority of the references to family violence that appear to have been made in Ms Talmage’s affidavits filed in these proceedings. I note that there are very few particulars set out in those references, and that they take the form mostly of assertions rather than descriptions of incidents.
At trial, when under cross-examination from the father’s counsel, Ms Talmage repeated her affidavit evidence that any poor choices that she had made in relation to where she lived with X were due to family violence. She did not elaborate, save to say that there had been abusive texts from the father when she told him she planned for X to go to Town R for a holiday in 2017.
She conceded that there was no family violence in front of X now because the father had changed his behaviour somewhat. She conceded further that X’s current anxiety was not because of family violence but because of her concerns for her mother.
However, she repeated that she had made an application for an Intervention Order in late 2017 because the father was harassing her with phone calls and being abusive to her. It was her evidence that X was “directly involved” in that abuse.
When asked why that was the only mention of family violence in her Trial Affidavit, Ms Talmage said that the evidence had been in previous affidavits. She acknowledged that there were only oblique references to and no specific detail of family violence in her Notice of Risk filed on 19 May 2017.
Under further cross-examination, it was Ms Talmage’s evidence that she believes that Mr Halville issued the current proceedings in order to control her, that he makes “bogus reports” to the Department for the same purpose, and that he had “coached X into saying such things to suit his agenda”.
Further interrogation of that evidence revealed that in fact she had made more notifications to the Department than Mr Halville had, and that the most troubling notifications had been made by X’s school.
Nevertheless, it was Ms Talmage’s evidence that X had witnessed family violence perpetrated by Mr Halville between the ages of three and eight years, and that she had told her mother that she gets abused and yelled at, and then sent to her room, if she fights with her sisters at her father’s house.
Under cross-examination from counsel for the Independent Children’s Lawyer, Ms Talmage conceded that X had not said anything about family violence in her father’s household to Mr N, but she insisted that X was not making up any stories about family violence or exaggerating them.
It is in the nature of family violence that it usually occurs behind closed doors and without witnesses.
It is perhaps trite to say that only physical family violence leaves bruises, but there is plenty of social science evidence to indicate that controlling and coercive behaviour, whether that involves physical violence or not, can cause serious emotional and psychological damage to the person being controlled and coerced, and to any children who witness the behaviour.
It is not always the case that a victim of family violence can provide cogent evidence of dates and times when it has occurred, but the nature of the abuse is often very clear in the evidence of the victim provided to State Magistrates Courts in family violence restraining order proceedings and to the Commonwealth Family Law Courts.
In this case, the evidence of violence provided by the mother takes the form of general assertions rather than descriptions of particular incidents.
Mr Halville denies perpetrating family violence in his relationship with Ms Talmage, whether while they were living together or since the relationship broke down.
In this case, the question of whether there was or was not family violence as defined in s.4AB of the Act perpetrated on the mother by the father, rests predominantly on the evidence of the mother, as the father denies all allegations.
Based on that evidence, I find it more probable than not that the parties engaged in volatile arguments during the relationship and after separation, some of which have been witnessed by X. However, it is not possible to make a finding as to who was/is responsible for those arguments.
I do not accept Ms Talmage’s evidence that these proceedings were instituted by Mr Halville as a way to control her, nor that he has made malicious notifications to the Department for the same purpose.
Further, I saw no sense of fear of Mr Halville in Ms Talmage’s demeanour at court, or in the way she answered questions under cross-examination.
Nevertheless, both parties should understand that exposing children to volatile arguments is a form of family violence that can be very damaging to children, and that any arguments, particularly those about the child’s care, should take place in the absence of the child concerned.

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

It would appear from the less than complete evidence provided by the parties, that the only Application for a family violence order made between the parties to these proceedings was that made by Ms Talmage against Mr Halville in late 2017 on the basis of what she perceived to be abusive text messages, and that those proceedings were apparently resolved when Mr Halville provided an Undertaking not to commit family violence without making any admissions as to the allegations contained in the Summons and Application document.
That Undertaking appears to have expired in March 2019 with no further family violence proceedings being issued.

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

In circumstances where X’s need for stability and consistency in her care arrangements is a major issue in these proceedings, it is certainly preferable to make orders that are least likely to lead to further proceedings. X’s description of herself as a “court kid” only reinforces that view.
That need is especially strong in circumstances where X will commence her secondary school education in 2020.

Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant

These parties are in high conflict. They have different views on almost every issue confronting them in their parenting of their only child together.
Examples of that difference in perception of incidents include the following:
·    whether Mr Halville knew about X’s existence before 2011
·    each party’s treatment of X’s dental health
·    each party’s treatment of an episode of constipation suffered by X
·    X’s toileting issues
·    each party’s history of keeping the other informed about X’s welfare while she has been in their respective care
·    Ms Talmage’s behaviour when she returned to live at the Suburb Q property owned by Mr O and Ms P.
·    Ms Talmage’s ability to take care of X in early 2017
·    whether optometrists have diagnosed X as requiring glasses.
It is the evidence of both parties that they cannot easily communicate, and Ms Talmage complains that Mr Halville has deliberately attempted to exclude her from involvement in X’s day-to-day life since she began to live with her father in early 2017.
That lack of communication, and the animus that clearly remains between the parties, are very much matters that the court takes into account in considering what orders to make in X’s best interest.

Decision: Issue A

When I consider the evidence of both parties and Ms A as tested under cross-examination at trial, the uncontested evidence of Ms P and Mr O, and the expert evidence of Mr N, especially his view that “X’s need for routine, stability, predictability and consistency should elevate above and beyond all considerations”, I find that it is in X’s best interests to live primarily with her father.
The evidence before the court shows that despite his part in the conflict that exists between the parties, it is in his primary care that X is more likely than not to experience the routine, stability, predictability and consistency that are so important in providing a secure base from which she is able to deal with her anxiety.
This decision should not be seen as a finding that Ms Talmage is “an unfit mother”. She has experienced turbulence in her life since she was a child, and she has clearly suffered from the effects of her upbringing. It is clear to the court that she loves X very much, and that she has always done her best for her daughter.

Issue B. How much time X should spend with the non-resident parent

As stated at the beginning of these Reasons, X currently lives with her father and spends time with her mother as follows:
·In week 1, from the conclusion of school Thursday until commencement of school on Monday;
·In week 2, from the conclusion of school Thursday until the commencement of school on Friday; and
· Half of all Victorian term school holidays.
In circumstances where X will be living primarily with her father, he seeks orders that would see her spending time with her mother on each alternate weekend from the conclusion of school on Friday until commencement of school on Wednesday, during school holidays, and on special occasions.
If the court were not to decide that X should live primarily with her mother, Ms Talmage seeks orders that the parties exercise week about equal shared care for X.
The Independent Children’s Lawyer supports the orders sought by the Father.
I do not believe that it is in X’s best interests to spend equal time with each parent as proposed by the mother.
The evidence about her anxiety and its aetiology is compelling, and the court’s primary concern must be to attempt to keep X as safe as possible from its effects.
In addition, the parties’ lack of ability to communicate effectively mitigates against equal shared care.
X’s wishes are clear in that she wishes to live predominantly with her mother. I have decided that that arrangement would not be in her best interests, but I am mindful that she is approaching adolescence, and both parties, and Mr N, are aware that she will probably seek more time with her mother as she grows older.

Decision: Issue B

In those circumstances, I will make orders for X to spend six nights per fortnight and half school holidays with her mother, while also making orders for special occasions such as Christmas and birthdays.
That arrangement will give her certainty and stability, while allowing both her parents to be involved in her school life and appropriate family and social occasions.
Even that arrangement will require the parties to communicate effectively so that X’s transitions between them are smooth and non-conflictual.
The mother proposed that the parties use the application MyMob to communicate about their daughter’s activities, education, health issues and any other matters requiring communication between them, so that X is protected from any conflict remaining between them.
She complained at trial that Mr Halville refused to use MyMob, which she found very frustrating, although under cross-examination Mr Halville rather grudgingly agreed that such an application would be useful in his dealings with Ms Talmage.
MyMob is no longer available, but I will make an order that the parties communicate, save in the event of an emergency, by way of a similar parenting application.

Issue C. Where X should attend high school from the 2020 school year.

Mr Halville wishes X to attend B School in Suburb B for her secondary education, which will commence in 2020. He had not discussed the issue with Ms Talmage, but he was clear, at trial, that there were many benefits to X from the various programs she would be able to experience at B School, that most of X’s friends would be attending B School, and that he had taken her to a family night at the school at the end of 2018.
B School, which is the school Mr Halville attended, is slightly closer to the father’s home at Town C than is X’s current school, and slightly further away from the mother’s home in Suburb F.
It was the father’s evidence at trial that an B School bus passed very close to his home, and that in circumstances where Ms A or he were unable to drive X to or from school, she would be able to travel by bus with members of her school community.
It was Ms Talmage’s Affidavit evidence that the journey between her home and X’s current school provided a good chance for mother and daughter to talk and to deepen their relationship.
It was her proposal that if equal shared care orders were to be made, X should go to a secondary school midway between the parents’ homes, but it was clear at trial that she had not made any enquiries about such schools, and in any event, I have decided that equal shared care is not in X’s best interests.
At trial, under cross-examination by counsel for the father, the mother said she was aware of B School but had never been there. She believed that there were several “feeder schools” for B School of which only one was L School in Suburb M where X currently goes to school.
It was her evidence that she had not made any enquiries about any high schools X might attend, save for CC School in Suburb Z, which, she conceded, was close to her home and a long way from the home of the father. Her reason for choosing a school close to her home was that her relationship with X’s father was hostile, but she then said that she had “left it open” to discuss the matter of X’s secondary schooling with Mr Halville.
It was her evidence that B School is a further 5 to 10 minutes from her home than M School, and that distance was her major reason for wanting X to attend a school closer to her home.
She acknowledged that X has a positive connection with L School and has friends there, but she would not concede that many of X’s friends would be going to B School, or that B School would provide X with the stability in her school life recommended by Mr N. There did not appear to be any reason or evidentiary basis for refusing to make those concessions.
I note that Ms Talmage did not mention issues such as educational standards or social supports until specifically asked by counsel.
Overall, I found her evidence about X’s secondary schooling somewhat confused and contradictory, and it appeared that she resisted the idea of B School as a secondary school for X simply because it had been proposed by the father.

Decision: Issue C

The evidence before the court is that the distance from the parties’ homes to B School is roughly the same as the distance to M School.
In circumstances where X will be spending most of her school days living with her father, where there is nothing about B School before the court which would cause the court to have any concern about X attending that school, and where the mother can provide no cogent reason why X should not attend there, I find that it is in X’s best interests to attend B School from the beginning of 2020.

Conclusion

X is a very vulnerable young girl.
Her anxiety about her mother’s welfare, which appears to permeate her whole life and cause her great distress, must be addressed. I note that she has been attending counselling and it would obviously be in her best interests to continue to have the opportunity to do so.
She is fortunate that she has two parents who love her dearly and want the best for her. It is most unfortunate that those parents, for reasons relating to the nature of their short relationship and to their respective backgrounds, have been unable to come together to make decisions about and care for X in a way that ameliorates her anxiety.
It is to be hoped that both parents will realise that they are both responsible for X’s welfare, and that they can put their differences aside for her sake.
X deserves no less.

I certify that the preceding two hundred and fifty one (251) paragraphs are a true copy of the reasons for judgment of Judge Small

Date: 13 December 2019

[2019] FCCA 3621

13 December 2019

Key Legal Topics

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Family Law

Evidence

Legal Concepts

Expert Evidence

Injunction