Hathaway & Tomasini
[2022] FedCFamC2F 1049
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hathaway & Tomasini [2022] FedCFamC2F 1049
File number(s): ADC 410 of 2019 Judgment of: JUDGE DICKSON Date of judgment: 11 August 2022 Catchwords: FAMILY LAW - Parenting – 6 year old child – mother seeks to relocate with child from South Australia to New South Wales – mother’s family support is in New South Wales – father has previously experienced drug use and mental health issues – allegations of family violence – consideration of best interests of the child – where maternal family have offered to pay for child’s travel costs should the mother be permitted to relocate interstate – where the Family Consultant did not support the relocation in her recommendations – Court is not bound by recommendations of expert - where mother requires the emotional and practical support of her family – mother permitted to relocate with child – parental responsibility –mother seeks sole parental responsibility – where mother has historically made the major long term decisions for the child – order for sole parental responsibility but mother to consult with father before making long term decisions. Legislation: Family Law Act 1975 (Cth) Pt VII ss 4AB, 60B, 60CA, 60CC, 61DA Cases cited: A v A: Relocation Approach [2000] FamCA 751, (2000) FLC 93-035, 26 Fam LR 381
AMS v AIF (1999) CLR 160
Andrew & Delaine [2009] FamCAFC 182
Bale & Bale [2016] FCCA 680
Heath v Hemming (No 2) [2011] FamCA 749
MRR v GRR (2010) 240 CLR 461
Division: Division 2 Family Law Number of paragraphs: 232 Date of last submission/s: 3 June 2022 Date of hearing: 1-3 June 2022 Place: Adelaide Counsel for the Applicant: Mr Praolini Solicitor for the Applicant: Donlan Lawyers Counsel for the Respondent: Mr Robinson Solicitor for the Respondent: Andrew Hill & Co
Table of Corrections 12 April 2023 The pinpoint reference details at Footnote ‘6’ has been added. ORDERS
ADC 410 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS HATHAWAY
Applicant
AND: MR TOMASINI
Respondent
order made by:
JUDGE DICKSON
DATE OF ORDER:
11 AUGUST 2022
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The mother have sole parental responsibility for the child X born in 2015 (‘the child’) PROVIDED THAT there be a requirement that she will advise the father in writing (via email) and provide her view about any major issue affecting the child’s health or the child’s education and shall consult with the father about such issues but if no agreement is reached between the parties THEN the mother shall make the final decision and advise the father in writing of that decision.
3.The child live with the mother.
4.The child spend time with the father pending the relocation referred to in paragraph 5 herein as follows:
(a)Commencing 10 June 2022 and each alternate weekend thereafter from the conclusion of school Friday (or 3:00pm if a non-school day) until 5:00pm Sunday;
(b)For Father’s Day each year if the child is not otherwise in the father’s care from 9:00am until 5:00pm PROVIDED THAT if the child is not otherwise in the mother’s care then on Mother’s Day he spend time with the mother from 9:00am until 5:00pm on Mother’s Day;
(c)On the child’s birthday each year from the conclusion of school (or 3:15pm if a non-school day) until 6:00pm;
(d)As and from the first weekend following the September/October school holidays 2022 from the conclusion of school Friday (or 3:00pm if a non-school day) until the commencement of school Monday (or 9:00am if a non-school day).
(e)Notwithstanding any other care arrangements, the child spend time with the parties during the school holidays as follows:
A.During the October 2022 school holidays as follows:
(ii)With the father from the conclusion of school on the last day of school term (being Friday 30 September 2022) until 5:00pm on Saturday 8 October 2022;
(iii)With the mother from 5:00pm on Saturday 8 October 2022 until the resumption of the school term noting the time spending arrangements referred to at paragraph 4(d) herein will resume on the first weekend of the school term.
B.During the Christmas 2022/2023 school holidays as follows:
(iv)With the father from the conclusion of school on the last day of school term (being 16 December 2022) until 5:00pm on Friday 30 December 2022;
(v)With the mother from 5:00pm on Friday 30 December 2022 until 5:00pm on Saturday 21 January 2023;
(vi)With the father from 5:00pm on Saturday 21 January 2023 until 5:00pm on Friday 27 January 2023.
5.The mother be at liberty to relocate the child’s principal place of residence to Suburb B in the State of New South Wales as and from Saturday 28 January 2023.
6.Upon the mother’s relocation to Suburb B as provided for in paragraph 5 herein, the child spend time with and communicate with the father as follows:
(a)During all short school holiday periods commencing Term 1 2023, from the first Saturday immediately following the last day of the school term to the Wednesday in the second week of the short school holidays.
(b)During the Christmas school holidays each year as follows:
(i)With the father from 31 December to the first Saturday immediately prior to the commencement of the new school term commencing in 2023 and each alternate year thereafter; and
(ii)With the father from the first Saturday immediately following the conclusion of the school term until 31 December in all even numbered years commencing in 2024 and each alternate year thereafter.
(c)Via Facetime each Wednesday and Sunday at 6:00pm (New South Wales time) with the mother to ensure that the child telephones the father on the father’s iPad or such other device as the parties agree in writing.
(d)At other times, including Christmas Day, birthdays and special occasions as agreed between the parties in writing.
(e)On any occasion that the father travels to New South Wales and provides the mother with 21 days written notice of his intention to spend time with the child in New South Wales.
7.The child is at liberty to communicate with either party at any other reasonable time as requested by the child and with each party to facilitate same.
8.On no more than one occasion per annum between the period from August 2022 until 31 December 2024 the mother be at liberty to request in writing that the father undergo a drug test pursuant to the hair follicle analysis process within seven (7) days of any such request at the cost in all things of the mother.
9.The hair follicle test be conducted at a laboratory accredited by the National Association of Testing Authorities Australia in accordance with the current Australian standard for the collection and detection of drug use.
10.The father provide the pathologist with photographic identification to be recorded before the test and the authority to provide the results of the test to the mother upon its completion.
11.The test shall be for the detection of amphetamine type substances, cannabis, opiates (including heroin and morphine) sedative drugs, cocaine, chronic alcohol use and any other drug of abuse.
12.The father be restrained and an injunction be granted restraining him from cutting or shaving his hair (whether it be head hair, underarm hair, leg or pubic hair) from the date on which he receives the written request from the mother until the date when such test has been completed.
13.The father do provide a copy of the said test results to the mother as soon as it becomes available.
14.The parties be restrained an injunctions be granted restraining each of them from denigrating the other in the presence of the said child or allowing any other person so to do.
15.The father be restrained and injunctions are hereby granted restraining him from:
(a)Possessing a firearm, ammunition or part of a firearm during any period that the child is in his care; and
(b)Engaging in any sport or activity which includes the use of firearms whilst the child is in his care without the mother’s consent or an order of this Honourable Court;
16.The mother be restrained and an injunction is hereby granted restraining her from relocating the child’s principal place of residence from the metropolitan area of Adelaide pending the implementation of paragraph 5 herein.
17.The mother shall bear all costs associated with time spending referred to in paragraph 6(a) and (b) herein and shall indemnify the father in relation thereto.
18.The mother shall provide to the father by email no later than 21 days prior to each period of time spending a copy of the said child’s flight itinerary, including flight details, identity of the airline and arrival and departure times.
19.The father be at liberty to obtain copies of the child’s school reports, school photographs and newsletters at his sole expense and that this order shall serve as an irrevocable authority permitting the father to obtain such information upon request.
20.The parties do each notify the other immediately by text message in the event that the child experiences a medical emergency or accident including providing the other with details of the medical intervention provided and/or the hospital at which the child has been admitted.
21.The father is at liberty to attend parent teacher interviews or any other school event to which parents are ordinarily invited to attend whether in person or by way of electronic means provided that if the father intend to attend in person he shall provide the mother with no less than 14 days’ notice of such intention in writing.
22.Unless otherwise agreed, the parties do communicate with one another in relation to the welfare of the said child or so as to implement the terms on these orders by way of email or text message in the event of an emergency involving the said child.
23.The parties do within 7 days of the date of this order confirm in writing the email address at which communication is to be directed in accordance with the terms of the within orders.
24.All extant applications do stand dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Hathaway & Tomasini has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE DICKSON:
INTRODUCTION
The proceedings between Ms Hathaway (‘the mother’) and Mr Tomasini (‘the father’) concern competing parenting applications in relation to their child X born in 2015 (‘the child’). The child is 6 years of age.
DOCUMENTS RELIED UPON AT TRIAL
The mother relies upon the following documents:
(1)Amended Initiating Application filed 11 April 2022;
(2)Trial affidavit filed 11 April 2022;
(3)Trial affidavit of Mr C filed 13 April 2022; and
(4)An Outline of Case document.
The father relies upon the following documents:
(1)Amended Response to Initiating Application filed 18 May 2022;
(2)Trial affidavit filed 18 May 2022;
(3)Trial affidavit of Ms D filed 18 May 2022;
(4)Affidavit of Mr E filed 13 July 2019 annexing a report of Mr F, Psychologist dated 22 June 2019; and
(5)An Outline of Case document.
The parties also tendered by way of exhibit:
Mother
(1)Bundle of text messages between the parties during the period from 5 December 2017 to 31 October 2018 (Exhibit M1);
(2)Mother’s alternate draft Minute of Order (Exhibit M2);
Father
(1)Father’s alternate draft Minute of Order (Exhibit F1).
The Court also heard evidence from Ms G, Court Child Expert (‘the Court Child Expert’).
The Court Child Expert’s oral evidence supplemented her Family Reports dated 23 February 2020 and 3 March 2022.
ISSUES IN DISPUTE
The parties are at odds with respect to the final orders sought by each of them in relation to the child at Trial.
The issues in dispute are summarised as follows:
(1)Whether or not an order should be made for equal shared parental responsibility or in the alternative whether or not an order should be made granting the mother sole parental responsibility for the child;
(2)Whether or not the mother is permitted to relocate with the child to Suburb B, New South Wales;
(3)In the event that relocation is granted by the Court, then what time spending should occur between the child and the father; and
(4)In the event that relocation is not granted and the child remains living in Adelaide, South Australia then what time should occur between the father and the child.
BACKGROUND
The father was born in 1994 and is now aged 28 years. The father is employed as a Labourer.
The mother was born in 1994 and is now aged 27 years. Although the mother describes her occupation as Home Duties, she has formal qualifications. The mother holds a Bachelors degree from H University.
The father has re-partnered and is now in a domestic relationship with Ms D (‘Ms D’). Ms D was born in 1999 and is now 22 years of age. Ms D works as an allied health worker. The father and Ms D have been in a de facto relationship for approximately two years.
The parties commenced cohabitation in 2011. At the time of cohabitation, the parties were still teenagers being 16 years of age respectively. At the commencement of cohabitation, the parties resided with the paternal grandfather at Suburb K in the southern suburbs of Adelaide.
In 2012, the parties relocated to New South Wales to reside with the maternal grandparents. In 2013, the parties relocated back to South Australia to resume living with the paternal grandfather.
In November 2014, the parties separated for a brief time before reconciling.
In 2015, the child was born.
In January 2017, the parties moved into independent rental accommodation with the child.
In late 2017, the father commenced using the drug known as “methamphetamine”.
On 11 November 2018, the parties separated for the final time.
After final separation, the father was admitted to the L Hospital after experiencing suicidal ideation and dysregulated behaviour.
On 14 January 2019, the father attended at the child’s day care centre. The child was removed by the father without the mother’s prior knowledge or consent. The child was later returned to the mother in circumstances wherein the mother alleges that the father withheld the child in an effort to force a reconciliation between the parties.
On 5 February 2019, the mother initiated proceeding in the Federal Circuit Court of Australia (as it then was).
On 25 March 2019, at the first Court event orders were made by consent to provide that the child live with the mother and that the father on a without admission basis be restrained from removing the child from his child care centre or the mother’s care or from attending at the mother’s residence or her educational facility being H College.
Further orders were made requiring the father to undergo a hair follicle test and injunctions were made restraining the father from cutting or dying his hair. The father was directed to obtain a report from his treating psychologist. The proceedings were then adjourned to 22 July 2019 to await the drug test results, the father’s psychological report and for the parties to attend a Child Dispute Conference with a Family Consultant (as they were then known).
As set out above, there were no orders for time spending made at the first Court event on 25 March 2019.
On 10 April 2019, the father tested positive for methamphetamine pursuant to the hair follicle test ordered by consent on 25 March 2019.
On 7 June 2019, a report was provided by the father’s treating psychologist Mr F of M Psychology (‘the father’s psychologist’). The report confirmed that the father had attended four psychological treatment sessions during the period from December 2018 to March 2019. The content of the said psychologist report is referred to further in this Judgment.
On 12 June 2019, the parties attended a Child Dispute Conference with Family Consultant Ms N. The Family Consultant recommended a cautious approach to time spending through a Children’s Contact Centre and recommended that a Family Report be obtained prior to Trial.
On 22 July 2019, an order was made on a without admission basis restraining the father from having firearms in his possession. The parties were directed to enrol in the L Children’s Contact Service and with the father to then spend six supervised visits before a report was obtained. Further orders were made in relation to ongoing drug testing and for the father to complete the Circle of Security Parenting Course.
On 21 November 2019, the Court noted that the father had enrolled in the Circle of Security Parenting Course but had not yet spent time with the child at the L Children’s Contact Service. It was further noted that the father had been charged with criminal offences not involving the mother during the period of the adjournment. An order was made for the father to provide disclosure in relation to all Police Incident Reports or Witness Statements with respect to his former partner, Ms O. The father was further directed to file and serve an affidavit annexing the Intervention Order and confirming his enrolment in the Circle of Security Parenting Course. The father was required to undergo random urine drug analysis during the period of the adjournment.
The father commenced supervised visits at the L Children’s Contact Service pursuant to Court order in February 2020.
In March 2020, the COVID-19 Pandemic brought havoc to Australia as a whole.
In April 2020, the mother and the child travelled to New South Wales to take up residence with the maternal family during a period when State borders were going into what has colloquially now been called “hard border lockdown”.
In late April 2020, the parties were advised that time spending at the L Children’s Contact Service had been suspended due to COVID-19 restrictions.
On 24 August 2020, orders were made by the Court directing the mother to return the child to South Australia as soon as practicable and for the father’s time at the Children’s Contact Service to resume as soon as it could be accommodated. A Family Report was ordered.
On 28 August 2020, orders were made by consent directing the mother to forthwith do all things to arrange for her pre-approval to return to South Australia with the child and further orders were made confirming supervised time spending at the L Children’s Contact Service and for a report to be obtained after six sessions. Until further order, the mother was restrained by way of an injunction from changing the child’s principal place of residence from the greater metropolitan area of Adelaide.
On 21 December 2020, the Family Consultant Ms G (as she was then known) released her first Family Report (‘the first Family Report’).
On 5 May 2021, orders were made by consent for the father to undergo a further hair follicle test. In the event that the test returned negative for all substances, the child was then to spend unsupervised time with the father each alternate Saturday from 12:00pm to 2:00pm at an agreed location or at a play café if no agreement as to venue. The father was directed to undertake a further hair follicle test upon completion of four visits.
It was further ordered that in the event that the hair follicle test was negative for illicit substances, the child spend time with the father each alternate Saturday from 12:00pm to 4:00pm. The father was further restrained by way of injunction from:
(1)Using alcohol or illicit substances any time the child is in his care or for a period of 24 hours prior thereto;
(2)Cutting to less than 3cm or colouring or bleaching his hair;
(3)Transporting the child in a motor vehicle without proper secure child restraints; and
(4)Bringing the child into contact with the paternal grandmother.
On 29 September 2021, orders were made by consent inter alia following on from the parties having attended a conference at the Court namely:
(1)That the child live with the mother;
(2)That the child spend increasing amounts of time with the father commencing with overnight time as and from 8 January 2022 from 9:00am Saturday to 5:00pm Sunday;
(3)That during the times that the child spends in the father’s care he communicate with the mother each night via Facetime at 6:00 pm;
(4)That the child be at liberty to communicate with the party whose care he is not in at any reasonable time and that the caring parent shall facilitate such request;
(5)That the child spend time with the parties for Christmas 2021, namely with the mother from 3:00pm Christmas Eve until 3:00pm Christmas Day and with the father from 3:00pm Christmas Day until 3:00pm Boxing Day;
(6)Mutual injunctions were made restraining the parties from discussing the proceedings with the child, consuming illicit drugs whilst the child is in their care, leaving the child in the care of the paternal grandmother or abusing, denigrating, criticising or rebuking the other parent to the child or within his hearing.
(7)Further orders were made by consent with respect to the exchange of information or medical notice and for the parties to keep each other informed of any school or educational facility or extracurricular activity attended by the child. Each of the parties were at liberty to attend a parent teacher interview provided that such interview was at separate times. A further order was made for an updated Family Report and for the parties to attend a section 13C Conference thereafter.
On 2 March 2022, Court Child Expert Ms G released her second Family Report (‘the second Family Report’).
THE MOTHER’S POSITION
At Trial, the mother sought the following orders:
1.That the mother do have the sole parental responsibility in relation to the child, X born in 2015 (“hereinafter referred to as “X”).
2.That X live with the mother.
3.That the mother be permitted to relocate permanently to New South Wales with X.
4.That pending the mother’s relocation to New South Wales X spend time with the father as follows:-
4.1 Every second weekend from 9:00 am Saturday to 5:00pm Sunday; and
4.2 Facetime for on up to 2 occasions per week, on days and times as per the father’s wishes for up to 30 minutes on each occasion ; and
4.5 At other times including Christmas, birthdays and special days as agreed by the parties.
5.That upon the mother’s relocation to New South Wales X spend time with the father as follows:-
5.1 Facetime up to 2 occasions per week, on days and times as per the father’s wishes for up to 30 minutes on each occasion; and
5.2 For one half of all school holidays in Adelaide on dates and times to be agreed; and
5.5 At other times, including Christmas, birthdays and special days as agreed by the parties.
6.That on no less than 2 occasion per calendar year on the written request of the mother’s solicitor, the father do submit to the mother a drug test result pursuant to the Hair Follicle Analysis process at the cost in all things of the father.
(b) That the hair follicle test be conducted at a laboratory accredited by the National Association of Testing Authorities, Australia, in accordance with the current Australian Standard for the collection and detection of drug abuse.
(c)That the father provide the pathologist with photographic identification, to be recorded before the test, and the authority to provide the results of the test to the solicitor for the mother upon its completion.
(d) That the test shall be for the detection of amphetamine-type substances, cannabis, opiates (including heroin and morphine), sedative-type drugs, cocaine,, chronic alcohol use and any other drug of abuse.
(e) That the father is restrained and an injunction granted restraining him from cutting or shaving his hair (whether it be head hair, underarm hair, leg or pubic hair) from the time he receives the request until the test has been completed.
7.That the father be restrained and an injunction granted restraining him from:-
(a) removing X from the mother’s care other than in accordance with an Order of this Court;
(b) physically disciplining X;
(c) entering upon or being in the vicinity of any education or care facility attended by X, except with the written consent of the mother;
(d) assaulting, abusing, harassing, denigrating the mother and from permitting any other person to do so;
(e) entering upon or being in the vicinity of the mother’s place of employment, or at any other place where the mother is staying or working, except with the written consent of the mother;
(f) attending at or being in the vicinity of the mother’s residence unless invited by the mother, in writing;
(g) damaging, or interfering with, the other’s property, or from allowing any other person to do so.
8.That the father be restrained and an injunction granted restraining him from:
(a) possessing a firearm, ammunition or part of a firearm; and
(b) holding or obtaining a licence or permit authorising the possession of a firearm, ammunition or part of a firearm.
9.That any existing firearms licences or permits held by the father be cancelled.
(a) That the father forthwith surrender to the South Australian Police Registrar of Firearms any firearms, ammunition, or part of a firearm in the possession of the father, and any licence or permit held by the father authorising possession of a firearm, ammunition or part of a firearm.
(b) That the solicitors for the mother serve a copy of this Order on the Registrar of Firearms.[1]
[1] See mother’s Amended Initiating Application filed 11 April 2022.
At Trial, the mother’s alternate orders sought in the event that she is not permitted to relocate to New South Wales with the child are as set out in Exhibit M2 namely:
1.X live with the mother.
2.X spend time with the father as follows:
a. Each alternate weekend from 9:00 am Saturday until 5:00 pm Sunday;
b. Commencing the first weekend X is due to spend time with the father during the October 2022 school holidays, each alternate weekend from the conclusion of school (or 3:00 pm if a non-school day) Friday until 5:00 pm Sunday; and
c. Commencing the first weekend X is due to spend time with the father during the April 2023 school holidays, each alternate weekend from the conclusion of school (or 3:00 pm if a non-school day) Monday.
3.Notwithstanding the arrangements in paragraphs 1 and 2 herein, X be in each party’s care during school holidays and special occasions as follows:
a. During the short school holiday periods, commencing in the July 2022 holidays for one half of the school holiday period, with the father for the first half of the holidays, commencing at the conclusion of school on the last day of the school term until 12:00 pm on the middle Saturday, and with the mother at all other times; and
b. During the Christmas school holiday periods, commencing 2022 and each alternate year thereafter, with the father for the first half of the holidays, commencing at the conclusion of school on the last day of the school term until 12:00 pm on the fourth Saturday, and with the mother at all other times;
c. During the Christmas school holiday periods, commencing 2023 and each alternate year thereafter, with the mother for the first half of the holidays, commencing at the conclusion of school on the last day of the school term until 12:00 pm on the fourth Saturday, and with the father from 12:00 pm on the fourth Saturday of the holiday period until 12:00 pm Sunday on the weekend prior to the resumption of the school year;
d. On X’s birthday, he communicate with the parent whose care he is not otherwise in via telephone at 5:30 pm;
e. For Father’s day, if X is not otherwise in the father’s care, from 9:00 am until 5:00 pm on Father’s Day; and
f. For Mother’s day, if X is not otherwise in the mother’s care, from 9:00 am until 5:00 pm on Mother’s Day; and
4.During the times X spends in the father’s care, X communicate with the mother each night X is in the father’s care, via Facetime at 6:00 pm.
5.In addition to the orders herein sought for X to communicate with each party, X be at liberty to communicate with the party whose care he is not in at any reasonable time and the caring parent shall facilitate such request.
6.Handover is to take place at McDonalds, Suburb L.[2]
[2] See Exhibit M2.
THE FATHER’S POSITION
At Trial, the father sought the following orders:
1.That the parties have equal shared parental responsibility for the child X born in 2015.
2.That the said child live with the mother.
3.That the child spend time with the father as follows:
(a) during school terms until 8 July 2022 each alternate weekend from the conclusion of school on Friday (or 3:30 pm if a non-school day) to 5:00 pm Sunday;
(b) during school terms from 29 July 2022 each alternate weekend from the conclusion of school on the Frida (sic) (or 3:30 pm) if a non-school day) to the commencement of school on the Monday (or 9:00 am if a non-school day);
(c) during the school holidays at the conclusion of Term 2 in 2022 from the conclusion of school Friday 8 July 2022 until Wednesday 13 July 2022 at 9:00 am;
(d) during the school holidays at the conclusion of Term 3 in 2022 from the conclusion of school Friday 30 September 2022 until Thursday 6 October 2022 at 9:00 am;
(e) from 2023 for one half of each short school holiday period at such times as agreed between the parties or in default of agreement for the first half of each such period;
(f) for one half of each Christmas school holiday period as agreed between parties or in default of agreement on a week about bass commencing the first week of such holiday period;
(g) such further or other times as agreed between the parties.
4.That the parties share special occasions and in particular:-
(a) That the said child spend time with the father on Father’s Day from 9:00 am to 5:00 pm;
(b) That the said child spend time with the mother on Mother’s Day from 9:00 am to 5:00 pm;
(c) That the said child spend time with the father for a minimum of three hours on the father’s birthday;
(d) That the said child spend time with the mother for a minimum of three hours on the mother’s birthday;
(e) That when the said child’s birthday occurs when he is in the mother’s care the said child spend time with the father for a minimum of two hours if the birthday falls on a school day and for a minimum of three hours if the birthday falls on a non school day;
(f) That when the said child’s birthday occurs when he is in the father’s care the said child spend time with the mother for a minimum of two hours if the birthday falls on a school day and for a minimum of three hours if the birthday falls on a non school day.
(g) That with respect to Christmas Day:-
(i) The said child spend time with the father:-
(A) From 3:00 pm Christmas Day until 10:00 am Boxing Day in 2023 and each alternate year thereafter;
(B) From 5:00 pm Christmas Eve until 3:00 pm Christmas Day in 2022 and each alternate year thereafter;
(ii) The said child spend time with the mother:
(A) From 3:00 pm Christmas Day until 10:00 am Boxing Day in 2022 and each alternate year thereafter;
(B) From 5:00 pm Christmas Eve until 3:00 pm Christmas Day in 2023 and each alternate year thereafter;
(h)That with respect to Easter:(i)The said child spend time with the father: -(A) From the conclusion of school (or 3:30 pm if not a school day) on Maundy Thursday until 3:30 pm on Easter Saturday in 2024 and each alternate year thereafter;
(B) From 3:30 pm on Easter Saturday until 3:30 pm on Ester Monday in 2023 and each alternate year thereafter;
(ii) The child spend time with the mother: -
(A) From the conclusion of school (or 3:30 pm if not a school day) on Maundy Thursday until 3:30 pm on Easter Saturday in 2023 and each alternate year thereafter;
(B) From 3:30 pm on Easter Saturday until 3:30 pm on Easter Monday in 2024 and each alternate year thereafter.
5.That the parties each facilitate any request by X to communicate with the other party whose care he is not in by imessage, facetime or phone.
6.That handovers that do not take place at X’S school take place at McDonalds or such other place as the parties may agree by text message;
6A. That an order be made and an injunction granted restraining the applicant mother from changing the child’s principal place of residence from the southern suburbs of South Australia.
7.That the parties be restrained and injunctions are hereby granted restraining each of the from:
(A) Consuming alcohol to excess or an illicit drugs during any period of time he or she spends with the said child and for the period of 12 hours beforehand;
(B) Abusing denigrating criticising or rebuking the other parent to X or within his hearing or allowing others to do so.
8.That the parties shall keep the other informed of X’s doctors, health care and other treatment providers and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about X and this order shall serve as such authority.
9.The parties shall keep the other informed of any school, educational facility or extracurricular activity provider and authorise those providers to provide the other parent with information that they are lawfully able to provide about X and the option to purchase school photographs and this order shall serve as such authority.
10.If there is a cost associated with the provision of any information or document under these orders from X’S doctors, health care and other treatment providers or day care, school, education facility or extracurricular activity providers the expense shall be borne by the parent requesting information.
11.The parties each be at liberty to attend at parent teacher interviews PROVIDED they shall attend at such interviews at separate times.
12.That the applicant pay the costs of and incidental to this response.
13.Such further and other orders that this Honourable Court deems appropriate.[3]
[3] See father’s Amended Response to Initiating Application filed 18 May 2022.
At Trial, the father’s alternate orders sought in the event that the mother is permitted to relocate to New South Wales with the child are set out in Exhibit F1 as follows:
1.The child live with the mother.
2.The child spend time with the father as follows:
a)From the first Saturday immediately after the end of school term, to the last Saturday before the start of the next school term, for all short school holiday periods.
b)For the long school holiday periods as follows:
i)With the father from the first Saturday immediately following the end of term until 31 December in all even numbered years starting in 2022;
ii)With the father from 31 December to the first Saturday immediately before the start of the next school term starting in 2023;
c)With the mother at all other times.
3.The child to have Facetime with the father on each Sunday of each week at 5:00 and at all other times as requested by the child.
THE EVIDENCE
The mother
The mother adopted the evidence in her Trial affidavit and gave no further evidence in chief. Her evidence was given with a flattened affect and very little display of emotion.
Under cross examination from the father’s counsel, the mother confirmed that she sought to relocate to the central coast of New South Wales to reside with her family. Notwithstanding the mother’s evidence that the thought of communicating with the father causes her anxiety, she was adamant in her evidence that there would be no difficulty in facilitating the child communicating with the father by Facetime on two occasions per week or negotiating with the father for special occasions. The mother differentiated communicating with the father by email as opposed to communicating with him in person as the reason why she thought that those orders could be implemented without distress to her.
The mother gave evidence that whilst the father had produced a series of drug tests which were negative for illicit substances, she remained concerned that the father would relapse and again use methamphetamine which would place the child at risk. The mother’s evidence is that she wants drug tests to continue until the child was 18 years of age as she wanted to “keep my child safe”. The basis for drug testing until the child turned 18 years of age was said to relate to the father having relapsed on one occasion post separation. In addition, the mother was sceptical that the father could have dealt with his previous serious drug problem without any professional intervention.
The mother was cross examined regarding the orders sought by her restraining the father from attending at the child’s school. The mother denied the suggestion put to her by the father’s counsel that she was attempting to frustrate the father’s involvement with the child’s education and added that there was a reason why she sought the order given the father’s behaviour in removing the child following separation in early 2019.
The mother conceded that she had not been successful in securing an Intervention Order against the father through the South Australian Police (‘SAPOL’). According to the mother’s evidence, she was not permitted to proceed with the Intervention Order application due to the lack of evidence regarding physical violence.
The mother conceded that her application for personal injunctions currently before the Court were effectively a means of securing such an order which she was not able to secure through the Magistrates Court of South Australia.
The mother was cross examined regarding her allegations that the father had engaged in what would be described as “coercive and controlling” family violence. The mother denied that during the relationship she would willingly give her debit or bank cards to the father to purchase household goods. It was the mother’s evidence that the father would remove the bankcard without her permission after telling her that she had “no choice” but to hand it over to him. The mother denied that she could have stopped this behaviour.
The mother was cross examined about the incident described in paragraph 16(b) of her Trial affidavit where she alleged that the father had deliberately run a red light and had placed herself and the child at risk. Furthermore, the mother alleged that the father had misled officers from SAPOL and consequently was never charged with an offence. The mother indicated in her evidence that the explanation given by the father to the police was not true.
The mother denied that all of the sexual activity between the parties during the relationship was consensual. The mother maintained that the father engaged in sexual acts with her whilst she was asleep and therefore without her consent. The mother denied that the text messages in Exhibit M1 referring to matters of a sexual nature between the parties could be described as “light banter” and further denied that she was trying to twist what was said to represent “playful bedroom banter” into anything more sinister.
The mother maintained her evidence that the father had destroyed his mobile telephone in order to destroy evidence contained on his mobile phone in relation to a relationship with an underage minor. The mother gave evidence that she observed the father to destroy his mobile telephone which he then gave to SAPOL. The mother conceded that notwithstanding those allegations the father was not charged with any criminal offence.
The mother maintained the allegations as set out in paragraph 30 of her Trial affidavit with respect to the father harming a family pet, culminating in the mother surrendering the dog to a shelter. The mother maintained that the father had discharged an air rifle as she had heard an object hitting the parties’ fence. The mother denied that this could have been an incident of “dry firing” as put to her by the father’s counsel.
The mother conceded that the father had obtained the report from his treating psychologist Dr F. However, the report provided the mother with no comfort in that the recommendation was that the father required intensive therapy. The mother pointed to the fact that there was no evidence that the father had undertaken such therapy as underpinning her concern that he had not addressed his past mental health difficulties to her satisfaction.
When cross examined about the current time spending arrangements, the mother conceded that she had no complaints about the child’s presentation or statements to her since alternate weekends commenced in or about December 2021. The mother agreed that her formal application now included an order promoting half school holidays, including on the face of it, a three week consecutive block of holidays across the Christmas period commencing immediately.
The mother qualified this order by stating that she promoted the order for half school holidays “provided that there are no issues in relation to drug usage and family violence”.
The mother conceded that the father had produced drug screens clear of illicit substances since in or about August 2019, although she remains sceptical about how drug free he actually is.
The mother indicated that the father having been detained under the Mental Health Act, should have received intensive psychological treatment in order to receive assistance with this mental health difficulties. The mother conceded under cross examination by the father’s counsel that she struggled to say anything positive about the father or the efforts made by him to improve his lifestyle since the final date of separation.
In relation to her own mental health issues, the mother agreed that she had been diagnosed with anxiety prior to commencing a relationship with the father. The mother’s mental health issues were said to emanate from incidents which occurred when she was a young woman perpetrated by members of her own family of a sexual nature. The mother conceded that she is no longer receiving any psychological or therapeutic support. The mother’s own evidence is that she feels more confident and secure with her family close by.
The mother agreed that the father’s conduct in removing the child from childcare and then attempting to withhold the child until she agreed to a reconciliation had caused her significant distress. It was only ultimately with the intervention of the police that the father removed his belongings and vacated the parties’ residence.
The mother denied that the father had assisted in any meaningful way with the care of the child prior to separation. The mother admitted that the father had driven her to all antenatal appointments, but went on to state that he had only attended one ultrasound appointment. The mother denied that the father had been present when the child was born, nor that he bathed, dressed or fed the child. The mother denied that the father undertook household chores.
The mother conceded that the father now paid Child Support in the sum of $66.58 per month. Child Support payments commenced only relatively recently as the mother only made an application for financial support in 2021. The mother denied that the father had offered to pay Child Support to her immediately post separation as he alleged.
When cross examined on the cost of travel in the event that her relocation application was successful, the mother’s evidence was that her family would pay all costs of travel associated with the child and/or any accompanying adult between Suburb B, New South Wales and Adelaide, South Australia. In addition, the mother conceded that the father would not need to travel to New South Wales to spend time with the child unless he elected to do so.
The mother denied the assertion put to her by the father’s counsel that her move to New South Wales in April 2020 had been in effect a “back door” relocation. The mother confirmed that she wished to be with her family and was anxious to travel to New South Wales before the borders between New South Wales and South Australia firmly shut down.
The mother conceded that she continued to suffer from anxiety when by herself and that she did not like being alone. The mother’s evidence was that she continued to fear the father and was frightened of what he may do to the child. The mother agreed that this was not a rational position to take, particularly given that the current time spending had proceeded well and in circumstances where the mother was promoting orders for half school holidays commencing upon her relocation interstate.
The mother conceded having told the Court Child Expert that her mental health had been improving and that she was no longer depressed. The mother agreed that those improvements came about during the period of time whilst she was living in Adelaide. When asked as to the trajectory of her mental health, the mother gave evidence that she did not think that it would improve “much more”. The mother denied the proposition that her mental health continued to improve despite remaining in Adelaide.
The mother was cross examined about her potential for work. The mother conceded that she has a Bachelor Degree from H University. According to the mother, there were no jobs in South Australia that she was “qualified for”. The mother indicated that there were no jobs that she could find having looked for work on the websites “Seek” and “LinkedIn”. The mother’s evidence is that most of the jobs which suited her qualifications were based in Sydney or Melbourne, whilst conceding that she could undertake that work remotely.
The mother’s evidence with respect to employment opportunities in South Australia versus those in New South Wales was unsatisfactory. The strong impression given to the Court was that the mother had really made no effort to look for work whilst living in South Australia, but intended to do so upon moving to New South Wales. However, for the reasons provided for herein, it is not due to employment opportunities that the mother seeks to relocate interstate.
The mother denied that she had supportive family here in South Australia. Her relationship with a cousin had broken down (this evidence was confirmed by the father) and an aunt and uncle were said not to be close. Indeed, it was the maternal grandfather who gave evidence that the aunt and uncle intended to move to Town P before travelling extensively around Australia in their retirement.
The mother conceded that there had been no recent incident which caused her concern in relation to the child’s relationship with the father. The mother conceded that her concerns were cemented in the father’s conduct during their relationship and for about eight months post separation.
The mother made appropriate concessions that the child enjoyed spending time with his father and with the father’s partner.
Mr C (‘Mr C’)
Mr C is the maternal grandfather. He described having a close relationship with his daughter and grandson.
Mr C conceded that he was unaware of the difficulties confronting the parties during their relationship until after their separation. He gave evidence specifically of remembering an event which had occurred in 2018 when the father was said to “wipe off” the mother’s make up that she had applied to her face. The incident was said to have occurred in mid-2018 or about 6 months prior to the final date of separation. Mr C confirmed that towards the end of the relationship the mother telephoned her family in New South Wales every day seeking support. He gave evidence that had he known of the alleged abuse then he would have “interceded”.
Post the parties’ final separation, the maternal grandmother moved to Adelaide to support the mother and the child. Mr C has flown to Adelaide to spend time with his wife every month. Mr C described it as a joint family decision for the mother and the child to travel to New South Wales in April 2020 when State borders were shutting down. To do otherwise, would have separated the maternal grandparents in two different States.
If the mother and child were permitted to relocate to New South Wales, Mr C described the mother’s future accommodation as a comfortable three bedroom home in a country setting which also had a separate garage converted to a granny flat. This building was described as free standing with a full kitchen and bathroom having been renovated in 2019.
Mr C stated that from his observations the mother was not as anxious when her family were present and gained significant benefit from their support.
Finally, he conceded that in the event that relocation was permitted by the Court, then he was prepared to pay on behalf of the mother all flights, car hire, food and hotel expenses in order to bring the child to South Australia to spend time with the father.
Mr C presented as a no-nonsense person, but one who clearly loved and wished to support his daughter and grandson as much as he could.
The father
The father adopted the evidence in his Trial affidavit and gave no further evidence in chief.
Under cross examination, the father conceded that payment of Child Support had only recently commenced and that he was paying $66.00 per month. The father added that previously he had been paying $128.00 per month, but this amount had recently been reduced to reflect his income.
When challenged by the mother’s counsel, the father gave evidence that he considered that he had made an offer of financial support to the mother in early 2019 which had not been accepted. In the absence of having the mother’s bank account details, the father stated that no monies had been exchanged.
The father conceded that he had made no financial contribution towards the child’s school fees or school uniform. The father’s financial support was said to relate to Child Support paid since mid-2021, together with a “full wardrobe of clothes” which the father supplied for the child when spending time with him.
The father’s evidence is that he is currently working as a contractor for “Employer Q” and had been employed by the company since November 2021. Prior to that the father had worked as a factory worker, tradesman or as a courier driver.
The father described himself as being a “quick learner” and agreed with the description that he had “a wide variety of skills”.
In relation to the lack of financial support provided by him to the mother, he described himself as being “a bit concerned” about the child’s welfare but was aware that the mother had received support from her parents in his absence.
The father conceded that during the relationship the parties had received the benefit of a home purchased by the maternal grandparents which they had occupied but with the payment of rent. In addition, the father conceded that the maternal grandparents had contributed money from time to time into the mother’s bank account given that they were on a low income and struggled to meet their financial expenses.
The father conceded that the SMS messages as contained in Exhibit M1 gave the impression that he did not wish to spend money on the child and the mother’s parents should pay those outgoings. The father denied that was his position now, namely that his obligation to meet financial support for the child was abrogated to the maternal grandparents. The father conceded that the mother had received significant support from her parents both during the relationship and post separation.
The father conceded that in reality, it was the mother and her family who paid the bulk of expenses for the child’s financial support.
In relation to the mother’s mental health, the father agreed with the proposition contained in his Trial affidavit that the mother suffered from anxiety at the commencement of the relationship and that he maintained he had concerns about the mother’s mental health throughout the currency of these proceedings.
Having conceded that the mother gained significant support from her family, the father was cross examined as to any potential impact on the mother should she be denied an opportunity to relocate to New South Wales. The father described his concern as “not as great as it used to be”. He agreed that aside from one handover which was said to have occurred about four weeks prior to the Trial date, all handovers had been conducted by the maternal grandmother at the mother’s request.
The father conceded under cross examination that he was unaware if the mother’s mental health had improved since separation. The father conceded that it was a “possibility” that there could be a deterioration in the mother’s mental health if she lost her maternal family’s support and was required to remain living in South Australia.
The father’s opposition to the mother being closer to her family in circumstances where she gained significant support from them was less of a priority than the father’s desire to be involved in spending time with his son. The father conceded that it was unlikely that the mother would turn to him for assistance in relation to the child given their relationship history. The father stated that it was “not likely that she will (do that) but she could”.
Against his interests, but to his credit, the father conceded that if the mother was unhappy living in Adelaide, there was a possible flow on effect for the child and that the mother had limited supports in Adelaide and her primary support base being in New South Wales.
In relation to his job opportunities, the father agreed that in 2020 he had himself looked at relocating to Melbourne or Sydney to create a “better start”. This arose due to the father’s then personal circumstances where he described having “no money” and being “run down”. The father ultimately did not move interstate because he formed a relationship with his current partner Ms D.
The father conceded that he had not looked for work in Suburb B, New South Wales. He conceded that he had discussed with Ms D the possibility of moving to New South Wales but described this as “not likely” as Ms D assists her mother in caring for her brother who is said to have a disability and providing assistance to her own mother who apparently has significant health issues.
The father agreed that he was seeking an order for equal shared parental responsibility, notwithstanding the parties’ poor communication. The father stated “I believe that if she gave me a chance we could work it out”. Aside from some relatively minor complaints about clothing worn by the child on a cold day, the father conceded that the mother had otherwise discharged her duties as a mother well and that he was happy with the mother’s school selection for the child.
The father was specifically questioned about his engagement with the child’s school. The father conceded that notwithstanding that orders were made permitting him to engage with the school in September 2021 he had not yet visited the school, nor met the child’s school teacher, nor attended a parent teacher interview. The father explained that he had not undertaken these tasks because he “did not understand the order”.
The father was cross examined at some length about the mother’s allegations of family violence. The father explained that he had possession of the mother’s bank card during their relationship because she had no driver’s licence and he was required to drive to the shop to withdraw money. According to the father’s evidence during the parties “off week” from receiving Centrelink entitlements, the maternal grandfather would deposit money into the mother’s account which would then be withdrawn and used to pay for groceries and household expenses. The father denied that he had withheld the mother’s bankcard in order to control the mother or to limit her financial expenditure.
In relation to the allegation of having performed sexual acts on the mother while she was asleep the father vigorously denied this allegation. The father denied all allegations of sexual misconduct made by the mother and stated that all sexual contact was consensual.
The father was asked about the incident where he wiped makeup from the mother’s face. The father stated that he had wiped the mother’s face because he considered that she was “beautiful” without the application of makeup. He described this incident as “just a joke’.
In relation to the allegation that the father had thrown a lawnmower against a wall thus damaging it, the father denied throwing the lawnmower and stated that he had rather “pushed it against a trampoline”.
When cross examined further about content in an earlier affidavit, the father reconsidered his evidence and conceded that he may have “swung it” (the lawnmower). The father again denied that the lawnmower was “thrown”.
The father conceded in paragraph 11 of his Trial affidavit that he had punched two walls in the parties’ rental property, but was unchallenged in stating that the mother was not present when this occurred.
The father denied any “road rage” incident whereby he “rammed” another car deliberately. The father described an incident whereby he himself was a victim of another person’s aggression on the road and that he had subsequently made a report to SAPOL and that nothing further had happened.
The father conceded that his former partner Ms O had obtained an Interim Intervention Order against him in September 2019. The father’s evidence is that he understood to the best of his knowledge that the Intervention Order and criminal charges had now been withdrawn. The incident which was said to have led to Ms O obtaining an Intervention Order involved an argument at their home whereby the father was alleged to have struck Ms O in the head with a small wooden drawer when the parties argued over cannabis. The father conceded that he had used methamphetamine with Ms O during their relationship.
In relation to his past methamphetamine use, the father agreed that he had commenced using methamphetamine whilst in a relationship with the mother and had not disclosed his drug taking to the mother. The father considered that the drug taking had commenced possibly in December 2018 before ceasing in August 2019. During the period December 2018 to August 2019 the father conceded that at one point he was smoking “five points” of methamphetamine every three to four days during the period from April to August 2019. The father gave evidence that five points of methamphetamine would cost $150.00 and the more methamphetamine that was purchased, the cheaper the price. The father conceded that using methamphetamine had adversely affected his mental health.
The father stated that he relapsed after testing positive for methamphetamine in a hair follicle test when he had anticipated that the test result would show negative usage and he would then be able to spend more time with his son. The father was said to be so devastated by the positive drug test result that he then spiralled into a heavy drug lifestyle.
The father was specifically cross examined about a statement made by him to Family Consultant Ms N (as she then was) on 12 June 2019 during a Child Dispute Conference. The father conceded that he had incorrectly told Family Consultant Ms N that he did not use methamphetamine “very often” as reported in the memorandum. At the time the father was interviewed by Family Consultant Ms N, the father had relapsed and on his own evidence was smoking five points of methamphetamine every three to four days.
The father was questioned about how he was able to abstain from drugs without any professional involvement or support. The father stated that he had seen the effect of methamphetamine on his own brother. The father described falling into a “very bad place” where he had “lost everything that I had”. The father says he was motivated by wanting to spend time with his son and he having reached “rock bottom” was now determined to remain abstinent from illicit drugs.
The father conceded that he understood why the mother remained apprehensive about his potential for relapse in the face of there being no formal or professional intervention to address his drug usage. The father pointed out that he had given multiple test results over the last few years during the Court proceedings which had all tested negative. The father stated that he “did not want to be like that” i.e. “drug addicted again”.
In 2015, the father was referred for psychological treatment under a Mental Health Care Plan and attended eight sessions with a psychologist.
In 2018, the father described having a mental breakdown and was admitted for a period of five days at the L Hospital. He was ultimately referred to see Dr F, Psychologist but ceased the appointments after feeling unsupported by Dr F and alleging in his oral evidence that Dr F was falling asleep during one appointment. The father conceded that it had been recommended by Dr F that he may require “extensive and intensive professional support and attention”. Whilst the father did not recall having read that advice, he conceded that he had not done this. The father was questioned as to what supports he had in place if the Court ordered relocation and the father suffered a relapse. The father conceded that he had no professional supports but was sanguine about the impact on his health should the Court make an order permitting the mother to relocate with the child to New South Wales.
The father was cross examined about his former use of firearms. The father stated that he previously owned an air rifle, a shotgun and a .22 rifle. According to the father, all three firearms had been collected by SAPOL and were no longer in his possession.
In addition, his firearms licence had been cancelled. The father’s evidence is that he had used the firearms licence for target shooting and hunting foxes on friends’ farms. The father conceded that his firearms licence had been cancelled in or about December 2018 and that he had not taken steps to obtain a firearms licence since that time although he may do so “down the track”.
The father agreed that in late 2018 he had put an unloaded firearm into his mouth to “see what it felt like”. This is a very serious allegation and combined with the father’s methamphetamine use, caused the mother to fear the father having unsupervised time with the child.
The father was reluctant to consent to an order which restrained him from possessing firearms into the future. He expressed a desire to engage in fox shooting in the future, including taking the child “fox shooting” when he was older.
The father was cross examined about the incident whereby he had removed the child from child care on 14 January 2019. The father conceded that at the time the child was removed he had failed to inform the mother that he would be taking the child into his care. The father denied being under the direct influence of methamphetamine at the time that the child was removed from child care, but conceded that the effects of methamphetamine were likely to have had some impact on his thinking on the day. The father stated that he removed the child because he wanted him to spend time with his paternal grandmother and that he had informed the mother that he would return the child in a few hours which is what he subsequently did. To his credit, the father accepted that this incident was likely to have caused the mother concern regarding the child’s safety. The father denied that the conversation at the park during which he withheld the child from the mother for a period of time was to ensure that the mother returned to him.
Under cross examination, the father conceded that it could be hard for the mother to trust the father now after his drug usage and the incident whereby he removed the child on 14 January 2019. Against his interest, the father conceded that those events would have created barriers for an effective co-parenting relationship. The father identified that since separation however he felt that he had shown a lot of growth and that the parties should be in a position to move on. At present the father conceded that it would be difficult to co-parent but hoped that this could be “worked on”.
The father was asked whether when given support from her parents, the mother would be the best parent she could possibly be if living in New South Wales. The father denied this stating that he believed the mother could be as equally a good parent here in Adelaide.
When asked by the mother’s counsel as to whether or not there was an age upon which he would consider the child could move interstate the father stated “maybe when he is 12 years old and he can make his own choices”.
The father’s partner, Ms D
Ms D adopted the evidence in her Trial affidavit and gave brief evidence in chief as to her family commitments here in Adelaide. The thrust of Ms D’s evidence was that she could not move interstate with the father because she was the only person supporting her mother and her brother given their apparent health issues.
Ms D presented as a loving and supportive partner. She confirmed that in the event that the father’s mental health deteriorated, she would support him in seeking professional assistance. Otherwise, Ms D’s evidence was unremarkable.
Ms G, Court Child Expert
Court Child Expert Ms G has prepared two Family Reports dated 21 December 2020 (‘the first Family Report’) and 2 March 2022 (‘the Addendum Family Report’).
At the conclusion of the first Family Report, the Court Child Expert noted that both parties appeared to love and care for the child. The Court Child Expert was concerned about the lack of communication between the parties and the impact that this would have on the child if it did not improve over time. Consistent with the evidence given at Trial, the Court Child Expert noted that the father was open to communication with the mother but the Court Child Expert was not confident that the mother would be “willing and able to communicate directly” with the father in the future.[4] This was said to be due to “her history of anxiety, her claim she felt unsafe to do so, and the allegations of family violence before the Court”.[5]
[4] See Family Report of Ms G dated 21 December 2020 at [79].
[5] Ibid at [81].
The mother was described as a “loving and caring” parent who had a “secure primary attachment with X”[6] and further, should the Court accept that this trauma include experiences of family violence, including sexual assault by the father, then it would be understandable why the mother sought to have no direct communication with the father in the future, and why she was oppositional supporting the child and his father in the future.[7]
[6] Ibid.
[7] Ibid at [82].
At the date of interview, the father presented at the assessment with no “perceptual or cognitive abnormalities” and demonstrated a “normal affective range and appeared understanding of X’s individual characteristics and attuned to his developmental needs”. [8]
[8] Ibid at [84].
At the time of the assessment the father was described as not presenting as:
a man who was consumed by the need for control or who was unable to function effectively as a prosocial positive role model for [X]. He appeared to have a history of stable employment, a seemingly stable relationship with his partner [Ms D], no independent evidence accepted to date by the Court of family violence or criminal offending, or a failure to comply with orders of the Court.[9]
[9] Ibid.
The focus of the first Family Report was with respect to a progression of the father’s time. The Court Child Expert recommended that the child should commence spending unsupervised time away from the Contact Centre with his father and that the amount of time will gradually increase. The Court Child Expert also expressed the view that whilst there were allegations of past violence before the Court “it was not considered that they were adequate to negate the presumption of shared parental responsibility without further testing of the evidence”.[10]
[10] Ibid at [92]
By the date of the Addendum Family Report on 2 March 2022, it was apparent that the previous hostile relationship between the parties had softened. The mother confirmed that it was her primary position to be able to relocate to New South Wales with the child and put forward a proposal for time spending which largely mirrors that contained in her Amended Initiating Application filed 11 April 2022. In the event that she was not permitted to relocate, the mother promoted time spending with time occurring as of April 2022 on each alternate week from after school Friday until Sunday at 5:00 pm and thereafter increasing from Friday to Monday as of July 2022.
The mother was reported as being:
open to considering future additional midweek time up until a shared care arrangement when the child was older…however the mother was unsure what age she would agree/be willing to consider agreeing this.[11]
[11] See Addendum Family Report of Ms G dated 2 March 2022 at [31]
The father remained opposed to the mother’s request to relocate. The father sought for the mother to remain in South Australia, for the child to remain in her primary care and spend time as proposed by the mother to the Court Child Expert. If relocation was permitted, the father proposed spending time with the child in Adelaide for all short school holidays and half of the Christmas holidays, plus additional time as agreed.
At the time of interview, both parties reported:
significant improvements to their communication with communication now occurring via email and what was said to be a recently shared telephone discussion about [X]’s needs which remained respectful and child focussed.[12]
[12] Ibid at [39].
The mother reported no ongoing concerns about her own safety due to family violence. The mother did however remain alert to the possibility of the father recommencing drug usage in the future whilst acknowledging that the situation had improved in the past 12 months.
The mother reported that her own mental health had improved and that her anxiety had “significantly dropped” and that she was no longer depressed.[13] The mother informed the Court Child Expert that she had not seen a psychologist for six months across 2021 due to being on a waiting list, but when the appointment had taken place her health status had been assessed as at a “mild level”. Notwithstanding this, the mother continued to engage with a psychologist at R Psychology. The mother appropriately conceded that there was nothing currently that concerned her about the father’s mental health but she was reported as being apprehensive given what had occurred in the past.
[13] Ibid at [43].
The father reported that his mental health was stable and that he only experienced a slight symptom of depression immediately after handing the child back into his mother’s care.
In relation to drug usage the mother accepted that the father was now drug free but “continued to have concerns that he may use again in the future”.[14] The father reported no recent drug use or risk of relapse and reported minimal use of alcohol.
[14] Ibid at [48].
Under the heading “Parenting Concerns – Quality of Care” the mother conceded that she had no concerns about the child’s safety or quality of care when with his father. The father expressed a concern that the child spent the majority of his time when with his mother being inactive such as playing on his Xbox, iPad or watching television. Aside from this and the fact that the child was yet to be completely independent when toileting there were no reported further concerns.
At interview, the mother confirmed her desire to relocate to New South Wales and to reside with her family. Consistent with the position at Trial, the father opposed the relocation arguing that it was possible for the maternal grandmother to return to New South Wales and that the mother and the child could visit family members in New South Wales in school holidays. The father argued that he had no capacity to relocate to New South Wales as his employment was in Adelaide and his partner also resided here close to her family.
In relation to the child’s attachment the mother conceded that the child enjoyed spending time with his father and was reported as stating that the child had now “established a secure and primary attachment with each of his parents”.[15]
[15] Ibid at [64].
The mother also raised no concerns about the child’s attachment with his father’s partner and considered that the child was settled in each parent’s home. The mother reported that the child was settled and “doing really well” at school. Those comments were mirrored by the father and Ms D.
The child was not formally interviewed as part of the Addendum Report as he declined to verbalise any responses. The Court Child Expert however took no issue with the child’s presentation noting that this appeared to be as a result of his “shy nature and young age” rather than any other reason.
The observed interactions were said not to be concerning. The child transitioned easily into his father’s care and enjoyed engaging with his father in the free flowing play.
The Court Child Expert described the child as “equally relaxed, happy and playful in all four adults care and no concerns were raised as a result of observations of interactions”.[16]
[16] Ibid at [74].
The Court Child Expert maintained that she did not support the mother’s application for relocation and that it was “difficult to determine with clarity if there was in fact basis for her claims that a move would improve her employment opportunities. Furthermore, whilst issue of family violence remain a matter for consideration, Ms Hathaway did not seek to move for safety reasons”.[17]
[17] Ibid at [81].
The Court Child Expert remained concerned that:
should the mother be supported to relocate to New South Wales then this would significantly impact on the child’s capacity to spend frequent regular and meaningful time with his father, particularly whilst young.[18]
[18] Ibid at [82].
The Court Child Expert was said to accept the father’s claim that he was not in a position to relocate to New South Wales himself. The Court Child Expert also referred to recent border closures during the pandemic:
the potential for this to occur again in the future and the impact this may have on [X] travelling between states to spend regular time with his father whilst living in his mother’s primary care.[19]
[19] Ibid at [83].
The Court Child Expert supported regular time building up to three nights per fortnight and a midweek intervening tea and increasing to shared school holidays. The Court Child Expert acknowledged that the mother’s relocation was a matter for the Court and should the Court support the mother’s relocation then it was recommended that the child spend time with the father for 10 days of the short school holidays and half of the Christmas school holidays, plus any additional time as agreed between the parties. The Court Child Expert maintained her position regarding an order being made for equal shared parental responsibility.
THE RELEVANT LAW – OBJECTS AND PRINCIPLES OF THE ACT
Part VII of the Family Law Act 1975 (Cth) (‘the Act’) deals with orders relating to children. The overarching consideration is that the Court must consider the best interests of any child concerned as the paramount consideration.[20]
[20] Family Law Act 1975 (Cth) s 60CA.
Part VII of the Act is subject to a number of principles and objects set out in section 60B. The Court is required to ensure that a child’s best interests are served by ensuring that it considers various fundamental principles. They are:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.[21]
[21] Ibid s 60B(1).
The principles which underpin these objects are set out in section 60B(2) of the Act. They are described as follows:
(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;
(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);
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children;
(d)parents should agree about the future parenting of their children; and
(e) children have the right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).[22]
[22] Ibid s 60B(2).
The mother’s proposed relocation
The primary focus in this case has been on the mother’s proposed relocation with the child from South Australia to New South Wales.
Demonstrably, any cases involving a proposed relocation of a child or children are difficult. Both parties put positions before the Court which are understandable and deeply felt. Whatever the outcome, one of the parties will undoubtedly feel aggrieved by the Court’s decision. If relocation is permitted then the nature of the relationship between the child and the parent left behind will undoubtedly be changed given that the frequency of time spending cannot occur. Relationships with extended family members and important persons to the non-relocating parent will also be impacted. The remaining parent may also be denied an opportunity to engage in the child’s schooling or extracurricular activities. Practical issues can arise with respect to travel and the cost of travel, although in this case, the mother will consent to an order that the costs of travel shall be met solely by her.
Correspondingly, orders that require an unsuccessful party to remain living in a location other than their preferred one will also result in similar loss and resentment. A parent left without perceived family support may suffer a deleterious consequence in relation to their own parenting capacities. In this case, the father conceded that this was a possibility for the mother. The evidence supports a finding that the mother has received emotional, financial and practical support from her family for many years, and particularly in the period post separation.
In considering the additional considerations pursuant to section 60CC(3) of the Act I bring to account the following.
(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
The child in this matter is only five years of age. It was noted by the Court Child Expert that during the appointments for preparation of the Addendum Family Report, all efforts to engage the child in discussion with the Court Child Expert were unsuccessful.[35] In any event, given the young age of the child, the Court would not place any weight on his views had they been expressed.
(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);
[35] See Addendum Family Report of Ms G dated 2 March 2022 at [68].
There is no dispute in this matter that the child has a closing and loving relationship with each of his parents. There is also no dispute that the mother is the child’s primary carer. The mother appropriately conceded during cross examination that the child enjoys spending time with the father and his partner, Ms D. The evidence supports a finding that the child is much loved by both of his extended maternal and paternal families.
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long‑term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child
It is unfortunate that the COVID-19 pandemic had an effect on the father’s time with the child at the Children’s Contact Service, however this is something that was ultimately out of both parties’ control. Since the effects of the pandemic have subsided, both parties have taken all opportunities presented to them to spend time and communicate with the child.
With respect to the parties’ participation in making decisions about major long-term issues in relation to the child, the Court is led to believe on the evidence that it is the mother who has taken on most of these opportunities. It was conceded by the father in his evidence that the mother has made all major long-term decisions for the child since separation. The father’s evidence regarding his failure to engage at the child’s school was unsatisfactory and confirmed to my mind that he has been willing to leave those issues to the mother.
(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
The mother’s position at Trial was that the maternal grandparents had provided considerable financial support for her and the child, both during the relationship and post separation. It was conceded that the parties had the benefit of living in a home purchased by the maternal grandparents during the relationship. The father also conceded that the maternal grandparents would deposit funds from time to time into the mother’s account in order to assist the family with living expenses, given they were on a low income.
The father’s evidence was that he made an offer of financial support post separation in 2019 to the mother which had not been accepted. Since mid-2021, the father has been paying the mother Child Support assessed in the sum of $66.00 per month. The father’s evidence was that he previously paid $128.00 per month, but this amount had recently been reduced to reflect his income. The father conceded that he has made no financial contribution to the child’s school fees or school uniform.
I find on the evidence available, and as ultimately conceded by the father during cross examination, that the mother and the maternal grandparents have provided the bulk of the financial support to the child, by virtue of assisting the mother with funds to meet the child’s living expenses. To his credit, the father is paying Child Support as assessed by the Child Support Agency and there are no outstanding arrears as of the date of Trial.
(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
This matter involves a proposed relocation of the child to Suburb B in New South Wales. Should the mother be permitted to relocate, the change in the child’ circumstances will have an effect on the relationship with his father. The father’s position is that should the mother be permitted to relocate with the child, he will not follow her given his commitment to his relationship with Ms D, who is required to live in South Australia to support her family.
However, ultimately the Court in this matter determines that it is in the child’s best interests for the mother to be permitted to relocate. The child’s eventual separation from the father from living in a separate State will be addressed by the mother not being permitted to move until January 2023, which will allow the father and the child to continue to build on their relationship, with the expectation that once the relocation does occur, their relationship is strong enough to withstand the physical distance between them.
The mother will remain the child’s primary carer given as she has been since birth.
(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
Given the Court will allow the mother to relocate with the child, consideration is given to the practical difficulty and expense of the child communicating and spending time with the father. The maternal grandfather’s evidence at Trial is that the maternal family is prepared to pay on behalf of the mother all flights, car hire, food and hotel expenses in order to bring the child to South Australia to spend time with the father. This offer of financial support from the maternal family should no doubt provide some relief and confidence to the father that his time spending with the child is not based on his financial ability to spend time with his son.
The offer of payment by the mother and her family of travel costs has been critical to the Court’s ultimate decision to permit the child’s relocation. The Court proposes to make an order that the mother is to bear the cost of the child’s time spending with the child during short and long school holiday periods. Should the father find the finances to travel to New South Wales to spend time with his son outside of school holiday periods, then that shall be at his own expense.
Facetime communication between the child and the father will also occur each Wednesday and Sunday, allowing the child to have direct contact and maintain a relationship with his father by way of a visual mode of communication to an iPad.
(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
The mother is the undisputed primary carer of the child, but however has had the benefit of financial and emotional support from the maternal family both prior to and post separation. It is the mother’s position that if she is permitted to relocate to Suburb B, that she will reside with the maternal family who will continue to provide her with that support.
The maternal grandfather gave evidence that the mother’s future accommodation would consist of a comfortable three bedroom home in a country setting which also had a separate garage converted to a granny flat. The building was described as free standing with a full kitchen and bathroom having been renovated in 2019. The Court is comforted by the fact that the maternal grandparents will continue to provide for the mother and be available to her and the child when she is permitted to relocate.
The Court is equally satisfied that the father will be able to provide for the needs of the child, including emotionally, during periods when he is spending time in his care, given the evidence from the parties that there have been no issues to raise since the father commenced an alternate weekend arrangement in December 2021. The father’s evidence is that the home that he and Ms D occupy is a three bedroom brick veneer home, at which the child has a fully furnished bedroom including his clothes and toys. This evidence was unchallenged by the mother and the Court is satisfied that the father can adequately provide for the child whilst in his care.
(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
There were no identified lifestyle, culture or traditions for the child or either of his parents that are relevant in this matter.
(h) if the child is an Aboriginal child or a Torres Strait Islander child
Not applicable.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The mother has taken on the bulk of the responsibilities of parenthood, by virtue of being the child’s day-to-day primary carer post separation.
Whilst the father has taken the opportunity to spend time with the child, his attitude and involvement towards the practical responsibilities of parenthood have not been discharged to the same level as the mother. During cross examination, the father conceded that notwithstanding that orders were made permitting him to engage with the school in September 2021 he had not yet visited the school, nor met the child’s school teacher, nor attended a parent teacher interview, citing that he “did not understand the order”. A parent’s involvement in a child’s schooling is one of the responsibilities that comes with parenthood. The father could have sought and received appropriate advice from his solicitors as to the meaning of the orders and taken the opportunity to be involved in the child’s schooling, which only could have been to the benefit of the child. The Court finds that it is the mother who has demonstrated the majority of responsibilities of parenthood for the child and will continue to do so into the future.
(j) any family violence involving the child or a member of the child’s family
The mother has made allegations of family violence, including coercive and controlling violence, against the father. Section 4AB of the Act provides the following as examples of family violence:
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.[36]
[36] Family Law Act 1975 (Cth) s 4AB(2).
In a general sense, the mother’s allegations involve the father perpetrating financial control including the withholding of funds and her bank card, sexual coercion or assault, damage to property and harm to animals.
For his part, the father denies the mother’s allegations, but concedes in his Trial affidavit that he punched two holes in their rental accommodation in 2019 when he had a mental breakdown, although he asserts the mother was not there at the time. In relation to an allegation by the mother that the father threw a lawnmower at a wall, the father conceded under cross examination that he may have “swung” the lawnmower against the wall, damaging the lawnmower.
Section 4AB of the Act also provides that:
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b) seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c) comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d) cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.[37]
[37] Ibid s 4AB(3).
In this matter, the only incident where the mother alleges the child was present during an incident of family violence was when the father threw (or swung, on the father’s account) the lawnmower against the wall. The father’s account however is that the child was not witness to this incident. The Court is unable to determine on the evidence whether the child was witness to this particular incident of family violence.
According to the mother’s own Trial affidavit, the remainder of the allegations of family violence incidents either occurred whilst she was pregnant with the child, or not in the child’s presence.
The evidence cannot support findings that the father has engaged in sexual coercion or assault or harm to animals. The evidence does support findings that the father was financially controlling and has caused damage to property during their relationship. The father also demonstrated emotionally manipulative behaviour post separation by removing the child from day care and withholding him from the mother. The mother’s fear about what could have happened to the child given the father’s history of methamphetamine use and admission of putting a firearm in his mouth was totally reasonable.
Whilst the mother may have been subject to incidents of family violence perpetrated by the father, the Court is however not satisfied that the child has been subjected or exposed to such family violence incidents. There have also not been any recent allegations of family violence by either of the parties. Both parties have moved on with their lives. Accordingly, the Court is satisfied that there is minimal risk that the child will be exposed to family violence whilst in the care of either parent.
(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;
No final family violence or Intervention Order has applied in these proceedings. The mother’s evidence at Trial is that she was unable to proceed with an Intervention Order through SAPOL due to a lack of evidence of physical violence. No evidence was led from the mother that she attempted to take further steps to seek a private Intervention Order after the apparent refusal from SAPOL to assist her with a police issued Intervention Order.
I decline to exercise my discretion to make the injunctive orders sought by the mother. Neither party sought to cross examine the other on this topic. The evidence does not support the need for these orders to be made.
(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
It is always preferable for the Court to make an order that is the least likely to lead to the institution of further proceedings in relation to a child. The Court considers it unlikely based on the evidence and the presentation of both parties at Trial, that the ultimate decision to allow the mother’s relocation is likely to lead to further proceedings.
The mother would understand that in permitting the relocation she proposes, the Court has placed greater weight on the need to support the child’s primary carer. With the relocation however comes responsibility on the mother in the form of ensuring compliance with court orders so that the child maintains a relationship with his father and paternal family.
(m) any other fact or circumstance that the court thinks is relevant
The father’s drug use has been a feature of these proceedings. It was clear from the mother’s evidence that she has no confidence in the father’s abstinence from drug use, despite providing the Court with a series of drug tests negative for illicit substances.
The father remaining abstinent from drug use is important to ensure the safety of the child moving forward. This is especially so in circumstances where the father’s evidence is that he fell into periods of drug use after experiencing events which had caused him distress. It is possible that the child’s relocation to New South Wales may be one of those events. Given this, the Court is minded to allow a short period of ongoing drug testing of the father, if the mother so elects, to ensure that the child is not placed at risk of any exposure to the father’s drug taking. It is however hoped that given the support of the father’s partner Ms D, drug use does not become a feature of the father’s life again in future. The mother shall be responsible for those costs, given the order is sought by her at Trial.
Likewise, the father’s use of guns and air rifles whilst around the child is also a factor which has caused the mother ongoing anxiety about the child being in the father’s care. With a child as young as the subject child in these proceedings, there is no good reason why the child should be exposed to the risk that firearm use can bring. Accordingly, the Court will make an injunction restraining the father from possessing or using firearms whilst the child is in his care.
CONCLUSION
The child in this matter is still relatively young. The evidence available would lead to a conclusion that, in isolation, having frequent contact with his father would be of benefit to him. Both the father and the mother have reported to the Court Child Expert that the child has a secure attachment with his father and that the relationship, having suffered a series of setbacks in the period immediately post separation, is now “up and running”. In an ideal situation it would be preferable for the child to maintain frequency of time with his father. However, as I have already observed, this case does not involve an ideal situation or an ideal outcome at least for one of the parties.
There is no dispute that the child’s primary attachment is with the mother. Indeed, the father, by virtue of the orders promoted by him at Trial, would consent to a final order that the child remain living with his mother. The mother’s role as the child’s primary carer is unchallenged.
The father accepts that the mother has experienced anxiety and mental health difficulties associated with traumatic childhood events. The mother presented in the witness box with a flattened effect. Whilst I take on board obvious nervousness that can come with giving evidence and the stress of a Trial, I am satisfied that the mother presents as an anxious person.
I am also satisfied on the evidence that the mother requires ongoing support from her family. The undisputed evidence is that the parties received financial support from the maternal family during their relationship. The support offered by the maternal family to the mother and the child has continued both in financial and non-financial ways since separation in late 2018.
The evidence is that since final separation the maternal grandmother has lived in South Australia residing with the mother and the child to provide emotional and practical support. In addition, the maternal grandfather gave evidence that he has flown to Adelaide on one occasion each month to visit his wife, daughter and grandchild during the period in which these proceedings have been before the Court. This to my mind demonstrates a significant commitment to the support of the mother which has continued up until Trial. The maternal grandfather’s evidence suggests that this situation is untenable in the longer term. Unsurprisingly, the maternal grandmother now seeks to reside in New South Wales with her husband. Her position in this regard could not be seen as anything other than inherently reasonable.
The evidence supports a finding that the mother has had and will continue to have a high level of committed support from her parents in Suburb B, New South Wales.
The father made appropriate concessions regarding the potential impact on the mother if she was not permitted to relocate to New South Wales with the child. This acknowledgement did not extend to placing the mother’s needs and desires above his own however as understandably the father wishes to spend as much time with the child as is possible.
Whilst the parties demonstratively had a difficult relationship post separation, I am satisfied that both of the parties have “moved on” from the previous behaviour which presented itself during their relationship. At this juncture, the mother’s attitude to the father is formed by her own experiences which were understandably distressing and worrying in the period post separation and during the currency of these proceedings.
The mother remains in a heightened state of apprehension regarding the potential for the father to revert to his previous methamphetamine usage and/or to experience a setback in his mental health such that it could impact on the child’s ongoing time arrangements with his father.
I am persuaded on the evidence however that the father has matured and has learnt from his past behaviours. The father is in a settled and mutually loving and supportive relationship with Ms D, whom impressed the Court. The father informed the Court that he did not wish to return to the situation that he found himself in in August 2019 when he was struggling and heavily addicted to methamphetamine.
It is the Court’s expectation that whilst the father may be disappointed with the ultimate orders of the Court, that he will continue to move forward with his life supported by his partner Ms D and can accept that the Court has placed greater weight on the needs of the child’s primary caregiver in the particular circumstances of this case.
Cases involving relocation of children are very often finely balanced and require serious consideration. This case is no exception and I am cognisant of each of the parties’ respective positions and the impact that the outcome may or may not have on their lives moving forward.
The mother in this case requires ongoing emotional and practical support which has been provided by her parents over many years but certainly since the parties separated in 2018. By acknowledging that the child will remain living with the mother on a final basis, I can infer that the father agrees that the mother is in all other ways an excellent parent to the child. Viewed in this way where the wellbeing of the mother has a corresponding impact on the wellbeing of the child, I consider that it is in the child’s best interests to permit the mother to relocate with him to Suburb B, New South Wales. The relocation however shall be delayed until after the child has built up time with his father as provided for in these orders, and upon which the parties had agreed at Trial. As referred to herein, there is nothing pressing to suggest the mother needs to relocate more urgently. I consider that it is in the best interests of the child to spend increasing time with his father so as to strengthen their bond and to provide familiarity once he moves to a school holiday arrangement upon relocation in 2023.
The father’s clear evidence was that he would not be moving to Suburb B or anywhere in New South Wales to take up the opportunity of further time with the child upon relocation. That is not a criticism of the father but an observation of his evidence. However, the father previously had contemplated relocating in 2020 prior to his relationship with Ms D. It is again a question of priorities and in this case the father has elevated the priority of his relationship with Ms D and by extension, members of her family in stating in his evidence that he would not countenance a move interstate if the mother was permitted to move with the child at the conclusion of this Trial. That is obviously a matter for him.
I am cognisant of the mother’s concerns that faced with a setback, the father’s abstinence from drug usage and his mental health could deteriorate. Arguably, this Judgment could be such a setback given the far reaching effect of these orders. In order to provide the mother with reassurance, I propose to make orders for drug testing as sought by the mother but for a finite period at her sole cost. I also propose to make the orders in relation to the father owning or having firearms in his possession or engaging in any gun related activities when the child is in his care. If the father elects to engage in pursuits using firearms, he can do so for most of the year, but not whilst the child is in his care.
For all of the above reasons, I make the orders as set out at the commencement of this Judgment.
I certify that the preceding two hundred and thirty-two (232) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Dickson. Associate:
Dated: 11 August 2022
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