HELMER & CASTAIN

[2020] FCCA 20

FEDERAL CIRCUIT COURT OF AUSTRALIA

HELMER & CASTAIN [2020] FCCA 20

Catchwords:
FAMILY LAW – Parenting – whether mother should be permitted to relocate to Town B in Queensland with the child – where father opposes relocation – where child suffers from Autism Spectrum Disorder – where psychologist contends that the child will strive with structure and consistency in both home and school environments – where it is not in the child’s best interests to relocate with the mother to Town B.

Legislation:

Family Law Act 1975 (Cth), s.60CC

Cases cited:

A & A: Relocation Approach [2000] FamCA 751
Goode v Goode [2006] FamCA 1346
McCall & Clark [2011] FamCAFC 194
U & U [2002] HCA 36

Applicant: MR HELMER

Respondent: MS CASTAIN

File Number: DGC 850 of 2018

Judgment of: Judge Burchardt

Hearing date: 28 November 2019

Date of Last Submission: 28 November 2019

Delivered at: Melbourne

Delivered on: 10 January 2020

REPRESENTATION

Counsel for the Applicant: In person

Solicitors for the Applicant: Not applicable

Counsel for the Respondent: Mr Testart

Solicitors for the Respondent: Testart Family Lawyers

Counsel for the Independent Children’s Lawyer: Mr Lovering

Solicitors for the Independent Children’s Lawyer: VM Family Lawyers

ORDERS

1. All previous parenting orders be discharged.

2. The Mother and Father have equal shared parental responsibility for the child X born 2010 (“the child”).

3. The child live with the Mother.

4. The Mother be restrained by injunction from relocating to Town B with the child.

5. The child spend time and communicate with the Father as follows:

   (a)During school terms, each alternate weekend from the conclusion of school on Friday (or 3:00pm if not a school day) until the commencement of school on Monday (or 9:00am if not a school day);

   (b)For one half of all school term holidays as agreed between the parties, and in default of agreement for the first half of such school holiday period in even numbered years and the second half in odd numbered years;

   (c)For half of the long summer school holidays in a cycle of 10 consecutive days with each parent as agreed between the parties, and in default of agreement for the first 10 days of such school holiday period in even numbered years (and each alternate 10 days thereafter) and the second 10 days in odd numbered years (and each alternate 10 days thereafter);  

   (d)From 4.00pm on Christmas Eve until 2.00pm Christmas Day in even numbered years;

   (e)From 2.00pm on Christmas Day until 4.00pm on Boxing Day in odd numbered years;

   (f)From 4.00pm on New Year’s Eve until 2.00pm New Year’s Day in even numbered years;

   (g)From 2.00pm on New Year’s Day until 4.00pm on the day immediately following New Year’s Day commencing in odd numbered years;

   (h)On the weekend of Father’s Day, from 10.00am on Saturday until 5.00pm on Father’s Day;

   (i)On the child’s birthday as agreed between the parties, and in default of agreement, from the conclusion of school until 7:30pm, or 10:00am to 2:00pm if not a school day. 

   (j)As may otherwise be agreed between the parties.

6. Any period the child is to spend with the Father be suspended as follows:

   (a)For one half of all school term holidays as agreed between the parties, and in default of agreement for the second half of such school holiday period in even numbered years and the first half in odd numbered years;

   (b)For half of the long summer school holidays in a cycle of 10 consecutive days with each parent as agreed between the parties, and in default of agreement for the second set of 10 consecutive days of such school holiday period in even numbered years and the first set of 10 consecutive days in odd numbered years;

   (c)From 4.00pm on Christmas Eve until 2.00pm Christmas Day in odd numbered years;

   (d)From 2.00pm on Christmas Day until 4.00pm on Boxing Day in even numbered years;

   (e)From 2.00pm on New Year’s Eve until 2.00pm New Year’s Day in odd numbered years;

   (f)From 2.00pm on New Year’s Day until 4.00pm on the day immediately following New Year’s Day commencing in even numbered years;

   (g)On the weekend of Mother’s Day, from 10.00am on Saturday until 5.00pm on Mother’s Day; and

   (h)As may otherwise be agreed between the parties.

7. Changeovers occur at the child’s school where possible, and otherwise such other location as may be agreed between the parties in writing from time to time.

8. The father place the child in the care of a responsible third party (including the mother) in the event that he proposes to go to work with the child for a period of anything in excess of an hour and a half.

9. Each of the Mother and Father be at liberty to communicate with the child at reasonable times and by reasonable means (including by FaceTime, etc.) when the child is in the other party’s care, including, but not limited to, between 7.00pm and 7.30pm each Tuesday and Thursday night.

10. The parties each be, and is hereby, authorised to obtain, directly from any school attended by the child, details of the child’s progress at school; copies of all school reports; photographs; notices of parent-teacher interviews; and notices of other functions which parents normally attend.

11. Both parties be permitted to attend parent/teacher interviews and other school activities/functions normally attended by the parents.

12. Neither party enrol the child, in any extra-curricular or sporting activity which is to occur during the time the child spends with the other parent, save with the consent of such parent.

13. Each of the parties keep the other informed of any illness or injury occurring to the child, whilst in their care which requires medical attention, such notice to be provided as soon as practicable and not more than 24 hours following the child attending upon a medical practitioner.

14. Each of the parties provide the other with their contact address and telephone number during periods when the child is in their care and inform the other forthwith of any change in such address or telephone number.

15. The parties, by themselves, their servants and/or agents be and are hereby restrained by injunction from:

    (a)Abusing, insulting, belittling, rebuking or otherwise denigrating the other party, their partner or their family; and

    (b)Discussing these proceedings,

    to or in the presence or hearing of the child and from permitting any other person to do so.

AND THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

B.Liberty is reserved to the parties in the event of disagreement about changeover other than at school.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 850 of 2018

MR HELMER

Applicant

And

MS CASTAIN

Respondent

REASONS FOR JUDGMENT

1. This is a parenting dispute about the best interests of a young boy X, born 2010.  X suffers from developmental speech delay and has been diagnosed in 2014 as autistic.  X has always lived in the primary care of his mother and the primary dispute before the Court is whether or not the mother should be permitted to relocate as she desires to Town B in Queensland.  The father is understandably opposed to this application, because of the likely effects on his relationship with X and the Independent Children’s Lawyer supports these reservations.

2. For the reasons that follow I do not think it is in X’s best interests that the mother relocate to Queensland, although I am in no way without sympathy for the mother’s aspirations in this regard.

Agreed or uncontroversial matters

1. The father was born in 1970 and the mother was born in 1978.  The parties were cohabiting by no later than 2008 and as earlier indicated, X was born in 2010.  Separation took place on 27 June 2011.

2. It should be noted that although there are issues in the case as to family violence, the father concedes having punched a hole in a wall during the relationship when he was angry.

3. The mother, it appears, has been holidaying in Queensland for many years and she went to Queensland for two weeks in 2017 with a view to relocating there.  Very regrettably she was subject to aggressive stalking by a person living in the area in which she was staying and this led to her being ultimately placed in psychiatric care.  X was placed on an interim footing with the Department of Child Safety, Youth and Women in Queensland until his aunt came and collected him.  Thereafter he was kept in the care of his grandmother and aunt, pursuant to DHHS Victoria intervention until March 2018, when he returned to the primary care of his mother.

4. The mother suffers from Hashimoto’s disease and depression, although she says these are well under control.  The mother’s Intervention Order Application was resolved by way of an undertaking by the father on 4 May 2018.

5. The parties have since entered into interim orders made by consent on 29 June 2018, and pursuant those orders, engaged with Ms A, psychologist.  Ms A was indeed the person who met the mother and X in 2014 and referred them for the ultimate diagnoses of autism.  She met the father in August 2018 and has had a number of sessions.  It will be necessary to return to Ms A’s evidence, but it should be noted that she has been engaged in therapy with the family ever since.

The parties’ affidavits

1. The parties have not filed very much in the way of affidavits.  The father filed no affidavit material after his Initiating Application in March 2018, until the day of trial, when he has sought to tender exhibit A1, a document forwarded to his solicitors on 12 November 2019.  It contains a certain amount of inadmissible objectionable material going to without prejudice discussions and other matters that constitute his responses to the mother’s affidavit material.  Much of it is self-serving and he is highly critical of the mother at most points.

2. The mother’s affidavit material, while somewhat more extensive that of the father, has in large part been traversed in the agreed or uncontroversial matters above.  I note that she deposes in far greater detail than the father concedes as to the father’s controlling and aggressive behaviour during the relationship.

The affidavits of Ms A

1. Ms A’s first affidavit, sworn 6 November 2018, notes the commencement of her involvement with the family after the orders made 29 June 2018, which have provided for the father to spend time with X each alternate weekend from Friday to Sunday, with a Wednesday evening additionally.  On 8 November 2018, that time was altered to be from Friday to Sunday, but a regime for school holidays was put in place, together with telephone time.

2. Ms A noted her involvement with the family in the latter part of 2018 and made various recommendations as follows:

   X’s autism means he can find it challenging to learn new information, struggles to understand verbal information, finds verbal communication difficult and needs assistance with emotion regulation.  He therefore will thrive with structure and consistency in both home and school environments.

3. Various recommendations were made in the event X was spending his time across multiple home environments and Ms A went on to recommend a graduated increase of time for X with his father, leading up to eventually a six or seven-night stay, with a review thereafter.

4. Ms A’s follow-up affidavit, sworn 4 October 2019, noted a further five sessions with X, noting that both parents continued to report similar behavioural challenges with X.  The report noted the mother’s concerns that the father was taking X to his place of work and that X had reported that “he likes to going to Dad’s work sometimes, but not too much”.  The report noted fortnightly stays with the father, as well as one week length stays over the school holidays.  Both parents reported that X enjoyed the time he spends with his father.

5. The report went on to repeat the recommendations made in the previous report and that “he therefore will strive with structure and consistency in both home and school environments”.

6. Ms A recommended both parents seeking training and other initiatives and that “Both Ms Castain and Mr Helmer should remain involved in X’s ongoing psychology care, to ensure they are both provided with consistent structure to manage his autism”.

7. The report noted that X had expressed wanting to continue equally splitting his time with the parents over the holidays and recommended that this take place on a week about basis, with 10 day blocks in the long summer holidays if this was agreeable to the parents.

The Section 11F Report dated 9 May 2018

1. This report by Ms C noted the father’s admission that he punched a hole in a wall during the relationship.  It noted ongoing problems that X has with dogs.  It also noted that X was clear he wanted more time with his father.

2. It should be noted that the tenor of the father’s materials taken as a whole suggests that he underplays and does not fully appreciate that X is autistic, irrespective of how he is developing at school (and his school his report tendered as “ICL-1” suggests he is generally doing at least adequately).

The father’s submissions and evidence given at Court

1. The father, who was self-represented, said in opening he was happy with the current orders in place and wished them to continue.  He adopted his affidavits as true and correct.

2. Under cross-examination by counsel for the mother, the father confirmed that he had abandoned his claim that X live primarily with him for some time.  He believed this had taken place a year ago.  The mother’s parenting was good enough for her to be the primary carer.  She was a good mother.  They separated in 2011 and this is the first time they have had to come to Court.  He had to go to Court for the Intervention Order and he had to go to the Family Court to get time. The Intervention Order was resolved by undertaking and expired in May 2019.

3. The father conceded that the mother’s pregnancy with X was an accident.  She had told him that the birth was complicated.  He was uncomfortable with the child at that time and took a step back.  He always allowed the mother to parent.  The mother would not allow him overnight time.  X was very comfortable at the mother’s house.

4. The father said he had a strong work ethic.  Back then he worked 50 weeks out of 52.  Times were sometimes busy, sometimes quiet.  Sometimes he takes X to work. 

5. When it was put to him that he was working when X with him in the holidays, he said X would be in the driveway.  He watches movies and plays robots at home too.  X had mentioned melatonin to him.  He put it in his drink, otherwise he would not drink it.

6. Communications with the mother could be problematic.  He gets told.  She makes a point to get her own way.  After she told him to ring up the doctors, he rang straightaway, but they were knocked back because he was three months late.  Over the years he has had regular time with X.  Before he met his new partner Ms E it was easy.  He has been in a relationship with her for four years.  The mother and Ms E had met once or twice.  At one stage Ms E was upset, because he thought Ms Castain wanted to get him back.  On one occasion the mother was really upset, because Ms E suggested how she should bring up X.

7. The father said that with infant children he has problems.  He is good with toddlers, but was always scared he would drop the baby.  He can be clumsy.  His time with X was limited by the mother.  In March 2018, the mother wanted to go to Queensland and told the father he could not see X until they went to mediation, but then she did not attend mediation.  She had mentioned Queensland in 2017, but he was against it.  His time with X has increased.  Work can be busy, but turnover has dropped massively.  He has worked weekends in the past, but not this year.  X enjoys his work sometimes.  Sometimes it can be a measure-up, which lasts from half an hour to an hour.

8. Ms Castain wants to send the child to school in Queensland.  She gave him the red folder at McDonald’s and told him that they were going to Queensland and there was nothing he could do about it.  He has not checked the school in Queensland, because he is opposed to Queensland.  When it was put that he could go to Queensland and collect X from Fridays to Mondays, the father said there was a bit of travel involved.  He had to get to the airport, then the ferry.  It would be quite an exercise to get there and back.  He had sat with X, because he wanted to know how X felt about it.

9. When it was put to him that the mother was proposing he had X for more than half the school holidays, the father said that when the mother gave him the red envelope to go to Queensland, X had not spent overnight with him.  He would hope that the mother would follow Court Orders.  X sees him every second weekend.  Things had started off easily, but got harder and harder.

10. The financial situation was important.  He had sold off all properties and were mostly sold at a capital loss because they were units.  He had lost a lot of money over the years.  His most recent tax return showed an income of $55,000, even though turnover was probably $200,000 to $250,000.  This was because of the cost of materials.  He could contribute to airfares, but it would help if the mother paid half.  He thinks part of the reason that the mother wants to move to Queensland is bad faith against him.  This was after he met Ms E.  Ms E was not on affidavit and moved out in February.  Their father was missing his children and he agreed that she and the children should return to Sydney.  Ms E was always saying the family controlled him.

11. Under cross-examination by the counsel for the Independent Children’s Lawyer, the father confirmed that although he had applied for residence, he was just happy to see X.  At the time, the mother had a mental health problem and had put a stop to him seeing X.  It was the incident in Queensland in about November 2017.  He was seeking mediation and was desperate.  She was going to Queensland no matter what.  She sent him an email on 21 November and never came back.  X was not at school.

12. He got a summons for an Intervention Order on 14 December 2017.  He went to the school twice, because he did not know the law well enough.  He was waiting to hear from the mother.  He heard on the same day he got the summons and had no idea where she was.  He went to the hearing for the Intervention Order and there was a lady there who told him to file straightaway in the Court.  He is no longer seeking residence.  He did not know if he could go to Queensland.  He had not got his mind around it.

13. Separation took place in 2011.  For about six months he saw X two to three times per week.  He had to fit around his work at that time.  It was unsupervised time for between four to six hours.  The time by way of a regime started when X was three years old.  This was at Ms Castain’s parents’ house in Suburb D, which is a large house with lots to do.  He was allowed there and sometimes put X to bed.  X was comfortable there and so was he.  The mother was very overprotective.

14. The father said he knows X has learning difficulties, but does not think he is autistic.  They say it is very mild, at the bottom end of the spectrum.  They say he is autistic, but he does not accept that.  X is very smart.  He is not sure that the mother is dealing with autism appropriately.  X is okay at handling change and would be okay with relocation, but would miss his dad.  He sees how excited X is with him.  X wants to stay with him and see him more.  They have lots of activities together.  Overnight time has been going for one year and the relationship has improved heaps.  On the first night they shared a bedroom and X had the biggest smile ever.

1. He thinks X would freak out a bit if he has spent less time with him.  He has done a lot of sums in his head.  Nobody knows if it is in X’s best interests to move.  He talks with X’s teachers and for the last six months he has improved a lot.  The school report was tendered as exhibit “ICL-1”.  X’s teacher Mr F says that he has made great progress.  He has friends at school and is settled there.  He has moved schools before.  He might be able to handle the change.  X believes he is going to stay here.  His mother has not told him about it.  About a week he had told X it would be a big change going to Queensland.  X said it would be fifty-fifty.

2. He had read the reports of Ms A.  He did not accept her recommendations, because he did not agree that it was a challenge for X with new information.  He did not think the recommendations were necessary.  He does not see autism traits in X.  X’s language is better than it was and has improved immensely in the last 18 months.  He loves his teacher Mr F.  He does not know who the teacher will be next year.  X gets better and better all the time and needs him in his life.

3. He has heard the mother’s offers, but he got an email before that.  The mother wants more children.  She won’t have the money to pay half the expenses of travel.  Then, children have sport and birthdays and time with him will get harder.  He has thought about moving to Queensland.  Town B is not a big place and he does not know if there is enough work there.  He is 49 next week and it is hard to say.  All his brothers and sisters are in Victoria and he sees them quite often.  He had a party for his niece’s 21^st the previous week and X went.  X is close to his sister’s children, whom he sees every six months.

4. There was no re-examination.

The evidence of the mother

1. The mother was called and adopted her affidavits as true and correct.

2. Under cross-examination by counsel for the Independent Children’s Lawyer, the mother said she would never leave X.  She does not have a Plan B.  Her plan is to move to Queensland.  The timing of the move is because it is unaffordable to live in Suburb G.  She can buy a home in Queensland for about $200,000.  Her family is in City H, but she does not want to relocate there.  She does not have family or friends in Melbourne.  X has a good relationship with his father, but they do not have support here.  She has a close network of girlfriends in Queensland.

3. The father knew about Queensland in August 2017.  She had made three trips in recent months before November 2017, but X was not coping well without her.  There was no overnight time before November 2017, but there was some unsupervised time.  The father had not requested overnight. He simply wanted to care for the child.  X enjoys overnight time with the father.  At the time she decided to leave, she had started a new relationship in Queensland.

4. Separation took place when X was 10 months old.  Time with the father was inconsistent until X was three.  It was once to twice a week and could be up to six hours.  This changed in 2014 after an argument.  The father wanted more time and felt controlled.  She was not happy with him in her house.  After that, time became more consistent.  It was some time in his home.  There was attempted mediation in 2014.  Time did not change in 2015 and 2016, and continued until 2017.

5. When it was put that she gave the father the red folder, the mother said she had discussed this for several months.  She did not want to discuss it further.  She gave him the documents and wanted him to read them and sign them, but he did not sign.  This was about October 2017.  The conversations were not going anywhere.  She told him, “I have made my decision and I’m going”.  The father knew they had gone to Queensland.  She had booked interviews for X to attend and told him that that was where they were going to live.  They have been going there since X was three.

6. The first she knew the father did not want her to go was in September to October 2017, around the time she gave him the red folder.  She was planning to relocate and wanted to negotiate in mediation.  The father initiated mediation, but she did not think relocation would be an issue.  She thought at the first discussion they might agree.  She returned from Queensland after her negative experience and realised the father would not agree.  She decided to try here.

7. She had an anxiety attack in Queensland on 21 November 2017, in Town B, where she was being stalked.  She was hospitalised for two days.  X was given a carer by the Department of Child Safety, Youth and Women and then her sister came up.  The hospital had contacted the sister.  She did not think to contact anyone.  She just wanted to go home.  She never told the father about it, because they were not on speaking terms because of the disagreement about Queensland.  She felt threatened.  She has no family in Melbourne.  X says he does not visit his grandmother.  X was born here and has been in school for almost two years.  He was also in his previous school for two years, where he had friends.  It is not designed for autism.

8. She has wanted to move to Queensland for a long time.  She had looked at Suburb J, where she grew up, but this is not affordable.  Generally, X is quite settled.  Overnight time with the father has gone well and X looks forward to it.  She has not sought a job in Town B.  It is the right decision for her child.  It might be better if they were in Queensland.  X is very positive about flying.  X has a GP and has seen Ms A since he was three years old.  Queensland would not be a massive upheaval for X.  He has more negative behaviour when he spends time with his father and does better when she controls matters.

9. Time with the father is mostly positive.  The issues about safety are in her affidavit.  X does want to go to Queensland and says the father thinks she is going to go too.  X has not had an IQ test and attends a mainstream school without an aide.  She had offered the father Friday to Monday, but he refused.  The father can still have a meaningful relationship whether they live in Queensland or Victoria.  It will not be the same.  She cannot say how X will be affected.  If the father comes, they will have a positive relationship in Queensland.  The quality of time will be meaningful.  X’s time with the father is important.  She will own her own house and will have more money.  She is presently paying $500 per week rent.  She had not thought to put her property circumstances on affidavit.

10. Under cross-examination by the father, the mother said she had taken out an Intervention Order because he was terrifying the child with his behaviour.  They were on good terms before she decided to go to Queensland.  He had threatened to put her in jail if she went.  X was scared that Child Protection might take him from his mother.

11. When asked why she had not called him in Queensland, the mother said she was taken to hospital for assessment.  She did not know how long this would be.  She gave no contact details at all.  The mother denied that Ms E was part of the problem now.

The evidence of Ms A

1. Under questioning by the father, Ms A could not remember suggesting that the mother needed help more than X.

2. Under cross-examination by counsel for the mother, Ms A had not expressed a view about Queensland.  She was reluctant to do so.  X is autistic.  She had not assessed his intellectual functioning.  When it was put that the father did not accept the autism diagnosis, she agreed that the father did not accept the label, but accepted that X has challenges.  She does not know if X was trying to be fair.  He wants equal time during the holidays.  She could not comment on the proposed spend time regime should relocation to Queensland occur.  The relationship between the father and X in the event of a move to Queensland would depend on the amount of access the father had.  X seems to enjoy going to the father’s work sometimes, but not too much.

Findings about the witnesses

1. Both witnesses struck me as being honest and direct in their answers.  The father struck me as being straightforward, if perhaps unsophisticated.  The mother also struck me as honest, although I note, slightly disturbingly, that she referred to the father not by name but as “the child’s father”.  Both these parents struck me as being somewhat lacking in insight and their positions, while understandable, are very much focused on their own needs as a first priority, rather than those of X.

Final submissions by counsel for the Independent Children’s Lawyer

1. Counsel submitted that the move to Queensland was a leap of faith.  It needed evidence.  There was no evidence from the school, any support persons in Queensland, or treating practitioners.  There was no evidence to support the view that it was in X’s best interests to move to Queensland.  The question was how relocation will impact on X’s relationship with his father.

2. Initially there was only daytime time for a long time, of up to three times per week with no overnight.  Then there was overnight time for two nights per fortnight and half the school holidays.  Both witnesses were honest, but the difficulty is a leap of faith.  The relationship with the father would go backwards again.  The mother has challenges in Victoria, but has no Plan B. X was born here.  His family live in Victoria.  There are no close connections in Queensland and no evidence about the school in Queensland.  The mother has to show relocation is in X’s best interests.  Counsel for the Independent Children’s Lawyer referred to the Case Outline.  Ms A’s report is limited.  There is no Family Report and there was no application to relocate until recently.  There has been no time to subpoena medical reports.

3. The Case Outline filed by the Independent Children’s Lawyer relevantly sums the matter up in the following terms:

   It is the Independent Children’s Lawyer’s view that she would be reluctant to support a relocation in the circumstances where the child has a long standing and good relationship with the father and the mother has not provided sufficient evidence to satisfy the Independent Children’s Lawyer that a relocation would be in the best interests of the child.  There is also the important consideration of whether a relocation is in the best interests of a child with autism spectrum disorder and the mother has provided no evidence to say that it is.

   The mother does not need to establish that it would be better if the child were to relocate, she must establish that it is in the child’s best interests and the Independent Children’s Lawyer is not satisfied that it is in X’s best interests to relocate.

Final submissions by counsel for the mother

1. Counsel submitted that both witnesses were honest.  The father had sought residence and was not engaged with X in the early years.  Queensland was always the issue.  The mother does not deny the father’s love of X and has fostered the relationships within the Court Orders.  There were no proceedings until March 2018.  It is necessary to look at the child’s best interests in the future.  There is evidence of the mother’s relationship with X and the father admits the relationship, as the mother puts it.  The father is not accepting the diagnosis of autism.  There are difficulties in managing the child. 

2. There are problems in setting limits and the father taking the child to work.  A continuation of the present arrangements is not necessarily in X’s best interests.  If they move to Queensland, then time would be better.  The mother does not need to provide corroborative evidence and counsel referred to the celebrated case of U & U [2002] HCA 36 (“U & U”).  Mother has made inquiries and can afford a property in Town B.  Counsel referred to McCall & Clark [2011] FamCAFC 194 and U & U.

3. The mother is the primary carer.  What is good for her is good for the child.  She will have a fresh life in Town B.  Counsel tendered as “MFI-1”, the mother’s proposed orders, save that Order 3B should be amended so that the father could spend as much time as he desired with the child in Queensland, provided he gave appropriate notice.  It was necessary to assess the bona fides of the mother.  Would she facilitate a relationship between X and his father?  She has done so in the past.  She only failed to do so when she thought the father being threatening to X.  The relationship between the father and the son had flaws.

The final submissions of the father

1. The father said little.  He said accidents can be made perfect and flaws can be made perfect for the child.  He said every time he saw X he was improving.

Statutory Pathway

1. Against this background, I turn to the statutory pathway set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65]:

   “Summary

   [65]    In summary, the amendments to Pt VII have the following effect:

   1.  Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.

   2.  The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).

   3.  If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).

   4.  The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).

   5.  When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).

   6.  The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
   (s 65DAA(5)).

   7.  The concept of “substantial and significant” time is defined in s 65DAA to mean:

   (a)     the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)     days that do not fall on weekends and holidays; and

   (b)     the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)     occasions and events that are of particular significance to the child; and

   (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   8.  Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.

   9.  The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.

   10.    When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.

   11.     The child’s best interests remain the overriding consideration.”

Parental responsibility

1. The mother’s proposed orders do not say anything about parental responsibility, but I think it is implicit in her position that if she moves to Queensland, she would seek that she had sole parental responsibility.  As a matter of practical politics, this would be the likely outcome in any event. 

2. The Independent Children’s Lawyer has sought equal shared parental responsibility and I would infer that the father, who likewise said nothing about it, would seek this also. 

3. Although it is clear there has been family violence in the past, no submission has been made that the presumption as to equal shared parental responsibility should be set aside on this ground.  Although the family violence is concerning, it is not possible to make detailed findings about it in circumstances where it has been asserted by the mother, but these matters were not pressed in any major way in cross-examination.  In my view, it is appropriate in all the circumstances to make an order for equal shared parental responsibility if the mother remains in Victoria, but not if she relocates to Queensland.

4. In this regard, I should at this stage made it plain that I do not accept the mother’s concerns as to the father’s care of the child.  The father struck me as being a devoted parent and while the exigencies of his work have made him take the child with him to work on what I would find is on occasion an excessive number of occasions and for excessive amounts of time, these are matters that he can readily take on board when confronted with this judgment.

5. I am going to make an order that the father place X in the care of a responsible third party (including the mother) in the event that he proposes to go to work with X for a period of anything in excess of an hour and a half.  X has asserted that he likes going to work with his father, but not too long and for a child of this age, that seems to me to be the appropriate restriction.

The spend time and communicate regime – the primary considerations

1. All parties adopt the position that it is in X’s best interests to have a meaningful relationship with both of his parents.  The proposals both parties have put make it clear that at least implicitly there is no need to protect X from the risk of abuse or neglect in his father’s care or that of his mother.  In this regard, it is concerning that the father does not accept that diagnosis of autism.  He is not in any way qualified to make any assessment of whether X is autistic or not and those who are qualified have made the diagnosis.

2. It is one thing to say that X is doing extremely well and it is, of course, very pleasing that he is doing as well as he is, but the fact is that the diagnoses have been made and the father needs to accept it.  An ongoing failure to do so is likely to lead to a failure on the father’s part to fully appreciate the need to address the problems associated with autism.

The additional considerations

Section 60CC(3)(a)

1. X has expressed from time to time a desire to spend more time with his father and appears to enjoy spending half school holidays and half the long summer holidays with him.  Notwithstanding his age and developmental difficulties associated with his autism, these views are clearly relevant. 

Section 60CC(3)(b)

1. X has a good relationship with both of his parents.  His mother has always been his primary carer and there is nothing to suggest that this is not the most important single relationship in his life.  Nonetheless, he clearly has a good and developed relationship with his father.  The evidence about X’s relationship with extended family members is more opaque.  The mother does not appear to be close to her family, even though they live in Victoria.  The father’s evidence is that X does have a relationship with the extended family and this evidence has not been challenged.

Section 60CC(3)(c)

1. The mother obviously has fully fulfilled her obligations to participate in making decisions about the major long-term issues in relation to X.  The father has readily conceded that he took a step back at the start because, it would seem, he felt scared that his clumsiness might make him a risk to the child.  Nothing now turns on this.  He has prosecuted his case to judgment, clearly precipitated in the first instance by a fear that the mother would relocate to Queensland, but it is clear he wishes to be properly involved in X’s future.

Section 60CC(3)(ca)

1. Little was said about this aspect of the case.  Plainly, the mother has discharged her obligations to maintain the child.  The materials filed suggest that child support has been an ongoing issue between the parents.  I accept that the father’s income is nowhere near his turnover and the exhibited material shows what appeared to me to be contemporaneous and sincere expressions of concern by the father as to his financial circumstances.  I do not find that he has failed inappropriately to maintain the child.

Section 60CC(3)(d)

1. There is no question that if the mother goes to Queensland, the father’s relationship with X will be impacted and in a negative way.  Instead of seeing him regularly, he will see him only occasionally, albeit for longer periods of time.  The capacity of the father to get to where the mother proposes to live will be impacted both by the tyranny of distance and expense, when Town B is not that easy a place to get to and weekend travel, for example, is likely to be extremely problematic.  The father’s future income is not totally negligible, but it may well be that if relocation to Queensland occurs, the father is hard put to go to Queensland to see him and indeed may find it difficult to fund the air travel from Queensland to Melbourne that the mother is proposing. 

2. The mother has provided no evidence as to any real employment prospects in Queensland and although she may well be better off in that she does not have to pay rent, there is nothing to suggest she will have such additional funds available to her to be able to contribute to airfares in any event.  It seems clear from the report of Ms A and the evidence as a whole that X’s relationship with his father is likely to be impacted negatively if the move to Queensland takes place, notwithstanding the mother’s proposals for additional holiday time.

Section 60CC(3)(e)

1. As already indicated immediately above there will, in my view, be a considerable practical difficulty and expense of X spending time with his father if the relocation occurs.

Section 60CC(3)(f)

1. There is no doubt that the mother is and has always been fully able to care for X’s needs.  The father is compromised to an extent by his failure to properly appreciate the nature of X’s difficulties, but there does not seem to be any suggestion, certainly that I am prepared to uphold, to his capacities to cope with X from day to day, notwithstanding that X presents with difficulties to both parents.

Section 60CC(3)(g)

1. Neither of these parents, in my view, demonstrate any personal or lifestyle qualities that call for negative comment. 

Section 60CC(3)(h)

1. This is irrelevant.

Section 60CC(3)(i)

1. Both these parents see X very much in a slightly self-oriented way.  The mother refers to the father dismissively as “the father of the child”.  The father’s material is replete with criticisms of the mother.  It is understandable that people think of children as being theirs.  It is a wholly human and natural emotion.  Where both of these parents, in my view, are open to measure of criticism is that neither of them thinks first and foremost about X, but rather about what they want for themselves.  Having made this criticism however, I should emphasise that both of these parents clearly adore X and in a general way want what is best for him. 

Section 60CC(3)(j)

1. As I have found, there has certainly been some violence, but given the way the parties have run their cases, it does not now require any significant comment.

Section 60CC(3)(k)

1. There was an Intervention Order, but it has now expired.  It is not now of any significance.

Section 60CC(3)(l)

1. Everyone agrees it is appropriate to make final orders and I will do so.

Section 60CC(3)(m)

1. This brings us at last to the crux of the case.  Should the mother be permitted to relocate or not?  The mother’s insistence that she was going to go and there was nothing the father could do about it speaks strongly of her underlying view of the family dynamic.  She plainly regards her own direct interests as being decisive and determinative of the matter.  This says regrettably a lot about her lack of insight as to the importance of the father in X’s life.

2. Ms A has emphasised the need for consistency of routine and the fact is that X has been in the routine of seeing his father regularly for a considerable period of time.  The disruption the mother proposes pays insufficient regard to the importance of the father’s presence on a regular basis in X’s life.  If the relocation occurs, in my view, there will be at the very least a significant change in the nature of the father’s relationship with X and it is by no means certain given the practical difficulties of expense and distance as to how these difficulties may be overcome.

3. Furthermore, I accept the submission of counsel for the Independent Children’s Lawyer as to the uncertainty and leap of faith involved in the move.  True it is that the mother may have been going to Queensland for holidays for a protracted period of time, but that is not the same as living there.  On any view of the matter, this will involve a change of school for X, who has friends and a measure of consistency in the one he is presently at.  Furthermore, he will not see his father nearly as much and may well not see his extended paternal family scarcely at all.  The mother has provided no evidence of her employment prospects at Town B, no evidence as to the support people, although there is a glancing reference to several friends, and no evidence as to the school to which it is proposed to send X should the move take place.

4. I accept that should the mother not be permitted to move, it is likely to be extremely disappointing to her and upsetting to her and this may well lead to counter-measures against the father, but the mother needs to understand in the end this is all about X’s best interests, not the interests individually of either of his parents.

5. Taking all these considerations together, in my view it is clear that the position contended for by the Independent Children’s Lawyer should be accepted.  It is not in X’s best interests to find his relationship with his father damaged in this way and the mother has simply not put forward sufficient evidence that the move to Queensland is in X’s best interests.  I accept the submissions of counsel for the mother that the mother does not need to prove in any positive way that it is X’s best interests to go to Queensland.  There is, as it were, no burden upon her to do so, as A & A: Relocation Approach [2000] FamCA 751 and U & U made clear.  In the end, however, it is all about X’s best interests and for the reasons I have given, I do not think that the relocation is indeed in those best interests.

6. I have drawn orders to give effect to these conclusions.

I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date:  10 January 2020