Herz and Picot
[2016] FCCA 3297
•20 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HERZ & PICOT | [2016] FCCA 3297 |
| Catchwords: FAMILY LAW – Parenting – Where arrangements for a child aged 9 to spend time with her father broke down after she disclosed that she had been sexually abused by young playmates over a period of years while spending time with him – where some time has now been re-established – where the mother wishes to relocate from (omitted) to Queensland with the child – where the father opposes the relocation – order made permitting the relocation – where the Independent Children’s Lawyer proposed that the relocation be deferred for twelve months – no perceived benefit in delaying the relocation if it is to occur. |
| Legislation: Family Law Act1975 (Cth) ss.60CC, 61DA |
| Cases cited: AMS & AIF [1999] 199 CLR 160 |
| Applicant: | MR HERZ |
| Respondent: | MS PICOT |
| File Number: | NCC 1885 of 2008 |
| Judgment of: | Judge Terry |
| Hearing dates: | 4, 5, 6 and 7 October 2016 |
| Date of Last Submission: | 7 October 2016 |
| Delivered at: | Newcastle |
| Delivered on: | 20 December 2016 |
REPRESENTATION
| The Applicant: | In Person |
| Counsel for the Respondent: | Mr Boyd |
| Solicitors for the Respondent: | Everingham Solomons Solicitors |
| Counsel for the Independent Children's Lawyer: | Mrs Kearney |
| Solicitors for the Independent Children's Lawyer: | Kaberry Family Law |
ORDERS
All previous Orders regarding X born (omitted) 2007 (“the child”) are discharged.
Subject to order (17) the mother shall have sole parental responsibility for the child.
The child shall live with the mother.
The mother shall as soon as reasonably practicable advise the father in writing (by text message or otherwise) of the date on which she proposes to relocate to Queensland being a date no earlier than 2 January 2017.
Until the mother relocates to Queensland the father shall spend time with the child:
(i)Each Wednesday from 3.00pm to 5.00pm commencing on 21 December 2016.
(ii)From 11.00am to 5.00pm on Christmas Day.
(iii)For 5 consecutive days unless otherwise agreed between the parties being from 10.00am to 4.00pm each day commencing at 10.00am on Wednesday 28 December 2016 and ending at 4.00pm on Sunday 1 January 2017.
(iv)Each alternate weekend from 10.00am on Saturday to 4.00pm on Saturday and from 10.00am on Sunday to 4.00pm on Sunday commencing on 7 January 2017 (if the mother is still in (omitted)).
(v)Each Wednesday from 3.00pm to 5.00pm commencing on Wednesday 4 January 2017 (if the mother is still in (omitted)).
(vi)At such additional or alternate times as may be agreed between the parties.
Changeovers for the purposes of Order 5 shall unless otherwise agreed between the parties occur at McDonalds (omitted).
Upon the mother’s relocation to Queensland the child shall spend time with the father as follows:
(a)For 5 days in the first week of Term 1 Queensland school holidays from 10.00am to 4.00pm on Monday, Tuesday, Wednesday, Thursday and Friday.
(b)For 5 days in the first week of Term 2 Queensland school holidays from 10.00am to 4.00pm on Monday, Tuesday, Wednesday, Thursday and Friday.
(c)For 7 days in the Term 3 Queensland school holidays as follows:
(i)In the first week of the school holidays from 10.00am to 4.00pm on Monday, Tuesday and Wednesday; then
(ii)From 10.00am on Thursday to 4.00pm on Sunday.
(d)For 1 week in the Term 4 (Christmas) Queensland school holidays commencing at midday on 27 December 2017 and concluding at midday on 3 January 2018.
(e)For not less than 5 hours on any non-school day during any time that the father is in or near the place where the child lives provided that the father has given the mother at least 14 days’ notice via text message of his intention to spend that time.
(f)At such additional or alternate times as may be agreed between the parties.
From 2018 and each year thereafter the child shall spend time with the father:
(a)For 1 week in each of the Term 1 and 3 Queensland school holidays commencing at midday on the first Saturday to midday on the second Saturday of the holidays in odd-numbered years and commencing at midday on the second Saturday to midday on the last Saturday in even-numbered years.
(b)For the entire Term 2 Queensland school holiday period commencing at midday on the first Saturday and concluding at midday on the last Saturday.
(c)For 3 weeks during each Term 4 (Christmas) Queensland school holidays:
(i)For the first half in odd-numbered years from midday on the first Saturday to midday on the third Saturday;
(ii)For the second half in even-numbered years from midday on the third Saturday to midday on the last Saturday.
(d)For not less than 5 hours on any non-school day during any time that the father is in or near the place where the child lives provided that the father has given the mother at least 14 days’ notice via text message of his intention to spend that time.
(e)At such additional or alternate times as may be agreed between the parties.
Until the mother agrees in writing to changeovers between the parties occurring at a halfway point between (omitted) and (omitted) changeovers for the purposes of Order 7(a) to 7(d) and 8(a) to (c) shall occur at McDonalds Restaurant (omitted).
Changeovers for the purposes of Order 7(e) and 8(d) shall take place at the McDonalds Restaurant at (omitted) Queensland.
Unless otherwise agreed by the mother in writing the father is restrained and an injunction is granted restraining him from spending time with or taking the child within a 15 kilometre radius of (omitted) Post Office.
The father is restrained and an injunction is granted restraining him from permitting the child to come into contact with or remain in the presence of Mr M or any of the perpetrators identified by the child.
The child shall have telephone (Skype of Facetime if available) communication with the father as agreed between the parties but failing agreement:
(a)Each Monday and Friday evening between 6.30pm and 7.00pm Queensland time.
(b)On the child’s birthday between 6.30pm and 7.00pm Queensland time.
(c)On Father’s Day between 6.30pm and 7.00pm Queensland time.
(d)At other times as reasonably requested by the child.
The child shall have telephone communication with the mother at any time reasonably requested by the child when the child is in the father’s care and otherwise as agreed between the parties but failing agreement between 6.30pm and 7.00pm each Monday and Friday NSW time.
Telephone communication shall occur by the person seeking to communicate with the child initiating the call and the other parent ensuring that their mobile telephone is switched on, charged and in a mobile service area and making the child available to receive the call and each parent shall give the child privacy during the call.
The father shall not consume illicit drugs or more than three (3) standard alcoholic drinks in accordance with the Australian Alcohol Guidelines during any time that the child spends with him.
The mother is restrained and an injunction is granted restraining her from taking any steps to change the child’s name.
The mother shall promptly notify the father in the event of any of the following occurring:
(a)Any change of school for the child including contact details.
(b)Any medical emergency or hospitalisation of the child.
(c)Any change of counsellor/psychologist/medical practitioner regularly consulted by the child including contact details and shall invite the father to participate in such appointments.
Each party shall maintain an address and telephone number notified to the other and shall notify the other in writing within 24 hours of any change, updating the other on details of such change.
Each party is restrained from denigrating the other or permitting any other person to do so in the presence or hearing of the child or on social media including Facebook.
IT IS NOTED that publication of this judgment under the pseudonym Herz & Picot is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 1885 of 2008
| MR HERZ |
Applicant
And
| MS PICOT |
Respondent
REASONS FOR JUDGMENT
Introduction
On 31 March 2011 after a five day final hearing in the Family Court of Australia orders were made for X then aged 3 to live with her mother in (omitted) and spend time with her father for three days including one overnight each week.[1]
[1] Herz & Anor & Picot [2011] FamCA 210.
From the age of 5 X was to spend time with the father each Tuesday overnight to Wednesday and each alternate weekend from Thursday to Sunday and week about shared care was to commence in May 2015 when she turned 8.
The orders also provided for X to spend time with the father during school holiday and on special days.
The father was then living and continues to live in (omitted), a small town about 15 to 20 minutes from (omitted).
The Family Court hearing did not only involve parenting arrangements for X, it also involved parenting arrangements for the mother’s older children A and B who are the children of Mr R and this was because the central issue in dispute was whether the mother should be able to move from (omitted) to the (omitted) with the children. Both fathers opposed the relocation and the orders made on 31 March 2011 prevented the mother relocating.
Between 31 March 2011 and 17 July 2014 X spent time with the father without any major incident. There were some minor incidents because the orders did not define when the holidays began and ended but year in and year out and week in and week out X spent time with the father as provided for in the orders.
This came to an abrupt halt on 17 July 2014 when X disclosed to her teacher that she had been a victim of prolonged sexual abuse by one young boy in particular and possibly by another boy or boys while spending time with the father in (omitted). She said that some of the abuse occurred in an old car parked at the father's home which the children habitually played in.
The parents were informed and the school principal and the mother made a notification to the Department of Family & Community Services.
The Department decided not to conduct a JIRT investigation because the alleged offenders were less than 10 years of age but they urged the mother to seek professional assistance for X.
Counselling was arranged with Ms S but the father was not happy with Ms S and on 28 August 2014 X began seeing Ms V, a psychologist at the (omitted) Health Centre.
Following the disclosures the mother declined to make X available to spend time with the father in accordance with the orders and unfortunately despite exchanges of correspondence between solicitors the parties were unable to agree on any alternative arrangements.
Part of the problem was that the mother was emphatic that X should not spend time at the father's home in (omitted). X’s psychologist was of the same view but the father was very slow to accept that this was necessary and he also put forward proposals for time which the mother and X’s psychologist both considered too extensive.[2]
[2] Annexure C to Ms V’s affidavit
The problem was exacerbated by the fact that the father became very defensive after the disclosures were made. He did not respond to a letter from Ms V inviting him to be involved in therapy and when he did finally go to see her over a year later he was hostile and aggressive and complained that she was keeping his daughter from him.
On 27 July 2015 the father filed an application in the Federal Circuit Court seeking orders reinstating his time with X. He proposed that after three months of gradually increasing time X resume spending time with him in accordance with the 31 March 2011 orders and that there be no restriction on him taking X to (omitted).
The mother filed a response setting out her proposal about X spending time with the father and also seeking to relocate to the (omitted). She proposed that following her relocation the father spend time with X during the school holidays each year.
As was the case in 2010 the father opposed the relocation.
On 7 August 2015 orders were made for X to have telephone communication with the father and spend time with him for one hour each Wednesday at McDonalds in (omitted). The father wanted time during the day on Saturday as well and a rapid progression to overnight time with no restriction on the child being taken to (omitted) but no agreement could be reached about further time and an order was made for the appointment of an Independent Children’s Lawyer and the matter was adjourned.
On 19 November 2015 a family report was ordered and it was released to the parties on 22 February 2016. It did not lead to agreement about any of the issues in dispute and the matter was listed for trial. However the interim orders were varied effective 3 March 2016 to provide for X to spend one hour per week with the father on Wednesday afternoons in (omitted) and three out of four Sundays with him from 9.00am to 5.00pm subject to a restraint on him taking her to (omitted).
The father has spent time with X in accordance with these orders since they were made. He usually takes her to (omitted) on Sundays and they go to the park or the movies or go shopping.
The proposals at trial
The dispute at trial was over the time the father should spend with X and whether the mother should be able to relocate.
The father was self-represented and his position when the trial opened was that he wanted equal time, the same outcome he sought in 2009 when the first round of proceedings began.
The father also said however that he now accepted that X should not be required to come to (omitted) until she was ready and he did not explain how his proposal for equal time would fit with this.
The father’s fall-back position was to be able to spend regular time including overnight time with X. Again he did not grapple with how this was to occur if X could not go to (omitted).
The father vehemently opposed X being relocated to Queensland.
The father was asked during the trial whether he had considered moving to Queensland himself. He said that this was not something he would consider doing and it became clear as the trial progressed that the father was firmly embedded in (omitted) and that there was no likelihood of him even moving to the nearby town of (omitted) if that would make it easier for X to spend time with him let alone moving to Queensland.
The father has lived in (omitted) all his life. The paternal grandfather lives two doors from him and his sister Ms C (Ms C) and his niece Ms T live in houses which are within walking distance. The father is employed in the paternal grandfather’s business which is now run by Ms C.
The father was asked whether he would visit the (omitted) either occasionally or at all if X lived there and he was very non-committal.
When Ms C was asked about the father's current employment she was adamant that he had to be available to feed the horses in (omitted) in the morning and evening although she said that he could take time off during the school holidays.
The mother’s primary application was for orders which would allow her to relocate to (omitted) in Queensland near to where her sister Ms D lives. This was also her application in 2010.
The mother has well thought out plans for the move. She has identified a school X could attend which has appropriate supports for students with special needs, has identified extra-curricular activities which are available in the area and has made enquiries about the paediatric services which are available.
The mother plans to sell her house in (omitted) and purchase a home in her new location and she has plans to enrol in an (omitted) course at TAFE and obtain work.
B, now 17, has left school and will accompany the mother if she moves to Queensland. A, 19, is doing a (omitted) apprenticeship and has a partner and will remain in (omitted). He has a close relationship with the mother and sat in court in support of her for most of hearing. On one occasion when the people sitting in court were asked to go outside because a sensitive issue arose in the evidence, he was observed to give his mother a hug before leaving the courtroom.
The maternal grandmother lives with the mother in (omitted). She has dementia and the mother is her carer and if the mother is permitted to relocate the maternal grandmother will go with her.
The mother said that she proposed relocating prior to the commencement of the 2017 school year and proposed that upon her relocation X spend time with the father during the school holidays for the day only for five consecutive days until she was comfortable with overnight time. She said that she would bring X to (omitted) so that she could spend this time with the father.
She also said that she was willing for the father to spend additional time with X if he travelled to Queensland.
The mother proposed an indefinite restraint on the father taking X to (omitted).
During the previous hearing the mother initially took the position that she would move to Queensland regardless of whether she was able to take her children with her. There was no sign of the mother taking such a position during the current hearing. She quietly and calmly made it clear that she wanted to move to Queensland and would be distressed if she was unable to do so but she laid down no ultimatums and took no strategic positions.
The mother proposed a set of alternative orders for X’s time with the father should her proposal to relocate be rejected. At the commencement of the hearing her proposal was that from 2017 the father spend time with X each fourth weekend from Friday to Sunday and each Wednesday from 4pm to 5pm and that the weekend time increase in frequency to once every 3rd weekend in Term 2 and once every alternate weekend in Term 3. She proposed that X spend day time only with the father for five consecutive days in Term 1 & 2 school holidays and that overnight time during school holidays then be introduced on a slowly increasing basis.
During final submissions the mother’s counsel said that after hearing Ms V’s evidence the mother withdrew her proposal that overnight time commence in the foreseeable future.
The evidence
The father did not comply with the trial directions and did not file a trial affidavit. He was present when the hearing was called on and indicated that he wished to take part and he was permitted to do so. He relied on his affidavits filed on 11 June 2015 and 14 December 2015 and he gave some updating oral evidence.
The father was urged to consider calling his sister who gave evidence in the earlier hearing and he made arrangements for her to come to (omitted) the following day. Ms T’s evidence was contained in her affidavit filed on 9 December 2015 and she gave some updating oral evidence.
The mother complied with the trial directions and relied on her affidavit filed on 26 September 2016 and the affidavit of X’s psychologist Ms V filed on 25 August 2016.
A family report was prepared by Ms A, a Regulation 7 family consultant.
All of the witnesses were cross-examined.
An assessment of the witnesses
Counsel for the Independent Children’s Lawyer submitted that the father was an honest witness and subject to some concerns about his evidence in respect of his alcohol consumption and payment of child support I do not cavil with that, but that belies the real problem with his evidence and his approach to the whole matter.
The father’s initial thought when he heard about X’s disclosures was that the mother was behind them and although he has grudgingly come to accept that something happened to X while in his care he continues to this day to act as if he is a victim of events which have conspired to take his daughter away from him. He has never demonstrated any capacity to see things from X’s perspective.
The father complained during cross-examination that no one listened to him but it never seems to have occurred to him that his own behaviour (his rudeness and aggression to X’s therapist Ms V, his dogged refusal to respond to communication of any kind from the mother and his refusal to ever visit X’s school) might be the reason for this. His evidence was replete with things he couldn’t or wouldn’t do: he wouldn’t learn to text; he wouldn’t go to X’s school; he couldn’t do Skype; he had no-one he could stay within (omitted); and so on. He never came up with solutions.
Toward the end of the hearing a number of documents were tendered including a letter from Ms S, the counsellor X saw briefly after the disclosures were first made and notes made by Ms V her psychologist. Both Ms S and Ms V referred to the father seeing himself as a victim and I gained a strong impression when the father gave evidence that this was how he saw himself. The note I made in the margin of my bench book part way through his evidence was “truculent and defensive.”
Ms T gave frank evidence which was critical of her brother as well as supportive of him but she had clearly never thought about the matter from X’s perspective either. I had the impression at the end of her evidence that the whole Herz clan were somewhat perplexed about the disclosures and had withdrawn from X’s life following the disclosure and were not willing to make any compromises to ensure that X was able to spend time with them or the father.
The mother was a straightforward and honest witness. She was calm and responsive during cross-examination and impressed as wanting the best for X.
Ms V is a senior psychologist attached to the (omitted) Health Centre. She has extensive experience in a range of areas and is an accredited forensic interviewer of children. She has been X’s treating psychologist since August 2014 and she was a very impressive witness who had clearly gone to considerable lengths to ensure that she acted in X’s best interests.
X’s disclosures
There was no sign nor was it suggested at trial that the disclosures were anything other than genuine and the result of X’s lived experience.
X disclosed to her teacher at (omitted) School on 17 July 2014 and subsequently on the same day to the school principal that a boy who is referred to in the material as M or M (M) who is two years older than X had been pressuring her to engage in sexual play including exposing his genitals and asking X to touch them and had been inappropriately touching X's genitals. She later disclosed that this had sometimes taken place in an old car at the father's home in which X, the young boys next door and M played and that the other young boys were also involved in the inappropriate behaviour.
X disclosed an incident where the children used mobile phones to photograph genitals.
On 29 July 2014 X was referred to Ms V for therapy. Ms V was given a copy of the 2011 court orders and because they provided for the parents to have equal shared parental responsibility she endeavoured from the outset to involve both parents in X’s therapy.
The mother cooperated with the therapeutic process from the start but unfortunately the father failed to respond to Ms V's letter inviting him to come and talk to her until nearly twelve months later.
There is absolutely no doubt that X was subjected to sexual activity by M in particular which she found unwelcome and troubling. In one session with Ms V she described how M would pressure her into participating by saying that he would not be her friend if she did not play the games he wanted and on other occasions would cry if she was not willing to participate and say that people thought he was ugly, placing emotional pressure on her.
X told Ms V that the father had seen her playing in the car with the boys but it was not suggested then or during the trial that the father knew what was going on and did nothing.
It remains unclear how long the abuse went on but Ms V formed the view that it was from the age of 5 until X disclosed in July 2014 when she was just over 7 years old.[3]
[3] Annexure A to Ms V’s affidavit filed on 25 August 2016.
X described to Ms V a particular incident in her own life (conquering a fear of going on a high slide during holidays after her mother who told her that if she could conquer that she could conquer anything) which led to her disclosing what was happening to her teacher.
During cross-examination Ms V said that X was doing very well now and that she had been greatly aided by the fact that her disclosures had been validated from the start but that on occasions certain things triggered an adverse reaction.
Ms V said as follows in her affidavit:
Over almost 2 years of my involvement with X I have observed a pattern of her progressing, and building inner strengths, and then regressing after a “trigger” experience. A clear example is the description of what occurred to her when she was performing at an eisteddfod and observed one of the perpetrators (whom she calls in our sessions “the boy” or “him”) in the audience and had to abandon her performance.
The description given by the teacher of X that evening makes disturbing reading: she appeared to “freeze” in extreme distress and took a long time to settle.
I understand that X has had similar adverse reactions to seeing “the boy” or one of the other alleged perpetrators at the town pool, shops and other public places, especially during school holidays. In her disclosure to her teacher, X described “the boy” as living opposite her father’s home.
I am aware that Dr A, child psychiatrist, prescribed Luvox as a trial drug for X after a consultation in September 2015. I am aware that Luvox is a selective serotonin reuptake inhibitor used in the treatment of obsessive compulsive disorder, and other anxiety disorders. There is no doubt that X suffers quite debilitating anxiety at times, and I am told that Dr A has referred to X having PTSD type anxieties and flashbacks.
X has frequently expressed to me fears of going to (omitted), and of encountering “the boy” or one of the other boys anywhere. I am aware that the vast majority of (omitted) children attend high school in (omitted), and (omitted) is the main shopping and business location for people in (omitted).[4]
[4] Paragraphs 13-17 of Ms V’s affidavit filed on 25 August 2016.
Another incident occurred subsequent to Ms V affirming her affidavit. On 21 August 2016 X informed the mother upon returning home from spending time with the father that when they were in the park in (omitted) “the boy” approached her. She said that the father did not see it because he was talking to friends some distance away. She said that to extricate herself she went up to the father and reminded him that they were intending to go to the shops and she and the father left the park.
The morning after this incident X refused to go to school. The mother rang Ms V who suggested some strategies and the mother took X to school and remained with her in the class-room until recess.
The father initially denied that any such thing had occurred but after he was recalled to the witness box he admitted that when X was playing in the park he usually read the paper or talked to people he knew and that it was quite possible that something had happened and which he did not notice.
Ms V said that X did not want to visit (omitted) at present and that she might not be willing to do so until she was in her teens.
I place weight on Ms V’s evidence in relation to this and other matters about which she gave evidence. It was clear from her affidavit, her letters to the parties and her evidence during cross-examination that she had striven throughout to be impartial and to keep X’s interests at the forefront of her mind and not take the side of a parent.
The applicable law
The parties are in dispute about X’s time with her father but this is also a relocation case and while pursuant to s.63C of the Family Law Act I must treat X's best interests as the paramount consideration when determining the appropriate orders the High Court made clear in AMS & AIF[5] that "paramount consideration" does not mean "sole consideration" and that in a relocation case the court must also have regard to the fact that people in Australia have a right of freedom of movement and that a parent was not obliged to demonstrate a compelling reason in order to be able to relocate.
[5] AMS & AIF [1999] 199 CLR 160
In AMS & AIF Kirby J said as follows:
One of the objects of modern family law statutes is to enable the parties to a broken relationship to start a new life for themselves, to control their own future destinies free from unnecessary interference from a former spouse or partner or from the court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner, which may be transmitted to the child or otherwise impose on the happiness of the custodial or resident parent in a way likely to affect the welfare or best interests of the child. That said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes or interests of the parents.
The court is entitled to have regard to the fact that both parents have a choice about where they live. The father does not want to move and that is his right, but it does not follow that because he does not want to move the mother must stay. In U & U the Full Court said as follows:
The right to know and be cared for by both parents and the right of contact on a regular basis with both parents are said to be principles underlying the objects of Part VII of the Family Law Act. If effect is to be given to those principles it must not be assumed that one parent (the father) cannot move and that the mother must in every case subordinate her ambitions and wishes not to the needs of the child but to the wishes of the father to pursue the life in the place of his choosing. It is the interests of the child which are paramount, not the interests or needs of the parents, let alone the interests of one of them.
X's best interests
To determine X's best interests I must have regard to the matters in s.60CC of the Family Law Act.
S.60CC(2) contains the primary considerations and they are the benefit to the child of having a meaningful relationship with both of her parents and the need to protect the child from physical or psychological harm from being exposed to or subjected to abuse, neglect or family violence.
A meaningful relationship has been described as one which is significant important and valuable to the child[7] and X has a meaningful relationship with her father at present; she values him and he is important to her.
[7] Mazorski & Albright [2007] 37FamLR 518
If X moves to Queensland with the mother she will see the father far less frequently than she does at present, perhaps only of four times a year unless the father goes to Queensland to see her during term time. She will also be able to have Skype communication with him if he obtained a lap top or smart phone which he is capable of doing if he chooses. This would require effort by the father but during cross-examination he laconically conceded that if he had to he would make the effort. However the extent of her interaction with her father would inevitably be less than it would be if she remained in (omitted).
If X’s interaction with the father becomes less frequent he may decline in in importance her life but unless there is some other intervening factor such as a poor and undermining attitude by the mother it does not follow that her relationship with him will become completely unimportant or cease to be meaningful.
The family report writer expressed concern about the mother’s willingness to facilitate a relationship between X and the father. I do not accept that this is a valid concern.
It would be too much to say that the mother particularly likes the father but she complied with court orders about X spending time with him for over three years after the 2011 orders were made. It was only after X made the disclosures that the mother stopped complying with the orders and even then she was willing to agree to some time, just not the time the father proposed.
There was no evidence that the mother denigrated the father to X or to anyone else and the fact that X reacted warmly to the father at the family report interviews after the significant break in time with him strongly suggests that the mother is not doing anything designed to undermine the relationship.
Ms V has had involvement with the mother since she became X’s psychologist and she said as follows in her affidavit:
In my involvements with X and her mother, I have observed no signs of X being “aligned” with her mother. X speaks positively of her father, reports happy visits with him, and mentions with a tone of sadness if he has failed to make a phone call.[8]
[8] Paragraph 18 of Ms V’s affidavit filed on 25 August 2016.
There is no foundation for a finding that the mother does not support X having a relationship with her father and I certainly cannot assume that the mother’s application to relocate suggests that. The mother’s sister lives on the (omitted) and the mother has in the father’s words wished to relocate there “from Day 1”, long before any issue arose about X being abused. It simply cannot be suggested that the mother is seeking to relocate because she is otherwise faced with the prospect of X spending increasing amounts with the father.
X is not at risk of abuse, neglect or exposure to family violence in the mother's care.
The father has never abused or neglected X. It was not suggested during the trial that the father was responsible for the abuse X suffered in (omitted).
An issue was raised about the father's alcohol consumption but this is best considered when considering the father's parenting capacity.
It was not suggested that X was likely to be exposed to family violence in the father’s care.
The first of the additional considerations in s. 60CC (3) is the views of the child and the weight to be given to her views.
At the time of the family report interviews in December 2015, X was spending only one hour per week in (omitted) with her father and the family report writer said as follows about her views:
When asked about the father X’s face brightened. “I see him every Wednesday I miss Dad a lot I wish I could see him a lot more I would rather see him in (omitted) – I do not want to go to Dad’s just yet but I would like to see him whenever I can I would like to do things with him like go to (omitted).”[9]
[9] Paragraph 82 of the Family Report.
Ms V has seen X more recently than Ms A and she said and I accept that X remained adamant that she did not wish to go to (omitted) at present and I need to give considerable weight to this evidence.
The family report writer did not raise the topic of relocation to Queensland with X and the only person who gave evidence about her views in this regard was Ms V.
Ms V said and I accept that X told her that she liked the idea of moving to Queensland and spoke about things she could do there. When Ms V asked X about seeing her father X said that he could live in the house next door.
I can draw from this that X does not dislike the idea of living in Queensland as such but these views do not determine the matter and it also seems likely that X does not fully understand how her time with her father would be impacted on if she moved to Queensland.
I must have regard to the nature of the relationship of the child with each of her parents and any other person including any grandparent of the child.
X's primary attachment is to her mother. She has always lived primarily with her and she has received unconditional support from her since the disclosures in July 2014.
X has a good relationship with her father and she enjoys spending time with him. However her relationship with him is not as close and trusting as her relationship with her mother. She has never been willing to discuss the abuse allegations with the father and she did not tell him when she had a challenging experience in the park at (omitted).
In the past X had a good relationship with members of the paternal family including Ms C. She has had no contact with them since the disclosures but I do not accept that this is because the mother does not want X to have a relationship with them.
No member of the paternal family has made any effort to contact the mother or X since the disclosures. The only explanation Ms C gave for this was "history" but there was nothing to suggest the mother and Ms C historically had a poor relationship, indeed in the witness box Ms C said that she liked the mother.
Tellingly when the father was asked in cross-examination whether Ms C or any member of his family was currently seeing X when she spent time with him he said that the time on Wednesday was too short and that his sister worked on Sundays.
Ms C would not entertain the idea when asked about it during cross-examination of a Herz family Christmas celebration or any part of it occurring somewhere other than at her home in (omitted) so that X could take part in it.
The impression I gained from the evidence as a whole was that since the disclosures the wider Herz family had withdrawn from X’s life.
I have sympathy for them because the disclosures would have been confronting and their natural instinct would have been to support the father who reacted to the disclosures as if he was the victim in the situation. The reality however is not that the mother has failed to encourage a relationship between X and the paternal family but that the paternal family has drawn back following the disclosures.
I must have regard to the extent to which each parent has taken or failed to take the opportunity to spend time with or communicate with the child or to make decisions about the child.
It is regrettable that the father ignored Ms V's request for him to become involved in X's therapy. He missed an opportunity to be part of future decisions about her and his refusal to become involved was partially responsible for him not seeing X for twelve months.
I must have regard to the extent to which each parent has fulfilled, or failed to fulfil, the parents’ obligations to support maintain the child.
Until very recently the father was either paying minimal (i.e. $48.00 per month or $34.00 per month) or nil child support for X.
Since the current round of litigation began the father has paid X's school fees on two occasions and he buys things for her when she is with him. In September 2016 the mother was advised that the father’s child support assessment had increased to $233.00 per month for the period to 31 December 2017 but she remains suspicious and understandably so about whether she will receive a higher amount of child support in the long term.
There was something of a flavour in the father’s evidence of it being his view that he should not be paying money to the mother rather he should be paying directly for things which benefitted X. One of his defensive responses when challenged about the level of child support he had been paying was:
If X was with me week about I’d be supporting her.
Such comments demonstrate a misunderstanding of the nature of child support and sometimes they demonstrate a wilful misunderstanding of it. However although I have some misgivings about the father's attitude to the payment of child support the evidence is too slight for me to make an adverse finding against him and he has recently been assessed to pay child support at a higher level than in the past.
I must have regard to the likely effect of any change in the child’s circumstances including the likely effect of her separation from either of her parents or any other child or person including any grandparent or other relative of the child with whom he or she has been living.
Relocation to (omitted) which is about 8 hours’ drive from (omitted) would mean a significant change for X. She would realistically only be able to see the father during school holidays. He could also have Skype communication with her if he obtained a computer and learned to use Skype which he is quite capable of doing but on any view his time with her would be greatly curtailed.
Relocation would put an end to any prospect of equal time as envisaged in the 2011 orders or to X’s time with the father increasing to at least five nights a fortnight. She would not spend any school nights with him and he would not be able to attend her school events or extracurricular activities.
The first thing to observe is that there is now no prospect of equal time occurring in the future and even if X remains in (omitted) overnight time will be difficult to arrange on a regular basis in the future. The father is embedded in (omitted) and will not even contemplate moving to (omitted). X is adamant that she does not wish to go to (omitted) and Ms V’s view was that she may be in her teens before she would be ready to do so.
Ms V said as follows:
It is my opinion that X’s emotional improvement will be damaged by any requirement for her to visit (omitted) until she is well into her teenage years and is much more robust and assured than she is now. I also see real problems in X having block periods with her father until she is much more settled emotionally. Daytime visits when she is assured of a return to her mother would seem to be all that she can manage for the time being.
I have read the Family Report of Ms A dated 18 February 2016. I have real concerns about the proposal that X might have overnight time with the father from early 2017. Firstly, I believe (omitted) should be ruled out as a potential location.
Secondly, I am concerned about the capacity of Mr Herz to fully understand the nature of X’s distress and his ability to cope with any panic attacks where X’s mother is not immediately available. His intention to have X return to (omitted) shows a serious lack of insight into his daughter’s condition and needs.[10]
[10] Paragraphs 19-21 of Ms V's Affidavit filed on 25 August 2016.
There is considerable force in Ms V’s concerns about the father’s capacity to understand the nature of X’s distress and cope if her mother is not immediately available.
During cross-examination Counsel for the Independent Children’s Lawyer pressed Ms V to agree that perhaps X could return to (omitted) by the time she was 11 but although Ms V did not rule this out because any evidence on this topic is an opinion and she was not a rigidly dogmatic witness she did not change her view that X was unlikely to be able to return to (omitted) until she was in her teenage years.
The only overnight time which is likely to occur in the immediate future is during the school holidays away from the (omitted)/(omitted) area or if the father takes X camping on a weekend but weekend camping would not be feasible frequently.
The second thing to observe is that although relocation would mean that the father could not attend school events he has not historically done so and there was nothing to suggest that he was likely to do so in the future if X remained in (omitted). He maintained that this was the mother's fault because she did not like him attending but I do not accept this.
The family report writer said as follows when discussing the issue of the father being involved with aspects of X’s life including her schooling and medical treatment:
The father would clearly like to become more involved with X’s issues but needs to be included and needs to be encouraged to do so.[11]
[11] Family Report paragraph 71
The father is a 45 year old man. Ms V tried to include him in X’s therapy and he ignored her. He ignores communication with the mother when he feels like it. Who is supposed to encourage him to become involved? The mother cannot be expected to do so; she is X’s mother not his mother, and if he either cannot or will not make the effort then he will permanently remain on the outer in X’s life.
If X moved to Queensland she would lose her current relationships with her psychologist and paediatrician.
There was no suggestion that her paediatrician was irreplaceable but X has a very close and trusting relationship with Ms V. However Ms V seemed to consider that with the right support and encouragement X could cope with transitioning to another psychologist and Ms V said that she would be able to assist her to adjust to the idea.
It was evident from Ms V’s answers in cross-examination that she saw her brief as being to teach X resilience. She gave evidence about teaching her self-calming and coping strategies, strategies X used to good effect on 21 August 2016. It has never been Ms V’s brief to make X dependent on her.
The mother’s proposal during final submissions was that for the foreseeable future she would bring X to (omitted) during the school holidays for the purpose of her spending time with the father and X would have the opportunity to see Ms V then if required.
X is close to her mother and her mother is well placed to help X adjust to the move to Queensland and can be relied on to seek appropriate assistance for her as needed.
X would have to change schools if she moved to Queensland but there are good schools available in Queensland and Ms V’s opinion was that there would be considerable benefit to X in leaving (omitted) and leaving behind the risk of running across any of the children involved in the abuse in (omitted).
The mother said and I accept that the problems for X might resurface once the children involved in the abuse reached high school age as there was no high school in (omitted) and children from (omitted) usually attended high school in (omitted).
Ms V was an impressive witness who knows X well and I place weight on her opinion about the benefit to X of leaving (omitted). Ms V was not dogmatic about the situation and recognised that the court would have to weigh up these benefits with any detriment which might result from X spending less time with her father.
I do not accept that if X moved to Queensland and only saw her father during school holidays and during Skype time that her relationship with him might wither away completely. She saw very little if anything of the father between the disclosures in July 2014 and the court orders in August 2015 yet when the family report interviews were conducted in December 2015 she was excited to see him and very warm with him. A diminution in the frequency of X’s time with the father will not lead to their relationship ending.
Finally I must also consider the impact on X of the mother’s disappointment in not being able to relocate. The mother has wanted to relocate for a long time and she said as follows in her affidavit:
I feel very depressed at times and upset that I have been unable to have the choice to move away and ultimately I am forced to live in a place I do not want to live in.[12]
[12] Paragraph 82 of the mother’s affidavit.
The mother’s GP Dr J provided a letter dated 26 September 2016 which said as follows:
I have known Ms Picot as a patient since 11/1/1997. She is a resilient person who has survived repeated family traumas. She has been diagnosed in the past with an anxiety disorder related to these issues.
I believe that continuing to live in (omitted) where her son B suffered a major head injury with lifelong consequences, and her daughter X repeated sexual assault, is detrimental to both her self-esteem and mental health and continues to be anxiety provoking.[13]
[13] Annexure “H” to the mother’s affidavit.
Dr J rightly identified the mother as a resilient person and if she is not permitted to relocate or her relocation is delayed as proposed by the Independent Children’s Lawyer, then I am sure that for X’s sake she will make the best of it just as she did after the 2011 decision. It does not follow however that I should have regard to her preference for living in Queensland and the benefit to X of having a happy mother.
I must consider the practical difficulty and expense of the child spending time with a parent and whether that will affect the child's right to spend regular time with a parent.
If the mother remains in (omitted) there will be no difficulty with changeovers. It takes about 8 hours to drive from (omitted) to the (omitted). Flight options to (omitted) were not discussed during the hearing.
The mother’s counsel informed the court that the mother was willing to bring X back to (omitted) for as long as was necessary to spend time with the father if she moved to Queensland with a view to being close at hand if any issues arose for X who is currently expressing some reluctance about being away from her mother overnight.
A intends to remain in (omitted) where he is doing an apprenticeship and has a partner and I consider that I can have reasonable confidence that the mother will do as she says.
The mother said that another option would be for the father to meet her on the coast somewhere north of (omitted) either to do changeovers or to spend time with X in that area if he wished and that in the longer term she hoped to reach an agreement with him to meet halfway for changeovers.
The father has no difficulty driving long distances and has the capacity to do some of the driving if he wishes to do so. He and his family sometimes holiday in the (omitted) area which is not so far away but involves about four hours driving.
The mother is not working and the father does not earn a high income but neither suggested that money might be an impediment to regular time occurring during the holidays if X lived on the (omitted) with the mother.
I must consider the capacity of each parent to provide for the needs of the child including her intellectual and emotional needs.
The mother has always been X's primary carer and she has a very good capacity to provide for X's needs. She feeds and clothes her, she enrolled her at (omitted) School in (omitted) which has been a very supportive school for X and she has responded in an exemplary fashion to the problems flowing from X's disclosures.
There was no suggestion during the hearing that the father negligently allowed X to be abused but it is easy to imagine how dreadful the mother must have felt when X made her disclosures given that she had previously had to deal with her son B suffering a brain injury as a result of falling from a Ferris wheel while in the care of his father Mr R. It is to the mother’s enormous credit that she reacted calmly and did not lash out and blame the father.
The mother was criticized in the 2010 judgment and rightly so for unilaterally relocating to Queensland with her three children and for throwing down the gauntlet to the court and suggesting that she would relocate to Queensland even if the court would not allow her to take her children but I am satisfied that overall both prior to and after the 2010 proceedings she has been a good parent and has been the rock in the lives of all three of her children.
The father does not stack up as well as the mother as a parent to X.
On the positive side the father has always sought to spend time with X and has made good use of the time. Prior to the disclosures he took her on holidays to (omitted), (omitted) and various places such as the (omitted) and the (omitted) near (omitted) which she enjoyed. When X spent time with her father in (omitted) she enjoyed accompanying him when he did jobs around and close to the home and she benefitted from being able to get to know his family.
The father went to considerable effort to make his short visits with X meaningful after time resumed in August 2015. He bought her a laptop and prepaid internet access because she asked for it and he said as follows in 14 December 2015 his affidavit:
I have been saving dead insects including a butterfly, moth and beetle in a tin to take to my visit with her on 9 December 2015 as she has always taken an interest in bugs, beetles, frogs and the like. I told her I would get some to show her and we’d look them up on the internet together.[14]
[14] Father’s affidavit paragraph 100
The father brings an extra dimension to X’s life and he is a valuable part of her life.
X loves her father and enjoys spending time with him but she does not see him as a source of support or as someone she can open up to. She did not tell him about the incident in the park on 21 August 2016; she waited until she got home and told her mother about it.
There are limitations to the father’s willingness to involve himself in X’s life. The father has never sought to involve himself in X's school life and he became hostile and defensive when the disclosures emerged. He was aggressive when talking to X's first counsellor Ms S and he ignored the letter Ms V sent him and was rude and aggressive when he finally saw her on 28 August 2015. As a result he has had no meaningful input into X’s therapy.
The father does not have the capacity to see things from X’s perspective. When he filed his application in July 2015 his proposal was that X should simply resume spending time with him in (omitted) after a short introductory period and he was not willing to reconsider this after seeing Ms V on 28 August 2015. When he attended the family report interviews in December 2015, he told the report writer that he wanted X to resume spending time with him in (omitted) despite hearing Ms V’s views about it and displayed no insight into difficulties this might cause for X.
It was not until the hearing commenced in October 2016 that the father finally said that he would give X some space before insisting that she come to (omitted).
The father has a limited capacity to provide for X’s emotional needs.
One of the proposed orders in the minute of order handed up by Counsel for the Independent Children’s Lawyer on 7 October 2016 was that the father be required to make an appointment with Ms V for the purpose of becoming educated about the nature of the child’s psychological and emotional distress and the management of any panic attacks she may suffer whilst in his care and remain compliant with any direction Ms V made in this regard.
The disclosures were made in July 2014, the father commenced proceedings in July 2015 and the family report was released in February 2016. The fact that it was perceived as necessary by the lawyer independently representing X in October 2016 to ask for such an order speaks volumes for the father’s willingness and ability (or lack thereof) to engage with the child’s issues and with her treating specialists.
It is unclear to me what the Independent Children’s Lawyer considered would be gained from such an order. When the father was asked during cross-examination whether he would listen to anything Ms V had to say he responded:
Not particularly
The mother raised a concern about the father’s alcohol consumption.
The father has undoubtedly had problems in the past with excessive consumption of alcohol. He and the mother separated when X was seven months old and he agreed that the mother was concerned about his drinking at that time. He has three DUI convictions the last being in 2009.
The father agreed that after he was hospitalised in (omitted) in September 2015 Ms T drove from (omitted) to (omitted) and loudly upbraided him as he lay in bed telling him that he had to sort himself out and stop drinking. He nevertheless denied at the hearing that his alcohol consumption was currently a problem.
The father admitted that there had been periods of his life when he drank a carton and a half a week and admitted that for a period after the disclosures he drank heavily at home which he blamed the mother for not being able to see X. He said that currently he “might sometimes have 3-4 beers in the afternoon.”
People are often less than frank with the court about their alcohol consumption but no testing was carried out during these proceedings and I cannot make a finding about whether the father’s alcohol consumption is currently problematic and is likely to pose a risk to X in the future. The mother did not suggest that he had consumed alcohol while X was with him for the day visits in 2015 and 2016.
Given that the father admitted that there have been occasions in his life when he had drunk heavily and given that X is a very vulnerable child and that the mother may panic if she thinks X is not being properly looked after, an order restraining the father from consuming alcohol while X is with him would be a good idea and the father said that he would consent to such an order being made.
I must consider the maturity lifestyle and sex (including the lifestyle culture and traditions) of the child and either of the child's parents and any other characteristics of the child the court considers relevant
X has always had some difficulties at school including difficulty making friends. In 2015 after the disclosures she was referred to a paediatrician, a child and adolescent psychiatrist and a speech pathologist. She is currently diagnosed with PTSD, ADHD and anxiety and her paediatrician has prescribed Ritalin and she receives learning support at school.
The mother has been assiduous in attending to X’s needs for specialised intervention and has made the decisions about X’s involvement with specialists.
I must consider the attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents.
The mother displayed a very good attitude to the child and the responsibilities of parenthood in the way she responded to the disclosures.
The father did not display such a good attitude. He perceived himself as the victim and did not focus on X's needs and did not respond to correspondence from Ms V. If he had been willing to listen to Ms V his time with X might have resumed in a meaningful way much earlier.
The mother does not display a poor attitude to the child or the responsibilities of parenthood in wishing to move to Queensland. Adults legitimately have wishes about where they would prefer to live and it is not open to me to find that the mother wishes to move to the place her sister lives and the place she finds congenial in order to exclude the father from X’s life.
The father also has a strong wish about where he would prefer to live and I will have to make a decision about X’s best interests bearing in mind the legitimate wishes of each parent.
I must consider any family violence involving the child or a member of the child's family
There was an incident at changeover between the parties in September 2013 during which A claimed that the father assaulted him.
A with the assistance of his father Mr R made a complaint to the police and on 8 October 2013 an Apprehended Domestic Violence Order (ADVO) was made for the protection of the mother and A.
The father denied assaulting A and the mother did not call A to give evidence. The mother was present during the incident but neither the father nor Counsel for the Independent Children's Lawyer questioned her about the incident and the mother's counsel did not cross-examine the father about the incident. In those circumstances it would be unsafe for me to make findings about the incident.
I must consider whether there are or have been any family violence orders and if so the conclusions which can be drawn from this.
The only family violence order was the order made for the protection of A and I cannot draw any conclusions from the mere fact that this order was made.
I must consider whether it is preferable to make the order least likely to lead to further proceedings.
An order permitting the mother to relocate, either immediately or in twelve months, is the order least likely to lead to further proceedings. The mother has a strong and long held wish to live in Queensland and if she is not permitted to relocate she may reapply in the future.
I must consider any other relevant matter
The parties capacity to communicate, and in particular the father’s willingness to communicate with the mother, is a relevant matter.
The father regularly ignores communications from the mother. He does not respond to her text messages. He did not respond to the letter from her solicitor about the event on 21 August 2016. The letter was worded in a confrontational manner but the father's failure to respond to it was unhelpful for X.
The father pointedly ignored the letter Ms V sent him in 2014 asking him to be involved in X’s therapy and when he did finally go to see her he was rude and aggressive and was focussed entirely on himself. When Ms V asked him if there was anything else she could do his response was:
Well since you can’t get my daughter back, NO…you’re all hypocrites, you’re useless, all you wanna do is stop me seeing my daughter, and all you care about is your so called reputation.[15]
[15] Annexure D affidavit of Ms V
The father informed the court that he was not happy that X had been prescribed Ritalin but the first the mother heard about that was during the hearing. The father has never sought to express a view directly to her about it or to contact the child's doctor and seek to discuss it.
It was abundantly clear when the father was in the witness box that he had a chip on his shoulder when it came to the mother and that it led to him behaving in ways which were not helpful to X.
The father has been behaving in this way for years and there was no sign that his attitude to the mother or his willingness to communicate with her was likely to change. In answer to a question from the mother’s counsel he said that he could not see any way of improving their communication. In final submissions he said that he was willing to try a communication book once again but that is no substitute for him being willing to respectfully respond to direct communication by the mother.
Parental responsibility
There is an order in place for equal shared parental responsibility but the mother proposed that an order now be made that she have sole parental responsibility for the child.
I cannot be satisfied that any family violence has occurred and s.61DA of the Family Law Act requires me to apply a presumption that it would be in X’s best interests for the parents to have equal shared parental responsibility for her. However the presumption can be rebutted by evidence that it would not be in the child’s best interests for it to apply and the mother’s counsel submitted that this was the case here.
There is force in this submission.
It was abundantly clear during the hearing that the father was unwilling to communicate with the mother. He habitually ignores communications from her and he also ignored for twelve months the letter sent to him by Ms V.
X has medical needs. She is under the care of a paediatrician and has been prescribed Ritalin. She requires ongoing therapy. If she relocates she will need to engage with a new psychologist or counsellor and a new paediatrician and a school will need to be chosen for her and even if she does not relocate, ongoing decisions will need to be made about medical and psychological matters and in due course a high school will need to be chosen.
Up to this point in X’s life the mother has made the necessary decisions for her and the father has gone along with them, so from one perspective the mother does not need an order for sole parental responsibility; past history suggests that it is unlikely that the father will interfere if she keeps making decisions. However it does create potential difficulty. There may be occasions when a service provider will require the consent of both parents.
The family report writer recommended that the mother and father share parental responsibility but I do not share her view that the current or recent dynamic between the parties is one of the mother riding roughshod over the father; I consider that it is one of the father sitting in the background nursing his resentments and refusing to communicate with the mother leaving her with no choice but to make decisions about X on her own.
The mother is a good child focussed parent who will make good decisions for X and in my view it is appropriate that she be given sole parental responsibility for making decisions about major long term issues for her, subject to providing details to the father when the decisions are made and subject to an order being made that she not change the child’s surname.
During submissions the mother’s counsel proposed that another restriction be placed on sole parental responsibility namely that the mother be restrained from obtaining a passport for X without the father’s consent. I do not intend to impose that restriction. The father did not seek it, there was no evidence that the mother might obtain a passport with a view to permanently removing X from Australia and given the extent of the parties in the court system to date it would be regrettable if the matter had to return to court over an issue to do with a passport when X was much older or when the mother decided that she wanted to go on a cruise.
Conclusion about parenting arrangements
The family report writer did not support the mother relocating. She recommended that orders be made for X to spend daytime with the father until the end of 2016 and that overnight time commence from the beginning of 2017 and that this take place in (omitted) or elsewhere.
One of the problems with these recommendations is that the father evinced no interest at all during the trial of regularly taking himself out of his way so that overnight time could occur away from (omitted). He put forward no proposal about how overnight time could happen if it did not happen in (omitted) save for suggesting that he could take the child camping and both he and his sister put roadblocks in the way of regular time occurring away from (omitted). They emphasised that the father needed to be in (omitted) every morning and afternoon to feed the horses.
The family report writer was concerned about what might happen to X’s relationship with the father if X moved to Queensland because it was her view that the mother did not support X having a relationship with the father and wider paternal family. In coming to this view she was clearly influenced by the findings and observations in the 2011 judgment but it is not open to me on the evidence before me to find that the mother does not support X having a relationship with the father or wider paternal family.
The mother complied with court orders between 2011 and 2014 for X to spend time with the father and the father is partly to blame for the fact that he saw little of X between July 2014 and July 2015. The mother did not offer extensive time after the disclosures and is not offering extensive time now but I am satisfied that this is because she is genuinely concerned about X’s wellbeing.
Ms C confirmed during cross-examination that she had made no effort to contact the mother or X since the disclosures. There has been nothing to prevent her seeing X on the Sundays X spends with the father but she has prioritised her work over spending time with X.
During cross-examination the family report writer provided some insight into the father’s situation, emphasising that he was an unsophisticated man from the country who might understandably have difficulties adapting to the use of new technology and making changes to his routine.
I accept this and I am sympathetic to the father. What I do not accept is that it should automatically follow that the lives of others including his daughter must be curtailed because he is unwilling or unable to accept change. I do not accept that because the father refuses to budge from (omitted) the mother, who is more adaptable, must give up her hopes and dreams and remain in (omitted).
I am satisfied that X would be happy and well parented if she moved to the (omitted) with her mother. She told Ms V she liked the idea and Ms V was confident that X could cope with a transition to another therapist.
The mother would be happy if she was able to move and while I cannot find that her parenting capacity would be affected if she was not allowed to move, it is to X’s benefit that the mother is happy and not consumed by resentment at the father controlling her life.
I do not accept that there is any evidence that the mother would attempt to lever the father out of X’s life if she moved away from (omitted) or attempt to influence X against the paternal family.
The downside of the move is that X will not be able to see the father frequently and given the father’s refusal to budge from (omitted) and the fact that at the moment X should not be required to go to (omitted) this is not a case in which the child could routinely spend a significant period of the school holidays with the father. However once she is comfortable with overnight time she could spend block periods with him during the holidays if he made plans to go to the (omitted) area or somewhere else away from (omitted).
X could have Skype communication with the father if he obtained a computer which he grudgingly said he would do.
The father will not be a close and integral part of X’s life if she lives in Queensland but it is open to question whether he would have a closer relationship with X if she remained in (omitted). His attitude of sitting back and expecting things to be handed to him on a plate rather than going out of his way to attend school events and seek out information is unlikely to change. The father by his choices is consigning himself to a less important role in X’s life.
As Kirby J said in AMS & AIF[16] relocation cases often see the court faced with irreconcilable considerations and while a move to Queensland will mean that X is unable to spend as much time with her father as she could if she remained in (omitted) overall it is the outcome which is in her best interests. It gives recognition to the mother’s right of freedom of movement and it cannot ever be the case that because one parent does not want to move the other is forced to stay.
[16] AMS & AIF [1999] 199 CLR 160
Counsel for the Independent Children's Lawyer said that the Independent Children's Lawyer supported the mother being able to relocate but not until the beginning of the 2018 school year. She proposed that between now and then X spend increased time with the father.
I cannot see the logic in refusing to allow the mother to relocate for twelve months. X is not a baby or toddler who needs to form a bond with her father. She has an established bond with him. Her relationship with him will not become less susceptible to being undermined by her staying in (omitted) for another twelve months nor is it likely to become more meaningful if she stays here for another twelve months. The father will not change his attitudes and actions and only this would change the nature of X’s relationship with him. There is absolutely nothing to suggest that is X stays in (omitted) for another year she will begin to confide in the father and trust him in the same way she trusts her mother.
I am satisfied that the mother will ensure that everything is done to make X comfortable with the change in terms of arranging for her to see Ms V before she leaves and at other times as necessary. The mother has always been assiduous in ensuring that X receives appropriate therapeutic support.
I intend to make orders which will allow the mother to relocate to the (omitted) after Christmas.
The mother put forward a comprehensive set of orders about X’s time with the father in the event she relocated and I intend to make orders in those terms.
The mother’s proposal during final submissions was that she would bring X to (omitted) every school holiday so that she could spend time with the father with the mother close at hand for as long as X needed that. The mother proposed that once that was no longer needed she would notify the father and from that point on they could meet at a half way point, for example (omitted) or (omitted). I will make orders to that effect.
The Independent Children’s Lawyer proposed that X spend time with the father overnight from Christmas Eve to Christmas Day this year. Ms V did not consider that X was ready for overnight time and the mother did not support it and I do not intend to make this order.
The mother proposed an order that X spend time with the father from 11.00am to 5.00pm on Christmas Day. I have some misgivings about making such an order in case the father finds it impossible or unacceptable to not take part in the family Christmas at (omitted), and not too much is open on Christmas Day, but it is preferable that I make an order for X to spend time with the father on Christmas Day rather than no order for this to occur and I will make this order.
I do not intend to make an order about the father making an appointment with Ms V to obtain advice. There is nothing to stop the father doing this of his own volition but there is always very limited utility in ordering a person to obtain information or seek advice and the father’s attitude to Ms V is one of resentment and not one of respect so it is difficult to see what would be gained from such an order.
For all of the above reasons the orders of the court will be as set out at the beginning of this judgment.
I certify that the preceding two hundred and fourteen (214) paragraphs are a true copy of the reasons for judgment of Judge Terry
Date: 20 December 2016
[6] U & U (2002)FLC 93-112
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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