Hooper and Reeves

[2013] FCCA 505

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOOPER & REEVES [2013] FCCA 505

Catchwords:
FAMILY LAW – Child aged almost four years – mother lives in [R] – father lives in northern suburbs of Adelaide – spend time arrangements – high conflict – handover arrangements – best interests.

Legislation:  
Family Law Act 1975, ss.60B; 60CA; 60CC; 61DA; 65DAC; 65DAE; 70NAE

Applicant: MR HOOPER

Respondent: MS REEVES

File Number: ADC 1158 of 2011

Judgment of: Judge Brown

Hearing date: 4 June 2013

Date of Last Submission: 4 June 2013

Delivered at: Adelaide

Delivered on: 12 June 2013

REPRESENTATION

Counsel for the Applicant: Mr Dillon

Solicitors for the Applicant: Denise Rieniets & Associates

Counsel for the Respondent: Ms Lee

Solicitors for the Respondent: Herman Bersee

ORDERS

1. The parties have equal shared parental responsibility for the child of the relationship [X] born [in] 2009 (hereinafter referred to as “the child”).

2. The child live with the mother.

3. The child spend time with the father as follows:

   Until such time as he commences kindergarten:

   (a)Each third weekend from 5:30pm Friday to 5:30pm Sunday commencing 14 June 2013;

   (b)By way of compensatory time from 19 September 2013, for the next four three weekly visits, the time being from 5:30pm Thursday until 5:30pm the following Sunday;

   Upon the child commencing kindergarten:

   (c)Each third weekend from 5:30pm Friday to 5:30pm Sunday with handovers to take place at [K];

   (d)For one half of all school holiday periods as gazetted by the Education Department of South Australia;

   (e)From 3:00pm Boxing Day to 3:00pm on 31 December 2012 and each alternate year thereafter;

   (f)From 3:00pm Christmas Eve to 3:00pm Boxing Day in 2013 and each alternate year thereafter;

   (g)In the event Father’s Day falls on a weekend when the child is in the care of the mother, from the Friday prior to Father’s Day to Sunday on the proviso that if Mother’s Day falls on a weekend when the child should be in the care of the father, that the child remain in the care of the mother on Mother’s Day weekend; and

   (h)Such further and other times as agreed between the parties.

4. In order to facilitate the provisions of order (3) hereof the child be exchanged between the parties at a location to be agreed between them in [K] and failing agreement to be at the most convenient 24 hour petrol station in [K].

5. The father provides the mother with at least 48 hours notice if he is unable to attend any specified weekend in order (3) hereof.

6. Mr V is restrained and an injunction issue restraining him from attending at handover with the mother.

7. An injunction be granted and the mother be prevented from changing the child’s usual place of residence of South Australia without the written permission of the father or an Order of this Honourable Court.

8. Each party shall inform the other of any accident, serious illness or incident involving [X] when in her/his care requiring any medical treatment.

9. The mother do authorise the child’s kindergarten and school to provide to the father copies of all school reports, notices and invitations to any events to which parents are usually invited to attend and the father be at liberty to attend all such events.

10. The mother and father shall have telephone communication with the said child at all reasonable times, and for the purposes of such communication the mother and father small provide a contact telephone number within forty eight (48) hours of change.

11. A communication book be utilised to exchange all necessary information between the parties regarding the child’s health, educational and developmental needs, any relevant issues pertaining to his sleep patterns and diet and any other salient issues with the book to be exchanged between the parties on each occasion he is exchanged between them.

12. The parties are restrained and an injunction issue restraining each of them from physically disciplining [X] or allowing any other person to do so. 

13. The parties are restrained and an injunction issue restraining each of them from posting comments on social media internet sites discussing their respective parenting of [X].

14. The parties are restrained and an injunction issue restraining each of them from denigrating the other or allowing any other person to do so in the presence of the child.

15. The mother is restrained and an injunction issue restraining her from having [X] psychologically examined or receiving psychological counselling or treatment without Mr Hooper’s prior written consent.

16. All extant applications are otherwise dismissed.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADC 1158 of 2011

MR HOOPER

Applicant

And

MS REEVES

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parties to these proceedings are Mr Hooper “the father” and Ms Reeves “the mother”.  They are the parents of [X] born [in] 2009.  The parenting relationship between the parties has been tense and chaotic for a number of years. 

2. The father was born [in] 1985. The mother was born [in] 1985. They met, in Adelaide, in early 2008.  They were living a few doors down from each other in suburban Adelaide at the time. 

3. The father obtained some short-term employment in Queensland.  The mother agreed to relocate to Queensland with him.  It is her evidence that she had been the victim of a serious sexual assault, a short time prior to her relocation.  She learnt that she was pregnant, with [X], once she had arrived in Queensland.

4. The relationship between the parties fell into difficulties in Queensland.  The mother’s pregnancy had not been planned and there were doubts concerning the paternity of [X].  In these circumstances, the mother returned to Adelaide, with her daughter from an earlier relationship.  She is [Y] born [in] 2005. 

5. On her return to Adelaide, the mother packed up her accommodation there and moved again to [G], where her sister lives.  She was able to obtain emergency accommodation, for herself and [Y], in [G] through a domestic violence organisation. 

6. [X] was born in [G] on [omitted] 2009.  Thereafter, a parentage testing procedure revealed that Mr Hooper was [X]’s father. 

7. On the completion of his employment obligations in Queensland, the father returned to live in Adelaide.  Currently, he lives in [P], on the city’s northern outskirts. 

8. After [X]’s birth, Mr Hooper travelled regularly to [G] to see [X].  From time to time Ms Reeves and [X] visited in Adelaide.  In this setting, the parties briefly reconciled and attempted to make their relationship work for a period of around twelve months.  They finally separated, in July 2010, when [X] was just over one year of age. 

9. From the mother’s perspective, the parties’ relationship was brief and difficult. She asserts that the father had difficulty controlling his temper and was, on occasions, violent towards her. Following separation, she asserts that he was threatening and abusive towards her.

10. The father asserts that the mother had issues to do with binge drinking and self harm. He denies that he has ever been violent towards

    
    

    Ms Reeves and asserts that she is very controlling of his relationship with [X].  He asserts that, when Ms Reeves permitted him to see [X], he played a large role in caring for him. 

11. The father commenced proceedings, in this court, on 30 March 2011, approximately eight months after the parties had separated.  He agrees that, following separation, he spent relatively brief periods of time with [X], in [G], which were subject to professional supervision.  He says he agreed to this supervision only in order to be able to see [X]. 

12. Following the parties’ separation, the mother formed a relationship with Mr E. He is a [occupation omitted]. He was made redundant from his position, in [G], and was offered a position, with the same employer, at [workplace in Townsville omitted]. 

13. The catalyst for Mr Hooper commencing proceedings appears to have been his concern that the mother might relocate [X] away from [G] to Townsville.  In his application, which was made returnable on 4 May 2011, he sought an injunction restraining the mother from moving [X], from the immediate area of [G], without court order or his agreement. 

14. The mother, [X] and [Y] left [G] on 29 April 2011 and travelled to Townsville.  At the time, the mother asserted that she had had no knowledge of the father’s application, when she left [G].  She asserted that it came to her attention only on 4 May 2011. 

15. Ms Reeves formally responded to the application on 23 May 2011.  She sought orders which would have ratified her relocation of [X] to Townsville.  Whilst [X] was of pre-school age, she proposed that

    
    

    Mr Hooper spend supervised time, with him, in Townsville upon giving her written notice. 

16. On 24 May 2011, Federal Magistrate Kelly (as she then was) ordered that the mother return [X] to the State of South Australia on or before 15 July 2011.  The father was ordered to meet the costs of both [X] and Ms Reeves’ airfares from Townsville to Adelaide. 

17. In addition, it was ordered that the mother maintain [X]’s principle place of residence in [G].  In these circumstances, [X] was to spend regular periods of daytime contact, with his father, in the [G] area, with [X] to be exchanged between the parties at the local McDonalds Restaurant.

18. On 18 August 2011, in anticipation of a trial taking place in February of 2012, Federal Magistrate Kelly ordered that a family report be obtained.  Her Honour also ordered that there be some supervised contact visits organised between [X] and his father, which would also be reportable. 

19. At this stage, the important evidentiary issues in dispute between the parties concerned the nature of [X]’s relationship with his father and whether it was likely to be in his best interests to relocate, with his mother, to Queensland.  At the time, it was Ms Reeves position that her emotional well being had been significantly harmed by her compulsory return to [G].

20. The supervised sessions, between Mr Hooper and [X], appear to have passed uneventfully.  The interaction between the two was described as age appropriate and free flowing, with Mr Hooper responding to [X]’s needs in an appropriate manner. 

21. In the family report, which was compiled by a social worker, Ms N, the mother was described as being emotionally fragile.  She reported that she found it difficult to communicate with Mr Hooper effectively because she did not know him very well, as a consequence of the brevity of their relationship together. 

22. Mr Hooper was described by Ms N as having a sound understanding of [X]’s individual characteristics and developmental needs.  It was his perspective that he was willing to communicate more effectively with Ms Reeves, but was rebuffed in this regard by her. 

23. Ms N’s impression of Ms Reeves, as a parent, was that she was a loving mother, who had a primary and positive attachment to [X].  In Ms N’s view, there was no doubt that Ms Reeves was capable of satisfying all of [X]’s emotional and physical needs. 

24. To Ms N, Ms Reeves stated her view that a “happy mum was a good mum”.  She reported feeling trapped and unhappy in [G].  At the time of the report, it was her clear preference to return to Townsville.  At the time, Mr E continued to live in Townsville.  He and Ms Reeves appear to have been engaged by this stage.  He took part in the family report consultation process, with Ms N, by telephone.

25. Issues were raised in the family report regarding the mental health of each of the parents.  In this context, Mr Hooper denied any suicidal attempts or ideation.  Ms Reeves stated that she had been diagnosed with symptoms of anxiety, depression and post-traumatic stress disorder, whilst living in Townsville.  It was her position that her mental health had been more robust, whilst she had been living in Townsville. 

26. [X] himself was described as a delightful, happy and settled boy, who enjoyed playing a range of age appropriate activity with both of his parents.  There appear to have been no questions, in Ms N’s mind, that [X] was developing in any other way than an appropriate one. 

27. Ms N was not in favour of [X] relocating to Townsville, notwithstanding that Ms Reeves presented as a fragile person, who was struggling to come to terms with a number of recent traumatic events in her life and who was then separated from her most significant source of emotional support, her fiancé, Mr E.

28. Ms N characterised Mr Hooper as a loving father, who was motivated to play an active role in [X]’s life.  She considered that he had a sound understanding of the child’s individual characteristics and developmental needs and an ability to meet them.

29. In this context, Ms N considered it of fundamental importance to ensure that [X] had the opportunity to spend quality time with his father, so that Mr Hooper was available to him to provide him with “an apprenticeship in life and to teach [him] pro-social attitudes and beliefs”.

30. Given [X]’s age, at the time of the report, and the distance between Adelaide and Townsville, Ms N considered it unrealistic to consider that such an optimal level of paternal relationship could be achieved if [X] and his mother returned to Queensland and thereafter father and child interacted irregularly in Townsville. 

31. As such, in Ms N’s view, the benefits to [X] of living in South Australia, so that he could spend “frequent quality time with his father outweighed the benefits he would gain from the mother’s increased happiness from the mother living in Townsville.”  Ms N was thus not in favour of the relocation.

32. Ms N also emphasised the importance of [X] maintaining a significant degree of connection with members of his wider paternal family, who were primarily based in Adelaide. The most important of these relatives is [X]’s paternal grandmother, Ms H.  At the time of the family report, the father was living with his mother in [P].  It is my impression that there is a somewhat tense relationship between Ms Reeves and Ms H at present. 

33. This view also accords with the report of Ms N, who reported a significant and worrying level of conflict between the parties in this case. On any view, Mr Hooper and Ms Reeves have what can only be described as a compromised facility to communicate effectively with one another. 

34. I acknowledge that the circumstances surrounding [X]’s conception and what happened afterwards were emotionally traumatic for both the father and the mother.  As such, it is hardly surprising that there are currently major deficits in their parenting relationship. 

35. However, [X] himself cannot be held responsible for these problems.  He is a child.   As such, it would be wise of the parties to bear in mind that [X] is the person who will be the most adversely affected by the problems in their relationship and the conflict arising from it.

36. The release of Ms N’s report, to the parties, did not facilitate an earlier resolution of the case, for perhaps obvious reasons. In those circumstances, the case was fixed for final hearing, in the February 2012 sittings of the court to Mt Gambier. 

37. Perhaps surprisingly, given what can only be described as a difficult and emotionally driven situation, the parties were able to agree on final arrangements for [X]’s care on 7 February 2012. 

38. There does seem, however, to have been a significant change of circumstances in Ms Reeves’ personal life, which occurred at the time.  In January of that year she formed a relationship with Mr V, whom she currently describes as her de facto partner. 

39. In any event, on 7 February 2012, Federal Magistrate Simpson (as he then was), with the consent of the parties, ordered as follows:

    “1.    The child [X] born [in] 2009 live with the mother.

    2.  The mother and father equally share the parental responsibility for the child.

    3.The father spend time with the child as follows:-

    a)  Until such time as the child [X] commences kindergarten:-

    i.Each third weekend from 5pm Friday to 5pm Sunday with handovers to take place at [K] commencing 24 February 2012.

    b) Upon the child commencing kindergarten:-

    i.   Each third weekend from Friday to Sunday with handovers to take place at [K].

    ii.  For one half of all school holiday periods as gazetted by the Education Department of South Australia.

    iii.     From 3:00pm Boxing Day to 3:00pm on 31 December 2012 and each alternate year thereafter.

    iv. From 3:00pm Christmas Eve to 3:00pm Boxing Day in 2013 and each alternate year thereafter.

    v.  In the event Father’s Day falls on a weekend when the child is in the care of the mother, from the Friday prior to Father’s Day to Sunday on the proviso that if Mother’s Day falls on a weekend when the child should be in the care of the father, that the child remain in the care of the mother on Mother’s Day weekend.

    vi. Such further and other times as agreed between the parties.

    4.  An injunction be granted and the mother be prevented from changing the child’s usual place of residence of South Australia without the written permission of the father or an Order of this Honourable Court.

    5.  Each party shall inform the other of any accident, serious illness or incident involving [X] when in her/his care requiring any medical treatment.

    6.  The father provides the mother with at least 48 hours notice if he is unable to attend any specified weekend.

    7.  The mother do authorise the child’s kindergarten and school to provide to the father copies of all school reports, notices and invitations to any events to which parents are usually invited to attend and the father be at liberty to attend all such events.

    8.  The mother and father shall have telephone communication with the said child at all reasonable times, and for the purposes of such communication the mother and father small provide a contact telephone number within forty eight (48) hours of change.

    9.  A Communication book be utilised by both parents.”

40. In the context of the current proceedings, the relevant features of the agreement are that [X] would have an extended period of overnight time (2 overnight periods) with his father, every third weekend and he was to be exchanged at [K].

41. The orders represented a compromise, in difficult circumstances, between the need for [X] to maintain a meaningful level of relationship with his father and the difficult logistical implications of the child’s age; obvious primary attachment to his mother; and the distance between the parties’ respective homes.

42. In an ideal world, given [X]’s age and other factors arising from the parties’ difficult relationship with one another, the court would, no doubt, have preferred to be in a position to consider periods of frequent contact, of shorter duration, rather than more widely dispensed periods, of longer duration, to consolidate [X]’s relationship with his father.  However, Mr Hooper could not move to [G] and Ms Reeves would not consider moving to Adelaide.

43. Regrettably, these orders soon broke down.  On 26 September 2012, the mother’s solicitors wrote to the father’s solicitors alleging that [X] had been frequently returned to Ms Reeves, after spending time with Mr Hooper, with unexplained bruising to his body.  In addition, it was alleged that Mr Hooper had spoken in a derogatory manner towards

    
    

    Mr V, in [X]’s presence. 

44. Mr Hooper vehemently disputes that he has done anything to physically harm [X].  In addition, he denies that he has behaved in a threatening or offensive manner towards Mr V.  In these circumstances, he complained that [X] had been withheld from him for four of his weekends between late August of 2012 and early November of 2012. 

45. In these circumstances, on 14 November 2012, Mr Hooper commenced contravention proceedings.  Concurrently with his contravention, he commenced proceedings seeking makeup time for periods with [X] lost to him and for a number of variations to be made to the orders of February 2012.  These variations included the following:

    ·An injunction preventing Mr V being referred to as “dad” to [X];

    ·An injunction preventing Mr V being present at handovers;

    ·The mother be directed to ensure his name was entered in the Register of Births as [X]’s father;

    ·An injunction restraining the mother from posting denigratory comments about him on Facebook;

    ·The parties utilise a communication book in respect of [X];

    ·The parties be restrained from physically disciplining [X];

    ·The place of handover be changed from [K] to the [omitted] Police Station.

1. The mother responded to this application, at length, in an affidavit filed on 29 November 2012.  In this affidavit, she deposed that she, [X] and [Y] lived with Mr V and his three children [name omitted] aged fourteen, [name omitted] aged eleven and [name omitted] aged ten in [C], a small township approximately thirty-seven kilometres from [G].  Mr V is a [occupation omitted]. 

2. To her affidavit, Ms Reeves has annexed a lengthy statement, which she had provided to the [G] police on 22 September 2012.  In this statement, she makes a formal complaint that she observed Mr Hooper head butt [X], at least four or five times, whilst the two were in Mr Hooper’s motor vehicle, at [K], prior to handover. 

3. Following this incident, Ms Reeves complains that she has observed further marks under [X]’s left eye following a visit with his father in early June of 2012.  This was followed by her discovery of a purple bruise, on [X]’s shin, following the visit of 29 June to 1 July 2012.  In respect of both such injuries, Ms Reeves alleges that [X] has indicated to her that Mr Hooper has inflicted the injuries in question.

4. Ms Reeves had her driver’s licence suspended in August of 2012, due to a failure to pay traffic fines.  She deposed that she had thought she had made arrangements to pay the fines off by way of regular deductions from her Centrelink payments.  However, this proved not to be the case. 

5. In these circumstances, given her lack of a licence, further difficulties arose in respect of Ms Reeves being able to get to [K], which is 160 kilometres from [G], perhaps a little less from [C].

6. This difficult situation precipitated an exchange of emails between interested parties on both the maternal and paternal side of [X]’s family.  Mr V was involved, as was Ms H.  No one was able to come up with a solution to the problem and the communications between them degenerated.  From both sides, the relationship between the parties is one characterised by suspicion, frustration, anger and miscommunication.  A difficult situation seemed to be getting worse and more intractable. 

7. In early September 2012, when Ms Reeves collected [X] from a visit with Mr Hooper, she reports that she observed an “egg in the middle of his back”.  The clear implication of her evidence is that she believed that this injury was caused by Mr Hooper. 

8. In these circumstances, from 7 September 2012 onwards, she elected not to make [X] available for handover.  Given concerns, which she had allegedly observed in respect of [X]’s behaviour, she also arranged for him to be examined by a psychologist, Ms B.  It is common ground between the parties that she did not consult with Mr Hooper regarding this consultation.

9. She reported the alleged head butt incident of May 2012 to police on 21 September 2012.  On 5 October 2012, Mr V supplied his own statement to police.  In his statement, Mr V said as follows:

   “When we pulled up I looked across and could see that [X] was sitting on [Mr Hooper’s] lap and was facing him.  [X] had his back against the steering wheel and [Mr Hooper] was holding [X] by the top part of his arms and he was head butting him.  When I say this I mean I could see [Mr Hooper] moving his head back a bit and then move it forward and it looked like the top their heads were butting into each other.  I could see [X]’s and Mr Hooper’s head.  I didn’t look really hard or severe.  It didn’t look like he was trying to do it real hard, but it was a bit more than just fun and games.  It looked like it was intended to make [X] cry I think but it didn’t work.  I would say it was done hard enough that it would have hurt me, it was a decent head butt.  [X]’s head was getting knocked back when he was making contact.  The windows on my car were down but their windows were up and I couldn’t really hear anything when this was happening.”[1]

   [1]  See Mr V’s affidavit filed 5 December 2012

10. Given [X] age, it appears unlikely that he will be formally interviewed by police. It is Mr Hooper’s perception that Ms Reeves has disingenuously misconstrued an innocent event to gain her own advantage over him in respect of ongoing arrangements for [X]’s care. 

11. Mr Hooper asserts that all the mother’s assertions against him are completely baseless and unsupported by any reasonable objective evidence. He asserts that the mother is intent on severing his previously happy and close relationship with [X]. 

12. Mr Hooper denies that he has ever used any physical discipline on [X].  He concedes that [X] may fall and tumble, whilst in his care, but such incidents are the normal helter skelter of life with a three or four year old.  It is his case that both he and his family have an excellent relationship with [X]. 

13. The father’s contravention application, along with his further application to amend the final orders made in February and the mother’s response were listed before Federal Magistrate Simpson, in Mt Gambier on 3 December 2012.  His Honour fixed the contravention hearing for 4 February 2013 before me, in Mt Gambier.  I assumed responsibility for the Mt Gambier circuit from February 2013 onwards.

14. Regrettably, the contravention application did not take place on 4 February.  This was because Mr Hooper’s solicitor thought that the matter was going to proceed in Adelaide rather than Mt Gambier.  In these circumstances, the proceedings were again adjourned, to 19 April 2013, in Mt Gambier.

15. From my perspective, the most important aspect of the case, from the date of my involvement in it, is that [X], a child whom Ms N reported had a close and loving relationship with his father, had not interacted with his father, for a period approaching nine months.  This is a very significant period of time for a child of [X]’s age.  It is particularly concerning given that prior arrangements for [X]’s care, particularly his involvement with his father, cannot be regarded as ever having been particularly stable. 

16. Ms Reeves filed a response to Mr Hooper’s application on 19 December 2012.  In this application she sought the following interim orders:

    ·The suspension of the orders of 7 February 2012 dealing with [X] spending time with his father;

    ·The father spend professionally supervised time with [X], in [G], pending a full investigation into her allegations that Mr Hooper had subjected [X] to family violence;

    ·That the parties communicate via a communication book in respect of [X]’s health, welfare, education and any variations in respect of special occasions concerning [X];

    ·A mutual injunction restraining the parties from physically disciplining [X] or allowing any other person to do so;

    ·A mutual non-denigration order;

    ·An injunction restraining the parties from posting comments on social media sights on the internet;

    ·That she be granted leave to have [X] psychologically examined by Ms B to ascertain whether he had been abused or was at risk of being abused by his father.

17. The whole of 19 April 2013 was put aside to hear the father’s contravention application, which would have involved an investigation of the mother’s claim that Mr Hooper had head butted [X] and perhaps also the aetiology of the alleged injuries, which [X] had sustained, whilst in his father’s care.  It is important to note that, prior to 19 April 2013, the mother had apparently made no proposals for Mr Hooper to spend time with [X].  Certainly, it is common ground that Mr Hooper had not spent time with the child for a significant period of time.

18. On 19 April both parties were represented by counsel.  I was told that they wished to discuss the case with one another with a view to seeing whether the various issues between their respective clients could be resolved.  For that reason, the case was stood down so that negotiations could take place between counsel.  I was told that these discussions envisaged the creation of a “total package” to resolve all outstanding issues between Mr Hooper and Ms Reeves, in respect of [X].

19. Given the emphasis the Family Law Act places on parents making consensual decisions regarding their child, I was supportive of these discussions and wished them well. The discussions apparently proceeded through the morning and into the afternoon. They broke down around 4:00pm.  I was told that the sticking point was where [X] should be exchanged between the parties.  Given this dispute, nothing else apparently could be agreed between the parties, even in the short term on an ad hoc basis so that [X] and Mr Hooper at least could spend some time together.

20. I was also told that the parties were stressed and tired after a long day, which had been trying and difficult for them both. In those circumstances, it was agreed that the parties would sleep on the matter and it would return to court, in Adelaide, 24 April 2013.  This period did not result in any resolution of the deadlock.  Rather, I was told that the only way forward was through a judicial decision. 

21. As previously indicated, the earlier orders envisaged [X] being exchanged between the parties at [K].  From both parties perspective, [K] is an inconvenient location.  However, neither party had provided evidentiary material in regards to the issue.  In addition, there had been a further change in Ms Reeves’ circumstances.  She had moved from [C] to [R], a seaside town approximately 42 kilometres south of [K]. 

22. In these circumstances, on 24 April 2013, I made the following order:

    “The parties each file a brief affidavit of no more than 4 pages of double type spacing in length setting out their respective evidence regarding their preferred location of handover and why it is best for the child [X] born [in] 2009 to be handed over in that location by no later than 16 May 2013.

    Further consideration of this matter is adjourned for interim hearing on 4 June 2013 at 4:00pm.”

23. These reasons for judgment arise as a result of that order.  Ostensibly the proceedings are directed at resolving the issue of the handover location.  However, for reasons I have outlined at length, they are also emblematic of all manner of difficulties in the parties’ parenting relationship.

The geographical context

1. Mr Hooper lives at [P], which is 21 kilometres north of the Adelaide CBD.  It is a further 148 kilometres from the Adelaide CBD to [M], which is a small town [omitted]. [Directions to location omitted]. 

2. It is Mr Hooper’s evidence that it would take him about two hours to travel to [M]. [R] is 42 kilometres south of [K]. [Directions to location omitted]  Accordingly, it is 188 kilometres between [R] and [M]. 

3. The [omitted] is not the main thoroughfare for traffic moving between Adelaide and Melbourne, or indeed between Adelaide and [G].  As such, it is a relatively quiet stretch of highway, with [M] and [K] being the only major communities on it. 

4. [S] is 61 kilometres south of [M].  There is a roadhouse at [S] but little else.  There is a police station at both [K] and [M], as well as large well lit service stations and other convenience stores. 

The respective positions of the parties

a)     The father

1. The father’s preference is that [X] should be exchanged between the parties at [M].  It is his evidence, which seems plausible to me, that it would take him approximately two hours to travel from [P] to [M].  This journey would include some travelling, in an urban setting, where he is likely to encounter more traffic congestion and be subject to a more severe speed limit. 

2. Mr Hooper deposes that he works from 7:00am until 3:30pm.  He has requested his employer, if he could leave early each third Friday, but has been informed that this cannot be guaranteed. In these circumstances, he proposes that [X] be exchanged, between the parties, each third Friday, at 5:30pm at [M]. 

3. Mr Hooper is opposed to utilising [S] as the handover location.  He deposes that it would take him 2 hours and 38 minutes to travel to [S].  In addition, given the lack of facilities there, he does not believe that it would be a safe locale for [X]. 

4. In marked contrast, from Mr Hooper’s perspective, [M] has many public conveniences and a playground.  [X] is familiar with the town, as his maternal grandfather lives there and, as a consequence, he and Ms Reeves are said to be frequent visitors there.

5. From the father’s perspective, it is unfair that he should do the majority of the travelling arising from the need to exchange [X].  This would be the result if [K] is used.  It would take approximately 3½ hours to drive there from [P].

6. It is his case that he is a single person and has no-one to assist him with the driving.  On the other hand, Ms Reeves has re-partnered and has the assistance of Mr V.  In addition, she is not currently in the paid workforce and would not have to drive, as he does, after having worked an eight hour day.

7. The father asserts that, although Ms Reeves would have to drive further than him to reach [M], because of differences in speed limits and traffic congestion, it is likely to take her a little under two hours to make the journey.  Accordingly, from his perspective, [M] is both fair for the parties themselves and safe and appropriate from [X]’s point of view. 

b)     The mother

1. Ms Reeves deposes that she has recently commenced part-time work at [omitted].  Her hours are unpredictable and, given that she has found it difficult to obtain paid employment in the past, she is anxious to do as many shifts as possible, to ensure she keeps the job. 

2. In these circumstances, she cannot personally guarantee that she will be available for every handover.  In these circumstances, she would wish to nominate Mr V as her proxy.  His work is seasonal in nature.  In addition, both she and Mr V have frequent sporting commitments, for the various children in their blended family, which require their attention, particularly on Friday afternoons. 

3. In these circumstances, it is Ms Reeves’ view that there are no compelling circumstances, which militate in favour of the parties changing a longstanding arrangement that [X] be exchanged between them at [K].  This is her preference.  She concedes that, since her move to [R], [K] has become significantly more convenient for her, whilst the level of difficulty for Mr Hooper will remain the same. 

4. Ms Reeves would not categorise herself as a confident driver.  The only vehicle, which she and Mr V own, is a 1993 EL Ford station wagon.  Ms Reeves categorises the vehicle as being “extremely unreliable over long distances”.  She is not in a financial position to enable her to purchase a replacement vehicle. 

5. In these circumstances, she is fearful of driving to [M], particularly if she was to break down.  It is her case that mobile phone coverage, in the area, is problematic and she fears that she would not be able to access assistance, if she did break down. 

6. Ms Reeves describes [omitted] as being remote and being subject to “minimal traffic”. She is also apprehensive at the prospect of travelling the highway, at dusk, because of the possibility of her vehicle colliding with wandering kangaroos or deer.  In all these circumstances, it is her evidence that it would be dangerous for [X] to travel this length of the [omitted] with her. 

7. The flaw in her logic, of course, is that [X] would quite possibly travel this stretch of [omitted], with his father, at dusk.  In this regard, Mr Hooper asserts that his motor vehicle is a 1995 model and, as such, can only be considered to be of a similar age to the mother’s car.  He asserts that his vehicle is equally likely to break down and he to cannot afford to replace it.

8. Ms Reeves refutes any suggestion that she and [X] are familiar with [M], notwithstanding that her father lives there.  She deposes that she has travelled to the town only three times in the past two years.  From her perspective, [K] is a far preferable handover location, particularly as [X] knows the town well.  Her preference is that [X] be exchanged, at [K], at 5:00pm every third Friday. 

9. Ms Reeves is not opposed to [X] making up the time lost with his father since September of last year.  However, she has concerns that it would be detrimental to [X] to put in place immediately arrangements whereby he spends an extended period of time with his father. 

10. On the other hand, it is Mr Hooper’s position that the court should make orders, which would see [X] spending from 5:30pm Thursday to 5:00pm Tuesday for his next six visits, commencing with Thursday, 6 June 2013.  From the mother’s perspective, this regime would be too soon and too much, given [X]’s age at present. 

11. In this context, Ms Reeves relies on the recommendation of Ms B, whom she has consulted in respect of [X]’s developmental needs. Ms B proposes that [X] have a slow re-entry to access, which will enable him to regain confidence in his relationship with his father. 

12. In an ideal world, it would appear to be Ms B’s view that there should be more frequent visits, for [X], with his father, but of a reduced duration. This proposal is not possible, given the logistical circumstances of the parties. 

13. Having summarised the positions of each of the parties and outlined the difficult history of the matter to date, it is axiomatic that there can be no outcome which will satisfy both the father and the mother.

14. Inevitably, one of the parties will fear hard done by as a result of the court’s decision.  This in turn may be a driver for further disputation between the father and the mother.  This is regrettable but, in such circumstances, the court’s focus must remain on the best outcome for [X], which remains my paramount concern. 

The legal principles applicable

1. Part VII of the Family Law Act deals with orders relating to children.  Before making any particular parenting order, the court must regard the best interests of any child concerned as the paramount consideration [Family Law Act section 60CA].

2. The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically in the Act in section 60CC. 

3. Section 60CC creates two classes of considerations which apply to the court’s determination of how a child’s best interests will be determined in proceedings before it – primary considerations and additional considerations.  There are two primary considerations, which are set out in section 60CC(2)(a)(b) namely:

   (a)  the benefit to the child of having a meaningful relationship with both of the child's parents; and

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

4. Prior to recent legislative amendments, these considerations were not formally ranked in regards to one another.  They have been referred to, in a number of decisions of the Family Court, as “twin pillars”, the importance of which depends on the circumstance of the case concerned. 

5. However, as a result of the insertion of section 60CC(2A) into the Act, the court is now directed, in applying the primary considerations “to give greater weight” to the primary consideration relating to the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

6. These primary considerations are stressed through the provisions of section 60B(1) & (2) of the Act, which contain a list of aims and principles, which the court is directed to apply to ensure that a child’s best interests are met through any orders it makes.

7. The list of objects or aims of the legislation is set out in s.60B(1). They are as follows:

   “(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”

1. The principles, which underpin these objects, are set out in s.60B(2) and are as follows:

   “(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”

2. Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations. 

3. Pursuant to section 60CC(3)(m) the court is empowered to have regard to any other fact or circumstance, which it considers relevant.  This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.

4. Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount.  The court’s duty is to deliver individual justice, for the child affected, in every case.[2] 

   [2]  See B v B: Family Law Reform Act 1995 (1997) FLC 92-755

5. In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[3]  As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[4] 

   [3]  See B v B: Family Law Reform Act 1995 (ibid) at 84,220

   [4]  See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J

6. The fundamental task for the court is to determine, bearing in mind all the considerations contained in section 60CC and bearing in mind the goals and principles contained in section 60B, what is the best outcome for any child concerned, both now and in the future.

7. Given the importance, which the applicable legislation places on the co-involvement of parents in their child’s life and development there is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA].

8. The presumption relates to the allocation of parental responsibility, not the allocation of time which a child spends with each of his or her parents. 

9. On 7 February 2012, the parties agreed that they should have equal shared parental responsibility for [X]. I do not propose to revisit this position, in these current proceedings. I am satisfied that the presumption is not rebutted by any of the factors raised in section 61DA.

10. However, the reality of [X]’s familial situation and the tense circumstances of the parties themselves, render it impracticable for there to be either an equal time or substantial and significant time regime, in respect of [X]’s ongoing care. 

11. An order which provides for equal shared parental responsibility requires that the parties to it to consult with one another and make a genuine effort to come to a joint decision about major long-term issues to do with the child or children concerned [section 65DAC].

12. Major long-term issues is defined in section 4 of the Act and includes issues to do with a child’s education; religious and cultural upbringing; the child’s health; the child’s name; and changes to the child’s living arrangements that would make it significantly more difficult for the child concerned to spend time with a parent.

13. Pursuant to section 65DAE, parents do not have to consult on matters, which are not concerned with long term issues, when the child is spending time with one or other of them. 

14. Accordingly, as a result of the joint conferral of parental responsibility upon them, in respect of [X], neither of the parties is free to move, if this will have implications for the nature of [X]’s relationship with the other.  Rather, they are required to consult with one another about any such issue and try their hardest to resolve it consensually.

15. In this context, I accept that the issue of where [X] is to be exchanged between the parties, given his tender years and the logistical considerations arising, is very much a major one for both parties, but particularly Mr Hooper. 

16. I have endeavoured to give the parties every opportunity to discuss the issue and reach some form of compromise, no matter how uneasy.  Such a compromise would be best for [X] and, as it would emanate with the parties themselves, is likely to have the best prospects of permanence and acceptance.  However, it is obvious to me that any such compromise is not possible at the present time.

Conclusions

1. The parties seem to have agreed that no useful purpose will be served by there being a hearing into the contravention application instituted by the father.  In these circumstances, there appears to be no objectively probative evidence that Mr Hooper has exposed [X] to either direct abuse or family violence.  To my mind, what Mr V said in his statement to police is edifying. 

2. Although his statement to police was hedged with all manner of qualifications, no doubt a testament to the calls on his loyalty represented by the truth on one hand and Ms Reeves on the other, he was at least open to the possibility that there was nothing malign in

   
   

   Mr Hooper’s behaviour and he and [X] were playing together. 

3. Ms Reeves is clearly not particularly well disposed to Mr Hooper.  Their relationship together seems to have been brief and unhappy.  They have virtually no experience of co-parenting [X].  Overlaying this very difficult situation are the challenging logistical circumstances arising from the parties having to parent [X] over a significant distance.

4. The emotional consequences surrounding matters such as – the conception of [X]; the mother’s departure from Queensland prior to his birth; and her compulsory return to [G] – are likely to continue to reverberate for Ms Reeves for some significant period of time.  She does not present as an emotionally robust person.  These are fertile grounds in which her suspicion of the father is likely to spread readily and grow exponentially. 

5. It is telling, I think, that the mother has not been able to provide any evidence, apart from her own assertion of the fact, that [X] has been subject to some form of intentional injury, whilst in his father’s care.  Ms Reeves has also abandoned her objection to [X] spending time with his father and is open to Mr Hooper having make-up time with him.

6. It is highly regrettable that it has taken Ms Reeves some nine months to reach this position.  During this period, she has ignored both the strict provisions and the intent of the orders of February 2012. The applicable legislation does not give her an open-ended imprimatur to disregard court orders applicable to her. 

7. A person bound by an order of this court, pertaining to a child, is only entitled to disregard such order, if he or she believes on reasonable grounds that it is necessary to do so to protect the health or safety of the child concerned or for some other objectively reasonable excuse.  [section 70NAE]

8. However, the concept of reasonable excuse is not temporally open ended.  A child may only be withheld, in contravention of an order relating to arrangements for his care, only for a period which is objectively reasonable in terms of the protection of that child’s health and safety. 

9. In this case, I am gravely concerned at the extent of time, during which Ms Reeves has withheld [X] from Mr Hooper. It is only to be anticipated that Mr Hooper will have felt disempowered and bitter in respect of what has happened.

10. However, at this stage, the focus of the court’s deliberations is not on punishing Ms Reeves for any parental failing on her part, rather, it is to ensure the best possible outcome, in challenging circumstances, for [X]. 

11. To this end, at this stage, it seems to me that the main emphasis, for the court, should be ensuring that [X] has the most meaningful level of relationship with his father.  This must mean that the orders of 7 February 2012 are reinstated as soon as is practicable. 

12. I will direct that Mr Hooper resume his time with [X] from 14 June 2013 onwards.  On the basis of Ms N’s earlier assessment, I am satisfied that this will be in [X]’s best interests.

13. [X] remains a child of tender years.  He is not yet four years of age.  At this stage, it is clear that his most significant relationship is with his mother, who has undoubtedly provided the vast majority of his care, since birth. 

14. In those circumstances, I must be careful not to unduly change the circumstances surrounding his care by too rapidly introducing [X] to his father.  I agree that, given the hiatus of approximately nine months, it is likely to be emotionally traumatic for [X] to be separated from his mother for a period of five consecutive nights. 

15. At his age, [X] is not likely to have sufficient cognitive development to understand the passage of time.  It is probable that he has a limited ability to understand the days of the week and to comprehend explanations as to why he has been separated from his mother and as to when he can expect to see her again. 

16. These factors must militate in favour of a cautious approach being taken in respect of the introduction of make-up time.  At the end of day, [X] is not to be emotionally penalised because of the shortcomings in his parents’ relationship.

17. For these reasons, make-up time should only be inaugurated after four visits have been successfully undertaken and thereafter the make-up time should be limited to one further night for a period of four further visits.  I do not regard [X]’s time as a resource to be allocated to the parties, like money in an overdrawn bank account. 

18. The principles set out in section 60B(2)(c) emphasise that parents jointly share duties and responsibilities in respect of the care, welfare and development of their children. The Family Law Act confers rights on children but obligations on their parents.  The High Court has indicated that such parental obligations may last a lifetime. 

19. In this context, it has some attraction to make an order, which would see [X] exchanged between the parties at [M]. Such an outcome would see them having an equal level of inconvenience, as a result of each having to travel a roughly comparable distance and time.  This would truly be a situation of jointly shared parental duties. 

20. However, the central issue is whether it is the best outcome for [X].  It is necessary, as best I can, to attempt to dissect the pros and cons of both [M] and [K], as handover locations, from the perspective of [X]’s best interests. 

21. Ms Reeves has not shown herself to be particularly amendable to the process through which [X] maintains a relationship with his father. In these circumstances, it is likely to be prudent, both for the court and

    
    

    Mr Hooper, to place as few disincentives as possible in the way of

    
    

    Ms Reeves being able to comply with the relevant orders, without feelings of bitterness and resentment intervening excessively.  At the end of the day, unfair as it may seem to Mr Hooper, he has the greater incentive to get to any potential handover location, whereas Ms Reeves does not.

22. I do not dismiss Ms Reeves’ concerns about driving [omitted] between [K] and [M], particularly in the colder months, when dusk is earlier.  Although it might appear to be a sexist assumption, I would anticipate that Mr Hooper would be more easily able to deal with a breakdown situation, than would Ms Reeves. After all, Mr Hooper has work experience as a [omitted]. 

23. In my view, there are few features which distinguish [M] and [K] from one another.  Apart from geographical considerations, they are each equally appropriate as a location for the parties to exchange [X]. 

24. The glaring deficit of utilising [K], as a handover location, is that it will mean that Mr Hooper will have to drive around seven hours, almost certainly following a full day at work. This is a long period of concentration for him and a significant proportion of the drive would be in darkness, particularly in the shorter months.  It will also mean a later bedtime, for [X], on the collection evening. 

25. Against this, the evidence indicates that Mr Hooper agreed to [K] in February of 2012 and was able to make the handover point work for a number of months.  It was as a result of matters extraneous to the handover location, that caused the breakdown of the February 2012 orders. 

26. In my view, this is a significant factor.  The court’s primary focus is not on what is equitable, so far as the parties are concerned, rather it is on what is likely to be in [X]’s best interests.  In my view, it is in [X]’s best interests that the handover proceed as smoothly as possible and

    
    

    Ms Reeves is given as little pretext, as possible, to disregard her obligations arising under the court’s orders. 

27. In my view, the location which best satisfies these considerations is [K].  Mr Hooper has proven that he can get to [K].  I acknowledge that it is now far easier for Ms Reeves to get to [K], from [R], than it previously was from [G].  Accordingly, it will now be significantly easier for her to comply with her obligations under these orders and her duty to facilitate [X]’s relationship with his father, which I am satisfied is central to the child’s ongoing development.

28. As I am at pains to point out, the various potential outcomes in this case, cannot be manipulated, like the surface of a Rubik’s cube, to achieve a perfect result.  I am also well aware that Mr Hooper will perceive that this outcome is unfair to him and rewards what he perceives to be Ms Reeves poor and selfish parenting.  However, for the reasons provided, on balance, I consider it the most workable outcome for [X].

29. At the end of the day, Mr Hooper is likely to move through hell and high water to collect [X] so that he can spend time with him.  Accordingly, in the difficult circumstances of the parties, both historical and contemporaneously, it is important that there be as few impediments, as possible, in the way of Ms Reeves being able to deliver the child, in order to facilitate this central relationship in [X]’s life. 

30. As I have indicated, the responsibilities of parenthood have the potential to last a lifetime.  Certainly, in this case, they are likely to endure until [X] is at least sixteen years of age, which is well over a decade away.  Much may happen, in this period, and the circumstances of the parties are likely to change.  Each of them will have to adjust their personal priorities against their responsibilities to be there for [X]. 

31. Mr Hooper chooses to live in Adelaide, where he has always lived and where he has familial support and vocational opportunities.  That is his choice.  It is an understandable choice.  As a citizen, he is entitled to live where he chooses.

32. Some years ago now, Ms Reeves chose to live in the South East of South Australia.  Initially, she went there in response to a personal crisis, because it was where she had familial support.  At one stage, she wanted to go to live in Townsville.  She abandoned that aspiration largely, I suspect, because she met Mr V. 

33. The court has no authority to compel Ms Reeves to live anywhere in particular.  Its authority is concerned only with [X]’s best interests.  In the present circumstances, Ms Reeves is hardly likely to want to move to Adelaide, unless there is some advantage to her, arising from such a move. 

34. Although it is likely to be unpalatable to consider such an outcome and there are likely to be many logistical difficulties in its path, it is theoretically open to Mr Hooper to live to a location closer to where [X] predominantly lives, in order to facilitate his relationship with the child. 

35. I can understand why he would perceive that this is not a possible or practical outcome but his choice of preferred residence influences the possible outcomes available to the court, in this case, just as much as the mother’s choices of residence does.

36. Given the concerns raised in this case, by both parties, I will make an injunction restraining each of them from physically disciplining [X] or allowing any other person to do so.  I will also make an order restraining the parties from posting comments, on social media internet sites discussing their respective parenting of [X].  The non-denigration order also applies to such internet sites. 

37. It would obviously be helpful, to [X], if his parents communicated more effectively about matters to do with his care, welfare and development.  This is the essence of an order for equal shared parental responsibility.  In these circumstances, I will mandate the use of a communication book, to be exchanged between the parties, at each handover of [X] between them. 

38. The impression I have is that there is not an easy relationship between the two major male figures in [X]’s life at present.  It is not appropriate that [X] be permitted to refer to Mr V as “dad”. 

39. I will make an injunction to emphasise this fact.  In addition, given that Ms Reeves does not have to travel a burdensome distance to [K], it is appropriate that Mr V not attend handovers with her. 

40. As I have indicated to the parties, it is a requirement of an order that confers parental responsibility equally that the parties concerned confer about major issues to do with their child.  In my view, whether a child attends a psychologist is a major issue. 

41. For these reasons, I will restrain Ms Reeves from having [X] psychologically examined or receiving psychological counselling or treatment without Mr Hooper’s written consent.

42. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and fifty-eight (158) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate: 

Date:              12 June 2013