HOOVER & ROSSON
[2019] FCCA 1301
•28 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HOOVER & ROSSON | [2019] FCCA 1301 |
| Catchwords: FAMILY LAW – Interim parenting – best interests of the children – orders made. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC |
| Cases cited: Goode & Goode (2006) FLC 93-286 |
| Applicant: | MR HOOVER |
| Respondent: | MS ROSSON |
| File Number: | PAC 5647 of 2018 |
| Judgment of: | Judge Newbrun |
| Hearing date: | 2 April 2019 |
| Date of Last Submission: | 2 April 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 28 May 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Hamey of Amanda Little & Associates |
| Counsel for the Respondent: | Mr Sayers |
| Solicitors for the Respondent: | Rees Law |
| Solicitors for the Independent Children’s Lawyer: | Mr Naidovski of Sydney West Family Lawyers |
ORDERS PENDING FURTHER ORDER
All previous parenting Orders are discharged.
The mother be permitted to remain living in Queensland with the children.
The children shall spend time with the father on any given weekend, as often as he nominates, from 12 pm to 5 pm on Saturday and Sunday on the provision of seven days’ notice in writing to the mother.
That each party is restrained from denigrating or criticising the other in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of another person denigrating the other.
That except as otherwise ordered or agreed between the parents and if they fail to agree then as follows:
(a)The children shall be collected by the father or his nominee from the mother’s nominee at the commencement of his time with the children at Park A, Town B, Queensland.
(b)The children shall be collected by the mother’s nominee from the father or his nominee at the conclusion of his time with the children at Park A, Town B, Queensland.
That the children shall communicate with the Father via Skype each day at a time nominated by the father.
That the mother and the father shall:
(a)Keep the other parent informed, at all times, of their land line contact telephone number, mobile telephone number and email address;
(b)Keep the other parent informed of the names and addresses of any treating medical or other health practitioners who treat the children and authorise that practitioner to provide the other parent with the information that they are lawfully able to provide about the children;
(c)Inform the other parent, as soon as reasonably practicable, of any medical condition, significant health issue or illness suffered by the child. This Order authorises any treating medical practitioner to release the children’s medical information to the other parent.
That the parents authorise, by this Order, the schools or day care centres attended by the children to give each parent information about the children’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the children (at that parent’s cost).
That during the time the children are with either parent that parent shall:
(a)Respect the privacy of the other parent and not question the children about the personal life of the other parent;
(b)Speak of the other parent respectfully;
(c)Not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.
That the parties shall communicate by way of text message and email in regards to all parenting issues.
That the Respondent mother be permitted to return to the matrimonial home at Street C, Town D to collect the children’s clothing.
That these proceedings be transferred to the Town E Circuit of the Federal Circuit Court, and are listed for first return on 1 July 2019 at 9:30 am.
IT IS NOTED that publication of this judgment under the pseudonym Hoover & Rosson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 5647 of 2018
| MR HOOVER |
Applicant
And
| MS ROSSON |
Respondent
REASONS FOR JUDGMENT
Introduction
This interim hearing relates to the children [X] (“[X]”) born … 2015 and [Y] born … 2018.
The mother has two children from a former relationship with Mr F, [G] born … 2009 and [Y] born … 2011. Mr F lives in Queensland.
The father’s Initiating Application filed 26 November 2018 sought interim and final parenting Orders only in relation to [X] and [Y]. His Amended Initiating Application filed 14 March 2019 sought Orders in relation to all four children both on a final and interim basis.
However, at the commencement of the interim hearing on 2 April 2019, it became apparent that the father had only served Mr F with his Amended Initiating Application on 1 April 2019, together with his Application in a Case filed 14 March 2019 which sought Orders for substituted service of his Amended Initiating Application (“and further documents filed by the father in these proceedings”) upon Mr F.
The Court informed the parties that in the above circumstances, with procedural fairness not having been afforded to Mr F, if the interim hearing was to proceed then the father would have to elect whether he still sought Orders relating to the children [G] and [Y]. After taking instructions, the father’s solicitor informed the Court that the father would not be pressing Orders relating to [G] and [Y], either on an interim or final basis.
Proposals
The father’s interim proposals are set out in his Amended Initiating Application filed 14 March 2019, but again noting that the father seeks no interim (or final) parenting Orders in relation to the children [G] and [Y] as referred to in that application.
The mother’s interim proposals are set out in her Amended Response filed 20 March 2019. There is no specific interim Order sought in that Response that the mother be permitted to maintain the children’s residence in Town E Queensland, however it was common ground at the interim hearing that the mother opposed the father’s interim proposal that she cause the children’s residence to be relocated back to Sydney.
The Independent Children’s Lawyer (“ICL”) sought interim parenting Orders as set out in his case outline; essentially, the ICL supported the father’s proposals that the mother cause the children’s residence to be relocated back to Sydney but on certain conditions.
Material relied upon
The mother relied upon the following documents:
a)Amended Response filed 20 March 2019;
b)Affidavit of Ms Rosson filed 20 March 2019;
c)Notice of Risk filed 10 December 2018;
d)Affidavit of Ms J filed 22 March 2019;
e)Affidavit of Ms K filed 26 March 2019.
f)Case outline of 9 pages.
The father relied upon the following documents:
a)Amended Initiating Application filed 14 March 2019;
b)Affidavit of [X] filed 22 March 2019;
c)Affidavit of Ms L filed 19 March 2019;
d)Application in a Case filed 14 March 2019;
e)Affidavit of [X] filed 14 March 2019;
f)Case outline of 1 April 2019.
The ICL relied upon the following documents:
a)Child Dispute Conference Memorandum to Court dated 20 February 2019.
b)Case outline of 15 pages.
The following exhibits were relied upon:
a)Pink tabbed documents in subpoenaed material from NSW Police (Sleeve 2);
b)Blue tabbed documents in subpoenaed material from the Suburb M Catholic Education Office (Sleeve 3).
Agreed facts unless otherwise stated
The father is aged 38 years. The mother is aged 40 years.
The parties commenced cohabitation in about … 2013 in Brisbane, Queensland.
The paternal grandmother asserts that the father moved to the Region N in Queensland in 2009.
The paternal grandmother asserts that in April 2016 the father spent several months living with her part-time in Suburb O while he went to work in Sydney during the week. She asserts that the mother and the children remained in Queensland. The Court observes that the child [X] was born on … 2015. The paternal grandmother asserts that the father would fly from Brisbane to Sydney on Mondays, go to work in the Sydney CBD, and stay with her on the Monday, Tuesday and Wednesday nights. He would fly home to Brisbane after work on Thursday and then spend the rest of the week with his family whilst working from home each Friday. She asserts that this routine carried on until mid-November 2016.
In about December 2016 the parties moved from Queensland to New South Wales.
The mother asserts that the parties separated under one roof in April 2018. The father asserts that the parties separated under one roof on 1 October 2018.
The mother left the former matrimonial home with the children on 13 November 2018 and travelled with them to Town B, Queensland (near Town E). The mother and the children (including [G] and [Y]) now live with the maternal grandmother.
Consent interim parenting Orders were made by this Court on 11 December 2018 providing, inter alia, for the subject children to spend certain time with the father pending an interim hearing. The father spent time with the children in Town B on five separate occasions following those Orders (three occasions in late December 2018 and two occasions in about mid-February 2019) and prior to his recent Affidavit filed 22 March 2019. The father has also had Skype time with the children since those Orders.
During the parties’ relationship the mother was the primary carer of the children (including [G] and [Y]) and the father worked full-time. The father would assist the mother with the care of the children when he was not at work.
The father asserts that after the child [Y] was born on … 2018, the mother caused her birth certificate to be lodged without having the father’s name on it.
Relevant legal principles
The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode (2006) FLC 93-286.
In Marvel & Marvel [2010] FamCA 240, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:
[120] As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
[122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123] Later, at paragraph 100 their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
Of this, the Full Court in Eaby & Speelman [2015] FamCAFC 104 said at [19]:
As would be immediately apparent, this approach enables the court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.
The Court also refers to the recent decision of the Full Court of the Family Court of Australia in Banks & Banks [2015] FamCAFC 36, especially at paragraphs 46 to 52.
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting Orders.
In deciding whether to make a particular parenting Order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).
The Court refers to relevant legal principle relating to relocation cases set out in Morgan & Miles [2007] FLC 93-343, and refers to Boland J’s reasons and observations in that case, including at [87]- [88], which are important. Nevertheless, the Court is mindful that it must determine what is in the children’s best interests in all the circumstances of the case.
The best interests of the children
Section 60CC considerations
Subsection (2a): the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration
The children have a meaningful relationship with the mother and would benefit from a continuance of those relationships.
It would appear that the older child [X] has a meaningful relationship with the father and would benefit from a continuance of that relationship. Prior to the mother taking the children to Queensland in about mid November 2018 it would appear that the child [Y] had a positive and developing relationship with the father. Following the mother’s move to Queensland the father has spent time with the children in Queensland and has had regular Skype time with them. Based upon all the material before the Court, there is a significant suggestion that the youngest child [Y], since the facilitation of the court’s orders of 11 December 2018, continues to develop her positive relationship with the father, and that she will benefit from having a meaningful relationship with the father.
The father asserts that prior to the mother leaving the former matrimonial home with the subject children on about 13 November 2018 he assisted with the care of the children and spent time with them on a daily basis.
As at 20 March 2019 and since the mother’s move to Town B, Queensland, the father has spent time with the children on some five occasions in Town B pursuant to the Court’s interim Orders of 11 December 2018. He has also had significant Skype time with the children, with the Court not overlooking the problems that the father alleges that he has had with such Skype time (for example, he alleges that although the interim Orders provided for daily Skype time, the mother has not called him on five days since those Orders were made on 11 December 2018). In the mother’s Affidavit filed 20 March 2019 she asserts that the children are Skyping the father every day.
The Court recognises that the subject children are particularly young and that the regular time with the father is important in terms of the maintenance and enhancement of their meaningful relationship with the father.
The mother asserts that the children should have a meaningful relationship with the father.
The Court observes that the paternal grandmother stated in her Affidavit that in 2016 that the father managed to travel between Sydney and Brisbane (noting that the mother, [X], and [G] and [Y] were living in Brisbane at this time) on a weekly basis to spend time with the children between about April 2016 and mid-November 2016. It would appear that the child [X]’s meaningful relationship with the father was not detrimentally affected by this arrangement over this period, and there is no significant suggestion, that at least for this period from about April 2016 until mid November 2016, the father could not afford such travel.
Between 11 December 2018 and 20 March 2019 the father travelled to Town B to spend time with the children on five occasions, averaging an approximate regularity of at least one visit each month to Queensland.
The mother proposes that the father spend time with the children on any given weekend as often as he chooses, in Town B. Historically, between about April 2016 and mid-November 2016, the father travelled weekly to Brisbane from Sydney to spend time with the eldest child. The father adduces no significant evidence relating to his financial circumstances; he does not assert that he is financially incapable of travelling to Queensland regularly on an interim basis.
On an interim basis (and in this regard, see the court’s discussion below relating to these proceedings being transferred to Town E with final parenting hearings occurring in that Court in December 2019), should the mother remain living with the children in Town B, with the father spending time with the children in Town B on a regular basis (whether, for example, on a fortnightly basis, or at least on a monthly basis), together with regular Skype time (the mother proposes daily Skype time which she asserts has been occurring since the court’s interim orders of 11 December 2018, with the court not overlooking the father’s allegations, inter alia, that Skype time has had its difficulties), there is a real prospect that the father’s meaningful relationship with the older child [X] can be maintained, and that he can continue to develop his relationship with the younger child [Y].
The court recognises that with the mother and the children living in Queensland and the father living in Sydney, such above time does not provide the optimum relationship between the children and the father, however what the legislation aspires to promote is a meaningful relationship, not an optimal relationship; see, for example, Kay J in Godfrey & Sanders [2007] FamCA 102 at 36.
Subsection (2b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The mother asserts significant family violence allegedly perpetrated by the father against her during the relationship.
The father denies that there has been any family violence during the relationship. He refers to them having had the usual disagreements that couples have when working, running a household and raising children.
The mother alleges, inter alia, that the parties’ relationship began to deteriorate by the end of 2016, to the point that the father was regularly becoming abusive, calling the mother names and yelling at her. She alleges that this abuse increased greatly from the birth of [Y] in … 2018. The mother alleges that during occasions of verbal abuse from the father towards her, she cried and felt trapped and scared.
The mother alleges that by … 2018, when she was eight months pregnant, the father’s level of abuse became so severe and regular that she left the home with the three children, travelled to the maternal grandmother’s home at Town B, Queensland, and stayed there for one week. The mother alleges that the father’s abuse at this time was impacting on her mental health and her ability to care for the children, and that she was a nervous wreck.
The mother alleges that after the child [Y] was born the father forced her to return to work two months after this child’s birth. The mother alleges that she did not want to return to work, wanting to remain at home and look after [Y]. She alleges that the father refused to allow her to breastfeed because she had to go out and work.
The mother alleges that in early October 2018 the father objected to her going out one evening socially. She alleges that the following morning the father told her that she was no longer allowed to drive either of his two cars because she was not contributing to the car servicing.
The mother alleges that in late October 2018 the child [Y] was being difficult about getting into the shower. The mother alleges that the father came up behind [Y] and hit him across the back of the head. The mother alleges that after this incident she was very distraught.
The mother alleges in early November 2018 the father yelled at her in front of the child [Y] and [G].
The mother alleges that in early November 2018, when the father was holding the child [Y], he verbally threatened the mother if the mother were to take the children away from him.
Exhibit A, being a police entry for 8 November 2018 indicates that the mother attended upon the police at that time. She alleged that she was concerned about the father’s reaction when she finally moved out with the children. She alleged that there had been other verbal arguments between the parties but the police had not been contacted. The police notes record that the relationship between the parties had been “rocky” throughout “the four years”.
The mother alleges that the next day the child [Y] had a psychologist appointment for his autism. She then attended Brighter Futures in relation to alleged abuse of the father and his treatment of [Y]. The mother alleges that by this time she had made up her mind that she needed to remove the children and herself from the situation, so that they were no longer exposed to domestic violence. The mother alleges that she could not take it any longer. She arranged flights and left Sydney on 13 November 2018. She alleges that she did not tell the father where she was because she was fearful that he would find her and either bring her back or abuse her further.
On 13 November 2018 the mother sent a text message to the father asserting that she had gone to a woman’s refuge for a while “to heal and recover from the months of abuse and intimidation from you”. The father asserts that the mother did not stay at such refuge.
During the father’s recent time with the children in Town B, the maternal grandparents have attended all changeovers.
The mother asserts that the youngest child has never spent a night away from her care since she was born.
The Court takes into account the mother’s allegations of verbal abuse perpetrated against her by the father (denied by the father), the alleged adverse effects upon her of such alleged abuse (including alleged physical effects and inability to effectively parent the children), and the alleged reduction in stress now that she is not having to deal with the father on a daily basis. (The Court recognises that the children [G] and [Y] are not children of the parties; however, the mother is the primary carer of those children, who live and have a close relationship with the subject children [Y] and [X]). The Court also takes into account the mother’s allegations as to the adverse effects upon some of the children in relation to being exposed to alleged verbal abuse by the father, including the statements of the children [G] and [Y] to Ms K relating to the father.
Whilst the mother has facilitated the children spending unsupervised time with the father post separation in Queensland, she asserts that her emotional state and related parenting capacity has been significantly improved by her move to Queensland (for example, see paragraphs 34 and 35 of her Affidavit filed 20 March 2019, including the reference to the report dated 21 March 2019 of her treating psychologist, Ms J). The above matters are further discussed below under subsection (3)(m).
On an interim basis, taking into account the above discussed matters, and acting cautiously and conservatively, there should be no unacceptable risk of harm posed to the children in spending time with the father as proposed by the mother (that is, time with the father on any given weekend, as often as he nominates, from 12 noon to 5 PM on Saturday and Sunday on the provision of seven days’ notice in writing to the mother, with changeovers in Town B Queensland, together with daily Skype communication).
Section 60CC(3) - additional considerations
(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
Not applicable; the subject children, [X] and [Y], are of tender age.
Whilst recognising that the children [G] and [Y] are not children of the parties’ relationship, nevertheless they live with the mother and the subject children and have a close relationship with them, and it is convenient to deal with their alleged views at this point. The child [G] aged nine years and [Y] aged seven years have allegedly told their treating psychologist Ms K that they do not want to see the father, alleging that the father swears at the mother and themselves and that he has been physically abusive towards them. The Court takes into account these allegations, whilst observing that the report of Ms K is untested.
(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
The children [X], [G] and [Y] have had a positive relationship with the paternal grandmother, and it appears that the paternal grandmother was enjoying a developing relationship with the child [Y].
The children have a close relationship with the children [G] and [Y].
The children, together with the children [G] and [Y], have been living with the mother at the residence of the maternal grandmother in Town B, Queensland.
(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about m[X]or long-term issues in relation to the child; and to spend time with the child; and to communicate with the child
The mother asserts that she has taken such opportunities.
The father asserts that he has taken such opportunities, noting that there is a dispute between the parties as to the extent to which the father assisted the mother in the day-to-day care of the children during the relationship.
(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
The parties assert that they have each fulfilled such obligations, whilst noting the mother’s allegations that the father has provided little financial support for the children since November 2018. The mother alleges that the father has a debt with the Child Support Agency totalling about $3,458 in relation to the child [X].
(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The Court refers to its discussion above under the meaningful relationship primary consideration.
(e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
This additional consideration is discussed below under subsection (3)(m).
(f) The capacity of: (i) each of the child's parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
The mother would appear to have the capacity to provide for such needs. The father told the family consultant that the mother is an excellent mother “but she’s very angry at me”.
Subject to the Court’s discussion above under the need to protect primary consideration, the father would also appear to have such capacities.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The father refers to being diagnosed with depression in 2008 following a certain surgery that he had undergone. He was prescribed antidepressant medication, which was discontinued in 2011. He alleges that in … 2015 he was the subject of extreme bullying at his place of employment, following which he was prescribed antidepressants again. He asserts that since about December 2016 he has maintained preventative care with a health practitioner, and that he attended on a psychologist from January to August 2017. He asserts that he is currently taking antidepressant medication as prescribed.
As to the mother’s mental health, the Court refers to its discussion below under subsection (3)(m).
As to the children’s health, the child [X] has been experiencing significant behavioural problems in Sydney, which the mother alleges have abated to some not insignificant extent since residing in Queensland. In Queensland he has been referred by Ms K, psychologist, to Dr P (child and adolescent psychiatrist) for assessment of possible autism spectrum disorder.
The children of the mother, [G] and [Y], have health issues. In particular, the child [G] has been treated for anxiety and urinary problems. The child [Y] has had a diagnosis of autism spectrum disorder level II, attention deficit hyperactivity disorder (“ADHD”) and oppositional defiance disorder (“ODD”). The mother asserts that this child [Y] has socialisation issues and bladder control issues. The mother asserts that [Y] has behavioural problems which have lessened since attending school in Queensland.
(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right
Not applicable.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
Subject to the Court’s discussion above under the need to protect primary consideration, the parent’s attitude to the children and their responsibilities of parenthood have been satisfactory.
(j) Any family violence involving the child or a member of the child's family
The Court refers to its discussion above under the need to protect primary consideration.
(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the court in, or in proceedings for, the order; any other relevant matter
Not applicable.
(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
These are interim proceedings.
m) Any other fact or circumstance that the Court thinks is relevant
It is appropriate at this point to consider the advantages and disadvantages of the mother’s relocation to Town B, Queensland.
The mother maintains that the subject children and the children [G] and [Y] have become well settled in Queensland, and (apart from the youngest child) are receiving treatment for their specific health and behavioural issues in Queensland. She contends that the children have been removed from alleged abusive behaviour by the father in Sydney. She alleges that some of the children’s adverse behavioural issues have lessened since relocating to Queensland. She submits that it would be disruptive for the children to relocate back to Sydney. The Court gives some weight to these matters, as further discussed immediately below.
The mother asserts that the child [X] has settled in well to his new living environment at Town B. This child’s 2019 kindergarten report states that this child is progressing very well at kindergarten and has settled well into routines now that he is in Week 7 of Term 1. That report of the kindergarten is dated 11 March 2019.
The mother asserts that the child [G] is in Year 5. The mother has enrolled her in the local Town B State School, where she has made friends and is settled. The mother asserts that this child has attended the Clinic in Brisbane to help with her urinary problems. The mother asserts that this clinic has a specific program which resulted in some improvement. She asserts that there is no similar program offered in Sydney. The mother would like this child to attend this clinic again.
In relation to the child [Y], the mother alleges that this child also has difficulty in controlling his bladder. When he becomes anxious his bladder control deteriorates. The mother alleges that as the abuse at home increased throughout 2018, this child became increasingly angry and anxious and could not cope. His bladder issues worsened, according to the mother. The mother asserts that since attending the above state school, this child’s behaviours have lessened and there have been no calls from the school.
(The father himself asserts that the child [Y] has had behavioural problems, including at home and at school. He referred to an example in early August 2018 when he alleges that the child [Y] did not take his Ritalin medication and experienced serious adverse behavioural issues one day at school. The father refers to [Y]’s former primary school, School Q, making a mandatory FACS report in early October 2018 because of his behaviour at school.)
The mother alleges that the father’s abusive behaviour has had a significant impact on the three older children. She alleges that the children [G] and [Y] now have high anxiety levels and she has to stay with them until they go to sleep at night. The mother refers to [G] and [Y] recently receiving treatment from the psychologist Ms K.
The Court observes that the psychological report of Ms K relating to the mother’s children [G] and [Y], dated 20 March 2019, indicates that the child [G] was being treated for anxiety and possible autism spectrum disorder, and the child [Y] already has a diagnosis of autism spectrum disorder level II, ADHD and ODD. The psychologist states that these children have special needs and they both had difficulties with mood variants. The psychologist states that, in summary, from observations and interviews with both these children, they present with features that are consistent with neurodevelopment conditions, significant anxiety and depressive symptoms on a background of parental discord and family disruption. The mother states that the child [G] is to have testing for autism, ADD and ODD. Ms K states that future appointments have been organised for both [G] and [Y].
The mother alleges that the child [G] has told her on a weekly basis that she does not want to see the father and she has a fear of living with him. Psychologist Ms K asserts in her report that both [G] and [Y] have stated that they do not want to visit and see the father. They asserted to Ms K that the father was physically abusive of the child [Y] in particular. The Court takes into account the contents of the report of Ms K in relation to the children [G] and [Y], whilst acknowledging that this report remains untested.
The mother alleges that, as the father’s abuse increased through the year, the child [X] began hitting his head on the floor whenever he became upset, to the point that he caused bruising. The mother alleges that this child is very angry. She alleges that he hits and bites the other children and the mother. The mother alleges that his behaviour became increasingly concerning in 2018. The mother alleges that this child’s behaviours have lessened since moving to Town B, and that he is now toilet trained and sleeps in his own bed. He is enrolled in the local children’s centre and his teacher, according to the mother, wrote a brief report dated 11 March 2019 stating that this child has responded well and is progressing. The mother asserts that this child is also seeing a psychologist, Ms K. The mother asserts that both the psychologist Ms K and psychiatrist Dr P have recommended that this child attend speech therapy, occupational therapy and further sessions with Ms K to manage his behaviours and other needs.
Ms K’s report relating to the child [X] is annexed to the mother’s Affidavit dated 19 February 2019. The report states, inter alia, that the child [X] was referred to the psychologist for behaviour problems. It states that this child has attended five clinical assessment appointments. It states that although the assessment is completed, a report is yet to be finalised. It states that given the evidence that Ms K has obtained, she is recommending a referral to a child and adolescent psychiatrist. She states that it appears that this child presents with significant features and characteristics of a person with autism spectrum disorder. She states that in referring this child to the psychiatrist, the psychiatrist will be able to complete his own clinical assessment and give advice on management. She states that it is extremely important that this process takes place. Otherwise, if left untreated, this child will be at risk that he may not develop effective social skills, and he may not learn to talk or behave appropriately with others at home or within the community. She states that in addition to this, it will be necessary to give education and supports to his parents. The Court takes into account the contents of this report whilst acknowledging that it remains untested.
The mother contends, by reason of alleged family violence perpetrated against her during the relationship, that she has suffered emotional harm and her parenting capacity for the children and [G] and [Y] has been detrimentally affected.She contends that the relocation to Queensland, including her own psychological treatment, have significantly assisted her parenting capacity. She contends that having to relocate with the children back to Sydney would negatively impact her mental state and diminish her parenting capacity. She contends that she has adduced supportive evidence from her treating psychologist in Queensland in this context. The mother has already had at least five sessions of cognitive behaviour therapy. The mother asserts that the cost of engaging psychologist treatment in Town D or Suburb R would be costlier. The Court gives significant weight to these matters, as further discussed immediately below.
The mother alleges that the father’s abusive behaviour has affected her greatly. She alleges that she has been unable to sleep and is frequently nauseous. She alleges that the father has made her feel worthless and stupid. She alleges that she has gained weight from comfort eating. She alleges that she is constantly anxious and unable to relax. She alleges that her chest tightens at the thought of having to speak to the father. She alleges that she is unable to parent the children effectively in this state.
(The Court notes that the father himself refers to the mother’s mental health. He refers to her diagnosis with depression prior to the start of the parties’ relationship in … 2012. He asserts that the mother had told him she was seeing a psychologist in Brisbane prior to the parties meeting in … 2012. He asserts that the mother was prescribed antidepressant medication at that time, which was increased after the mother gave birth to [X] in … 2015. The father asserts that the mother has not seen a psychologist since the parties began living together in 2013. The father asserts that the mother continued to ingest antidepressant medication, lowering her dosage in about March 2018. The father asserts that from about this time the mother began having regular unprovoked outbursts of aggression and agitation, anxiety, short temperedness and extreme fatigue, which continued after the birth of [Y] in … 2018. The father asserts that in … 2018 the mother’s cousin died, and the mother was devastated. The father asserts that the mother had difficulties managing the behaviour of [G] and [Y] in September 2018.)
The mother alleges that her stress has reduced now that she is not in a situation where she has to deal with the father on a daily basis. She refers to attending upon a psychologist in Town E, Ms J, since January 2019. This psychologist affirmed an Affidavit on 22 March 2019; in it, her report dated 21 March 2019 states:
[The mother] has attended 5 sessions of cognitive behaviour therapy as at 21/3/2019. [The mother] reported leaving Sydney with her children due to domestic violence issues. During her sessions she continues to exhibit high levels of distress in relation to concerns of the possibility of having to return to Sydney, and reports experiencing ongoing difficulties with her estranged de facto partner. She reports being very concerned about her ability to cope should she be required to return to Sydney due to her reported concerns of her estranged de facto partner’s behaviours. Should [the mother] be required to return to Sydney it is likely to negatively impact her mental state.
The Court takes into account the above report of psychologist Ms J, whilst acknowledging that this report remains untested.
The Court refers to, and takes into account, the mother’s allegations under the headings in the mother’s affidavit “Difficulties in returning to Sydney” and “Benefits of remaining in Town B” and would attach some weight to these matters. Certain of these allegations, and the particular weight to be attached to them, are further discussed and particularised immediately below.
The mother’s financial position would be particularly unsatisfactory if she was to be required to relocate the children’s residence to Sydney. She asserts and alleges that her living costs in Town B amount to $1,210 without paying any rent. Her income, she alleges, totals $945. She asserts that the shortfall is made up by contributions from her mother. She asserts that she does not have any spare money to pay rent and provide for the needs of the children. She refers to the father’s offer to permit the mother to reside in the former family home at Town D, on an exclusive occupancy basis, but states that the lease on this property expires in June 2019. The father has proposed to contribute $200 per week towards the rent of the above former family home (with such $200 per week contribution to continue if the mother was to move to other rental premises), with the total rent being $650 per week. Accordingly, the mother will be required to pay the balance of $450 per week. The mother asserts that she presently lives with the maternal grandmother and stepfather rent-free. She asserts that the groceries and other general living expenses are significantly cheaper in Town B than they are in Sydney. She asserts that the cost of daycare in Town B is significantly cheaper than in Sydney. The mother asserts she has a credit card debt of $11,500, and $7 in available funds. The mother asserts that she does not have a motor vehicle in Sydney (she asserts that she has a car at her disposal to take the children to school and medical appointments in Town B). She asserts that the father has a debt with the Child Support Agency totalling $3,458 for the child [X]. The Court would attach significant weight to these matters.
The mother asserts and alleges that if she is required to relocate the children’s residence to Sydney, by reference to her above anticipated unsatisfactory financial position in Sydney, she will be required to work at least four days per week if not full-time, which is not her preference, as she wishes to care for the child [Y] at home until she can go to kindergarten or daycare when she is older. Further, the mother asserts that if she were required to work on this increased basis, she would not be able to support the children [Y] and [G] with their behaviour and urinary issues. She asserts that the child [Y]’s autism would not get the attention that it needs to be managed if she was working at this greater level. Further, she asserts that the child [X]’s medical appointments and needs are also time-consuming and will require her to be at home to support him. Otherwise, she is concerned that his autism will worsen. The Court would attach significant weight to these matters.
The mother asserts that she does not have any support networks in Sydney. She states that her family and friends live in south-east Queensland. She refers to having the support of the maternal grandmother and stepfather, who are both retired and available to assist financially and with their time whenever the mother needs them. The mother stated she does not have that support in Sydney. The mother refers to her two sisters who live in Brisbane. The Court would attach significant weight to these matters.
The father asserts that by reason of the significant distance between Sydney and Town B, Queensland, he is significantly impeded in maintaining and enhancing his meaningful relationship with the children.
It appears to be common ground that the father has, as at 20 March 2019 and since the recent interim Orders of the Court of 11 December 2019, spent time with the children on five occasions in Town B. The father refers to significant Skype time between himself and the children since those interim Orders. However, he asserts that Skype communication with the children has become increasingly difficult; inter alia, he asserts that the mother has not called him on Skype on five occasions. He refers to the mother having been late for 64 out of 97 Skype calls. The father asserts that he has only been able to see the child [Y] on about one third of the Skype calls.
(As to the father’s financial circumstances, the mother asserts that the father’s annual income is $128,000, such latter figure having been disclosed to the Court on 11 December 2018 (the father refers to being employed as a professional with a company), and that he owns two cars, probably twenty guitars and other musical equipment, has recently purchased an Xbox console for $500, and pays for costumes and merchandise for the band that he performs with on weekends. The father does not give significant evidence relating to his financial circumstances in his Affidavit, or any significant financial difficulties that he faces due to travelling to Town B and staying there to spend time with the children. The Court notes that the father offered to pay the mother $200 per week as a contribution towards rent if she is ordered to relocate back to Sydney with the children. Again, the Court observes that the paternal grandmother stated in her Affidavit that in 2016 that the father managed to travel between Sydney and Brisbane on a weekly basis to spend time with the children for a period of some months (between about April 2016 and mid-November 2016). Nevertheless the Court recognizes that, on a long term basis, regular travel to Town B and related costs for the father, particularly during school term times, may well not be financially sustainable for him.)
Again, on an interim basis, should the mother remain living with the children in Town B, with the father spending time with the children in Town B on a regular basis, for example on a fortnightly basis, or at least on a monthly basis, together with regular Skype time (the mother proposes daily Skype time), there is a real prospect that the father’s meaningful relationship with the older child can be maintained, and that he can continue to develop a positive and meaningful relationship with the younger child; in this context, the court refers to its discussion above under the meaningful relationship primary consideration.
The father asserts that the mother, in about mid-October 2018, enrolled [G] and [Y] in school at School T, near their home. He alleges that the mother told him that that school has excellent resources for autistic children.
The father asserts that the subject children would be able to be re-enrolled at their former daycare at Suburb U. The father asserts that the paternal grandmother is a customer service officer (see the Affidavit of the paternal grandmother) who is available and able to assist with the children as and when required. The paternal grandmother states that she works part-time as a customer service officer. She does not set out her working hours.
The father asserts that he is extremely concerned for the children’s safety in the mother’s care, due to the mother’s mental health issues and ability to care for all of the children. On the other hand, he told the family consultant that the mother was an excellent mother.
The Court has considered all the father’s concerns in relation to the mother being able to remain living with the children in Queensland on an interim basis.
On balance, at this interim stage, the Court is of the view that the advantages of the mother being permitted to remain living in Queensland with the children outweigh the disadvantages to the father (as contended by him).
Evaluating all the above discussed considerations under section 60CC of the Act, it will be in the best interests of the children to permit the mother, on an interim basis, to remain living with the children in Queensland.
Neither party sought an express Order for equal shared parental responsibility at this interim stage. Noting the tender ages of the subject children, it will not be in the best interests of them to make an express Order for equal shared parental responsibility at this interim stage.
The mother sought an Order that these proceedings be transferred to the Town E Circuit of this Court at the conclusion of the interim hearing. In the view of the Court, the proceedings should be so transferred. With the mother being permitted to remain living with the children in Queensland, and noting her financial circumstances, as discussed above, it would be inconvenient and impose a significant financial burden upon her to have to travel to Sydney with the children for both family report interviews and a final hearing. The proceedings can be listed before the Town E Circuit of this Court on 1 July 2019, and the father can seek to have the proceedings listed for final hearing in the December 2019 sittings of that Court, with a Family Report issued prior to December 2019. It is respectfully suggested that an ICL might be appointed by the Court sitting in Town E.
In summary, and again evaluating all the above discussed considerations under section 60CC of the Act, it will be in the best interests of the children to make the following interim parenting Orders:
(1)All previous parenting Orders are discharged.
(2)The mother be permitted to remain living in Queensland with the children.
(3)The children shall spend time with the father on any given weekend, as often as he nominates, from 12 pm to 5 pm on Saturday and Sunday on the provision of seven days’ notice in writing to the mother.
(4)That each party is restrained from denigrating or criticising the other in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of another person denigrating the other.
(5)That except as otherwise ordered or agreed between the parents and if they fail to agree then as follows:
(a)The children shall be collected by the father or his nominee from the mother’s nominee at the commencement of his time with the children at Park A, Town B, Queensland.
(b)The children shall be collected by the mother’s nominee from the father or his nominee at the conclusion of his time with the children at Park A, Town B Queensland.
(6)That the children shall communicate with the Father via Skype each day at a time nominated by the father.
(7)That the mother and the father shall:
(a)Keep the other parent informed, at all times, of their land line contact telephone number, mobile telephone number and email address;
(b)Keep the other parent informed of the names and addresses of any treating medical or other health practitioners who treat the children and authorise that practitioner to provide the other parent with the information that they are lawfully able to provide about the children;
(c)Inform the other parent, as soon as reasonably practicable, of any medical condition, significant health issue or illness suffered by the child. This Order authorises any treating medical practitioner to release the children’s medical information to the other parent.
(8)That the parents authorise, by this Order, the schools or day care centres attended by the children to give each parent information about the children’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the children (at that parent’s cost).
(9)That during the time the children are with either parent that parent shall:
(a)Respect the privacy of the other parent and not question the children about the personal life of the other parent;
(b)Speak of the other parent respectfully;
(c)Not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.
(10)That the parties shall communicate by way of text message and email in regards to all parenting issues.
(11)That the Respondent mother be permitted to return to the matrimonial home at Street C, Town D to collect the children’s clothing.
(12)That these proceedings be transferred to the Town E Circuit of the Federal Circuit Court and are listed for first return on 1 July 2019 at 9:30 am.
I certify that the preceding one hundred and twelve (112) paragraphs are a true copy of the reasons for judgment of Judge Newbrun
Date: 28 May 2019
Key Legal Topics
Areas of Law
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Civil Procedure
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Insolvency
Legal Concepts
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Abuse of Process
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Appeal
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Costs
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Res Judicata
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Stay of Proceedings
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