HORNER & HORNER
[2017] FamCA 779
•21 September 2017
FAMILY COURT OF AUSTRALIA
| HORNER & HORNER | [2017] FamCA 779 |
| FAMILY LAW – CHILDREN – Interim Orders – Where father initially sought child to move into his primary care and spend time with mother – where mother sought child live with her and spend no time with father until child was 12 years of age – where both parties’ positions substantially changed during the trial – where issues needing determination markedly narrowed – where all parties conceded that trial could not conclude with final orders – where father has only spent limited time with child since separation - where parties agreed on interim orders pending delivery of judgment – where interim orders made for child to live with mother and spend increasing amounts of time with father culminating in overnight time – where mother to have sole parental responsibility – where s65L consultant to supervise changeovers - where child is prohibited from travelling outside of Australia at this point in time - where matter is to be relisted in July 2018. |
| Family Law Act 1975 (Cth) ss 4, 4A, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC Evidence Act 1995 (Cth) s 140 |
| Mauldera & Orbel (2014) FLC 93-602 Wacando v The Commonwealth (1981) 148 CLR 1 S v Australian Crime Commission (2005) 144 FCR 431 |
| APPLICANT: | Mr Horner |
| RESPONDENT: | Ms Horner |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Bassano |
| FILE NUMBER: | CSC | 33 | of | 2016 |
| DATE DELIVERED: | 21September 2017 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Townsville |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 7, 8, 9 and 10 August 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr George |
| SOLICITORS FOR THE APPLICANT: | KLM Solicitors |
| THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER : | Ms McMillian QC |
| SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: | Bassano Law |
Orders
UNTIL FURTHER ORDER IT IS ORDERED THAT:
Discharge of prior orders
Save for the following orders, all prior parenting Orders are forthwith discharged:
(a)Orders 1, 6 and 7 of the Orders of Judge Purdon-Sully made 15 March 2016 (appointing and Independent Children's Lawyer, and providing for restraint on international travel and the placing of B, born … 2014 (“the child”) on the Airport Watch List);
(b)Order 3(a) of the Orders of the Honourable Justice Tree made 5 July 2017 (dealing with the appointment of the s 65L supervisor); and
(c)The Orders of the Honourable Justice Tree made 10 August 2017 (providing for the child to spend unsupervised time with the father).
Parental responsibility
The mother have sole parental responsibility for the child.
Child’s living arrangements
The child is to live with the mother.
Child’s time with father and his family
The child is to spend time with the father as follows:
(a)Until 25 and 26 October 2017, on each alternate Wednesday and Thursday as provided for by Order 1 of the Orders of 10 August 2017;
(b)Commencing on 25 and 26 October 2017, and conditional upon the father having spent at least four fortnightly times with the child as provided for in Order 1 of the Orders made 10 August 2017, then from 11:00am until 4:00pm on each of those days, and on the Wednesday and Thursday of each alternate week thereafter;
(c)Commencing on 10 and 11 January 2018, and conditional upon the father having spent at least four fortnightly times with the child as stated in Order 4(b) hereof, then from 9:00am until 5:00pm on each of those days, and on the Wednesday and Thursday of each alternate week thereafter;
(d)Commencing on 25 April 2018, and conditional upon the father having spent at least eight fortnightly times with the child pursuant to Order 4(c) hereof, then from 9:00am on 25 April 2018 until 4:00pm on 26 April 2018, and from 9:00am Wednesday until 5:00pm Thursday of each alternate week thereafter.
If the child is not otherwise due to spend time with the father on the child’s birthday, then he is to spend time with the father on that day from 9:00am until 2:00pm.
The child is to spend time with the father on Boxing Day from 9:00am until 5:00pm.
For the purposes of the child spending time with the father pursuant to these Orders, the child’s time with the father is to occur in C Town unless otherwise stated in these Orders.
The father is to bear his cost of travel to and from C Town.
Changeovers are to occur with the assistance of the s 65L consultant or her nominee, at the Family Court of Australia’s Registry in C Town, or if the day is on a weekend, at a place of her nomination, unless otherwise provided for in these orders.
In the event the father does not intend to travel to C Town to spend time with the child pursuant to these orders, he is to provide to the mother, the Independent Children's Lawyer and the s 65 L consultant at least 7 days notification of his inability to travel to spend time with the child.
Any member of the child’s paternal family other than the father, may spend time with the child other than as provided for in these orders, at times and places, as may be agreed between them and the mother from time to time.
Between 1 February 2018 and 1 June 2018, at the mother’s cost, the child is to travel to Brisbane with the mother for a period of up to six consecutive nights, and the child is to spend time with the father at least from 9:00am until 5:00pm on 4 occasions within that period, with such time being on at least two consecutive days. Changeovers for this Order are to be supervised by D Group, Brisbane or such other service recommended by the s 65L consultant, with the mother and father to equally share the costs of any such service.
For the purposes of Order 12 the mother is to provide the father and the Independent Children's Lawyer with 28 days’ notice of her intention to travel to Brisbane with the child and within 7 days of the proposed date for travel the mother is to send the father and the Independent Children's Lawyer a copy of her and the child’s itinerary.
Father’s communication with child
The father is permitted to communicate with the child by Skype at 5:00pm on Tuesday in any week which he does not spend time with the child. As to each such Skype call:
(a)The father is to initiate the calls;
(b)The mother is to be ready to receive the calls;
(c)That call is to last no longer than 15 minutes;
(d)In the event that the father commences to discuss this litigation, any of the child’s living arrangements, any of the past history of this matter, or agitate for any direct communication with the mother, the mother is at liberty to disconnect the Skype call.
Should the child wish to speak with the father other than at times provided for in these orders, then the mother will permit him to do so, and forthwith initiate either a telephone or Skype call to the father.
Parties’ communication and provision of information
The parents are to communicate with each other via phone only about the child and only in the event of an emergency involving the child.
The mother is at liberty to provide information to the father via the “Our Family Wizard” program, and both parties are to forthwith undertake all steps necessary to be able to access that communication facility.
The parties are to keep each other informed of any change of email address or telephone contact details as soon as is reasonably practicable after any change to them.
The mother shall authorise all educational and healthcare providers to release to the father any information and documents relating to the child upon request by the father, and subject to the person making the request making payment of any costs associated therewith.
The mother shall forthwith advise the father of the names and addresses of all educational and healthcare providers upon whom the child attends.
Other Orders
Neither party will use physical discipline upon the child.
Each of the parties have leave to provide copies of the Family Report and psychiatric assessments undertaken for the purpose of these proceedings to their treating mental health professionals.
Both parties are to:
(a)Forthwith enrol in, and use their best endeavours to promptly complete, a post-separation parenting orders program;
(b)Provide the program provider with a copy of the Family Report, and their psychiatric assessment undertaken for the purposes of these proceedings; and
(c)provide the other party and the Independent Children's Lawyer with a copy of a certificate demonstrating the completion of the course.
Future Listing
This matter be listed for mention only on a date to be advised to the parties in July 2018, or soon thereafter as the matter may be dealt with.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Horner & Horner has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT TOWNSVILLE |
FILE NUMBER: CSC33/2016
| Mr Horner |
Applicant
And
| Ms Horner |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
These proceeding relate to the only child of the parties’ marriage, being B, born in 2014 and hence presently 3 years of age (“the child”).
At the commencement of the trial, the parties’ proposals were for wildly different final parenting orders. For his part, Mr Horner (“the father”) was seeking final orders that the child move into his primary care, and initially spend nine days each month in the care of Ms Horner (“the mother”) until he commenced prep, from which time he would only spend block holiday time with her (albeit with some provision for the mother to spend additional time with the child in Brisbane). He justified those orders on the basis that they were the only way the child would ever have a meaningful relationship with him.
For her part, the mother proposed final orders that she have sole parental responsibility for the child, who would live with her and neither spend time nor communicate with the father until at least 12 years of age, save that the father could provide him with Christmas and birthday gifts and cards. She justified those orders on the basis that the father posed such a risk of emotional harm, principally to herself but also to the child, that requiring the child to spend time or communicate with the father would so adversely affect her parenting capacity that it was not in the child’s best interests.
However as the trial progressed, the parties’ positions substantially changed. For his part, the father said, for reasons which I shall shortly explain, that in fact the trial could not conclude with final orders, but only interim orders, and as to that, he proposed that the child continue living with the mother, but spend increasing amounts of time with him, culminating in overnight time on and from 27 January 2018. He also proposed interim orders for equal shared parental responsibility, and Skype communication between himself and the child.
On the other hand the mother also changed her position markedly. Ultimately she sought a combination of final and interim orders. The final orders which she sought (it seems) were that the child live with her. On the other hand she contemplated that the child would spend time with the father in C Town on an increasing basis, culminating in overnight time commencing on and from 29 May 2018. She sought interim orders for sole parental responsibility, and proposed that there be no orders for Skype communication.
For her part the Independent Children's Lawyer adopted a position more aligned to that of the father, save that some aspects of the mother’s proposal were adopted by her, for instance that there should be, in the interim period contemplated by the orders, sole parental responsibility awarded to the mother, and there should be no Skype communication during that time.
All parties seemed to contemplate that the matter would come back for some species of further Court management in about June 2018. Further, the parties were able to agree upon the orders for the father spending time with the child between the conclusion of the hearing before me and the delivery of these reasons. They saw the father spending unsupervised time with the child each alternate week on two consecutive days for four hours each day. He was to fly from his home in Brisbane to C Town to enable that time to occur.
The fact that all parties conceded that the trial could not produce final orders inevitably meant that not only did the trial take much shorter than had been anticipated, but also that the issues between the parties needing determination markedly narrowed.
At the conclusion of the trial I reserved my judgment; this is that decision.
BACKGROUND FACTS
The father
The father was born in 1980, and hence is presently 36 years of age.
The father grew up in E Town and attended school there. His parents separated in 1986 and he told Dr F, a psychiatrist who examined him for the purposes of these proceedings, that he had no contact with his father between the ages of 10 and 13 years of age. He left school in 1998 and after some manual jobs, completed a diploma in a health science and then undertook two years of a degree at G University. After that he undertook a variety of roles.
In about 2007 he began working as a support worker, in which occupation he remains engaged today.
The father and mother first met at a wedding in H Town. At the time the father was living and working in J Town. They kept in contact over the next two years and met again when the mother was visiting J Town in or around October 2012. At about that time they commenced a relationship, and the father moved to Sydney in December 2012, although he did not initially cohabit with the mother.
The mother
The mother was born in Europe in 1983, and hence is presently 34 years of age. She told Dr F, the psychiatrist who examined her for the purposes of these proceedings, that she “did not remember much of her childhood.” However she did tell him that “she was raped by a stranger at the age of 15 years and she had decided not to report it or tell her parents.” She further told Dr F “she had discussed this issue through ten years of counselling and was not troubled by it.”
At the conclusion of her schooling, the mother had wanted to study in the arts, but her father insisted that she study finance instead. By this time her father had become considerably devoted to a business which he had established, seemingly to the detriment of his relationship with his daughter, and perhaps his then wife, as they separated when the mother was 21 years of age.
After completing her university studies, the mother decided to travel through Europe with a friend, but unexpectedly that in fact saw them travel all the way to New Zealand. Thereafter she arrived in Sydney on 3 July 2007 and has resided in this country ever since, apart from a year whilst the parties were married.
Seemingly in her early days in Australia, the mother married a man because, as she told Mr K, the Family Report writer, “I was going to be deported and it was done to prevent deportation.” By then, the mother had decided that she wished to live permanently in Australia. This marriage did not succeed, and she told Dr F that “her first husband had strangled her to the point of unconsciousness on one occasion.”
Although it is not clear on the material how the mother came to move to H Town, it appears that she had done so at least by January 2010 when she first met the father. It seems likely that at the time she was working in sales.
However by October 2012 the mother had resumed living in Sydney, and it was at that time, when the mother was aged 29, that the parties commenced their relationship.
The relationship
It appears as though the parties’ relationship proceeded uneventfully until July 2013, when the mother advised the father that she was pregnant. The father says that this precipitated them deciding to live together in August 2013, and they were married in 2014.
By then the parties had agreed that they would move to Europe, according to the father, so that the mother’s family could support her during her pregnancy and subsequent birth of the child. The parties relocated to Europe on 14 February 2014 and the child was born there in the same year 2014.
It appears uncontroversial that the father’s experience of Europe was not good. For whatever reason, he did not obtain much, or regular, employment there. It is likely that he suffered from depression during that time, and indeed it is likely that the mother had some psychological difficulties following the birth of the child as well. The mother alleges that during that time the father was domestically violent; for his part the father concedes some violence, but alleges that the mother was violent towards him during that time too.
In December 2014, the parties discussed the termination of their relationship. The mother says that the father simply refused to end their marriage. Whatever be the case, shortly thereafter the parties discussed moving back to Australia to live in J Town. The mother encouraged the father to move back to Australia to prepare for her and the child’s later arrival. However she concedes now that it was never her intention to again cohabit with the father in Australia, but rather she deceived him into thinking that, so that he would leave Europe and she could affect the end of the relationship.
The father returned to Australia on 16 June 2015. Both parties agree that this is the date of termination of the relationship.
Post-separation
The father says (and it does not seem to be controversial) that on the day after he returned to Australia, the mother rang him to advise that she wanted to separate. Notwithstanding that, the father says that he formed the opinion that the mother was still intent on returning to Australia and living close by him, so that he could spend time with the child.
Unbeknownst to the father, on 9 July 2015 the mother and child returned to Australia, and specifically Sydney. She did not tell the father that she had returned, and maintained her deception of the father as to where she was living with the child until October 2015, when the father found out that the mother was then residing in Australia with the child. He did not discover that she had in fact been in Australia from 9 July 2015 until March the following year.
On 5 August 2015 the mother and the child travelled to H Town to live.
In October 2015 the mother says that she met her current husband, Mr L. The father asserts that the relationship commenced prior to then, but nothing turns upon that. When the father became aware that the mother was living in H Town with the child, he began to press for the agreement of arrangements that would enable him to spend time with his son.
In August 2015 the mother had engaged a firm of Sydney solicitors to communicate with the father on her behalf in relation to parenting matters. In October of that year they forwarded to the father proposed consent orders which provided that the child live with the mother and spend time with the father supervised by the mother as may be agreed, together with a communication regime as agreed by the mother. The father responded saying that he was “not signing such rubbish” and continued later in that email saying “I’ll be seeing my son soon [Ms Horner] with or without your permission as I don’t need it!” The mother’s solicitor advised her not to make the child available as he believed “that his email is clearly threatening to take the child from you.”
Notwithstanding his protests, in fact the father agreed to have a visit with the child supervised by the mother, and she paid for his flights as he then did not have sufficient funds to meet that expense. However the mother’s recollection of the times which the father did spend with the child between 4 and 9 November 2015, were more in relation to him engaging aggressively with her, rather than enjoying his time with the child.
After his return to J Town, the father began to aggressively communicate with the mother, telling her that he was going to come and take the child, so that he could spend time with his family. He indicated that he did not need any order to lawfully entitle him to take the child from the mother’s care.
In November 2015 the mother and Mr L, together with the child, began living together. According to the mother’s trial affidavit, “from day one, [Mr L] treated the child as his own son.”
A Legal Aid conference was held on 21 December 2015, and although the matter was unable to be agreed in toto, arrangements were made for the father to fly up and spend time with the child on Boxing Day. The parties agreed to meet at Muddy’s playground on Boxing Day and did so. At the end of that time, Mr L drove the mother’s vehicle to pick the mother and child up from the playground, but unfortunately a verbal altercation ensued between the father and Mr L. The father again spent time with the child on 27 and 28 December, although the mother says that it was causing her anxiety, amongst a range of other adverse reactions.
By this time the father had adopted a policy of sending a large number of hostile emails to the mother, demanding time with the child. That had caused the mother to file an application for a protection order, and temporary orders were made on 7 January 2016.
At about this time the parties began negotiating about using the H Town Contact Centre to supervise the father’s visits. The father refused the offer of this service.
These proceedings were commenced by the father filing an Initiating Application at the Federal Circuit Court in Brisbane on 27 January 2016. That resulted in some interim orders being made on 15 March, which provided for the father to spend time with the child in H Town under the supervision of a paid supervisor. That occurred on 28 and 29 March 2016. It appears as though the father was resistant to the supervisor’s instructions, and he used the opportunity presented of speaking directly with the mother. Since that time the father has refused to use paid supervisors.
Subsequently the parties litigated on two fronts. The first was the hearing of the father’s interim application in the Federal Circuit Court; the second was the mother’s application for protection orders. The former resulted in interim orders of Judge Willis on 12 May 2016, and the latter in final protection orders, for reasons given on 20 June 2016. The father unsuccessfully appealed from the final protection order.
The interim orders of the Federal Circuit Court provided that the mother would have sole parental responsibility for the child, who would live with her, but spend supervised time with the father at the H Town Contact Centre. Those orders also established a regime of Skype communication between the father and the child. The father appealed from those orders, although the appeal was not able to be determined, and hence was discontinued, by the time of the trial before me.
Notwithstanding the opportunity to spend supervised time with the child at the H Town Contact Centre, the father did not engage with the centre immediately, although ultimately he did spend two hours of contact on both of 27 and 28 August 2016. It appears as though that time proceeded successfully, and both the father and the child greatly enjoyed their time together. However by then the mother had determined that she and Mr L would move to C Town for the sake of Mr L’s employment prospects, and asked the H Town Contact Centre to transfer their file to the C Town Contact Centre. Indeed the mother did shortly thereafter move to C Town, but not before a further contact visit had been arranged for 3 and 4 September 2016. However that visit was cancelled at very short notice (after the father had travelled to H Town) on the basis that the child had suffered a head injury and his medical advice was to keep quiet and not play. The father was understandably disappointed, particularly given that Sunday 4 September 2016 was Father’s Day.
After the mother moved to C Town, it is regrettable that the parties were not, with one exception, able to effect the father spending time with the child at the C Town Contact Centre, or indeed elsewhere, until the month prior to the commencement of the trial before me. In part the reason for that may lie with the father’s belligerent attitude towards the Contact Centre, and M Group’s decision to withdraw the offer of its services, at least for the time being.
On 27 September 2016 the Family Report interviews were scheduled. It had been anticipated that the writer, Mr K, would observe both parents with the child. However at paragraph 114 of the Family Report dated 1 February 2017, Mr K said as follows:
[The mother] did confirm she just recently moved to [C Town] from [H Town] some two weeks ago. She informed me, “Something had happened” in terms of the Contact Centre and [the father]. [The mother] indicated [M Group] called her and indicated, “There had been inappropriate action or interaction between [the father] and the staff”. As a result of this they, “Wanted to have a meeting on Thursday”. [The mother] went on to say she was told, “The supervisor was shaking and crying and just simply wouldn’t speak of what happened”.
Based upon this reporting, Mr K determined not to observe the father interacting with the child.
It turned out that in fact there had been no episode of the kind related by the mother. Once Mr K had determined that, he raised some issues in relation to that in his report. It appears as though prior to those interviews, the last time the father had spent time with the child was 28 August 2016, and there were no adverse aspects to that time whatsoever.
These proceedings were transferred to this Court by order of Judge Willis made 8 December 2016.
The next occasion that the father was able to spend time with the child was on 13 January 2017, when there were two hours of supervised time at the C Town Contact Centre. That visit appears to have been uneventful, save that the M Group’s notes suggest that the father’s interaction with the child was very fast paced. Interestingly, the following day the mother rang M Group to discuss concerns she had in relation to the visit the previous day. She alleged that the father was “saying inappropriate things” during the visit, and the staff’s attempts to allay those fears did not persuade her to the contrary.
The father’s next scheduled visit was on 10 February 2017, however it appears as though there was some miscommunication, and although the mother presented the child, the father, when contacted, said that he had not been informed of the visit. It is apparent that the father became agitated at being told of the proposed visit, but being unable to attend it. Unfortunately that appears to have precipitated some conflict between the Contact Centre staff and the father, and communication thereafter was only between the centre’s lawyers and the father’s lawyers. Ultimately it appears as though M Group declined to supervise further time.
Pursuant to the orders of Judge Willis of 12 May 2016, the father continued to have Skype communication with the child. As I shall discuss in detail later, there have been numerous difficulties experienced in relation to that communication regime; each of the parties blames the other for those problems.
On 15 March 2017 I made orders listing the matter for trial commencing on Monday 7 August 2017. However subsequently on 9 June 2017, the father filed an Application in a Case seeking that he spend periods of unsupervised time with the child prior to the trial commencing. I dealt with that application on 5 July 2017, on which occasion I made orders for the child to spend time with the father supervised by either the C Town Contact Centre, or if it was not available, another private supervisor. However I further ordered that until that time could commence, the father’s time be supervised by a s 65L Supervisor. In fact, as I had thought likely, only s 65L supervision was able to be arranged prior to the trial commencing, and such time occurred on 19 and 26 July and 2 August 2017, for two hours on each occasion. On the last occasion Mr K also attended and observed the father’s interaction with the child for about 40 minutes. A memorandum was prepared by the supervisor and formed part of the evidence before me. She was glowing in relation to the father’s time with the child and his interaction with him.
Current situation
As at the time of trial before me, the father remained living in South East Queensland, and at least for the time being, was living at the paternal grandmother’s house outside of E Town. He continues to work as a support worker in J Town, commuting to there from E Town as and when required. It appears as though his financial circumstances are somewhat straitened, in part because his income is relatively modest, but also because he has incurred considerable costs in meeting his legal fees in these proceedings. As to that, it seems as though the paternal grandmother has been assisting him to meet those costs, at least in part. The father presently is in a relationship, although he does not cohabit with her. The child remains his only child.
For her part, at trial the mother remained living in C Town with her husband, together with the child the subject of these proceedings and her young child (N, born in 2016) to her relationship with Mr L. Mr L is employed in finance, and earns an income, said by the mother to have been in the order of about $250,000.00 in the last financial year. His is the only income in the mother’s household; she is presently not in any form of employment. Further, because the father pays only the child support for which he is assessed (said to be about $50.00 per month) it follows that Mr L provides virtually all of the financial support for the child.
The child appears to be in robust good health and developing well. He spends some time in day care to enable him to socialise with other children.
Between the conclusion of the trial and these reasons, the father has, by interim consent orders, been spending unsupervised time with the child each fortnight. Inevitably the court does not have any report as to how that unsupervised time has been proceeding. Likewise, Skype time should have been continuing pursuant to the orders of Judge Willis. Again the Court has no indication as to how it has been being conducted.
THE ISSUES
At the Trial Management Hearing on 15 March 2017, with the assistance of the parties I identified nine issues which the litigation then generated. The determination of those issues would likely have substantially determined the outcome of the proceedings. However since then the parties have both moved from their relatively extreme positions, and further, both concede that, at least in part, the Court is only in a position to make interim orders at this point in time. Indeed the parties’ identified that there were eight specific matters in dispute between them.
The issues I identified at the Trial Management Hearing (as modified by discussion with the parties during the course of the trial), were as follows:
1.What is the nature of the relationship between each parent and the child.
2.What risk, if any, does each parent’s household pose to the child, and what, if any, means are available to adequately mitigate it.
3.Would the child benefit from a meaningful relationship with each parent and their respective families, and if so, how might it best be facilitated.
4.Would each parent facilitate a meaningful relationship between the other and child.
5.Do the mother and father have the capacity to provide for the child’s developmental and emotional needs.
6.Is it reasonably practical for the mother to relocate to J Town.
7.If the mother were not to relocate, and the child were to permanently reside with her, is it reasonably practicable for the child to spend time with the father, and if so, to what extent.
8.What would be the likely effect on the child of each party’s proposal.
9.Could the parties’ communication adequately support equal shared parental responsibility.
Further the eight issues that needed resolution between the parties were identified as follows:
1.Should the Court make only interim orders, or should some final orders be made as well;
2.Should the mother have sole parental responsibility under the interim orders, or should there be equal shared parental responsibility;
3.How quickly should the child’s unsupervised time with the father increase;
4.Where should changeovers of the child into the father’s care occur, and particularly should any of them take place in Brisbane;
5.Should the father be permitted to be able to take the child to Brisbane to spend time with him;
6.Should the child’s surname be changed;
7.Should the Skype regime continue;
8.Assuming that the matter is only dealt with on an interim basis, when should it be relisted and for what purpose. Particularly should a Family Report have been obtained prior to any new listing.
Once I have considered the relevant statutory provisions and legal principles, I will discuss the issues insofar as they impact upon the eight matters in dispute between the parties, and then address those matters individually.
RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES
The statutory regime
Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(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.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(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).
Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.
However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.
In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.
Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC.
In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.
Abuse, neglect and family violence
“Abuse” is defined in s 4 of the Family Law Act in the following terms:
Abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
Neither the term “neglect” nor indeed “serious neglect” appears to be defined in the Act; absent any indication in the Act to the contrary they should therefore have their usual dictionary meanings. I can discern no contrary indication in the Act. The relevant definition of the word “neglect” in the Macquarie Dictionary is “to be remiss in care for or treatment of.”
“Family violence” is defined in s 4AB(1) of the Family Law Act in the following terms:
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the persons family … or causes the family member to be fearful.
Section 4AB(3) provides that for the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence. Section 4AB(2) and (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence.
The standard of satisfaction required
Section 140 of the Evidence Act 1995 (Cth) provides as follows:
140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence;
(b) the nature of the subject-matter of the proceedings;
(c) the gravity of the matters alleged.
Therefore consistent with s 140(2), in taking into account the parties’ allegations against each other, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[1]
[1] See K v R (1997) 22 FamLR 592 and Re W (sex abuse – standard of proof) [2004] FamCA 768 at [15].
NATURE OF RELATIONSHIP BETWEEN EACH PARENT AND CHILD
Mr K’s evidence in relation to this issue was that the mother and child have a strong, loving and nurturing relationship, and that the father and child have a strong, emerging and positive relationship, which needs scope to develop. There was no challenge of any moment made to that evidence. I accept it.
RISK PARENTS HOUSEHOLD POSE TO THE CHILD AND MEANS OF MITIGATION
Again Mr K’s evidence was not in dispute. He said that neither party’s household posed a direct risk to the child, but that there was an indirect risk of harm posed by both parents, if their adversarial relationship continued. That could affect the child in two ways. The first was by virtue of his direct exposure to parental conflict; the second was if that conflict caused the mother to become anxious, it could impact upon her capacity to care for the child, and hence affect him indirectly.
As to the means to mitigate that risk, he said that the parents’ participation in post-parenting orders programs would be of likely benefit, but any such course providers would need access to the relevant reports in these proceedings to understand the dynamics of the situation they were confronting.
Again, I accept that evidence.
BENEFIT OF MEANINGFUL RELATIONSHIP WITH EACH PARENT AND HOW BEST FACILITATED
Mr K’s evidence was again unchallenged. He said that the child would benefit from a meaningful relationship with both parents, which would be best facilitated by regular face-to-face time with each parent, and each being involved in as many aspects of the child’s life as distance permits.
WOULD EACH PARENT FACILITATE A MEANINGFUL RELATIONSHIP BETWEEN THE CHILD AND THE OTHER
As Mr K noted in his oral evidence, the history of this case makes it difficult to be optimistic in relation to this matter. The mother wants to have no contact with the father, and until recently, has thought that the child should have no contact with him either. Even in evidence before me, after her position had changed to her conceding that the father should spend unsupervised time with the child, she continued to express fear of the father’s behaviour and a desire to continue to have nothing to do with him. Further, it is fair to say that she has, at least in the past, if not actually placed, then at least emphasised, obstacles to the child spending time with the father, and used them as a basis for withholding the child from him.
For his part the father is untested as being the gatekeeper of the relationship between the child and the mother. He expresses eloquently and loudly a belief that the mother and child should have a meaningful relationship, but to date he is yet to be in a position to be able to demonstrate that.
Of course the mother’s keeping the child from the father for some months after first arriving in Australia speaks to a lack of desire to facilitate a meaningful relationship in the past. The future remains to be seen.
PARENTS CAPACITY TO PROVIDE FOR CHILD’S NEEDS
Mr K’s evidence, which again was unchallenged, was that both parents have the capacity to provide for the child’s needs. I accept that evidence, which accords to my own views of the parties, based upon their material and observations of them in the witness box.
PRACTICAL FOR MOTHER TO RELOCATE
This issue was not pressed in the hearing before me.
REASONABLE PRACTICABILITY FOR CHILD TO SPEND TIME WITH FATHER
This issue also evaporated, as the hearing was conducted before me. Both parties accept that it is reasonably practicable for the child to spend time with the father, although there is a dispute as to whether it should, for the period of any interim orders, be completely in C Town, or whether some part of it should be in Brisbane. However I will discuss the question of reasonable practicability of the child spending time with the father in Brisbane when determining that issue.
WHAT WOULD BE LIKELY EFFECT ON CHILD OF PARTIES’ PROPOSALS
When Mr K was initially asked to comment in relation to the issues, the focus of the parties was still upon their extreme positions as contained in their respective Initiating Application and Response. He was roundly critical of both of their proposals: he said that the father’s proposal to change the primary care of the child would greatly adversely affect him, but by the same token, there was no merit in the mother’s position to deny the father an opportunity to parent the child, and to only reintroduce the father into the child’s life later on could well effect emotional harm to the child.
After he gave that initial evidence, the parties’ positions dramatically moderated. It follows therefore that the impact which each parties’ proposal is likely to have upon the child has been substantially mitigated by their change in position. Indeed both parties’ positions substantially mirror the recommendations of Mr K, namely, that there be unsupervised time between the father and child, progressively increasing to overnight time by the time the child turns four. The father’s proposal sees that plateau reached a little prior to four, the mother’s proposal sees it a little later. Plainly however, both parties have listened to Mr K’s recommendations, and accommodated them. Therefore it is unlikely, save for the issue of when overnight time is first experienced by the child, that there is any real material difference between the parties’ proposal in terms of their likely effect upon the child. Both will see the child continue to live with the person who has been his primary care giver for most of his life, and both will see him maintain a meaningful relationship with his father, and for it to develop further.
COULD PARTIES’ COMMUNICATION SUPPORT EQUAL SHARED PARENTAL RESPONSIBILITY
Mr K’s evidence was that he held out no realistic hope that the parties could ever communicate in a way to discharge equal shared parental responsibility. He conceded that the parties had not had any direct communication, other than in the context of the father’s Skype calls with the child, since about July 2016, but he saw no basis for thinking that hiatus in direct conflict presaged some reason for optimism that the parties could now communicate. I accept that evidence, but shall return to consider countervailing considerations in relation to parental responsibility shortly.
SECTION 60CC CONSIDERATIONS
In discussing the issues I have traversed both primary considerations and a number of additional considerations. However to the extent that I have not addressed all of the s 60CC(3) factors, I comment further as follows.
The child is too young to express any views, but obviously delights in spending time with his father.
The father has demonstrated considerable resentment to having his time with the child supervised by a Contact Centre, but one could not really criticise him by reference to that for having failed to take opportunities to spend time with the child. He has been determined to manufacture opportunities for spending time with the child since separation, and plainly is a devoted father.
The father has maintained his child support obligations, however the criticism made of him is that his assessment is an extremely modest one, which does not contribute in any meaningful way to the costs of raising the child.
The father lives in South East Queensland, and the mother in North Queensland. Plainly there are practical difficulties and expense of the child spending time with the father on a regular basis, no matter in which area that time is enjoyed.
The mother alleges family violence against her, particularly in Europe, with the father being the perpetrator; the father does likewise. The father has admitted some instances of family violence in Europe, for instance throwing a Christmas tree and slamming a frying pan into a benchtop. Further, there is the father’s conduct since separation, comprising deluging the mother with often aggressive communications from time to time, in an effort to have her relent and allow him to spend time with child.
It was that latter conduct which led to the family violence orders which have applied from time to time, and which the father breached by continuing in such communications until July 2016. The inferences which I draw from that is that the father initially was unable to restrain himself from harassing the mother in an attempt to have her permit him to spend time and communicate with the child, and that relentless motivation saw him believe that his breaching of the family violence orders, by continuing to press for time and communication with the child, was justified, at least morally. However I accept that, save for the sniping between the parties that takes place during Skype conversations, the father has not communicated directly with the mother in breach of those orders since about July of 2016. It appears as though the prospect of further conviction and punishment for breach of the domestic violence orders may have deterred him from his campaign, at least insofar as it involved directly harassing the mother.
Plainly it would be preferable to conclude these proceedings by this judgment, however in circumstances where the father has only spent, in recent times, brief periods of supervised time with the child, and the fact that the child is still so young, means that preference may not be able to be achieved.
INTERIM OR FINAL
Both the father and the Independent Children's Lawyer conceded that, notwithstanding their wish for final orders, it was not possible to in fact make anything than interim orders at this point in time. Both contemplated those orders lasting until about June 2018, when the Court would again mention the matter with a view to moving it forward.
The mother’s position was a little less clear. The final iteration of the proposed orders handed up by her, were headed “Interim Orders….” but then were highly prescriptive as to orders which would prevail until after the child was ten years of age. That said, in submissions she emphasised that the order which she particularly sought as a final order was that the child lived with her. That is because she said that she found the prospect of the child moving into the father’s care so distressing, if it remained a live issue, that it would profoundly impact upon her. She therefore sought, in effect, to obtain a guarantee that the child would continue to live with her under a final order, and thus cushion her position from any adverse impact of the operation of the interim orders.
Otherwise it seemed as though she accepted that there needed to be, in effect, a trial of the father spending unsupervised time with the child, and for it to progress to overnight time, before any final orders could or should be made.
Notwithstanding my orders of 5 July 2017, which saw the father resume spending supervised time with the child, and notwithstanding the hope which underpinned them, that they may permit the court to be in a position to make final orders at the trial in August, unfortunately they could fairly be described as too little, too late. The most that was able to be discerned from those visits was that the child and father have an intact relationship, and that each enjoys spending time in each other’s company. Many matters remain unclear however. Significant amongst those is how the mother will react to the father spending increasing amounts of unsupervised time with the child, and importantly, whether she will be able to support that time and its increase.
Further, the fact of the father spending time with the child may impact upon the level of conflict between the parties to date, which has likely been largely fuelled by the father’s thwarted desire to remain a significant feature in the child’s life, and to regularly spend time with him. If the father can achieve those ambitions, and if he feels as though the mother and he are no longer in a no-holds barred fight to the death, or even that she will facilitate his relationship with the child, then logically the basis for much of the heat in the conflict should abate.
Simply there is insufficient clarity in relation to those matters to enable orders to be fashioned which could responsibly be anticipated to endure and operate effectively until the child turns 18. Inevitably therefore there must be interim orders.
As I have said however, the mother contends that at least some of the orders should be final, and particularly that there should be a final order that the child live with her, hence quarantining that issue from further debate at any subsequent hearing. Her reasons for that appear to relate to her own anxiety, rather than anything else. She says she felt particularly anxious and threatened when the father changed his application to seek that the child go to reside with him, and so long as that remains on the table as a possibility, she will continue to feel threatened and anxious.
The difficulty with that argument is that the mother’s capacity to facilitate a face-to-face relationship between the child and father is largely untested, and to the extent that it has been tested, would suggest that a serious question mark hangs over her in that respect. Whilst it is unnecessary for me to make any findings at this point in time, the father’s argument that the mother has constantly and consistently sought to impede him spending time with the child by placing obstacles in the path of him doing so, does have some factual support. Even during the course of the hearing before me, when the father suggested that he should spend unsupervised time with the child that week, a series of obstacles were placed in the father’s way. Some of those may have had some factual basis, for instance the child being unwell. However others (for instance, that the times proposed by the father would coincide with the child’s nap) seemed to be, at least arguably, rather specious.
True it is that Mr K was roundly critical of the father’s proposal that the care of the child move to him, and true it is that the father may encounter some real difficulty in persuading the court to make such an order unless there were no other way in which he could maintain a relationship with the child, but one can envisage circumstances in which, at least theoretically, such an order could be in the child’s best interests.
I am satisfied that there should be no final orders made at this point in time, and that only interim orders should be made. As regrettable as it is, the fact that is likely to lead to a continuation of this litigation cannot outweigh the competing considerations.
PARENTAL RESPONSIBILITY
The mother and Independent Children's Lawyer contend for sole parental responsibility to be given to the mother, which has been the position since the orders of Judge Willis of 12 May 2016. The father proposed that there should be equal shared parental responsibility, and proffered an order which established a formula for how that might be exercised, which concluded, in the event of a stalemate, and family dispute resolution was unavailable or unsuitable, with the father to have the final decision, albeit restricted to one of three options provided by the mother.
The following points tell in favour of the mother and Independent Children's Lawyer’s proposal:
·In the next 12 months, there are unlikely to be many – if indeed, any – major decisions to be made in relation to the child;
·The parties have no post-separation history of joint decision making;
·The parties have a history of highly conflictual communication, accepting that since about the middle of 2016, other than in the course of Skype communications between the father and the child, there has been no communication between them;
·Before the parties could be even hoped to have a civil communication, there will need to be the development of a degree of trust between them;
·To proceed too fast in the reintroduction of the father into the child’s life increases the risk that that endeavour will fail;
·Even accepting that there may be a degree of exaggeration, there is no reason to doubt that the mother does indeed have a genuine fear of the father;
·The father has in the past breached domestic violence orders by continuing to seek to communicate aggressively with the mother. Even the father concedes that what he did was a poor decision and choice, but there has been no demonstration thereafter of better communication.
On the other hand, the following considerations weigh in favour of the father’s proposal:
·There is no reason to doubt that his considerable life experience would be of benefit if brought to bear in relation to decision making about the child;
·The father has demonstrated extraordinary determination to remain in the child’s life;
·A period of equal shared parental responsibility prior to any resumed trial would enable the Court to be appraised as to whether or not it can function as a matter of practicality;
·Without a trial of equal shared parental responsibility, there is some prospect that there may need to be a further period of interim orders, if equal shared parental responsibility were ultimately ordered;
·If an order for equal shared parental responsibility is not made, the father will inevitably be disappointed, and that may impede any reduction in the conflict between the parties occurring.
I weigh those factors as telling in favour of the Independent Children's Lawyer and mother’s proposal. Although the father wishes to proceed with haste, in my view there should be considerable caution exercised before advancing at too rapid of rate. The purpose of these orders inevitably will be not only to effect the development of a meaningful relationship between the father and the child, but also to try and reduce the conflict between the parties. It is, after all, the exposure to parental conflict which is the most significant risk to the child.
RATE OF INCREASE OF FATHER’S TIME WITH CHILD
Since the trial before me concluded, the father has been spending, each fortnight, two periods of four hours per day on two consecutive days with the child. That was able to be agreed by the parties. The father’s proposal then saw, after two months, a regime where in a four week cycle, he would spend eight hours per day on two consecutive days with the child on weeks one and three, with such time to occur in C Town, but in week two, two consecutive days would occur in Brisbane, hence requiring the mother to travel there. That regime would last for a further three months. Then he proposed a six month regime starting 27 January 2018, which would see overnight time commence in weeks one and three of the four week cycle, being from 9:00am Wednesday until 5:00pm Thursday, such time to be in C Town, but in week two, the Brisbane time to then run from 9:00am Tuesday until 5:00pm Wednesday.
For her part, the mother proposed that the present interim regime should continue until 28 November 2017, when the four hour period would increase to six hours, but otherwise the regime stay unchanged. She then proposed that from 6 March 2018 that time increase to eight hours per day, but the regime otherwise stay as it presently is. From 29 May she contemplated that overnight time from 9:00am Tuesday to 9:00am Wednesday would commence and if necessary, from 11 September 2018, that time extend from 9:00am Tuesday until 12:00pm Wednesday.
For her part, the Independent Children's Lawyer proposed that from 24 and 25 October, the father’s time with the child increase from four hours to five hours for a period of two and a half months, but that the present interim orders remain as is, and then from 9 and 10 January 2018, the time increase to seven hours. Then from 24 April 2018, the Independent Children's Lawyer proposed that the father’s time should include overnights, being from 9:00am on Monday 24 April 2018 to 5:00pm on Tuesday 25 April 2018. She proposed no further change to that regime before the matter came back before me in about June or July 2018.
Mr K’s clear evidence was that overnight time should not commence until that child was four years of age. Whilst he accepted that the father proposed that overnight time commence only three months earlier, and that there was some prospect that doing so would have no adverse impact on the child, nonetheless he adhered to his recommendation of four years of age as being the time to introduce overnight stays. I accept that evidence. Mr K is an experienced psychologist with many years of practice in dealing with parenting matters such as this. However I propose to adopt his recommendations not only because he is an expert with great experience, but also because again it seems to me that the pace of progress should be such that the prospects of success of the introduction of overnight time is maximised.
I am therefore satisfied that the proposal of the Independent Children's Lawyer in this respect best reflects the expert evidence, and the child’s – albeit perhaps not the father’s – best interests.
The question then is at what pace the time should increase between now and 24 April 2018. The first point is that all parties appear to agree that the period prior to the father spending overnight time should be from 9:00am until either 4:00pm or 5:00pm on two consecutive days, and I accept that is sensible. Given that arrangement should have been in place for some time prior to proceeding to overnight, the only real question then is how long that period should be, and what the intermediate steps should be between the present consent interim orders, and that stage. The Independent Children's Lawyer says the present arrangement should last for three months before increasing to a five hour block; the father says it should last for two months, before increasing to an eight hour block; the mother says it should last for three months before increasing to six hours.
Ultimately I am satisfied that the orders proposed by the Independent Children's Lawyer likely have the best chance of success. Their progression is conservative and yet real, and it enables each stage to be cemented before moving on to the next. I assess the mother’s proposal as to too slow, and the father’s proposal as overly optimistic. That said, both the mother and father accept that the ultimate culmination should be 9:00am to 5:00pm, but with that variation, I propose to otherwise order as suggested by the Independent Children's Lawyer.
The next question is, once the move to overnight time commences, how long that period should be. The Independent Children's Lawyer and father are largely agreed, in that they say it should be from 9:00am on the first day until 4:00pm or 5:00pm on the second day, whereas the mother proposes to 9:00am on the first day until 9:00am on the second day. I am satisfied that it should be as proposed by the father, given that the progression is simply one of bridging the two consecutive days with the overnight. It is intended to get the child used to overnighting with the father, but to otherwise leave the progress in the regime unchanged. There will therefore be an order that commencing on 24 April 2018, the child spend from 9:00am on 24 April 2018 until 5:00pm on 25 April 2018 with the father.
The father’s proposal is that in addition to alternate week time, in week two of the four week cycle, the child should be required to travel with the mother to Brisbane to spend time with the father there. He proposes that the cost of that travel should be borne by the mother. Neither the mother nor the Independent Children's Lawyer supported that proposal. The mother opposed it because she says she has a young child, and would be obliged to have him travel with her, and that to spend eight hours of time in Brisbane – with which city she has little connection and in which she has no friends – would be a substantial imposition upon her, particularly given that she would have a toddler with her, and nowhere to base herself when there for the day. Precisely how the mother would arrange for her other child to nap, be fed, bathe and the like is all left unexplained. The alternative, to leave N back in C Town, is unrealistic.
Moreover, the father proposes that the mother should bear the cost of all of that travel, to which the mother says that she cannot afford it. Whilst that may be doubted, the reality is that it would nonetheless be a substantial imposition upon the mother and her household’s finances.
For her part the mother proposed that during any interim orders, there be no obligation for her to take the child to Brisbane on any occasion. The Independent Children's Lawyer proposed that the mother be obliged to travel to Brisbane with the child on one occasion between 1 February 2018 and 1 June 2018 for a period of up to six consecutive nights, so that the father can spend eight hours per day on four days (at least two consecutive) with the child.
The mother opposed such an order on several grounds, including that it would be a substantial impost upon her family’s finances, that it would be a substantial dislocation to her family, that from about April onwards each year it is impossible for her husband to take any time off work, and that her family had no desire to holiday in South East Queensland.
The advantages of the Independent Children's Lawyer’s proposal are as follows:
·By, in effect, requiring the mother to stay in South East Queensland on a break, it would mean that she would have a base from which to attend to tasks in relation to both children;
·It would enable the child to be introduced to the members of the paternal family who reside in the South East Queensland area;
·It would provide the father with a substantial block of time, in a concentrated period, to spend with the child;
·It would lay the foundation for the father spending time with the child in a location other than C Town, where he has no base (accepting that it is likely that he will take some form of motel accommodation when spending time with the child in that city).
There are also some considerations of fairness that are at play here. When choosing to settle in H Town and subsequently C Town, the mother must have been aware that the father had no connection with those cities, and certainly no reason other than her and the child’s presence there to establish a home. He has always gravitated towards South East Queensland as his base. Further, the father is in receipt of only relatively modest income from his employment, whereas the mother’s household is far better off financially, at least from an income perspective. Indeed the improvement in income was the reason why the mother and her husband moved from H Town. The mother criticises the father for making no substantial contribution to the costs of the child’s raising, however the reality is that he is paying what he has been assessed to pay.
On the mother’s proposal, the father will bear all of the burden, both financial and otherwise, of travelling between C Town and Brisbane for approximately the next twelve months. She proposes to assume only the obligation to make the child available in C Town and to collect him there from time to time. I am satisfied that in the circumstances of this case, that is unfair. Whilst in my view the father’s proposal would impose too greater burden upon the mother, in my view the Independent Children's Lawyer’s proposal does represent a fair balance between the parties’ positions.
I do not ignore the mother’s criticisms of it, and I take them into account. However I am satisfied that the benefits of the proposal discussed above far outweigh the negative aspects she identifies.
For that reason there will be an order in the terms as proposed by the Independent Children's Lawyer, but not as proposed by the father.
The final matter in dispute between the parties is as to time the child spends with the father on special days between now and when the matter is next in Court. The father proposed that he spend time with the child on Father’s Day in Brisbane, on the child’s birthday in C Town and on Boxing Day in Brisbane. The mother proposed that the child spend time with the father on Father’s Day, but not in 2017. She agreed that the father should spend time with the child in C Town on his birthday, but for four hours instead of five. She further agreed that the child should spend time with the father on Boxing Day, but that it should be in C Town. Wherever it be, the parties are agreed that the Boxing Day time should be from 9:00am until 5:00pm. The Independent Children's Lawyer did not propose any orders in relation to special occasions.
The reality is that Father’s Day in 2017 has now passed, and the matter will be mentioned again – and perhaps the trial resumed – prior to Father’s Day in 2018. I therefore decline to make any order for Father’s Day, whether as proposed by the mother or the father. That is a matter that can be addressed next year.
As to the child’s birthday in 2018, by then the father will be spending day time blocks of 9:00am to 5:00pm with the child, but he only proposes that he spend from 9:00am until 2:00pm, with the child on that occasion. He says that should occur in C Town. The mother agrees that it should occur in C Town, but it only be from 9:00am until 1:00pm. I am satisfied that the proposal of the father is the more reasonable of the two and will make an order in the terms he proposes. The final question is Christmas. The father wants the child to travel to Brisbane on Boxing Day and spend from 9:00am to 5:00pm with the father’s family at the paternal grandmother’s home. He proposes that the changeover occur at the paternal grandmother’s home. That home is some distance from Brisbane. It would, presumably, therefore require the mother not only to travel down and back to Brisbane on Boxing Day, but to hire a car and navigate herself around Brisbane to the paternal grandmother’s home.
This would be the child’s first experience of spending time with the father other than in C Town. Otherwise that would not occur until, at the earliest, until February 2018.
Further, there is the problem of the changeover occurring at the paternal grandmother’s home. I observed the interaction between the mother, who self-represented in the trial before me, and her former mother-in-law, when the mother was cross-examining her. It is plain that there is a great deal of tension between them, which on occasion spilled over into the Courtroom. The mother suffers from anxiety and I have little doubt that the notion of attending a changeover of the child at the paternal grandmother’s home would be one that would be upsetting for her. The child may well pick up on that anxiety, which would not bode well for the success of the imminent visit. Moreover, it would be the first occasion that the parties had effected a changeover of the child other than via the auspices of the Court.
Ultimately I am of the view that the father’s proposal imposes too great a burden upon the mother, and is fraught with the risk, not merely of not proceeding successfully, but of being actually counter-productive in terms of progress of the resolution of the conflict between these parties. I decline to make the orders sought by the father. On the other hand I am minded to make the order proposed by the mother, which would enable the father to have Christmas celebration with the child, albeit on Boxing Day, in C Town. It may not be in a homely environment, and it may not have other extended family members present (but of course it could) but nonetheless it seems to me it is destined to likely be successful, and to give the father what will prove to be only his second Christmas occasion with the child.
Changeovers on Boxing Day should occur at a place nominated by the s 65L supervisor.
CHANGEOVERS IN BRISBANE
As has been seen, under the orders I propose to make, there will only be changeovers in Brisbane associated with the block period of time when the father will be spending time with the child between February and June 2018. The Independent Children's Lawyer proposes that these changeovers be conducted at D Group in Brisbane, or such other service (including the Court, if available) as the s 65L Supervisor proposes. The father did not specifically articulate where he proposed changeovers to be in this event, but in relation to other time he proposed, suggested either the Court, or the O Street Railway Station. The mother opposed any changeovers in Brisbane, because she opposed the child spending any time with the father in Brisbane.
In my view the O Street Railway Station is not a suitable place for changeover between these highly acrimonious parties. True it is that there is a large police station directly opposite, but in a sense, that only emphasises the difficulty inherent in changeovers between these parties in public places. In my view, changeovers for the time being, in a period where the conflict is still live and unresolved, should occur in a way which, as much as possible, guarantees the lack of conflict. In my view the Independent Children's Lawyer’s proposal achieves that certainty. There will therefore be an order that changeovers occur as proposed by the Independent Children's Lawyer.
CHILD’S SURNAME
The mother proposes to hyphenate the child’s surname so that it is either Horner-Sutton or Sutton-Horner, with the father to determine the order of the names. The father opposes any change of name at any time; the Independent Children's Lawyer opposes a name change, at least at this point in time.
The child is three years of age. By the time the matter next comes to Court, he will only be four years of age. The mother says that hyphenating the surname now will enable him to have a sense of belonging to his residential family, but there was no evidence that doing so at this stage would have any material impact upon the child either way.
The father is proud of his surname. His mother is a highly successful person of whom the father is also proud, and he wants to keep that family connection.
The bottom line is that there is no need to deal with this issue at this point in time. Even accepting that there may be some benefits to the parties in resolving such an inflammatory issue now – so that whatever outcome, they can accept it and move forward – I am not persuaded that it should be dealt with on an interim basis. There will no order in relation to the change of the child’s surname.
SKYPE
The father proposed that there be 15 minute Skype calls each Tuesday and Sunday. The mother and Independent Children's Lawyer proposed that there be no Skype calls between now and when the matter resumes. The orders of Judge Willis of 12 May 2016 provided for the father to Skype the child for 10 minutes at 5:00pm each Tuesday.
During the course of argument I raised with the parties the prospect that Skype could be ordered in the weeks when the father is not otherwise spending time with the child, and that at least initially, those calls be monitored by the s 65L Supervisor (who, in evidence, accepted that such an obligation would not be an undue burden on the Court’s resources). An alternative that was raised, was the prospect of quarantining Skype calls for some period of months, to enable the dust to settle on the current regime, but for them to then resume. If there were to be Skype calls, the Independent Children's Lawyer appeared to express a preference for the latter, albeit she maintained her primary position that there should be no Skype calls.
The first question then is whether there should be Skype calls at all. In the event that there should be, I will discuss their regularity after that issue has been determined.
Prior to the s 65L supervised visits in July this year, the father had spent very little face-to-face time with the child in the last 12 months. His only means of maintaining a relationship with the child has been by Skype. The child’s immediate recognition of the father, and the warmth and love which was observed to be immediately displayed by the child upon greeting his father on the first s 65L supervised visit, to my mind speak to the importance of the Skype calls in maintaining the father as a meaningful figure in the child’s life. It may also speak to the existence of a warm relationship prior to separation, but clearly Skype has been the lifeline which has kept that relationship intact and meaningful to the child.
The mother puts forward the following as reasons to discontinue the present Skype arrangement:
·The prospect of Skype causes her to become anxious, because it requires her to have contact with the father, which she loathes, and strongly and adversely reacts to;
·The father will now be spending alternate weekend face-to-face time with the child, which should by itself ensure the continuation and development of the father/son relationship.
On the other hand I identify that the following favour the continuation of Skype as a part of the regime of contact between the father and child:
·It has been the conduit by which that relationship has been able to be maintained;
·The child is used to Skyping with the father;
·The child’s capacity to independently Skype will progressively increase as he ages;
·It would provide a second means by which the father and child relationship can be maintained, and moreover, it is likely to be a significant way in which the father/son relationship will be maintained into the future;
·Although not without acrimony and conflict, to date the Skype calls have proceeded with a degree of success.
Weighing those competing considerations in the balance, to my mind tells in favour of a continuation of the Skype calls. Particularly the child is used to them, they have been successful in maintaining the father/son relationship, and they provide an alternative way for the father and child to interact, which is likely to remain an important means of interaction if the child remains living with the mother.
I do not ignore the mother’s concerns and her anxiety, but the reality is that, to date, she has been able to cope.
That then raises the question of whether there should be a quarantine period. In that regard, I note that the parties were able to agree interim orders in relation to the father spending alternate week unsupervised time with the child from the conclusion of the trial, but did not, as a condition of that, require the Skype to cease. Therefore since the trial, there has been a continuation both of the Skype and of unsupervised time. Indeed under the orders of Judge Willis, assuming that they have been followed, that Skype will have been occurring weekly.
The mother opposes Skype at all, and did not address me in relation to any period of quarantine, although I assume she would prefer that. The Independent Children's Lawyer thought that it would give an opportunity for some breathing space, but as has been seen, the reality is likely to have been that both Skype and face-to-face time have now been concurrently occurring since the trial.
Against that background, I can discern no substantial benefit to quarantining the Skype calls for a period. By now have become a regular part of the child’s means of interacting with the father, and there is no reason that I can see of such moment that outweighs the benefits to the child of that means of communicating with the father continuing. I therefore decline to make any period quarantining Skype calls.
The next question is how regularly they should occur. I am satisfied that they should occur in alternate weeks when the father is not spending face-to-face time with the child. True it is that I can discern some potential benefit in the child and father speaking by Skype on the day prior to them spending face-to-face time – because obviously they could discuss what they were going to do on those occasions – but the real benefit of the Skype, it seems to me, is to remind the child of the father and to give them an opportunity to experience their relationship in the weeks when they are not seeing each other. I am therefore satisfied that there should be Skype communication between the father and the child each alternate week. I am satisfied that the calls should be of 15 minutes duration, unless the child disengages or terminates the call.
The final question is whether the s 65L supervisor should, in effect, referee, or at least monitor, the initial calls. As I have observed, those calls have now been taking place for well in excess of a year, and each party has, so it seems, religiously recorded each and every one of them. The only benefit I can see, upon reflection, of using a s 65L Supervisor for some short period of time, is to independently monitor those calls, and in effect, require the parties to be on their best behaviour during them. The hope would be that they would realise that they can have Skype communication between the father and child without the need for them to snipe or otherwise interact with each other in a conflictual way.
However the reality is that both parties must already be aware that there is the opportunity for them not to engage in a conflictual way over Skype, and whilst the presence of an independent observer may change their behaviour over a short period of time, it is ultimately up to them to independently make the changes needed in their own behaviours. Upon reflection, I am therefore not satisfied that there is any real benefit of the s 65L Supervisor being required to monitor Skype calls for any period of time, although of course, should she so wish, there would be nothing in these orders which would preclude her from doing so, if she thought there may be some benefit to the parties in her so engaging with them.
NATURE OF NEXT RE-LISTING
The Independent Children's Lawyer proposed that the matter be listed for mention only in June or July 2018 by telephone. Notations to her proposed orders recorded that the mother and father should equally share the costs of any updated Family Report. It did not however require such a report to be prepared prior to the mention.
The father proposed that the Independent Children's Lawyer should organise an updated Family Report in around May 2018. He then proposed that the matter be listed for further directions no earlier than June 2018. The mother did not really articulate what her view was as to the nature of any relisting, or the preparation of a further Family Report.
I am satisfied that the matter should be listed, for mention only, no earlier than July 2018. I am not persuaded that there should be a Family Report required to be prepared prior to then, principally because on the orders I propose to make, the father will only have been spending overnight time with the child from 24 April 2018. To prepare a Family Report in May is likely simply premature. That arrangement should be permitted to work for some period of time before an updated Family Report is prepared, if indeed one is ultimately required at all. There will therefore be an order that the matter be listed for mention in July 2018. The future disposition of the matter can then be discussed.
ASIAN TRIP
Although it arose in a completely unsatisfactory way, it appears as though the mother has booked and paid for a trip for her family to Asia in October 2017. She said – although at the trial there was no evidence – that her current solicitor had advised her that there was no impediment to her travelling. That seems unlikely given that there was, at all times since 15 March 2015, a PACE Alert ordered in relation to the child, and at the time of that order being made the mother was represented. I am not prepared to infer that her then solicitor did not advise the mother the effect of that order, nor am I satisfied that the mother was otherwise unaware of it. The reality is that she has foolishly embarked upon booking a holiday which, on the state of the then orders, could never have occurred.
In her submissions the mother emphasised that this was intended to be a broader family get together, and that other members of her family have been saving a long time for this holiday.
Although the issue arose in an unsatisfactory way, the father opposed any permission for the mother to take the child to Asia. He pointed out that the mother had kept the child’s whereabouts secret from him for many months post-separation, both when she was in Sydney and later in H Town, and further emphasised that the destination country in Asia was not a signatory to the relevant Hague Convention. He therefore argued that there was a flight risk. As to that, the mother pointed out that post-separation she had voluntarily returned to Australia, and that she now regards it as her home, and has no desire to live elsewhere.
As I observed the parties during the course of the hearing, the process of rebuilding their respective trust in the other will be a slow and likely painful process, in which any progress will be hard won. The father remains emotionally raw at the mother’s high handed withholding of the child from him for many months, and sees her travel overseas not only as another manifestation of her high handed unilateral decision making, but also as a risk that again he may be separated from his much loved child. For the mother to book a holiday in the face of the child being prohibited by Court order from leaving the country, is indeed at the very least high handed, and probably foolish.
Whilst it may be the case that the prospect of the mother not returning from Asia is limited, the reality is that if she was so intending on travelling, she should have sought a relaxation of the PACE alert prior to booking the fares.
I am not persuaded that the child should be permitted to travel overseas at this point in time. The reality is that, looking from the child’s perspective, he is unlikely to maintain any memory of the gathering, or have a recollection of the various relatives who may then assemble. Of course, also looking at it from the child’s perspective, if the child were to be withheld, the loss of the relationship with the father would be a significant blow to him. I can therefore perceive no benefit to the child which outweighs that risk.
OTHER ORDERS
Although not the subject of any debate before me, the mother and father proposed a variety of minor orders in relation to exchange of information, and authorisation to release information from health and educational professionals, which appear uncontroversial. However some controversial matters remain. The father wants the mother to keep him informed (and vice versa) of any medical condition or illness suffered by the child, and medication that has been prescribed for the child or any other matter relevant to the child’s welfare. He does not stipulate how she is to so inform him, but implicitly it would be likely either email or telephone.
The parties are still subject to a domestic violence order which prohibits the father contacting the mother, except in relation to the child. The mother says that any contact with the father makes her anxious, and I accept that to a degree. The fact is that at this point, neither party can really be trusted not to provoke the other in any communication between them. The mother proposes that any information that needs to be advised to the father should be shared by the “Our Family Wizard” program, although little material is before the court as to what that comprises, or the cost of it.
Of course any sensible separated parent of a young child would keep the other party informed as to the sorts of matters which the father seeks by order to require the mother to tell him about, and indeed if there is no order, the mother’s failure to do so will perhaps be telling in relation to her desire to properly inform the father, so that he can prepare to spend his time with the child. However in the circumstances of this case, I am not persuaded that the mother should be positively obliged to do that.
The father also proposed that both parties enrol and complete a post-separation parenting orders program. The mother did not explicitly oppose that, but during the course of the evidence of Mr K, interjected when he recommended that that occur, by saying that it had already been done. That may well be so, but it does not appear to have worked. There can be no downside to requiring the parties to again undertake such a course.
Next the father sought an order requiring the parties to maintain engagement with any therapeutic intervention of their chosen mental health practitioners. I am not persuaded that there should be any such compulsion upon the parties, at least on an interim basis.
I am therefore satisfied that there should be orders in terms of paragraphs 11, 12, 13, 14, 15, 16, 17 and 18 of the mother’s proposed orders and paragraphs 22, and 23 of the father’s proposed orders.
Finally I should address the orders sought by the mother in relation to the father being obliged to stay outside a 200 metre radius of her residence, workplace, day-care etc. In my view the mother presently has a benefit of a restraint order in relation to that, and it is best that that remain the forum for those sorts of issues to be traversed.
CONCLUSION
For these reasons there will therefore be orders as set out at the commencement of this judgment.
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I certify that the preceding one hundred and sixty-five (165) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 21 September 2017.
Associate:
Date: 21 September 2017
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