Jefford & Jefford
[2022] FedCFamC1F 539
Federal Circuit and Family Court of Australia
(DIVISION 1)
Jefford & Jefford [2022] FedCFamC1F 539
File number(s): NCC 1398 of 2020 Judgment of: AUSTIN J Date of judgment: 29 July 2022 Catchwords: FAMILY LAW – CHILDREN – Best interests – Relocation – Where the mother sought orders enabling her to relocate with the children to the United Kingdom, for the children to live with her and have no interaction with the father – Where the father sought orders restraining the mother’s relocation with the children from Australia and an equal time arrangement – Where the children have meaningful relationships with both parties – Where the parties made reciprocal allegations of family violence – Where positive findings of physical family violence committed by the father were made but the evidence does not demonstrate the children require protection from their exposure to family violence in the future – Where the mother has sound capacity to meet the children’s physical, emotional and intellectual needs – Where the father’s parenting capacity is inferior and the children require protection from the risk of neglect in his care – Ordered the mother be permitted to relocate with the children to the United Kingdom at the end of 2023 – Where as a condition precedent to the mother’s removal of the children from Australia, she must obtain a declaration that the Australian orders are registered and enforceable in the United Kingdom – Ordered the children live with the mother and spend time with the father under differing regimes, depending upon the proximity of the parties’ homes
FAMILY LAW – PARENTING – Parental responsibility – Where the mother sought an order for sole parental responsibility – Where the father sought an order for equal shared parental responsibility – Family violence – Where the presumption of equal shared parental responsibility does not apply – Where the children will continue to live with the mother – Ordered the mother shall have sole parental responsibility for the children.
Legislation: Family Law Act 1975 (Cth) Pt VII, ss 4, 4AB, 60B, 60CA, 60CC, 60H, 61B, 61DA, 64B, 65AA, 65D, 65DAA 65DAC, 65DAE Cases cited: AMS v AIF (1999) 199 CLR 160
Hepburn & Noble (2010) FLC 93-438
Malcolm v Monroe (2011) FLC 93-460
McCall v Clark (2009) FLC 93-405
MRR v GR (2010) FLC 93-424
Sampson v Hartnett (No.10) (2007) FLC 93-350
U v U (2002) 211 CLR 238
Zanda & Zanda (2014) FLC 93-607
Division: Division 1 First Instance Number of paragraphs: 106 Date of hearing: 11, 12, 13 & 14 July 2022 Place: City M Counsel for the Applicant: Mr Weightman Solicitor for the Applicant: Kekeff & Associates Counsel for the Respondent: Mr Bithrey Solicitor for the Respondent: Boyd Olsen Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
NCC 1398 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS JEFFORD
Applicant
AND: MR JEFFORD
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
AUSTIN J
DATE OF ORDER:
29 July 2022
THE COURT ORDERS THAT:
1.All former orders concerning the following children are discharged:
(a)X, born … 2017; and
(b)Y, born … 2019.
2.The mother shall have sole parental responsibility for all “major long-term issues” (as defined in s 4(1) of the Family Law Act 1975 (Cth)) in respect of the children.
3.The children shall live with the mother.
4.The mother is restrained from relocating the children’s residence outside Australia until 16 December 2023, such relocation being conditional upon her filing in this Court and serving upon the father an affidavit verifying (with documentary evidence) she has:
(a)requested a decision from a court of competent jurisdiction in the United Kingdom (“the UK”) about the recognition of these orders in the UK pursuant to Article 24 of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children signed at The Hague on 19 October 1996 (“the Child Protection Convention”); and
(b)obtained from a court of competent jurisdiction in the UK a declaration of registration and enforceability of these orders in the UK pursuant to Article 26 of the Child Protection Convention;
5.Whilst ever the mother lives in Australia, she is restrained from relocating the children’s residence more than 220 kilometres from the Post Office in City M, NSW.
6.Whilst ever the parties live within 220 kilometres of one another, the parties shall take all reasonable steps to ensure that the children spend time with the father each Sunday from 12.00 noon until 4.00 pm.
7.Whilst ever the parties live more than 220 kilometres apart, the parties shall take all reasonable steps to ensure that the children:
(a)spend time with the father (in the UK if the father lives in the UK, but otherwise in Australia) between 12.00 noon and 4.00 pm for the first seven consecutive days of the children’s July school holidays;
(b)spend time with the father (in the UK if the mother and children live in the UK, but otherwise in Australia) between 12.00 noon and 4.00 pm for seven consecutive days commencing on 28 December each year; and
(c)communicate with the father by audio-visual internet link each Sunday at 9.00 am GMT (if the mother and children live in the UK) or 5.00 pm AEST (if the mother and children live in Australia).
8.For the purpose of implementing Order 6, the parties shall exchange the children at:
(a)the McDonald’s Restaurant at Suburb F, NSW, if the parties live in Australia; or
(b)the venue nominated in writing by the mother to the father, if the parties live in the UK.
9.For the purpose of implementing Order 7(a), the parties shall exchange the children at the venue nominated in writing by the father to the mother not less than 14 days in advance.
10.For the purpose of implementing Order 7(b), the parties shall exchange the children at the venue nominated in writing by the mother to the father not less than 14 days in advance.
11.Each party is restrained from denigrating the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.
12.Each party shall notify the other of any medical emergency, illness or injury suffered by the children whilst in their respective care warranting treatment by a third party and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the children.
13.The mother shall authorise and request the principal of any school attended by the children to provide to the father, at his expense, copies of all school reports and school photograph order forms relating to the children.
14.Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, mobile telephone number and email address.
15.Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
16.The Independent Children’s Lawyer is discharged upon the latter of the determination of any appeal or the expiration of the applicable appeal period.
17.Any and all other outstanding applications under Pt VII of the Family Law Act 1975 (Cth) are dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jefford & Jefford has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN J:
These proceedings under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) concern the two young children of the applicant mother and respondent father.
The mother was born in the United Kingdom (“the UK”), but has lived in Australia since 2010.
The parties began a relationship in 2011 and married in 2013. They dispute when they finally separated – the father contends November 2017, but the mother asserts March 2020. In any event, they ceased living under the same roof in March 2020 and are now divorced.
The children were born in 2017 and 2019. The elder is now five years of age and the younger is three years of age. The children were both born following IVF procedures using donor semen of the same donor, but there is no doubt the father is their parent (s 60H).
The mother informed the father in April 2020 she was unwilling to allow the children to spend time with him unless supervised and then commenced these proceedings in May 2020, at about which time she decided to stop the children from spending even supervised time with the father.
The mother seeks orders giving her sole parental responsibility for the children, declaring that the children live with her, restraining the father’s interaction with the children, and enabling her to return and live with the children in the UK.
The father conversely seeks to restrain the mother’s relocation with the children from Australia. He wants equal shared parental responsibility for the children and, after their steadily graduated re-introduction to him, for them to live with the parties for equal time.
Interim orders were made between the parties in November 2020, providing for the children to live with the mother, to spend time with the father under professional supervision for three hours each alternate Wednesday, and to communicate with him by audio-visual internet connection each Sunday morning. Those orders prevailed without default until trial in July 2022.
The orders now made to resolve the proceedings differ from any proposed, but bear closest resemblance to those proposed by the Independent Children’s Lawyer (“the ICL”), who advocated for orders representing a blend of the parties’ fall-back positions.
proposals and EVIDENCE
The final proposal of the mother was contained within the Minute of Orders she tendered at the conclusion of the trial.[1]
[1] Exhibit M23
In support of that proposal she relied upon:
(a)her affidavit filed on 10 June 2022;
(b)the affidavit of Ms N filed on 5 May 2020;
(c)the affidavit of Ms O filed on 10 August 2020;
(d)the affidavit of Mr U filed on 10 August 2020;
(e)the affidavit of Mr P filed on 10 August 2020;
(f)the affidavit of Mr Q filed on 11 September 2020;
(g)the affidavit of Dr D filed on 11 September 2020;
(h)the affidavit of Mr R (“the maternal grandfather”) filed on 15 September 2020;
(i)the affidavit of Ms T (“the maternal aunt”) filed on 15 September 2020; and
(j)the affidavit of Ms S filed on 29 September 2020.
The final proposal of the father was contained within the Minute of Orders he tendered at the conclusion of the trial.[2]
[2] Exhibit F5
In support of that proposal he relied upon:
(a)his affidavit filed on 10 June 2022;
(b)the affidavit of Ms V (“the father’s wife”) filed on 10 June 2022; and
(c)the affidavit of Ms W (“the paternal grandmother”) filed on 10 June 2022.
The parties and the ICL relied upon the two reports prepared by the single expert psychologist (“the single expert”) dated 23 January 2021 and 28 June 2022.
At the conclusion of the trial, the ICL also tendered a Minute of Orders he sought.[3] His proposal fell between those of the parties, but was more aligned with the regime envisaged by the mother, providing for her to have sole parental responsibility for the children and allowing her the freedom to relocate to the UK from September 2023. He proposed the children’s relationships with the father be preserved, but in a relatively truncated form.
[3] Exhibit ICL3
Several tender bundles of documents were marked for identification and referred to at various times throughout the trial, but only the documents actually referred to were extracted and tendered in evidence as exhibits.
LEGAL PRINCIPLES
Orders in respect of children are made under Pt VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).
When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).
The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).
The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.
In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.
BEST INTERESTS – PRIMARY CONSIDERATIONS
Section 60CC(2)(a)
It is evident from the observations and opinions of the single expert that the children are primarily attached to and derive benefit from their meaningful relationships with the mother.[4] The father did not seek to contend otherwise. Even on his best case, he would like the children to live with the mother for not less than equal time.
[4] Second expert report at [88], [95] and [156]
The children also have meaningful relationships with the father. He said they are always excited to see him,[5] though the mother sought to down play the extent of the children’s attachment to the father.[6] The single expert saw the elder child greet the father enthusiastically and, though the younger child was less effusive, he still seemed contented with him.[7]
[5] Father’s affidavit at [81]
[6] Mother’s affidavit at [189]
[7] Second expert report at [58], [59] and [89]
The single expert detected the prospect of some insecurity in the elder child’s attachment to the father,[8] which she thought tended to militate against the movement towards an “equal time” residential regime for the children.[9] Nevertheless, according to the expert whose evidence is mostly accepted, subject to the preservation of their physical and emotional safety, the children derive benefit from their meaningful relationships with the father,[10] despite the mother’s expressed doubts.
[8] Second expert report at [157]
[9] Second expert report at [156]
[10] Second expert report at [152]
Section 60CC(2)(b)
This provision of the Act requires the Court to react to the need to protect children from physical or psychological harm resulting from being subjected or exposed to abuse, neglect or family violence.
Both parties maintained allegations which engage s 60CC(2)(b), though in some respects their attempts to invoke this provision were perfunctory at best.
Risk of sexual abuse
In summary, the mother alleges that, in December 2019, the elder child disclosed (in language commensurate with her age) the father had massaged her vagina with his penis. She later confronted the father with the child’s disclosure. He conceded the elder child had caught him in the act of masturbation (which entailed him thrusting his penis into the genitals of a sex aid, crafted in the form of a female abdomen) while watching pornography. He said he told the child he was massaging the device’s vagina with his penis. He denied massaging the elder child’s genitals with his penis. The mother alleges the child repeated the disclosure in February 2020. Following the parties’ final separation in March 2020, the mother reported the elder child’s disclosures to the police, but the disclosures were not substantiated and the father was never charged with any criminal offence.
The mother did not seek any positive finding that the father did sexually abuse the elder child. Rather, she conducted her case on the basis that the Court should find the father poses an unacceptable risk of harm to the children, which was articulated to be the psychological harm they could suffer if they are sexually abused by the father at some point in the future.
During final submissions, after the evidence had been tested, the mother’s counsel conceded the evidence was insufficiently probative to demonstrate the father posed the alleged risk of harm. While that concession was responsibly made by counsel, it is worthwhile reviewing the evidence lest the mother still harbours lingering suspicion.[11]
[11] Second expert report at [18] and [153]; Mother’s affidavit at [63], [72] and [104]
The evidence was not strong enough to demonstrate the children are at any material risk of harm from sexual abuse by the father essentially for these reasons:
(a)the father denied the allegation of sexual abuse when confronted by the mother and immediately gave her a plausible explanation about why the elder child might have made a disclosure that involved her genitals and his penis;
(b)the mother admitted in cross-examination that she accepted the father’s denial at the time and accepted his exculpatory explanation as being truthful and correct;
(c)on dozens of occasions after the elder child’s initial disclosure in December 2019, and even after her second disclosure in February 2020, the mother willingly left the children in the father’s unsupervised care knowing they would be bathed, changed and sleeping over with him, strongly suggesting she did not repose much faith in the disclosures – she admitted she was “comfortable nothing bad would happen to them at that time”;
(d)the mother’s observation of the elder child in sexual play with a doll in December 2019, which play has since ceased,[12] is just as consistent with the truth of the father’s explanation for the sexual incident (since the child undoubtedly witnessed a sexual act between the father and a sex aid) as it is with the truth of the child’s disclosure of her sexual abuse by the father;
(e)the mother did not report the elder child’s disclosures to the police until early 2020, which was after the parties ceased living together;
(f)the elder child made no disclosure of sexual abuse by the father to the police during her formal interview in early 2020 and, in fact, appears to have positively denied that her genitals were touched or massaged;[13]
(g)the disclosures of the elder child’s sexual abuse by the father were not substantiated by police upon investigation and he was not charged with any criminal offence;
(h)the father consistently denied the allegations of sexual abuse to the police, the single expert, in his evidence-in-chief, and in cross-examination; and
(i)in September and October 2020, when conferring with the Family Consultant and preparing her affidavit for an interim hearing, the mother did not contend for any unacceptable risk of harm posed by the father – only her dissatisfaction with the father’s asserted “addiction” to pornography.
[12] Second expert report at [93]
[13] Exhibit F2
The mother’s apprehension about the children’s exposure to the risk of sexual abuse really only springs from the literal terms of the disclosure made by the elder child in December 2019 and again in February 2020. In the context of the facts and circumstances summarised above, the child’s disclosure is unlikely to be reliable.
Although the mother pointed to other facts and circumstances which supposedly added weight to the alleged risk of harm posed by the father, such as his own sexual abuse when he was a child and his use of pornography, those facts and circumstances were well known by the mother either before or during the marriage. She did not consider the children were exposed to any risk of harm for those reasons then, even after the elder child made her disclosures in December 2019 and February 2020 and the father gave his exculpatory explanation. The mother only changed her mind at some point after the parties separated. She said in cross-examination “it was later that I came to the conclusion that they [the children] were unsafe”. She did not say precisely what caused her change of mind or when it changed.
Although the mother was told by the police months beforehand that the criminal investigation had been concluded, she reverted to the police in mid-2020 making further allegations about the father’s history.[14] She said in cross-examination she only did so because she was advised to by her lawyers – not because she hoped or expected the criminal investigation would be resumed. The making of the further report to the police about six weeks after this litigation was commenced by the mother, by which time she no longer wanted the children to see the father, wears the appearance of being tactical.
[14] Exhibit ICL2
Among the fresh allegations made by the mother to the police in mid-2020 was that the father admitted to her in 2018 (when the elder child was still a baby) he had thought of sexually abusing the child. She conceded in cross-examination not having made any such allegation in any affidavit filed by her in these proceedings. Even though she admitted such an omission was quite “remarkable” given the asserted importance of the issue of alleged sexual abuse of the elder child within these proceedings, she did not or could not explain how it could feasibly have occurred. The father denied making any such admission to the mother and it is unlikely he ever did so.
Rather, the father only made an admission to the mother of a quite different and more benign complexion, which was also reported to the police in mid-2020. Years before, in 2012, the father confided in the mother how he had been the victim of childhood sexual abuse and he had heard a radio program in which it was mentioned that victims can potentially later become abusers, which worried him.[15] He denied any thoughts of sexually abusing children, let alone making an admission of doing so to the mother.
[15] Father’s affidavit at [54]–[55]; Mother’s affidavit at [50]–[51]
On the available evidence, an inference is reasonably open that the mother perceived some forensic advantage in making more of the elder child’s disclosures than she earlier thought was deserved.
Risk of physical abuse
The father alleged the mother physically abused the elder child,[16] but nothing was made of the issue during the trial. The allegation was not put to the mother for her admission or rebuttal in cross-examination and it was not contended for the father that the children need protection from physical or psychological harm which could result from their physical abuse by the mother.
[16] Father’s affidavit at [25]; Second expert report at [118]
Risk of exposure to family violence
The parties made reciprocal allegations of family violence, some but not all of which are established.
The mother gave evidence of some frank physical assaults by the father, which are proven on the balance of probabilities.
In 2017, the father punched and damaged a wall within the family home during an argument while the mother was standing close by.[17] The father said he damaged the wall inadvertently but, when pressed, said he could not remember how the damage occurred. It follows that, if he could not recollect the circumstances, he would be unable to say whether it was intentional or accidental. The explanation he did eventually proffer was he thought it happened when he leaned back in a chair and his head hit the wall, but he admitted he lied to the paternal grandmother by telling her that he caused the damage accidentally with his elbow. There was no need to lie if the true version was as innocuous as he implied. I do not accept the father’s evidence on this issue. The mother’s evidence was more convincing. Given the comparative quality of the parties’ uncorroborated evidence, I also accept the mother’s version of other incidents.
[17] Mother’s affidavit at [60]
In 2014, the father pursued the mother into a room and physically restrained her for a period of time.[18] The father admitted some form of confrontation occurred, but asserted the mother was the aggressor. He asserted he was often physically assaulted by the mother,[19] which she denied, other than in self-defence.[20] I prefer the mother’s evidence to the father’s evidence.
[18] Mother’s affidavit at [56]
[19] Father’s affidavit at [57]–[58]
[20] Mother’s affidavit at [56]–[57]
In 2017, during an argument, the father threw a pedestal fan onto the ground and broke it.[21] The father flatly said the mother’s evidence was false, but I reject his evidence.
[21] Mother’s affidavit at [61]
Sometimes during arguments, the father raised his voice to such a volume the children were woken.[22] The father said this never happened, but I reject his evidence and prefer the mother’s evidence.
[22] Mother’s affidavit at [62]
The contents of an exhibit suggest the mother admitted to the police in early 2020 that there had been no violence between the parties during their relationship,[23] but I do not accept the admission is true, even if it was made. The alleged admission was not put to the mother in cross-examination for her explanation, as it should have been if the father sought to make something of it. It is well known that victims of family violence are often ashamed of their experiences and, given the mother’s professional status, it is easy to imagine why she would deny her victimisation by the father when she attended upon the police to report a complaint of a completely different kind.
[23] Exhibit ICL1
Aside from physical violence, the mother claimed she was intimidated and controlled by the father throughout their relationship, most particularly in relation to her relationships with the maternal grandparents, the parties’ finances, and his access to the children.[24] The father made similar complaints about the mother.
[24] Mother’s affidavit at [55] and [89]
Providing such allegations are made good, such behaviour is capable of being construed as “family violence” within the wide definition of that term (s 4AB). However, the evidence was not sufficiently probative to establish family violence of that type committed by either party. The mother’s counsel was impelled to make that concession in final submissions, though the father did not ever seek a positive finding in that regard against the mother.
The evidence advanced by each party was, in very large measure, nothing more than their respective perceptions of being overborne by the other. Their perceptions may well be genuine, but some level of discord attends most marital breakdowns. The occurrence of family violence is not proven merely by demonstrating disagreement, disaffection or irritation. The Act requires “violent, threatening or other behaviour” by one person to “coerce or control” the other or to cause the other to be “fearful” before such conduct enters the realm of family violence. The mother’s contention was that, aside from direct physical assaults, the father’s overbearing behaviour caused her to feel coerced and controlled. She was asked in cross-examination how she was “pressured”, but could not explain it.
Drawing upon her deep experience with “family violence”, the single expert said that, to be coercive and controlling, the subject conduct must be repetitive and must tend to deprive the victim of autonomy. The single expert acknowledged the mother seems to believe she was in a coercive relationship with the father, but intentionally abstained from expressing any opinion about whether the mother’s belief is objectively correct. No doubt the mother finds the father’s behaviour irritating and tiring, but it does not factually amount to family violence. That conclusion may be vindicated by reference to several aspects of the evidence.
The father cannot be blamed for the mother’s temporary isolation from the maternal grandparents. The mother was impelled to concede in cross-examination that her strained relationships with the maternal grandparents during the marriage was as much to do with her as it was with the father, which concessions were confirmed by both the maternal grandfather and the mother’s sister. The mother admitted she communicated in writing with the maternal grandparents, sometimes jointly with the father and other times independently of him, criticising them for their overbearing attitudes, their failure to respect the father, and their failure to give them space. Some examples were tendered in evidence.[25] The mother admitted the feelings she expressed in such communications were genuinely held at the time. The mother may have since recovered the quality of her relationships with the maternal grandparents, but that does not mean the father was responsible for the relationships formerly having fallen into disrepair.
[25] Exhibits F3 and F4
Nor is the mother’s feeling of being overborne by the father objectively demonstrated when other aspects of the evidence are considered. The single expert assessed the mother as not being unduly submissive,[26] she decided to move the family to Victoria in late 2018 to advance her career,[27] in early 2020 she had the courage to ask father to vacate the family home,[28] in early 2020 she told the father he could only see the children under supervision,[29] in mid-2020 she told the father he could not see the children at all, and at trial she proposed that the father attend at her home to exchange the children.[30]
[26] First expert report at [366]
[27] Mother’s affidavit at [25]
[28] Mother’s affidavit at [37]
[29] Mother’s affidavit at [77]
[30] Exhibit M23, Order 7
Notwithstanding the positive findings of physical family violence committed by the father, the mother’s counsel conceded in final submissions that the evidence failed to demonstrate the children need protection into the future from their exposure to family violence, either between the parties or when in their individual care.
Risk of neglect
It was common ground that, on an evening in early 2020, the father left the children alone in the family home for not less than 90 minutes while he went out for a romantic restaurant meal with another person. The person with whom he dined subsequently became his current wife. The mother was at work at the time and the children were to be in the father’s exclusive care.[31] At the time, the elder child was two years of age and the younger child was only eight months old.
[31] Mother’s affidavit at [36]
In cross-examination, the father alleged he sought and was granted the mother’s advance permission to leave the children alone. He also alleged that, the very next day, having reflected upon the impropriety of his conduct, he apologised to the mother for having left the children unattended. I reject his evidence as a fabrication.
First, the parties exchanged text messages that same evening while the mother was at work concerning the children’s welfare, in which the father sought to reassure the mother that they were well and he had fallen asleep.[32] The mother would not likely have sent those messages if she knew he was going out to dinner and leaving the children alone. The father assiduously omitted any mention in the text messages of him having been out to dinner with another person and leaving the children alone in the house. He apparently paid the restaurant bill at 9.53 pm and then had to drive home, so his assertion to the mother in one text message sent less than an hour later at 10.44 pm of falling asleep at home is almost impossible to accept.
[32] Exhibit M6
Secondly, about 12 days later, the mother found out about his restaurant expenditure on that particular evening and sent text messages to him seeking an explanation for his dining at the restaurant and confirmation of whether or not he left the children alone.[33] She would not likely have sent such messages if, as the father alleged, she granted him permission in advance to go to dinner with another person and leave the children alone. The father did not reply to those enquiries by return text message. He alleged he instead responded by telephoning the mother and giving her some form of explanation, the nature of which he did not elaborate. I sincerely doubt he did so.
[33] Mother’s affidavit at Annexure C
Thirdly, the father’s alleged apology to the mother for his behaviour the day after the incident is difficult, if not impossible, to reconcile with his assertion that she permitted it. If the mother was asked and did agree to the father going out and leaving the children behind, there was no need for him to apologise to her the next day for having done so.
The father left the children alone, intentionally misled the mother, and gave false evidence in cross-examination about the incident.
Plainly enough, the father leaving such young children alone in the house at night so he could enjoy himself was an egregious dereliction of parental duty. That he fails to accept the fact and continues to manufacture evidence in an attempt to avoid criticism only serves to compound the dereliction. It is understandable why the mother now mistrusts the father and, in the absence of any contrition by him, fears such a situation could be repeated. She worries the children are at risk of harm through their neglect by the father. The single expert agreed. The evidence establishes the need to protect the children against such risk. Given the children’s young ages and their dependency, it is a risk which will endure for some years yet.
BEST INTERESTS – ADDITIONAL CONSIDERATIONS
Not all of the additional considerations prescribed by s 60CC(3) of the Act were engaged. Only those that are relevant are addressed.
Section 60CC(3)(b)(i)
The nature of the children’s relationships with the parties has already been discussed under s 60CC(2)(a) of the Act. No more need be said.
Section 60CC(3)(b)(ii)
Aside from the mutual dislike of the father and the maternal grandparents, it was not in contest that the children have warm and loving relationships with the maternal grandmother, the paternal grandmother, and the father’s wife.[34]
[34] Second expert report at [22], [77], [88], [131], [158] and [159]; Father’s affidavit at [103]-[104] and [113]-[118]
Section 60CC(3)(ca)
The father pays child support in accordance with the existing assessment by the Child Support Registrar, but it is a rather paltry amount of about $400 per year, which goes nowhere near covering the cost of maintaining the children. Consequently, the financial burden of maintaining the children falls primarily upon the mother.
The parties have shared the cost of the children’s professional supervision services since the interim orders were made in November 2020.
Section 60CC(3)(d)
If the parties continue to live in reasonable proximity to one another, either in Australia or the UK, then there will be little day-to-day change for the children. They will continue to live with the mother and will be able to spend time with the father regularly. The mother’s application for orders enabling her to relocate with the children to live in the UK, if granted, would physically separate the children from the father unless he also relocated to the UK.
As already noted, the children would benefit from maintaining meaningful relationships with the father. The children would still be able to maintain contact and familiarity with the father if they live in the UK and he lives in Australia, but their relationships would not be as rich as if they are able to spend time in one another’s company frequently. It would be disadvantageous for the children if the quality of their relationships with the father wanes to some degree, but not necessarily harmful to them. There is a distinction to be drawn between an outcome which is positively deleterious for the children and another which is just sub-optimal. The level of interaction between the children and the father as was envisaged by the ICL would enable them to retain their filial relationships, albeit not in an optimal sense.
The maternal family live in London and the mother wishes to return and live with or near to them once she has completed her career exams in Australia. She said in cross-examination that the exams will be complete by August 2023 and she expects to learn her results by September or October 2023 – hence the proposal to delay her return to the UK until September 2023.[35]
[35] Exhibits M23, Order 5; ICL 3, Order 4
The maternal grandmother has been in Australia helping the mother with the care of the children whilst she has been improving her career qualifications, which avoids the need for the engagement of a babysitter. The mother wants the physical help and financial support she receives from her family, which need is accentuated by the minimal amount of child support the father is able to provide.[36] The father knows the mother would like such support from her family.[37]
[36] Mother’s affidavit at [130], [132] and [186]
[37] Second expert report at [51]
The father and his wife indicated their willingness and ability to relocate to the UK so he could remain living in proximity to the children,[38] but by the time of trial he gave evidence of several perceived impediments. The father is apparently still willing to relocate, but asserts he would encounter difficulty gaining employment, face trouble having children with his wife, and need time to save money for the move.[39] If the mother is able to relocate, he would want her to live in City Z rather than London, because that would suit him and he perceives it would also suit her,[40] even though the mother denies it would suit her.[41] The father accepts there is unlikely to be any immigration barrier to him and his wife living and working in the UK.[42]
[38] Second expert report at [41], [51], [68], [128] and [137]
[39] Father’s affidavit at [120]-[123]
[40] Father’s affidavit at [124]-[129]
[41] Second expert report at [31]; Mother’s affidavit at [131]
[42] Father’s affidavit at [140]
As the High Court has acknowledged, it is unlikely that relocation disputes will admit of perfect solutions. Predictions about domestic, marital and social arrangements are matters upon which minds will inevitably differ. Findings about children’s short, mid, and long term interests permissibly fall within a wide range of discretion (U v U (2002) 211 CLR 238 at 262–263).
Importantly, parents enjoy as much residential freedom as is compatible with their parenting obligations (AMS v AIF (1999) 199 CLR 160 at 223–224 and 231–232; Sampson v Hartnett (No.10) (2007) FLC 93-350; Zanda & Zanda (2014) FLC 93-607 at [132]–[136]). Only if the welfare of the children would be adversely affected should any parent’s right of freedom of mobility defer to the paramount consideration of the children’s best interests (U v U at 262). In this instance, there is no need to restrain the mother from exercising her right to decide where she wants to live, at least beyond the end of 2023, by which time she anticipates completing her further career qualifications.
Any parent who wishes to relocate with children bears no onus of proving compelling reasons for the relocation (U v U at 261; Malcolm v Monroe (2011) FLC 93-460 at [83]). But here, the reasons offered by the mother are soundly logical. The availability of family support, including reliable quality child care, financial assistance, and emotional support can be very important considerations and are matters to be balanced and weighed when considering competing proposals (see McCall v Clark (2009) FLC 93-405 at [131]–[135]; Hepburn & Noble (2010) FLC 93-438 at [43] and [49]–[64]).
It should not be assumed that the mother must subordinate her wish to live abroad to the wish of the father to remain and pursue his life in Australia (U v U at 286). The reasons for him wanting to maintain his residence in Australia ought be explored, just as the reasons for the mother’s proposed relocation are explored (U v U at 285). The father did not say why it is necessary for him to remain living in Australia; only that he now perceives some impediments to his own relocation to the UK. The principal concern seems to be his financial capacity. He wanted a reprieve of not less than two years to build his savings, but that was just an estimate. There is no objective indication that even two years would be enough time or, conversely, why 18 months would not be enough.
The father contended, inferentially if not expressly, that the proposed relocation to the UK would not be a practicable arrangement for the children’s care. However, reasonable practicability only becomes important under s 65DAA of the Act if the children are to live with him for “equal time” or instead spend “substantial and significant time” with him (MRR v GR (2010) FLC 93-424). Neither of those regimes would likely promote the children’s best interests for reasons yet to be discussed.
Section 60CC(3)(e)
There is no practical difficulty or expense in the children spending time with the father, provided the parties maintain homes within reasonable proximity of one another in either Australia or the UK.
However, if the mother and children live in the UK but the father lives in Australia, the cost of ensuring that the children spend time in the father’s care becomes problematic. The children will be too young to travel unaccompanied by air for years to come. Travel by the parties between Australia and the UK would entail the cost of airfares and accommodation. The father is unemployed and apparently has few financial resources to call upon.
Sections 60CC(3)(f) and 60CC(3)(i)
There are no doubts about the mother’s sound capacity to meet the children’s physical, emotional and intellectual needs.[43]
[43] Second expert report at [151], [167] and [172]
By comparison, the father’s capacity to meet the children’s needs is inferior, which finding vindicates the mother’s belief and explains her reluctance to actively promote his involvement in the children’s lives.[44]
[44] Second expert report at [8] and [163]
Despite the father’s reluctance to accept the reality, the evidence strongly tends to demonstrate that he:
(a)provided inconsistent subsidiary parental support to the mother in her role as the children’s primary carer while they still lived together, even though she was employed and he was not,[45] which evidence is accepted in preference to that given by the father;[46]
(b)places his own needs above the children, the most acute examples being, first, when he left the children alone at night in the former family home in February 2020 so he could attend a romantic dinner, and secondly, when he insisted on explaining to the elder child his relationship with his current wife despite the child being distressed and him having been advised by his psychologist to be gentle;[47]
(c)does not tend to the children’s physical needs as meticulously as the mother;[48]
(d)tends to focus his attention on the elder child at the expense of the younger child,[49] which he admitted in cross-examination was “potentially correct”;
(e)interacts with the elder child in a childish way and cannot easily settle her;[50]
(f)is easily distracted and inconsistent when caring for the children;[51]
(g)has personality traits which tend to make him erratic and unreliable;[52] and
(h)has physical limitations that may hinder his care for the children, as he recently applied for a disability parking permit,[53] which he presumably would not have done unless he thought it was needed.
[45] Second expert report at [17]; Mother’s affidavit at [18], [24], [28], [34], [35], [74] and [76]
[46] Father’s affidavit at [16] and [21]-[26]
[47] Exhibits M12, M13 and M14
[48] Mother’s affidavit at [90]; Exhibits M9, M10, M11, M12, M13, M21
[49] Second expert report at [17], [58], [59], [101], [168]; Exhibits M9, M10, M11, M12, M13, M21
[50] Second expert report at [60], [62], [96]; First expert report at [285]
[51] Second expert report at [17], [101], [141], [154], [168]; Exhibits M9, M10, M11, M12, M13, M21
[52] Second expert report at [104], [139], [145], [146], [149], [152], [173]
[53] Exhibit M5
Considerable attention was devoted during the trial to the father’s past and present use of gaming and pornography internet sites, but the evidence was not such as to support the mother’s assertion that the father’s current use of such sites must, by implication, be so extensive that it is liable to divert his attention from the care of the children when they are with him.
The mother described the father’s past use of pornography as an “addiction”,[54] which description the father seems also to have used in consultation with his psychologist between 2019 and 2021.[55] The father said he has used an internet monitoring system to guard against his use and prove he has not used pornography since September 2020, but it seems he relapsed in November 2020 according to an admission made to his psychologist in December 2020.[56] Even if he did then relapse, it would be more a guess than a valid inference that his current use of pornography is at anything like the level it once was.
[54] Mother’s affidavit at [81]
[55] Exhibits M1, M16, M17 and M19
[56] Exhibit M2
The mother made the same type of complaint about the father’s online gaming. He admitted in cross-examination that he spent an “excessive amount” of time gaming online when the elder child was a baby, as evidenced by his expenditure in one month in 2017,[57] but denied it was the situation now. Again, it would be conjecture rather than valid inference to find that the current level of the father’s online gaming is as high as it once was.
[57] Exhibit M8
The impairment of the father’s parenting capacity is demonstrated for reasons other than the evidence about his past use of pornography and online gaming. His completion of numerous parenting courses[58] does not seem to have arrested the concerns expressed by the single expert and others about his impaired parenting capacity. The father admits “spiral[ling] out of control” during these proceedings.[59]
[58] Second expert report at [126]; Father’s affidavit at [61f]
[59] Second expert report at [47]
The overall opinion of the single expert about the father’s parenting capacity, which is accepted as being correct, was expressed this way:
152.The children would obviously benefit from having a meaningful relationship with both parties; however if the father is not able to balance his own emotional needs in a manner which makes him an available and responsive parent, the risks of the children spending significant time with him may outweigh the benefits.
…
173.The father impressed as struggling with some psychological or personality characteristics which affects his ability to be reflective and balance the needs of the children against his own emotional needs.
Sections 60CC(3)(j) and 60CC(3)(k)
The findings in respect of family violence have already been made and discussed in the context of s 60CC(2)(b).
No family violence orders have been made affecting the parties or the children.
CONCLUSIONS
By reason of the earlier findings about the father’s commission of family violence, the presumption of equal shared parental responsibility does not apply (s 61DA(2)).
It is still possible to make an order for the parties to have equal shared parental responsibility for the children, but such an order would only follow from a finding that it would serve the children’s best interests. The evidence does not support that conclusion.
The mother professes her continuing inability to co-operate effectively with the father on matters related to the children,[60] which I accept is genuine reluctance based on her adverse experiences with him and not just a ruse to marginalise his parental participation. The mother admits the parties’ communication has been possible, albeit strained, via an electronic parental communication platform,[61] but the father still complains about what he perceives to be her inadequate communication with him via that channel.[62] He admits he would prefer that their parental relationship was “easier”,[63] implying he does not find it so easy at present. The father’s wife also perceives the parties’ parental relationship is difficult.[64]
[60] Second expert report at [6], [14], [28], [32], [33]
[61] Mother’s affidavit at [153]–[157]; Second expert report at [4]
[62] Father’s affidavit at [82]–[83]
[63] Second expert report at [47]
[64] Second expert report at [72]
The single expert considered the father’s egocentricity tended to deprive him of capacity to empathise with the needs of others[65] and, subject to factual findings being made about the mother’s complaints of his controlling behaviour, recommended against any order requiring the parties to share parental responsibility.[66] While the father’s behaviour has not been so coercive or controlling as to amount to family violence, it has been overbearing and a source of legitimate irritation to the mother. The parties are also distrustful of one another[67] and the existence of trust is critical to the success of any co-operative parenting relationship. It would be difficult for the mother to share parental responsibility with the father in the manner envisaged by the Act (s 65DAC).
[65] Second expert report at [149]
[66] Second expert report at [155], [165]
[67] Second expert report at [160]
As the undisputed primary residential parent, the mother will hold sole parental responsibility for all “major long-term issues” in respect of the children (as that term is defined in s 4(1) of the Act). The parties should not share parental responsibility.
Since no order is made for the parties to have equal shared parental responsibility, s 65DAA of the Act is not engaged.
The children should continue to live with the mother, about which there was no contest.
The critical issue for determination is how much time the children should spend with the father, the conclusion in relation to which is influenced by the antecedent findings about the father’s depreciated parenting capacity, the risk of harm to the children due to the prospect of their neglect by the father, and the mother’s entitlement to live where she chooses so long as her choice does not impinge upon the children’s best interests. The single expert’s opinion evidence about the regime which would most suitably promote the children’s best interests is also influential. Synthesising those considerations, the children should spend time with the father for several hours every Sunday afternoon, during which time he is likely to be accompanied by his wife, whom his counsel described as a “protective factor”.
In her report, the single expert recommended against the “equal time” regime sought by the father,[68] but strengthened the nature of her recommendations during cross-examination. In her primary opinion, it would be best if the children only spend time with the father if and when the mother deems it appropriate, but that idea is rejected. The orders need to be prescriptive. The mother said she would comply with orders but, given her distrust of the father, if the decision was left to her, it is unlikely the children would see much of him. The single expert’s fall-back opinion was that the children should spend several consecutive hours with the father each alternate weekend.
[68] Second expert report at [156]
In reliance upon the fall-back opinion of the single expert, the ICL proposed that the children spend several consecutive hours with the father each alternate weekend (on either Saturday or Sunday, but not both) and on each alternate Wednesday evening. The proposal is rejected. The idea about the extra time on Wednesday evening was only an afterthought by the single expert and was only floated as a possibility; not as a recommendation. Given the children’s ages and relative immaturity, it would be better for them to regularly spend time with the father for four hours each Sunday than for some eight hours spread within five days of each fortnight.
The regular routine of every Sunday afternoon is likely to suit the children better. Their security with the mother is assured and their visits to the father are predictable and confined. It is also likely to suit the parties. The father will know he has the children for four hours each week and will likely be inclined to make the best of it. Outside pursuits, in whatever form they take, are less likely to distract him and take priority over the children during those confined periods. The mother will have a regular weekly respite from the care and supervision of the children.
Current doubts about the father’s capacity to properly meet the children’s physical and emotional needs are too pronounced to permit, for the foreseeable future, the children to safely spend any more time in his care than several consecutive hours at any one time. As the children mature and become more independent, it is logical they will be able to tolerate longer periods in the father’s care, but the available evidence does not reasonably permit any inferences to be drawn about just when that might be or about the manner in which the regime might be expanded. There are too many variables. One can only look so far into the future with any sense of confidence.
For the next 18 months or so, to ensure the consolidation of the children’s relationships with the father, they should remain living within reasonable proximity of him in Australia. The mother and the children will be able to relocate their residence to the UK as from … December 2023, once she has completed her exams and the elder child has finished her first full year of school.
However, the mother’s ability to relocate is contingent upon her proving the registration and the enforceability of these orders in the UK. Proof of the enforceability of the parenting orders is important if they are to bind parties in an international jurisdiction (McCall v Clark at [11]).
There was some evidence of the younger child having some medical needs, accommodated by his NDIS plan.[69] Noting the mother is a health professional, it was not suggested the younger child’s medical needs would be unmet if she and the children move to live in the UK.
[69] Second expert report at [79]–[82], [108] and [127]; Mother’s affidavit at [179]–[181]
If the mother unexpectedly decides to remain living in Australia, or alternatively, if she relocates to the UK and the father chooses to also relocate to the UK and live within reasonable proximity to her, then the same regime will continue.
If the mother relocates to the UK but the father chooses to remain living in Australia, then a different regime must apply. In such circumstances, the children will spend time with the father during the daytime on seven consecutive days in July (during the UK school holidays) and also in late December and early January (during the UK and Australian school holidays). The children should also communicate with the father by audio-visual internet link each Sunday, which communication is not necessary if the children and the father live in close proximity in either Australia or the UK and see each other each week.
If the father moves to live in the UK, it is apparently his intention to live in City Z. It was accepted that City Z is within 220 kilometres of London, where the mother wants to live. The regime for the children to spend time with the father for four hours each Sunday is achievable if the parties live within that distance of one another. If the mother chooses to stay in Australia, she did not say she wanted to move away from City M and so, to give her sufficient flexibility, an identical radial restriction can apply in Australia.
If the parties live in Australia, the venue for exchanges of the children will be the McDonalds Restaurant at Suburb F, NSW, which is a public venue proximate to their homes. The mother’s proposal for exchanges to occur at or about the front door of her home[70] is impossible to reconcile with the sentiments she expressed to the single expert about her apprehension of the father[71] and the manner in which she conducted the case.
[70] Exhibit M23, Order 7
[71] Second expert report at [30]
It is impossible to be prescriptive about the changeover venues in alternate circumstances.
The remaining orders could not be the subject of rational dispute.
I certify that the preceding one hundred and six (106) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 29 July 2022
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