Jesson & Garrick
[2023] FedCFamC2F 252
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Jesson & Garrick [2023] FedCFamC2F 252
File number(s): BRC 9687 of 2020 Judgment of: JUDGE VASTA Date of judgment: 19 January 2023 Catchwords: FAMILY LAW – Parenting –single act of domestic violence that ends the relationship – parents now living 200 kilometres apart –best interest of the children. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CG, 61DA, 64B, 65D, 65DAB Division: Division 2 Family Law Number of paragraphs: 92 Date of last submission/s: 19 January 2023 Date of hearing: 17,18 and 19 January 2023 Place: Brisbane Counsel for the Applicant: Mr Priestley Solicitor for the Applicant: Mcvittie Legal Counsel for the Respondent: Mr Anderson Solicitor for the Respondent: Berck Solicitors Counsel for the Independent Children's Lawyer: Mr Taylor Solicitor for the Independent Children's Lawyer: C M Bint Family Lawyers ORDERS
BRC 9687 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR JESSON
Applicant
AND: MR GARRICK
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE VASTA
DATE OF ORDER:
19 JANUARY 2023
BY WAY OF FINAL ORDER, THE COURT ORDERS:
1.That the father have sole parental responsibility, X born in 2020 and Y born in 2018 (“the Children”), ("the children) including decisions regarding the children’s:
(a)Education, both current and future;
(b)Religious and cultural upbringing;
(c)Health; and
(d)Living arrangements, in terms of any changes thereto that would make it significantly more difficult for the child to spend time with the other party.
2.That in respect of decisions about major long term issues with respect to the children, having regard to the provisions of s 65DAC(2) of the Family Law Act (as amended):
(a)The father shall inform the mother about the decision proposed to be made;
(b)The father shall consult with the mother with the view to reaching terms upon which they may agree; and
(c)make a genuine effort to come to a joint decision with the mother but if no agreement is able to be reached the father may exercise his sole parental responsibility.
3.That the Children live with the Father.
4.That the Children spend time and communicate with the Mother by agreement in writing between the parties, and failing agreement as follows:
(a)That until the commencement of Term 3, 2023 the children shall spend 3 weekends out of 4 with the mother from 5:30pm on Friday until 5.30pm Sunday
(b)Commencing Term 3 2023, each alternate weekend from 5.30pm Friday to 5.30pm Sunday;
(c)During September 2023 school holidays, for 2 nights on each week of those school holidays weeks and if the parties are in disagreement as to those days the days will be Tuesday and Wednesday for both of those weeks.
(d)During Christmas holidays in December 2023/January 2024 in the first, third and fifth weeks for 4 nights, commencing at 5.30pm on the last day of the school term to 5.30pm on the following Tuesday and in each week thereafter.
(e)During Easter, June/July and September 2024 and 2025 school holiday periods for 5 days, from 5.30pm on the last day of school term to 5.30pm on Wednesday of the following week;
(f)During Christmas holidays in December 2024/January 2025 in the first, third and fifth weeks commencing at 5.30pm on the last day of the school term to 5.30pm on the following Friday.
(g)During Christmas holidays in December 2025/January 2026 in the second, fourth and sixth weeks commencing at 5.30pm on the last day of the school term to 5.30pm on the following Friday
(h)Commencing in the Easter school holidays in 2026:
(i)for half of the Easter holiday period as agreed but failing agreement, in even numbered years to encompass the Easter weekend and the mother to advise the father of the specific dates not less than 14 days before the end of school term and in odd numbered years not encompassing the Easter weekend and the mother is to nominate that period and advise the father of the nominated dates not less than 14 days before the end of the school holidays.
(ii)For 9 nights of the June/July and September holiday periods as agreed but failing agreement from 5.30pm on the first Friday until 5.30pm on the Sunday following 9 consecutive nights.
(iii)For half of the December/January school holidays as agreed but failing agreement:
A.The first half in holidays commencing at the end of even numbered years from 5.30pm on the last school day for students and concluding on the day following the number of nights representing half of the holidays: and
B.The second half in holidays commencing at the end of odd numbered years from 5.30pm on the day calculated as the middle day of the holidays and concluding at 5.30pm in the last day of the school holidays.
(iv)For the purpose of these orders:
A.Term 4 school holiday time shall be deemed to commence at close of school on the last day for school attendance for the term and conclude at the start of school on the first day for school attendance (and includes any pupil free days as gazetted in the school newsletter or similar).
B.The number of nights in the summer school holiday period shall be used to calculate one half of the school holiday period and if there is an uneven number of nights the Mother shall retain the additional night.
(i)At other times as agreed between the parties with consideration to be given to special events for the maternal family including but not limited to milestone birthday celebrations, weddings, Christenings, and funerals.
5.All changeovers at the commencement of time occur at Town B or other location agreed to in writing.
6.All changeovers at the conclusion of time occur at City C McDonald’s or other location agreed to in writing.
7.For the purpose of these orders, the weekend time usually spent by the children during school term are suspended during any school holiday time.
8.That the children’s weekend time with their mother during school terms pursuant to these orders recommence on the first Friday of each school term.
9.The children shall remain in the father’s care on the Father’s Day weekend.
10.The children shall spend time with the Mother on Mother’s Day weekend from 5.30 Friday to 5.30pm Sunday.
11.That the Father shall facilitate the children communicating with the Mother by skype/facetime/FB Messenger each Tuesday and Thursday at 7:00pm with the Mother to initiate the call at 7:00pm, and the Father to ensure that the children are available to conduct the call in a quiet and private setting.
12.In circumstances where the children are not available to accept the mother’s call then the father will ensure that the children return the mother’s call within 24 hours of any missed call
13.In respect of the children’s school enrolment:
(a)That the father forthwith provide to the mother by email a completed application form for enrolment in the school in the catchment in which the father’s residence is located; and
(b)That within 48 hour of receipt of such document the mother complete, sign and return a copy of the application form to the father by email.
14.That unless otherwise ordered herein, the parties communicate in respect of the children’s arrangements and needs by text or email.
15.That the Mother and Father shall:
(a)keep the other parent informed at all times of their residential address and contact telephone number;
(b)notify the other parent in writing at least 30 days prior to relocating their residence beyond a 20 kilometre radius from where they currently reside;
(c)keep the other parent informed of the names and addresses of any treating medical or other allied health practitioners who treat the children; and
(d)inform the other parent as soon as reasonably practicable of any significant health issue or significant illness suffered by the children.
16.That this order irrevocably authorises any person or institution including but not limited to any doctor, carer, teacher, hospital, childcare institution, school and any social, sporting or recreational organisation, to release all and any information (verbal or in writing) reasonably requested by the other in relation to the children.
17.That in the event an urgent decision must be made by either parent and the other parent is not able to be contacted after all reasonable attempts have been made, or fails to respond to reasonable requests for information, the parent then caring for the child will make that decision and inform the other parent by the most immediate means possible.
18.That each of the parties will take all steps necessary to ensure that the children are not in the presence of persons including themselves:
(a)Engaging in harassing or intimidating conduct towards the other party or members of their family or household; and
(b)Denigrating the other party or members of their family or household to or in the presence of the children.
19.That the parties shall encourage and not undermine the children’s relationship with the other and/or the other’s family members and/or the other’s partner and/or the other’s friends.
20.That the parties shall not discuss these proceedings or any issues surrounding the parties dispute in the presence of or within the hearing of the children or permit any other person to do so.
21.The parties are restrained from arranging extra-curricular or sporting activities for the children on days when the children are in the other parents care pursuant to these orders except with the express prior consent of the other parent in writing.
22.That if any dispute arises as to the children’s future arrangements then the parties will engage in family dispute resolution with an appropriate practitioner and that the process to be used for that review, resolving future disputes about the children or the terms or operation of these orders shall be as follows:
(a)The parent raising the issue in dispute shall provide to the other parent a panel of 3 family dispute resolution practitioners and written notice of the issues in dispute with such notice to state:-
(i)The parenting issue (or issues) which the parent believes needs to be resolved;
(ii)The parent’s proposal in respect of the parenting issue (or issues); and
(iii)The reasons why the parent believes the other parent should agree to the proposal in respect of the parenting issue (or issues).
(b)The parent receiving the panel referred herein is to notify the other parent of his/her preferred family dispute resolution practitioner from the panel within 7 days of receipt of the panel and if no response is given within 7 days, then the choice of the panel member is to be made by the parent presenting the panel to allow the matter to proceed;
(c)The parents shall by no later than 28 days from the date that the family dispute resolution practitioner is nominated (or such other date as agreed) consult with the nominated family dispute resolution practitioner to assist with resolving any dispute in relation to the children or reaching agreement about changes to be made to the parenting arrangements for the children;
(d)The parent raising the issue in dispute shall pay the costs of the family dispute resolution practitioner unless otherwise agreed between the parties.
23.That the Independent Children’s Lawyer be discharged.
NOTATION:
A.That pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in “Parenting orders – obligations, consequences and who can help” and these particulars are included in these orders.
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 a pseudonym Jesson & Garrick has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(Ex tempore)JUDGE VASTA
This is an application for parenting orders. The mother, Ms Jesson, was born in 1994. The father, Mr Garrick, was born in 1994. The parties met in 2015, but began a relationship in July 2017. There were two children born of the relationship, Y, who was born in 2018, and X, born in 2020. The parenting orders sought are in relation to Y and X.
The mother has a previous child, D, who was born in 2013. The father of D is Mr E.
The mother, father and the three children lived together for the most part in a house in Town F, New South Wales. During that time the mother was the main carer of the children and the father was the breadwinner. It was noteworthy that the family only had one car and the mother would have to drive the father to work and then drive the children, if needed, anywhere else.
It is not an understatement to say that the mother was working very hard during this time. The mother complains that the father did very little in the way of helping her around the house during these years.
The father conceded that there was never any discussion about who would work and how they would share the responsibility for the care of the children, but it seemed to just naturally progress. The father felt that it was his responsibility financially to support the mother and the family and that the mother would take care of the children in the household.
The father said though that if he raised matters with the mother, she would get defensive and argue with him and that his personality was one where he did not like confrontation and so he tried to avoid arguments. That much has become obvious during the course of this trial.
The mother also complained that the father played video games for an inordinate amount of time and he would get angry when playing the video games and take out his temper on the game control devices and other pieces of furniture around the house. The father agreed that he did have a short temper, but he understood that he had such a failing and he worked with a counsellor for some time to improve it. The father also agreed that he did play video games too much and he has cut down the time in which he plays video games presently.
The mother reported that, in late June 2020, the father was interested in taking up work, which would mean that he would be away from the house during the week, but would return home during weekends. According to the mother, this caused her to reassess the relationship. She said that on 22 June 2020, she told the father that she was unhappy in their relationship and she wished to end it, with the two of them separating, but remaining under one roof.
She said that the paternal grandmother came to visit the family on the birthday of the father, which in 2020, and that the father then told the mother that the paternal grandmother would take the children to Brisbane with her for a few days so that the mother and father could have a chance to talk things through.
The mother reported that the father was then not interested in talking and so she drove to City G with D on 1 July 2020. The mother said that she arranged to stay with a friend, Mr H, who lived in a motel in City G. She said that she had met Mr H online through a private social network app. The mother said that while she stayed with Mr H, she slept in one bed and he slept in his own bed and that there was no intimacy at all. The mother accepted that she did not know enough about Mr H and, with hindsight, should not have taken D with her to see him.
The father, however, said that he was aware that the mother was having an affair and this is what led to the separation on 22 June 2020. He said that he knew that the mother had been exchanging naked photos with Mr H and chatting about sexual matters. He said it was the mother’s idea for the paternal grandmother to take the children to Brisbane for a few days and he said that he knew that the mother was driving to City G for the purpose of meeting her boyfriend on 1 July 2020.
The mother drove to Brisbane to collect the younger two children on 2 July and then drove home. She said she was contacted by the father on 3 July, who said that he wanted to drive the children to Town J and he did so. On 5 July 2020, the father sent the mother a text message saying that he would not be bringing the two children back from Town J.
The mother called the police to do a welfare check. The father said the police, when conducting that welfare check, told him that he should return the children to the mother. He then did so. The mother said that the father then began packing his belongings at the house and told her that he was eventually going to live with his Aunt in Town J.
It would seem that the supposed innocent trip to City G had been the source of quite a deal of angst. Mr E, the father of D, had concerns as to the mother’s behaviour in relation to this visit. Whilst the mother had told this Court that there was no intimacy with Mr H, in a text message (that has been marked Exhibit 3), the mother said to the father, “Clearly I wasted my time being with you because you couldn’t even see I was faithful until the end of June last year.” This time of end of June last year corresponds with 1 July, being the time that she saw Mr H in City G.
This led then as the background to an incident which is pivotal in this narrative. This occurred on 14 July 2020.
According to the mother, around lunchtime on Tuesday, 14 July 2020 she was at home at Town F. She said she was organising clothes in X’s room and she heard the father talking on the telephone. He was on the outside of the balcony and she said she could hear his side of a conversation. She heard him say the name “Ms K” and she believed that he was referring to her stepmother, Ms K. She said that she heard the father say words to the effect, “Ms K, can you come and pick me and the kids up. Mr E is not going to let D come back. Does she even know what Mr E is planning?.”
The mother said that she couldn’t believe what she was hearing. She deduced from the words that she had heard that the father was intending to take the children. She said that she became very upset and she was confused about the references to Mr E and D. She said she went out to speak with the father about what he had said, and he told her that Mr E was not returning D because she, the mother, was an unfit mother.
The mother again said she couldn’t believe what she was hearing. She knew that the father was talking to the stepmother and she could hear the stepmother continuing to say things to the father on the phone. She said that the father was taunting her, telling her that he was going to take the youngest children from her also. She said, “I admit that out of despair I slapped (the father) in the face once. The father started yelling at me. I then walked inside.”
She said that she was very upset. She called her grandmother (maternal great-grandmother) and asked her what to do. The great-grandmother said that she had spoken with her husband, who advised that she (the mother) should take the children to a friend’s place to diffuse the situation.
She said that she picked up Y and X and put them in the car. She was still on the phone to the great-grandmother at the time and that the great-grandmother was on speaker phone. She said that after putting Y in his car seat, the father ran out, snatched the keys out of the ignition and then refused to get out of the car.
She said that she then saw her stepmother, Ms K, pull up out the front of the house and park right behind the car. She said she saw her get out of the car and come towards her. She said that the father then got out of the car, went to the bonnet and lifted it and disconnected the battery. She said that she jumped in the car and tried to lock the doors, but was not able to do so because there was no power to the car.
She said that her stepmother tried to open Y’s door and started removing him from the car seat. She said that the father took Y and he went inside and came back outside without him. She said that, as this was happening, she got out of the car and grabbed X and tried to leave on foot. She said she tried to walk from the house with X and that her stepmother and the father pinned her between them by a fence. There was another incident that occurred, but the police arrived soon afterwards and she was arrested.
The police material puts things in a different way. The police material states that there had been some form of argument because the mother had commenced a relationship with a male by the name of Mr H. The father had been sitting on the front veranda of the house. The mother has learned that the father had knowledge of the former partner, Mr E’s intention to seek full custody of her eldest child, D. This caused the mother to approach the father, who was seated, and attempt to rip the phone from his hands. The father resisted her attempts and was subjected to a number of strikes and scratches about his head and face by the mother. At the time of this assault, the father was on the phone to Ms K, stepmother of the mother, who overheard the commotion.
Police noted that they were called, but could not attend immediately. They began to receive further calls from the grandmother of the mother, as well as from Ms K, the stepmother. Police said they were informed that the mother had attempted to leave the premises in a vehicle with two of the young children, however, was prevented from doing so by the father. The father managed to get into the vehicle and remove the keys to stop her from leaving. After removing keys from the ignition, the father was again assaulted in the vehicle by the mother. It was then that Ms K, the stepmother, arrived and other incidents occurred.
The father said that he had concerns about the mother’s current state of mind and that she had been neglecting the children. The father had reported that the mother had left the five-month old baby in a visibly soiled nappy and jumpsuit for an extended period of time, which caused a significant rash to her groin area. The father had also raised concerns about who the mother had been associating with when she had the children in her care.
According to the stepmother, who gave evidence on oath in another proceeding, when she arrived at the property, she could see that the father was in the driver’s seat of the car and the mother was in the passenger seat. She could see the mother physically assaulting the father, such that he ended up out of the vehicle and on the ground, whereupon the mother slid over and sat in the driver’s seat. The stepmother said that Y was in his car seat, screaming and crying, as he could see what was happening and that she called for the maternal uncle, who happened to be there, to get the child out of the car seat.
I have described the incident from all views of the evidence because it was this incident that caused the physical separation of the mother and father. The father acted proactively in removing the children from a dangerous situation. As he had previously acted on the advice of police when he returned the children from Town J, the father again acted on the advice of police, who told him to take the children far away from the area.
The mother has tried to explain her actions this day as an overreaction to hearing news that the father was planning to leave with the children, assisted by the stepmother. However, the father totally denies that. The stepmother said the following on oath. That she went to the property because her husband, the maternal grandfather, asked her to attend. She said the father did not ask her to come to the premises at all. She said that the father had called her, the stepmother, to see whether she had been the person who had called the police about Mr H regarding his criminal past.
I am concerned about the evidence of the mother in relation to this incident because it is a pivotal incident and it is not one of the minor matters that give some “colour” to the relationship as one often sees in affidavits.
I am of the view that the mother has fabricated parts of her evidence regarding this incident. I am of the view that she fabricated her evidence that she did not have any intimate relations with Mr H at City G on 1 July 2020. I am of the view that she fabricated her evidence that she only hit the father once by way of a slap. I am of the view that she fabricated her evidence that she acted in this way because the father had said he and the stepmother were going to take the children away.
It seems to me that it is far more likely that her ill-judged dalliance with Mr H was being spoken about and her foolishness was clear for everyone to see. It is also clear to me that she believed that the person, Mr E, was now going to take action because of this. She lashed out in her anger. I do note that the stepmother gave evidence that, as she tried to keep the mother from walking away with the child, X, the stepmother said, “You’re breaking my heart.” And the mother replied with words, “Fuck your heart,” to which the stepmother responded, “All this for a dick.”
The sister of the mother had written, in her affidavit, that in March 2021, she was living with the mother and Mr H was also there and at that time Mr H was partaking of drugs. This evidence was not very important, yet the mother in her instructions was so vehement in her denial that she had her Counsel accuse the sister of perjury and fabrication. As The Bard himself would say, “Methinks the lady doth protest too much.”
I am mentioning these matters because it puts into context the episode of domestic violence. It may be true to characterise it as a one-off incident, and it may be that there is a very low risk of something like this occurring again. However, there has been a concerted effort to minimise this incident. Even Counsel for the Independent Children’s Lawyer (“ICL”) at one stage sought to suggest to the mother that her behaviour was somewhat “understandable”. Unless anyone needs reminding, this Court is at the forefront of society’s denunciation of domestic violence. Domestic violence is never “understandable”. It is never justified and it should never be sanitised in the way that it was at one stage attempted to be sanitised in this Court.
From this day onwards (14 July 2020) the children have lived with the father.
This matter first came before the Court on 6 August 2020. On that day it came before Judge Middleton. His Honour made an order pursuant to s 69ZW of the Family Law Act 1975 (Cth) (“the Act”). He ordered that the children be represented by an Independent Children's Lawyer and that the parties attend a child-inclusive conference.
After the child-inclusive conference the matter came back before His Honour on 28 October 2020. His Honour made no order for time, but rather, because of the domestic violence order that had now been put in place because of the incident on 14 July 2020, he allowed for the father to be able to communicate with the mother and/or the mother’s solicitor for the purpose of making arrangements for the children only. He set the matter down for an interim hearing on 16 March 2021.
On that date, His Honour did not hear the matter, but simply adjourned it to 29 April 2021. It seems that there was a family report that would be completed by that day. That family report was completed and, on 29 April 2021, His Honour ordered that the children live with the father and that they spend unsupervised time with the mother for eight hours each Saturday from 1 May 2021 and that each alternate Saturday thereafter the children spend time with the mother from 8 am till 4 pm. These Saturdays alternated between a City L changeover and an City C changeover. Other ancillary orders were made as well.
The matter then came before the Chief Justice on 10 August 2021. It was part of the winter callover. The Chief Justice set the matter down for a family dispute resolution conference and adjourned the matter to himself in November and that the directions hearings, other than what he had ordered, were to be vacated.
On 10 November, the matter again came before the Chief Justice. He set the matter down for a compliance hearing on 18 March 2022 and he made orders by consent that the children spend time with the mother on a four-week cycle. He ordered that on the second weekend, the mother was to collect the children at 9 am on a Saturday at the M Store and return the children at 4 pm Sunday. He ordered on the third weekend for the father to deliver the children to City L at 9 am Saturday and to collect the children at 4 pm on a Sunday. And he ordered, on the fourth weekend, at 9 am Saturday, the mother was to collect the children from City C and return the children at 4 pm Sunday. The Chief Justice made other ancillary orders for the case management of the matter.
On 18 March 2022, the Chief Justice set the matter down for trial before me to commence on 17 and 18 October 2022. As a result of an illness that I suffered the night before, I was not able to hear the matter on 17 October. The matter was mentioned by Judge Cassidy and she made some case management orders.
I mentioned the matter on 26 October and set the matter down before me to begin on 17 January 2023 and have heard this matter on that day, the next day, 18 January and today, 19 January 2023.
The reason that I have decided to give my reasons ex tempore is that the school year is about to begin and it would seem to me that it would be in the best interests of the children for me to give a decision now, rather than for a decision to be made whilst Y has just started his first year of prep. Given I will not be back in Chambers until after school has started, the necessity was for me to give this judgment today, notwithstanding it is somewhat rough and ready.
The current situation is that the mother is having time with the children, as per the order of the Chief Justice of 10 November 2021. The mother has recently moved to Town B, a town just south of City G. Town B is 187 kilometres from City C and the driving, on a good day, would have a trip around the two and a half to three hour mark.
The father is still living in City C, but is now in a relationship with the sister of the mother. That lady is pregnant with their child, who is due to be born this year. That child will be both half-sibling to Y and X, as well as first cousin to them.
The mother has contended that the father is unfit to have the children under his care. She has complained that the children are not fed properly by him. She has complained that the children are often dirty and in a poor state of hygiene when she sees them. She said that she could not see any positive parenting from the father since separation.
When one looked at the complaints that the mother was making about the father, it would seem to me that they were quite exaggerated, sometimes grossly so. It is uncontested that when the mother sees the children, they have endured quite a long drive. It is unsurprising that they may be untidy, irritable and in some cases needing a change of nappy. Whilst the distance between the parents is now some 187 kilometres, it has been, in the past, in the region of 300 to 350 kilometres away, which is a significant difference.
The Court has had the advantage of records from the general practitioner, that is, the surgery at which the children attend, as well as the educational institutions that the children have attended. If the problems that the mother had identified were of any moment, there would be at least some corroboration in those documents. The fact that there is nothing in the records of the educational institutions, nor the general practitioners that would provide any support for a claim that the children are not being fed properly or are in poor hygiene, that’s where they would be. The fact that there is no information of that kind is quite telling.
The mother took every opportunity in her evidence to stick the proverbial knife into the father. She even swore that the father would not allow her to see the children without a Court order. This is patently wrong and extremely misleading. She was very quick to point out the splinter in the father’s eye and yet she has ignored the plank in her own.
This is demonstrated quite plainly when she spoke about the anguish that Y must have felt being separated from the mother, who was his primary attachment from July 2020. Yet when I asked the mother whether she wanted me to inflict the same anguish now on X, who was only eight months older now than what Y was in July 2020, the mother said that X was older and she would be able to cope. To my mind, this illustrates an appalling lack of insight.
The father in his evidence made a number of concessions. He conceded that he had not properly engaged the mother in making decisions. He conceded that he had not always kept the mother informed. He said that his legal representatives told him, in no uncertain terms, that his co-parenting had not been up to standard. They explained to him what is expected, not just by Courts, but by society in regards to co-parenting. He said that this caused him some soul searching and he ensured that he completed the Triple P parenting course.
The father’s partner, Ms N, is, as I have said, the sister of the mother. Obviously this has caused a great deal of turmoil within the greater family dynamic. The sister, Ms N, said that she has not spoken to the mother for quite some time. The mother, in her evidence, said that she had concerns about the sister. What was put to me is that there had been a belief that the sister, Ms N, had suffered from bipolar disorder.
The sister herself gave evidence that she had gone to hospital to have her tonsils out. Something had obviously happened there and she was seen by a psychiatrist whilst in hospital. It was there that she was diagnosed with bipolar disorder. She said that she then commenced seeing this particular psychiatrist about once a month. She agreed with the suggestion that she may have seen this psychiatrist about 20 times. All of this occurred whilst she was in City O.
She said that, on the last occasion of seeing this particular psychiatrist, he said that he was closing his books and that he would need to refer her to another psychiatrist. He did so and it turned out to be the same psychiatrist who was treating her mother. Her mother, there is a suggestion, has also been diagnosed with bipolar disorder.
The sister then said that she left City O and she moved to City P. Whilst she was in City P, she attempted to keep up her psychiatric health schedule. She spoke to her GP and her GP said to her that she could go on a waiting list or she could see a doctor by video link almost immediately. However, that doctor would be a doctor based in Melbourne.
The sister, in her evidence, said that her GP wished for there to be another psychiatric evaluation because he, being the GP, had some concerns about the diagnosis, but, quite properly, as a GP, would not be allowed to do anything about that diagnosis and it would have to be something that was looked at by another psychiatrist.
That other psychiatrist did speak to and examine the sister, virtually. The psychiatrist reported back to the GP that it was his opinion that the sister did not have bipolar disorder, but instead had a combination of anxiety, depression and PTSD.
Since that time, the mother has moved to City C and she is regularly in contact with her GP and she and the GP are managing those symptoms. As the sister is now pregnant, there is no medication being given to the sister, but, as she explained, this is something that has been done in consultation with the GP. She said that she is on some form of waiting list to attend some form of counselling to assist with the symptomology of depression/anxiety/PTSD.
The mother makes the submission that there is a risk with the sister because the Court simply does not know how her mental health may affect her parenting. It would seem to me, though, that the sister, in her evidence, was extremely candid, knew exactly what she had to do and was compliant with whatever regime she was put upon. She showed remarkable responsibility.
I do not have any concerns about the sister, having watched her quite extensively and looked for the tell-tale signs of someone who is excessively anxious or depressed. She gave her answers clearly. She understood all of the questions. It must be noted she is under the care of medical professionals, not just for her own mental health, but for her pregnancy.
For those reasons, I do not have any concerns as to the woman, Ms N, and whatever risk is posed is not an unacceptable one.
I have been greatly assisted by the evidence of Mr Q. Whilst it is that Mr Q gave a family report, which was dated April of 2021 and is now some one year and nine months old, the observations that were made there are still apposite. Mr Q, when he gave his evidence before me yesterday, was updated as to what had happened in the intervening time.
Mr Q spoke quite extensively about the theory of attachment. At paragraph 118 and following he said this:
In my view, the notion of primary attachment has particular significance for the children at this time, particularly for [X]. Theoretically this is an important consideration during a child’s first three years. Primary attachment typically develops when a child is six months old, approximately. I note that [X] was five months old when the parents separated. Even though the mother may have provided the majority of care to the youngster before separation, it is unlikely that a primary attachment developed. I would assume the youngster is now primarily attached to the father. Theoretically a child may become distressed when away from the primary attachment figure for any significant length of time. However, from age 3 approximately most children will develop an increased capacity to establish and maintain multiple attachments. For young children it is usually preferable that visits with a non-custodial parent be reasonably short and relatively frequent. Sole parenting can be very challenging and the sole care of the younger children even more so. I accept that the father likely benefits from practical supports in his parenting, whereas such may not be the case for the mother. On balance, I consider it appropriate for [Y] and [X] to remain in the care of the father. I also have a view that the mother has an important role in the children’s lives and should be spending time with them regularly.
He then spoke about overnight visits. He said that the overnight visits should be looked at conservatively. In his evidence before me, he said that those recommendations (one year and nine months ago) were for fortnightly visits. He noted that things have moved on well, being that there are visits every three out of four weeks. He commented that when children are young, it is better for more frequent, but shorter time visits. He said that he was pleased to see that this regime had been going on now for some 14 months.
He said that it is better for children of a siblingship to be raised together, noting that the children were about to have a half-sibling be born. He noted also that the primary attachment of the children has become the father. He said that is an issue for X, though less now for Y, as he was four going on five. He spoke of the disruption to the primary attachment causing problems for children, but one does not see the results of those problems until quite some time later.
He said the children need to grow up thinking that the world is a safe space and that they have a place in it. He noted the disruption that must have occurred for Y, but, quite wisely, said that we cannot turn the clock back for Y, but a disruption for him again now could compound any problems that arose from the first separation that he had. He acknowledged that Y should be able to commence two overnight visits within the next six months.
Mr Q talked about block time and he said that block time can occur when formal schooling commences, but he noted that X will not be ready at the same time that Y is. He also said that siblings should not be split. He was asked about Christmas holidays and he said that, at this age, he did not think three week blocks were appropriate for these children.
The principles governing the court’s determination in this matter are set out in the Family Law Act 1975 (Cth). Section 65D of the Act, subject to s 61DA, the presumption of equal shared parental responsibility, and s 65DAB, parenting plans, gives the court the power to make a parenting order. A parenting order is defined by s 64B of the Act. In deciding whether to make a particular parenting order, s 60CA requires that I must have regard to the best interests of the children as my paramount consideration.
In determining what is in the children’s best interests, I must consider the matters set out in s 60CC(2), the primary considerations, and s 60CC(3), the additional considerations.
There are two primary considerations. The first is the benefit to the children of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence. The Act indicates that these considerations are to be considered as having particular importance. They are described as primary. And as a note to s 60CC indicates, they are consistent with the first two objects of Part 7, as stated in s 60B, that the best interests of children are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests and protecting them from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence.
There are 14 additional considerations set out in s 60CC(3), which I will refer to later in detail in these reasons.
I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with a child’s best interests being treated as paramount; that is s 60CG. I will also be guided by s 60B, which sets out the objects of Part 7 of the Act and the principles underlying it.
I must now consider the application of the legal principles in the circumstances of this case, namely the background facts and the findings that I have made and how these apply in determining what parenting orders are most likely to promote the best interests of Y and X.
Turning firstly to the application of the primary considerations, namely
(a)the benefit to the children of having a meaningful relationship with both parents and
(b)the need to protect the children from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence.
My conclusion as to these primary considerations are, in summary,
(a)it is important to Y and X that they have a meaningful relationship with both their mother and father and
(b)there is no need to protect them from being exposed to the risk of family violence, harm or abuse.
My reasons for reaching those conclusions are as follows. The children have been having a meaningful relationship with both parents. Even though that was disputed by Counsel for the mother, such submission must be rejected. The mother has been having a meaningful relationship with the children. It may not be the optimal one that she wants and it may not be the one that she desires or craves or insists upon, but it is a meaningful relationship.
The children know who she is. They see her very frequently. They understand who she is, where she lives, what it is that she does. This understanding will increase in time. For anyone to describe the relationship, which is currently being undertaken by the mother and the children, as not being meaningful, is being nothing more than mischievous.
Both parents, though more the father, to their credit, acknowledge that it is important for the children to have the meaningful relationships with the other parent. Both of them have a committed involvement as parents in the children’s life.
Whilst there was the incident of domestic violence, as inexcusable as it was, the evidence before me is one that shows that the incident was one where it is unlikely to be repeated. As far as the children are concerned, there is no evidence of either parent treating either Y or X with anything other than the utmost love and consideration.
I treat these primary considerations and my findings as being central to the structure of the orders that I ultimately propose to make with respect to the best interests of Y and X. Having made that finding, s 60CC(2A) has no application here.
As far as the additional considerations, I will go through them seriatim:
(a)The children are far too young to be able to express any views as to what should be occurring. And they, quite properly, have not been asked in the course of any report writing or anything of that nature to venture on such opinion.
(b)I have looked at the nature of the relationship of the child with each of the parents. Whilst it is that the children have had limited contact with the mother since July 2020, I have considered that the time that they have spent has been quite meaningful. The relationship of the children with their father is easily ascertained and that does not cause any issues for me.
(c)I have also looked at the nature of the relationship of the child with the other members of the greater family. What is clear is that the father has had quite some support in City C from his aunt, from his cousins and from other relatives. He now has support from his new partner, who is the aunt of the children. I have had regard to the fact that the mother has had support from her extended family, though I do note that they are now at least an hour’s drive from where she lives, whereas the supports for the father are very close. It has been pointed out that one of those supports, the aunt, is battling cancer, but this has not diminished the fact that she can, when called upon, still look after the children and support the father. I have looked at the extent to which each of the child’s parents have taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the child. It is true that the father has been the one who has been making the decisions. It is true that he has, whether deliberately – and I do not accept that he has deliberately, but rather inadvertently or ignorantly, not allowed the mother to participate in those decisions. It seems to me that part of that reason is that, as he explained, he knows that the mother will argue with him and he simply wants to avoid the argument. It was instructive that he spoke about the way in which the mother would answer him. The mother put in a number of text messages that the father had sent. The mother, through her barrister, also criticised the father for not involving the mother in decisions and particularly spoke of only in November texting the mother about schooling. Again, it was somewhat instructive that the mother did not put her own response into evidence. The father read out the mother’s response when questioned in the witness box yesterday when he said that he had sent her a text talking about schooling and explaining the schools in the catchment area and whether, if she did not agree, could they speak about other schools and what would happen from there. Her reply on 3 November was, “Schools in my area has not been an option for me to look into as my proven effort to keep me as a parent on the paperwork has been appalling. I’ve looked into one here. However, being that Y hasn’t been to a four-year old check or not that you have made known to me. Again, great effort, then I need to know all of his medical information, psychologist information and all.” With that as a response, one can understand why the father was somewhat reticent to keep communicating with the mother. I have taken into consideration the fact that the mother has spent whatever time with the child as she can and has communicated with the children whenever it is that she can.
(ca)There is no information that either of the parents have failed to fulfil their obligations to maintain the child.
(d)I have looked at the likely effect of changes in the circumstances of the child. What is clear here is that the children have built a life in City C. The mother had been living in Town R. She has moved to Town B because she has found a job there. She has no other supports in Town B. All her supports are back in Town R. She has not told this Court why it is that she cannot, or will not, move to City C. The father wishes to stay in City C because this is where he has set up his life. This is where his supports are and the children now have roots in the community. But it is that the mother, as is her prerogative, wishes to stay in Town B and the father wishes to stay in City C. This means that if the status quo is maintained that the mother will only be able to see the children in a way that is both appropriate for the children’s age and somewhat limited given the distance between them, although I do note that such distance, since she has moved to Town B, has lessened. If it were that the child were to move to Town B and live with the mother, I have spoken already of what it is that Mr Q has said. The children have a primary attachment to the father which would be distressing for them to have severed. The children have the support from greater family, including now their own maternal aunt, who is also their stepmother, and the children are settled, have been at educational institutions and are ready to venture into the community. Those changes in the children, if it were that they were to move out of the area, has been very much a focus of mine. I do note what effect that would have on either parents and I also note what effect that would have on the newborn half-sibling/cousin of the children.
(e)I have taken into account the practical difficulty and expense of the children spending time with and communicating with the parents and whether that would substantially affect the children’s ability or right to maintain a personal relationship and direct contact with both parents on a regular basis. It seems to me that the orders proposed by all parties, whether that means that the children lives with the mother or lives with the father, are sufficient that those problems can be overcome whilst still not being optimal for the children.
(f)I have already spoken of the capacity of each of the children’s parents to provide for the needs of the children, including the emotional and intellectual needs.
(g)I have taken into account the maturity, sex, lifestyle and background of the two children.
(h)I have noted that the mother identifies as an Aboriginal person and therefore Y and X will identify in the same way, as will the newborn half-sibling/cousin. I do note that the father acknowledges this. And whilst he has done very little so far, neither is there anything from the mother as to how it is that she would assist the child’s right to enjoy their Aboriginal culture and with other people who share that culture. It may be that the children have been too young to expose them, but the fact that both parents have acknowledged this aspect of the children leads me to believe that this is an aspect of their lives that will not be neglected.
(i)I have already spoken about the attitude to the children and the responsibilities of parenthood demonstrated by each of the children’s parents.
(j)I have spoken about the family violence aspect.
(k)There is conflicting evidence as to whether a family violence order is still in place. The mother gave evidence to me that the order has expired, yet the transcript (that is exhibit 4) has in it that a two-year order was made on 12 March 2021 and so will not expire for another nearly two months. Be that as it may, I have taken into account the nature of the order and the circumstances in which the order was made, such that it has been considered by me.
(l)I have also tried to make orders that would be least likely to lead to the institution of further proceedings.
(m)I have taken into account all other matters that I feel are relevant.
Under s 61DA(1), when making a parenting order, the Court must apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility for them. The presumption does not apply, however, if there are reasonable grounds to believe that a parent has engaged in abuse of the children or family violence. In this case, having regard to the findings I have made regarding the family violence, there is no presumption. This means that I am required to still look at whether equal shared parental responsibility is in the best interests of the children.
This has been a very perplexing issue. All three litigants, that is, the mother, the father and the independent children’s lawyer, have asked me to implement a regime where the parents have equal shared parental responsibility. I have looked at the past. As counsel for the mother, Mr Priestly, so eloquently put it, there is no greater indicator to the future than what has happened in the past.
The fact is that these two persons just cannot make a decision together. The way in which the mother communicated with the father when he asked her about schooling really illustrates this point. The way in which the mother has given the instructions to her counsel to litigate this matter gives me very little hope that the two of them can communicate. The way in which the mother proverbially stuck the knife into the father during her evidence gives me very little comfort that the two could ever civilly talk and come to a decision about the children. The fact that the mother is the sister of the current partner of the father does not make anything easier. In fact, it muddies the waters. The mother has said that she has concerns about her sister and, in fact, instructed her barrister to submit to me that, because of the sister being in the household, there is an unacceptable risk to the children.
As I said during the course of the trial, the mother has litigated this matter, in the way that she has, because she has felt wronged at what happened in July 2020. She has felt that having the children taken away from her on that date was not justified. Quite frankly, the way in which she behaved on that day did justify the children being taken away from her. What has happened since then has been somewhat unfortunate for the mother, but it has been a matter that has kept the children safe. The mother is angry about what has happened and, in effect, wants the symbolic action of the Court returning her children to her to vindicate that what occurred back in July 2020 was something that should not have happened and that therefore her children should be returned to her.
As I said during the course of argument, this may be something that is correct if we were talking about an inanimate object, a piece of property or even a pet, but it is not the way in which a Court or society deals with children. Whatever happened back in July 2020, whether the mother believes it to be unjust or not, happened. As Mr Q wisely said, “We cannot turn back the clock.” But because something unjust happened does not justify doing something that we know is not in the children’s best interests. But it seems to me that the mother cannot, and will not, see through that, so how is it that these two will communicate?
The ICL made a very telling submission when he said to me that everything that the Court had spoken about was correct, but if the Court were to make an order for sole parental responsibility and give that to the father, then it would cause a resentment in the mother which would exacerbate her feelings of unjustified conduct on behalf of the father, and of the Courts, and that this could be deleterious for the children.
I agree that it could be deleterious for the children, but the mother, and it would seem the other parties here, are asking me to make an order for equal shared parental responsibility as a symbolic gesture. None of them have talked about how it is that these parties will be able to communicate. I take into account what Mr Q has said that, in the heat of battle (as the parties believe that they’re in a war against each other) the parties can say certain things, but once it is that a Court makes an order, they settle down. They then just get on with their lives and they find that they are able to communicate. I accept that that is what happens in most cases. I just do not see that this will happen in this case because there will be the ever present reminder for the mother that her sister is now living with her ex-partner and is exerting some parental duties upon her own children.
That is, again, maybe unfortunate for the mother, but it is not something that I am of the view will simply settle down and allow the parents to eventually be able to communicate. For this reason, I am of the view that in the children’s best interests there should be an order giving sole parental responsibility to one of the parents.
I now look at the issue of with whom the children should live. Because the parents are so far away from each other, the Court must choose a parent with whom they should primarily live.
For all of the reasons that I have previously espoused, it would seem to me that, in their best interests, they should stay where they are. This means that they should live with the father.
If it is that they should live with the father, then it should be that the order for sole parental responsibility should be made for the father to exercise. However, he should exercise his sole parental responsibility by informing the mother of any decision that needs to be made, to ask for her input, to engage with her as to what is the best decision and that he should attempt to reach a mutually acceptable decision. But if it is that they cannot agree, then and only then, should his decision be the one that is made.
As far as the rest of the orders that should be made, I am of the view that, with regard to the draft orders that have been provided to me by the ICL, those orders are quite adequate but I have made some amendments of my own to reflect what I consider should be the time spent by the children with the mother.
I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Dated: 15 March 2023
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