JOHNSON & KNIGHT

[2014] FamCA 107

FAMILY COURT OF AUSTRALIA

JOHNSON & KNIGHT [2014] FamCA 107

FAMILY LAW - CHILDREN – Family Law Act 1975 (Cth) – Where the mother seeks to relocate interstate with the children – Where the mother has a history of drug use – Where the mother has a criminal history –Where the mother has many health issues – Where the father is a recovering alcoholic – Where the father has a history of abusing prescription medication – Where the father has narcissistic personality traits – Where the parties’ attitude towards each other is hostile – Where the children are exposed to family violence between the parents – Least detrimental alternative – Mother’s application to relocate dismissed.

APPLICANT: Mr Johnson

RESPONDENT: Ms Knight

INDEPENDENT CHILDREN’S LAWYER: Julie Fotheringham

FILE NUMBER: BRC 3147 of 2010

DATE DELIVERED: 25 February 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 21, 22 and 23 August 2013;
and 3 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Black

SOLICITOR FOR THE APPLICANT: Smith & Associates

COUNSEL FOR THE RESPONDENT: Mr Beehre

SOLICITOR FOR THE RESPONDENT: Martin Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Pedder

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

Orders

1. The children, C born … February 2009 and B born … January 2010, live with the Mother.

2. The Mother and Father have equal shared responsibility for the children, in relation to the short and long term decisions including, but not limited to:

   (a)       the education of the children – both current and future;

   (b)       the religion of the children;

   (c)       the health of the children; and

   (d)       any change to the children’s living arrangements, including their       residence, that may make it significantly more difficult for the children      to spend time with any parent.

3. The Father spend time and communicate with the children as agreed between the Mother and the Father, but failing agreement as follows:

   (a)       from 9.00 am to 3.00 pm each Saturday for a period of three (3) months;

   (b)       thereafter, from 9.00 am to 5.00 pm each Saturday for a period of three        (3) months;

   (c)       thereafter, from 9.00 am to 5.00 pm each Saturday and each Sunday until the commencement of the Easter school holidays in 2015;

   (d)       thereafter, from 9.00 am Saturday to 5.00 pm Sunday each alternate weekend for a period of four (4) months;

   (e)       thereafter, from after school Friday until 5.00 pm Sunday each alternate       weekend for a period of four (4) weeks;

   (f)        thereafter, from after school Friday until before school Monday, each           alternate weekend; and

   (g)       commencing during the Easter school holidays in 2016, for one half of         each school holiday period, being the first half in even numbered years      and the second half in odd numbered years; with the Christmas school        period to be divided in a week about manner.

4. On Christmas Day, in even numbered years, the Father shall spend time with the children from 8.00 am to 1.00 pm and the Mother shall spend time with the children from 1.00 pm to 6.00 pm and in odd numbered years, the Mother shall spend time with the children from 8.00 am to 1.00 pm and the Father shall spend time with the children from 1.00 pm to 6.00 pm.

5. On Easter Sunday, in even numbered years, the Father shall spend time with the children from 8.00 am to 1.00 pm and the Mother shall spend time with the children from 1.00 pm to 6.00 pm and in odd numbered years, the Mother shall spend time with the children from 8.00 am to 1.00 pm and the Father shall spend time with the children from 1.00 pm to 6.00 pm.

6. On Father’s Day, the Father shall spend time with the children from 9.00 am to 5.00 pm on that day.

7. The Father shall spend time with the children on their respective birthdays for four (4) hours from 1.00 pm to 5.00 pm or if it is a school day from after school to 7.00 pm.

8. Changeovers to occur at the children’s school and when the school is closed, at a police station equidistant to the parties’ residences.

9. The Mother and the Father shall advise the other parent, as soon as it is reasonably practicable, of any serious illness or medical emergency that relates to the children.

10. This Order is a sufficient irrevocable authority for the children’s school, day care, play group or their health professionals, including dentists to provide to the parents any information, document or thing in relation to the children that a parent is entitled to receive (including, but not limited to reports, letters, photographs and the like) and to discuss all matters pertaining to the children’s education, health and wellbeing and to ensure that all day care/care providers and school records include both parents as persons to be notified in case of emergency.  The costs, if any, of such information shall be borne by the parent requesting same.

11. Without admission, neither party shall denigrate, assault, harass or intimidate the other party to or in the presence of the children and shall do all such things so as to ensure any third party associated with them does not denigrate, assault, harass or intimidate the other party and in the event that such behaviour occurs, the party shall take all reasonable steps to remove the children from the presence of that third party.

12. The Father shall not consume any alcohol while the children are in his care or twenty-four (24) hours before the children come into his care.

13. The Mother shall not consume alcohol to excess while the children are in her care or twenty-four (24) hours before the children come into her care.

14. Neither parent shall consume illicit drugs while the children are in their care or twenty-four (24) hours before the children come into their care.

15. The Mother and Father follow the recommendations of the children’s medical practitioners, in particular in relation to asthma prevention.

16. The parties be restrained and an injunction issued from removing the children to live outside the greater Brisbane area without the written consent of each parent or an order of a Court of competent jurisdiction.

17. The Mother and Father advise each other of a postal address, email address and mobile telephone number; with any changes to be advised within forty-eight (48) hours, upon the condition that neither of the parties contact each other unless it is with respect to the children’s welfare.

18. The Mother’s application to relocate to Victoria be dismissed.

19. No order as to costs.

20. The Independent Children’s Lawyer be discharged.

21. Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Johnson & Knight has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 3147 of 2010

Mr Johnson

Applicant

And

Ms Knight

Respondent

REASONS FOR JUDGMENT

introduction

1. These proceedings under Part VII of the Family Law Act 1975 (Cth) (“the Act”) concern the children C born in February 2009 (aged 5) and B born in January 2010 (aged 4) (collectively, “the children”).

2. The applicant, Mr Johnson (“the father”), commenced proceedings by way of his initiating application for final orders filed 6 April 2010 in the Federal Magistrates Court (as it then was). The respondent, Ms Knight (“the mother”), filed a response to the father’s application for final orders on 26 May 2010. By the order of Federal Magistrate Howard (as his Honour then was), on 16 December 2010, the matter was transferred to the Family Court of Australia.

3. The applicant then filed an amended application on 14 February 2012.

4. Pursuant to the order of Federal Magistrate Howard made on 7 June 2010 the children were independently represented in these proceedings.

5. The trial with regard to final parenting matters was part heard before me on 21, 22 and 23 August 2013 and finally on 3 February 2014. Ms Black of counsel appeared on behalf of the applicant father; Mr Beehre of counsel appeared on behalf of the respondent mother; and Mr Pedder of counsel appeared on behalf of the Independent Children’s Lawyer.

6. As the evidence below demonstrates, the central issues in these proceedings have been: with whom parental responsibility should lie; the future living arrangements for the children, specifically, whether it would be in the children’s best interests for the mother to relocate interstate with the children on a final basis; and what time should be spent between the children and the non-resident parent.

7. At the outset of these reasons I wish to make it clear that neither the mother nor the father is without significant deficiencies due to their actions and attitudes both during and before these proceedings. That has left me with the unfortunate task of determining which is the “least detrimental” of the two alternatives for the children’s care arrangements.

8. Central to my deliberation has been my consideration of which parent appears to be the most likely to facilitate contact between the children and the other parent to give effect to the objects of the Act (section 60B) – to ensure that the children are amply afforded their right to know and be cared for by both parents and to ensure that the children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the children.

9. The Independent Children’s Lawyer’s view is that having considered the evidence before me, I should, in the exercise of my discretion, be led to the conclusion that the best interests of the children shall be served by ordering that the children live with the mother and that the mother and father have equal shared parental responsibility of the children. Furthermore, the Independent Children’s Lawyer submits that the mother’s application to relocate to Victoria is dismissed.

10. The documents which I have read are those that were set out in the respective case information documents of the parties and those other matters that were filed subsequent to the date of the case information documents.

11. The father is 54 years of age having been born in 1959. At the date of trial he was unemployed. The mother is 39 years of age having been born in 1974. At the date of trial she too, was unemployed.

12. The parties commenced a relationship in May 2008 and separated in August 2009. Although, as Mr P commented in his Family Report of 17 December 2013, it is stretching things to say they were actually in a relationship to begin with. The parties never lived together, but lived near each other during the relationship in Town D.

13. There are two children to the relationship, C (aged 5) and B (aged 4). B was born after the parties had separated. The mother has two children from a previous relationship, W (aged 13) and K (aged 10).

14. Following separation with the mother, the father married Ms E; however, this relationship appears to have ended.

15. The children have always lived with the mother, upon separation in August 2009, the mother moved from Town D to Suburb F.

16. The father visited C at the mother’s home approximately 3 times per week, mainly supervised by the mother from late 2009 until early 2010.

17. By Order of Federal Magistrate Howard on 7 June 2010, Orders were made providing that the children live with the mother and spend supervised time with the father at G Contact Centre. These visits did not occur.

18. By the Order of Federal Magistrate Howard on 7 September 2010, the father’s time with the children was varied to 10:00am until 11:00am every Monday, Wednesday and Friday, supervised by Ms E, the father’s wife at the time. These visits did not occur.

19. On 29 September 2010 the mother filed an Appeal to the Order of Federal Magistrate Howard made on 7 September 2010 in relation to the father’s contact with the children.

20. On 6 October 2010 the mother filed an Application in a Case requesting a Stay of the Order made on 7 September 2010 pending the outcome of her Appeal filed 29 September 2010.

21. The father did not spend any time with the children until an Order by Consent was ordered by Federal Magistrate Howard on 11 October 2010, providing for three visits per week for one hour in duration, supervised by the maternal grandmother. Only one visit took place.

22. On 12 October 2010 the mother filed a Notice of Discontinuance in respect of the Appeal.

23. Pursuant to the Order of Federal Magistrate Howard on 16 December 2010, the father’s contact with the children was changed to supervised visits for two hours once a week at H Contact Centre and the proceedings were transferred to the Family Court of Australia.  

24. Interim Consent Orders were made by the Honourable Justice O’Reilly (as she then was) on 10 August 2012 providing that the children then live with the mother and spend time with the father for a period of one hour each Thursday and Saturday at the Suburb I Library.

25. By the Order of the Honourable Justice Kent on 6 February 2013 the final hearing of the matter was set down for trial for three days commencing on 21 August 2013.

26. The proceedings were adjourned part-heard by my Order of 23 August 2013, for a further hearing of the application for two days commencing 3 February 2014. Upon the undertaking of the father filed 22 August 2013 that he would not consume alcohol for a period of twelve (12) hours prior to spending time with the children, the parents were ordered to have equal shared parental responsibility of the children. I also ordered that the children continue to live with the mother, and spend time with the father at the consent of the parties, or failing such agreement, as nominated by the Independent Children’s Lawyer each Thursday and Saturday from 3:00pm to 5:00pm or at an equivalent period of time by agreement in writing.

27. By my Order of 23 August 2013, I requested the intervention of the Director-General of the Department of Communities, Child Safety & Disability Services pursuant to section 91B of the Family Law Act 1975.

28. By letter dated 30 September 2013, the Department of Communities, Child Safety & Disability Services advised that they did not intend to intervene in the matter.

29. Orders were also made in respect of both parties in relation to alcohol and illicit drug use and random drug screening at the request of the Independent Children’s Lawyer. The mother and father were also ordered to attend a Triple P Parenting Program within four months of the date of the order.

Issues

1. Issues were raised throughout the trial regarding the mother’s health and history of illicit drug use and criminal activity. Furthermore, concerns arose as to the mother’s attitude towards actively supporting the time that the father spends with the children and the children’s relationship with the father generally.

2. The father used the example of the mother’s application for a Domestic Violence Order in June 2009, which was later dismissed, to demonstrate an example of the mother using unfounded allegations to prevent him spending time with C.

3. The mother’s attitude towards the father was particularly crucial in this case as the mother proposed to relocate with the children to Melbourne, believing she would have greater financial and emotional support in Melbourne.

4. If the Court allowed the mother to relocate interstate with the children, there would be concerns as to whether the father would be able to maintain a relationship with his children, considering that the mother’s attitude towards supporting such a relationship is in question. This issue will be dealt with further in more detail.

5. The mother has also raised concerns about the father’s ability to responsibly parent the children.  In particular, evidence arose in relation to the father’s history of alcohol dependence and his narcissistic personality traits as well as his attitude and relationship with the mother. The mother alleges that the father was both verbally and physically abusive to her and raised concerns over particular incidents that allegedly occurred with the children while in the care of the father. The mother alleged that the father abuses alcohol and prescription medication and becomes aggressive when drinking.

6. As regards to the competing proposals of the parties, the father seeks orders that the mother and father have equal shared parental responsibility of the children. The father proposes that the children live in the J Shire area of Brisbane with the mother and spend time with the father each week on Saturday from 9:00am to 3:00pm eventually increasing to overnight and mid-week stays and half of the school holiday period.

7. The mother seeks orders that the children live with the mother and that she have sole parental responsibility for the children. The mother seeks to be permitted to relocate to Melbourne on a permanent basis and that the father spend time and communicate with the children as may be agreed between the parties and failing agreement at a recognised supervised contact centre in Melbourne.

8. The Independent Children’s Lawyer proposes that the mother’s application to relocate to Victoria be dismissed. Moreover, that the mother and father have equal shared parental responsibility and that the children continue to live with the mother and spend time and communicate with the father as agreed to between the mother and father, but failing agreement from 9:00am to 3:00pm each Saturday for a period of three months, and eventually increasing to overnight stays at the commencement of the Easter school holidays in 2015. Furthermore, for one half of each school holiday period commencing in the Easter school holidays in 2016. The Independent Children’s Lawyer proposes that changeover occur at school, or when the school is closed, outside a police station located equidistant from the parties’ respective residences.

9. The father currently lives in a one bedroom unit in Suburb L that he rents through a charity. The father told the Court that he was informed by the landlord that if the Court makes orders that the children have overnight stays with the father, that the father would be able to move into a two bedroom unit in the same complex. The father’s current income is Centrelink benefits of $500.00 per fortnight. The father pays $60.00 per week towards his rent and $29.00 per month in child support.

10. The mother currently lives in a four bedroom house in Town M with the children and her two children from a previous relationship. The mother is unemployed and relies on Centrelink payments for income. She currently receives a disability pension of $600.00 per fortnight and a family allowance of $900.00 per fortnight. The mother told the court that she pays $500.00 per week in rent as she waits for a housing commission house to become available. 

Specific Issues

1. I turn now to some specific issues which were raised in the trial. Those issues are: first, the mother’s health; second, the mother’s use of illicit drugs and criminal history; third, the parties’ attitudes towards each other; fourth, the father’s history of alcohol dependence; fifth, the father’s narcissist personality traits; and sixth, the father’s ability to responsibly parent the children while in his care.

2. The mother has an extensive history of health problems which has affected her ability to work and meant that she has required the assistance of the maternal grandmother at times, to help care for the children. I feel sympathy towards the mother for all that she has endured in relation to her health.

1. The mother acknowledges in the Family Report filed 8 February 2011 that she has a history of mental health difficulties. In particular, she reported being “suicidal” before the children were born, and had taken a “heap of tablets” with suicidal intent in 1999/2000.

2. In that same Family Report, the mother admits to having relapsed with depression when she was pregnant with C and says she took prescription medication Zoloft and drank alcohol occasionally during this pregnancy.

3. A letter from Dr N, the mother’s psychiatrist, dated 26 November 2013 contained in the subpoena material confirms the mother’s diagnosis of depression with psychotic features with co-morbid borderline personality traits.

4. Dr N noted that the mother has improved significantly but is still emotional with anger management issues. However, Dr N noted that there were no risk concerns and no current psychotic features. The mother is prescribed Zoloft for her depression.

5. The mother has had numerous health difficulties including cervical cancer, double hernia, colonoscopy and tumour of the liver which she says have directly contributed to her depressed mood. She has also broken both of her ankles and now experiences arthritis in her right ankle.

6. From the evidence put before the Court, I am not of the view that the mother’s health difficulties have impeded on her ability to provide adequate care to the children. This follows the recommendations of Mr P in his Family Report dated 17 December 2013 and Dr O’s Affidavit filed 9 January 2013, that the children live with the mother.  

7. Throughout the trial, the father expressed concern over the mother’s illicit drug use and criminal history. In particular, the father alleges that the mother uses cannabis on a daily basis and also engages in drug dealing. 

8. In the Family Report filed on 8 February 2011, the mother admitted to smoking cannabis on a daily basis in early 2000. Further, she acknowledged her prior possession of cannabis charge in 1999.

9. At the time of the first Family Report, the mother admitted to smoking cannabis once every couple of weeks but stated that this activity was never done in the presence of the children.

10. However, in the most recent Family Report filed 9 January 2013, the mother stated that she had not smoked cannabis ‘for months’.

11. The mother also denied having sold cannabis.

12. In the most recent Family Report, the mother reported that she drinks 3-4 drinks over a four hour period occasionally and denied experiencing any problems regarding alcohol, cannabis or other substances.

13. A number of requests were made by the Independent Children’s Lawyer for both parents to undertake urine analyses for the detection of alcohol and drugs. Such requests were made on 17 September, 15 October and 15 November 2013. However, like the father, the mother did not comply with all of these requests. It was submitted in the mother’s affidavit filed 2 February 2014 that non-compliance is due to not being able to afford the tests.

14. It must be noted that the mother did supply results for a urine test completed on 19 November 2013. The mother submits that her results came back negative, however Mr P in his Family Report of 17 December 2013 noted that the actual test results were unclear as no outcomes were recorded.

15. I am not satisfied on the evidence before me that the mother is presently using non-prescription drugs or dealing drugs. However, in light of the mother’s admission that she did use drugs in the past and her criminal history in relation to drugs, I think it is desirable that the mother continues to seek the support of her psychologist and psychiatrist.

16. The mother has a number of charges in her criminal history which are of great concern to the Court, especially considering their recent nature. These include charges in relation to producing and possessing dangerous drugs and tainted property, assault occasioning bodily harm, stealing and breaching probation orders (see exhibit 7 in regards to the mother’s criminal history).

17. The mother’s attitude towards her criminal charge in relation to producing and possessing dangerous drugs and tainted property in May 2013 was most concerning. When asked about the incident in the most recent Family Report, the mother responded, “aw that, that was nothing. I can’t believe that went in”.

18. The mother acknowledges that she has anger issues and says that she is prescribed Abilify to help manage her anger.

19. In late 2012 she was convicted of assaulting her former babysitter outside a Hungry Jack restaurant admitting to Mr P in her interview for his Family Report of 17 December 2013, that anger got the best of her that day. 

20. In January 2012 the mother was convicted of stealing. The mother admitted she had stolen toys on 1 December 2011 from Big W and Target during a time of financial stress as she did not want the children missing out on Christmas. The mother attributed much of the blame to the father.

21. I am satisfied by the evidence presented to the Court that neither party is without deficiencies when it comes to the mother’s and father’s attitude towards each other.

22. Cross-allegations have been made by both parties about alleged verbal and physical abuse.

23. I am extremely concerned about the well-being of the children when they are exposed to the verbal and physical abuse between the mother and the father. One particular example is the incident that occurred on 15 December 2009 in which after a verbal altercation between the parties, the mother alleges the father grabbed her by the shoulders and pushed her hard into the kitchen bench (note that the mother was heavily pregnant with B at the time). The father alleges that during the same incident the mother punched him in the face.

24. While each party presents a different version of events, one thing that they agree on is the fact that the altercation, which I have no doubt took place, occurred in the presence of the children.

25. Dr O in his Family Report filed 9 November 2011, noted that K, the mother’s child from a previous relationship, had to receive counselling following the above mentioned altercation.

26. This type of behaviour is completely unacceptable, the fact that it occurs in the presence of the children is an absolute disgrace and the parties should feel ashamed of their actions.  

27. In her interview with Mr P for his Family Report dated 17 December 2013 the mother referred to the father’s comments and actions in front of the children at changeovers. She gave the examples of the father saying, “There’s your fucking useless mother” and then added that:

    I’ve put up with so much shit from [the father] like him grabbing me on the bum and trying to stick his tongue down my throat at changeovers and then abusing me.

28. Furthermore, the parties’ behaviour in relation to sending abusive text messages is appalling.

29. Text messages such as the those sent from the mother to the father saying “Fuk Nuckle” and “…Ur that low of a person scum really ur n don’t even deserve 2 be a parent really hey” demonstrates the immaturity of both parties and their inability to put the best interests of the children before their need to denigrate the other parent.

30. The evidence of unsavoury language used not only in text messages between the parties but also in the presence of the children during changeovers together with allegations of physical abuse, is sufficient to lead me to the determination that this case comes under the definition of ‘family violence’ under the Act.

31. A report filed on 5 April 2011 by psychiatrist Dr Q assessed the father as having an alcohol dependence with physiological dependence; a history of benzodiazepine abuse; and a personality showing narcissistic traits.

32. The father acknowledges previous difficulties in relation to his alcohol and benzodiazepine use. It is a major concern for the mother who alleges that the father becomes aggressive when he drinks.

33. Since August 2013, the father has had fortnightly appointments with psychologist, Dr R in relation to his alcoholism. He also noted that from August 2012 until September 2013, he saw a counsellor from Alcohol, Tobacco and Other Drugs Services.

34. The father submits that he is working on recovering from alcoholism and trying to make positive changes in his life.

35. The father admitted to Mr P during his family report interview of 17 December 2013 that he was motivated to cease drinking because he knows that if he is going to see his kids, he has to stop. The father admitted to Mr P that not drinking has made him feel much better and he now feels more focused and wants to be a good dad.

36. In his Family Report of 17 December 2013, Mr P expressed his opinion that the father is at significant risk of relapsing in regards to his history of alcohol and benzodiazepine dependence. It is Mr P’s opinion that the father displays intellectual but not true insight into the impact his drinking has on his parenting.

37. I am in support of Mr P’s concern in regards to relapse, being that the father gave evidence that in April 2013 he journeyed to Melbourne to see a concert with his brother and during that time, consumed alcohol.

38. With that being said, I must consider the opinion of the father’s psychologist, Dr R, who in a report dated 28 January 2014 (see exhibit 6), she noted the following:

    Based on this current assessment I feel confident that [the father] will continue to remain abstinent. Throughout treatment it has been clear that [the father’s] priority is his children, and his commitment to attend treatment and remain abstinent has consistently reflected this. I believe that [the father] is entitled to seek as much contact with his children as he desires and would hold no concerns about [the father] caring for his children in a more permanent capacity. I commend [the father] on his success so far, and believe that he will make an excellent father and role model to his two young children.

39. The father is, and always will be, a recovering alcoholic. I believe that the father is aware of the difficulties he has in controlling his alcoholism and it is encouraging to see that the father is seeking support.

40. On the evidence presented before me, I am not convinced that the father is presently drinking alcohol or taking drugs of any description, unless prescribed. However, in light of the father’s past issues with alcoholism and benzodiazepine abuse, I would urge him to continue to seek the support of Dr R so that he can continue to maintain his abstinence from alcohol and avoid the detrimental effects of alcoholism.

41. Psychiatrist, Dr Q identified in her report filed 5 April 2011 that the father meets the criteria for suffering Narcissistic Personality Traits. 

42. In Mr P’s Family Report of 17 December 2013 he noted that the father was quick to dismiss Dr Q’s opinion that he displays narcissistic personality traits yet in doing so he exhibited the very type of features observed in individuals with narcissistic inclinations.

43. One matter that has caused me great concern is in regards to the mother’s proposal to relocate to Melbourne with the children. To me, the father seems not to have even considered the possibility of relocating.

44. I found the father to be unreasonable. He has no employment or significant ties in Queensland, yet refuses to even consider moving to Melbourne, simply because he does not want to. This is particularly alarming because he would not be willing to move even if it was the only way he could continue to develop a relationship with his children and play a meaningful role in their lives.

45. The father’s general attitude to the consideration of relocating to Melbourne with his children seemed arrogant and consistent with Dr Q’s opinion that the father has narcissistic personality traits.

46. Dr Q in her report filed 5 April 2011 recommended that the treatment for Narcissistic Personality Traits would require the father to have long-term regular counselling focused on exploring his thoughts, feelings and reactions to situations and encouraging him to consider alternative ways of thinking and responding.

47. I would encourage the father to undertake such counselling so that he can give his children the proper support that they need and be a positive influence in their lives.

48. The mother raised a number of concerns in regards to the father’s ability to responsibly care for the children. In particular, she alleges that the father does not take the children to the toilet while in his care and refers to incidents where the children are returned to the mother with wet clothes and smelling like urine. The mother also alleges that the father does not have the appropriate child seats installed in his car and spoke of an alleged incident where her other children nearly drowned while under the father’s supervision.

49. The father denied such allegations, and based on the lack of evidence presented to the Court, I am unable to find that the father is incapable of meeting the needs of the children while they are in his care.

50. The making of orders in respect of parenting proceedings is governed by the statutory framework detailed in Part VII of the Act which comprises ss 60A through to 70Q. As it is the case that these proceedings were initiated before the legislative amendments of 7 June 2012, my consideration and application of the law shall not incorporate the Family Violence Provisions that have since been introduced.

51. Secondary to the legislation is the case law which provides guidance to the manner in which the legislation is to be approached. Particularly in respect of this approach, I refer to paragraphs [6], [7], [8], [9], and [13] of the decision of the High Court (comprising French CJ, Gummow, Hayne, Kiefel and Bell JJ) in MRR v GR (2010) 240 CLR 461.

52. I shall not deal with each of the section 60CC considerations seriatim and refer to my earlier discussion and findings in respect of this matter insofar as they relate to those considerations.  The following are, in my opinion, determinative:

Section 60CC(2) “primary considerations”

(a) the benefit of the child having a meaningful relationship with both of the child’s parents

1. On the evidence before me, it is without doubt that the children have a meaningful relationship with their mother. Furthermore, the children have developed a relationship with their father too. The father spoke of this relationship in his interview with Mr P for the Family Report dated 17 December 2013, saying that he believes his relationship with the children is getting stronger and stronger.

2. There is no doubt that the father has many personal burdens, however, I find that if the children are to enjoy the benefit which they derive from their relationship with each parent, thereby giving effect to the objects of Part VII of the Act, then it is imperative that the children have regular contact with both the mother and the father.

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

1. From sending abusive text messages, to physical and verbal abuse at changeovers in the presence of the children and denigrating the other parent in front of the children, throughout my reasons I have highlighted that neither party is without deficiencies. There have been allegations of physical and psychological abuse and violence within the family on the part of both parents per supra.

Section 60CC(3) “additional considerations”

(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views

1. As was submitted by both parents, I agree that the children are too young to express views.

(b) the nature of the relationship of the child with (i) each of the child's parent; and (ii) other persons (including any grandparent or other relative of the child)

1. As I have discussed previously, from the evidence presented to the Court, I am of the view that the children have a good relationship with the mother and their relationship with the father is at a critical stage of development that requires continued and consistent contact so that it can continue to develop into a close and meaningful relationship.

(c) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent 

1. The father is concerned that due to the mother’s history and attitude towards encouraging and facilitating the children’s relationship with him, that the mother will continue to denigrate him to the children and continue to put road blocks to stop the children from spending time with him or encourage their relationship.

2. Despite the mother submitting that she is willing to foster a meaningful relationship between the children and the father, I am not convinced that this would be the case. I do, on the other hand, believe that the father would endeavour to facilitate and encourage close and continuing relationships between each parent and the children.

3. The mother has demonstrated an inability to recognise that there is a genuine benefit to the children having a meaningful relationship with the father as demonstrated by the comment made by the mother in the Family Report filed 9 November 2011, where she was quoted saying that the only thing the father has to offer the children is “heartache and disappointment”. 

4. I note that the parties continue to have difficulties communicating with each other. In Mr P’s Family Report of 17 December 2013, he noted that he had a very guarded and pessimistic outlook in respect to the improvement of the parties’ co-parenting relationship.

5. The mother admitted to Mr P in her interview for the Family Report of 17 December 2013, that changeovers with the father are difficult and claimed he is often verbally abusive towards her and unwilling to communicate about the children.

6. The mother’s attitude towards the father can be summarised by the observation made in the Family Report filed 9 January 2013:

   [The mother] presents as very critical of [the father], and prone to identify and highlight any concerns that she has… [The mother] appeared to minimise any flaws for herself and blame [the father] for difficulties she has experienced

7. However, the mother is not the only one at fault. As Mr P noted in his Family Report of 17 December 2013 the father,

   presented as not being able to reflect on himself and his past actions without introducing the mother as having played a role in his past wrongs.

8. The hostility between the parties’ relationship can be summarised by the comment of Mr P in his Family Report dated 17 December 2013:

   Put bluntly, I believe these two individuals would find a way of disagreeing or arguing over just about anything.

9. These factors that I have found in relation to the parents also concern me gravely about the orders sought for joint parental responsibility. It is trite to say that joint parental responsibility is difficult. The parties must have an ability to communicate with each other in general in relation to the children’s welfare. These parties cannot communicate (see paragraph 91). In those circumstances, I consider the prime necessity for joint parental responsibility is the ability to notwithstanding the loathing of each other, to put the welfare of the children first before their own personal feelings.

10. In view of what I have said above and in particular, applying this evidence to the mother’s request to relocate to Melbourne and highlighting paragraphs 84 – 91, I would be afeared that she would alienate the children from the father, against the best interests of the children, or even less, would not encourage such a relationship.

(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child) with whom he or she has been living

1. As Mr P noted in his Family Report of 17 December 2013, the children’s relationship with the father is at a sensitive stage and therefore he was of the view that changes to the current arrangements may disrupt or interfere with their relationship being further formed.

1. I am of the view that the mother’s request to relocate to Melbourne would not be in the best interests of the children as they continue to develop their relationship with the father.

(e) the practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. This section applies to the mother’s request to relocate to Melbourne with the children. In my view, I do not believe that relocating the children to Melbourne will advance their welfare nor will it encourage the advancement of the requirements set out in s 60CC(3)(d) or (e).

2. I do not believe that the mother would encourage the children’s relationship with their father if they were to relocate to Melbourne, and such separation would gravely affect the children continuing and developing a warm and loving relationship between themselves and their father.

(f) the capacity of: (i) each of the child's parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs

1. I am more than satisfied by the evidence before me that the mother is failing to recognise that her attitude to the children towards the father vis-à-vis is not in their best interests.  

(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

1. I am satisfied by the evidence before me that the father has an appropriate attitude towards the children and is willing to contribute, to an extent, to performing the responsibilities of parenthood. This is said on the basis that the father continues to abstain from alcohol and abuse of benzodiazepine.

2. I am of the view that the mother has demonstrated her capacity to attend to the general welfare of the children and is able to perform the responsibilities of parenthood. However, her ability to carry out such responsibilities will be severely diminished if she becomes involved in drug related activity again or ceases to seek support for her mental health issues.

(j) any Family violence involving the children or a member of the child’s family

1. The mother and the father are both responsible for subjecting the children to verbal and physical violence. Although the violence appears not to have been directed specifically at the children, the parties have failed to understand the impact that exposure to such violence has on the children.

(k) any family violence order that applies to the child or a member of the child’s family, if (i) the order is a final order; or (ii) the making of the order was contested by a person

1. The mother and father had mutual Protection Orders against each other, made under the Domestic and Family Violence Protection Act 1999 (Qld) that were issued in March 2011 and have since expired.

(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. In light of the high level of conflict in these proceedings and the impact it has had on the children, and their parents, I am without doubt that it is necessary that final orders be made in these proceedings.

Relocation

1. Although the best interests of the children are the paramount consideration, in relocation cases the interests of the parents need to be considered too. The best interests of a child can be served by their parents being healthy and leading a happy life.

2. A relocation order might be in the mother’s interests, in that she believes she will have greater financial and emotional support in Melbourne. However, after considering the proposals of each party, I am of the view that it is not in the children’s best interests.

3. The mother is coping living in Queensland, in fact, as the mother admitted during her evidence in Court, that she deliberately moved from Melbourne to Queensland eight years ago to, in her words, ‘start a new life’. 

4. The benefit to the children of having regular contact with their father so as to continue to develop their relationship far outweigh the mother’s wish to relocate to Melbourne.

5. As was noted by Mr P in his Family Report of 17 December 2013, when asked about the issue of relocation in the interview, the mother appeared to find it difficult to say (objectively) how the move would actually benefit the children.

6. Mr P also noted that the children’s relationship with their father is at a critical, or at least sensitive stage and would therefore caution against any current changes that would disrupt or interfere with it being further formed.

7. Mr P added that there is well-accepted evidence indicating the importance of providing young children a sense of consistency and continuity in their connections with others if they are to form adequate attachments with those people.

8. I am not convinced that the mother would encourage a meaningful relationship between the children and the father if she were to relocate with the children to Melbourne.

9. I am of the view that the mother would endeavour to alienate the father from the children which is why I cannot be persuaded that it is in the best interests of the children to relocate with the mother to Melbourne.

Future care arrangements

1. In light of my findings of family violence, the presumption of equal shared parental responsibility in section 61DA of the Act does not apply.

2. Notwithstanding my findings which do overcome the presumption of equal shared parental responsibility, I am of the view that an order made for equal shared parental responsibility should encourage the parents to put the children’s welfare first, and perhaps grudgingly I do make such an order.

3. I do have fears as a result of seeing the mother that she may, if granted sole parental responsibility, use such sole parental responsibility as a weapon against the father, see my findings per supra.

4. Taking into consideration the extreme antipathy between the parties and considering that the children have contact with the father, I find that such contact should continue and further time with the father be phased in over time.

5. I have considered the proposed draft orders put before me by the Independent Children’s Lawyer and the father and consider the following orders should be made.  

6. No order has been sought be any of the parties in relation to an order under section 118. Mr P has mentioned that the parties may use the Court as a weapon for future litigation; I am concerned that they may do so. May I make it quite clear that should they come back before the Court, I would perhaps be minded to make an order precluding them from in future making any application to the Court other than by leave of a judge (see section 118).

7. I understand that an application for a costs order has been raised by the mother, this does not appear to have been persevered with to any great extent. For instance, I am not informed of the capacity of the father to pay any such costs, if I order them. I feel that I am unable to say that the general rule in relation to costs, that is, each party pay their own, has in any way on the evidence before me been dispensed with.

I certify that the preceding one hundred and thirty-four (134) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 25 February 2014

Associate: 

Date: 25 February 2014