Jones & Munrow
[2022] FedCFamC2F 368
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Jones & Munrow [2022] FedCFamC2F 368
File number(s): BRC 3397 of 2021 Judgment of: JUDGE YOUNG Date of judgment: 11 March 2022 Catchwords: FAMILY LAW - parenting - concerning two children - where the children live with the mother - concerning time spent with the father - whether there was family violence - where the father has intimate images of the mother - where there are issues about the credibility of the parties - Court satisfied there was no family violence - Court satisfied the father should destroy the devices which hold intimate images of the mother Legislation: Family Law Act 1975 (Cth) ss 60CC, 65DAA, 68B Cases cited: Anton Piller KG v Manufacturing Processes Ltd [1976] 1 Division: Division 2 Family Law Number of paragraphs: 41 Date of hearing: 7 March 2022 – 9 March 2022, 11 March 2022 Place: Darwin Counsel for the Applicant: Mr Alexander Solicitor for the Applicant: Ms Moscovis of Sommerville Legal Counsel for the Respondent: Mr Linklater-Steele Solicitor for the Respondent: Mr Williams of Farrar Gesini Dunn Sydney Counsel for the Independent Children's Lawyer: Mr Mathews QC Solicitor for the Independent Children's Lawyer: Ms Berck of Berck Solicitors ORDERS
BRC 3397 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS JONES
Applicant
AND: MR MUNROW
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE YOUNG
DATE OF ORDER:
11 MARCH 2022
THE COURT ORDERS THAT:
1.That all previous Orders and Parenting Plans be discharged.
2.That the following parenting orders shall apply for the children, X born in 2014 and Y born in 2016. (hereinafter called “the children”), unless the Mother and Father agree to alter all or some of them, in writing, either temporarily or permanently.
Parental Responsibility
3.That except as otherwise stated, the Father and the Mother are to have equal shared parental responsibility for the major long term issues of the children.
4.That the parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility and shall make a genuine effort to come to a joint decision. They are not, however, required to consult with each other about the daily care of the children. The types of decisions about which parents are required to inform and consult include but are not limited to changing the name of a child; relocating the residence of the child so that existing parenting arrangement become impracticable; changing the school of a child; a significant medical intervention for a child.
5.That without prejudice to order 3, should the parties be unable to agree upon a decision in respect of a matter relating to the long-term health of a child or the children then they are to follow the reasonable recommendations of the child’s treating general practitioner(s), including referrals to any specialists and / or allied health care providers.
Exchange of Information
6.That the Mother and Father shall:
(a)keep the other parent informed at all times of their residential address and contact telephone number and to notify the other parent at least 21 days prior to relocating their residence beyond a 20 kilometre radius from where they currently reside;
(b)keep the other parent informed of the names and addresses of any treating medical or other allied health practitioners who treat the children and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the children;
(c)inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the children and authorise any treating medical practitioner to release the children’s medical information to the other parent.
7.That the parents authorise the schools attended by the children to give each parent information about the children’s educational progress and other related activities and supply them with copies of reports, photographs, certificates and awards obtained by the children (at that parent’s cost).
8.That during the time the children are with either parent, that parent shall:
(a)respect the privacy of the other parent and not question the children about the personal life of the other parent;
(b)speak of the other parent respectfully;
(c)not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.
Living Arrangements for the Children
9.That the children shall live with the Mother.
10.That the children shall spend time with the Father at all times as agreed between the parties, in writing, and failing agreement as follows:
10.1Once per calendar month in Brisbane on the last full weekend of the calendar month from after school on Friday (or 9am if a non-school day) until the commencement of school (or 3:30pm if a non-school day) on Monday. Provided if the Father is unwilling or unable to spend such time he shall give the Mother 2 weeks’ notice in writing.
School Holidays
11.The Court notes that Y’s birthday typically falls within the last week of the Term 3 school holiday period and that X’s birthday falls during Term 3.
12.That the children spend time with the father in Sydney during school holidays as follows:
12.1 In even numbered years:
12.1.1For the Term 1 holidays, for the first week of the school holiday period from the first Saturday of the school holiday period until the following Saturday.
12.1.2In the Term 2 holidays, commencing from the first Saturday of the school holiday period until the Saturday prior to the commencement of the school term.
12.1.3In the Term 3 holidays, for the second week of the school holiday period commencing from the second Sunday of the school holiday period until the following Sunday.
12.1.4For the Term 4 holidays, for the second half of the school holiday period until the Friday before school recommences.
12.2 In odd numbered years:
12.2.1For the Term 1 holidays, for the second week of the school holiday period commencing from the second Sunday of the school holiday period until the following Sunday.
12.2.2In the Term 2 holidays, commencing from the first Saturday of the school holiday period until the Saturday prior to the commencement of the school term.
12.2.3In the Term 3 holidays, for the first week of the holiday period commencing from the first Saturday of the school holiday period until the following Saturday.
12.2.4For the Term 4 holidays for the first half of the school holiday period, commencing on the first Saturday.
13.For the purpose of Order 12, in the event that there is an uneven number of nights in the Term 4 holidays, the children shall remain with the Mother for the additional night.
14.In the event that there is a public health order in either New South Wales or Queensland that would require the children to enter into mandatory self-isolation as a result of travelling between the States, or prevent the children from returning to Queensland, the father’s time with the children in accordance with these Orders shall take place in Brisbane and any Order that provides that the father shall spend time with the children in Sydney shall be suspended to the extent that it is inconsistent with this Order.
Special Occasions
X’s Birthday
15.That in even numbered years:
15.1In the event that X’s birthday falls on a date that the children would not ordinarily spend time with the father in accordance with these Orders, the father shall spend time with the children as follows:
(a)If the birthday falls on a school day, in Brisbane from the conclusion of school on X’s birthday until the commencement of school two days following X’s birthday (or 9am if a non-school day) so that the children spend two consecutive nights with the father.
(b)If the birthday falls on a weekend during the school term, in Brisbane from after school Friday until the commencement of school on Monday.
16.That in odd numbered years:
16.1In the event that X’s birthday falls on a date that the children would otherwise spend with the father in accordance with these orders, the father’s time with the children shall be suspended and the mother shall spend time with the children as follows:
(a)On a school day, in Brisbane from the conclusion of school on X’s birthday until the commencement of school the following day (or 9am if a non-school day).
(b)On a weekend during the school term, in Brisbane from 10am Friday until 4pm Sunday and the father shall elect to have make up time with the children should he wish to do so in Brisbane from after school on Friday (or 9am if a non-school day) until the commencement of school Monday (or 3:30pm if a non-school day) on either the weekend immediately preceding X’s birthday or the weekend immediately following X’s birthday provided that he give the mother 14 days’ written notice of his election.
Father’s Day
17.The children shall spend time with the father in Brisbane from after school the Friday before Father’s Day until the commencement of school the Monday following Father’s Day.
Mother’s Day
18.In the event that Mother’s Day falls in a time that the children would ordinarily spend time with the Father pursuant to Order 10.1, the father’s time with the children shall be suspended and the father shall elect to have make up time with the children should he wish to do so in Brisbane from after school on Friday (or 9am if a non-school day) until the commencement of school Monday (or 3:30pm if a non-school day) on either the weekend immediately preceding Mother’s Day or the weekend immediately following Mother’s Day provided that he give the mother 14 days’ written notice of his election.
Christmas
19.The Court notes that Order 12 will ordinarily determine with which parent the children spend Christmas but in the event that other parent is in the city in which the children are then the children are to spend from 3pm on Christmas Day to 3pm on Boxing Day with the other parent.
Telephone Calls
20.The children shall be permitted to communicate with each parent on the telephone at such times as a child reasonably requests and the parent with whom the children are at that time shall facilitate the call.
21.That when the children are in the mother’s care, the father shall speak to the children by WhatsApp video call on Tuesday, Thursday and Sunday evenings at 5:30pm with the father initiating the calls and the mother doing all things reasonably necessary to facilitate the children participating in the calls and in relation to such communication the mother shall:
(a)Ensure that the children are available to receive the communication;
(b)Arrange for the children to communicate with the father on the following night if, for any unforeseen circumstance, the children miss the video or telephone call with the father;
(c)Do all things reasonably necessary to ensure that the children have privacy during the conversation.
22.That when the children are in the father’s care for the school holidays, the mother shall speak to the children by WhatsApp video call on Tuesday, Thursday and Sunday evenings at 5:30pm with the mother initiating the calls and the father doing all things reasonably necessary to facilitate the children participating in the calls and in relation to such communication the father shall:
(a)Ensure that the children are available to receive the communication;
(b)Arrange for the children to communicate with the mother on the following night if, for any unforeseen circumstance, the children miss the video or telephone call with the father;
(c)Do all things reasonably necessary to ensure that the children have privacy during the conversation.
Changeover
23.During school term, changeover in Brisbane shall occur at the children’s schools, with the father collecting the children from school at the commencement of his time and delivering the children to school at the conclusion of time.
24.During school holidays, changeover in Brisbane shall occur at Brisbane Airport, Domestic Terminal with the parent that is to commence spending time with the children collecting them from the arrival gate.
25.For all changeovers that occur in Sydney, changeover shall occur at Sydney International Airport, Domestic Terminal with the parent that is to commence spending time with the children collecting them from the arrival gate.
26.Should the parties agree in writing that it is appropriate that the children should travel as unaccompanied minors, then:
(a)at the commencement of time with the father in accordance with these orders, the mother shall deliver the children to Brisbane airport and the father shall collect the children from Sydney airport.
(b)at the conclusion of time with the father in accordance with these orders, the father shall deliver the children to Sydney airport and the mother shall collect the children from Brisbane airport.
(c)the children’s time with the father shall commence from the time of the children’s arrival in Sydney (to be no later than 11am) and conclude at the time of arrival in Brisbane of the returning flight (to be no later than 11am).
27.That each parent shall deliver and return the children’s clothing, school supplies and belongings and the children’s clothing shall be returned in a clean condition.
28.That when the children are spending time with the Father he shall ensure, so for as is practicable, that they attend any arranged social engagement or extra-curricular activity.
29.The children’s costs associated with spending time with the father shall be borne equally by the parties, with the father to pay for the flights to Sydney and the mother to pay for the children’s flights to Brisbane.
30.That both parties shall be at liberty to attend all sporting, school and other extra-curricular activities.
Passports and Travel
31.That should the Mother provide the father with an Application for a Passport, or a renewal of passport as the case may arise from time to time, the father shall return the Application(s) signed by him within 14 days of the mother sending it by registered post to him. In the event that the Father fails to comply with this Order, then pursuant to section 11 of the Australian Passports Act 2005, the Minister is authorised by this Order to issue a passport for the child/ren as the case may arise.
32.That pursuant to section 121 of the Family Law Act 1975 (Cth) the Mother be at liberty to provide a copy of these Orders to the Minister should the need arise.
33.For the purposes of section 11 of the Australian Passport Act 2005, this order permits the child:
33.1to have an Australian passport or travel related document; and
33.2to travel internationally.
34.In the event that a party intends to travel with the children outside the Commonwealth of Australia to a Hague Convention country during the school holiday time that the children would ordinarily spend time with them, the travelling parent shall provide to the other parent written notice of his or her intention to do so not less than 60 days prior to the intended travel. In addition, that parent shall provide the following information at least 30 days prior to departure:
34.1The proposed days for travel;
34.2Copies of the pre-paid return tickets for travel;
34.3A general itinerary and telephone numbers at which the children may be contacted during such absences from Australia; and
34.4In the event there is a material change in the itinerary, details of such change.
35.The destination of travel outside the Commonwealth of Australia pursuant to these orders must not be listed in as “exercise a high degree of caution”, “reconsider your need to travel” or “do not travel” or a “high threat of kidnapping”.
36.That the mother shall retain the children’s passports.
37.Within 14 days of the father travelling internationally with the children, the mother shall provide the father directly with the children’s passports.
38.Within 14 days of the father returning from travelling internationally with the children, the father shall return the children’s passports to the mother.
Dispute Resolution
39.That in the event that there is a dispute about the children or about the interpretation, implementation or enforcement of these orders, the parents before making any further application to a Court shall:
(a)either attend counselling or mediation with an organisation recognised under the Family Law Act1975 (as amended) or by the Commonwealth Attorney- General; or
(b)participate in family dispute resolution with a Family Relationship Centre or a person authorised under s.10G of the Family Law Act 1975 (as amended).
Parenting Orders Programme
40.That within 14 days from the date of these Orders being sealed, the mother and father will each enrol in a Parenting Course and will provide written confirmation to each other and the Independent Children’s Lawyer of their successful completion of the programme within 3 months of the date of these Orders.
Non-Denigration
41.Each party is restrained from denigrating the other party in the presence or hearing of the children or permitting any third person to do so in the presence or hearing of the children.
Other Orders
42.That the Mother be granted leave to provide a copy of these orders to any school or extracurricular organisation at which the children are enrolled or registered.
43.That in the event that either party refuses or neglects to execute any deed or instrument necessary to give effect to these orders within 14 days of being requested to do so, then a Judicial Registrar of the Court is hereby appointed pursuant to Section 106A of the Family Law Act 1975 to execute such deed or instrument in the name of the defaulting party and to do all acts and things necessary to give validity and operation to the deed or instrument.
44.That the father be and is hereby restrained from:
(a)Disseminating any information of the mother’s obtained through these proceedings, or viewed by the Father, including any images or documents filed and images held by the mother in her Dropbox, email accounts, Google photos or any other cloud account or device in the Mother’s name, whether held in her name or with any other person.
(b)Disseminating any images obtained or viewed by him or derived from any documents filed or held by the Mother.
45.The Father is to destroy or delete, so as not to be recoverable, any images of the Mother, her associates, or any other images or document obtained by the Father from the Mother’s Dropbox, email accounts, Google photos or any other cloud account or device in the Mother’s name, whether held by the Mother or with any other person and to cause any other person to whom the father has disseminated any such image or document to destroy or delete such so as not be recoverable.
46.The Father is to instruct Mr B in writing, and copied to the Mother, to take delivery of the phone and iPad held by the Sydney Registry and dispose of or destroy the devices and ensure any data is irrecoverable at the expense of the Father, in the first instance.
47.That within 14 days from the date of these Orders, the father shall file and serve an Affidavit stating that he has complied with Orders 44, 45 and 46 herein.
48.That any costs application or any application for reserved costs, by any party, is to be made within 14 days of the sealing and issuing of these Orders.
49.That the Independent Children’s Lawyer be discharged.
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 Jones & Munrow has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Ex TemporeJUDGE YOUNG
Background
This is a parenting application about two children, Y and X, who are five and seven years old respectively. The children presently live with their mother in Brisbane and spend time with their father who lives in Sydney. The mother asserted that separation under one roof occurred in December 2018. That is a matter of some dispute by the father, but in view of my ultimate findings, it is not necessary to resolve that dispute. Nevertheless, the matter will be addressed later in these reasons.
In about December 2020 the mother unilaterally relocated to Brisbane with the children. The precise circumstances are the subject of dispute but the father says initially he believed that the children and the mother were travelling to Brisbane to visit the maternal grandmother. The father said that as the true situation became apparent to him, he agreed for the children to remain in Brisbane with the mother for a short period, being the school Term 1 in 2021.
The mother at some point in this evolving situation evinced an intention to remain living in Brisbane. She has resided in Brisbane for a period of a little over 12 months.
The positions of the parties have evolved over time. The mother’s amended initiating application sought sole parental responsibility for the children, that the children live with her in Brisbane and spend time with the father during school holidays and once a month if he was to visit Brisbane. By closing submissions, she no longer sought sole parental responsibility, but her other proposals were substantially the same.
At the commencement of the trial in October 2021 the father sought orders for equal shared parental responsibility, that the children live with him and spend holiday time with the mother should she remain living in Brisbane. If she relocated to Sydney, the father proposed an equal time arrangement. By the time of closing submissions, possibly in response to an intimation from the Court, the father no longer sought to have the children live with him. In other words, he accepted that the children would live with the mother in Brisbane and spend time with him, principally during school holidays.
The matters left in dispute were thus:
(a)The details of the time the children were to spend with the father, there being substantial agreement that it would be about half the school holidays, but disagreement about the details and whether the mother would be obliged to travel to Sydney with the children once a term so they might spend time with the father.
(b)The terms of injunctive orders concerning private images belonging to the mother, some of them intimate, and or some injunctions concerning communications with third parties by the father about those matters.
In discussion with counsel it appeared to be accepted that the terms of injunctions sought by the mother restraining the father from communicating with third parties was too wide to have its source of power, if any, in section 68B of the Family Law Act1975 (Cth) (“the Act”). However, in broad terms, the father agreed to the orders sought by the mother that he ensure the images held by him were to be deleted or destroyed so as not to be recoverable, and for two subject devices, a phone and an iPad currently held in the Sydney registry of the Federal Circuit and Family Court of Australia to be destroyed.
The substance of the dispute at the conclusion of the trial was the details of the time the children were to spend with the father. This has a direct bearing on the range of factual disputes I need to resolve, and the degree of detail to which I need to descend. The parties have intimated that there will be costs applications to follow and I also take that into account.
Credibility
In general terms, I found both the mother and the father to be unpersuasive witnesses. The mother was not frank with the Court over a matter that initially, at least, appeared of some relevance. She denied in cross-examination she was in a relationship with a Mr A (that is an arbitrary initial) during the marriage or after she moved to Brisbane. When confronted with photographic evidence of her with Mr A to the contrary, she made a partial admission. Subsequently, the mother filed an affidavit setting out the details of that relationship which demonstrated that her earlier evidence was not frank. I say apparently relevant or the apparent relevance because a subpoena to the school principal of the eldest child disclosed a note made by the principal that the mother had attended the school with her partner whom she wished to have recorded as a contact. The principal later clarified that his note had confused the mother with another parent. The question of any relationship the mother might have thus became largely, if not entirely, irrelevant to any issue.
However, the deployment of the photographs in cross-examination confirmed to the mother something she had suspected, that the father had access to private images belonging to her. I was persuaded, somewhat against my better judgment, that orders akin to Anton Piller[1] orders were necessary to oblige the father to reveal the extent of the personal images of the mother held by him, and whether they had been disseminated to third parties. It was said that the relevance of this rather wide-ranging inquiry was that it was or was likely to be indicative of family violence or coercive and controlling behaviour directed against the mother by the father.
[1] Anton Piller KG v Manufacturing Processes Ltd [1976] 1
The trial was then adjourned to my next visit to Brisbane in March 2022 while a forensic examination of the father’s devices and cloud accounts was undertaken by Mr B, a forensic IT specialist. Ultimately, Mr B was unable to open the father’s devices with the passcodes provided. However, the father did assist Mr B to access his Gmail, Hotmail and his WhatsApp account. This assistance permitted Mr B to establish that the father had sent a great many images from the mother’s Dropbox account, some 401 gigabytes, to himself.
Mr B did not examine all of the items but he sampled some of them. He said that some of the images were “everyday”. For example, real estate photographs, a boarding pass and so on. However, 61 images were highly private intimate photographs. I am satisfied that the father’s initial disclosure, lack of disclosure or slow disclosure about these photographs after orders were made in October 2021 constituted a lack of frankness.
In relation to the failure of Mr B to gain access to the father’s devices, I consider the most likely explanation is that the passcodes given by the father were not correct. No other explanation was offered by the father or put to Mr B. The father, nevertheless, asserted the passcodes were correct. I did not accept that claim. Both parties in the result failed to establish their credibility.
The issues to be resolved at trial were thus very narrow and have been described.
Forensics
The forensic battle which took the most time at trial related to issues of parental capacity and allegations of family violence. They were related. The father’s trial affidavit alleged that the mother had a past involving drug or alcohol use and mental health issues. Ultimately, he accepted that the mother was a good mother and the children were safe and well-cared for by her. That was consistent with his ultimate acceptance that the children should live with the mother in Brisbane. The mother’s trial affidavit and related affidavits alleged that the father had perpetrated family violence against her. At times, the mother’s case appeared to suggest that such family violence was the product of a personality disorder or vulnerability. The forensic purpose, if there was a purpose, of these allegations appeared to justify her unilateral relocation with the children from Sydney to Brisbane.
The allegations of the mother fell into three categories. The first category concerned the mother’s allegations that the father coerced her into sexual activity after their alleged separation in December 2018, which she said she agreed to on occasion for the sake of peace. She also said that the father belittled her and abused her and demanded to look at her telephone. The mother said that she began to seek professional help for her deteriorating mental health and anxiety because of the father’s conduct.
The mother was cross-examined about her attendance on a counsellor over a period from late 2019 to the end of 2020. It is worth referring to some of the notes of those attendances in some detail. In the first attendance on 31 December 2019 the mother was recorded as referring to the father as her, “ex-husband”. On 12 February 2020, the next attendance, she referred to her “poor marriage”. On 7 May 2020 she was said to be, “struggling in her marriage”, and, “she and her partner operate from a position of respectful distance”. On 25 June 2020 she told the counsellor that, “her husband is kind to her children”. On that day on 25 June there was also a note that the mother was, “getting sick of the situation”. The note stated:
Ms Jones says that her husband is kind to her children as well as being reliable, but she has no warmth towards him and finds him dull and boring.
Another passage said:
Ms Jones is also finishing a master’s degree and hopes to gain a more senior leadership role going forward with more pay so she can leave her husband.
On 10 July 2020 it was noted:
Her husband has been made redundant and as a result she was more motivated to leave him.
On 25 November the following note was made:
Ms Jones has presented previously stating she no longer loves her husband and would like to be separated from him.
On the last attendance that I can see on 20 December 2019 there was a summary of issues by the counsellor, including the statement that the mother and the father were, “currently living separated under one roof”. Those records contain no complaint of family violence or improper conduct by the father in circumstances where the mother discussed, apparently freely, her dissatisfaction with her marriage. The mother’s general practitioner notes were also tendered for the period from 2009 to 2021. There is no complaint or record of a complaint of family violence or of conduct that might be interpreted as family violence recorded in those notes. In mid-2020 the mother was referred to a psychiatrist, Dr C, who recorded that:
She had separated from her husband in 2018, but they were still living in the same house.
The mother described “severe stress” and a –
…significant fear something would go wrong with the children.
There was no complaint of family violence or conduct by the father that might be interpreted as family violence. Dr C diagnosed a:
…depressive disorder, possibly induced by severe stress related to the breakup of her marriage.
In circumstances where the mother might be expected to raise a complaint that she was subjected to family violence or coercive and controlling behaviour to her counsellor, her general practitioner or her psychiatrist, she did not. The most serious criticism she made of the father that he was “dull and boring”. She said also that he was:
…kind and patient with the children.
I am satisfied that the mother was not subjected to family violence, coercive and controlling behaviour or threatening behaviour by the father, and her claims to the contrary are untrue.
The second category of alleged family violence concerns the father's use of private images of the mother. It was not alleged that he had deployed them apart from permitting his counsel to use two of them to establish that the mother's evidence about a relationship was untrue. There was no evidence they have been used.
Counsel for the mother asserted that the mother’s strong suspicion that the father had images of her and her consequent distress, acknowledged by the father, constituted coercive and controlling behaviour. Counsel claimed the possession of the mother's private images without her permission constituted an invasion of her privacy and was unethical, however there was no evidence that the images were deployed to control, coerce or threaten her. I am not satisfied that the father's possession of those images constitutes family violence.
The third category includes an allegation that the father threatened to reveal certain private matters to the mother’s employer if she opposed him in relation to a financial settlement. The father denies having done so. The allegations if true would constitute blackmail, a criminal offence. I consider I should not make any such finding unless the evidence is clear and credible. In view of my finding that other aspects of the mother's evidence are not to be accepted, I am not satisfied this allegation is true.
Another incident which was alleged to constitute family violence was an incident at changeover of the children on 11 July 2021. This was the subject of a video taken on the father’s telephone. The father and mother became embroiled in an argument about who was to keep the parties’ car. The dispute unfolded in front of the children. The father, in my view, acted irresponsibly. He blamed the mother to the children and exposed them unnecessarily to the conflict between him and the mother. This reflects poorly on him. However, his conduct, in my view, did not constitute family violence or coercive and controlling behaviour. It was not child aware or focused, however, there do not appear to have been other incidences of this kind and I am satisfied that the incident reflected the father's anger and hostility towards the mother, but as I say, it was not family violence.
The second forensic battleground between the parties revolved around parental capacity. At some points in the trial, the mother's counsel appeared to suggest that the children were at risk in the father's care, particularly through denigration of the mother by the father. The cross-examination of the child expert, Ms D, appeared to imply that the father suffered from some personality vulnerability or disorder. That suggestion was abandoned by the time of final submissions. I am not satisfied that there is a risk of this kind, although I am satisfied that a parenting course or courses focused on protection children from parental conflict would be of assistance to both parties.
The father also made claims in his trial affidavit about the mother's use of alcohol and her mental health. By the time of submissions, he acknowledged, as has been noted, that the mother was a good mother and the children are safe with her.
I should say something about the evidence of the Ms D. Ms D’s report and oral evidence was balanced and helpful. She was satisfied that the children had a strong relationship with both parents. She said there were no indications in her view that the relationship between the mother and the father was characterised by family violence or coercive and controlling behaviour.
She said that certain common indicia of coercive and controlling behaviour were absent from the relationship between the mother and the father in her view, including evidence of a repeated pattern of coercive and controlling behaviour or of a personality disorder, such as narcissism, or vulnerability. She considered both parents to be capable parents. I accept Ms D’s opinion about these matters. Ms D said that if the parents live close to each other there could be an equal time arrangement. She recommended that the children communicate with the non-resident parent from 6:00pm to 6.30 pm each Tuesday, Thursday and Sunday. She said if the children lived in Brisbane with the mother there ought to be communication with the paternal grandmother, who lives in Sydney, once a week at minimum. She recommended that the father engage in a men’s behaviour change program or similar. In view of my findings about family violence, I am not satisfied that a men’s behaviour change program is required, but as noted, I propose to make orders about parenting courses for both parents.
In exercising its jurisdiction under Part 7 of the Act the Court is required to follow the legislative pathway set out there. The best interests of the children are, of course, paramount, but they are not the only consideration in a case such as this, which is sometimes described in a shorthand way as a relocation case. The right of free movement under the Australian Constitution and system of law is also to be recognised, and in my view that is significant in this case. I consider this right was recognised by the father in the ultimate course he adopted.
The primary consideration in determining the best interests of children are set out in subsection 60CC(2)(a) and (3) of the Act. The primary consideration is the benefit to the children of having a meaningful relationship with both of the children’s parents. I accept that is the determinative consideration in this case and I am satisfied that under the orders that I propose to make the children will have the benefit of a meaningful relationship with both of their parents, including the father, with whom they will not live.
Fortunately, the matter in subsection 60CC(2)(b), the need to protect children from physical or psychological harm, is not engaged in this case in my view.
I also consider the additional considerations in subsection 60CC(3).
In relation to subsection 60CC(3)(a) the children are too young to express their views.
In relation to subsection 60CC(3)(b) the children have a good relationship with both parents and, I assume in the absence of evidence to the contrary, with their respective grandparents.
Subsection 60CC(3)(c) relates to the extent to which each of the child’s parents has taken or failed to take the opportunity to participate in decision-making about long-term issues, spending time and communication. It was not the subject of specific evidence, but I am satisfied that both parents in the context of this case, the father in particular, has sought to maintain his relationship with the children.
In relation to subsection 60CC(3)(ca), the extent to which each of the parents have fulfilled or failed to fulfil the obligations to maintain the children, there was some evidence that the father is or at least at the time of trial affidavits was in modest arrears in child support, but that matter did not figure in any significant way into evidence. Taking into account the very large sums that both parties have expended in legal fees, I expect that both parties have experienced financial hardship.
In relation to subsection 60CC(3)(d), the likely effect of any change in the children's circumstances, there will be some change in that the children will now reside permanently in Brisbane with the mother and spend time with the father. Ideally, if both parents resided in the same city, the children would spend equal or approximately equal time with each parent. This is not possible at the moment, but I am satisfied that the children can still maintain a meaningful relationship with both parents.
Subsection 60CC(3)(e) relates to the practical difficulty and the expense of spending time and communicating with a parent. This is a significant issue, and I accept that the expense is a limiting factor in the amount of time that the children may spend, particularly with the father, in Sydney. I have taken that matter into account as far as I can in the orders that I propose to make.
In relation to subsection 60CC(3)(f) I am satisfied that both parents are capable of fulfilling or satisfying the emotional and intellectual needs of the children. The father accepted the mother is a good mother and the children were safe with her. Before the litigation commenced the mother described the father as “kind and patient” with the children. I am satisfied that is an accurate description.
In relation to subsection 60CC(3)(g), I have no particular comment about the maturity of the children and the parents beyond this. The litigation between these parents has, in my view, been conducted with a lack of proportion and a lack of frankness, which reflects on their maturity. I hope that the experience of this litigation, which I am satisfied has been almost entirely destructive, is something they can reflect on and learn from, as they will need to co-parent these young children at least in a businesslike way for the foreseeable future.
Consideration of subsection 60CC(3)(h) is not relevant and no further comment about subsection 60CC(3)(i), (j) or (k) is required. I note subsection 60CC(3)(l) and (m).
As there will be shared parental responsibility, I am required to consider the matters in section 65DAA of the Act. Clearly, with the parents living in separate states, it is not practicable to make an order for equal time. I am satisfied that it is practicable and desirable that there be orders which as far as possible provide for the children to spend substantial and significant time with their father.
There will be an order that the father is to destroy or delete so as not to be recoverable any image of the mother, her associates, or any other image obtained by the father from the mother’s Dropbox, email accounts, Google Photos, or any other cloud account or device in the mother’s name withheld by her or with any other person. That is by consent.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Young. Associate:
Dated: 28 March 2022
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