Joshi & Balik
[2022] FedCFamC1F 571
Federal Circuit and Family Court of Australia
(DIVISION 1)
Joshi & Balik [2022] FedCFamC1F 571
File number(s): SYC 3082 of 2018 Judgment of: REES J Date of judgment: 9 August 2022 Catchwords: FAMILY LAW – PARENTING – Application by the father to spend unsupervised time with the children – The mother seeks sole parental responsibility and permission to relocate interstate – Where the mother has experienced family violence perpetrated by the father – Where the father has undergone rehabilitation – Discussion of ‘meaningful relationship’ – Whether the child is able to maintain a relationship with their father that is important, significant and valuable even if the child is relocated – Orders made for the father to spend increased time with child until the end of 2023 – Orders made to permit the mother to relocate interstate at the end of 2023 – Orders made for the child to spend time with the father on the first weekend of every month and one weekend of every school holiday period. Legislation: Acts Interpretation Act 1901 (Cth) s 15AA
Family Law Act 1975 (Cth) s 60CC(2)
Cases cited: Godfrey & Sanders (2007) 208 FLR 287
McCall & Clarke (2009) FLC 93-405
Moose & Moose (2008) FLC 93-375
Division: Division 1 First Instance Number of paragraphs: 172 Date of hearing: 4-6 July 2022 Place: Sydney Counsel for the Applicant: Mr Gardiner Solicitor for the Applicant: Cordoba Legal Counsel for the Respondent: Mr Cairns Solicitor for the Respondent: Stanfords Solicitors & Mediators Counsel for the Independent Children's Lawyer: Ms Rebehy Independent Children's Lawyer: JLM Family Lawyers Pty Ltd ORDERS
SYC 3082 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR JOSHI
Applicant
AND: MS BALIK
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
REES J
DATE OF ORDER:
9 August 2022
THE COURT ORDERS:
1.That the mother have sole parental responsibility for the child X born 2017 (“X”) and that X live with the mother.
2.That the mother and the father do all things required to set up a private WhatsApp account to be used only for the purpose of communicating with one another about X.
3.That the mother shall provide to the father within 14 days of receipt, a copy of the child’s school reports and the mother shall be at liberty to redact or omit any information from those reports which might be used to reveal the child’s address or the location of his school.
4.That the mother shall advise the father as soon as practical of any serious illness, injury or proposed surgery for the child including a diagnosis and prognosis and provide any and all reasonable updates and the mother shall authorise any treating practitioner to provide to the father any information about X’s diagnosis, treatment and prognosis that he seeks.
5.That both parties are hereby restrained from speaking about the other parent or a member of the other parent’s household in a derogatory fashion in the presence or hearing of the children and shall remove the children from the presence or hearing of any third party seeking to do so.
6.That the parents are hereby restrained from speaking to the child about these proceedings or showing the child any document in relation to these proceedings.
7.That, commencing 20 August 2022, until the end of the fourth school term in 2023, X spend time with the father as follows:
(a)During school term from 9.00 am until 5.00 pm each alternate Saturday, with the paternal grandmother or aunt to be generally present, for a period of three months.
(b)Thereafter from 9.00 am Saturday until noon on Sunday with the paternal grandmother or aunt to be present in the home overnight with X.
(c)That for the purpose of this order, changeovers are to be supervised, unless otherwise agreed, in accordance with the arrangements currently in place, by B Contact Centre , at the expense of the father.
8.That from the end of term four in 2023, the mother be permitted to relocate X’s residence to Melbourne.
9.That from 1 January 2024, X have contact with the father as follows:
(a)On the first weekend of each month from 10.00 am on Saturday until 4.00 pm on Sunday in Melbourne, changeover to be at a public place agreed upon or, in the absence of agreement, nominated by the father.
(b)In each school holiday period commencing with the holidays after the first school term of 2024, in Sydney for one weekend in each holiday period from 10.00 am on Saturday until 4.00 pm on Sunday with changeover, absent agreement, to take place at the domestic terminal of the Sydney Airport and the mother shall nominate the weekend and give the father at least two weeks’ notice of the nominated dates.
(c)On each Sunday when X has not spent time with the father; on X’s birthday; on the first day of Eid Al-Fitr and on the first day of Eid Al-Adha, by video call, to be instituted by the mother or her nominee arranging for X to call the father between 5.30 pm and 6.30 pm.
10.That leave is given to the father to provide a copy of these reasons to Mr C, the father’s treating psychologist.
11.That pursuant to Sections 65DA(2) and 62B 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and those 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 Joshi & Balik has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
REES J:
Mr Joshi (“the father”) and Ms Balik (“the mother”) are the separated parents of X who was born in 2017 (“X”) and is now five years old.
Both parents were born in Australia and both are Muslim. The father is of Country M heritage and the mother of Country N heritage.
They lived together briefly from about mid 2016 until early 2018. X was six months old when they separated, in circumstances of serious family violence perpetrated by the father against the mother.
The mother has three children of a previous relationship, Ms D who is aged 22 years; Mr L who is aged 21 and Y who is aged 12. Mr L and Y lived with their father in Melbourne and spent holiday periods with the mother. Ms D lived with the mother and the father.
The mother has remarried and she and her husband, Mr G, live in Region O. The father lives in Sydney.
The father seeks orders that he has shared parental responsibility and that X live with him on alternate weekends and for half of all school holiday periods.
The mother seeks orders that she have sole parental responsibility for X and that X spend no time with his father. The mother wishes to move to live in Melbourne where she has family and from whence she moved to live with the father in Sydney.
The father lives in the same home as the paternal grandmother.
the dispute
At the beginning of the hearing, I put to the legal representatives that there were only two issues in dispute:
·Has the father demonstrated that he has rehabilitated himself such that he no longer poses a risk of violence?
·Is the relationship that the child currently has with the father of such a strength and nature that it can survive a relocation?
It is not disputed that there has been a history of significant family violence perpetrated by the father on the mother. It is not necessary to set out the specific incidents. It is sufficient to understand that some of the incidents, which all occurred in 2017 and 2018, were the subject of charges. It is, however, important to understand the gravity of the offences which included choking the mother on at least two occasions, punching her, causing her to lose consciousness and threatening to kill her and to kill her children. I also accept the evidence of the mother’s daughter that the father also punched her.
On 15 January 2018, the day the mother left the home, the father sent her a text message stating that he had contacted the police and told police that she had abducted X and “I’m getting my boys involved right now”. The mother, reasonably, interpreted that message as a threat that she would be assaulted by the father’s friends. The father was arrested and charged with two offences against the mother, one of which was withdrawn. On the same day, a provisional Apprehended Domestic Violence Order (“ADVO”) was made for the protection of the mother and X. The father was convicted of using a carriage service to menace/harass/offend the mother and placed on a bond.
The father told the Intake Counsellor at the Sydney Children’s Contact Service, when he attended his intake interview on 15 May 2019, in relation to the text message “I was going to get my boys on her…we were going to get [X] out with physical violence…obviously we didn’t”.
On 17 January 2018, the father self-referred to K Inc where he saw Mr C who has continued to be his psychologist. Mr C reported:
He was referred by his General Practitioner (GP) to address symptoms of depression and anxiety, as well as choosing to also participate in the [K Inc program]. [The father] elected to also devote additional treatment sessions to learning about domestic abuse and changing his behaviours. [The father] disclosed at treatment onset that he had been charged with one count of “assault” and one count of “stalk and intimidate”. He also stated that he had an AVO put on him protecting his wife and son [X].
On 24 February 2018, the father was again arrested and charged with three further offences:
·Common assault upon the mother
·Intentionally or recklessly destroying or damaging property
·Breach of ADVO
In relation to that incident, the father told the Intake Counsellor what had occurred, and she recorded that the mother was to bring X to him because he didn’t have a baby seat in his car but she told him to “come and get [X]”.
“This annoyed me, and I drove down to her and the situation escalated, there was damage”. [The father] said “we rammed her vehicle”. When asked to clarify if there was anyone else with him as he said “we” [the father] said there was “just me”. Later in the interview [the caseworker] asked [the father] to describe the assault, including who was assaulted. [The father] said “I assaulted [the mother], I ran into her vehicle, choked her and I believe her hair was pulled”. [The father] said this in a matter of fact tone of voice. [The father] did not demonstrate remorse or reflection on the impact this may have had on [the mother].
The father was denied bail and remained in custody until 2 March 2018 when he entered a plea of guilty to all charges and received a 12-month suspended sentence and a 12-month good behaviour bond. In addition, an ADVO was made for a period on one year.
In mid-2018, the father was charged with two further offences:
·Stalk or intimidate intending to cause fear
·2 counts of breaching the ADVO
He pleaded guilty to one breach of the ADVO and was convicted on the first charge. His bond was revoked and two concurrent Intensive Corrections, each for a period of two years, were made.
On 27 March 2018, the mother wrote to the father offering time with X every second Saturday from 10.00 am to 4.00 pm provided that the father’s sister was present at changeover and the father was not. She proposed other time if the father gave 48 hours’ notice. A number of conditions were imposed on the offer:
You will agree not to fight for any form of custody or care now or in the future even when this agreement for the visitation is ended. This is ongoing.
You will not take him interstate.
You will not take him overseas.
You will not leave him in the FULL care of anyone else whilst he’s in ur care i.e. ur mother, ur girlfriend/wife/de facto/, ur sister, ur father or a friend. U only have him for a short time so make the most of ur time together.
This is for a trial period of 3 months beginning on the day of the first access date to which after that the situation can be re-assessed and amended if necessary.
(As per the original)
There was no agreement. The father’s response was not in evidence.
On 6 August 2018, the father was charged with a further assault upon the mother arising out of events which had occurred in mid-2017. He pleaded guilty and was sentenced to an Intensive Corrections Order and required to perform 100 hours of community service.
It is not disputed that the father has not committed any further offences since 2018. The ADVO for the protection of the mother expired in March 2019.
The issue to be determined is not whether the father has perpetrated violence upon the mother – he did, or whether his offences were serious – they were. Rather the issue is whether the father has rehabilitated himself to such an extent that it is appropriate and in X’s interests that X spend unsupervised time with him. If it is determined that X is to spend unsupervised time with the father, then the issue of the mother’s wish to live in Melbourne has to be determined.
The father did not spend any time with X after separation until orders were made on 8 April 2019, in contested proceedings, for supervised time at a contact centre for two hours each fortnight. The father attended the intake interview on 15 May 2019 and the Intake Counsellor noted:
[The father] appeared to make some acknowledgement of the incidents of domestic violence for which he was convicted (stating that he made “threats” by text message, which was “inappropriate”), however he also appeared to justify and/or blame [the mother] for his behaviours (“she refused to show me my child, this escalated the violence”, “she baited me into breaching” the AVO, he said she “sent him to prison” and “damaged the child’s relationship with his father”, and referred to her as being “extremely unreasonable.”
The time, which started on 15 June 2019, was supervised by U Service and reports were provided.
A Family Report was prepared in 2020 after interviews conducted electronically in July 2020. The Family Consultant did not have the opportunity to observe the father and X but she was provided with the reports of the professional supervisors of their observations of the father and the child.
The Family Consultant noted the father’s responses to the mother’s allegations of violence:
32.[The father] acknowledged that there was a previous ADVO but said that this was not warranted, and that there had been no police involvement throughout the relationship. He acknowledged that the police have been involved twice since the making of the ADVO for two breaches, but that there has been no police involvement since April 2018. [The father] alleged that, in respect of the breaches, [the mother] was in communication with him stating that she would permit him to spend time with [X] if he gave her $30,000. He advised that when he refused she then reported the breach of ADVO. He acknowledged that it was not appropriate for him to keep calling and texting [the mother] but he explained that [the mother] “was doing everything to deny me access” to [X].
33.Later in the interview, [the father] acknowledged that he may have made [the mother] feel unsafe on occasion but adamantly denied making [X] feel unsafe. He denied being physically, psychologically or verbally abusive or coercively controlling. He stated that [the mother] “has a tendency to allege things but there is no evidence”. He stated that the ambulance was called on one occasion but that “the medical evidence could not substantiate” that he had assaulted her “and I cannot remember what happened”. When the Family Consultant asked [the father] if he had ever choked [the mother], he hesitated and stated that he may have attempted to choke [her], and then agreed he was convicted of attempting to choke [the mother] on one occasion. He accepted that he playfully “flicked” Y on the ear but adamantly denied hitting or punching [X]’s older sister (and alleged that [the mother] punched [Ms D] as she was communicating with a teenage boy). [The father] denied threatening to kill [the mother] or the children, including [X]. He denied saying that he hoped [Ms D] would be raped and beaten. He adamantly denied threatening to take [X] from [the mother] or attempting to run her over. [The father] denied expressing that he wished to seek revenge and kill his ex-wife (wife prior to [the mother]).
The father told the Family Consultant that he was receiving therapy from Mr C. She reported:
37.… He acknowledged that he did not behave appropriately towards his ex-wife (wife prior to [the mother]), that he holds himself accountable and responsible for being angry and that he has taken responsibility to change how he thinks and behaves. He confirmed that he has undertaken a stress and anger management program and individual psychotherapy.
The mother told the Family Consultant that she did not believe that the husband’s behaviour had changed and that he is “faking it”. In relation to the positive reports from the contact supervisors, the mother said the father is “putting it on for the visit… two hours of fun is not a test of his parenting”.
The mother proposed that X spend no time with his father until he is old enough to know right from wrong and “if he is mistreated, he can tell someone and express his concerns and problems”. The mother suggested that could happen when X was eight years old. The mother did not want to have any direct communication with the father but was prepared to communicate through extended family and friends.
She acknowledged that X enjoyed attending the Contact Centre and that, of recent times, he became upset when the time ended but she attributed his upset to her taking him away from play.
The Family Consultant reported:
42.…She said that she was trying to be patient at this time because she understands [the father’s] violent and volatile behaviour is related to poor mental health and that she knows he is seeking psychological support. She reported that the harassment and intimidation increased in April 2018 and that [the father] attempted to drive over her and called and texted her numerous times. [The mother] stated that through her own therapeutic support, she began to realise that [the father’s] behaviour was very purposeful towards her and that she was a victim of family violence. She advised that, when she reflects on the relationship, she now recognises there was ongoing physical, verbal, psychological abuse and coercive controlling behaviour.
The mother alleged to the Family Consultant that the father had been violent towards both his own mother and his sister, an allegation that they each deny. However, the paternal grandmother, in cross-examination, said that the father had not permitted her to visit X when he was born and she was clearly very distressed that she was not permitted by the father to form a relationship with her grandson. The mother had not, at this time, met the father’s sister.
The Family Consultant recorded the mother’s account of the family violence in the following terms:
47.[The mother] claimed that [the father] first physically assaulted her when she was three months pregnant with [X], saying that he choked her to the point that she could not breathe. She said that he admitted to abusing his ex-wife and said, “Why do you think she left?” and the next day he apologised and acted like it never occurred. She stated that the physical, verbal and sexual abuse and controlling behaviour increased from this point, with her being punched, her hair pulled out in clumps and him often verbally abusing her and the children and constantly expecting her to be on the phone to him while he worked. [The mother] claimed that on one occasion he had to call an ambulance after he assaulted her and caused her to become unconscious. She advised that when she came to, [the father] said, “Look what you made me do, you are going to make me go to jail”. [The mother] advised that she could not tell the paramedic what occurred as [the father] was present. [The mother] further stated that [the father] refused to permit her to take on certain employment opportunities if it was not paying enough salary. She stated that he punched [Ms D] in the face twice and split her lip. She said that she became increasingly fearful for her and her children’s safety and she reported the abuse to professionals such as [Dr E] (GP) and their marriage counsellor, [Mr F]. She said that [Mr F] picked up that she was experiencing family violence and gave her advice. [The mother] stated that when she heard that [the father] had allegedly flicked [Y’s] ear and told [Y] that if he ([Y]) told her it would be worse for him, she decided that she needed to leave. She said that when she confronted [the father] he went into a rage and questioned which of her children was a “rat”. [The mother] advised that she had asked [the father] not to discipline her children and that if there were issues to let her know so that she could address it. She said that he frequently criticised her and her ex-husband’s parenting and stated that he needed to discipline the children with a belt so they knew how to behave. She said that this was inappropriate as her children are very well behaved. She said that he expected the children to sit quietly in the corner…
The mother told the Family Consultant that her partner, Mr G had four children aged between six years and 13 years and that the mother of those children had “brainwashed and manipulated the children against him”. (It was later established in interview with Mr G that his children live with their mother in Melbourne, that he does not spend time with them and that he had discontinued his application to spend time with them.)
The mother said she believed that the father’s proposal to spend time with X was made “out of spite” rather than because of genuine affection for X.
The Family Consultant interviewed Mr G. She reported:
65.[Mr G] advised that he does not think [the mother] and [the father] could communicate respectfully as [the father] has not acknowledged the abuse he allegedly perpetrated against [the mother] and the children. [Mr G] advised that he does not think that [X] should miss out on a relationship with his father but that [X] and [the mother’s] safety needs to be prioritised. He suggested that [X] make the decision about seeing his father when is old enough to communicate himself.
The Family Consultant summarised the reports of the contact supervisors:
72.In general, the supervised Contact reports were positive where [the father] was observed to follow [X]’s lead, engage in parallel play when required and was capable of comforting [X] when he was distressed. [X] was also noted to be more relaxed and happy to attend visits as they [sic] visits progressed. It was noted that [the father] was reportedly receptive of feedback from staff regarding his parenting skills, including boundary setting, and was observed to employ these strategies in future visits.
In her evaluation, the Family Consultant stated:
73.Every child is entitled to have a meaningful relationship with both parents, their extended families as well as their culture and heritage, provided it is safe to do so. What is called into question in this matter is whether it is safe for [X] to have a meaningful relationship with [the father] or whether [the mother] is purposefully not encouraging it.
She said:
75.It appears from contact reports and [the father’s] self-report that he has employed much time and energy in developing his parenting capacity to become, as he said himself, the best parent to [X] that he can be. If the primary concern was in relation to parental capacity it would appear that gradually increasing [X]’s time with [the father] would be an appropriate proposal. It is suggested that if [X] were to begin to spend unsupervised time with [the father], it is done in small increments of time to help [X] manage this transition, particularly as his primary carer is [the mother].
The Family Consultant rejected the mother’s proposal that X could see his father when he was eight years old. She said:
76.The Family Consultant considers that it is difficult to expect [X] to make an adequately well-informed decision about his relationship with his father when he is eight or older. [X], or most other children, would not be able to determine the long-term effects of exposure to the potential risk factors in this matter or the impact of not having a long-term relationship with his father on his long-term wellbeing. It would be more appropriate for [X] to maintain some degree of a relationship with [the father] and when he is older perhaps be permitted to have an opinion on whether this relationship be progressed further.
The Family Consultant recommended:
81.…If the Court determines that [the father] perpetrated acts of family violence, it is suggested that he participate in the “[H program]” men's behaviour change program to help him take responsibility for his behaviour and learn more effective and respectful ways to deal with his emotions. Men's behaviour change programs are found to be more effective with male perpetrators of family violence than anger management programs.
The course recommended is the same course for which the father is waitlisted.
The Family Consultant recommended:
84.If there were no risk issues in this matter then [the father’s] proposal for [X] to spend significant and substantial time or equal shared time with him would have some benefits for [X] in the long-term. It would be the ideal scenario for [X] to move from supervised to unsupervised time with [the father] If this transition were to occur, it would be suggested that [X]’s time with [the father] gradually increase to introduce overnight time, which then increased to the whole weekend. In terms of [the mother] being the primary carer and the distance between both parents’ homes and the poor co-parenting relationship, it is not likely that the [sic] an equal shared care or a Thursday until Monday arrangement would be in the best interests of [X]. However, an alternate weekend parenting arrangement would support [X] to maintain a meaningful relationship with his father…
She recommended that the time not be immediately unsupervised and that the father continue in therapy.
She suggested that it would be appropriate for the paternal family to supervise the father’s time with X both as a protective measure and to give the mother comfort.
The Family Consultant concluded:
88.If the Court finds that [the father] has perpetrated acts of family violence but that he is able to take responsibility for his aggressive behaviour and that [X] would benefit from maintaining a relationship with him, the Family Consultant considers that, at this stage, [X]’s time with [the father] be informally supervised by paternal family if possible, on alternate weekends for four hours and, if no issues or concerns arise, that this be transitioned to unsupervised and gradually increased to alternate weekends, from Friday to Sunday. The reason for this is that this time might provide [X] with an opportunity to have quality time with his father that perhaps is manageable for both [X] and the father whilst his safety is ensured. This parenting arrangement would support [X] to have stability in her parenting routine. It is recommended that the parents do not encounter each other at changeovers and that a professional service or extended family or friends facilitate changeovers in the initial period and, if it progresses to unsupervised, that the changeovers occur in a public place to minimise opportunities for the parents to engage in conflict in front of [X]. This will also promote [the mother’s] recovery from the trauma she appears to have experienced as a result of living through the alleged family violence.
On 20 January 2021, orders were made by consent for the time to transition to the supported visits program at U Service and the father’s sister Mr P and the paternal grandmother were also allowed to be present during the visits.
On 8 June 2021, orders were made by consent which provided for the father’s time with X to be extended from five hours to six hours each fortnight to be supervised by the paternal grandmother and spent in a public place. If the father’s sister Mr P was available, she was able to supervise and the time could be spent at the father’s home or at any other place.
The orders were again varied by consent on 22 September 2021 when the father’s sister was prevented by the lock-down rules from attending the contact, to allow the contact to take place for five hours each alternate weekend in the presence of a supervisor at the father’s home.
At the time of hearing, the father was spending six hours each fortnight with X. The changeovers are supervised and the paternal grandmother attends the contact visits. The father’s sister attends most of the visits.
X has now been spending supervised time with his father for more than three years. The mother, in cross-examination, said that X loved his father, his paternal grandmother and his aunt and that he enjoyed and looked forward to his time with them.
Although the father did not concede that the mother must have played a part in X’s forming a good relationship with him, I accept that to be so. Despite the fact that the mother opposed the introduction of supervised contact with the father, she has consented to the time’s being extended and to its presently being supervised only at changeovers.
rehabilitation
The father self-referred to a psychologist, Mr C on 17 January 2018. Mr C has provided two reports, dated 4 December 2020 and 22 February 2022 and was cross-examined.
At the time of the December 2020 report, the father had completed a total of 27 sessions of therapy; a one-hour comprehensive initial assessment and a day long stress and anger management workshop.
Mr C reported that the father had engaged well in treatment and had acknowledged that he was a perpetrator of domestic violence and wanted to learn strategies to “help better himself and build a non-violent household with respectful relationships”. Mr C stated:
He acknowledged that he wanted to eliminate disclosed unhelpful traits including his view on women, being impatient, harsh and vindictive.
Mr C stated:
In his most recent treatment session [the father] stated that he acknowledged that any form of abuse was a choice. He extended this assertion by saying that he has gone from using violence as a strategy to using nonviolence, compromise and using appropriate community and legal channels and communication techniques to solve problems.
The father had completed a number of courses including:
·K Inc program
·Q program
·R program
·S program
He had done an intake interview for “H program” but has been placed on a waiting list which, according to the email annexed to his affidavit, may be lengthy. Mr C said that course would be an effective step for the father.
Mr C said that the father had acknowledged the negative detrimental effect that family violence would have on X.
In the second report dated 22 February 2022, Mr C reported that the father had attended a further five sessions of treatment and that, in his opinion, the father could be discharged from treatment. Mr C stated:
This was due to the volume of treatment sessions to date… his ability to self-manage whilst further tapering intervals between treatment sessions and his ability to maintain helpful and prosocial attitudes and beliefs since being released from custody. It was likely that [the father’s] remission would continue into the future for these reasons.
The father deposed that he intended to continue treatment with Mr C because he found it helpful.
The father deposed that he has told his mother and his sister about his violent behaviour. The father’s mother deposed:
I am very ashamed of [the father] engaging in that conduct towards [the mother] or any other woman… [The father] has also expressed to me his shame and embarrassment about engaging in this behaviour and the significant impact it has had on his relationship with [X].
I do not condone any sort of violence and will not allow my grandson, [X] to be exposed to any form of violence.
However, it was clear from the cross-examination of the paternal grandmother that she had no understanding at all of the nature of the violence perpetrated against the mother. She said that the father had never behaved angrily in her presence. She was apparently not aware that the father had been charged with violent offences against the mother or that he had been convicted or spent some time in prison.
The paternal grandmother was very distressed when she told the court that she was not allowed to see the baby when X was born and had to make do with photographs. It was the father who refused to allow his mother to see X.
The father’s sister deposed:
I am very disappointed in [the father] in engaging in such behaviour. I have spoken to him about his behaviour and how it is totally unacceptable and I will not tolerate him ever engaging in that behaviour.
The father’s sister was similarly unaware of the nature of the violence against the mother. She said that the father had told her what he had done but that she couldn’t remember the details, an assertion that I find not credible. She said she was aware that the mother had suffered bruises. When pressed, she agreed with the suggestion that there had been some pushing and shoving between the mother and the father.
I do not accept that either the father, the paternal grandmother or the father’s sister were truthful when they deposed that the father had told them what he had done and expressed remorse.
Neither the mother nor the Independent Children’s Lawyer (“ICL”) accepts that the father has rehabilitated himself such that he no longer poses a risk of harm to X.
The mother’s position is understandable. She was the victim of significant violence in her brief relationship with the father. Nothing that has transpired since their separation has given her any comfort that he has changed.
It is not enough to say that he has not perpetrated any violence against her since mid-2019. He has had no contact with her at all.
The mother regards the form of orders sought by the father as evidence of his continued intention to control her and she construes correspondence between the father’s solicitors and her solicitors as further evidence of control.
For example, on 17 September 2021 the father’s solicitors wrote to the mother’s solicitors complaining that the father had not been kept informed by the mother in relation to X’s treatment for Attention Deficit Hyperactivity Disorder (“ADHD”); his treatment for issues relating to his tonsils, adenoids and grommets and his speech therapy. The solicitor wrote, inter alia:
In circumstances where your client did notify our client of her steps to seek treatment until today our client expresses concern at your client’s attempt to dictate treatment providers for [X] without any reference to our client.
In order for our client to consider your client’s proposal to move forward with an alternative treatment provider, please provide the name and details of such provider; the frequency of treatment; a draft letter of instructions and a proposal for the apportionment of treatment costs. Our client insists that he be involved in [X]’s treatment.
Furthermore, the receipt of the speech pathologist shows that payment was made by credit card. Please urgently advise whether your client made the payment using her own credit card. If not, please advise who made payment.
It would be unsurprising that the ICL interpreted both the father’s insistence on being “involved” in X’s treatment and the enquiry about who paid the bill to be evidence of the father’s desire to control the mother.
At the beginning of the hearing, the father sought a raft of orders which both the mother and the ICL submitted were further evidence of his attempting to control the mother. Those orders included, for example the following requirements:
·The mother must inform the father if she intends to take X outside the Sydney Metropolitan area.
·That the father nominate three schools for X to attend and the mother choose one. (The father does not know where X lives and said in cross-examination that one of the schools he would nominate would be at Suburb V where he lives).
·That he and his sister be listed as emergency contacts at X’s school (noting again that the father does not know where X lives and the mother does not wish him to know what school X attends).
·That the mother be restrained from enrolling X in childcare or school without the father’s consent. (X has been attending childcare for some time).
·That if there is no agreement about X’s secondary schooling, the father is to decide what school X attends and, if it is a private school, the mother is to pay half of the fees.
·That the mother be restrained from enrolling X in any after school or weekend activity (regardless of whether that activity interferes with X’s time with the father) without the father’s consent.
·That the mother be restrained from allowing any person other than herself or the father from dropping X at school or picking him up.
·That the mother not be permitted to leave X in the care of Mr G.
·That X not be allowed to visit a named family.
·That the mother be restrained from communicating or making any decisions about X with any person other than the father.
·That the mother be restrained from allowing X to dress as a female.
·That the mother be restrained from allowing X to eat pork.
·That the mother be restrained from allowing X to “undertake any form of body-piercing or body colouration including hair colouration”.
·That the mother ensure that Mr G is not referred to as “Dad”.
·That the mother ensure that she “does not have excessive children in her custody, care or control or living under the same roof at any time” when X lives with her.
·That X is not to be introduced to Mr G’s children.
·That X be circumcised.
The father, in the course of cross-examination by the ICL of the Family Consultant who was the first witness, abandoned some, but not all, of those applications. He rejected the suggestion, put to him in cross-examination, that his demands were evidence of his seeking to control the mother. It is difficult to arrive at any other conclusion.
In cross-examination, the father said that he wants to attend at X’s school; he wants to attend his sports events such as soccer games; he wants to be involved and consulted in relation to every aspect of X’s life. He evinced no understanding of the effect upon the mother of her being forced into that degree of contact with him.
The tenor of the father’s evidence was that the mother should understand that he was a changed man and accept that he would be a presence in X’s life and in hers. He demonstrated no understanding about the effect that his violent behaviour towards her and towards Ms D has affected the mother.
The father’s attitude seems little changed from that which was demonstrated at the intake interview in 2019 when the Intake Counsellor noted:
The Coordinator asked [the father] if he sees himself and [the mother] able to engage in a cooperative co-parenting relationship. [He] said “it really depends on her, it’s how she is. Key word is behaviour; why did I end up in remand? It’s how you react, and if it’s focussed on behaviour – if she doesn’t focus on her behaviour we will struggle”. When asked what he thinks [the mother] needs to change, [the father] said she needs an “attitude adjustment”, “she should do a course to focus on the child”, “no one’s going to hurt you”, “send your ex-husband to prison”, “then damage the child’s relationship with his father, Jesus!” [The father] said this in an exasperated tone of voice.
In 2019, the father was dismissive of the mother’s concerns. The Intake Counsellor noted:
The Coordinator asked [the father] if he expects he and [the mother] to be able to communicate to the degree required for shared care. [The father] shared that it would be a “struggle” because of what “she subjected us to”, “no trust, there is no trust, even if there was trust in the future I don’t think we would trust” …When asked what he thinks [the mother] is worried or fearful of, he said [the mother] is “not worried, she’s doing it out of spite. Nothing has happened to you for a year and a half; if you’re concerned, you wouldn’t have given access when the initial access was taken out.
In cross-examination, the father said that the mother’s behaviour towards him over the past four and a half years has been dismissive, citing her failure to provide him with medical reports. The father, in answer to a question from counsel for the mother, said that, before separation the mother was victim but that after separation, he was the victim and that “everything I wanted, I had to go to court for”. He said “It’s not nice what I did but it’s something I have to live with”.
It is, of course, the mother who has to live with the consequences of his violence towards her, something for which he seemed to have little appreciation.
He did, however, say that he would be worried if a friend or family member who had behaved as he had was spending time with X.
He has never apologised to the mother for his behaviour and he gave the mother no credit for the fact that X has developed a loving relationship with him. Asked by counsel for the mother to state three good things about the mother, he was unable to say anything at all.
I accept that nothing which the mother heard in the course of the hearing would give her any comfort that the father has, in fact, changed his behaviour. Her attitude is understandable, having regard to her experience of him as violent, angry, unpredictable and frightening.
However, it is not her subjective view that is relevant here but rather an objective view of the evidence.
I accept that the father understands that his behaviour towards the mother was completely unacceptable and that he cannot achieve what he wants, that is, to have a relationship with his son, if he continues to act as he did in the past. Because he understands that fact, I accept he has changed his behaviour. I accept that he will not resort to violence in the future because he fully understands that the consequence would be that he would not see X again.
I also accept that he has no real understanding or appreciation about the effect of his violence upon the mother and that she, reasonably and genuinely, remains fearful of him and fearful about what he will do.
evidence of the family consultant
Ms J did not support the father’s sharing parental responsibility. She said:
…there’s also concerns about how the parents would even commence communication to discuss such issues and to ensure that they be able to reach agreement in a timely and effective manner for [X]. I know from reading some of the other material that was forwarded onto me, I understand that [X] has been diagnosed with ADHD last year, and has been approved for NDIS and is engaged in speech and language and OT, and it would seem that he’s going to be a young boy that will have engagement with specialists and will need reviews and appointments and decisions being made, and it would not be helpful if these decisions were going to be delayed because parents could not communicate effectively.
In relation to X’s relationship with his father, Ms J said:
It seems that he seems to have developed a relationship with them and is excited to see them and to wave them off at the end as well. So it gave me the sense that he has established a relationship with them too…
At [X’s] current age of five, it would seem that he has an idea of who his dad is and has established a relationship. So in terms of the reoccurring frequency, that would be more important for younger kids to remember, attach, consolidate the attachment. Whereas for older children, they can hold it in their mind and remember it and I suppose embrace it without having the – such increased frequency. But yes, additional time does allow for further, I suppose, progression and experiences between a parent and a child.
Ms J said that a scheme of weekend time with morning and evening routines would be a suitable arrangement to maintain solid attachment and the relationship between X and his father.
She said that X is now used to seeing his father frequently and that seeing him less often could be difficult for X, especially having regard to the additional needs of a child with ADHD such as stability, routine and security which are crucial. She suggested that if X were getting appropriate support from both his parents around not seeing his father frequently, “he might be able to weather that”. She said:
In terms of when is it best to occur, I would be saying not any time kind of in the build up before kindergarten, and probably not any time in his kindergarten year. Just really delicate times for a child to adjust, so I’d be just really cautious, really kind of around any changes if they’re not going to happen imminently, that they don’t happen until at least he’s in year 1.
Ms J outlined the risks of severing that relationship to include X potentially having difficulties with trust, with rejection, with conflict resolution and with his ability to maintain solid relationships and friendships.
Counsel for the ICL asked Ms J about the effect on the mother of having to deal with the father. She said:
That would be one of my concerns. During the interview, Mum was quite distressed recounting some of the incidents that you’ve also referred to, and also at the thought of having to co-parent or communicate with the father, given her experience of him during the relationship. And that would be a concern, while it is very positive that the father has acknowledged that this has occurred and has sought consistent support, you know, he needs to be commended for that. The other side of it is, the mother has still experienced this and it was a very scary situation for her. And for her to build up, I suppose, trust and faith that the father has developed insight and that he has accepted full responsibility and that he has, you know, consolidated all the therapeutic intervention to make changes and that it would be hard for her to be, I suppose, realise that. So even if the dad has done all that, her reality is still her lived reality of the abuse. So there needs to be caution in terms of, I suppose, the expectations placed on Mum in terms of her communication and her relationship with the father, because her mental health is a priority for [X]. She is his primary carer. She has been his primary carer. And if her emotional wellbeing is compromised, then we have a young boy whose wellbeing might also be compromised, even outside of Dad not doing anything from here on in to trigger anything from Mum, I suppose there needs to be considerations given to the expectations placed on Mum.
Ms J said that there is a potential risk that if the mother is adversely affected by having to deal with the father, that would have an effect on X.
Ms J said that the nature of the violence perpetrated on the mother was of concern because choking is an indicator of lethality and that it would be very difficult for the mother to “move on” from that experience.
Ms J said that there would be a concern about the nature of the orders that the father sought which could be interpreted as “quite restrictive and controlling”.
In relation to a progression to X’s spending overnight time with his father, Ms J said that would be a “natural progression” and recommended that the paternal grandmother and aunt be present to provide additional comfort and security for X and for his mother, but that supervision of the changeovers should continue for a period of time until overnight time has been established.
Ms J said that long-term supervision of changeovers is not a viable option in the long term. She recommended that the parents use one of the available communication apps or a dedicated email address to communicate with each other about X.
Ms J was asked whether X’s relationship with his father could withstand the proposed relocation. She said:
…there is a possibility that it could be maintained. I mean, he seems to have a clear idea of who dad is and who grandma and his aunt are. But, again, it would – it would mean that he would need to have time probably during term time and school and has considerations for travel. You know, it’s a burden on a child to do those travel in-between trying to settle into school, and it may involve dad considering coming to Melbourne for some of those visits. But generally what would happen as well with some of those arrangements is that you could have extended time during school holidays to really, kind of, bolster the relationship. And if we – if we don’t have a situation where [X] is spending time and that we don’t know whether that is safe time and happy time and positive time, it’s hard to turn our mind to – to an arrangement such as that.
Ms J was concerned that any arrangement for X to have FaceTime or Skype communication could make the mother feel unsafe.
Ms J said that, ideally, overnight time could start by the father collecting X from day care and returning him to his mother in a supervised changeover on Saturday afternoon. However, she strongly advised that there should be no changes to the parenting arrangements in the first year of X’s attendance at school which the mother proposes to be 2023. Ms J said:
For any young child that’s transitioning to school, you want to give them the best opportunity to settle in, to become familiar, to understand the kind of structure and the environment, and his peers and whatnot. And especially for any child that might have an underlying diagnosis and additional requirements, change can be so overwhelming for kids with additional needs, so having just the change of school transition alone would be significant enough and he would really just need a really solid base elsewhere in life to enable him the best opportunity to settle in.
Ms J said that overnight time should be well settled in place before X starts school. Ms J predicted some difficulties in settling X into overnight time. She said:
It seems from reading the material, the affidavits that I was forwarded, that they perceive that there is [sic] some issues with [X] when he returns from visits, irritability, tantrums, concerns that maybe parenting practices aren’t standardised across the two homes, which can be difficult. If that is a reality, it can be difficult, but also needs to be taken into mind that he – [X] himself may have behaviours associated with his ADHD diagnosis, and also there could be some frustrations that his time with dad is more limited than he would like and he’s not getting to, you know, finish off his play or he – he feels it’s – it’s quite a short period of time. And also, it’s not unusual for children to take a little while to settle in from one parent’s care to the other at changeovers where there might be some tantrums or upset or irritability or tiredness, and that just requires a really consistent approach to settling the child in, whether it be a – a ritual or something that they do to just ground him and reassure him that your back in mum’s care now or you’re back in dad’s care. But there’s a number of factors that might be causing that.
THE COMPETING APLICATIONS
The father seeks equal shared parental responsibility; an order that X be raised in the Islamic faith and that X spend time with him increasing from each Saturday in the company of his paternal grandmother or aunt; then after three months from Friday afternoon until 5.00 pm Saturday; then after a further three months each alternate weekend from after school until school starts on Monday and for half of all school holiday periods. He also seeks a suite of orders, some 45 in all, some of which had been referred to earlier in these reasons which I do not need to set out here.
At the conclusion of the evidence, the ICL provided the parents with a Minute of Orders which proposed that the mother be permitted to relocate immediately; that the mother have sole parental responsibility for X and that X have professionally supervised time with the father in Melbourne from 10.00 am to 4.00 pm four times each year and in Sydney twice each year.
The mother adopted the ICL’s proposal in its entirety.
The ICL confirmed that her position was that, if X’s time with his father is not professionally supervised, then he should spend no time with him. It is not clear to me that the mother adopted that position.
That proposition was not put to the Family Consultant and was not endorsed by her.
consideration
The facts of this case bring starkly into focus the primary considerations in s60CC(2) of the Family Law Act 1975 (Ch) (“the Act”):
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
X has now been spending supervised time with his father for over three years. He has commenced to develop a relationship with his father but it is likely that, having regard to the severely curtailed time they have spent together, that the relationship will develop further if they continue to spend time together. At this stage, X has never spent a whole day with his father and has never stayed overnight with him.
The competing proposals of the parents, including the application of the mother to relocate with X to Melbourne, fall to be considered bearing the primary considerations in mind.
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;
X has expressed no views.
the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
It is not in dispute that X’s closest attachments are to his mother and, it is likely, to Mr G with whom he has lived since he was about nine months old.
The ICL tendered the supervision reports from B Contact Centre between January and May 2021 and the reports of supervised changeovers between July and September 2021. The reports of the supervisors up to the time of the hearing were tendered in the father’s case. I have not summarised each and every occasion but the examples set out below demonstrate that the father and X, and X’s paternal grandmother and aunt, have been building a close and loving interaction. The father is reported to have listened to advice from the supervisors and adopted their suggestions. On a number of occasions, X did not want to leave and was appropriately managed by the father.
The supervisors report a loving and appropriate relationship between X and his father and with his grandmother and aunt. They do not report that X had any difficulty separating from his mother to go to his father but they do note that, on occasions, X was reluctant to leave his father.
On 24 July 2021, the report of the supervised changeover notes that X referred to Mr G as “dad” and to the father as “other dad”. The paternal grandmother was present and X hugged his father. When it was time to go, the supervisor asked X how his day was and X said “Good. I was with my Dad and Grandma”.
On 31 July 2021, the paternal grandmother was again present and X ran to them. The supervisor noted that X seemed happy to see them. X went happily to his “mum and dad” at the end of the time.
On 7 August 2021, X hugged his father and grandmother when he arrived. At the end of the time, X told the supervisor he had a good time and was happy to see Mr G.
On 21 August 2021, X ran to his father and grandmother and hugged them both. He ran happily to his mother and stepfather at the end of the time.
On 4 September 2021, the supervisor reported that X ran into his father’s arms saying “Daddy, daddy, daddy” and hugged his father then ran to his grandmother and hugged her. The father bought flowers for X to give to his mother at the end of the visit and X ran to his mother and Mr G appearing “happy and proud to give flowers” to her.
On 11 December 2021, the supervisor reported that X ran to his father and hugged him. The paternal grandmother and the father’s sister were also present.
On 25 December 2021, the supervisor reported that X shouted out to his father and ran to him. The paternal grandmother and the father’s sister were also present. When the visit was ended, X walked away then went back to give his father another hug goodbye.
On 8 January 2022, X again ran to his father when he saw him and that, when it was time to end the visit, X didn’t want to leave.
On 5 February 2022, X ran to his father and gave him a kiss then hugged and kissed his grandmother and aunt.
The supervisor reported a playful and affectionate changeover on 13 February 2022. The paternal grandmother was present. X picked flowers for his mother and as he walked away from his father he called out “You’re the best dad in the world”.
Again, on 19 February 2022, when X saw his father he began to run to him and kissed him. The paternal grandmother and aunt were also present. When it was time for X to go, he again said to his father “You’re the best dad in the world”.
Similar warm and appropriate interactions are described in the changeover reports for the changeover to the time of the hearing.
the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
The father has, since the parents separated, attempted to be involved in X’s life. Some of his attempts have been ill considered, impulsive and led to the imposition of criminal sanctions.
Since the orders were made in April 2019 for supervised contact, the father has diligently spent as much time with X as the orders permitted. I am not aware of any occasion when a contact session was cancelled because the father could not or did not attend.
the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
The father has paid child support as assessed. He has not made any contribution to the costs of speech therapy or occupational therapy and he has applied to the Child Support Agency to reduce the amount of child support he pays because of the costs of supervision. He currently pays about $41.50 per week in child support which he acknowledged in cross-examination is far less than the amount the mother pays for X’s financial support.
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;
The mother’s proposal that the father have no contact with X will mean the loss of their relationship.
Since June 2019, X has been given the opportunity to gradually build that relationship and, although the relationship is still a work in progress, it is clear from the reports of the supervisors that X loves his father and his paternal grandmother and feels comfortable and secure in their company.
The mother agreed in cross-examination that X loves his father and his grandmother and his aunt and that he enjoys his time with them.
To the mother’s credit, she was willing to consider the introduction of overnight time and she thought that X would enjoy that. In her answers to counsel for the ICL in cross-examination, the mother’s attitude was ambivalent. She appreciated that X’s relationship with his father was important and said that she wanted him to continue that relationship but she was frightened, apprehensive and distrustful that X would be safe in his father’s care.
The mother’s reservations are understandable, having regard to her experience of the father’s violent behaviour.
I accept the evidence of the Family Consultant that the loss of his relationship with his father would have negative consequences for X.
I also accept her evidence that, provided overnight stays have been established for X with his father before X moves to Melbourne, the relationship can likely be maintained.
The mother is not required to establish that she has a good reason to relocate. I do not accept the submission on behalf of the father that she has put no concrete proposal before the Court and therefore her application should be rejected. The mother has, since X was six months old, made proper and appropriate arrangements for his care, including managing his speech difficulties and his ADHD and there is no reason to suggest that she would not continue to do so in Melbourne.
The mother has been supportive of X’s relationship with his father, despite the fact the initial orders for supervised time were made over her objection. There is no evidence that she will not continue to be supportive of the relationship if she is permitted to relocate. The mother said in cross-examination that she does not want X to feel that his father does not love him or that the loss of a relationship with his father is X’s fault.
The maintenance of X’s relationship with his father is not the only consideration when assessing what arrangements are in his best interests. His mother’s welfare is also relevant to his best interests.
The mother gave evidence that she finds it difficult in Sydney to manage her responsibilities of working part time, studying remotely and parenting X with no family support. She said there is no-one she can call on if X is unwell or needs to be collected unexpectedly from care.
The mother said that Melbourne is her home and that she only came to Sydney because of the relationship with the father who she believed would love her and treat her properly. She said, in relation to Melbourne, words to the effect of “That’s my home. I want to go home. I was abused here. I was mistreated. We’re alone here. We’ve got no one”. Mr G also left Melbourne to live with the mother in Sydney.
The mother has a large extended family in Melbourne including two brothers, three sisters and four cousins of about her own age. There are numerous younger cousins. She believes her family will provide a supportive network for her.
I accept the submission of counsel for the mother that she is a “damaged and fragile mother” and that she needs to be supported.
I also accept that the consequence of that support’s being provided will be that the father will be disadvantaged and that his contact with X will be more onerous and more expensive but that is the consequence of the father’s past violent and abusive behaviour.
However, it is necessary that, before X moves to Melbourne, he has the opportunity to settle in to over-night time with his father. The evidence of the Family Consultant is that there should be no significant changes in X’s routine during his first year at school which is anticipated to be 2023 so it is necessary for over-night time to begin as soon as possible so that it can be maintained throughout 2023 and the mother and X can move to Melbourne at the end of the 2023 school year.
the practical difficulty and expense of a child spending time with and communicating 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;
The mother and Mr G do not suggest that they have the financial resources to bring X to Sydney regularly to spend time with his father but she conceded in cross-examination that she could do so from time to time.
The father works in transport and he does not have the financial resources to travel regularly to Melbourne, paying for air airfares and accommodation, in order to spend time with X but he also said that he would do his best to spend time with X in Melbourne, as did his mother.
The Family Consultant stated:
90.Due to the serious allegations of family violence and the poor co-parenting relationship, it is deemed inappropriate for [the mother] to facilitate video calls between [X] and [the father] due to the impact that it may have on her wellbeing and therefore her parenting capacity…
Notwithstanding that evidence, the mother proposed that there could be video calls provided they were facilitated by Mr G and she was not within earshot. She said that she becomes distressed when she hears the father’s voice.
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;
There is no criticism of the mother’s parenting.
Whilst the father’s parenting ability after X’s birth was significantly impaired by his attitude towards the mother and his violence towards her, I accept the evidence of the contact supervisors and of Mr C that both his attitude and his parenting skills have improved and that he has demonstrated that he can calmly and sensitively parent X.
When asked about X’s readiness to start overnight contact with him, the father said that he was concerned that X would miss his mother, an answer that the mother said gave her some comfort.
the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
The mother’s cultural background is Country N. The father’s cultural heritage is Country M. The mother in cross-examination said that she had given no consideration to how X’s connection with his Country M heritage might be maintained when he was in her care.
X will only have the opportunity to experience his cultural heritage if he spends time with his father and his paternal family.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents and any family violence involving the child or a member of the child’s family;
The father first assaulted the mother when she was pregnant with X. She said in cross examination:
When he beat me up the first time I was pregnant and he said “I don’t give a damn about that … in your gut.” He didn’t care about [X] then.
The father continued to assault the mother after X was born and after they separated.
It is commendable that the father has realised that his behaviour was not acceptable and that he has engaged with Mr C over a considerable period of time and on a continuing basis to rehabilitate himself but that does not detract from the seriousness of the father’s violent behaviour towards the mother and the ongoing consequences for her of that behaviour.
conclusion
The mother should be permitted to relocate with X to Melbourne after the end of fourth term of school in 2023. In the meantime, X should start spending over night time with the father and the paternal grandmother so that, by the time he moves to Melbourne, he might be ready to spend more than one night with his father. I accept the evidence of the Family Consultant that the changeovers should continue to be supervised until the end of 2023 but I do not consider that supervised changeovers are necessary once the mother moves to Melbourne. Changeovers can then take place at a public place or can be facilitated by Mr G or another member of the mother’s family.
The orders will provide for the father to spend time with X in Melbourne on one weekend in each month from Saturday morning until Sunday evening and for the mother to bring X to Sydney to spend time with the father in each school holiday period.
I accept that this arrangement is not optimal but I am also conscious that I am required to give priority to X’s having a “meaningful” relationship with his father.
The question of what is meant by the term "meaningful relationship" was considered by the Full Court in the decision of McCall & Clarke (2009) FLC 93-405 where their Honours said, commencing at [109]:
The Act does not contain a definition of "meaningful", nor does it provide any specific criteria to assess how parents either have, or should have, a "meaningful involvement" in a child's life. It does not give guidance to the interpretation of the phrase "meaningful relationship".
It is necessary we construe the language of the statute to determine whether the import of the legislation is clear without reference to extrinsic material.
The Macquarie Dictionary defines the adjective "meaningful" as "full of meaning, significant. Significant is defined as "important; of consequence"
The Shorter Oxford English Dictionary defines "meaningful" as "Full of meaning or expression; significant …" "Significant" is defined as "Having or conveying a meaning; Expressive; suggesting or implying deeper or unstated meaning … important, notable; consequential ..."
We turn first to the objects clause (s 60B(1)). The purpose of an objects clause is "to indicate the intended purpose of the legislation" (Pearce, D C & Geddes, R S, Statutory Interpretation in Australia, 6th ed, Lexis Nexis, Australia, 2006) The learned authors further note at 4.42… "objects clauses are used as an aid to the construction of words of legislation. Gleeson CJ referred to the legislative declarations of the objects of an Act as giving practical content to abstract terms such as 'reasonable', 'justification' and 'satisfactory' in Russo v Aiello (2003) 215 CLR 643 at 645".
Section 15AA of the Acts Interpretation Act 1901 (Cth) provides for a purposive construction of a statute.
The phrase "meaningful relationship" in the context of s 60CC(3)(a) has, not surprisingly, been considered in a number of decisions since the introduction of the amending Act. In Mazorski & Albright (2007) 37 Fam LR 518 Brown J, after setting out the definition of "meaningful" and "meaning", said at paragraph 26:
What these definitions convey is that "meaningful", when used in the context of "meaningful relationship", is synonymous with "significant" which, in turn, is generally used as a synonym for "important" or "of consequence". I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
The Full Court in Moose & Moose (2008) FLC 93-375 adopted the statement of Kay J, sitting as a single Judge in Godfrey & Sanders (2007) 208 FLR 287, who stated:
...even if the move results in a diminution of the quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
Thus I am required to consider the importance of X’s having a relationship with his father that is significant, important and of consequence and I am confident that if X spends time with his father each month, during each school holiday period and by video call, that relationship will be achieved.
parental responsibility
The presumption in favour of the parents’ sharing parental responsibility does not apply if there are reasonable grounds to believe that a parent has engaged in family violence.
The mother seeks an order that she have sole parental responsibility for X.
The mother’s experience of the father is as a violent and controlling partner. She has had no experience of him since 2018 and does not wish to have any direct communication with him.
The Family Consultant stated:
While [the father] was confident that he and [the mother] could communicate respectfully and focus their interactions on matters to do with [X], [the mother] remains convinced, upon hearing [the father’s] proposal that he has not changed. The mother] believes that [the father] will continue to insist on things that suit him and that he would try to exert further control over her if they had to make joint decisions about [X]. The Family Consultant suggests that [the mother] has sole parental responsibility for [X], particularly if the Court determines that [the father] has perpetrated family violence.
I accept that evidence. It is not reasonable to expect the mother to make joint decisions about the child with a father whom she has experienced as aggressive, violent, threatening and controlling.
The mother will be required to advise the father of the decisions that she makes and, for that purpose to set up with him a WhatsApp account that can be used to communicate information about X to the father and for the father to communicate with the mother if there are any concerns when X is in his care
the ancillary applications
I was directed to no evidence in support of the orders referred to in paragraph 75 of these reasons that the father seeks and I do not propose to make any orders.
Similarly I was directed to no evidence about the need for X to have a passport and I do not propose to make any orders about that issue.
I certify that the preceding one hundred and seventy-two (172) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Associate:
Dated: 9 August 2022
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