Kadric and Kadric
[2020] FCCA 1364
•9 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KADRIC & KADRIC | [2020] FCCA 1364 |
| Catchwords: FAMILY LAW – Parenting – sole parental responsibility to the father – children live with the father – children spend time with the mother – mother resides interstate. |
| Legislation: Family Law Act1975, ss.4AB, 60CC |
| Cases cited: Goode & Goode [2006] FamCA 1346 |
| Applicant: | MR KADRIC |
| Respondent: | MS KADRIC |
| File Number: | SYC 713 of 2019 |
| Judgment of: | Judge Boyle |
| Hearing dates: | 21, 22, 23 October 2019 and 20 December 2019 |
| Date of Last Submission: | 31 January 2020 |
| Delivered at: | Sydney |
| Delivered on: | 9 June 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Schonell |
| Solicitors for the Applicant: | Michael Conley Lawyers |
| Counsel for the Respondent: | Ms Bridgett |
| Solicitors for the Respondent: | CBD Law Pty Ltd |
| Counsel for the Independent Children’s Lawyer: | Mr Schroder |
| Solicitors for the Independent Children’s Lawyer: | Sydney West Family Lawyers |
ORDERS
That all previous parenting orders be discharged.
That the father have sole parental responsibility for all major long-term decisions concerning the care, welfare and development of the children X born in 2007, Y born in 2008 and Z born in 2009 (hereinafter “the children”).
For the purpose of exercising sole parental responsibility the father shall:
(a)Inform the mother of any major parenting decisions that need to be made and invite the mother to offer her input in writing in relation to such major parenting decisions;
(b)In the event that the father receives the mother’s input within 7 days of informing her of any major parenting decision, he shall take that input into account before making the final decision in relation to the major parenting decision;
(c)Upon making his decision in relation to such major parenting decision, the father shall inform the mother; and
(d)The mother is entitled, at her own expense if necessary, to participate in resolving any major parenting issues, including attending upon educational or medical providers relevant to the major parenting issue.
That the children live with the father.
That unless otherwise agreed between the parties in writing, the children spend time with the mother as follows:
(a)If the mother resides within a 60-kilometre radius from the father’s premises:
(i)Each week from the conclusion of school on Wednesday until the commencement of school on Thursday with changeover to occur at school;
(ii)Each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday with changeover to occur at school;
(iii)For the second half of the Term 1, 2 and 3 school holiday periods;
(iv)For the first half of Term 4 school holidays in even numbered years and for the second half of Term 4 school holidays in odd numbered years;
(v)On Mother’s Day from 9am to 6pm;
(vi)On the mother’s birthday from the conclusion of school to 6pm if the mother’s birthday falls on a school day or from 9am to 6pm if the mother’s birthday falls on a weekend; and
(vii)On the children’s birthday from 3pm to 6pm if the child’s birthday falls on a school day or from 9am to 1:30pm if the child’s birthday falls on a weekend
(b)If the mother does not reside within a 60-kilometre radius from the father’s premises:
(i)Every third weekend during the school term from the conclusion of school on Friday until 5pm Sunday;
(ii)For the entire Term 1 and 3 school holiday periods concluding two days prior to the children’s first day of the new school term; and
(iii)For the first half of the Term 4 school holidays in even numbered years and for the second half of Term 4 school holidays in odd numbered years.
(c)If the mother chooses to spend time with the children in accordance with Order 5(b) in City A the following shall occur:
(i)The mother shall do all acts and things necessary to purchase airfares for the children two (2) weeks prior to the commencement of the children’s time with the mother and provide a copy of the tax invoice and copy of airfare tickets to the father within 24 hours of purchase;
(ii)Within 7 days thereafter, the father shall reimburse the mother for one half of the children’s airfares by electronic transfer into the mother’s nominated account; and
(d)The father shall deliver the children to and collect them from the service counter of the relevant airline at City B Airport in Suburb C NSW at the commencement and conclusion of their time with the mother.
That unless otherwise agreed between the parties in writing, the children spend time with the father as follows:
(a) On Father’s Day from 9am to 6pm;
(b)On the father’s birthday from the conclusion of school to 6pm if the father’s birthday falls on a school day or from 9am to 6pm if the father’s birthday falls on a weekend; and
(c)On the children’s birthday from 3pm to 6pm if the child’s birthday falls on a school day or from 2pm to 6pm if the child’s birthday falls on a weekend.
Changeovers
That the father shall ensure so far as it is practicable, that Ms D conducts the changeovers on his behalf.
Unless otherwise stated in these Orders, changeover shall occur at the McDonalds on E Street, Town F, NSW with the parent with whom the children are spending time collecting the children at the commencement of their time and returning the children at the conclusion of their time.
Telephone communication
Unless otherwise agreed in writing between the parents, during the period the children are in the care of one parent, the other parent is permitted to speak with the children once per week on Sunday between 4pm and 5pm (NSW time) using FaceTime, Skype or voice call through the other parent’s mobile phone.
The parent with the children in their care shall ensure:
(a)The telephone is fully charged, switched on and in a mobile reception area to facilitate the other communicating with the children.
(b)The children shall have sole possession of the telephone and be responsible for answering the telephone and terminating the call at their discretion.
(c) The children shall have privacy during telephone calls.
Information
Both parties shall keep the other informed as to their respective residential addresses and contact numbers at all times. If either party plan to change their residential address, that party shall give the other party at least 21 day’s written notice of such intention and details of the proposed new address and accommodation.
Each of the mother and the father shall provide each other with information as soon as practicable upon the happening of the following:
(a)Events related to the general health of the children including but not limited to medical appointments, test results, progress reports (notice of appointments to be provided as soon as practicable following the making of such appointments); and
(b)Each parent shall inform the other immediately or if not possible, three (3) hours upon the happening of any medical emergency involving the children including but not limited to serious illness, accident or hospitalisation.
The parties shall provide a copy of these Orders to any school which the children attend and authorise same to provide particulars to the other party of the children’s welfare, progress at school, education, special needs of the children, copies of school reports and details of upcoming functions or activities.
Except in cases of emergency for the purposes of these Orders any notifications to be provided by either party shall be made via SMS or email. In cases of emergency telephone communication shall be made as soon as practicable and followed up by SMS if the telephone is not answered.
Restraints
Each party is hereby restrained from:
(a)Denigrating the other parent within the presence or hearing of the children or causing any other person with whom they reside to denigrate the other parent within the presence or hearing of the children;
(b)Denigrating the other parent on social media, including but not limited to, Facebook, Twitter and Instagram;
(c)Audio recording and/or video recording each other, including but not limited to the party’s interactions with the children;
(d)Discussing with the children or any other person in the children’s presence details of these proceedings; and
(e)Discussing the implementation and mechanisms of these orders with the children.
All organisation and planning in relation to the children must be made between the parents.
The mother do all things necessary to ensure the children do not come into contact or communication with Mr G during her time with the children.
Miscellaneous Orders
Both parties will do all things necessary to apply for and thereafter renew the children’s Australian Passport from time to time and shall not withhold consent for such renewal. Each party shall pay one half of the cost of the passports. The passports will be held by the father and shall not be unreasonably withheld from the mother in the event that she raises with the father beforehand that she wishes to travel overseas with the children during her designated time with the children, or as otherwise agreed between the parties in writing.
That each party, to the best of their ability, is to do all things necessary to ensure that while in their respective care, the children shall attend any extracurricular, sporting or cultural activities in which they may be participating from time to time including any training or tuition relating to that activity, and both parents are at liberty to attend such activity as a spectator if the activity allows such attendance.
IT IS NOTED that publication of this judgment under the pseudonym Kadric & Kadric is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 713 of 2019
| MR KADRIC |
Applicant
And
| MS KADRIC |
Respondent
REASONS FOR JUDGMENT
The parties each seek parenting orders with respect to the children X, born in 2007; Y, born in 2008; and Z, born in 2009. The children currently live with their father, his partner, and her two younger children in the former family home in Town H, New South Wales. The mother lives at City A, in Queensland.
Background
The parties commenced living together in 1998, and were married in 2006. They separated on 11 September 2017. The mother left the home at the time of separation.
When the mother initially left the home she drove to Queensland. She did not advise the children, the father or her parents where she was for three days. With the encouragement of the maternal grandmother, the father reported the mother as a missing person to the police.
On her return, the children remained in the home with the father. They reached an agreement where she spent time with the children most days after school until their bedtime, and on alternate weekends. Time was generally based at the family home. Some periods were spent at the maternal grandparents’ home in Town J.
The father commenced a relationship with Ms K in 2017. She has three children; X aged 17, Y aged 15 and Z aged 7. Ms K and her two younger children have lived with the father and the children since November 2018.
From 16 December 2018 to 23 December 2018, the mother took the boys to the Region L for a holiday, with the father’s agreement. X refused to attend.
The mother removed the boys from their first day of school in 2019, without advising the father, and took them to the Region L. Shortly after, the father commenced proceedings in this Court on 7 February and interim orders were made for the children’s return to the father’s care.
Issues for Y
Both parents gave evidence that they noticed when Y was a toddler, he did not reach developmental milestones as his sister had. In late 2010 he was diagnosed with explosive child syndrome, or oppositional defiance disorder. In mid-2018 he was diagnosed with autism spectrum disorder. He is prescribed medication for this condition.
The parties agree that Y likes routine and certainty, including around arrangements for his care. He becomes anxious, and oppositional at times.
Y attended Town H Primary School until 2019, when he was placed in a special class at Town H Public School. Y’s most recent school report suggests that he is doing reasonably well. The mother attributes this to him attending a school designed to meet his particular needs. She does not regard the father as contributing to his success at school.
Y is entitled to receive National Disability Insurance Scheme (“NDIS”) funding. In March 2019, the father made an access request and was required to supply supporting documentation to maintain the funding. The father did not attend to this and Y ceased to be part of the scheme in May 2019. This meant that he was not able to gain assistance, for example, through occupational therapists (“OTs”) at M School. Y has benefited from OT support through this service over the years. The father agreed that Y would have benefitted from OT during 2019. He provided no explanation for failing to provide the necessary paperwork for Y to be retained in the scheme.[1]
[1] Exhibit M21
The mother ensured that Y received NDIS funding from September 2019. She made the initial arrangements for Y to receive benefits from the NDIS some years before.
Issues
The issues for determination are:
(a)The risks to the children of being exposed to family violence by either or both of their parents;
(b)The parents’ capacity to support the children’s relationship with the other parent; and
(c)The impact on the children if they do not live together.
Applications
The father sought orders for sole parental responsibility, and that the children live with him. He sought orders in the alternate for the children’s time with the mother. If the mother resides within a 60km radius of his residence, the children spend time with her in a two week cycle, from Wednesday afternoon to Thursday morning in the first week, and from Friday afternoon to Monday morning in the second week.
The father proposed that should the mother live further than 60km from his residence, the children spend time with her every third weekend from Friday afternoon to Monday morning. Should the mother spend time with the children in Queensland, she purchase flights and collect and deliver the children to school at the commencement and conclusion of her time. During school holiday periods, the father sought an order that he deliver and collect the children from City B Airport. The father sought some ancillary orders around special occasions, telephone communication and restraints on the parties denigrating or recording one another.[2]
[2] Exhibit F7
The mother sought orders for sole parental responsibility, and that the three children live with her in City A, Queensland. She sought orders that the father spend time with the children for two hours each alternate Saturday at a supervised contact centre in Queensland. She sought that the children spend time with the father during each school holiday period, supervised by the paternal grandmother, upon the paternal grandmother providing an Undertaking to the Court. She sought an order that the costs of the children’s travel during the school holiday period be shared equally between the parties, and that changeover take place at a Contact Centre. She sought some additional orders limiting communication between the parties to SMS text message or email, and a number of restraints upon the father approaching her home or place of work, and using prohibited drugs or alcohol prior to or during his time. The mother also sought that both parties be restrained from denigrating the other, or members of the other’s family in the hearing or presence of the children.
During the course of the hearing, the mother provided a further Minute of Orders, in the event that Orders were made for X to live with the father, and his time with the boys was unsupervised. In those circumstances she proposed that Y and Z live with her, and that X spend time with her in Queensland, and the boys spend time with the father one weekend each month from Friday afternoon to Sunday afternoon, and half school holidays. She sought additional orders for telephone communication.
The Independent Children’s Lawyer’s (“ICL”) proposed Minute of Orders was provided to the Court at the conclusion of the hearing. The ICL sought orders that the father have sole parental responsibility for the children, and that the children live with him. The ICL supported the father’s proposals with respect to time between the children and the mother, depending on her proximity to the father’s residence. The ICL sought that the father’s partner effect changeover, and that the parties share equally the costs of the children’s travel, should the mother reside in Queensland.
Documents Relied on
The mother, father and ICL each filed Case Outline documents identifying the documents relied upon.
I have also had regard to the material tendered and marked as Exhibits.
Credit Issues
The parties were both cross examined during the course of the hearing. Additionally the paternal grandmother, Ms K and the mother’s brother gave evidence. The family report writer was also cross examined.
There were difficulties in the evidence of each of the parents at times. Each became evasive and argumentative on occasions when pressed during cross examination. The mother at times directed her answers as a diatribe at the father. She was robust and forthright. There was no indication that she was fearful of him.
Despite the obligations of disclosure and court directions, the mother did not readily produce recordings of telephone conversations. Once unedited versions were produced, it became clear that there are aspects of both parties’ conduct in telephone calls with the children and each other that have been appalling.
The mother denied that she was prepared to consider separating the children during the family report interviews, when X’s views were discussed. The report writer was clear that that was the mother’s position. I prefer the evidence of the report writer over the mother. It is consistent with the mother’s conduct in January 2019 in not taking X.
The father’s evidence was unreliable in areas of importance such as his use of drugs and alcohol. He was evasive in answering questions about use of both.
The other witnesses all did their best to assist the court, and be straightforward in their answers. Ms K impressed as someone who has adopted a caring role with respect to the children to assist them, and further the children’s interests. The same can be said for the children’s uncle Mr O.
The Law
The best interests of the children are paramount in parenting proceedings. The Family Law Act 1975 (Cth) (“The Act”) at section 60CC provides the legislative pathway to determine children’s best interests.[3]
Section 60CC(2) The primary considerations are:
[3] Goode & Goode [2006] FamCA 1346.
(a) The benefit to the children of having a meaningful relationship with both of their parents
All three children have a meaningful relationship with each of their parents. There is no issue that there are strong relationships between Y, Z and each of their parents.
X moved from refusing to see her mother, to attending with the boys on weekends. This is positive. I accept this reflects a degree of support by the father for X to have a relationship with her mother. The Family Consultant notes in the Report that “the father and Ms K have managed to support and encourage X…despite X’s feelings of resistance.”[4] The mother acknowledged during her evidence that X would be unlikely to agree to live with her. She did not try to take her with the boys in January 2019, because “I knew X would not come”.
[4] Family Report dated 8 August 2019, paragraph 100.
The mother’s position is that she will live in Queensland, regardless of what orders are made. This creates a significant difficulty for the children maintaining a meaningful relationship with each of their parents. Flights from either Sydney or City B are about one and a half hours. Travel from the father’s home to Sydney Airport is variable due to peak hour delays. It is a reliably shorter trip of an hour to City B Airport. It is expensive for time to occur between the Region P and City A. Neither parent is in a good financial position. The cost of return flights have been in the order of $400.[5] There is no evidence of the impact of the pandemic on the costs of flights, but it is a matter of public record that it will not make travel easier.
[5] Affidavit of Ms Kadric affirmed 20 September 2019, paragraph 293.
The mother is living in a two bedroom unit with her brother. When the children stay she moves into another two bedroom apartment that he owns in the same complex, so there is space for the children. Her evidence is that she is looking for accommodation, but has not secured any as yet. It is difficult to understand why the mother has prioritised living in Queensland over being closer to the children, which would allow a greater level of involvement in their lives.
(b) The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
A great deal of the hearing time was occupied with evidence relating to the allegations of family violence. It is a significant issue in this matter. Family violence is defined in the Family Law Act 1975 (Cth) (“the Act”) at s4AB:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful.[6]
[6] Family Law Act 1975 (Cth) s 4AB(1).
The Act refers to examples of behaviour that may constitute family violence such as an assault, repeated derogatory taunts, or intentionally damaging or destroying property. A child is exposed to family violence if the child sees or hears family violence, or experiences the effects of it such as through overhearing threats of death or personal injury by one family member towards another, or seeing or hearing an assault of one family member by another, or comforting or helping a family member assaulted by another.
The father and children remained in the parties’ home following separation. The mother resided in her brother’s rental apartment nearby on the Region P until it was sold. Time between the mother and children occurred predominantly through the mother spending time at the home, although there was also weekend time at the home of her parents in Town J. The mother complains that from the time of separation the father has sought to control her time with the children, in particular by preventing her having the children stay in the apartment overnight. During the hearing she conceded there were no beds for the children at that accommodation.
There is evidence of the father shouting foul and aggressive language at the mother in the presence of the children. The mother recorded conversations with the father, she says, on 50 to 55 occasions. A number of those recordings are in evidence before me. There can be no doubt that the father perpetrated family violence through his conduct at such times.
Many of the tendered recordings demonstrate that the father’s conduct towards the mother has been appalling. He has been abusive, demeaning and aggressive in speaking with her, and about her.
The father has made comments to the children which undermine their relationship with their mother. For example, he suggested to X that she does not need to listen to her mother. In one recording he suggested to X that if she stands up for herself and calls her mother a liar “I will back you 100% and smash [her]”.
There have been incidents of physical violence between the parties, perpetrated by the mother. In November 2017, the mother hit the father across the back of the head with a spatula which broke, causing a gash on the back of his head. The children were in the home, and observed at least the aftermath of blood in the kitchen, if not the entire incident. In June 2018 the mother hit the father in the mouth with the back of her hand in the parties’ home. On 27 June 2018 the mother hit the father in the face whilst they were in the car together. Y was in the car and witnessed the incident. The mother has sought to blame the father for these incidents. The evidence of the father is supported by the children’s comments to the report writer. I do not accept the mother’s evidence.
On 3 August 2018 the mother took X to a concert in Sydney. Whilst there the mother received a text message from a relative, which upset her. She became angry, lost her temper and screamed at X, telling her “I hate your dad. He is the devil.”[7]
[7] Affidavit of Mr Kadric affirmed 23 September 2019, paragraph 42.
X describes strangers intervening to calm the mother during this incident. When cross-examined, the mother sought to justify her conduct. She said that it was not right for people to send texts that are offensive and abusive, and she should not have to tolerate such conduct. She was incapable of considering the effect of her conduct on X. X was clear to the report writer that her mother had not apologised to her for her behaviour. I do not accept the mother’s evidence that she did. The evidence is that X was deeply upset, and that it has negatively impacted her relationship with her mother. The mother takes no responsibility for the way her behaviour affected X, and their relationship.
X described to the report writer her mother yelling at Y, and that she saw her hit him. She also describes the mother hitting her on the back of the head, and putting her down. Y has described to the report writer his sense of responsibility for the separation, because he did not do what his mother wanted and caused her to get angry with him. He said to the Family Consultant “I was the cause of the fight…I didn’t see mum for a few days. I feel like it’s my fault.”[8]
[8] Family Report dated 8 August 2019, paragraph 171.
In September 2018 the mother attended at the former matrimonial home. She asked the father about phone calls she had received from a solar panel company asking for payment of $14,000. The father had apparently installed solar panels on the home. She did not know anything about it, and could not understand why she was being contacted. An argument ensued between the father, his partner and the mother. The mother recorded this conversation without the knowledge of the father and his partner. She persisted in asking to see the paperwork, and the father became increasingly frustrated and angry with her. The father screamed at her “I’m thinking about shooting you in the head. I dream of it”.[9]
[9] Affidavit of Ms Kadric affirmed 20 September 2019, paragraph 98.
The argument continued over a period of time. It was at all times open for the mother to leave. She did not. Both parties behaved in a manner certain to provoke a response from the other, careless of the presence of the children in the home. There is ample evidence of the father swearing and using demeaning language when he loses his temper. He did so on this occasion, and the children were forced to hear it. The mother complained to City Q Police, who declined to assist.
The mother stayed in Queensland for a period in late 2018. In a statement to Queensland Police on 26 February 2019 [10], the mother says that she went to Queensland “for my safety”. It emerged during the hearing that the mother had sought employment through Employer R. She was advised that she could work on the Region L for three months, and could then transfer back to their plant on the Region P. She took this employment. This is not consistent with her subsequent statement to Queensland Police.
[10] Exhibit F4.
The mother did not seek police assistance at the time of separation. She did not seek refuge at her parents’ home. Instead she drove to Town S, NSW en route to the Region L, Qld. She turned her telephone off, and was uncontactable for two to three days. I do not accept she would have left the children in the home with a violent abuser, with no means of contacting her. She raised no concerns with the police in Town S, although she contacted them to advise she was not a missing person. She made no complaint to the police in Queensland once she was with her brother.
After separation the father hid guns in his possession in the roof. The guns had been stored in a gun safe in the garage during the relationship. The father was arrested on 9 January 2019 for having in his possession unlicensed and stolen firearms, and ammunition. The father’s case is that the mother always knew about the guns present in the home. This is no excuse for the father’s failure to comply with the laws of New South Wales with respect to the licensing and storage of firearms. It was clear from his evidence that he took the view that the law did not apply to him. In such a serious matter as guns in the home with children, his attitude is concerning.
The mother’s evidence is that although she knew the father had guns, she had not been aware of the type of gun. Nor was she aware that there was a loaded gun stock in the gun safe. When she found that out she felt unsafe and threatened, and that she could not return to New South Wales.
The mother has maintained to the Family Consultant, and to this Court, that she is so afraid of the father that she needs to reside in Queensland for her safety. The mother reported the father’s conduct to both the police and Family and Community Services[11]. She was aware of guns in the home during the relationship. I accept that she made reports in order to bolster her case, not because of a genuine fear for her safety.
[11] This is a former name of the department currently known as the Department of Communities and Justice.
Family violence can take many different forms. The father’s conduct towards the mother during telephone calls has been verbally abusive, derogatory, and demeaning. A number of the recordings are from conversations where the father is in the car with the children. The father loses his temper, which is dangerous when driving with children in the car. The children are stuck in the car with the telephone on speaker, forced to listen. The father has done this on numerous occasions with no regard for the impact on the children of his conduct. X has referred to her father justifying his road rage, because people need to learn to do things properly.
The children’s telephone calls between themselves, and their parents, have been recorded by both parents. When the boys were with the mother in Queensland, the father recorded conversations between his household and the mother’s. The mother has recorded numerous conversations between herself, the children and the father. This conduct paints neither party in a good light. Each of them have regarded their children’s relationships with each other, as well as the other parent, as fodder for litigation.
The mother does not lose her temper and swear during telephone conversations, as the father does. That does not mean that she refrains from being abusive towards the children during telephone calls. She can be heard relentlessly enforcing her perspective on the children. For example, in a conversation recorded by her in early 2019, she is persistent in telling the children that she cannot come to see them because of their father’s abusive conduct, and that the police have advised she should not attend the home. She repeats statements like “[h]e has been ringing me every day and abusing me and I can’t go near him because of his abuse.”
I accept that both parties have, in their own way, sought to influence the children to align them against the other parent. For example, in recordings, the mother justifies her behaviour over and over to the children. She persistently blames the father for situations the children are unhappy with, such as her not being able to see them because he is abusive. The father yells and loses his temper. He can be heard in the background of conversations between the children and their mother saying things like, “she’s a liar.”
In amongst all the recordings, a conversation was recorded on 13 December 2018 by the mother. The father does not appear to be aware he was being recorded. The recording reveals a friendly, unguarded conversation between two separated parents, who swear throughout. It is clear that is the way they speak to each other. It is not in that conversation intended to be offensive, nor is it taken as offensive.
In the course of the conversation, the parties sort out meeting at a time and place convenient to the mother, so she can sign some documents for the bank. They move on to discuss Christmas presents for the children. They decide to discuss X’s move to high school over coffee. The father advises that he collected school material from an orientation event for her, as she was not present. The mother conceded the meeting took place as discussed. This all occurred at a time the mother says she was terrified of the father, and would not be safe living in the same state. I do not accept her evidence about her fear of the father.
Neither parent has protected the children from exposure to family violence. It is harmful and damaging for the children. The Family Consultant gave evidence about the negative long term effects of such conduct on the children. It is critical that the children are buffered from their parents’ conflict. The parents do not demonstrate an ability to protect the children, and appear unlikely to be able to exercise necessary self-restraint in the future. It is important that opportunities for argument between them are kept to a minimum. Orders for changeovers cannot occur directly between the parties. The children are entitled to speak privately with their parents by telephone without interference or swearing.
The mother suggested that X was at risk of sexual abuse from the father’s friends at the motor bike club. She did not put forward any cogent evidence in support of this contention. She took no steps during the course of the relationship or afterwards to protect X from this alleged risk. I find that the allegation was made to gain advantage in these proceedings, without being concerned about it being grounded in fact.
The findings make it clear that both parents have exposed the children to harm. I find that the mother fabricated serious allegations of potential sexual abuse, and risk from firearms, to bolster her case. This is at the same time that she has sought to minimise her own conduct, such as physical assaults on the father in the presence of the children, and her abusive behaviour towards X and Y.
Additional considerations
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views.
X firmly wants to live with her father. She has made that plain both to the Family Consultant, and through her conduct. She told the Family Consultant that she “can’t live with mum and be so far from daddy.”[12] X is 13 years old. I accept that she is at least as mature as her age suggests.
[12] Family Report dated 8 August 2019, paragraph 157.
Y is 12 years old. On the evidence available with respect to his learning and other difficulties, I accept that he is less mature than his chronological age suggests. Both parents agree that Y is closer to his mother than his father. Each expected that Y would wish to live with her, consistent with his expressed preference.
It is unclear what Y understands about the consequences of living with his mother. The evidence did not support him having the maturity to weigh, for example, how he would feel about living away from his father and sister. The time he has spent with her in City A has been holidays or weekends, where he has not had to attend school.
Although younger than Y, Z regards himself as needing to look after his brother. He told the Family Consultant he feels “a huge pressure”[13] about where he should live, explaining to the Consultant “[i]f I go to my mum’s, I’ll have to make new friends. If Y goes, I feel like I have to follow him because he’s special needs and he can’t read. I have to help him.”[14] His view is that he should live where Y lives, because Y needs him. That overrides for him other considerations, such as his own preference.
[13] Family Report dated 8 August 2019, paragraph 191.
[14] Family Report dated 8 August 2019, paragraph 192.
Neither parent appeared concerned about the emotional burden Z carries with respect to looking out for his brother. Were the two boys living separately from X, that sense of responsibility would likely increase. Z does not have the maturity to consider the consequences of possible living arrangements, such as what it would be like to live separately from his father and sister.
Considering the matters referred to, I do not place much weight on the views expressed by the boys about their living arrangements. It is clear from their evidence they share a close relationship with each other, and their sister. The tumultuous relationship between their parents has no doubt caused the three of them to rely on each other.
Section 60CC(3)(b) The nature of the relationship of the child with:
Each of the child’s parents and
other persons (including any grandparent or other relative of the child)
The children have close relationships with each other. While the boys have close relationships with each of their parents, X’s relationship with her mother has been disrupted. I find that the father has sought to assist X in maintaining her relationship with her mother, as discussed previously.
The children have good relationships with their extended maternal and paternal families. They share close relationships with Ms K and her children.
Section 60CC(3)(c) 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 long-term issues in relation to the child;
(ii) to spend time with the child; and
(iii) to communicate with the child;
The parties have generally taken opportunities available to them to participate in decision making. The difficulties with time arrangements and communication are taken up elsewhere in this decision.
Section 60CC(ca) the extent to which each of the parents has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
The father has primarily maintained the children, with little financial assistance form the mother. Neither party has significant financial resources. The costs involved in supporting time arrangements has been difficult for both parties to manage.
Section 60CC(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
Either of his or her parents; or
Any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The three siblings have always resided together. They have been residing primarily with their father since separation. The mother conceded that it was unlikely that X would agree to live with her, were she successful in obtaining orders.
The children have had the benefit of residing with Ms K and her children when with their father. I accept that the children have done reasonably well whilst living in that arrangement, and developed close relationships with them.
Section 60CC(3)(e) 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 has moved to City A. The father remains in Town H.
Travel has been occurring by flights to and from Sydney. This was to accommodate discounts available to the mother through her brother, who works with an airline. The father complains that travel to Sydney is more difficult than if flights were occurring to and from City B. It does not involve the same level of delays from peak hour traffic, and is within closer reach of the father’s home.
Neither party has significant income available to them. The father’s evidence is that it takes approximately three hours to drive the children from Town H to Sydney Airport on Friday afternoons.[15] The costs incurred include petrol, parking and 50 per cent of the mother and children’s return airfare. For the weekend of 13 September to 15 September 2019 the father’s share of the flights alone cost $248.62.[16] He also loses half a day’s work transporting the children to the airport. The father submits that he cannot continue this arrangement, as he cannot afford to do so.
[15] Affidavit of Mr Kadric affirmed 23 September 2019, paragraph 166.
[16] Affidavit of Mr Kadric affirmed 23 September 2019, paragraph 188(c).
The mother has also found it difficult to facilitate her time with the children. For the weekend of 13 September to 15 September 2019, she could not purchase tickets for the flights two weeks prior to the travel, as she could not afford to.[17]
[17] Affidavit of Ms Kadric affirmed 20 September 2019, paragraph 296.
Maintaining a relationship with the children over this distance will impose a significant burden on these children. It will also deprive them of being able to have both their parents and sister attend events at their school, and sport.
The current pandemic highlights the problems of long distance travel for children to maintain relationships. This is significantly increased when money in both households is limited. It would be preferable for the children if they had both parents reasonably close to them. I propose making orders in the alternate, to allow for increases in time if travel with the associated costs is not an issue.
Section 60CC(3)(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
Section 60CC(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
Both parties have limitations in their capacity to provide for the children’s needs. The exposure of the children to their conflict is a clear example of this.
On a practical level, the father did not take appropriate steps to secure NDIS funding for Y. He was not able to explain this failure in his oral evidence. It is critically important for Y’s future that he is able to access the support he needs.
The father is supported by his partner Ms K. It is clear on the evidence that all three children have developed a close relationship with her. The report writer regarded her as having “demonstrated a great deal of empathy and insight into the experiences and needs of each child.”[18]
[18] Family Report dated 8 August 2019, paragraph 88.
The mother’s oral evidence, together with her comments to the report writer, indicate the difficulty she experiences in understanding the children’s needs as separate to her own. For example the report writer commented that the mother “described how distressed she feels that X is not supporting her, despite seeing her upset. It appeared that the mother expected X to care for and empathise with her experiences of the family, rather than see it as her duty as a parent to prioritise X’s needs and experiences over her own.”[19] Similarly, the Family Consultant notes in the Report that when discussing the possible separation of the siblings, the mother “struggled to consider the impact on the children.”[20]
[19] Family Report dated 8 August 2019, paragraph 50.
[20] Family Report dated 8 August 2019, paragraph 65.
There is a real concern about the mother’s capacity to support the boys having a relationship with their father and sister, were they to reside with her. She removed the boys on the first day of school in 2019. It is hard to imagine a more disruptive time for the children for that to occur. She took them to Queensland without the father’s knowledge. The children were then out of school until returned to their father’s care by way of interim orders of the court. She sought to justify this conduct by referring to being deprived of time with them by the father. She had no regret or remorse about her conduct. This is significant in assessing her capacity to understand the children’s emotional and psychological needs.
The mother has been better than the father at some practical matters, such as taking steps to ensure Y receives NDIS support. Notwithstanding that, the parent’s conversation recorded by the mother on 13 December 2018 demonstrated that the father has the capacity to manage day to day matters for the children. He was the parent who attended with X for high school orientation. He took an additional information package for the mother. The tenure of the conversation suggests there was nothing unusual in his taking on of that role.
The mother complains about the father’s involvement in a motorcycle club during the relationship. When attending he drank to excess, consumed drugs, and was absent as a parent. She was required to collect him at times he was too intoxicated to drive, which interfered with her ability to care for the children. I accept her evidence about that. There is no evidence that he has continued his problematic engagement with the club since separation.
When the mother took the boys, by agreement, for a holiday to Queensland at the end of 2018, the father advised her that he did not agree with the children being left alone with Mr G. The father’s evidence is that he and Mr G were friends in the past. He is aware that Mr G has a history of drug use, and mental health issues. The mother denies that he is an inappropriate person to care for the boys.
On the boys’ return, they told the father they were left in Mr G’s care for periods of time, including sleeping in the same room. When speaking with the Family Consultant, the mother said he cared for them while she worked, for three hours on four days. In her oral evidence the mother denies it was to that extent.
The mother’s reliance on Mr G caused a significant dispute between the parties. Despite knowing the father’s opposition she did not tell him, leaving it to spill out from the boys. There could be no doubt that she knew the father would be upset about this. She does not explain why she did not make alternate arrangements. I accept her brother Mr O was away and could not assist, however she asserts she has other support nearby. Her evidence is that Mr G lives several hours’ drive from where she was staying. The mother’s conduct was not child focused, and added fuel to the parental dispute.
I accept that both parents have limits in their capacity to provide for the children’s needs, particularly their emotional and psychological needs. Both have real deficits in understanding the children’s need to be buffered from parental conflict.
The father has used marijuana during the course of the relationship, and following separation. It appears from the testing that his use has declined. He has used cocaine following separation. This use emerged from a urinalysis screen result rather than voluntarily from the father.[21] It does not appear that it occurred in the presence of the children, nor that it has been used on an ongoing basis.
[21] Exhibit M16
I accept that the mother’s brother has mutually close and loving relationships with all three children. He has done his best to assist his sister, and provide support to her and his nephews and nieces. There is no issue that the children will continue their relationships with him through their mother.
Section 60CC(g) 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 children have an Anglo-Celtic heritage through both their parents, which both are able to support. Their respective levels of maturity, and characteristics has been discussed elsewhere in these reasons.
Section 60CC(j) any family violence involving the child or a member of the child’s family;
Section 60CC(k) if a family violence order applies, or has applied, to the child or a member of the child’s family - any relevant inferences that can be drawn from the order, taking into account the following:
the nature of the order;
the circumstances in which the order was made;
any evidence admitted in proceedings for the order;
any findings made by the court in, or in the proceedings for, the order;
any other relevant matter
A Final Protection Order was made on 27 March 2019 by City T Magistrates Court, Queensland, for the protection for the mother. The context of the complaint is significant. The mother had removed the children from the first day of school 2019 without the father’s consent. The police in New South Wales, declined to take out an Apprehended Violence Order on the basis of the same complaint subsequently made to Queensland Police. I note that the issues of family violence are discussed earlier in this decision.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
It would be preferable if orders are made that finalise all aspects of the matter. The mother seeks orders based on her remaining in Queensland. I propose making orders that contemplate the options of the mother residing in Queensland, or on the Region P of New South Wales, to allow for either possibility. If the mother returns to the Region P, the matter would not require further litigation.
Parental Responsibility
The findings with respect to family violence mean that the presumptions with respect to equal shared parental responsibility in section 61DA of the Act do not apply. Even if that were not the case, the parents’ communication is now so poor as to make shared decision making impossible. The parents do not communicate effectively. Whilst a cessation of litigation may cause some improvement as it does for many parents, there is no evidence which suggests a positive change is likely.
They each seek orders for sole parental responsibility. For effective decision making, parental responsibility should be held by the parent with whom the children live. This is more so in circumstances where their parents live in different states.
There is no issue that the father did not maintain Y’s NDIS funding. It is important that he attend to such matters in the future. He has been able to manage matters for the children at other times, and I expect he will be able to do so once the litigation is concluded.
Conclusion
Since the hearing, a pandemic has been declared due to COVID-19. This has undoubtedly inhibited the time the children have spent with their mother in Queensland. It is a matter of public record that Queensland has closed its borders, making travel there difficult.
The parents’ behaviour has caused their children stress and distress. Although orders will be made restraining the parties with respect to denigration of the other parent, I do not expect an order will change the conduct of either of them. I hope that such an order will serve as a reminder to the parties that ordinary civil conduct is expected of them.
The children need to be buffered from their parents coming together at changeovers so far as possible. If the mother is living within range of the father, changeovers will be to and from school. Otherwise the flight will separate them.
The children have the advantage with their father of remaining in familiar school environments, and most importantly, remaining together as a sibling group. For Y, he is able to maintain connections to assistance for his special needs, with which he is familiar.
The father has made reasonable attempts to support the children’s relationships with their mother. I am not satisfied that the mother will do so. This is particularly significant for the boys in maintaining their close connection with their sister, as well as their father.
Although the mother is adamant that she will not return to live near the Region P, her position may change after the conclusion of the hearing. Her brother, who is her main support in City A, is away for extended periods when working for his employer. I do not know what his position will be following the widely publicised financial collapse of his employer as a consequence of the pandemic.
The parties’ financial situation has no doubt not been improved by the pandemic restrictions. They cannot afford for the children to travel between the Region P of New South Wales and Queensland more than two to three times each school term, and during school holidays. To put in place orders requiring a greater frequency will be to doom time arrangements to failure. This would likely cause further dispute between the parents.
I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of Judge Boyle
Associate:
Date: 9 June 2020
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Family Law
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