Kasun & Rask
[2023] FedCFamC2F 1012
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kasun & Rask [2023] FedCFamC2F 1012
File number(s): PAC 4128 of 2021 Judgment of: JUDGE NEWBRUN Date of judgment: 11 August 2023 Catchwords: FAMILY LAW – Parenting – Best interests of child – Orders made Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 65D Cases cited: AMS and AIF (1999) 24 Fam LR 756
KB & TC (2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458
Goode v Goode [2006] FamCAFC 1346; (2007) 36 FamLR 422, (2006) FLC 93-286
Knight & Knight [2016] FamCA 1085
Malcolm & Monroe [2011] FamCAFC 16
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
Morgan v Miles [2007] FamCA 1230
MRR v GRR [2010] HCA 4
Sayer & Radcliffe and Anor [2012] FamCAFC 209
Taylor v Barker [2007] Fam CA 1236
U & U (2002) 211 CLR 238
Division: Division 2 Family Law Number of paragraphs: 97 Date of hearing: 31 July 2023–2 August 2023 Place: Parramatta Counsel for the Applicant: Mr Juhasz Solicitor for the Applicant: A J & Associates Lawyers Counsel for the Respondent: Mr Schonell Solicitor for the Respondent: Marsdens Law Group Counsel for the Independent Children's Lawyer: Mr Sperling Solicitor for the Independent Children's Lawyer: Christina Lam & Associates ORDERS
PAC 4128 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS KASUN
Applicant
AND: MR RASK
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
11 AUGUST 2023
ON A FINAL BASIS THE COURT ORDERS THAT:
1.All previous parenting Orders and any pending parenting applications are dismissed.
2.The mother’s proposed Order that she be permitted to relocate to Brisbane with the child is dismissed.
3.The mother and father have equal shared parental responsibility for X, born in 2014 (“the child”).
Live-with arrangements
4.The child live with the mother.
5.The child spend time with the father and failing agreement as follows:
(a)During the school term, from Friday after school at 3.00 pm until Wednesday morning before school at 9.00 am.
(b)Such other times as agreed between the parties provided that such agreement is confirmed in writing by both parties.
6.During the NSW school holiday period for terms 1, 2, 3 and 4, Order 5 herein shall be suspended, and the child shall spend that holiday time with each parent for one half of all school holiday periods as agreed between the parties in writing, and failing agreement as follows:
(a)In even numbered years, with the mother for the first half and the father for the second half; and
(b)In odd numbered years, with the father for the first half and the mother for the second half.
AND for the purpose of the implementation of these Orders:
(i)the NSW school holiday period shall commence at the conclusion of school on the last day that X attends at school for the term and the NSW school holiday period shall conclude at the commencement of school on the first day of term that X attends school and any pupil free days shall be included in the holiday time. In the event that there are an odd number of days the parent who has X for the first half of the holidays shall have the benefit of the extra day with changeover taking place at 5.00 pm on that day.
(ii)the term ‘even number years’ for the school holidays during December/January each year refers to those commencing from and end of Term 4 in even numbered years and the term ‘odd number years’ for the school holidays during December/January each year refers to those commencing from the end of Term 4 in odd numbered years.
Special occasions
7.Notwithstanding any other order herein, X will spend time with each of the parties as follows, unless otherwise agreed in writing:
(a)At Christmas:
(i)with the mother from 2.00 pm on Christmas Day until 10.00 am on 27 December in each even numbered year, and from 9 am on 24 December until 2.00 pm on Christmas Day in each odd numbered year; and
(ii)with the father from 2.00 pm on Christmas Day until 10.00 am on 27 December in each odd numbered year, and from 9.00 am on 24 December until 2.00 pm on Christmas Day in each even numbered year; and;
(b)On Mother’s Day, with the mother on the Mother’s Day weekend in each year from 3.00 pm Friday preceding Mother’s Day until before school Monday and provided that if Mother’s Day falls on a weekend that X is scheduled to be in his father’s care pursuant to this Order, that time shall be suspended for that weekend and shall instead occur on the following weekend;
(c)On Father’s Day, with the father on the Father’s Day weekend in each year from 3.00 pm Friday preceding Father’s Day until before school Monday and provided that if Father’s Day falls on a weekend that X is scheduled to be in his mother’s care pursuant to this Order, that time shall be suspended for that weekend and shall instead occur on the following weekend;
(d)On X’s birthdays, with the parent with whom X is not otherwise living on his birthday, as agreed between the parties and failing agreement, as follows:
(i)if a school day, for a period of not less than three (3) hours as agreed or failing agreement from 3.00 pm until 6.00 pm; and
(ii)if a non-school day (weekend, public holiday, pupil free day or school holiday), for a period of no less than five (5) hours as agreed or failing agreement, from 10.00 pm until 3.00 pm.
(e)On the parents’ birthdays, if X is not already in their care as agreed between the parties and failing agreement from 6.00 pm the night before their birthday until 9.00 am the day following their birthday.
Changeovers
8.For purposes of changeover, where it does not occur at school, the Father or his agent shall collect the child at the commencement of his time from Suburb B McDonalds and return the child to Suburb B McDonalds at the conclusion of his time.
Restraints
9.Unless the mother and father consents in writing or unless otherwise ordered by the Court:
(a)X continues to attend C School until the conclusion of Year 6; and
(i)the mother and father shall when X is in Year 5 consult with each other in writing as to their proposals for high school for X.
(ii)in the event that there is no agreement by the end of Term 3, Year 5 about which high school X is to attend, the mother and father shall then do all things necessary and arrange to attend upon mediation with an organisation recognised under the Family Law Act or by the Commonwealth Attorney General and shall participate in family dispute resolution with a person authorised under section 10G of the Family Law Act prior to commencing any family law proceedings.
(b)Both parties are restrained from relocating the child more than 30 kilometres from the location of the child’s current school or the location of the child’s high school as selected in accordance with these Orders.
10.That without admissions, the mother and father be restrained from the following:
(a)Physically disciplining the child;
(b)Denigrating the other or members of the other party’s family in the presence or hearing the child and each party shall do all acts and things reasonably necessary to prevent any other person doing so; and
(c)Conveying messages through the child and or using the child as a go-between to convey messages to each other;
(d)Discussing these proceedings or any issues arising out of these proceedings with the child or permitting any third party to do so; and
(e)Physically chastising and/or permitting any third person to physically chastise the child.
Communication
11.X shall have telephone communication:
(a)With the father, once a week, and failing agreement on Thursday between 7.00 pm and 7.30 pm; and
(b)With the mother, when X is spending periods of time with his father during the school holidays, once a week, and failing agreement on Thursday between 7.00 pm and 7.30 pm.
Exchange of Information
12.The mother and father shall:
(a)Keep the other parent informed at all times of their residential address and contact telephone number;
(b)Keep the other parent informed of the names and addresses of any treating medical or other health practitioner who treat the child and authorise that practitioner to provide the other parent with information that they are lawfully able to provide about the child;
(c)Keep the other parent informed of any medication that has been prescribed for the child and of any treatment plans or guidelines recommended by the child’s medical practitioners;
(d)Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the child, including any instance where the child is admitted to hospital.
13.Each parent is hereby authorised to obtain from any school the child attends copies of all notices, letters, school reports, school photographs, newsletters and announcements of school activities or otherwise pertaining to the education of the child.
14.The mother and father be permitted to access any school counselling records provided to parents with respect to the child and leave be granted to the mother and father to provide the school with a copy of these Orders for that purpose.
15.The mother and father shall be at liberty to receive from any health professional, who at any time treats the child, all documents, reports, correspondence and information ordinarily provided to parents, and attend any medical appointment ordinarily attended by parents, and this Order is sufficient authority for any health professional to do so.
16.Within seven days of the date of these Orders, each parent shall do all such acts and things to enrol in and subsequently complete a post-separation parenting program, such as Parents Not Partners facilitated by T Families or Parenting After Separation facilitated by D Counsellors and upon completion shall provide a copy of the certificate of completion to the other parent’s legal representative.
Communication
17.Except in an emergency, the mother and father shall only communicate by email or SMS concerning the child and all communications between the parties shall be child focussed.
18.In an emergency (including where communication is required within 24 hours), the parties may communicate with each other via text message and telephone call and all communications between the parties shall be child-focussed.
Overseas Travel
19.The mother and father shall be at liberty to travel overseas with the child outside the Commonwealth of Australia and for the purposes of overseas travel conditional to the following:
(a)the parent who is proposing overseas travel with the child (“the travelling parent”) shall provide the other parent with a copy of the itinerary for the trip including but not limited to departure and return times and dates;
(b)a contact telephone number for the travelling parent and the child and the address at which they will predominantly be based at least 28 days prior to scheduled departure;
(c)the travelling parent shall then provide to the other parent a copy of the return air tickets for the child at least 28 days prior to scheduled departure;
(d)the parties agree that in circumstances where the child’s passport requires renewal or application, they will sign all documents and do all things to facilitate the renewal and/or issue of such passports within 14 days of the date of these orders;
(e)all travel time is to occur only in the school holiday periods when the child is in the care of the travelling parent.
20.Pursuant to section 11F of the Australian Passports Act 2005 (Cth), the child X, born in 2014 is entitled to have an Australian Travel document including but not limited to an Australian passport, and to give effect to this order, the father is permitted to complete, sign and lodge any application for issue and/or renewal of X’s Australian Passport, or any other document required to allow X to travel outside the Commonwealth without the need to obtain the mother’s consent.
21.It is requested that the Department of Foreign Affairs and Trade (Australian Passports Office) issue and renew an Australian passport for the child X upon application of the father alone in accordance with Order 20 hereof.
22.In the event that either parent requires the other parent to sign any document, deed, affidavit or instrument to record their consent to the child entering and travelling with any overseas country (including Country E) to which the father and mother are permitted to travel with the child by virtue of these orders, then within 14 days (14) of service upon that parent of all such documents which require their signature to record consent for travel, the parent who is not the travelling must:
(a)Duly sign and execute each document as requested by the travelling parent or their representative, including having all such documents witnessed by a qualified witness where required;
(b)Return all such documents in original form, duly signed, executed and witnessed to the travelling parent or their representative.
23.In the event that the mother refuses or neglects to execute any document, deed or instrument requested of her or by her representative pursuant to Order 20, a Registrar of the Federal Circuit Court of Australia, Sydney Registry, is appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to sign and execute all such documents, deed and instruments in the name of the mother and to do all acts and things necessary to give validity and operation to such documents, deeds and instruments upon the Registrar first being provided with verification of such refusal or failure of the mother by way of affidavit.
Independent Children's Lawyer
24.The ICL be discharged.
AND THE COURT NOTES THAT:
A.Pursuant to s 62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
B.Pursuant to s 65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION
This final parenting hearing relates to the child X born in 2014 (“the child”).
The father is aged 38 years. He migrated to Australia from Country E in 2013. The mother is aged 36 years. She has Aboriginal and Country F heritage. Presently they both reside in Sydney, living separately. The mother seeks an Order to relocate the child’s residence to Brisbane. The mother has formed a relationship with Mr G, aged almost 33 years, who resides in Brisbane, and the mother is due to give birth to a child in 2023 and which child to be arises out of that relationship. The father has been spending time with the child for some time now being five nights each fortnight during school terms.
PROPOSALS
The mother’s Initiating Application filed 5 August 2021 proposed final parenting orders, inter alia, that she be permitted to relocate the child’s residence to Brisbane, that the child live with the mother, and that the child spend time with the father during school holidays. At the final hearing she sought sole parental responsibility in the event that relocation was permitted.
In the alternative, at the final hearing, the mother proposed certain final parenting orders should the Court not permit the child’s residence to be relocated to Brisbane: that the parties have equal shared parental responsibility for the child, that the child live with the mother, and that the child spend time with the father five nights each fortnight during school terms, and half holidays. In this context, the mother had stated that she would remain in Sydney with the child should relocation not be permitted.
The ICL’s proposed final parenting orders are set out in her proposed Minute of Order (Exhibit C). Such proposed final parenting orders, inter alia, provide for the parties to have equal shared parental responsibility for the child; the child live with the mother; the child spend time with the father five nights each fortnight during school terms and during school holidays and special occasions. The father supported the ICL’s proposed Minute of Order.
MATERIAL RELIED UPON
The mother relied upon:
(a)Her Initiating Application filed 5 August 2021;
(b)Her affidavit filed 17 July 2023;
(c)Affidavit of Mr G filed 12 March 2023;
(d)Family Report of Court Child Expert – Ms H dated 12 July 2023.
The father relied upon:
(a)His Amended Response filed 17 July 2023;
(b)His affidavit filed 17 July 2023;
(c)Affidavit of Ms J filed 21 July 2023;
(d)Family Report of Court Child Expert – Ms H dated 12 July 2023.
The ICL relied upon:
(a)Family Report of Court Child Expert – Ms H dated 12 July 2023;
(b)Child Impact Report of Court Child Expert/Family Consultant – Ms K dated 25 January 2022.
The following documents became exhibits:
(a)Exhibit A: Pages 13–16, 21–125 of the ICL’s Tender Bundle;
(b)Exhibit B: Family Report of Court Child Expert – Ms H dated 12 July 2023;
(c)Exhibit C: ICL Minute of Order (amended 3 August 2023);
(d)Exhibit D: Child Impact Report of Court Child Expert/Family Consultant – Ms K dated 25 January 2022;
(e)Exhibit E: FACS Record of May 2019;
(f)Exhibit F: Financial documents of the father.
EVIDENCE
Throughout these reasons the Court will refer to a number of facts. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context.
The Court has considered all the parties’ above material, the oral evidence of the parties, the oral evidence of Ms J and Mr G, and the oral evidence of the Family Report writer.
The parties had a brief intimate relationship in about 2014. They did not live together. In 2014 the mother informed the father that she was pregnant but that the child was not his child. The parties then stopped communicating. In about early 2017, the father received information that the child was in fact his son. He arranged a DNA test. In about late 2017 the DNA test established the father’s paternity. After mediation the father began spending time with the child gradually and such time gradually increased.
In 2019 the father commenced proceedings because the mother ceased facilitating his time with the child. Final parenting orders were made by consent on 20 December 2019 providing for the parties to have equal shared parental responsibility for the child, the child to live with the mother, the child to spend time with the father each alternate week, Friday afternoon until Wednesday morning before school, half the school holidays, special occasions and other agreed times.[1]
[1] PAC 2066 of 2019.
The father has had a previous relationship with Ms L and a child M was born in 2019 arising out of that relationship. The father proposes to commence legal proceedings to renew spending time with this child. He is now in a relationship with Ms J and they are the parents of a child N born in 2023.
The mother has a child from a prior relationship, O, born in 2006. That child has lived with her father since May 2023.
The father has consistently opposed relocation. In this context the Court refers to, inter alia, his Response filed 29 October 2021 opposing, inter alia, relocation, and he told the author of the Child Impact Report on 25 November 2021 that if the mother wished to move to Brisbane that the child should live with him. The Court does not accept that the father told the child or the mother that he agreed to relocation in 2022. The Court does not accept that the father told the mother that if she consented to him getting a passport for the child so that he could take the child to Country E he would let the mother move to Brisbane.
The Court accepts the father’s evidence relating to his nightshift work.
The Court accepts the evidence of the father’s new partner Ms J, including her evidence that she proposes to take up residence with the father shortly, and that the father has ceased his night shift work since the birth of N.
The Child Impact Report
This report was prepared by Family Consultant Ms K on 25 January 2022.
Aspects of this report are referred to below.
The Court accepts the evidence of the author of the Child Impact Report subject to any contrary view of the Court, whether express or implied, as indicated below under section 60CC of the Act.
The Family Report
The Family Report writer was Ms H. She interviewed the parties in May 2023.
Under the heading “Evaluation”, the Family Report writer stated that:
68.[X] impressed as a cheerful, confident and energetic child who enjoys spending time with both of his parents and the relationships he has with them both. This was demonstrated through the content of the individual interviews and the interactions of [X] with each parent and each parent’s interactions with [X] during the observations. The main issues going forward is the poor co-parenting relationship, family violence allegations, parental conflict, allegations of child abuse, and the impact on [X]’s relationship with [Mr Rask], if [X] moves to Queensland.
[X]’s stage of development
69.[X]’s age and stage of development means that he is beginning to develop more independence but still heavily relies on his parents to meet his developmental needs, including his feelings of safety and comfort. It is common for children in [X]’s age group to want to please their parents but also to challenge them if they thinks they have been wronged or something is unfair. However, [X] is at a stage of development where he is, understandably, still trusting of his parents and believes that both parents want the best for him, but he can still be influenced by his family relationships and also might not be able to detect if either parent is manipulating him. Furthermore, [X] is in the process of developing his sense of self and might be overconfident at times, he is learning what is right and wrong, is likely to have very concrete thinking and be adamant in expressing his thoughts and opinions but has not developed the cognitive skills it requires to see things from others’ perspectives or to have an awareness of possible consequences of actions. In regard to [X]’s behaviour at school, [X]’s stage of brain development means that it is possible for children to struggle with being easily distracted and forgetful or find it hard to follow more complex instructions.
[X]’s identity and relationships
70.A significant aspect in this matter is [X]’s identity, in terms of his family relationships and cultural heritage. Establishing ones identity is a complex venture, which is a continuing process over a person’s lifespan. In terms of his Aboriginal, [Country F] and [Country E] cultural heritage, this might be difficult task for each parent to support [X] with. For example, as [Ms Kasun] is not from [Country E] and does not have a lived experience of the culture, traditions, and language of [Country E], she might not be able to adequately meet this need for [X], and likewise, with [Mr Rask] in supporting [X] with his Aboriginality and connection to country and culture. The Court Child Expert considers that, irrespective of whether or not [X] moves interstate from one of his parents, it would be beneficial for [X] to learn about his cultural heritage and to have firsthand experiences of his cultural customs and traditions, which could support [X] to further define his identity and sense of belonging. Many aspects of this is already occurring, for example, [X] is learning the language, learning about both of his cultures and historical events. It seems that [X]’s knowledge of his Aboriginal ancestry and culture is limited and this unfortunately will take time and effort of both [Ms Kasun] and [Mr Rask] to actively support [X] with learning given the trauma that First Nations people experienced and the loss of their culture, language and family connections through the process of colonisation. Therefore, both parents would need to be proactive with accessing relevant services to trace [X]’s lineage to find out specific information about his mob, his connection to country and other things important to learning about his Aboriginal identity.
71.In regard to overseas travel, if [X] is to travel overseas with either parent, the Court Child Expert is not able to assess the risk of [X] potentially being retained in a different country. It is noted that [Country E] is not a signatory to Hague Convention. [Mr Rask] indicated that he would be willing to have a monetary condition attached to any overseas travel with [X], the Court might need to determine if the monetary condition adequately ameliorates the possible risk of overseas abduction, noting that [Mr Rask] stated that he plans to remain in Australia and play an active role in his children’s lives. By [X] having the opportunity to travel overseas, not only to [Country E], but to other countries, it provides for [X] to have positive experiences with his parents and thus developing shared memories with the travelling parent, and subsequently, the possibility for the child-parent relationship to strengthen whilst also having the opportunity to learn about his culture heritage and other cultures and ways of life.
[X]’s expressed view
72.It is [X]’s expressed view that he live in an equal time parenting arrangement regardless of whether or not he lives in the same state as both of his parents. As previously mentioned, [X] did not comprehend the logistics involved when a parent wants to relocate, such as schooling and travel time. [X] reiterated several times that he wants to live with both his mother and his father and that he would miss the other parent he was not in the same state. It is possible that [X]’s expressed preference for equal time may also reflect his strength of feeling about his relationships with each parent. Furthermore, it is common for children’s of [X] stage of development to want to live in an equal time parenting arrangement and also not want to have to decide between living with one parent over the other, which is demonstrated by [X]’s comment that he would like his parents and the Judge to make this decision about who he would primarily live with, if this is necessary.
Family violence, high parental conflict and co-parenting relationship
73.From both parent’s narratives of the alleged family violence, it seems that, if either of their accounts have veracity, the dynamics of family violence have been primarily conflict instigated. Family violence that arises from poorly manage conflict includes hostile verbal exchanges during disagreements. Dynamics of this type of family violence typically occurs due to a lack of problem solving skills and ineffective communication between the parents, which is dealt with through arguing, criticism, belittling, and, at times, can include property damage and sometimes using physical violence. This may include each parent perpetrating family violence against the other at the same, or at different times.
74.Perpetration of family violence can be associated with many parenting deficits including inappropriate use of authority, excessive or abusive disciplinary methods, limited capacity to identify and respond to the child’s needs and cues, limited capacity to separate a child’s needs from the perpetrator’s own needs, and limited capacity to tolerate age appropriate behaviour. If [X] has been or is exposed to family violence in the future, it is likely to be very detrimental for him as it could impact several facets of his life, such as his physical and emotional safety. It can contribute to poor interpersonal skills and impair his ability to form, and maintain, healthy and safe relationships, including a relationship with one or both parents. Aside from relationship impacts, it can also contribute to poor educational outcomes, and also cause or exacerbate mental health issues such as anxiety, and or depression, which may lead to self-harming or risk taking behaviours, disrupted sleep, appetite changes and difficulty with regulating their emotions, which may result in behavioural problems, such as not following instructions, being disruptive and disrespectful in class.
75.If the Court determines that [Mr Rask] and/or [Ms Kasun] perpetrated family violence, then it is suggested that he/she engage in psychoeducation in therapy or by completing a course, such as ‘Taking Responsibility’ for [Mr Rask] and therapy for [Ms Kasun] which focuses on taking responsibility for perpetrating abusive behaviour (currently there are no specific behaviour change programs for women who have perpetrated family violence). In addition, if the Court determined that either [Mr Rask]’s or [Ms Kasun]’s account of the alleged family violence does not have veracity, then this might indicate that he/she lacks insight or reflective capacity, which could be indicative of ongoing issues of [Mr Rask] and/or [Ms Kasun] not promoting and facilitating [X]’s relationship with the other parent. If the Court determines that either [Mr Rask] or [Ms Kasun]’s narratives are inaccurate, it is possible that, at times, their behaviour could have been consistent with high parental conflict as opposed to dynamics of conflict instigated family violence.
76.The poor co-parenting relationship seemingly makes it difficult for the parents to communicate about when [X] and his needs. The Court Child Expert considers it possible that [Ms Kasun] has intentionally or unintentionally involved [X] in the parental conflict, which may have caused [X] some confusion and possibly that [X] has felt the need to placate [Ms Kasun] or appear that he agrees with her. It is also possible that [X] might have aligned with [Mr Rask]’s propose for an equal time parenting arrangement as [X] was not able to consider anything other than an equal time parenting arrangement even when asked about his current arrangement he stated it was seven days with each parent. Although, [X] did not impress that he would typically agree with his parents if he did not want to. However, it is important to consider that, if tactics of power, control or fear were used over [X], he might agree with his parent to placate them or keep himself physically and emotionally safe. It would be important that both [Ms Kasun] and [Mr Rask] are mindful of their facial expressions, attitudes, tone of voice and body language leading up to and during changeover or when the other parent is mentioned during conversation as to not to indirectly or directly negatively [X]’s perception of the other parent.
Child abuse and neglect
77.Both parents alleged that the other has physically and emotionally abused and neglected [X] and that they have made poor parenting choices, which have caused [X] physical pain and emotional distress. Parenting is a complex task, which requires parents to mindful, proactive and purposeful in their interactions with their child and in regard to their parenting choices. A parent needs to be attuned to their child’s cues and needs and respond as opposed to react when addressing the child’s need or behaviour of concern. If a parent is not attuned to a child’s needs and able to prioritise their child’s needs above their own or exposes their child to potentially traumatic situations because of their own behaviour, the long term impacts can be very detrimental. These detrimental impacts are not dissimilar to the negative impacts of family violence on a child’s development, safety and wellbeing, such as physical pain, poor educational outcomes, social isolation, poor self-esteem and mental health issues.
78.It is possible that, if [Ms Kasun]’s narrative is accurate, then [X] might be at risk of harm if he did not follow [Mr Rask]’s instructions or struggled to manage his emotions, because [Mr Rask] might react in an abusive or neglectful manner. [Mr Rask] might need to improve his ability to manage his emotions, especially when in the presence of [X] and could do so by seeking therapeutic support and engaging in a family support service. The Court Child Expert considers that, if [Ms Kasun]’s allegation is accurate about lack of supervision, it is potentially unsafe that [X] has been left at home whilst [Mr Rask] attends work, given [X]’s stage of cognitive development, for example, his action of putting [liquids] into the toaster demonstrates that he is not capable of keeping himself safe whilst at home alone. Given that [Mr Rask] is not currently living with any other adult, it is imperative that proper precautions are made for [X]’s care whilst [Mr Rask] is at work. These precautions, might include staying at [Ms J]’s home or as [Mr Rask] mentioned, his business partner caring for [X].
79.It is possible that, if [Mr Rask]’s narrative is accurate, then [X] has been emotionally harmed by [Ms Kasun]’s attempt to negatively impact [X]’s relationship with [Mr Rask] and coach him to make false allegations about [Mr Rask]. [Ms Kasun] might benefit from engaging with a counsellor to learn how feel confident in the quality of [X]’s relationship with her and not feel potentially threatened of [X]’s relationship with his father, and furthermore, psychoeducation might help her to prioritise [X]’s needs above that of her own or her partner’s.
80.There was nothing identified in this assessment to raise concern that [X] had been sexually abused by a child known to him. It appears that these concerns have been considered by the Department of Communities and Justice but not substantiated.
Mental health
81.From the information provided by each parent, it does not seem that either parent has serious mental health issues, which negatively impacts their ability to parent [X] or meet his basic needs. Both parents indicated that they have accessed services or supports when they have felt a decline in their emotional and mental wellbeing. However, the parents may find it beneficial to engage in therapeutic support for the stress of the parenting proceedings and once Final Orders are made, especially, if it is not in their favour. If [Ms Kasun] and [Mr Rask] each engage with therapeutic support they could learn strategies to manage their emotional wellbeing, which should help them to improve their ability to be emotionally and physically consistently responsive to [X]’s needs and cues and possibly help to improve their co-parenting relationship. In addition, it might be of benefit for the parents to engage in parenting courses, such as ‘Bringing Up Great Kids’ or ‘Tuning Into Kids’ to help him/her improve their parenting capacity and learn about brain development.
Proposals
82.Concerning the possible relocation, as [X] becomes older, interstate travel could initially be an exciting adventure for [X], however, as time progresses it could become burdensome, due to interfering with his social life and extracurricular activities. Starting a new school might be daunting for [X], however, there are many strategies that could help [X] manage this transition. For example, [X] could look at the websites of the schools which are potential options for him to attend; he could visit the new school prior to his first day; ensure that [X] has all his required equipment and uniform prior to his first day; and participation in extracurricular activities might help with forming new friendships outside of the school setting. It would seem important for [X] to have the opportunity and option to maintain his Sydney based friends, if he moved to Queensland, which could be done through having a photo album of his close friends and the fun times they shared together and the ability to engage in regularly video group chats.
83.The Court Child Expert does not consider that it would be in [X]’s best interests to destabilise [X]’s relationships with either [Ms Kasun] or [Mr Rask] because it could possibly lead to issues of grief and loss for [X]. It would seem that, if the relocation occurred and [X] lived away from either of his parent’s, it would be detrimental to his relationship with at least one of his parents and some emotional distress from leaving his non-resident parent, his extended family and his friends. If [X] did not live in the same state as his father, it is likely that [X]’s ability to have a truly meaningful relationship with [Mr Rask] would be hampered due to [Ms Kasun] being fearful of [Mr Rask] and the limited opportunities [X] and [Mr Rask] would have to make new memories with him. Furthermore, [X] would not have the benefit of his father’s involvement in day-to-day aspects of his life, for example, education, health and socialisation. It is possible that, once in Queensland, [Ms Kasun] might find it difficult to sustain a strict schedule when it comes to promoting [X]’s relationship with [Mr Rask] or she might not facilitate [X]’s travel to Sydney to visit with his father. It may be necessary to have strict Orders in place to ensure that [X] has the opportunity to continue to have a strong and meaningful relationship with his father, his siblings and extended paternal family. Such Orders could include regular video calls between [X] and his father; giving [X] an ability to receive letters and presents in the mail from [Mr Rask]; [Ms Kasun] informing [Mr Rask] of [X]’s achievements or medical treatment; and [Mr Rask] and [X] spending consistent holiday time together in both Queensland and Sydney. It is also possible that, if [X] remained in Sydney and [Ms Kasun] relocated to Queensland, the aforementioned concerns would apply to this situation and [X]’s relationship with his mother would possibly be compromised.
84.In the event that the Court determines it is in [X]’s best interests to remain in Sydney, [Ms Kasun]’s proposal that [X] live with her and spend from after school Friday to before school Monday on alternate weekends with [Mr Rask] seems unnecessarily restrictive and does not provide [X] with the opportunity to have a meaningful relationship with his father, especially if the allegations [Ms Kasun] has made about [Mr Rask] are not accurate. However, if [Ms Kasun]’s allegations are accurate, then it is understandable that she would want to restrict [X]’s time with [Mr Rask] because of the alleged safety issues and the inconsistency in maintain the current Court Orders. It seems that [Ms Kasun]’s concern could be managed by strict Orders prohibiting [Mr Rask] from coming into contact or communicating with [Ms Kasun] unless it is in relation to [X]’s health or changeover problems and that there is an Order for no physical discipline to be used on [X] and the parents engage in psychoeducation on positive parenting strategies.
85.In regard to [Mr Rask]’s proposal for an equal time parenting arrangement, the Court Child Expert considers that an equal time parenting arrangement would afford [X] the opportunity for both of his parents to be involved in aspects of his education, extracurricular and socialisation activities. This parental involvement, and opportunities for quality time, can contribute to a child being able to develop strong relationships with both of their parents. However, the Court Child Expert considers that due to the allegations of child abuse and neglect, family violence, poor parental mental health and the strained co-parenting relationship, it is likely [X] would not have a positive experience living in an equal time parenting arrangement. For an equal time parenting arrangement to be a positive experience for [X] and to effectively maintain and promote his relationships with each parent, it would be important that the parents’ co-parenting relationship involve high levels of communication, trust and flexibility and that the parents do not directly or indirectly expose [X]. However, the Court Child Expert does not consider that the quality of the co-parenting relationship would become worse if [X] did live in an equal time parenting arrangement, as it is clear that both parents love [X] and want the best for him but that each parent struggles to communicate with the other parent in an effective manner.
86.Overall, the Court Child Experts considers that it would be detrimental to [X]’s relationship with either of his parents if he did not live in close proximity to either one of them. It is unclear what proposal for [X] is in his best interests given the allegations in the matter and the veracity of the allegations. If the Court determined that it would be in [X]’s best interest to live in separate states from one of his parents, it is recommend that [X] spend half of the school holidays with the non-resident parent, and one weekend from Friday to Sunday afternoon during each school term in the state of the non-resident parent and the non-resident parent be permitted to spend time in [X]’s state from after school Friday to before school on Monday once during each school term. It is recommended that [X] have telephone or video contact with his parents in accordance with his wishes but at a minimum of once each week and that [X] spend spends time on alternate years for Christmas and Easter in each parent’s care. If the Court decides that [X] should remain in Sydney and [Ms Kasun] decides to remain in Sydney, it is recommended that [X]’s parenting arrangement remain in a significant and substantial time parenting arrangement from after school Friday to before school on Wednesday and that changeover occurs from [X]’s school. It is recommended that [X] have telephone or video call contact with his parents in accordance with his wishes but at a minimum of once each week and that he spend half of the school holidays in each parent’s care and spends time on alternate years for Christmas and Easter in each parent’s care. If [X] is to continue to live in a significant and substantial time parenting arrangement he would have the benefit of having [Mr Rask] more involved in the different aspects of [X]’s life, such as schooling, health and aspects of his social life whilst helping to minimise [X] being exposed to further parental conflict. Due to the family violence allegations and high parental conflict, in combination with the apparent lack of communication between the parents, the Court Child Expert’s assessment of the parents’ capacity to exercise equal shared parental responsibility is that, at times, this could be problematic for them. However, both parents love [X] dearly and he seems to love them, and it would be a shame for [X] to lose either parent’s perspective when it comes to future decisions being made for [X].
The Family Report writer gave oral evidence. The Court does not propose to set out the entirety of her oral evidence.
The Family Report writer’s attention was drawn to various incidents at school involving the child and set out in Exhibit A, and she gave this evidence:
[Counsel]Now, ma’am, in relation to those incidents at school, do I take it that that’s somewhat concerning regarding [X]’s behaviour?
[Witness]Yes, very concerning.
[Counsel]Does it give an indication on what you’ve read as to any reasons behind why you say [X] is behaving in that way?
[Witness]---There could be several reasons for it. And I would just like to add, in my interviews, I was not made aware that it was to this extent, that [X]’s behaviour was to this extent and this constant. So several reasons, it could be due to feeling worried about moving or staying, not knowing his future living arrangements. He might have experienced some trauma. He might be worried about upsetting either of his parents or missing either of his parents if he were to move. He could have – I know there’s concerns about ADHD, so that could be a possibility. Or learning, he might not have the skills or might not have been taught how to manage his emotions in a safe and healthier manner.
The Family Report writer gave this evidence in relation to the mother minimising the potential impact on relocation on the child:
[Counsel]You’ve made an assessment that the mother has minimised the potential impact of the move on [X]. Does anything in the – what you’ve just read cause you to change that view?
[Witness] No.
[Counsel] Is that a continuing concern that you have regarding the mother’s---?
[Witness] Yes.
[Counsel]And can you explain what that concern is?
[Witness]I guess it – talking to [Ms Kasun] about it, it wasn’t about the relationships as such about the move. It was about there being funner things to do in Queensland, so going to the theme parks and that she has family members up there and her partner having a full-time job and that kind of stuff as opposed to the – missing the relationships that he has already got in New South Wales. And then a focus being on, like, her partner working so hard to get the house that they have built as opposed to the relationships of [X] and his family in New South Wales.
The Family Report writer was asked by the Court as to whether the child’s sense of stability may be affected if he was to relocate to Queensland and this evidence was given:
[The Court]If the court permitted relocation of the child to Queensland – and I appreciate you’ve been – you’ve given some evidence about a number of possible contributing factors to his presentation at school?
[Witness] Yes.
[The Court]Do you have any concern in relation to the child’s sense of stability as it presently is, as far as you’re aware, if he does relocate to Queensland. He has got to go to a new school. He’s not spending five nights a fortnight with his father and so on. And if so do you want to unpack any concern you might have?
[Witness]---Yes. So I am very worried about his sense of stability and security. So from what I’ve been taught – told today, it seems like he’s anxious and so having the big move and having to meet new people at school, new teachers, new family members. Having to figure out the dynamics of [Ms Kasun]’s household, it – it’s a lot for [X] to take on at one time. So, say for example, if a relocation were to happen, it would possibly be better for him to have moved there and lived – say for example, the summer holidays so then he has got time to live in the new family environment before having to start school because it’s just so many changes at the one time. And he – he might feel out of place in the family dynamics. Like, he – he wants to feel a sense of belonging to all family members – right? So if the parents aren’t supportive of each other or their partners aren’t supportive of the other parties, then [X] is not going to have that sense of stability and security. And, for example, children say what parents might want to hear, not necessarily how they’re truly feeling. Or they might feel confused. They often have a tug of war between their heart and their minds. So they might hear – like, denigration or something one parent is saying and their heart might be saying “Well, I – hang on, I love my Mum or I love my Dad and – but my brain is thinking “Well, I don’t see that behaviour” so they’re – they’re trying to make sense of “why is Mum or Dad making this comment when I don’t see it”. So it’s – it’s a confusing time for them. So that’s also worrying in terms of his sense of stability and security. Did that answer the question or do I need to elaborate more?
[The Court]No, thank you. In relation to your opinions stated in the family report relating to the child possibly moving to Queensland, did you take into account not only the inevitable reduction of the child’s time with the father but also the child’s reduction in time with other extended family members on both the mother’s side and the father’s side in Sydney?
[Witness]---I did consider it but the main aspect was his relationship with his Dad but his extended family members are very important and the more support network that a child has, the hopefully better his life will be and become well-adjusted as an adult. If he has got more people that he can turn to in times of distress or worry, he has more chance of being reassured so it’s very important to have that connection with both sides of the family.
The Court accepts the evidence of the Family Report writer subject to any contrary view of the Court, whether express or implied, as indicated below under section 60CC of the Act.
RELEVANT LEGAL PRINCIPLES
The Court refers to Foster J’s recitation of relevant legal principle in relation to parenting proceedings as set out in the decision of Knight & Knight [2016] FamCA 1085 as follows:
134.Parenting proceedings are governed by the provisions of Pt VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
135.Whilst that is the paramount consideration it is not the only consideration. In AMS and AIF (1999) 24 Fam LR 756 at 792 Kirby J said:
[144] ……a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides.
136.Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
137.In determining what is in a child’s best interests, the Court must consider the matters set out in section 60CC. Section 60CC outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
138.Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests. Sections 61DA(2) and (4) provide that this presumption may not apply or may be rebutted in cases of child abuse and/or family violence or when the evidence establishes that it is not in the child’s best interests for it to apply.
139.In the event that the Court orders the parties to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provide for a consideration of the children spending equal time with the parents. If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. If an order for equal shared parental responsibility is made by consent the Court may but is not required to consider equal or substantial and significant time (s 65DAA(6)).
140.The Full Court in Goode v Goode (2007) 36 FamLR 422, (2006) FLC 93-286 mandated that this legislative approach must be followed in all parenting cases. The High Court in MRR v GRR [2010] HCA 4 affirmed the legislative pathway.
The Court also refers to Foster J’s recitation of relevant legal principle in relation to relocation cases in the aforesaid decision of Knight & Knight as follows:
142.The jurisprudence (see B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, (1997) FLC 92-755; Morgan v Miles (2008) Fam LR 275, (2007) FLC 93-343, Malcolm & Monroe [2011] FamCAFC 16, Sayer & Radcliffe and Anor [2012] FamCAFC 209) is clear in that such cases remain to be determined like all parenting matters by considering the best interests of the child in the context of the legislative framework.
143.In Taylor v Barker (2008) 37 Fam LR 461 their Honours Bryant CJ and Finn J said:
[53] …… when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible: see U & U (2002) 211 CLR 238; 191 ALR 289; 29 Fam LR 74; (2002) FLC 93-112; [2002] HCA 36 and KB & TC (2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458.
Their Honours went on to say:
[83] However consistently with what the Full Court said in Goode, the options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement. Not to approach a case involving a relocation proposal in this way, would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or substantial and significant time” with each parent.
144.In Morgan & Miles [2007] FamCA 1230; (2007) FLC 93-343, Boland J heard an appeal as a single Judge pursuant to s 94AAA (3) of the Act. At [79] to [81] Boland J identified the relevant principles to be taken into account by a judicial officer when assessing competing proposals about where a child is to primarily reside. Her Honour stated:
In considering whether the child should live with the parent who proposes to relocate a court:
Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.
Make orders having regard to the child’s best interest as the paramount, but not the sole consideration.
Be guided in its determination by the objects and principles underpinning the legislation. This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.
If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.
In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.
When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.
Will carefully weigh and balance the primary considerations and the additional considerations in respect of the competing proposals. Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide:
- that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;
- that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;
- that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;
- the non-relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.
Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance.
The proposals of the parties are referred to previously in these Reasons.
The best interests of the child
Section 60CC considerations
(2)(a) (the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration)
The Court refers to Foster J’s discussion of “meaningful” and “meaningful relationship” in Knight & Knight as follows:
151.In Mazorski & Albright [2007] FamCA 520, Brown J considered ordinary definitions of the term “meaningful” and observed:
[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.
152.In McCall & Clark [2009] FamCAFC 92, the Full Court at [118] accepted as appropriate this interpretation by Brown J of “meaningful relationship” and said:
… the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents…
153.The enquiry is a prospective one, looking forward for the children in the context of parental relationships.
The child has a meaningful relationship with the mother and will benefit from a continuance of that relationship. The mother has been the child’s primary carer since birth.
The child has a meaningful relationship with the father and will benefit from a continuance of that relationship. The Court would assess that this relationship is capable of even further development (see e.g. the father’s remarks to the Family Report writer at paragraph 54 of the Family Report). The Court accepts the father’s evidence that since the final consent parenting orders of December 2019 he has spent, inter alia, five nights each fortnight with the child, except that during the COVID-19 pandemic and related lockdowns there were periods when he spent less than five nights each fortnight with the child. The Court further observes that the mother, during an interview in May 2019 with an officer from Family and Community Services, continually expressed her view that the father was a brilliant father.
Should relocation be permitted and the mother’s proposed Orders be made, there is a significant risk that the child’s meaningful relationship with the father will be detrimentally affected. This in turn could lead to issues of grief and loss for the child. Further, the child would not have the benefit of the father’s involvement in day to day aspects of his life.
With relocation, the child’s time with the father will be significantly reduced (the father’s face to face time with the child will be limited to time in the school holidays, and otherwise telephone/FaceTime/email/other forms of electronic communication with the child).
Further, there is a real risk that the mother will not reliably and consistently facilitate the child’s relationship with the father pursuant to her proposed Orders relating to relocation. This risk arises by reason of the mother’s historical failure to consistently and reliably facilitate time between the child and the father after the Court’s orders of December 2019 and her poor opinion of the father. In cross-examination she could not identify one positive attribute of the father. In this context, the Court finds that the mother failed to facilitate the child speaking to the father when the father was in Country E in early 2022 and in this regard the Court accepts the evidence of the father.
I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 11 August 2023
0
10
0