Kovacs and Jamil

[2017] FCCA 1804

FEDERAL CIRCUIT COURT OF AUSTRALIA

KOVACS & JAMIL [2017] FCCA 1804

Catchwords:
FAMILY LAW – Parenting – relocation – whether it is in the best interests of two children to be permitted to move to Queensland with their father or whether they should remain in Melbourne and move into their mother’s care.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC, 60CC (2), 60CC(2A), 60CC(3)

Evidence Act 1995 (Cth), s.128

Cases cited:

Rice v Asplund (1978) 6 FAM LR 570

Applicant: MS KOVACS

Respondent: MR JAMIL

File Number: MLC 6572 of 2008

Judgment of: Judge Small

Hearing dates: 19 July 2017 and 20 July 2017

Date of Last Submission: 20 July 2017

Delivered at: Melbourne

Delivered on: 4 August 2017

REPRESENTATION

Counsel for the Applicant: Self-Represented

Solicitors for the Applicant: Self-Represented

Counsel for the Respondent: Self-Represented

Solicitors for the Respondent: Self-Represented

Counsel for the Independent Children's Lawyer: Mr Lynch

Solicitors for the Independent Children's Lawyer: Peter Lynch

ORDERS

A.While the parents are living within 80 km each other either in Victoria or in Queensland:

1. The Orders made on 7 December 2016 remain in full force and effect.

OR, IN THE ALTERNATIVE

B.If the father relocates to Queensland and the mother does not:

1. All previous parenting Orders in relation to the children X born (omitted) 2003 and Y born (omitted) 2006 (“the children”) are hereby discharged.

2. The father shall have sole parental responsibility for the children.

3. The children shall live with the father and he shall be permitted to relocate with them to Queensland.

4. The mother shall spend time and communicate with the children as follows:

   (a)for ten days in each of the first and third term gazetted Queensland school holidays each year by agreement and failing agreement from the first Saturday until the second Tuesday;

   (b)for seven days in the second term gazetted Queensland school holidays each year by agreement and failing agreement from the first Saturday until the second Saturday;

   (c)for three weeks of the gazetted Queensland long summer holidays in 2017-2018 and in each alternate year thereafter commencing on the first Saturday; and for two weeks in 2018-2019 and in each alternate year thereafter concluding on the last Thursday;

   (d)in the event that the mother is able to travel to Queensland during school term times, on no more than two occasions per term from 6:00 pm on Friday to 6:00 pm on Sunday, with the mother to provide to the father 14 days’ notice of such travel, and detailed information as to her accommodation while the children are to be in her care, including confirmation of any reservations she has made and a telephone number where they might be contacted during that time;

   (e)by telephone, Skype, FaceTime or other electronic means:

   (i)between 5:00 pm and 6:00 pm on each Monday, Thursday, and Saturday when the children are not in her care;

   (ii)between 7:30am and 8:30am on each of the children’s birthdays and on her birthday each year should the children not be in her care;

   (iii)between 8:00am and 9:00am, and between 6:00pm and 7:00pm on each Christmas Day that the children are not in her care;

   with the mother to make the call and the father to ensure that the children have access to a working and fully charged telephone, tablet or computer and that they are available to take the call;

   (iv)save in the case of an emergency, on not more than another two occasions each week at the instigation of the children or either of them;

   (v)at other times as might be agreed between the parties in writing; and

   (f)at other times as might be agreed between the parties in writing from time to time.

5. When the children are in the mother’s overnight care pursuant to these orders, the father shall communicate with them by telephone, Skype, FaceTime or other electronic means:

   (a)between 5:00pm and 6:00pm on each Monday, Thursday, and Saturday;

   (b)between 7:30am and 8:30am on each of the children’s birthdays and on his birthday each year;

   (c)between 8:00am and 9:00am, and between 6:00pm and 7:00pm on each Christmas Day that the children are not in his care;

   with the father to make the call and the mother to ensure that the children have access to a working and fully charged telephone, tablet or computer and that they are available to take the call;

   (d)save in the case of an emergency, on not more than another two occasions each week at the instigation of the children or either of them; and

   (e)at other times as might be agreed between the parties in writing;

6. For the purposes of travel:

   (a)the father shall advise the mother of the airport closest to the children’s place of residence immediately upon that accommodation being confirmed, and the children shall travel between that airport and Melbourne Airport Tullamarine  or such other destination as the parties might agree in writing;

   (b)the father shall book and pay for the children’s return airfares to Melbourne, or such other destination as the parties might agree in writing, for time spent pursuant to paragraphs 5(a) and (c) hereof, together with any incidental expenses to that travel, and he shall book the children on the first available flight at the commencement of the mother’s time and on the last available flight at the conclusion;

   (c)the mother shall book and pay for the children’s return airfares to Melbourne, or such other destination as the parties might agree in writing, for time spent pursuant to paragraphs 5(b) and (f) hereof, together with any incidental expenses to that travel, and she shall book the children on the first available flight at the commencement of her time and on the last available flight at the conclusion;

   (d)the parties shall provide to each other written confirmation of the children’s travel arrangements no later than 14 days before the children’s outward journey; and

   (e)each party shall ensure that the children are accompanied to the airport and safely delivered to the staff of the airline with whom they are travelling at the commencement of their journey, and that they are met at the airport of their destination by the parent into whose care they are travelling.

7. Neither party shall remove the children or either of them from the Commonwealth of Australia without the written consent of the other party first obtained and such consent shall not be unreasonably withheld.

8. In the event that the children are to travel overseas for the purposes of a holiday, the children’s expenses shall be borne by the parent with whom they are travelling, and that parent shall advise the other in writing no later than 56 days prior to travel of the children’s full itinerary, including flights and accommodation details and telephone numbers where the children might be contacted.

9. Each party shall notify the other of any change of address (including email address) and/or contact telephone number within 24 hours of such change.

10. Within seven days of his relocation to Queensland the father shall make an appointment for X to see a general medical practitioner to discuss developing a Mental Health Plan so that she can obtain counselling in relation to her feelings about the relocation and any other issues, and otherwise he shall be responsible for any fees related to that counselling, which shall continue until both X and the counsellor decide that it is no longer necessary.

11. Within seven days of the date of these orders the mother shall attend upon her general medical practitioner and obtain a Mental Health Plan with a referral to a properly qualified psychologist or psychiatrist, and she shall attend upon such psychologist or psychiatrist until that therapist considers she is no longer in need of treatment.

12. Within seven days of the date of these orders the mother shall contact an accredited drug and alcohol rehabilitation program as recommended by her general practitioner and shall attend upon that program and comply with all directions of the program until that program considers that further treatment is not necessary.

13. The mother shall provide to the general medical practitioner and therapist described in paragraph 12 hereof and to the drug and alcohol rehabilitation program described in paragraph 13 hereof a copy of these orders and of the court’s Reasons for Judgment within seven days of receipt of those Reasons for Judgment from this court.

14. The parties are hereby restrained by injunction from:

    (a)abusing, insulting, belittling, rebuking or otherwise denigrating the other or any member of the other’s family in the children’s presence or hearing, and from allowing them to remain in the presence or hearing of any third party who is engaging in such conduct;

    (b)discussing these proceedings (save to explain the meaning of paragraph 5 hereof) or any parenting disputes or issues in the children’s presence or hearing, and from allowing them to remain in the presence or hearing of any third party who is engaging in such conduct.

15. Each party shall notify the other as soon as practicable in the event of the children or either of them suffering any serious illness or injury while they are in their respective care, and each shall authorise any medical or dental practitioner who treats the children or either of them to communicate and consult with the other parent.

16. Each party shall advise the other of any medication prescribed for the children or either of them, including the dosage prescribed and ensure that such medication travels with the relevant child.

17. The father shall authorise any school or the organisers of any extra-curricular activities in which the children or either of them is enrolled, to provide to the mother at her expense all information, notices, photographs, reports and like materials and she shall be named as a contact person in the records of such school or organisation in the event of any emergency involving the children or either of them.

18. Both parties, their respective partners, the children’s half siblings and their grandparents shall be at liberty to attend any school functions, extra-curricular activities or events to which parents are usually invited, and the mother shall advise the father of her intended attendance no less than seven days prior to any such function or event.

19. In the first week of every three months commencing in August 2017, the mother shall attend upon and provide a hair follicle sample to Jobfit or other properly accredited testing facility (“the testing facility”) for the purposes of screening for illicit substances, including but not limited to methamphetamines, such testing to be at the expense of the father, and she shall authorise the testing facility to send the results of each test directly to the father by email as soon as possible after such results are determined.

20. The provisions of paragraph 20 hereof shall be in force until the mother has provided four consecutive clean hair follicle test results to the father.

21. Should any test described in paragraph 20 hereof provide a positive result for illicit substances without written confirmation of a prescription for those substances from the mother’s medical practitioner being emailed directly from the medical practitioner to the father, then the face-to-face time the mother spends with the children pursuant to paragraph 5 hereof shall consist of day time only between the hours of 10:00am and 6:00pm on each day.

22. In the event that the provisions of paragraph 22 hereof come into force:

    (a)the mother shall pay for the father’s return airfare to Melbourne so that he can provide accommodation and support for the children for each period of time spent until she provides a clean hair follicle test, when the provisions of paragraph 5 hereof shall recommence;

    (b)changeover shall take place at an agreed venue, and failing agreement, at the closest McDonald’s restaurant to the midway point between the father’s accommodation and the mother’s home;

    (c)if the father is unable to find accommodation with family or friends during such periods of time spent, the mother shall pay for a serviced apartment or similar accommodation for the father and the children for the periods of time she spends with the children.

23. The order of Senior Registrar Fitzgibbon of 21 March 2017 appointing the Independent Children’s Lawyer is hereby discharged.

IT IS NOTED that publication of this judgment under the pseudonym Kovacs & Jamil is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 6572 of 2008

MS KOVACS

Applicant

And

MR JAMIL

Respondent

REASONS FOR JUDGMENT

Introduction

1. The final hearing of this matter was heard before me on 19 July 2017 and 20 July 2017 and I proclaimed final Orders on 21 July 2017, informing the parties that I would publish my Reasons for Judgment shortly.

2. These are those Reasons. They were intended to be delivered orally but the parties chose to receive them in writing as they were to attend their son Y’s birthday party on the afternoon of (omitted) 2017.

3. These are parenting proceedings relating to the care arrangements for two children: X born (omitted) 2003 and Y born (omitted) 2006.

4. The children’s parents are Ms Kovacs (“Ms Kovacs”) born (omitted) 1980 and Mr Jamil (“Mr Jamil”) born (omitted) 1975.

5. The children currently live with their father and spend time with their mother pursuant to final Orders made by consent on 7 December 2016. They have lived with their father since January 2015 and have spent time with their mother pursuant to various Orders.

6. The mother issued proceedings in the Family Court of Australia on 28 February 2017 seeking to discharge the Orders of 7 December 2016, to replace them with various other Orders, and to restrain the father from relocating with the children to Queensland.

7. On 15 March 2017 the father filed a Response seeking, inter alia, the discharge of the 7 December 2016 Orders and an Order that he be permitted to relocate with the children to the (omitted).

8. On 21 March 2017 Senior Registrar Fitzgibbon made interim Orders in relation to the children’s care, issued an injunction preventing Mr Jamil from relocating the children’s place of residence until further order, and transferred the proceedings to this Court.

Issues and Evidence

1. The issues to be decided in this case are:

   A.Whether the children should be permitted to relocate to Queensland with their father.

   B.What time the children should spend with their mother if they are permitted to relocate to Queensland, and under what circumstances that time should be spent.

   C.What their care arrangements should be if they are not permitted to relocate.

2. I note that at the beginning of the trial, pursuant to the Rule in Rice v Asplund (1978) 6 FAM LR 570, I rejected the mother’s Application in so far as it sought to reopen the previous proceedings on the grounds that there had not been a significant change in circumstance save for the father’s wish to relocate with the children to Queensland.

3. That means that I am not prepared to consider the mother’s application for equal shared parental responsibility, as the orders of 7 December 2016, which were made by consent at a time when the mother was represented by counsel, provide for the father to have sole parental responsibility for the children.

4. The mother’s proposal is that, if the father remains in Melbourne, the children should live in a week about equal shared care arrangement between her and the father. If the father moves to Queensland, the children should live with her and spend one week of each school term holidays and two weeks of the long summer holidays each year with their father. I note that under the Rule in Rice v Asplund, if the father remains in Melbourne, the orders of 7 December 2016 remain in full force and effect.

5. In other words, if Mr Jamil remains in Melbourne, the children will live with him and spend time with their mother pursuant to those orders.

6. The father’s proposal is that he be permitted to move to Queensland with the children, and that the children spend time with their mother for one week of each school term holiday and two weeks of the long summer holidays each year. It was his clear evidence at trial that, while that decision would cause him considerable grief, if he is not permitted to take the children with him, he, his partner and their son will move to Queensland in any event.

7. The father has repartnered and lives with his partner and their four-year-old son in short-term rented accommodation in Melbourne, having vacated the family home and leased it out in preparation for moving to Queensland. He has been offered a lucrative position in a company owned by a friend, that company being based in Brisbane. He wishes to move to Queensland to provide a better life for his family, including the children subject of these proceedings, and to escape the turmoil and uncertainty the children and his new family have experienced in relation to the mother’s issues over the past few years. He intends to settle on the (omitted).

8. The mother also has repartnered and lives with her partner of about one year in rented accommodation in Melbourne. She works in her partner’s (omitted) business as the (occupation omitted) and earns on average about $800 gross per week for that work. She is also receiving unemployment benefits from Centrelink, despite her evidence that she had declared all her income from her work to Centrelink over the period of her employment.

9. The parties were involved in a de facto relationship and marriage between 1999 and 2008, and final Orders in relation to the care of the children were made by consent in 2011. Those Orders provided for an equal shared care arrangement.

10. However, while Ms Kovacs was on holiday in (country omitted) with the children in January 2015 she was taken to hospital in an unconscious state after ingesting Valium, and her brother called Mr Jamil and asked him to fly to (country omitted) to take care of the children. Mr Jamil did so at some considerable cost and the children have lived with him ever since. Ms Kovacs denies that that incident was the result of a deliberate overdose.

11. Without canvassing in any great detail the circumstances of the previous proceedings which resulted in the final orders of 7 December 2016, suffice it to say that during 2015 and 2016, Ms Kovacs experienced poor mental health and she was also taking illicit drugs including cocaine and methamphetamines or Ice on a regular basis.

12. Her time with the children was intermittent and fractured until Final Orders were made in those proceedings and since then she has spent time with the children on alternate weekends, sometimes during the day and sometimes overnight. On the evidence of the father, that time has not been without its problems, with Ms Kovacs sometimes being inconsistent in her commitment to spending time with the children in strict accordance with the Orders.

13. The Orders of 7 December 2016 provide for Ms Kovacs to undergo supervised urine drug screens and her time with the children depends on those screens providing negative results. The Orders also provided for her to engage in counselling.

14. I note that in the previous proceedings, Ms Kovacs was asked by the Independent Children’s Lawyer, and pursuant to court Orders, to provide roughly 20 drug screens, and that she failed to provide any.

15. While Ms Kovacs engaged in some counselling in 2016, she has not received any counselling since the Orders of 7 December 2016 required her to do so. Her evidence at trial was that she would do anything the Court ordered in that regard and I will make further Orders that she attend both counselling and rehabilitation in relation to her drug issues. I gained the impression at trial that Ms Kovacs does not believe she needs counselling or rehabilitation, but her recent behaviour indicates that she would benefit from some form of mental health treatment.

1. Mr Jamil’s affidavit evidence alleges that Ms Kovacs has falsified the results of her drug screens in 2017 and that she continues to use illicit substances.

2. In her affidavit evidence in these proceedings, and in her interviews with family consultant Ms D, Ms Kovacs was adamant that she had not falsified any drug screens and that she is not currently using any illicit substances.

3. However, at trial, under the protection of a Certificate issued under s.128 of the Evidence Act 1995 (Cth), Ms Kovacs admitted that she had falsified certain drug screens, about five in number, in 2017, the last of those being submitted in May of this year, only about eight weeks before trial. She was nevertheless adamant that she had not falsified the screen results because she was afraid that they would prove positive for illicit substances, and it was her evidence that she had not taken any illicit substances since late in 2015, save for one relapse in February 2016.

4. One of the drug screens, which Ms Kovacs said was not falsified, showed positive results for amphetamine and methamphetamines in April 2017. It was Ms Kovacs’s evidence that she had been very ill and that she had taken Codral Cold and Flu tablets, which, she said, would account for the presence of those drugs in her urine. She provided no evidence from her doctor or her partner to corroborate that evidence. I am extremely sceptical that methamphetamines in particular would be found in over-the-counter flu medications and I simply do not accept that evidence.

5. Under questioning at trial, Ms Kovacs was unable to give the Court any reason why she had falsified her drug screens, simply saying that there was “no excuse”.

6. It is not an easy thing to falsify a drug screen result. It takes time and effort and indeed some expertise. I can only infer from her actions in falsifying her drug screens that Ms Kovacs wished to avoid a positive sample or samples being recorded. There can be no other logical reason for her doing so.

7. On 27 May 2017, Ms Kovacs appeared in the Magistrates’ Court of Victoria at Melbourne and pleaded guilty to a charge of dangerous driving resulting from her having driven at 150 km/h in a 100 km/h zone while she was transporting the children back to their father after her time with them. She was also convicted of possession of cocaine arising from a charge laid in 2015, and of driving whilst unlicensed, although it was her evidence that she was unaware that her licence had been cancelled because she had run out of demerit points at the time. She is now reliant on her partner to transport her and the children when they are with her.

8. Ms Kovacs has also previously faced criminal courts in relation to charges for fraud when she lied in an application for a credit card, for failing to appear at court, for breaching an Intervention Order and for shoplifting.

9. All of that evidence leads me to find, on the balance of probabilities,  that Ms Kovacs has used illicit substances since the Orders of 6 December 2016, and that she has been prepared to lie under oath and to the family consultant about that use and to falsify drug screen results in furtherance of that lie.

10. In those circumstances, it is difficult to accept that she has been truthful about other evidence she has given the Court. She described herself to the court as “a survivor” and it is difficult to escape the conclusion that she will say whatever she believes is necessary to achieve her goals and fulfil her desires.

11. It is obvious to the Court from her evidence that she minimises the extent and severity of her drug use and that she blames others for the situations in which she finds herself as a result. She was particularly concerned to tell the Court that she first began taking illicit substances when in the relationship with Mr Jamil. Mr Jamil denies that allegation, saying that he would not know where to find the drug Ice or how to obtain it, but even if that allegation were true, the parties have been separated for nine years now, and Ms Kovacs, at the age of 36, must take responsibility for her own actions.

12. When trust between parents has broken down, it takes time and consistent lived experience before it can be repaired. It will take Ms Kovacs considerable time to convince either Mr Jamil or this Court that she can be trusted to refrain from illicit drug use, and to take adult responsibility for her past behaviour. Only then could the court even consider her as a full-time parent to her children.

13. Mr Jamil on the other hand, while clearly antagonistic towards Ms Kovacs, impressed as a generally truthful and credible witness. He became emotional when talking about his commitment to his current partner and younger son, and it was clear that he did not make the decision to move to Queensland lightly, and that he would feel absolutely torn between his new family and the children the subject of these proceedings if he were not permitted to move to Queensland with X and Y.

14. While he had provided no detail in relation to his proposed employment in Queensland before trial, Mr Jamil tendered a copy of the offer of employment dated 23 January 2017 on the second day of trial, and I am satisfied that he will have employment in terms of that contract when he moves to Queensland.

15. Family consultant Ms D prepared a family report in June 2016 in the previous proceedings, and a second report in these proceedings was released on 23 June 2017. Ms D also gave evidence by telephone at trial and was cross-examined by the father and the Independent Children’s Lawyer. The mother declined to pose questions to either Ms D or the father at trial.

16. It is Ms D’s professional opinion, expressed in both reports and at trial that the children’s best interests would ideally be served by them living in Melbourne with their father and spending time with their mother. In other words, Ms D believes that it would be in the children’s best interests for the Orders of 7 December 2016 to remain in full force and effect. She understood at trial that that option was not being offered by the father, and in those circumstances her evidence could be summarised as follows:

    •She does not believe that the mother is in a position to care full time for the children at this time. She said that such care would be “untested, premature and not in the children’s best interests”. She was particularly concerned when informed that the mother had lied to her about her drug use during her interview for the family report in these proceedings.

    •The mother’s support network is limited and appears to consist of her current partner. Ms D said that was the case when she first interviewed the mother in 2016, albeit that the mother had a different partner at that time.

    •The children are settled and secure in the care of their father, although both expressed a wish to spend more time with their mother, and indeed X told Ms D that she would like to live with her mother. Ms D believes that the children enjoy and benefit from the full-time care of their father but that they also enjoy and benefit from spending significant time with their mother.

    •While the children are clear in their wishes not to relocate to Queensland, it is possible that some of that reluctance is due to fear of the unknown, and both children potentially have the capacity, with appropriate support, to face the challenges of relocation.

    •It is her opinion that the best interests of the children would be served by them remaining living with their father in Melbourne pursuant to the Orders of 7 December 2016.

17. Beyond those opinions, Ms D is not prepared to say whether the Court should Order that the children be permitted to relocate to Queensland or that they remain in Melbourne in the full-time care of their mother.

18. I now turn to the law in relation to this matter.

The Law

1. It is pertinent to say at the outset that while there is much talk about “relocation cases” in the family law arena, it is well settled law in Australia that cases involving applications to relocate a child’s place of residence are not to be decided on any different principles than any other parenting case. In particular, it is not the case that the question of relocation is to be decided before any other parenting orders can be made.

2. In other words, such cases are to be treated as parenting cases which have a relocation component to them.

3. The law in relation to parenting cases is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”).

4. Section 60CA of the Act states that in contemplating making any parenting orders the Court must take the best interests of the child or children as its paramount consideration.

5. Section 60CC then sets out 16 separate factors which the court must consider when it is considering orders that might be in a child’s best interest.

6. The first two considerations are called “primary considerations” and are found in s.60CC (2) which reads:

   The primary considerations are:

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

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

7. Section 60CC(2A) states that in applying those primary considerations the court must give greater weight to the need to protect a child than to the benefit to the child of having a meaning relationship with both parents.

8. Section 60CC(3) contains a further 14 factors or considerations which the court must bear in mind. The most relevant of these to this case are as follows:

   (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;

9. X and Y’s views could not be clearer. Both wish to remain in Melbourne, although X expresses a wish to live with her mother, while Y is content to remain living with his father and spending extended time with his mother.

10. X is 14 years old and her views are therefore pertinent, although not, as her mother appears to believe, determinative in any decision I must make in relation to her care and welfare.

11. Mr Jamil describes X as idolising her mother, although it was Ms D’s clear evidence that X is well aware of her mother’s shortcomings and vulnerabilities in relation to her drug abuse. Indeed X worries about those vulnerabilities, although she reported being less worried in her interview for these proceedings than when she spoke to Ms D in 2016.

12. Y is 11 years old and so his views are considered in the light of his particular stage of development and do not hold as much weight as those of his older sister.

    (b)The nature of the relationship of the child with:

    (i)each of the child’s parents; and

    (ii)other persons (including any grandparent or other relative of the child);

13. Both parents clearly love their children and there is nothing in Ms D’s report or in her evidence that indicates that the nature of the parents’ relationships with these children is other than close and appropriate.

14. However, the mother’s drug use, criminal activity, her minimising of her responsibility for those activities and particularly her willingness to lie about them to this court, cannot help but effect the nature of her relationship with her children.

15. Parenting involves not only the physical care of children but modelling behaviour for children to learn from as they pass through their childhood and adolescence. The role model Ms Kovacs has provided recently has not been positive.

16. The children also live with Mr Jamil’s partner and their four-year-old half-brother A.

17. There is some evidence before the court that X in particular clashes sometimes with her stepmother. It is Ms D’s view that that is a very normal and usual situation for an adolescent of X’s age.

18. There is no other evidence to suggest that the children’s relationship with their stepmother and half-brother is other than close and loving. Indeed, when Ms D interviewed Mr Jamil’s partner for her report during the previous proceedings, she found her to be committed to her step-children’s welfare and that she had undertaken several parenting courses in order to assist her with their care.

19. In Ms Kovacs’ household the children spend time with her partner and Ms Kovacs describes that relationship in terms of the children “adoring” her partner and him loving them. There is no particular evidence to contradict that statement. She said that the reason her partner had not provided an affidavit in these proceedings was that she had received legal advice to the effect that such evidence was not necessary. Nevertheless, it would have been of some assistance to the court had Ms Kovacs’ partner provided some evidence of her current living arrangements and activities.

    (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 major long-term issues in relation to the child; and

    (ii)to spend time with the child; and

    (iii)to communicate with the child;

20. Ms Kovacs described herself at trial as having been “an outstanding mother” to the children, but it is Mr Jamil’s evidence that particularly since the children have been living with him Ms Kovacs has been less than consistent in taking opportunities to spend time and communicate with the children, although he accepted that that situation had improved somewhat since the orders of 7 December 2016 had been in force.

21. It is clear that since the children have been living with him Mr Jamil has been making all major decisions about their lives.

    (ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;

22. Mr Jamil supports the children with the assistance of child support from Ms Kovacs in the sum of $48 per fortnight. Each parent is responsible for the children’s immediate needs when they are in their care.

    (d)The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

    (i)either of his or her parents; or

    (ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

23. Relocation to Queensland with their father, stepmother and half-brother would of course be an enormous change in these children’s circumstances.

24. They would be separated from their mother during school term times and would see her only during school holidays and perhaps on some weekends during term if she is able to travel to Queensland.

25. When asked at trial how she thought Y might cope with that change, Ms D said that he would be likely to adjust to a new school, and to develop new friendships, but that the change would also produce challenges for him, especially in relation to his relationship with his mother.

26. She said that X was “a capable girl”, but it is clear that X would face greater challenges if she were to relocate, as it is her wish to live with her mother in Melbourne.

27. If Mr Jamil, his partner, and A were to move to Queensland and the children were to remain in Melbourne with their mother, they would be separated from their father, the stepmother and their half-brother.

28. There is little evidence before the court about what the effect of that separation might be on these children, but it is noted that that is the household in which they have lived for the past 2 and a half years and in which they have become more settled over time.

    (e)The practical difficulty and expense of a child spending time 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;

29. Ms Kovacs indicated to the court at trial that she would be willing to move to Queensland if the children were permitted to relocate. In that situation there would be no reason to vary the orders of 7 December 2016. However, it did not appear to the court that Ms Kovacs had seriously thought about such an option, let alone made any enquiries as to how that might work for her. Indeed, in her interview with Ms D she was adamant that it would not be possible for her to make that move because of her commitment to her current partner and his business. Nevertheless, I will make Orders which provide for both alternatives.

30. Clearly if the children are permitted to move to Queensland with their father and their mother remains in Melbourne, there will be considerable practical difficulty and expense in them spending time and communicating with their mother. That situation would limit the amount of face-to-face time the children could spend with their mother and the frequency of that time.

31. However, the children have already developed close relationships with both parents, and while there might be some unhappiness about the limitations placed on their relationship by distance, regular (if not frequent) face-to-face time and frequent electronic communications would allow the children to maintain their relationships with both parents.

32. On the father’s evidence, he will be earning a considerable salary in his new position and will be able to pay for at least half of all the expenses involved in the children visiting their mother in Melbourne or elsewhere.

33. The mother’s financial position is less clear, as while she says she earns an average of $800 per week plus unemployment benefits, there is no corroborative evidence of that assertion.

34. I note that neither party filed a sworn financial statement to support their evidence in relation to their financial situations.

35. The practical reality of the situation is that if the mother is to maintain the best possible relationship with the children, the majority of the cost of her spending time with them if they move to Queensland will be borne by the father.

    (f)The capacity of:

    (i)each of the child’s parents; and

    (ii)any other person (including any grandparent or other relative of the child);

    to provide for the needs of the child, including emotional and intellectual needs;

36. There is no evidence before the Court that either parent is unable to provide for the children’s material needs, although Mr Jamil has been keen to ensure that Ms Kovacs has had appropriate accommodation for the children in the past, and he seeks Orders that would ensure that she does so in the future.

37. Nor is there any suggestion that either party is incapable of providing for the children’s intellectual needs. Both are reported to be doing well at school, although X has had some difficulties with her peers at times.

38. It is in the area of the children’s emotional needs that the Court has the greater concerns.

39. Ms Kovacs’ drug use, falsifications of drug screens, willingness to perjure herself, reluctance to engage in counselling or rehabilitation programs, and her criminal activity give the Court great concern about her capacity to provide for the children’s emotional needs. Indeed the evidence before the Court indicates that she struggles to provide for her own emotional needs and that she blames others for that struggle.

40. Mr Jamil’s antagonistic view of the children’s mother, while understandable in the circumstances, cannot be unknown to them, and that conflict cannot help but distress them.

41. Nevertheless, since the children came into his full-time care in January 2015, Mr Jamil has taken care of them, his partner has organised counselling for X at a time when she was extremely emotionally vulnerable and engaging in self harm, and overall, he has provided a steady guiding hand and a secure and safe environment for them.

    (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;

1. The evidence indicates that X is reasonably mature for her age and that Y’s development is progressing as might be expected.

2. Mr Jamil presents as an intelligent and mature man who nevertheless struggles with the turmoil created by his difficulties with the mother of his two older children. He is still somewhat enmeshed with her as evidenced by his almost totally negative view of her, and it is yet to be seen whether the move to Queensland would allow him the space to disengage from Ms Kovacs other than as the mother of his children.

3. Ms Kovacs presents well at first blush. She too is an intelligent woman, although she does not impress as being emotionally mature or capable at this stage of fully accepting responsibility for her actions.

4. Subsection (h) refers to Aboriginal or Torres Strait Islander children and is not relevant to these proceedings.

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

5. Again, it is clear that both parents love their children dearly, and want only what is best for them. However, for all the reasons set out previously in this judgement, I cannot find that the mother has always demonstrated a positive attitude to her responsibility as their parent.

6. Mr Jamil took on the full-time care of the children at a time when he had repartnered and had a very young son. While his decision to move to Queensland whether or not the Court permits the children to go with him might indicate some lack of responsibility as their parent, particularly given Ms D’s view that the children’s best interests would be served by them remaining in Melbourne and living with him, Mr Jamil should be allowed to live wherever he pleases, and it was clear at trial that the dilemma raised by that decision caused him some considerable emotional distress.

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

7. There is no evidence in these proceedings of either party having committed family violence since the orders of 7 December 2016 came into force. However, Mr Jamil’s evidence is that both Ms Kovacs and her partner have in the past in verbally abusive to him at changeover and as Ms Kovacs chose not to cross-examine him at trial that evidence remains unchallenged.

   (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:

   (i)the nature of the order;

   (ii)the circumstances in which the order was made;

   (iii)any evidence admitted in proceedings for the order;

   (iv)any findings made by the court in, or in proceedings for, the order;

   (v)any other relevant matter;

8. There is no current family violence order in place in relation to these parties. However there has been an order in the past which names the father and the children as affected family members and the mother as respondent, and it would appear that the mother was convicted of breaching that order. There was no detailed evidence before the court about the circumstances in which that order was made.

9. There was also mention during trial, but again without any detailed evidence been provided, that Ms Kovacs had been an applicant in family violence order proceedings against at least one subsequent partner.

   (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;

10. These children have been the subject of various sets of family law proceedings since their parents separated in 2008.

11. It is always preferable to make an order that would be least likely to lead to the institution of further proceedings in order to protect the children’s emotional welfare, and I certainly intend that the orders I am about to make will be final.

    (m)    any other fact or circumstance that the court thinks is relevant.

12. Finally, I take into account that the mother’s evidence is unavoidably tainted by her falsification of the drug screens and the perjured evidence she gave in affidavit material in relation to that issue.

Conclusion

1. Taking into account all the circumstances of this case, and in particular my finding, based on the evidence of the father and Ms D that the mother is not a current suitable full-time carer for these children, I find that the only suitable full-time carer for X and Y at this time in their lives is their father.

2. As the father is determined to move to Queensland, I find that it is appropriate to make an order that the children be permitted to accompany him.

3. That is not to say that I believe that that outcome is in the best interests of these children, but in the absence of the availability of an outcome that is in their best interests, I find that their relocation is an appropriate outcome.

I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of Judge Small

Date:  4 August 2017