Kroeger & Kroeger
[2024] FedCFamC2F 1452
•20 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kroeger & Kroeger [2024] FedCFamC2F 1452
File number(s): MLC 5635 of 2024 Judgment of: JUDGE O'SHANNESSY Date of judgment: 20 September 2024 Catchwords: FAMILY LAW – Interim hearing – issue of interstate relocation – where the mother now resides in Town B with the children – where the father resides in Queensland – where the father alleges the mother unilaterally relocated with the children – where the mother alleges the father was aware her intention to move – where the mother moved to Town B for a better job opportunity – where there is a real issue of the mother promoting the relationship of the father to the children – where the mother previously made monetary requests of father to see the children – where the mother changes her position during the hearing – where time with the father is to re-commence – where the children are to live with the mother in Town B until the final hearing – where a family dispute resolution conference is ordered – trial directions made. Legislation: Family Law Act 1975 (Cth) ss 60CC & 69ZL Cases cited: Goode & Goode (2006) FLC 93-286 Division: Division 2 Family Law Number of paragraphs: 42 Date of last submission/s: 20 September 2024 Date of hearing: 20 September 2024 Place: Melbourne Counsel for the Applicant: Ms Mansfield Solicitor for the Applicant: Joliman Lawyers Counsel for the Respondent: Ms Borger Solicitor for the Respondent: Hartleys Lawyers Counsel for the Independent Children's Lawyer: Mr Tesoriero Solicitor for the Independent Children's Lawyer: Victorian Legal Aid ORDERS
MLC 5635 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR KROEGER
Applicant
AND: MS KROEGER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
20 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.X born in 2016 and Y born in 2020 collectively referred to as “the children” live with Ms Kroeger (‘the Mother’), in Town B.
2.The children spend time with Mr Kroeger (‘the Father’) at an area of his choosing for the Term 3 holidays as follows:
(a)For a period of no more than 1 week on dates and at time as agreed between the parties in writing; and
(b)Failing agreement as to the date pursuant to Order 2(a) herein, the dates the Father spends with the children be from Thursday 26 September 2024 to Thursday 3 October 2024 with the Father to be responsible for the costs for the holiday expense.
(c)Contemporaneously with the next salary payment to the Mother’s from her employer, the Mother pay and transfer $1500 to the Father as contributed towards the expenses of the children for that week to a bank account nominated by the Father.
3.Provided the Father is residing in the Town B area (within 30km of the child X’s school), the children spend time with the Father as follows:
(a)During the school term:
(i)In week 1 from the conclusion of school on Friday until the commencement of school on Monday; and
(ii)In week 2 from the conclusion of school on Wednesday until the commencement of school on Friday;
(b)During the term holidays:
(i)For Term 1, 2, and 3 holiday periods for one week on dates and times as agreed and failing agreement the second week with the children to be returned to the Mother at 5pm on the night prior to the commencement of the new school term; and
(ii)During the long summer holidays in a week about cycle commencing with the first week of the holidays with changeover occurring at 5pm each week thereafter;
(c)At Christmas in 2024:
(i)From 2pm Christmas Even until 2pm Boxing Day;
(ii)At all other times as agreed between the parties in writing.
4.If the Father continues to reside in Queensland, the children spend time with the Father at all times as agreed between the parties in writing by text message or email and in default:
(a)Over the long summer holidays in 2024/2025
(i)for the first half of the school holidays in Queensland, with the children arriving in Queensland no later than 23 December 2024;
(ii)there be no restriction of where the time spent with the Children is to occur and is at the election of the Father;
(iii)the Father is to be responsible for the holiday expense;
(iv)on Christmas Day the Father will facilitate a telephone call between the children the Mother; and
(v)the start and end dates and times of the Father’s half of the holidays be as agreed and otherwise nominated by the Father in writing by text message or email.
(b)Provided the Father gives the Mother at least 2 weeks notice of his intention to spend time with the children, then during all school terms for up to 1 long weekend each month commencing from the conclusion of school on Thursday and concluding at the commencement of school on the Monday or such shorter period as he nominates in writing by text message or email.
(c)for term, 1, and term 3 holiday periods in 2025 and thereafter in the Town B areas for one half of the school holidays as agreed in writing by text message or email and in default of agreement of the times nominated by the Father 28 days beforehand.
(d)The children communicate by a messaging app with a video call with the Father to place the call and the Mother to make the children available:
(i)Each Tuesday at 6.45pm;
(ii)Each Thursday at 6.45pm;
(iii)Each Saturday at 10am.
5.All changeovers not occurring at X’s school and Y’s childcare, occur at the car park of Town B Supermarket at C Street, Town B or such other public place as agreed between the parties in writing.
6.Save in an emergency, the parties communicate with respect to all parenting matters and the implementation of this orders by communication application AppClose.
7.Each parent do all acts and things to cause and ensure that both parents are authorised to obtain directly and at his or hers own expense, copies of all school, day care or kindergarten reports, school newsletters and school photographs and any other documents that parents are usually provided with.
8.Each parent is to keep the other informed of any school, kindergarten and/or day care that the children or either of them attend in writing within 7 days of these orders.
Family Dispute Resolution Conference
9.Pursuant to Section 13C(1)(b) of the Family Law Act 1975 (Cth), the parties and their legal representatives (if any) shall attend:
(a)Part 1 of the confidential Court-based Family Dispute Resolution (FDR) Conference with a Registrar (as Family Dispute Resolution Practitioner) on a date to be fixed, with each party to attend separately at times to be advised; and
(b)Part 2 of the confidential Court-based FDR Conference on a date and at a time to be fixed but not later than 7 days after the date referred to in order 10(a).
10.The matter shall be referred to the Executive Director of Dispute Resolution for allocation and listing of the FDR Conference dates.
11.Any party who has not previously provided the Court with an email address must provide the preferred email address (and include details of the file name and Court file number) to …@... within 2 days of the making of these orders.
Part 1 of the FDR Conference
12.Part 1 of the confidential FDR Conference shall proceed by telephone and each party must, within 2 days of receiving notification of the dates of each part of the FDR Conference, notify the Court by email of their best contact telephone number (and include details of the file name and Court file number).
13.Unless otherwise directed by the Registrar conducting the FDR Conference, the Independent Children’s Lawyer’s appearance shall be excused from Part 1 of the FDR Conference.
14.Not later than 4.00 pm 7 days prior to Part 1 of the FDR Conference, each party must:
(a)ensure that all documents required to be exchanged between parties pursuant to Chapter 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 have been exchanged;
(b)ensure that any private expert report that is relevant to the proceedings has been filed;
(c)provide to the Court by email and to the other party a single collated bundle of documents comprising:
(i)a Confidential Outline of Case (Dispute Resolution);
(ii)a detailed minute of Orders Sought;
(iii)details of any previous or current family violence orders; and
(iv)a copy of any document exchanged between the parties which is directly relevant to an issue remaining in dispute (with relevant passages highlighted).
FDR Conference
15.The parties and the Independent Children’s Lawyer shall otherwise comply with any other necessary order, direction or request made by the Registrar to facilitate the FDR Conference.
16.The Registrar may vacate the FDR Conference in the event:
(a)of non-attendance by either party at Part 1 of the Conference; or
(b)that pursuant to Regulation 29 of the Family Law (Family Dispute Resolution Practitioners) Regulations 2008, the Registrar is no longer satisfied that the conference is appropriate.
17.If the DRC is unable to be ordered, the parties be at liberty to provide written submissions as to whether or not the trial date foes ahead or if the listed date needs to be adjourned for the DRC to occur.
Injunction
18.Each of the parties be restrained by injunction from:
(a)Speaking to each other in a derogatory or demeaning manner, or about the other in the hearing of the children;
(b)Discussing the proceedings, including showing any document associated with the proceedings to the children.
Trial directions
19.The matter be listed for Final Hearing before Judge O’Shannessy on 17 February 2024 (for an estimated 3 days) at the Registry with all parties to attend physically unless granted leave by the Court.
20.The parties be at liberty to rely on existing trial material
21.If the parties wish to rely on any updated material, the Respondent is to file a consolidated affidavit by no later than 4.00pm on 20 January 2024 (28 days before the Final Hearing).
22.If the Applicant wishes to respond, the consolidated affidavit is to be filed by no later than 4.00pm on 3 February 2024.
23.The Independent Children’s Lawyer is to file any material in which they seek to rely upon by 3 February 2024.
24.Each party file and serve a case outline no later than 7 days prior to trial and provide a copy in Word format to the associate with the case outline to include:
(a)A list of the application/response and all affidavits to be relied upon including the dates of filing;
(b)A brief chronology of relevant events;
(c)A precise minute of the orders the party is seeking; and
(d)A list of authorities to be relied upon, if any.
25.For face to face final hearings, parties are directed to have multiple copies of the paginated documents they seek to tender or cross examine upon (a judge’s working copy, a copy for each counsel and solicitor and a witness copy that will become the exhibit) and have a copy of documents available to witnesses including the witness’ own affidavit.
26.No later than 3 days prior to trial, the legal representatives (and the parties themselves if self-represented) jointly prepare a trial plan outlining any witnesses for cross-examination and an indication of the time they anticipate required for cross-examination of each witness.
27.The parties are to notify the Child Impact Report writer their intention of cross-examination by no later than 4 weeks from the date of these orders.
28.The parties be at liberty to provide these orders to any;
(a)Court; and
(b)Police authority; and
(c)School, day care or kindergarten the children or either of them attend upon.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 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 Annexure A and these particulars are included in these orders.
B.The enrolment in any anger management course will be left to the decision of the parents.
C.The Court is not satisfied the Father undergo a further Hair Follicle Test (‘HFT’) as the Applicant presses as the Father completed a HFT in mid-2023 and received a negative result.
D.A family report has not been ordered for the final hearing due to the extent of the Child Impact Report being available to the parties.
E.The parties have advised this day they expect to call upon the Child Impact Report writer for cross-examination.
F.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
G.Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
H.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
I.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR EX TEMPORE JUDGMENT
JUDGE O’SHANNESSY
These are the settled reasons of a judgment delivered ex tempore pursuant to section 69ZL of the Family Law Act 1975 (Cth) (‘the Act’). These reasons were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected, headings, citations and/or passages of authorities and evidence added, and an attempt has been made to make the orally delivered reasons easier to read, but the substance is unchanged.
In the matter of Kroeger & Kroeger, I am asked to determine the competing applications in regard to which parent the children, X and Y, should live with pending final hearing.
Background
The background to the matter is that the parents migrated to Australia and have settled here permanently. The parents met in about 2011 when Ms Kroeger (‘the Mother’) was studying in Queensland. They married in Country D in 2015 and then separated in Australia in controversial circumstances in late 2020 or early 2021. The parties' married life has been in Australia, and they have lived here since their marriage. At times, the parties had an acrimonious relationship, and each alleges family violence against the other.
The parties were divorced in mid-2022 and Mr Kroeger (‘the Father’) issued these proceedings on 14 May 2024. The parties have two children, X, born in 2016, and Y, born in 2020 (‘the children’). X is seven, almost eight, and Y is just four. Back in late 2021, the parents, with the assistance of E Centre, were able to enter into a parenting plan which provided for a shared care arrangement. At a time after separation, the parties had a week-about shared care arrangement for the care of their children.
The matter in dispute before me was whether the children would live with the Mother on an interim (she now lives in Town B), or whether the children should live with the Father where the children had previously lived, until December of 2023, in Brisbane.
For the reasons that follow, my decision is that the children, on this interim hearing and until further order, will remaining living with the Mother in Town B and that the Father should spend time with the children. The proceedings were unfortunately characterised by what I regard as an extreme position by the Mother and a corresponding, not as extreme, but hard position by the Father.
The children had lived in a shared arrangement until around about early December 2023. That shared arrangement had evolved or changed, unhappily, to be one where the Father had the children for two nights over each weekend but over three days, and the Mother had the children for the remaining time of the week. There were times where each parent was insisting to the other that he or she care for the children for a longer period than what that parent wanted. This was one of those cases where each parent said, ‘No, I insist that you have the children on those days,’ and the other responded, ‘No, I insist you have the children.’ Each of the parents love the children and are devoted to them, and the circumstance of insisting the other parent care for them arose from the not unusual circumstance of relative poverty and financial difficulties getting ahead in a new country. Each of the parents needed to engage in work, including shift work, to simply make ends meet as they attempted to get ahead in a new country.
This is an interim hearing, and I apply the provisions of section 60CC, which are as follows:
Section 60CC How a court determines what is in a child’s best interests
Determining child's best interests
(1)Subject to subsection (4), in determining what is in the child's best interests, the court must:
(a)consider the matters set out in subsection (2); and
(b)if the child is an Aboriginal or Torres Strait Islander child--also consider the matters set out in subsection (3).
General considerations
(2)For the purposes of paragraph (1)(a), the court must consider the following matters:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i)the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b)any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs ;
(e)the benefit to the child of being able to have a relationship with the child's parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
(2A)In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a)any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b)any family violence order that applies or has applied to the child or a member of the child's family.
…
The welfare of the children is the paramount consideration on this decision. I apply the pathway described in Goode & Goode (2006) FLC 93-286 (‘Goode & Goode’) but modified to take account of the current and existing section 60CC provisions, and not those as in place at the time of Goode & Goode. But the point is the law of the land is that I am not to make findings on an interim hearing conducted on the papers, notwithstanding the skill of counsel when addressing me about parties’ inconsistencies and consistencies. If needs be, findings about risk of harm can be made robustly.
Father prevented from seeing the children
In this case, the Father has not spent time with the children, save for a meeting at the children’s school and an observation during a child impact report, since the Mother left Queensland with the children and commenced her new life in Town B. The Mother obtained a senior position in the health industry in Town B in late 2023 and started work soon after. The Mother asserts that she obtained the Father's permission or agreement that she do that, and she asserts that he said to her, at that time, statements which would reflect well on him as to having insight as to her circumstances. He denies such a conversation and says that the Mother unilaterally relocated the children from Brisbane to Town B.
Since the Mother’s relocation to Town B, it appears on the evidence that the Father has only been able to speak to the children twice. Once for an occasion he says was about two minutes and on another occasion was about 17 minutes, both in December 2023. There are communications in evidence between the parties where the Father literally begged to see the children, and including on one occasion where he travelled to Town B from Queensland and begged the Mother to let him see the children.
The Mother's response was, in text message, to ask for a payment of $10,000 and then she would consider him seeing the children. When he did not agree with that and continued to beg to see the children, she told him that if he kept harassing her, the price would go up, and it did. In this stream of messages, she then demanded $15,000 on the same terms with the statement that if he did not pay the price, and if he continued to ask to see the children or harass her, the price would go up, and it did. In this manner, the conversation went with the Mother apparently demanding $10,000, then $15,000, then $20,000, then $30,000. I am not satisfied that these were actual genuine demands for money, as neither party has available to them significant amounts of money, notwithstanding the substantial legal fees they have been able to pay in the meantime. The long and the short of it is that the Father was not allowed to see the children.
The Father then attended the children's school, and the events of that visit are controversial. He spoke to one of the children briefly in the Mother's presence. Following the Father attending the children’s school without her permission, the Mother obtained a family violence intervention order. That was consented to without findings by the Magistrate on a permanent basis soon after, in early 2024.
The Father asserts, and, for the purpose of this hearing, I accept, that he was unable to raise the funds to issue proceedings with the assistance of lawyers until May of 2024. Thereafter, there has been various procedural hearings, including where the Father was required to undertake a hair follicle test. He undertook a hair follicle test in July and the results were made available to the Mother soon after. It is common ground that that test was clear of illicit substances.
The Mother's position in these proceedings was that the Father should only see the children, if he was to see them at all, in a supervised facility as his expense. Save for an allegation that the children were upset by the telephone conversations that the Mother says the Father had, but the Father says he never had, explained the change in the Mother's position of communicating to the Father about relocating from Queensland to Town B (with him apparently courteously considering that and agreeing) to a position of simply refusing to engage with him in any discussion about him spending time with the children at all.
Child impact report
The parties had the benefit of a court-based child impact report, and relevant passages are as follows:
20.[X] explained that her parents are not friends and haven’t been friends since she was a little baby. She described her hopes that they would get back together or become friends again and stated her wish as “I want my dad to move to [Town B] and dad move next to my house. We stay with mum 7 days and dad 4 days, so he can spend more time with us”.
21.Prior to meeting their dad both girls shared how they missed him and were excited to see him. When [Mr Kroeger] entered the observation room both girls ran up him and yelled “Dada” before they all embraced. [Mr Kroeger] gave [X] and [Y] a [toy] doll, which the girls shared their delight about on several occasions.
22.[Mr Kroeger] presented as having a calm and gentle parenting approach… There was warmth, physical affection and laughter shared between the girls and their Father…
…
43.[Mr Kroeger] presented as a loving Father who is prepared to make a significant sacrifice to be an active part of his children’s life. [Mr Kroeger] presented as reflective and demonstrated insight into some poor parenting decisions he has made historically. While [Mr Kroeger] presented his preference for the girls to return to Queensland he expressed his openness to relocating to [Town B] if [Ms Kroeger] would permit it.
44.[Ms Kroeger] also presented as a loving Mother, who appeared to have strong values of respect and independence. While [Ms Kroeger] asserted she has always valued and promoted [Mr Kroeger]’s role in the girls life, however in her own assertion her decision to relocate to [Town B] was a decision driven by her career, and it remains unclear what consideration was given to the children’s relationship with [Mr Kroeger] during the decision making process. Despite this, [Ms Kroeger] demonstrated an understanding of how much [X] and [Y] love their Father and need him in their life and there appeared to be a shift in her priorities and positioning on day of assessment, to one which could envision a co-parenting relationship with [Mr Kroeger].
KEY CONSIDERATIONS AND PATHWAYS FOR DECISION MAKING
45.In the interim if the children are in a different state to their Father, videos calls should occur at least twice weekly.
46.In the interim spend time should occur between the children and [Mr Kroeger] as often as is practicable for [Mr Kroeger] during the school time, commencing after school on Friday to Sunday afternoon. [Mr Kroeger] should provide a minimum of 2 weeks notice to [Ms Kroeger] regarding spend time arrangements.
47.If [Mr Kroeger] is in the same state as the children, on the basis of the information available to the writer, the children could be spending substantial time with [Mr Kroeger], for example 5 days in a fortnight period.
48.During the school holidays, parents should both spend equal time with the children for half of the holiday period.
49.Consideration could be given to minimising direct contact wherever possible, such as change overs happening at school. However, when direct contact needs to occur, this could occur in a community setting or neutral space, to ensure co-parenting boundaries are maintained and respected.
…
52.The main issue in dispute appears to the Mother's relocation from Queensland to [Town B]. It appears that there are no safety concerns or dynamics which would prevent either party from engaging in a genuine attempt to negotiate and resolve the current parenting dispute before the Court…
Mother’s change in position
During the hearing before me this day, I pressed the Mother's counsel to identify any events covered in the evidence that could justify the change of the position of communicating with the Father in a shared care arrangement to the attitude demonstrated in the text messages where money is discussed. At a point, unsurprisingly, given the discussion between counsel and myself, the matter was stood down for the Mother's counsel to obtain further instructions.
I then proceeded to hear another matter, and the case came back before me a short time later. The Mother's position over that break changed substantially, and I now have her proposal as proposed at exhibit ‘M2’. The long and the short of it is that the Mother proposes that if the Father is residing in Town B area, he sees the children during school term on what can be described as a shared care arrangement of a three plus two, that is, Friday to Monday, school to school, in one week and then Wednesday to Friday, school to school, in the other week with half of or one week of school holidays.
The Mother pressed a restriction on where he exercises that time over the next school holidays until the Christmas holidays. I am not satisfied that it is in the children's interest or that there is any need to place any restriction on where the Father exercises his time.
Father’s position
The Father’s position is I should have severe circumspection about what the Mother says about her motivation for moving to Town B, which was so far away from where the children were living. The Father also pressed that in all the circumstances, it is in the children's best interest to live in Brisbane with the Father, with the Mother's time to be an equal time arrangement were she to live there.
The Father demonstrates a positive attitude to the Mother's time with the children both in substance as well as in words. I was unable to work out or ascertain the change in the Mother's position from what she told the child impact report to what her position was in her last filed documents. Nonetheless, I am not deciding this matter on the basis of which parent has committed the least or most parental sins or discourtesies to the other. I am determining the matter on the basis of the children's best interests.
At a time when the Mother would not communicate with the Father in messages, the Father's position was that he was even prepared to move to Town B to promote his relationship with the children. At the time of the family report interviews, his position was, if the Mother would permit it, he would relocate or at least seriously contemplate relocating. It appears to me the Father has only visited Town B on one occasion, that was the occasion that ended up in an intervention order against him, trouble at the school and no time with the children. The Father is not yet in a position to be able to work out whether it is realistic for him to actually relocate to Town B. In the event the Father relocates to Town B, the time that the Mother proposes in her minutes is sensible on an interim basis.
Financial demands and care of the children
A matter that seriously agitated the parties in the period after separation and until the Mother relocated to Town B were the ordinary everyday financial demands upon parents. Each of the parents then needed, and still need, to rent accommodation. Each of the parents needed to work, including in shift work, to be able to provide the basics of a roof over their head and food for themselves and the children. I am satisfied that each of the parents are hard-working, diligent and capable people that have had some success in advancing themselves in qualifications and employment in the relatively short time they have lived in Australia. Nonetheless, financial needs of just getting by on a day-to-day basis was a significant pressure on both of them.
That was the sole motivation for each of them insisting that the other parent care for the children on more days than what he or she wanted to, because each of them needed to work to put a roof over their head and provide for the children. The Mother expressed exasperation at the extent of the Father's cooperation with her. She alleges that, on one occasion, the Father left the children at her residence when she was not there, and the children ended up wandering down to the local supermarket and being found there in a distressed condition. It is said that that reflects poorly on the Father's insight as to the children's needs. If correct as the Mother describes it, indeed it does.
However, I do not propose to judge the parties' parenting skills or assess them according to section 60CC on a Melbourne or Sydney urban middle class approach where people have enough money to get by on a day-to-day basis and there are choices about discretionary expenditure to be made. These parents have more difficult financial circumstances. However, what is striking is that there was no proposal by the Mother that the Father spend time with the children, save for supervised time at an unspecified facility or in an unspecified manner, until during the hearing. It is very much to the credit of the Mother that she has grasped that opportunity.
Mother promoting relationship between children and Father
One difficulty pointed out by counsel for the Father is that during the recent child impact report, the Mother demonstrated an attitude of positivism to the Father's relationship with the children.
44.[Ms Kroeger] also presented as a loving Mother, who appeared to have strong values of respect and independence. While [Ms Kroeger] asserted she has always valued and promoted [Mr Kroeger]’s role in the girls life, however in her own assertion her decision to relocate to [Town B] was a decision driven by her career, and it remains unclear what consideration was given to the children’s relationship with [Mr Kroeger] during the decision making process. Despite this, [Ms Kroeger] demonstrated an understanding of how much [X] and [Y] love their Father and need him in their life and there appeared to be a shift in her priorities and positioning on day of assessment, to one which could envision a co-parenting relationship with [Mr Kroeger].
That was the Mother's position when interviewed for the purpose of the child impact report on 2 September 2024. That report is dated 11 September 2024 but was only made available to the parties two days ago.
What is remarkable is that, following that communication to the report writer of a positive attitude to the Father's relationship with the children, there was no proposal coming from the Mother's side or camp. The Court documents filed recently proposed only supervised time. At the commencement of the hearing before me, counsel for the Mother indicated that she had a different position, and that supervision was no longer pressed. The change in the Mother's position is to be commended. However, the alacrity with which that was arrived at is unfortunate.
Findings of family violence
I do note and accept that there are allegations of family violence both ways. A history of family violence and the experience of it is not transient and would mark each parent's attitude to the other. I am unable and cannot make any findings on this hearing as to those competing allegations. Given the change of the Mother's position, the circumstances of the family violence are no longer critical to this interim decision.
Mother’s employment
The Mother has taken a senior position in the health industry in a regional Victorian city. I regard that as a milestone in a professional career. Her motivation of being determined to achieve and obtain that position can be understood. The Father questions her motivation in taking that position so far away from him and where the children were living and is concerned about her attitude to his relationship with the children.
Independent Children’s Lawyer’s view
The Independent Children's Lawyer (‘the ICL’) at the commencement of the case, with some hesitation, supported the case of the children returning to Queensland to live with the Father. The ICL was and remains concerned at the capacity of the Mother to promote a relationship with both parents if the children are to remain living in Town B with the Mother. I have been troubled by that aspect and I can readily understand the ICL’'s concern about that.
Conclusion
I am concerned about the fait accompli aspect of relocation being determined on an interim basis. However, though not necessarily of equal width, that is a two-way street that has profound consequences for both parties, it is an unfortunate aspect of this case. But I repeat, the primary reason for this decision relates to the least upheaval and trouble for the children in the short-term until the matter is able to be dealt with at final hearing.
The children have been living in Town B for 10 months in circumstances that, save for not being able to see their Father, which is a big thing, could otherwise be described as settled. There is evidence from the children's school that the older child has settled into school. There is an unfortunate lack of detail about the children's lives in Town B in the Mother's material, and that has been skilfully pointed out by the Father's counsel. Nonetheless, I am not satisfied that it is in the children's interest to cause the upheaval again in their lives of having them relocate from Town B to live with their Father immediately and for their Mother to, as is likely, abandon her senior position in the regional city and move back to Queensland.
Parties financial circumstances
Under the new position of the Mother, she says that all travel expenses should be paid by the Father and should be at his expense. The Mother's financial position is superior to the Father's but far from bountiful or able to afford things like lawyers, interstate travel, etcetera. But, because of her hard work, skill and dedication, she has a professional position where, net of tax, she tells me she takes home about $1900 per week or $3600 per fortnight.
Her rent in the regional city she is in, by Australian capital city rates, is reasonable, in the sum of about $740 per fortnight. The older child is at a private school. The Mother will have a multitude of ordinary everyday expenses to meet.
The Father's position is that he works extraordinarily hard, taking as many shifts as he is able. At the moment, he works some 90 to 95 hours a fortnight and takes as many shifts as he can to work those long hours. He takes home about $800 per week or $1600 per fortnight. He is indebted to three different short-term high-interest money lenders to fund legal fees and to get by.
Upcoming school holidays
This coming school holidays, there is some slight disagreement. The Father says, "Listen, I start tomorrow. I get one and a half weeks of the school holidays," and the Mother's position is, "You have the second week of the school holidays."
Orders
I am satisfied that the Father's time, having not seen the children for so long, should resume by a period of one week with the children during the school holidays. I am satisfied that the Mother should contemporaneously with receiving her salary payment, (she gets her next salary payment next Tuesday), pay to a bank account nominated by the Father the sum of $1,500 on account of assisting the Father with these school holiday expenses. Whether the Father travels down to Town B to see the children or whether he travels down to Town B and drives back to Queensland, whether he stays in the Town B area or somewhere else or whether he flies is a matter for him. It is not in the children's interests that each of the parents monitor how the other parent provides for them.
The primary reason I am leaving the children in the Mother's care is because they have been there for 10 months and commenced a new school and the issues of how practical it is for the Mother to be involved in their life between now and the final hearing is simply not clear to me.
The issue of whether either of the parents should undertake some form of anger management or behavioural change program will be a matter that I will leave to them, and it may be that one or both of the parents would have much to learn from issues of impulse control, anger management and dealing with conflict. That will be, or may well be, a live issue.
In terms of the further hair follicle test, I am not satisfied that I should order the Father to do another one. He has done one earlier in the year, and that was clear of all substances. That covered three months, and when provided to her, did not end up in any response from the Mother for the Father to spend time with the children. The Father was spending shared time with the children over many, many months prior to the Mother's relocation, and at that time, drug abuse does not seem to have been an issue. I also note that I have taken account of the section 67Z response which has been tendered in evidence, which indicates an allegation that the Mother struck one of the children in late 2022, and the Father only learned of this when the 67Z came up.
Those are my reasons.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for ex tempore Judgment of Judge O'Shannessy. Associate:
Dated: 17 October 2024
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