Lancaster & Hubb
[2022] FedCFamC2F 838
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lancaster & Hubb [2022] FedCFamC2F 838
File number(s): BRC13034 of 2020 Judgment of: JUDGE YOUNG Date of judgment: 28 June 2022 Catchwords: FAMILY LAW - parenting - concerning one child who is eight years old - where the child lives with the mother and spends time with the father - where the mother unilaterally relocated with the child - where travel time between the mother and father is more than 4 hours by car - where the child has experienced significant instability - where the father alleges the mother has mistreated the child - Court satisfied there is a need to protect the child from harm - Court satisfied the child should return to live in the same region as the father Legislation: Evidence Act1995 (Cth) s 140
Family Law Act 1975 ss, 60B, 60CA, 60CC, 61DA, 65DAA
Cases cited: Briginshaw v Briginshaw (1938) 60 CLR 336
Morgan & Miles (2007) 312 FLR 114
Palmer & Hammer (No.2) [2011] FamCAFC 196
Starr & Duggan [2009] FamCAFC 115Division: Division 2 Family Law Number of paragraphs: 104 Date of hearing: 16 March, 23, 24 & 25 May 2022 Place: Brisbane Counsel for the Applicant: Mr Fisher Solicitor for the Applicant: Gold Law Town C The Respondent: Self-represented litigant Counsel for the Independent Children's Lawyer: Mr Slade-Jones Solicitor for the Applicant: Lyrene Wiid Lawyers ORDERS
BRC13034/2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS LANCASTER
Applicant
AND: MR HUBB
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE YOUNG
DATE OF ORDER:
28 JUNE 2022
THE COURT ORDERS THAT:
Parental Responsibility
1.The Mother and Father shall have equal shared responsibility for the child, X, born in 2013 (“the Child”).
Living Arrangements
2.Notwithstanding Order 1, the Child shall attend B School commencing 11 July 2022.
3.Until 10 July 2022 or until the Mother relocates herself and the child to within 10 kilometres of B School (whichever is sooner), the child shall live with the mother and spend time weekend time with the Father according to current arrangements.
4.If by 10 July 2022 the Mother has not relocated herself and the child to live within 10 kilometres of the B School , then the child shall live with the Father and spend time with the Mother every 4 weeks. Such time shall commence on Saturday at 10:00am and conclude at 3:00pm the following day with all changeovers to occur at the Father’s home. Such time shall occur within the Town C/Town D region unless the mother and father agree otherwise.
5.If the Mother relocates herself and the child to within 10 kilometres of the B School, the Child shall live with parents on a week-about basis with all changeovers to be at the Child’s school on Friday afternoons.
6.If the Mother relocates herself and the Child to within 40 kilometres but further than 10 kilometres from the B School, the Child shall live with the Father and spend time with the Mother on alternate weekends commencing Thursday after school until Sunday evening at 5:00pm with the mother delivering the Child to the Father’s home at 5:00pm.
7.If the Mother has not relocated herself to within 10 kilometres of the B School by the commencement of Term 1, 2023 then Order 5 herein is discharged.
8.If the Mother has not relocated herself to within 40 kilometres of the B School by the commencement of Term 1, 2023 then Order 6 herein is discharged.
Holiday Periods
9.Notwithstanding anything to the contrary and if the Child is living with or spending time with the Mother pursuant to Order 5 and 6, then:
(a)in odd numbered years, the Child shall spend the first half of all school holidays with the Father and the second half of all school holidays with the Mother; and
(b)in even numbered years, the Child shall spend the first half of all school holidays with the Mother and the second half of all school holidays with the Father.
10.Notwithstanding anything to the contrary and if the Mother has not located to within 40 kilometres of the B School then the Child shall spend all of the September/October school holidays with the mother, and otherwise the school holidays shall be shared as set out in Order 9 and 11.
11.For the purpose of determining the commencement, conclusion and half-way point of the school holidays in Order 9 and 10, school holidays shall be deemed to commence on the last day of the school terms, and shall be deemed to conclude on the day immediately prior to the commencement of the next school term. In order to calculate the length of half of the school holiday period, the number of nights in the school holiday shall be divided by two and if there is an odd number of nights;
(a)the child shall spend the extra night in even numbered years with the Father; and
(b)the child shall spend the extra night in odd numbered years with the Mother.
12.Each of the parents shall do all things necessary to ensure the Child spends time with the other parent as set out in these Orders however, nothing prohibits the parents agreeing to alternative time arrangements.
Communication
13.Unless otherwise agreed, the parents shall do all things necessary to ensure the Child communicates privately by Skype or telephone or similar with:
(a)the absent parent each Wednesday at 6:00pm, and for that purpose the absent parent shall telephone the Child on the telephone number provided by the other parent to the absent parent, and the other parent shall ensure that the child is able to receive the absent parent’s call on that number and that time; and
(b)the absent parent on the Child’s birthday at 6:00pm, and on Christmas Day at 6:00pm, and for that purpose the absent parent shall ensure that the child is able to receive the absent parent’s call on that number and that time.
Other Orders
14.Neither parent shall physically discipline the Child and shall do all things necessary to stop any other person from physically disciplining the Child.
15.Neither parent shall denigrate the other in the presence or hearing of the Child and each parent shall be under a positive duty not to permit the Child to remain in the presence or hearing of another person denigrating the other parent.
16.Each parent shall forthwith inform the other, and keep the other informed in writing, of their respective current residential address, mobile telephone number, and email address.
Counselling
17.The father shall within a reasonable time seek a referral for the Child to attend for counselling as recommended at paragraph 12.6 of the family report dated 28 April 2022. Copies of that family report, the family report dated 22 August 2020, the reasons for judgment and these orders may be given to the counsellor.
THE COURT FURTHER ORDERS THAT
18.All parenting orders and parenting plans made prior to his date are hereby discharged.
19.All outstanding applications for parenting orders are dismissed.
20.The Independent Children’s Lawyer is hereby discharged.
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 Lancaster & Hubb has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE YOUNG
This is a parenting case about X, who is eight years old. X currently lives with her mother and stepfather, Mr E, in City F. She also lives with her half-sister, G, four years old, who is the daughter of her mother and Mr E and a stepsister, H, six years old, the daughter from Mr E’s previous relationship.
X spends time with her father, who lives in Town C, about four hours by road from City F, once a month. Her father lives with a friend in a rental property in Town C. Both the maternal and paternal grandparents live in Town C. They support the father in these proceedings.
The father has a history of schizophrenia and epilepsy. According to the father’s psychiatrist, his schizophrenia and epilepsy is in remission and the conditions are managed by medication. The father was recently been given the all-clear to obtain a driver’s license but has not yet obtained it.
Proposals
The father proposes that he have sole parental responsibility for the child and that the child live with him. If the mother continues to reside in City F he proposes that the child spend time with the mother once every 4 weeks. If the mother resides in the Town C area he proposes that the child live in a week about arrangement with each parent. Apart from parental responsibility, the orders sought by the father substantially reflect the position taken by the independent children’s lawyer.
The mother proposes that the parties have shared parental responsibility and the child lives with her in City F and spends time with the father once every 4 weeks from Saturday to Sunday.
The independent children’s lawyer proposes that the parties have shared parental responsibility and the child attend B School, Town C. If the mother relocates to within 10 km of the B School the child live with the mother and father on a week about basis. If the mother relocates to within 40 km of B School but more than 10 km from the school the child live with the father and spend time with the mother in a fortnightly arrangement from Thursday to Sunday. If the mother continues to reside in City F then the child live with the father and spend time with the mother once every 4 weeks.
Background
The mother and the father began a relationship at high school. The mother fell pregnant and X was born when the mother was 16 years old. The mother and the father never lived together and their relationship was relatively short-lived. The father is 27 years old. The mother is 25 years old.
Initially both parents lived in Town C and X spent time with her father, often at the mother's home. The relationship with the mother and father was relatively amicable at that time.
In 2019 the mother began a relationship with Mr E. In July 2020 the father commenced proceedings and consent orders were made in September 2020. The consent orders provided for the mother and father to have shared parental responsibility for X and for her to spend time with the father. Initially she was to spend time during the day, increasing from 2 hours to 8 hours over a 6-month period. After 6 months, on condition that the father produced, if requested by the mother, a negative hair follicle test for illicit drugs, she was to begin overnight time on alternate Saturdays for two visits and then alternate weekends from Friday to Sunday. Commencing in 2021 she was to spend half the school holidays with the father. Until the father had his own appropriate residence the child’s time with him was to take place at the home of the paternal grandparents. The mother has not requested a hair follicle test.
This graduated time arrangement was interrupted in December 2020 when the mother unilaterally relocated to Town J, some five hours by road from Town C and then later to City F, which is about 4 hours by road from Town C.
In her trial evidence the mother said that her relocation, with Mr E, was precipitated by what she believed was stalking or harassment by a former partner, Mr K.
The mother said that over a period of about two weeks before her departure someone pounded on the door during the night at the unit where she and Mr E lived, the electricity supply was interrupted and she was afraid. She said at the end of the two-week period she found her car tyres slashed.
The mother had previously obtained a domestic violence order against Mr K but she said she reported the alleged breaches to the police on only one occasion. She told the court that the police said that there was no evidence to show Mr K's involvement and suggested to her that she may wish to install security cameras if she wished to obtain some evidence.
In February 2021 the father sought a recovery order. He also raised allegations that the mother had mistreated X by striking her on the leg with a wooden spoon causing a bruise and used other inappropriate forms of discipline. He reported this to the child welfare authorities. The mother responded to the application, referring to her fears about Mr K, and asserted that the father had agreed to the relocation on the basis that the time X spent with him would not change. She said X was, in fact, spending time with her father and that the parties had adopted a changeover point midway between where they lived.
In March 2021 an order was made for a child inclusive conference memorandum and for the child to be represented by an independent child’s lawyer. The matter was adjourned to May 2021 for further consideration.
The child inclusive conference memorandum recorded the child as saying both her parents were “cool” and that she loved her paternal grandmother. She complained about the time involved in the travel to spend time with her father. The father raised the allegation that X had been hit on the leg with a wooden spoon, leaving a bruise. The mother told the family consultant she was not safe in Town C because of harassment but she had no evidence that Mr K was responsible. She said she had asked the police not to contact him.
In May 2021 the matter was adjourned to 23 June 2021 for interim hearing. On that day an order was made that the mother was to return the child to the Town D area no later than 12 July 2021. The child was to be re-enrolled in her former school, L School, Town D. A family report was ordered.
The mother initially complied with the orders by placing X with the maternal grandparents for about six weeks. The mother continued to reside in City F. X returned to City F every second weekend to be with her mother and spent every other weekend with the father in accordance with the existing consent orders. The mother then had a falling out with the maternal grandparents and the child was removed from their home and placed in the home of a friend of the mother's where she remained for another six weeks.
Thereafter the mother removed the child from her school and enrolled her in a school in City F. The child resumed residing with the mother. Although she did not comply with the order about X’s school the mother complied with the previous time orders by travelling each alternate weekend to deliver the child to Town C.
This was the situation when the trial commenced before me on 15 March 2022. The father’s psychiatrist and the Court Child Expert (“Child Expert”) completed their evidence on that day. After the father gave some evidence it became apparent that the matter was not ready to proceed further. I was told by counsel for the father that he sought a finding that the mother had assaulted the child with a wooden spoon, although this allegation had not been substantiated by child welfare authorities and the police had did not charged the mother with any offence.
The police material was the subject of a subpoena but this had not, it appeared, been inspected by the parties before the trial. It transpired that the police had conducted two forensic interviews of the child in relation to the allegation. In the first interview, at Town D, the child alleged she had been hit by the mother with a wooden spoon leaving a bruise. In the second interview, in City F with a different police officer, the child substantially resiled from that allegation and suggested the father had “put it into” her “head”. The parties sought further time to consider this material. This material had not been available to the family consultant when she completed her family report and both parents had since changed their place of residence. The trial was adjourned to allow the parties to examine this material. I also made an order for an updated family report. In view of the opinion of the Child Expert that the child found the long, fortnightly journey between City F and Town C burdensome, I also made an order to reduce the time spending to once a month.
The trial resumed on 23 May 2022.
The Evidence
The father’s psychiatrist, Dr M, gave evidence that the father had suffered from paranoid schizophrenia, epilepsy and related psychosis, and cannabis misuse. He said that the father was treated with medication and each illness was in partial or complete remission. Dr M said the father was functional in day-to-day terms. He said the father did not have any particular functional limitations while he complied with his medication regime. He said that, although it was sometimes difficult for a psychiatrist to assess, he knew of no evidence to suggest the father was non-compliant with his medication regime. He said the father’s last acknowledged cannabis use was in July 2020 when the father had told him he had reduced his consumption significantly but was occasionally still using it. There was no evidence of use of other illicit drugs. He said the father had good insight into his condition. He said he had not observed the father with his daughter but saw no reason for supervision of the child’s time with the father. I accept Dr M’s observations and opinions.
The Family Reports
Ms N, psychologist and Child Expert gave evidence. She prepared two family reports: the primary report dated 22 August 2021 and a follow-up report dated 28 April 2022.
The Child Expert interviewed the mother. The mother said she had commenced a relationship with the father when she was 13 years old and became pregnant at 15 years old. She and the father had not lived together and the relationship ended when the child was 6 months old. There was no family violence in the relationship. Her next relationship, with Mr K, was marked by serious family violence, including an instance where he choked her to the point of unconsciousness. She said that she had not reported the violence to the police because Mr K threatened her with harm if she did. She said she met her current partner, Mr E, online in 2019. She said Mr E is a protected person under a domestic violence order against his former partner. She said that Mr E’s former partner had breached the order by attacking him with a vacuum cleaner pipe but she was not aware of any other history of family violence involving Mr E.
The Child Expert interviewed Mr E, who told her that he cared for his daughter, H, from a previous relationship because her mother was mentally ill and did not maintain contact with her daughter. Mr E said he had some minor criminal history for being drunk and disorderly. He also said there had been some domestic violence concerning his former partner with police involvement.
The Child Expert interviewed the child. X said her “real” father lived in Town C and it was “cool there” and it was her favourite place. She said it was “good in both places”, which at that time was a reference to Town J. She said she loved both her parents and she did not want to have to choose which parent was her favourite. She worried that her mother would be sad if she said she wanted to live with her father in Town C. She said she had lived with her father and paternal grandmother. She said she gets along with everybody. She said her maternal grandmother is “cool”
The Child Expert interviewed the father. She noted that his speech was slow but otherwise his presentation was appropriate and no abnormality was apparent in his perceptions. The father said he had little relationship with his own father but had a good relationship with his mother and her partner who lived in Town C. The father alleged the mother was bossy and controlling and, after their relationship had ended, had arranged for her then partner, Mr K, to assault him. The mother denied this allegation. He said that he had tried to maintain a relationship with X but the mother had made this difficult for him. He said that once the mother began her relationship with Mr E she stopped X spending time with him. He said that prior to that things had been going well and he was spending a lot of time with X. The father said that the mother did not tell him of her relocation to Town J. He had heard this from X over the phone. He understood from the mother that she moved because of fear of Mr K. The father said that he managed his mental health by regular attendance on his GP and psychiatrist. He had no criminal history and no history of family violence in his relationships.
The Child Expert interviewed the paternal grandmother, Ms O. She was generally supportive of her son. She said that while he was without a driver’s licence she or her partner would drive X to and from school as required. She said that her son was otherwise capable of caring for X without supervision, and he was able to cook and perform other domestic tasks. Ms O said she and Ms P, the maternal grandmother, get on well. She said that X and the maternal grandmother have a good relationship. Ms O said she had been prosecuted for supplying alcohol to a minor but she said she had no other criminal history.
The Child Expert interviewed Mr Q, Ms O’s partner, whom she described as standing in the role of paternal grandfather. Mr Q said he supports the paternal grandmother and the father by transporting X to and from school as required. He said he had no criminal or mental health history.
The Child Expert conducted an observation of X, the father and paternal grandmother. X was excited to see her father and grandmother, who joined the observation after 10 minutes. X interacted easily with her father and grandmother and was observed to have a good relationship with both.
The Child Expert interviewed the maternal grandmother by telephone. The maternal grandmother said she had remained in contact with the father and the paternal grandmother who had facilitated her contact with X without the mother’s knowledge. The maternal grandmother said she had not spoken to the mother since about November 2020 except for a brief communication in March 2021. Notwithstanding this, the maternal grandmother told the Child Expert that X was currently living with her after the mother dropped off at her home and “didn’t say a word”. X at that time was back at school in Town D and, according to the maternal grandmother, doing well. The maternal grandmother said that she believed the mother had become alienated from her family after beginning her relationship with Mr E. The maternal grandmother said that her relationship with X is a positive one. She also said that she was able to negotiate the time X spent with her with Mr Hubb. She confirmed that X loves her father and loves being with him.
The Child Expert also referred to documents relating to the medical history of the father and child welfare documents recording a child protection history for Mr E’s daughter H and her mother, raising concerns about family violence and concerns about H’s mother’s mental health. The child protection history also referred to concerns raised in 2014 when X was living with the mother and Mr K. Mr K was described as being verbally abusive towards the mother and on one occasion, when he was in a bad mood, knocking X over and causing her to cry. A notification in 2015 referred to Mr K assaulting the mother on two occasions when X was present. There were concerns that the mother had left X alone at home for between eight and nine hours and there was inadequate food in the house. The mother denied these allegations, including denying family violence. These concerns were recorded as unsubstantiated.
The Child Expert also referred to a child welfare notification, presumably from the father, in December 2020 that X had complained of being hit by her mother with a spoon.
She also referred to information from the Queensland police disclosing that Mr E had a criminal history including wilful damage in 2015, affray in 2017, and contravention of a domestic violence order in 2018. She noted that there was a current domestic violence order concerning a former partner of Mr E with him as the respondent. The aggrieved person is said to have informed police that Mr E head-butted her while both were under the influence of alcohol. There was also domestic violence incident report concerning the mother and an unnamed former partner.
The Child Expert also examined the school records for X. At that time, she was enrolled at R School, Town J. The enrolment information listed Ms Lancaster as the mother and Mr E as the father. The enrolment records said that X’s preferred family name was “Mr E”. The Child Expert examined the records from L School in Town D for the period 2018 to the end of 2020, prior to the mother’s relocation to Town J. The records showed X’s positive progress at school.
Under the heading “Assessment and Opinion” the Child Expert said that the mother’s unilateral relocation placed significant financial, physical, and emotional strain on everyone concerned, particularly X who was required to sit in a car for 10 to 12 hours every second weekend as she transitioned between parents. She said the mother’s conduct in placing the child with the maternal grandmother, so that there was technical compliance with the interim order to reinstate X at her former school, while she continued to reside in City F, must have been very confusing and distressing for X. She considered that it indicated a lack of awareness and insight by the mother into the needs of the child. Consistently with that, she observed that the child presented as “an articulate, happy and yet somewhat confused girl who clearly loves both her parents”. She also observed that there was evidence from the child inclusive memorandum that X was aware of her mother saying “bad” things about her father but no evidence of similar comments being made in the father’s household. She thought the child was probably internalising her anxiety about the parental conflict.
The Child Expert assessed the father as child focused in his concerns about the child, although he has some vulnerabilities related to his medical history. She recommended, as has occurred, that there be some direct psychiatric evidence about the father’s condition. However, on the material before her she did not consider there were risk factors in the capacity of the father to parent X. She considered the fact that the father resided with the paternal grandmother was a protective factor and that there were adults available who could transport X to and from school.
The Child Expert believed that it was in X’s best interests to remain living in the Town D/Town C area. Should the mother refuse to relocate to be the child’s primary carer she said the court should consider whether the child should live with the father, supported by the paternal and maternal grandmothers. If the child were to live with the father and the mother were to remain living in City F she recommended that the child should spend no more than one weekend a month with the mother due to the burden of travel on the child.
The Child Expert prepared an updated report dated 28 April 2022. She interviewed the father again. He reported that he had moved out of his mother’s home and lived nearby in a share house with his stepfather’s son, Mr S. He said he is still supported by his mother and stepfather. He said he receives an income of $1,000 a fortnight from a disability pension. He said Mr S, who was 21 years old, had recently left City T where he had been in trouble for driving an unregistered car. Mr S was also the respondent to a domestic violence restraining order obtained by his former girlfriend. The father said he did not know of any concern about Mr S by the Department of Child Safety, Youth and Women (“Child Safety”).
The father said X had her own bedroom in the house. He said X had spent all of the April and Easter 2022 school holidays with him. He again reported that X had complained that she had been hit by the mother using a spoon but she didn’t want him or the court to find out because she would be punished by her mother.
The Child Expert’s observation of X and the father showed what appeared to be a natural and unforced interaction.
The Child Expert described events prior to her interview of X. The Child Expert expressed concern that the mother had arrived very early, before X was interviewed by the Child Expert, and had taken X downstairs and away from the care of the paternal grandmother. The Child Expert asked the mother to return X and noticed that X was hesitant about returning to the office. The Child Expert was concerned that the mother arriving early may have affected what the child said in her interview.
The Child Expert interviewed X. X said that when her mother had removed her from the maternal grandmother and placed her with her mother’s friend she had begun to feel lonely. She said she had been much happier and felt better at her “nanny’s house”. The Child Expert asked X about why she had been interviewed by the police. X said that she had been hit with spatulas “because I was disrespectful”. X said that Mr E is nice but sometimes “he gets angry”. She said he had become angry and smashed the bathroom window, cutting his hand. X said that during the school holidays she had spent time with her nana and father. She said she was also able to see her maternal grandparents whom she likes very much. She said that her father now lived in a different house where she has her own room and there are two dogs. She said a man named Mr S also lived there and he was “very nice”. She said she enjoyed living with her father and she “likes seeing her nana and nanny”. X said that “Mum doesn’t want me to see nanny because she is worried she’ll kidnap me”. X then said “I did see nanny but if mummy finds out she’ll get cross, if I say things (sic) because she gets angry a lot”.
The Child Expert interviewed the mother. The mother described the maternal grandmother as a “lunatic” and said her falling out with the maternal grandmother stemmed from the maternal grandmother’s attempt to exercise what the mother described as “parental responsibility” for X. The mother denied smacking or hitting X so as to cause bruising. She denied that Mr E was an angry person but said that “he is emotional and passionate about his family”. The mother told the Child Expert that she was not seeing anyone for counselling, had not had any legal advice and did not want representation for the trial.
The Child Expert observed X, the mother and Mr E. The mother did not bring the other children with her. She noted that the mother sat on the ground and carpet with X and Mr E sat back in a chair, initially showing little involvement or interaction. Eventually he sat on the carpet and joined in with a game of cards. She noted that X referred to Mr E as “dad”.
The Child Expert interviewed Mr E. He said he does not “get overly angry” and “everyone gets angry at times”. Mr E said he drinks alcohol but not around the children. When asked how much he drinks Mr E said “A fair few”. He said he could drink a 10 pack of beers and does this approximately every couple of months.
The Child Expert reviewed additional filed documents. She noted a child protection history for Mr S, the father’s housemate, from the time he was 12 months old showing a record of substantiated risk relating to the unhygienic living conditions of his mother’s home.
The Child Expert reviewed X’s school enrolment documents from City F School. She noted that both parents were listed on the enrolment form and the emergency contacts listed were the mother and a Ms U who was said to be an aunt. It was also noted that on the school enrolment X is listed as an Aboriginal child. The mother was asked about this in cross-examination and stated that while neither she nor the father are of Aboriginal descent Mr E is of Aboriginal descent and she therefore recorded X as an Aboriginal child.
The Child Expert also reviewed the videotapes of the two forensic interviews of X. The Child Expert described the interviews and set out set out her impressions. However, as the video recordings of the forensic interviews were received into evidence and I have viewed them I will set out my findings about those a later point.
The Child Expert then set out her assessment and opinion. She expressed concern about the difficulties and confusion stemming from X’s continual changes in living and schooling arrangements. She noted that the mother had maintained she would not return to the Town D area regardless of what order the Court makes for X. The Child Expert observed, correctly, that the mother was in breach of court orders when she took X out of school in the Town D area and enrolled her at City F. She expressed concern that X was significantly confused and distressed by these events and changes in her living arrangements, particularly the removal from the maternal grandparents and the discord between her mother and the maternal grandmother. The Child Expert was concerned that the mother made inappropriate and confusing remarks to X about the maternal grandmother wanting to kidnap her. She also expressed concern that in the first police interview X disclosed that her mother’s friend’s son was mean to her and she preferred to remain living with the maternal grandparents. The Child Expert concluded that the mother’s removal of X from the maternal grandparent’s care was not in the best interests of X.
The Child Expert had numerous concerns about X living with the mother. The most significant of these concerns related to X’s physical and emotional safety. The Child Expert was of the view that X had suffered significant physical harm from the mother after being smacked with a kitchen implement, causing bruising. She said X is scared she will be punished if the mother becomes aware that she is speaking about these matters. The Child Expert also expressed concern that, while there is no evidence of the relationship between the mother and Mr E being characterised by family violence, there is some indication of the mother and Mr E both separately displaying anger which was observed by X.
The Child Expert was also concerned by what she considered was the mother’s continued lack of insight into the effects of moving X and the impact on her relationship with others, her schooling and education and general sense of stability and security. She was of the view that the mother, in deliberately breaching court orders, was more focused on her own needs than on X’s stability, including X’s relationships with the father and the paternal and maternal grandparents.
The Child Expert continued to assess the father as child focused in his concerns about X. The Child Expert, while acknowledging the father’s medical history and associated vulnerabilities, was of the view that the father had planned appropriately for X to return to his care, including living close to a state school. She was also of the view that he was willing to support X’s relationship with the maternal grandparents which, in her view, would not be possible if the child continues to live with the mother.
The Child Expert was of the view that it is in X’s best interests to live in the Town C/Town D region with the father, if the mother was not willing to relocate to share care, in order to have meaningful relationship with both maternal and paternal families. If the mother was not prepared to relocate, the child should spend one weekend a month with the mother in the Town C area and additional time during school holidays.
The Child Expert recommended that if the mother is prepared to relocate to the Town C area the child should live in a week-about arrangement with both parents.
The Child Expert also recommended that the parents undertake not to use physical discipline on X and that X be provided with some counselling to assist her to understand her relationships with each parent and extended family and any safety concerns in the mother’s household.
The Child Expert, Ms N, was cross-examined and did not depart significantly from the observations and opinions in her reports. She was a convincing witness. Her reports were detailed, thorough and her conclusions balanced and justified by the evidence. I give Ms N’s evidence great weight.
Child Safety Notifications
A notification was made to Child Safety on 27 December 2020, presumably by the father. It was alleged that X reported being hit by her mother with a spoon or similar implement, leaving some small, dark bruises on her leg. It was also alleged that X claimed that her mother verbally abused her, calling her “stupid” and a “bitch”. According to the notifier the bruises had faded within a couple of days. Child Safety screened the matter out.
Another notification was made on 3 March 2021 which referred to the mother’s unilateral relocation and alleged that X had complained of verbal abuse. This was screened out.
On 13 June 2021 a notifier alleged the child complained of being struck with a spoon or spatula by the mother and of verbal abuse. This was not substantiated.
On 3 October 2021 the father said that he noticed a bruise on the child’s right upper thigh. He took a photograph of the bruise. He reported this to Child Safety and they in turn referred the complaint to police on 9 October 2021.
The Police Interviews of the Child
The video recordings of the two forensic interviews of the child were put in evidence. The police first interviewed the child on 9 October 2021, apparently in Town D. The child told the interviewing officers that her mother had hit her with a spoon after an argument. She said she had tried to avoid being hit but her mother struck her three times. She also alleged that her mother had punched her. She said that her mother was later apologetic. She was asked if she had been hit on other occasions with a spoon and she said she "probably". The child also said various other things about her situation which need not be referred to for present purposes.
A different police officer interviewed the child in City F on 12 November 2021. The reason for the second interview is unclear. It was put to the mother in cross-examination that she had arranged the second interview with the intention of having the child retract the allegations. The mother denied that. I am unable to make a finding on this point.
In the second interview X said, in relation to being hit, that her mother was "not doing that anymore" and it "doesn't hurt anymore, it's all fine". She said her mother used her "bare hand". The officer asked, "Did your mum hit you?" The child answered, "Maybe when I was two or three." She was asked about the bruise and said she did not know how she got it. She was asked whether anyone had told her what to say and, after some uncertain answers, the child said, "My father got in my head". The officer said “What did he say?” The child answered, "Say your mother hit you". She was also asked how she liked her time with her mother and she answered, "Its good". She was asked, “Does your mum smack you?” She answered, "Not anymore". She was asked whether the mother had smacked her when she was naughty and she said “No”. Some further answers seemed to suggest that she got the bruise while at her mother's house.
In view of the equivocal nature of the child’s statements the police decided not to bring a charge.
In Briginshaw v Briginshaw (1938) 60 CLR 336, Dixon J (as he then was) at p 362 warned that serious allegations should not be found proved on “… inexact proofs, indefinite testimony, or indirect inferences …”. This principle is incorporated in s 140 of the Evidence Act 1995 (Cth). The allegation against the mother, if true, would likely amount to an aggravated assault. I do not believe I can reach a conclusion, to the requisite standard, about whether the mother struck the child with a spoon or other implement, leaving bruise on her leg, or whether the mother punched the child.
However, the court must identify the best interests of the child and the related issue of whether the mother’s conduct or other matters constitute an unacceptable risk of harm to the child. Both these issues require a consideration of the allegations. It may be suspected that the child's statement to police and the first interview was truthful and the second was not. The child was clear and forthcoming in the first interview. In the second she was reluctant and unsure. It is noteworthy that in the second interview the child did not resile entirely from her earlier statement. The child was concerned to say in the second interview that her mother only struck her with a "bare hand".
Suspicion may, in part, be based on the evidence of the maternal grandmother who said she saw the mother on one occasion yelling and swearing at the child, her sister and stepsister in a frightening way that left the children obviously fearful. The maternal grandmother said she remonstrated with the mother and the mother, in effect, told her to mind her own business. In cross-examination the mother did not suggest to the maternal grandmother that this evidence was untruthful. Rather, the mother cross-examined the maternal grandmother about her, the maternal grandmother’s, use of corporal punishment on the mother as a child. It was put to the maternal grandmother that this included striking the mother with a wooden spoon, slapping her on the face on one occasion and apparently, on at least one occasion, striking her with a belt or belt buckle. The maternal grandmother replied that she only ever used a spoon to strike the mother and her siblings as children. She said the belt was used by the maternal grandfather.
The father gave evidence. It was apparent that he was mistaken about some details of his evidence and I doubted that he had read his affidavit, or understood it, thoroughly before giving evidence. There seemed to be little evidence in the witness box of his medical conditions, although his speech was slow and he was not articulate. His evidence was plausible and I accept he endeavoured to be truthful. There was no suggestion that he was not committed to the best interests of the child.
The paternal grandmother and her partner gave evidence. I am satisfied that, consistently with the observation of the Child Expert, they have a close relationship with X and are, and will continue to be, supportive of the father.
The maternal grandmother and grandfather gave evidence. I am satisfied that both are focussed on X’s best interests. I am satisfied that X has a close relationship with the maternal grandmother. I am satisfied that her presence in X’s life is a positive and protective factor. Although it was not the subject of evidence, I would expect from the general tenor of her evidence, that the maternal grandmother no longer views corporal punishment of children as appropriate. In any event, there will be an order about this.
Mr S, the father’s housemate, also gave evidence. He is 21 years old. He said he gets on well with X. He said they sometimes go to the park. He said neither he nor the father drank alcohol around X. He said they go the “man cave” if they drink. He said that he has not seen the father take illicit drugs.
The mother gave evidence. She denied ever striking or punching X. She said that she sometimes punished X for bad behaviour by sending her to bed. Although she smacked X in the past she does not do so anymore. She agreed that Mr E broke a window but said this was an accident and she denied that Mr E had broken the window in anger or injured himself doing so. She accepted that X loved the maternal grandparents but said they belittle her to X. She did not see that she should encourage the relationship in those circumstances. She saw no need to promote X’s relationship with the paternal grandparents because, she implied, they would see X when she was in her father’s care. The mother denied being unable to regulate her anger. She saw no necessity for help or counselling in that regard.
The mother said her relationship with the maternal grandmother was strained, particularly after she left Town D, when the maternal grandmother began to support the father. She said she found her mother’s involvement in her life to be “oppressive”. She said she met Mr E and began a relationship with him in 2019. She said they began living together soon after in her rental home. She and Mr E left Town D in December 2020 and, after Mr E resigned his employment, moved to Town J where Mr E has family. They then moved to City F in June 2021 where Mr E found employment.
The mother’s explanation for her departure from Town D was that she believed Mr K, her former partner, was harassing her and stalking her. She said she had obtained a domestic violence restraining order against him in November 2019. She said in cross-examination that despite believing Mr K breached the order “… I notified the police but I didn’t make an official report on it”. She said she was concerned that if she took it further she would simply escalate matters and Mr K would then know he was having an effect and she didn’t want to give him “that satisfaction”. Later she said that the police told her she had no evidence that Mr K was responsible and suggested she get security cameras.
I find the mother’s explanation about these matters unsatisfactory and aspects of it are implausible and unconvincing.
Ms V, the mother’s friend, gave evidence. She said X and the mother stayed with her for a period after the mother removed X from the maternal grandparents. Otherwise her evidence was peripheral and I give it limited weight.
Ms W, who supported the mother, gave evidence. Her evidence was largely about peripheral issues and I give it limited weight.
Mr E, the mother's partner, gave evidence. Mr E is employed in a factory in City F. When the mother left Town D in December 2019 he resigned his employment in Town D and moved with the mother, X and the other children to Town J and then City F. Mr E has a criminal record for some minor offences, including wilful damage and fighting in a public place. In 2017 he was subject to a domestic violence restraining order in favour of his former partner, the mother of H. It appears on that occasion his partner complained that he assaulted her, giving her a black eye.
On 3 October 2020 the police recorded that they were called to the home of the mother and Mr E after he stabbed himself in hand with a steak knife causing a "small deep cut requiring stitches" according to the police report. The police report recorded that the mother had opened Mr E's phone and discovered messages to other women. When she tried to talk to him about it he stabbed himself in the hand. He was assessed and hospitalised overnight. Mr E admitted this event had occurred although he professed not to recall the reason for it. He denied any other instances of self-harm. He denied breaking a window in anger and cutting his hand.
I have reservations about the reliability of Mr E’s evidence. However, on his own admission Mr E has a history of involvement in family violence and a significant incident of self-harm. These matters are of concern.
All these matters raise questions of risk for this child. I am satisfied that for the purposes of section 60CC(2)(a) of the Family Law Act 1975 (Cth) (“the Act”) there is a need to protect this child from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence. This issue is considered further below.
The Legislative Pathway
The mother wishes to make her relocation to City F permanent. In a case involving an issue of relocation the Court is bound to follow the same legislative pathway as in other parenting cases. Relocation is not to be treated as a discrete issue in the making of parenting orders: Morgan & Miles (2007) 312 FLR 114, [72], [73], Palmer & Hammer (No.2) [2011] FamCAFC 196, [28].
The core principle to be applied is the “paramountcy principle”. The Court must have regard to the best interests of the child as the paramount, but not sole, consideration: Starr & Duggan [2009] FamCAFC 115.
The objects of Part VII of the Act are set out in section 60B(1). Subsection 60B(1)(a) provides that it is an object of the Act to ensure that the best interests of children are met by:
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;…
Section 60B(2) provides that the principles underlying the objects of the Act (except when it is or would be contrary to the child’s best interests) include:
(a)children have the right to know and be cared for by both of their parents …; 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 …; and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children …
Section 60CA requires that a Court must regard the best interests of the child as the paramount consideration when deciding to make a particular parenting order in relation to a child. In determining what is in the child’s best interests, the Court must consider the matters listed in section 60CC. Section 61DA requires the Court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child unless there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or family violence.
Section 65D(1) provides that the court may make such a parenting order as it thinks proper, subject to the provisions of sections 61DA and 65DAB (concerning parenting plans).
Section 65 DAA(1), which is headed “Equal time”, provides:
… if a parenting order provides (or is to provide) the child’s parents are to have equal shared parental responsibility for the child, the court must:
a)consider whether the child spending equal time with each of the parents would be in the best interest of the child; and
b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
c)if it is, consider making an order to provide (including a provision in the order) the child spend equal time with each of the parents.
Section 65DAA(2), which is headed “Substantial and significant time”, provides:
… if
a)a parenting order provides (or is to provide) the child’s parents are to have equal shared parental responsibility for the child, and
b)the court does not make an order (included provision in the order) for the child spend equal time with each of the parents;
the court must:
a)consider whether the child spending substantial and significant time with each of the parents would be in the best interest of the child; and
b) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
c) if it is, consider making an order to provide (including a provision in the order) the child spend substantial and significant time with each of the parents.
Section 65DAA(5) provides that in determining what is reasonably practical for the purposes of subsections (1) and (2) the court must have regard to:
a)how far apart the parents live from each other; and
b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial significant time, with each of the parents; and
c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
d)the impact that an arrangement of that kind would have on the child: and
e)such other matters as the court considers relevant.
Section 60CC(1) of the Act provides that in determining what is in the child’s best interests the court must consider the matters in subsections (2) and (3). Subsection (2) provides that 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.
Subsection 60CC(2A) provides that in applying the considerations in subsection (2) the court is to give greater weight to the considerations set out in paragraph (2)(b). I am satisfied that requirement is engaged in this case.
Although I have decided not to make a positive finding that the mother hit the child with an implement causing bruising or punched her, I am satisfied that in the context of this case there is a need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The evidence of the child’s complaints is of real concern. The child made a complaint to the father on 3 October 2021; she repeated the claim, and provided plausible detail, in a police interview on 9 October 2021; she resiled partially from that claim in another police interview on 12 November 2021; but repeated the complaint in terms consistent with the first police interview to the Child Expert on 12 April 2022.
While the striking of the child with a spoon, if true, did not cause lasting physical injury it would have been distressing to the child and it was unnecessary. Further, it likely would have constituted, by contemporary standards, an aggravated assault rather than reasonable parental discipline. The child’s withdrawal of the allegation is also of concern. It is possible to speculate that she withdrew it because it was untrue and she thought better of it. On the other hand, it is possible that the allegation is true but she withdrew it because she felt that it would cause difficulty for herself or her family. It is also possible that it is true but she felt pressured, by her mother, to withdraw it. The mother denied hitting X with a spoon or punching her but I have reservations about the mother’s reliability as a witness.
The mother did not show any ameliorating indication of a willingness to participate in counselling to address what I am satisfied is a tendency to a very angry response to the children. She said she had stopped using corporal punishment but her unsatisfactory evidence about these matters did not suggest particular insight.
I am also satisfied the mother showed a lack of insight into X’s needs when she unilaterally relocated to Town J and then City F, even though the mother asserted that X was still able to see her father regularly. X was taken from a school where she was progressing satisfactorily in late 2020, enrolled in a school at Town J in early 2021, returned to Town D to her original school pursuant to a court order in mid-2021, precipitously placed by the mother with the maternal grandparents and then, after a dispute with them, she was placed with Ms V. The mother then, in breach of Court orders, removed X from school in Town D and enrolled her at school in City F, where she remains. These changes must have been very confusing and unsettling for X. I am satisfied they were distressing and probably psychologically harmful for X. I am not satisfied that the mother had any reasonable justification for her actions.
The overall picture is one of concern about risk. I am concerned about the mother’s anger and her capacity to regulate it. I am concerned about Mr E and his history of family violence and violent self-harm. I consider that the risk to X in her present circumstances is unacceptable. I consider that risk can be reduced to an acceptable level only if X resides in Town C, with, or close to, the father and the maternal and paternal grandparents, each of whom, I am satisfied, has a genuine concern for the child and her welfare and will be in a position to monitor her welfare if she lives nearby.
Turning to the matters in s60CC(3) of the Act:
(a)In relation to any views expressed by the child, X said she loves both parents. She said to the Child Expert that she would be worried about her mother’s response if she said she wanted to live with her father. This may indicate a preference for living with her father. However, I am satisfied that X’s remarks to the Child Expert indicate a clear preference to live near her father and extended family in Town C.
(b)In relation to the nature of the relationship of the child with each of the child’s parents and any other persons, including a grandparent or other relative of the child, the child is in the primary care of the mother and spends time with the father. The child has developed a close relationship with her father despite what appears to have been limited time with him. She has a close relationship with the maternal grandparents, particularly the maternal grandmother, and the paternal grandmother and her partner. Each of the child’s grandparents are genuinely concerned for her welfare and will support, in particular, the father should X live with him.
(c)In relation to the extent to which each of the child’s parents has taken, or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time and to communicate with the child, both parents seek to participate in making decisions about the child. The mother by her unilateral relocation interfered with the father’s ability to participate in making decisions about major long-term issues in relation to the child, particularly education. Despite this, the father has conscientiously endeavoured to spend time with and communicate with the child.
(ca) In relation to the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child, this was not the subject of evidence. The father is dependent on a disability pension and his capacity to maintain the child is limited.
(d)In relation to the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his parents, or any other child, or other person (including any grandparent) with whom the child has been living, there was little or no evidence about X’s relationship with her four-year-old half-sister. It is undoubtedly a significant relationship. If the mother decides to return to Town C/Town D that relationship will continue unchanged. Currently, with X living with her mother in City F, her relationship with her grandparents is negatively affected. I am satisfied these are important relationships for X which will not be promoted by the mother. There was no evidence about X’s relationship with Mr E’s daughter, H.
(e)In relation to the practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis, the mother’s proposal will substantially affect the child’s right to maintain personal relations and direct contact with his father.
(f)In relation to the capacity of each of the child’s parents and 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, I am not satisfied that the mother is adequately able to provide for the needs of the child. Her unilateral relocation and deliberate breach of a court order indicate a lack of insight into the child’s needs. The father, although not the primary carer of the child, impressed the Child Expert as child focussed. I accept that opinion. There was no suggestion that he was unable to care for the child on a day-to-day basis. I am satisfied the grandparents are able to provide for the child’s needs and will assist the father while he resides on Town C. There was no suggestion he intends to live elsewhere.
(g)In relation to the maturity, sex, lifestyle and background of the child and of either of the child’s parents, there are no relevant matters.
(h)In relation to if the child is an Aboriginal or Torres Strait Islander child, the child is not an Aboriginal or Torres Strait Islander child.
(i)In relation to the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents, see (e) above.
(j)In relation to any family violence involving the child or a member of the child’s family, this matter is discussed above. I am satisfied that the child has been exposed to family violence. While I have not found that the child was hit with an implement or punched by the mother I consider that other matters fall within the definition of family violence. The mother’s unilateral relocation has prevented the child from keeping connections with her family. Mr E’s violent self-harm also constituted family violence.
(k)Family violence orders are not applicable to the parties in this case.
(l)In relation to 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, the court will attempt to make such an order.
(m)In relation to any other relevant fact or circumstance, there are no other relevant facts or circumstances.
As I have found that the mother and Mr E have engaged in family violence the presumption of equal shared parental responsibility does not apply pursuant to s 61DA of the Act. The father seeks an order for sole parental responsibility. However, the mother is engaged in the child’s life and will continue her engagement and I consider an order for equal shared parental responsibility is appropriate. The court must therefore consider whether the child spending equal time with each of the parents is in the child’s best interests and is reasonably practicable and, if not, whether the child spending substantial and significant time with each parent is in the child’s best interests and is reasonably practicable.
Both the father and the Independent Children’s Lawyer (“ICL”) sought orders for equal time if the mother relocated to Town C. The mother said it would not be easy to return to Town C, pointing to employment and housing issues. She indicated a willingness to consider return but did not make any definite proposal. In the circumstances, the ICL helpfully drafted a minute of proposed orders dealing with the range of the mother’s possible responses to an order that the child live with the father: if she did not leave City F the child would live with the father and spend time with the mother once a month and half holidays; if she did not move to Town C but returned to within 40 km (which would include Town D) then the child would live with the father and spend time with the mother on alternate weekends and holidays; and if the mother returned to Town C (or within 10 km) then the child would live in a shared care arrangement. Subject to one exception dealt with below, I consider that orders in those terms properly address the bests interests of the child.
The ICL’s proposal is that the child spend time with the mother once every 4 weeks in City F should the mother continue to reside there. This will involve a car journey of at least 4 hours each way, with the child spending one night in City F. The Child Expert, while expressing the view that this was better than a journey each alternate weekend, was still concerned that this would be burdensome for the child. I agree. I do not propose to make such an order. Nevertheless, if the mother wishes to travel to Town C I consider that the child should be able to spend time with her every 4 weeks. The mother has friends or contacts in Town C and Town D and this may be practicable if the mother takes up the option.
I certify that the preceding one hundred and four (104) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young. Associate:
Dated: 28 June 2022
0
4
0