Lang and Womack

FEDERAL CIRCUIT COURT OF AUSTRALIA

LANG & WOMACK

[2017] FCCA 1907

Catchwords:
FAMILY LAW – Parenting – Relocation case – Town B, Queensland to Town C, New South Wales – allegations of family violence – educational issues – health issues.

Legislation:

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

61D(A), 65DAA

Applicant:

MR LANG

Respondent:

MS WOMACK

File Number:

BRC 11296 of 2015

Judgment of:

Judge Howard

Hearing date:

26 and 27 July 2017

Date of Last Submission:

27 July 2017

Delivered at:

Brisbane

Delivered on:

27 July 2017

REPRESENTATION

Counsel for the Applicant:

Dr Kasselis

Solicitors for the Applicant:

Gary Rolfe Solicitors

Counsel for the Respondent:

Ms Cullen

Solicitors for the Respondent:

Rhonda Sheehy & Associates

Counsel for the Independent Children’s Lawyer:

Ms Christie

Solicitor for the Independent Children’s Lawyer:

Legal Aid Queensland

ORDERS

That the children [X] born (omitted) 2010 and [Y] born (omitted) 2011 (“the children”) live with the Mother.
That the Mother and the Father (“the parents”) shall have equal shared parental responsibility for the major long term issues of the children.
That the Father spend time with and communicate with the children at all times as may be mutually agreed and failing agreement as follows:
(a)Each alternate weekend during School Terms from after school Friday to 5.00pm Sunday to include long weekends where those weekends fall at such time and, in particular, to commence 5.00pm Thursday if the Friday is a public holiday and to terminate 5.00 pm Monday if the Monday is a public holiday;
(b)From 9.00am to 5.00pm each Father’s Day should Father’s Day not fall on a period of time as set out in paragraph 3.a. hereof, provided that where Mother’s Day falls on such a period, time cease at 9.00am Mother’s Day;
(c)Subject to the Father’s availability to parent the children at all reasonable times, for one half of all Queensland gazetted School Holidays and, in particular, for the first half in even years and for the second half in odd years subject to paragraph 3. d. hereof provided that in the event the Father is unable to exercise his time he provide reasonable notice to the Mother by text message, or otherwise in writing, AND in such event that time set out in paragraph 3. a. hereof continue through his share of the School holidays;
(d)From 3.00pm Christmas Eve to 3.00pm Christmas Day in even years with no time to occur from 3.00pm Christmas Day to 3.00pm Boxing Day in those years and from 3.00pm Christmas Day to 3.00pm Boxing Day in odd years with no time to occur from 3.00pm Christmas Eve to 3.00pm Christmas Day in those years;
(e)By telephone each Tuesday and Thursday during school terms with the Father to instigate the telephone call to the Mother’s mobile telephone 6.00pm and with the Mother to facilitate the telephone call by having the children available to answer the telephone call at that time.
That notwithstanding any other Order the children are to spend time with the Father on the birthday of [C] born (omitted) 2016 from 9.00am to 5.00pm if such day falls on a weekend or school holiday, or from after school until 8.00pm should such day fall on a school day.
That for the purposes of changeover the father shall collect the children from the children’s school at the commencement of time and return the children to the Mother’s home at the conclusion of time or as otherwise agreed.
That the Mother and Father be at liberty to attend all School functions to which parents are invited including, but not limited to, Sports Days, Carnivals, Concerts, Plays, Fetes, Parent/Teacher Meetings and the like.
That the Mother and Father take all steps necessary with the Principal/Secretary of the School/s at which the children are enrolled from time to time to enable the Mother/Father to each receive at his/her address and at his/her expense, copies of the children’s School Reports, School photographs and newsletters of functions.
That each party keep the other informed in writing of his/her current residential address and contact telephone number and of any change thereto within forty-eight (48) hours of any such change.
That the Mother and the Father by these Orders authorise all Health Care Providers, Educational Experts and Extra-Curricular Activity Providers involved with the children from time to time to liaise directly with them at his/her request and at his/her expense and the Mother and the Father immediately provide the full names/addresses and contact telephone numbers of such Health Care Providers, Educational Experts and Extra-Curricular Activity Providers to each other by text message.
That each party contact the other in the event of any medical or other emergency involving the children whilst with him/her.
That for the purposes of communication between the parents shall communicate by text message or email or as otherwise agreed.
That if either parent has concerns about the welfare of the children they are to, in the first instance, communicate their concerns by way of email, or otherwise in writing, with the other parent at least seven (7) days prior to advising any agency concerned with the welfare of children, including but not limited to Department of Communities (Child Safety) or Police, but for emergencies.
The Father is to use his best endeavours to restrain Ms M from communicating with the Mother in any way about the children but for emergencies and by agreement between the Mother and Ms M.
That the parties attend upon a family consultant with their respective partners as may be directed by the Court for the purpose of having the Orders explained to them and to obtain some direction about when and when not to make notifications to child welfare authorities.
That for the purposes of changeover of School Holiday time save as that mentioned herein:
(a)First half of School Holidays
(i)To commence at 5.00pm on the first Friday in the final week of the School Term;
(ii)To conclude at 5.00pm on the mid Saturday half way through the School Holidays;
(b)Second half of School Holidays
(i)To commence at 5.00pm on the mid Saturday half way through the School Holidays;
(ii)To conclude at 5.00pm on the last Sunday before commence of School Term;
That notwithstanding anything hereinbefore contained, in the event either parent is unable to parent the children whilst in his/her care for more than one (1) day i.e. eight (8) hours, then that parent give to the other parent the first right of refusal to parent the children for that period of time.
That the Independent Children’s Lawyer be discharged.

NOTATION:

(A)It is noted that His Honour Judge Howard has indicated that he is of the view that Ms M would benefit from counselling in relation to how to understand when it is and is not appropriate to make notifications regarding children to child welfare agencies.
(B)Pursuant to section 65DA(2) of the Family Law Act 1975 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 “Parenting Orders – obligations, consequences and who can help” and these particulars are included in these Orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 11296 of 2015

MR LANG

Applicant

And

MS WOMACK

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

A.These reasons were delivered ex tempore on 27 July 2017 and have been settled and corrected for grammatical errors in order to convey the precise intention of the Court.

This is an application for parenting orders involving two young children, [X] born (omitted) 2010 and [Y] born (omitted) 2011. They are the children of the applicant father, Mr Lang and the respondent mother, Ms Womack.
At this stage, the father lives in Town A, the mother lives in Town B. The children attend the School A. The father is the applicant but, in her response document, the mother sought permission of the court to relocate the residence of the children to Town C in New South Wales, which, on the evidence, it appears is approximately five and a half hours, perhaps a bit longer, from Town A in Queensland.
In deciding a “relocation” case, the court must treat the case in a similar way to other parenting cases. The issues for determination have to be based on the best interests of the children. The mother’s desire to relocate to Town C is based upon the fact that she has met a new partner, Mr R, and he has given evidence.
Mr R appears to be from Town C. His mother lives there. He has other family there. Three of his five children live there. He has three teenage children living in Town C. He has two eleven-year-old twins living in Sydney. He has not seen those children since they were 12-months-old.
The two children who are the subject of these proceedings currently live primarily with the mother and spend alternate weekends with the father and holiday time with the father as well. The alternate weekends run from after school Friday until 5 o’clock Sunday. The father had sought an order whereby the children would live primarily with him, but sensibly, through is counsel, Dr Kasselis, that particular submission was revised at the conclusion of the evidence.
These children are still very young. In their young lives, they have endured a significant amount of harm, and they have been exposed to a significant amount of conflict. The extent of the harm that they have suffered is practically unimaginable. My comments here really come under section 60CC(3)(m) of the Family Law Act, and I will at this stage, for convenience sake, include, at this part of my reasons for judgment, various facts and circumstances insofar as they relate to these children and in relation to the assessment of best interests.
Many of the comments that I will make at this stage are pertinent also to section 60CC(2)(b) and 60CC(2A) of the Act – relating to the need to protect children from physical or psychological harm, from being subjected to or exposed to abuse, neglect, or family violence.
In or about December 2013, the mother’s then partner, Mr T, was charged by police with endangering a child. Specifically it seems Mr T had taken young [Y] and placed [Y]’ hand in some hot water or liquid. Whilst that man was on bail with a condition of no contact in relation to the mother and the children, the mother, exercising or displaying extraordinarily poor judgment, continued her relationship with Mr T, but not only that, Mr T was at the mother’s house. The mother said that the children were next door at her own mother’s. I do not accept that evidence from the mother.
The fact that the mother would make a decision to continue a relationship with a man who intentionally caused such grievous harm to her two-year-old child is practically beyond belief. The mother may express regret now, but the evidence is as it has fallen.
The mother, some time later – two years later, again displaying extremely poor judgment, permitted a man whom she did not know very well, on her own admission in evidence today, a Mr E, to read a story book to her daughter, [X], and [X]’s girlfriend. This Mr E, who had been staying in the mother’s household, sexually interfered with the child, [X], and [X]’s girlfriend. The mother expresses extreme regret in relation to that decision and well she might. Once the mother found out, of course, she did act appropriately.
The impact of those two events upon those children is not really something that can be quantified.
The child, [X], made, according to the mother, a complaint or a disclosure to the mother in relation to the father. The allegation was that the father might have sexually interfered with the child, [X]. The matter was investigated by the police. The mother informed the court that there was a medical examination of the child, which revealed nothing. The father, under the direction of DOCS, took part in a risk assessment, and after the risk assessment he was permitted by the Department of Child Safety to resume unsupervised time.
The mother, even after the matter was raised by the child initially, on the evidence, it seems, continued to permit the father to have unsupervised time. I presume that was until DOCS or the police intervened – and put in the requirement for supervision. It does tend to indicate that the submission of Dr Kasselis is correct, that the mother’s belief as to whether or not it actually had occurred was probably not very strong at all.
I do note, from an historical point of view, that when he was a teenage boy, the father pleaded guilty to a charge, and I do not know the precise charge that he was subject to, but it is said that he pleaded guilty to a sexual assault of a younger child.
In the mother’s household there was another incident where the child, [X], was very harshly dealt with by one of the carers organised by the mother – it might have been her own mother or stepmother – and received, I can only presume, some sort of a carpet burn. It was quite significant. It caused a good deal of upset.
Matters of concern in relation to risk in the father’s household relate primarily to, apart from the allegation of sexual abuse which was not pursued by police and which was determined, it seems, by the medical examiner not to have occurred – the risk issue in the father’s household frankly relates primarily to his partner, Ms M.
Now, Ms M is an interesting witness. I think that generally speaking she actually told the truth. Now, I suppose you would have to say that, on some of the evidence I have heard from the mother – that it may be in Ms M’s own mind that at this stage she has come to a neutral position in relation to the mother.
The mother indicated some interesting evidence that in more recent times the relationship or the ability of her and Ms M to actually communicate has improved, and it would want to. The mother, to her credit, accepts that she has also been partly to blame for the poor communication and the poor relationship between her and Ms M, but Ms M has made in the last – well, in the 12 months from about April last year – from about April 2016 she made about 10 notifications to the Department of Child Safety.
In relation to the mother’s care of the children, there are, in fact, more than 10 notifications. Of particular note was a notification concerning the child, [Y], being on some train lines, which was not a notification made by the father or by his partner. They knew nothing about it until it was brought to their attention in cross-examination. There is no proof that it actually occurred, I do not think, but the point being that there is – there are other people out there, if I can put it that way, who have made notifications in relation to the mother.
The question of the notifications has loomed large. I mean, to the extent that children are interviewed by police or by the Department of Child Safety, to the extent that children are or have become aware of notifications being made, the affect of the evidence of Ms O is that this is something that can be detrimental to the children, or will be detrimental to the children, especially if the notifications are vexatious. The problem is, some of the notifications that Ms M admitted to were minor incidents. I mean, a mark on the back; she could not even remember the colour of the mark or the size of the mark, and yet she notified the Department.
In the absence of some orders to try to regulate that issue, I do not think moving to New South Wales would necessarily fix the situation. The problem can only be fixed by the father stepping up to the plate and becoming more assertive in his own household, and telling Ms M basically to butt out, and he, as the parent of [X] and [Y], has to take responsibility for their health, their education, issues in relation to risk, issues in relation to perhaps having to notify, in the case of a really serious situation, the Department of Child Safety, or, in a really serious situation, the police.
It is said on behalf of the mother that the number of notifications is excessive, and one would have to say it probably has been excessive. There has been notifications made that ought not to have been made. The question is, in the context of a relocation case, does that amount to harassment of the mother, does it mean, for instance, that the best outcome for the children is to let the mother move them down to New South Wales? My conclusion is that the issue of the notifications is one of the very many factors that I need to consider in balancing the best interests of these children. It is not, as it were, a defining issue.
Ms O said that, in the absence of those notifications, she would have recommended extra time, but she does not recommend extra time, she recommends leaving it as it is. She certainly does not recommend reducing the time. Now, Ms O, under cross-examination by Ms Cullen of counsel on behalf of the mother, indicated, of course, as any expert would, that it is possible for relationships to be maintained over a long distance, that is, relationships between children and a parent.
Ms O also made the crucial point, though, that if the mother went to New South Wales, as far as Town C, that there would be certainly a diminution in the time and quality of the relationship (between the father and the children), that is to say that less time and lower quality because of the distance. There is authority, of course, to say that the Act does not require an optimal outcome, but the risk factors in the mother’s household and in the father’s household, when looked at in their totality - there have been serious risk factors in both households.
I mean, considering the severity of the two primary incidents to which I have referred, both of them having occurred in the mother’s household, one, the serious assault upon young [Y] by Mr T when [Y] was a baby, the other the sexual assault upon [X] – given how serious they were, on the one hand you could consider that the father’s household being extra vigilant is understandable, but I do think that it is – and I should clarify what I said earlier – I do think that there are instances there of notifications made by Ms M which should not have been made.
And the father, he points out that, “Look, Ms M did tell me and raises with me whenever there is a particular issue,” but he was not the one responsible for making the notifications on each occasion. There were, it seems to me, quite a large number of times when Ms M made that decision herself, and that is why I say that the father in this case needs to listen carefully to what I am saying, and needs to get things sorted out in his own household as to whose primary responsibility these children are, and it is yours, Mr Lang. It is not Ms M. I know she provides a lot of support, but she has got a lot on her plate too. She has got five children living permanently there, plus two more, being the subject of these proceedings, on the alternate weekend.
I am not convinced that from an historical perspective the mother has always facilitated the father’s relationship. I am far from convinced that the mother believed that the comments made by young [X] were, in fact, as a result of some sexual abuse by the father. Surely the mother would not have continued to allow unsupervised time if she did believe it.
Secondly, it was of concern to the court the evidence in relation to not allowing the father to talk to young [Y] on his birthday. It was of concern to the court the mother not allowing a birthday card to be given for – the father wanted to give it to young [X]. The mother put it in the bin eventually. This does not indicate to the court that facilitating the father’s time with the children is always at the forefront of the mother’s mind. She has not always encouraged the relationship between the children and the father. This is a key point in this case.

Now, Ms M has been criticised, and, in relation to some of those notifications, fairly criticised, but she actually has some important qualities that are worth pointing out. Firstly, she does seem to understand the medical issue relating to young [Y]. Now, she has assisted the father in that regard, and I would hope she continues to help the father in that regard. When I say he has got to step up to the plate, that is with the help of Ms M, but he must take the lead.
Out of all the four adults who did give evidence – it seems to me, my impression was that Ms M probably had more of a handle on the health situation for [Y] than any of the others.
Ms M, on occasions, has sent detailed emails to the mother in relation to medical issues, which has been of assistance to the mother. So there have been many critical comments about Ms M, and I have made some of those in these reasons for judgment, but she does have a handle on the medical issues.
Heaven knows it would not be an easy life for Ms M raising five children of your own plus having two extras come in every second weekend. That does not excuse inappropriate notifications to the department or to any other authority.
Having regard to the significant matters that these children have had to deal with in their young lives, and the amount of conflict, I think it is important for the parents to hear the court say today that, on another level, you must both be getting something right here, because the indication is that these two children go off to school and they are happy. So something correct, and right, and good is happening too. I know we have had to concentrate a lot on the negatives, but I think it is really important for the father and the mother to hear this.
Now, they are in the primary care of the mother too, and I have been critical of some of mum’s decisions. I would think, though, she is a much harsher judge on herself than the court could ever be, but they go to school happy, they have got their friends at school. The mother was able to list off quite a number of friends for young [X] at school. Names that come to mind were – (names omitted), all of the little friends of [X] who have been with her since prep. She has now done prep, grade 1, and half way through grade 2 at the School A. Young [Y] has done half a year of prep, I understand, but also has his own friends there. He is happy at school. He likes it there.
In the context of the conflict that has historically occurred in this family between the two households, in the context of what they have been exposed to in both households, the school environment, on the evidence that I have heard, has been a place of refuge and calm for these children – stability and escape from conflict.
There is a school guidance counsellor, I have heard, who has helped young [X]. She no longer throws things or jumps up on tables. She uses some form of time out techniques to calm down so she does not lose her temper. The mother explained it as, “Do the five,” and, “Blowing out the candles.” In these regards, the mother did impress me as a witness.
The mother understands that the little children have had difficulties and is doing her best to address them. Both the parents understand that [Y] has the health issue, which is quite serious but it can be addressed. They have both, on occasions, gone to the paediatrician. The mother said she went to one consultation with a paediatrician. The father and Mr M, that is, Ms M, have been to two, and the mother’s going to the next one. That is good, but what we need is some communication – more communication between the households.
I am not sure on the evidence of the mother whether one of the emails that Ms M sent her related to the paediatrician or not. Mr Lang did not seem to know whether the paediatrician he visited is the same one the mother had been to. Now, that was a worry. I do not think any of them remembered the man’s name, which is worrying.
So I think next time you go to this doctor, each of you, you have got to write his name down so you can refer to him by his name, and we are working on the basis the mother thinks it is the same paediatrician. I would hope so, and I am sure it probably is, because it is the gentleman at Deception Bay, and you would think that the doctor would say, “Oh, hang on a minute. This is not a patient of mine,” or, “You were going to see so and so prior.”
So I want mum and dad to do that. Next time you both go – right – when it is your turn to go, that you actually write down the doctor’s name and remember it, and probably keep his card. Ask him for his card; he will give you one with his name on it, and his phone number will be on it, because it is important. You two are the ones who have to make sure that young [Y] is getting all the help that he needs.
So the school is a place of stability. A place where the 2 children can see their friends, a place where they can access the school guidance counsellor, and they have done so, and it has helped them, a place where they know the teachers, and a place where they are happy to go. Now, in the context of this case, that is probably the largest group of positive comments that I am actually able to make in relation to one particular issue – the largest group of positive outcomes and comments that I am able to make – all relate to the school and the children’s attendance there.
And I have to say, bluntly, that that does weight heavily on my mind when the mother comes to the court and says, “I want to relocate to Town C.” I accept the children will eventually, you know, adapt to change – Ms Cullen is quite right when she says that – but in the context of a family where there has been such significant issues in both households, it seems to me that the stability that has been provided by this school, at this stage in their young lives, considering everything they have been through, really does lead the court to conclude against allowing a relocation.
The other issue about [Y] is his learning difficulties. Now, the mother said in evidence that this little boy gets three hours of teacher’s aide assistance every day, but he needs more and the school is trying to get it for him. Now, to his credit, Mr R has made some inquiries at the school, School B, in New South Wales, where his own mother works, and he went to school there, and it is quite a large school.
Mr R has had a discussion with principal. I heard all of that evidence, and that is to his credit that he made those inquiries, but the court must work on evidence and concrete evidence. There is no solid evidence that, to start with, the little boy could get as much as three hours a day assistance from a teacher’s aide. There is no evidence that his special needs could necessarily be met. The reality is that Town C is significantly further from a major population centre than Town A, or Town B, or (omitted), or any of those areas up that way, being so close as they are to the capital city of Brisbane.
The question of the health issues; my attention has not been drawn to any evidence, and, indeed, there is none, that young [Y]’ specific health issue can be addressed easily if he is living in Town C. Now, Ms Cullen also makes a good point there, that this is Australia, a very advanced liberal democracy, and the access to health care is excellent. It would involve travelling from Town C.
Now the reality is, though, he has now had four visits with the one paediatrician, and he is booked in to see an ENT later this year. I think that is at the (omitted) Hospital. I think I was told that but I am not certain, but the mother said an ENT later this year. There is no evidence to how long it would take him to see an ENT in New South Wales. There is no evidence as to how long it would take him to get to see a paediatrician in New South Wales.
So that, again, when looking at the best interests of young [Y], this is at a crucial stage in his development, especially insofar as it relates to his health, and the absence of evidence in relation to the issue does not assist the mother’s case. The reality is that [Y] has the doctor here, he has another specialist for later in the year lined up, and he needs to access these specialists. He may need surgery. The mother indicated a possible tonsillectomy and the removal of adenoids.
So on those two key issues alone, the health for young [Y] and the educational needs of young [Y] are significant factors that would persuade the court not to make an order permitting relocation to Town C.
I was impressed with Mr R as a witness. He has made significant efforts to maintain his relationship with the mother by travelling such a long way so consistently. He does have a part-time job at the school in School B as a general assistant, including ground work, maintenance work, but it is, of course, a part-time job. I know that he has his teenage children down there, and it may well be that from the perspective of their relationship, Mr R and the mother, that a continuation of travelling for the adults – for the adults – will help them maintain their relationship. That is entirely a matter for them.
But can I say this, when looking at the case in terms of the best interests of the children, well, it is much better for the children not to have to travel the five or six hours between Town A and Town C. It is just better if the children stay where they are, and the mother and/or her partner do the travelling to maintain their relationship, or alternatively Mr R moves up to Town A way.
Now, the mother has been living in Town B and the father in Town A, which, of course, they are very close together and they are indeed, as I understand, practically a blended town. Now, the mother indicated she would like to move a little bit further away, and she will be able to do that. The children will have to stay at the School A, and the time with the father will still have to be able to be easily facilitated on the alternate weekends, but she can move a little further away, and that may ease her concerns significantly.
The mother has told the court that she does have depression, but the mother – I mean, I understand that her earnest desire was to move to New South Wales because that is where Mr R wants to live or does live down in Town C, but the mother has, in or near Town A, her own biological mother, Ms D, she has her stepmother, Ms N, she has her brother, Mr A, a sister, Ms T, a sister, Ms H, a sister, Ms E. On occasions, those family members will assist with looking after the two children. For instance, today, the mother said, one of the family are looking after the two children. This support network could not be replicated by the mother in Town C. Now, often you see a situation where a parent wants to move interstate to access such a support network. That is the sort of case where, frankly, I am much more inclined to grant permission to relocate. But when the support network is here already! Now, that is only one factor – I appreciate that. But the court, under section 60CC(3) has to weigh all of these things up.
If the mother were to be permitted to relocate the residence of those children to New South Wales, I think, as I said earlier or I might have intimated it, I am not satisfied that they would in fact be able to maintain their relationship with the father. I tend to think it could just slip by the wayside to some extent. The case for the mother was that once a month there would be a weekend when they could spend time with their father.
Now, the difficulty with that is, I actually think that unless these two families live reasonably close together, that there is certainly the potential for – let me put it this way – the closer they are together, the more chance there is that they will be able to – each of them will be able to facilitate the other parent’s time with the children, especially so far as the mother is concerned.

Section 60CC(3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.

Ms O pointed out these little ones love their dad, they are fond of him, they like going to see him, and they would miss him terribly. Now, I accept also that obviously they love their mum and they do not want to be apart from her. That is for sure. They made that clear in their comments to Ms O. They are very young and their views can be only given relatively minor weight.

Section 60CC(3)(b) – the nature of the relationship of the child with:-

each of the child’s parents; and

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

Let me put it this way, the children seem to be quite open in their discussions with the mother, the father, and Ms M. Looking at 60CC(3)(b), with their parents, they have excellent relationships with their parents. There was some indication that the children may have said some things that indicate that they were not so fond of Ms M, but the evidence actually, to my mind, does not back that up, and I think there might have been a comment by the report writer at one part of the report that some of the things the children were saying might not necessarily have been their own words.
I accept Ms M’s evidence that [X] wanted her to go to tuckshop and to parades. I accept Ms M’s evidence that [X] is very open in her conversations with her. There is nothing to suggest that the children have anything but a nice relationship with Mr R.

Section 60CC(3)(c) – 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; and

to spend time with the child; and

to communicate with the child.

As to section 60CC(3)(c), the parents, I think, probably to the best of their abilities have taken the opportunity to participate in making decisions for the children. They have taken the opportunity to spend time with the children and to communicate with them. Apart from the risk issues that I have referred to in both households, I am satisfied that the parents have fulfilled their obligations to maintain the children.

Section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

either of his or her parents; or

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

Section 60CC(3)(d) is the likely effect upon children of separation from the parents. The overall import of the evidence of Ms O is that the children would miss their father, I think she said, terribly if they were moved to New South Wales and were only seeing him once or twice a term. Also they have a young stepbrother named [C] – a young brother named [C], who is the child of the father and Ms M.

Section 60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

Section 60CC(3)(e) looms large. If they were living in New South Wales, there would be significant practical difficulties, and significant expenses involved in spending time with and communicating with the father. Frankly, I am a long way from being convinced that the mother and the father in this case would be able to bridge that gap, that is to say, handle the practical difficulties and expenses of the children spending time and communicating, particularly the spending time part.
These parents each have a lot on their plates in one way or another, and I am a long way from being convinced that they would be able to handle the practical difficulties and expenses, which really means that the actual occurrence of time between the children and the father, whereas the mother says once a month and my own impression from the evidence is that it is unlikely to be that much.
The mother drives a (car model omitted) with 170,000 kilometres on the clock. There was some evidence from the father about a motor vehicle in that household, but the expenses involved would include a significant amount of fuel, perhaps motel and accommodation costs – all of those types of things – which would impact significantly upon the ability of the children to actually see their father in accordance with any orders that might have been made.

Section 60CC(3)(f) – 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.

Section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.

Looking at section 60CC(3)(f), the capacity of the parents to provide for the needs. Well, I have made some comments in relation to both households, and the parents, and Ms M. There has been, over time, some significant shortcomings, but, as I did point out, there are some – certainly there are signs for optimism because the children present at school in a happy way, their educational needs are being met, their health needs are being met. I have had regard to subsection (g).

Section 60CC(3)(h) – if the child is an Aboriginal child or a Torres Strait Islander child:

the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

the likely impact any proposed parenting order under this part will have on that right.

Section 60CC(3)(h) is interesting in this case because the mother does have Aboriginal heritage and some members of her family identify with the (omitted) people of Town A. Her own mother is one of her relatives who identifies with that Aboriginal group. The mother, herself, does not identify, but sensibly the father in this case says, well, he is happy to leave it to the mother to decide as to how to introduce the children to their Aboriginal heritage and to what extent that should occur.
So that is a matter for the mother, and I note section 60CC(6) as well, because I think that the mother has said in the witness box, and I accept, that she will, if and when she thinks the time is right – essentially this is what she said – if and when she thinks the time is right, she will facilitate an exploration of their heritage in that regard, as she will herself. I mean, that is what I inferred from her evidence. She will do that for herself and, I presume, for her children, but it is a matter for the mother. Living near Town A will make that easier.

Section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.

Section 60CC(3)(j) – any family violence involving the child or a member of the child’s family.

Section 60CC(3)(k) – if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:-

the nature of the order;

the circumstances in which the order was made;

any evidence admitted in proceedings for the order;

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

any other relevant matter.

Both of these parents have accepted the responsibilities of parenthood, and they both actually have a good attitude towards the children (s 60CC(3)(i)). There is the question of family violence (s 60CC(3)(j) & (k)). I did – under this heading, I will refer to the historical family violence referred to by the mother. The mother says that there was significant family violence perpetrated upon her by the father.

The father conceded that at one stage he had kicked the mother in the back. I think his evidence was that – or he at least appeared that he wanted to maintain that it was in retaliation for something, or provoked for some reason, but – and the father needs to listen to this very carefully – violence against a woman is never acceptable, ever, even if the mother, who is a lot shorter than you – even if she was – I am not saying that she was – even if she was striking out at you, what you have to do is remove yourself from that scene, and if it cannot be resolved, you remove yourself from the relationship. Now, I note you did not accept the other allegations made by the mother.
Ms O was aware of them. In the context of this family, they are matters that I have taken into account. I accept that he kicked the mother in the back. As to the other allegations made by the mother, I do note that there was no significant cross-examination, but it was put. My recollection is it was all put. In the context of what has happened to these children, what they have been exposed to, that is, in both households, the family violence to which I have referred, is a factor to be considered.
I do not accept, and I do not think the mother would ask the court to accept, that all of her actions have been impeccable. In fact, she frankly admitted that she has made some wrong decisions and done some wrong things. Much of what I have heard about is historical. I mean, the father has been in this relationship with Ms M for a while. They have a child, and she is certainly not complaining about any family violence that I have heard about. Ms M, herself, actually has a domestic violence order against the mother, which my recollection is it is going to expire relatively soon.
That particular dynamic between Ms M and the mother has actually been a significant cause of upset for the families. I know that Ms O said attendance at a course will not, in her view, necessarily help this family, but I disagree with her. We need to have some sort of – all the parents need to do a parenting orders program, the two parents. Ms M has consented to doing one, and I will make an order that the father use his best endeavours to make sure that is carried out, and there will be a notation that Ms M consented to completing a parenting orders program.
As part of the parenting orders program, I want it specifically each parent to be counselled – each parent and Ms M to be counselled in relation to notifications to the department or the police. There is actually a good proposal, in my view, that the – before either parent is to be permitted to make a notification to the department or to the police, they must first of all write an email to the other parent – the order will be along these lines: write an email to the other parents and allow them seven days to respond to the draft notification. Now, the allowance time of seven days will not be necessary if there is an emergency situation.
Ms M has very much been under the spotlight, and her notifications were under the spotlight, and she was cross-examined at length about it, and she said that the CPIU visited her and the mother quite recently, and they basically told Ms M, “Stop making notifications.” Now, I do not believe there is any evidence that she has made any notifications since. I do not think there is. I think Ms M might have finally got the message.
I actually think that when the orders are finally drafted, I am going to make an order that each couple – well, the father, and he is required to bring Ms M, and the mother, and the mother, it would be helpful if she could bring Mr R, to the Court where a family consultant will explain to the parents and their partners what the orders actually mean, in particular in relation to the order that will be drafted concerning notifications.
Ms M said she had never received any counselling or explanations as to what was an appropriate notification or not, but she herself, on three occasions in the past, has been the subject of a notification, she knows that it is not pleasant, and I have made it clear that I think quite a number of the notifications that she made were not appropriate.

Section 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.

Subsection (l) is not particularly relevant.

Section 61DA

Presumption of equal shared parental responsibility when making parenting orders

(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).

(2) The presumption does not apply if 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:

(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.

(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

As to the question of parental responsibility, I do note section 61D(A), and there would certainly be findings that have been made that allow the presumption to be rebutted, but, in any event, in the best interests of these children, having regard to the two households and what one would have to say on occasions has been – well, let us say the risk factors that have been exposed by the evidence in both households over a period of time, coupled with what would have to be said are the somewhat poor judgment choices of both parents on occasions, not to mention of Ms M, leads me to conclude that an order for equal shared parental responsibility has to be made.
There has been high conflict and poor communication. Does that necessarily mean there needs to be sole parental responsibility order? I do not believe so. The problem with a sole parental responsibility order in this case is that it would immediately create a power imbalance that could lead to further conflict and further upset, and I think that the ICL is correct in the order proposed by him through his counsel, Ms Christie, that the order should be for equal shared parental responsibility.
An equal time order under 65DAA is not appropriate. An order for substantial and significant time under section 65DAA is not appropriate. It is not in the best interests of the children, even if it may be reasonably practicable because they live in quite close proximity. I note the evidence of Ms O in that regard in the findings that I have made.
But I actually think that, in addition to getting a family consultant to explain the orders to these parents and their partners, I would like to see, (and I would like to include it as a notation) – I do actually want the father to talk to Ms M about Ms M attending, say, a minimum of two counselling sessions – no, I will start that again – for Ms M to attend counselling sessions, which will continue as directed by the counsellor, but within the Medicare limit, to assist Ms M in her understanding of child protection matters and the issues relating to child protection, and assist Ms M in understanding the important role that she has to play in keeping a peaceful – or keeping things on an even keel between the two households.
It is reasonably straightforward. I will say two counselling sessions. It is not an order, but I want Dr Kasselis to talk to the father, and I want the father to come back with an affirmative answer, and a notation can be made along those lines. It is noted that Ms M has consented to attending the parenting orders program and Ms M has consented to attending two counselling sessions to assist her in relation to the matters to which I have just referred.
I should add, by way of reasons, that another of the reasons why I think that the mother should, and the children should, stay here is, one of the other issues the mother has on her plate – and, I mean, it is a credit to her to take on the care of another young child. Let us face it, not many people are willing to do that, but it does mean, to my mind, that the support network to which I have referred in and around the Town A area available to the mother is even more important.
Ms O was right when she said that a lot of the conflict – and this is by way of reasons – is likely to be reduced after the court case is concluded. Well, the court case has concluded, and I actually am more optimistic about the prospects of these parents being able to gain something out of a parenting orders program. I am more optimistic than Ms O.

I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Judge Howard

Date: 11 August 2017

[2017] FCCA 1907

27 July 2017

Key Legal Topics

Areas of Law

Family Law