Larvor & Valena
[2025] FedCFamC2F 29
•16 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Larvor & Valena [2025] FedCFamC2F 29
File number(s): DNC 324 of 2023 Judgment of: JUDGE LIVERIS Date of judgment: 16 January 2025 Catchwords: FAMILY LAW – PARENTING – relocation – reconsideration of a final parenting order made in 2019 where the mother seeks to relocate with the child where the father opposes the relocation and proposes the child live with the parties on a week about basis – where the co‑parenting relationship is characterised by significant, multifaceted and sustained conflict – consideration of the extent of the conflict between the parents and the impact on the child – consideration of whether it is in the child’s best interests to remain in City B or relocate to City C – consideration of parental responsibility – orders made permitting the mother to relocate with the child Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61D(3), 61DAA, 64B, 65D, 65DAAA, 65H(2), 68B, 114AB, Part VII
Family Law Regulations 1984 (Cth) reg 19
Domestic and Family Violence Act 2007 (NT)
Medicines, Poisons and Therapeutic Goods Act 2012 (NT)
Cases cited: Adamson & Adamson [2014] FamCAFC 232
AMS v AIF [1999] HCA 26
Boulten & Boulten [2022] FedCFamC1F 295
Denton & Denton (No 3) [2024] FedCFamC1F 476
Grainger & Grainger (No 3) [2024] FedCFamC1F 470
Grella & Jamieson [2017] FamCAFC 21
Hedlund & Hedlund [2021] FedCFamC1A 84
Heijman & D’Onofrio [2024] FedCFamC1F 551
Hopkins & Elliott [2023] FedCFamC1F 167
Kelly & Hutchens [2024] FedCFamC1F 662
Morgan & Miles [2007] FamCA 1230
Radecki & Radecki [2024] FedCFamC1A 246
Rice and Asplund (1979) FLC 90-725; [1979] FamCA 80
Slater & Light [2011] FamCAFC 1
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Taylor v Barker [2007] FamCA 1246; (2007) FLC 93-345
U v U [2002] HCA 36
Whisprun Pty Ltd v Dixon [2003] HCA 48
Division: Division 2 Family Law Number of paragraphs: 239 Date of hearing: 9-13 September, 7 October 2024 Place: Darwin Counsel for the Applicant: Mr Anthill Solicitor for the Applicant: Darwin Family Law Counsel for the Respondent: Mr Fernandez Solicitor for the Respondent: Stephen Gibbons Lawyers Counsel for the Independent Children's Lawyer: Vanessa Farmer Solicitor for the Independent Children's Lawyer: AFL Withnalls ORDERS
DNC 324 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS LARVOR
Applicant
AND: MR VALENA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE LIVERIS
DATE OF ORDER:
16 JANUARY 2025
THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
Parental Responsibility
2.The mother and father have joint parental responsibility for X born in 2015 (“the child”), and will make a genuine effort to come to a joint decision about:
(a)The child’s education, both current and future;
(b)The child’s religious and cultural upbringing;
(c)The child’s health;
(d)The child’s name;
(e)Changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
3.The parties shall use their best endeavours to reach a joint decision relating to the child’s major long-term issues. In the event that the parties are unable to reach a joint decision, the mother shall make the decision, taking into consideration the father’s views, and shall inform the father in writing as soon as reasonably practicable of the decision that has been made.
4.The parties are not required to consult, but may consult the other when making decisions while the child is in their care under this Order about issues that are not major long-term issues.
Parenting Arrangements
5.The child live with the mother.
6.The mother is permitted to relocate with the child to City C, South Australia from early 2025.
Spend Time Pending Relocation
7.Pending the mother’s relocation, the child shall spend time with the father as agreed between the parties.
8.Failing agreement, the parties have liberty to apply.
Spend Time After Relocation
9.Following the mother’s relocation, the child shall spend time with the father in City B as agreed in writing between the parties, but failing agreement, as follows:
(a)For the entire Terms 1, 2 and 3 gazetted South Australia school holiday periods and for the purposes of this order, the following shall apply:
(i)The child’s time with the father shall commence from 6:00pm on the first day of the South Australia gazetted school holiday.
(ii)The child’s time with the father shall conclude no less than seventy-two (72) hours prior to the commencement of the new school term.
(b)For three (3) weeks during the Term 4 gazetted South Australia school holiday period, being:
(i)The first three (3) weeks in 2025 and each alternate year thereafter, and the child’s time with the father shall commence from 6:00pm on the first day of the South Australia gazetted school holiday and conclude at 6:00pm on the midpoint.
(ii)The last three (3) weeks in 2026 and each alternate year, and the child’s time with the father shall commence at 6:00pm on the midpoint and conclude no less than seventy-two (72) hours prior to the commencement of the new school term.
10.For the purposes of facilitating the child’s time with the father, the following shall apply:
(a)The father shall be responsible for arranging and paying for the child’s travel from Adelaide to City B.
(b)The mother shall be responsible for arranging and paying for the child’s travel from City B to Adelaide.
(c)The mother shall be responsible for arranging and paying for the child’s travel between Adelaide and City C.
11.For the purposes of Order 10, the following shall apply:
(a)The party responsible for arranging the child’s travel shall advise the other party not less than forty-two (42) days prior to the commencement of the travel period whether the child will be travelling via air or road.
(b)Should the child be travelling by air, the party responsible for booking the travel shall book and pay for the child’s airfare, and provide a copy of the itinerary to the other party, not less than twenty-eight (28) days prior to travel.
(c)Should the child be travelling by road, the party responsible for booking the travel shall provide a written itinerary, including details of accommodation, to the other party not less than twenty-eight (28) days prior to travel.
(d)Unless otherwise agreed in writing between the parties, the child shall not travel unaccompanied until he is twelve (12) years of age, and the party responsible for booking the travel shall accompany the child on the flight.
(e)Should the child be travelling by air, changeover shall occur in City B at the City B Airport, and in Adelaide at the Adelaide Airport.
(f)Should the child be travelling by road, changeover shall occur in City B at the City B McDonald’s, and in City C, at the City C McDonald’s.
Therapeutic support
12.The parties do all things necessary to enrol and participate in joint counselling at D Centre, E Centre or a similar provider forthwith, to assist them in improving their communication and co-parenting relationship, with a focus on the child.
13.The parties participate in joint counselling for a minimum period of six (6) months, or otherwise in terms advised by the service provider.
Communication
14.The child shall communicate with the father via video call through AppClose as agreed in writing between the parties, and failing agreement, as follows:
(a)At 6:30pm (SA time) each Sunday and Wednesday;
(b)At 6:30pm (SA time) on Easter Sunday, Father’s Day, the child’s birthday, the father’s birthday, on each of the child’s siblings’ birthdays and Christmas Day in all odd-numbered years.
15.When the child is spending time with the father, the child shall communicate with the mother via video call through AppClose as agreed in writing between the parties, and failing agreement, as follows:
(a)At 6:30pm (NT time) each Sunday and Wednesday;
(b)At 6:30pm (NT time) on Easter Sunday and Christmas Day in all even‑numbered years.
16.To facilitate the child’s communication with the other party, the following shall apply:
(a)The party with whom the child is not living shall facilitate the call and ensure that the phone or device is fully charged with sufficient credit.
(b)The parent with whom the child is living shall answer the call and provide the phone or device to the child.
(c)The parent with whom the child is living shall provide privacy during communication.
(d)In the event the call is missed, the parent with whom the child is living shall return the call as soon as possible.
Communication between parties
17.The father provide the mother with confirmation of his preferred email address within one (1) month.
18.Upon compliance with Order 17, the mother shall provide the father with an email each month about the general well-being of the child and include photographs.
19.The parties will keep each other updated of their residential address and contact details, including telephone numbers and email addresses, and advise the other within twenty‑four (24) hours of any such change.
20.Each parent is to advise the other as soon as practicable of any serious illness/injury to the child and provide the details of the treating medical practitioner/s.
21.Other than in accordance with these Orders or the case of an emergency involving the child, the parties shall communicate via AppClose and be polite, respectful and child‑focussed.
Travel
22.Other than as provided for in these Orders, if either party intends to travel interstate or overseas with the child, the parent is to provide the other parent with no less than thirty (30) days notice in writing of the intended travel and provide the following:
(a)A travel itinerary.
(b)Copies of all airline or other travel tickets for departure and return.
(c)Details of all premises where the child will be staying, including contact details of the travelling parent during the period of travel.
Authorities
23.This Order is authority for the mother and father to speak with and obtain any and all information (that they are legally able to obtain) from the child’s education facilities, including but not limited to school notices, newsletters, report cards and school photographs (at the requesting parent’s cost).
24.This Order is authority for the mother and father to speak with and obtain any and all information (which they are legally able to obtain) in respect to the child’s health and wellbeing from the child’s medical practitioners, specialists, hospitals, psychologists and counsellors, including but not limited to medical reports, progress notes and attendance notes (at the requesting parent’s cost).
25.The parties are authorised to provide these Orders to:
(a)any school or other educational facility that the child attends;
(b)any medical practitioner or allied health professional that the child attends on or may attend upon;
(c)any professional supervisor/supervision agency; and
(d)any other person/organisation who is required to obtain information in relation to the child.
Restraints
26.Pursuant to s 68B of the Family Law Act 1975 (Cth), the father is restrained and injuncted from:
(a)Using physical discipline on the child or permitting others to do so.
(b)Consuming alcohol to excess or consuming illicit drugs whilst caring for the child or allowing the child to remain in the presence of others who are doing so.
(c)Denigrating the mother or any member of her family or persons of significance via any social media platform, or in the presence of or within the hearing of the child, and the father shall remove the child from the hearing of anyone else who may be denigrating the mother or her partner or family.
(d)Discussing the court proceedings with the child, or allowing the child to read or view any court documents.
(e)Posting on any social media account (irrespective of whether the profile page is set to “private” or “friends only”) negative or derogatory comments about the mother or her partner or family.
(f)Recording or attempting to record, film or photograph the mother or family member without consent.
27.On and from late 2025, or otherwise upon the revocation of the domestic violence order dated late 2023, pursuant to s 68B of the Family Law Act 1975 (Cth), the father is restrained and injuncted from:
(a)Exposing the child to parental conflict.
(b)Exposing the child to family and domestic violence or permitting others to do so.
(c)Causing or threatening to harm, attempting or threatening to cause harm to the mother.
(d)Causing or threatening damage to the mother’s property.
(e)Intimidating, harassing or verbally abusing the mother.
(f)Stalking the mother.
28.Pursuant to s 68B of the Family Law Act 1975 (Cth), the mother is restrained and injuncted from:
(a)Exposing the child to parental conflict.
(b)Using physical discipline on the child or permitting others to do so.
(c)Exposing the child to family and domestic violence or permitting others to do so.
(d)Consuming alcohol to excess or consuming illicit drugs whilst caring for the child or allowing the child to remain in the presence of others who are doing so.
(e)Causing or threatening to harm, attempting or threatening to cause harm to the father.
(f)Causing or threatening damage to the father’s property.
(g)Intimidating, harassing or verbally abusing the father.
(h)Stalking the father.
(i)Denigrating the father or any member of his family or persons of significance via any social media platform, or in the presence of or within the hearing of the child, and the mother shall remove the child from the hearing of anyone else who may be denigrating the father or his partner or family.
(j)Discussing the court proceedings with the child, or allowing the child to read or view any court documents.
(k)Posting on any social media account (irrespective of whether the profile page is set to “private” or “friends only”) negative or derogatory comments about the father or his partner or family.
(l)Recording or attempting to record, film or photograph the father or family member without consent.
Other Matters
29.In the event that there is a dispute about the child, parenting arrangements or about the interpretation and/or implementation of these Orders, the parties shall, before making any further application to the Federal Circuit and Family Court of Australia:
(a)Attend counselling or mediation with an organisation recognised under the Family Law Act 1975 (Cth) or by the Commonwealth Attorney-General; or
(b)Participate in Family Dispute Resolution with a Family Relationships Centre or a person authorised under Section 10G of the Family Law Act 1975 (Cth).
30.The Independent Children’s Lawyer be and is hereby discharged upon meeting with the child to explain these Orders.
31.All extant applications be otherwise dismissed.
AND THE COURT NOTES:
A.The Court expects that the parties can reach agreement about the time that the child will spend with the father pending his relocation to City C, particularly as, pursuant to these Orders, that may occur imminently.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE LIVERIS
X was born in City B in 2015. He is 9 years old. X was diagnosed with ADHD in 2022.
His parents, Ms Larvor and Mr Valena, started a relationship in early 2015, and moved in together later that year. The parties do not agree on whether they separated on a final basis in October or November 2017, or in June 2018, however they have been in conflict for more than 8 years.
In the relatively small community of City B, over many years the parties have used litigation, non-compliance with orders, social media and reports to authorities to perpetuate their conflict against one another in a manner that has not been child focused.
An application for final parenting orders was first made by Ms Larvor on 27 May 2021, the day after Mr Valena withheld X, alleging that Ms Larvor’s stepfather Mr F had physically abused and neglected X, and that X had complained to him of a “[pain]”. On 8 June 2021, interim consent orders were made providing for X to be returned to Ms Larvor. An injunction was also imposed, restraining the parties from allowing X to be in the unsupervised care of Mr F. The continuation of that injunction was sought by Mr Valena in his outline of case filed on 6 September 2024, however his position changed soon after, and the injunction was discharged by consent on 10 September 2024.
In her report dated 4 February 2022, court child expert Ms G expressed the view that, “ … should the family remain engaged in litigation, [X] is likely to suffer emotional harm due to exposure to the parents’ ongoing stress and conflict. He will benefit from a quick resolution to these proceedings to relieve him, and his parents of the stress associated with litigation.”[1] She went on to say, “There may be significant impacts on his emotional wellbeing should litigation be protracted which may increase his insecurity resultant of uncertainty.”[2]
[1] Paragraph 42
[2] Paragraph 42.
On 11 August 2022, a final parenting order was made by consent. The order included the parties to have equal shared parental responsibility for X. The order also provided for X to live with Ms Larvor and spend time with Mr Valena in one 4 night block each fortnight during school terms, and to share his time during school holidays with each party. Several injunctions regulating the parties’ conduct were also agreed in the final parenting order, many expressed to be without any admission as to need.
Sadly, although the parties agreed on the final parenting order on 11 August 2022, to an extent in spite of the agreement and the injunctions imposed, the parties continued to exacerbate their conflict in a multifaceted way, at times in public, and at times involving X’s wider family unit, his grandparents, and his parent’s partners.
On 22 June 2023, Ms Larvor withheld X from Mr Valena, as a result of general and unparticularised allegations that the final parenting order was not in X’s best interests. The next day, approximately 10 ½ months after the final parenting order was made, Ms Larvor again made an application for a final parenting order.
Ms Larvor sought interim orders suspending several of the orders in the final parenting order, and sought interim orders that X spend supervised time with Mr Valena after he completed a parenting course. She also sought final orders that she be permitted to relocate with X to City C. Ms Larvor now also seeks an order that she have sole parental responsibility for X.
Interim orders dated 12 October 2023 currently regulate X’s parenting arrangements. Those orders provide for X to live with Ms Larvor, and spend time with Mr Valena each fortnight as follows: in week 1, from after school Friday to before school Monday in each alternate week and in week 2, from after school on Wednesday to before school on Thursday.
Mr Valena now seeks orders that X live with the parties on a week about basis during the school term, and during school holidays. He also seeks for the parties to continue to have shared parental responsibility, and in the alternative that he is conferred that responsibility for long‑term issues relating to X’s education and medical needs.
As the final parenting order made on 11 August 2022 by consent is in force, the initial central question in these proceedings is whether that order is able to be reconsidered, and if it is, whether the reconsideration should be limited to X’s living arrangements and the time he is to spend with the parties, or whether it should extend to the final parenting order in force allocating parental responsibility to the parties.
CAN THE FINAL PARENTING ORDER BE RECONSIDERED?
In Radecki & Radecki,[3] Austin and Williams JJ observed that orders in parenting proceedings, “are never unequivocally final”, because s 65D(2) of the Family Law Act 1975 (Cth) enables the court to discharge, vary, suspend or revive some or all of an earlier parenting order.[4]
[3] [2024] FedCFamC1A 246.
[4] At [36].
In this case, on 12 October 2023, the court concluded that the issue of Rice and Asplund[5] is no longer an issue because Ms Larvor was seeking to relocate. However, on 6 May 2024, s 65DAAA of the Act commenced, and provides:
[5] (1979) FLC 90-725; [1979] FamCA 80.
Reconsideration of final parenting orders
(1)If a final parenting order is in force in relation to a child, a court must not reconsider the final parenting order unless:
(a)the court has considered whether there has been a significant change of circumstances since the final parenting order was made; and
(b)the court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered.
(2)For the purposes of determining whether the court is satisfied as mentioned in paragraph (1)(b), and without limiting section 60CC, the court may have regard to any matters that the court considers relevant, including the following:
(a)the reasons for the final parenting order and the material on which it was based;
(b)whether there is any material available that was not available to the court that made the final parenting order;
(c)the likelihood that, if the final parenting order is reconsidered, the court will make a new parenting order that affects the operation of the final parenting order in a significant way (whether by varying, discharging or suspending the final parenting order, in whole or in part, or in some other way);
(d)any potential benefit, or detriment, to the child that might result from reconsidering the final parenting order.
(3)Despite subsection (1), the court may reconsider a final parenting order with the agreement or consent of all the parties to that order.
(4)The failure of a court to comply with subsection (1) does not affect the validity of any order made by the court.
In Radecki, Austin and Williams JJ rejected a literal interpretation of the term “consider” in s 65DAAA, stating:[6]
We therefore conclude, for the purposes of s 65DAAA(1) of the Act, and having regard to the principles espoused in Rice and Asplund and subsequent authority, the proper interpretation of “consider” should not be a literal one. The word “consider” in s 65DAAA should be construed to mean the Court is required to contemplate the evidence and to make findings of fact as to what changes in circumstances (if any) there have been since the making of the anterior parenting orders. If there is no positive finding of changed circumstances, that is the end of the matter. If there is a positive finding as to changed circumstances, the second stage of the process requires the Court to make its determination, subject to the overarching best interests principle, as prescribed by s 65DAAA(1)(b) and otherwise having regard to relevant s 60CC considerations and the matters referred to in s 65DAAA(2).
[6] At [79], Austin and Williams JJ.
Further, Carew J said:[7]
The use of the term “consider” in s 65DAAA(1) should be understood in the context of the Court being asked to accept the applicant’s evidence taken at its highest but only for the purposes of the application. The suggestion that a court would consider whether there has been a significant change in circumstances without it having any consequence is an interpretation which would give no effect to s 65DAAA(1). Further, it has always been the case that applying the rule in Rice and Asplund is but a manifestation of the best interest principles and s 65DAAA(1)(b) and (2) merely reflect that part of the rule.
The drafting of s 65DAAA manages to achieve the subtleties of the rule in Rice and Asplund as expressed in the various permutations over the decades.
[7] At [128] and [129].
Neither party, nor the Independent Children’s Lawyer contended that the requirements of s 65DAAA were not met.
It was submitted on behalf of Ms Larvor that there has been agreement or consent of the parties under s 65DAAA(3), at least implicitly, because they are both seeking parenting orders that are different from the final parenting order. Although Mr Valena does not seek any different orders for the allocation of parental responsibility as a primary position, it is submitted on his behalf that it is likely the final parenting order, including the orders for parental responsibility, are open for reconsideration regardless of the redetermination of the parenting orders for X’s living arrangements. The ICL has raised the issue of whether the final parenting order for parental responsibility is to be reconsidered in these proceedings and in X’s best interests.
In my view, the court may reconsider the final parenting order as the parties to that order have effectively agreed or consented to the court doing so. Further, and to the extent that there may be any doubt about that agreement or consent, I have considered the evidence and am satisfied that there has been a significant change of circumstances since the final parenting order was made.
Apart from Ms Larvor’s application for orders that she be permitted to relocate to City C with X, since the final parenting order was made the dispute between the parties about X’s diagnosis of and medication for ADHD has developed. This has included allegations of the misuse of prescribed medication. The dispute about X’s academic performance and attendance at school has also developed.
In late 2022, Ms Larvor and Mr J started living together, having started a relationship some time that year. Mr Valena has made allegations of impropriety against Mr J, including that he manhandled X in mid-2023.
Since the final parenting order was made, reports have been made to H Authority by teachers at X’s school, K School. X has been interviewed by officers at H Authority, and has made disclosures about Mr Valena smacking him. Additionally, Ms Larvor withheld X from Mr Valena for approximately 4 months in mid-2023.
On 30 June 2023, Mr Valena filed his response in these proceedings, seeking orders that X live with him and spend time with Ms Larvor on terms as agreed, or to be determined. On the same day he filed his response, Mr Valena applied for a domestic violence order against Mr J, alleging that he assaulted X.
On 30 July 2023, despite the interim injunction against Mr F that had been in force since mid-2021 and had operated to interfere with the development of X’s relationship with Mr F, Mr Valena made public remarks on social media that Mr and Mrs F “local pedos”. He went on to make other remarks including, “these people and there family members are tamps liars an dogs including […]” In July 2023, Ms Larvor was diagnosed with PTSD, for which she was prescribed and takes medication.
Since the final parenting order was made, an updated child impact report by court child expert Ms L dated 28 September 2023 was prepared and made available to the parties. That report considered the disputes between the parties about X’s ADHD diagnosis and medication, and the disagreements between the parties about X’s attendance and performance at school.
In her preliminary assessment Ms L concluded that, “ … conflict and hostility between the parents is entrenched to such an extent and the communication so ineffective, that they seem unable to maintain a coparenting relationship which promotes [X]’s wellbeing.”[8]
[8] Paragraph 41.
Further, on 23 April 2024 a family report was prepared by family consultant, Ms M. In her report Ms M observed that, “The communication pattern between [the parties] is still based on a template they developed early in the relationship, with [Ms Larvor] perceiving the father as aggressive and intimidating, and [Mr Valena] perceiving her as accusatory and manipulative. This pattern of communication must stop. If the parties wish to coparent and if they do not want their son to feel trapped between warring parents, they will need to commit to changing the way they communicate. They will need to commit to attending joint counselling where they will call a truce, take responsibility for the part they have both played with respect to the circular unhelpful “tit for tat” behaviour and communication they have unsuccessfully engaged in, thus far. It is assessed that there is no trust between the parties, and that while they are both engaged in proving themselves right and the other wrong, they will not progress, and change will not be affected. It would be helpful for the parties to agree to abstain from using any social media while they are endeavouring to improve their communication and coparenting.”[9]
[9] Paragraph 82.
Given the respective positions of the parties on these matters, if the final parenting order is reconsidered, it is likely that the court will make a new parenting order that affects the operation of the final parenting order in a significant way. In all the circumstances, in my opinion it is in X’s best interests for the final parenting order to be reconsidered.
In light of the significant change of circumstances that I have found, I also consider that it is appropriate and in X’s best interests for the reconsideration of the final parenting order to include the order as it relates to the allocation of parental responsibility.
WHAT ARE THE ISSUES AND HOW SHOULD THEY BE DETERMINED?
The primary issues in the reconsideration of the final parenting orders are:
(a)Should X live with Ms Larvor in City C and spend time with Mr Valena during the school holidays, or should he live with the parties on a week about basis, or some other basis, in City B?
(b)Should the parties have shared parental responsibility for X, or should Ms Larvor have sole parental responsibility for him?
In determining whether to make a particular parenting order in relation to X, I must regard his best interests as the paramount consideration: s 60CA of the Act. In determining what is in X’s best interests, I must consider the six matters specified in s 60CC(2).
Under s 65D of the Act, I may also make such parenting orders (within the meaning of s 64B), as I think are proper, within the objects of Part VII of the Act, to ensure that X’s best interests are met. The objects of Part VII are to ensure X’s safety, and to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989: s 60B.
The purpose of a final parenting order is to regulate X’s parenting arrangements until he turns 18: s 65H(2). Because of the focus on the future, I am required to make a discretionary judgement involving significant elements of value judgements, assumptions, necessarily uncertain predictions and intuition.[10]
[10] Grella & Jamieson [2017] FamCAFC 21.
Ms Larvor’s proposal involves relocation away from City B, however relocation cases are not in a separate category of parenting case, and that question is not determined as a discrete issue. It is merely one of the proposals for X’s future living arrangements, which must be determined in accordance with the Act like all parenting cases.
In Grainger & Grainger (No 3),[11] Schonell J summarised the relevant legal principles in the following way:
[11] [2024] FedCFamC1F 470.
134A relocation case is to be determined in the same way as any other parenting case, they are not a special category of case: Morgan v Miles (2007) FLC 93-343 at [72]; Sayer v Radcliffe and Another (2012) 48 Fam LR 298 (“Sayer v Radcliff”) at [47]–[48].
135 The Full Court in Sayer v Radcliffe observed:
48.A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider the competing proposals of both parents: see Palmer (No 2) at [76]; Morgan at [80]–[81]. It is not simply a matter of comparing the relocating party’s proposal against the status quo and allowing or denying relocation. Rather the court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway.
136However, the Court is not bound by those proposals in determining what is in the child’s best interests: U v U at [80].
…
140While the best interests of the child is the paramount consideration in the making of a parenting order, it is not the only consideration. Where one of the issues involves the relocation of a child’s residence, the legitimate desires, and the right of a parent to live where they wish is an important consideration.
141In a relocation case, a parent is not required to establish “compelling reasons” in support of the place of their chosen or proposed residence: AMS v AIF; U v U (2002) 211 CLR 238 (“U v U”). However, where that legitimate desire of a parent to live where they want conflicts with the child’s best interests such that the child’s welfare is adversely affected, then the right of a parent to choose where they want to live must give way to the paramount consideration: U v U at [89].
142In Franklyn & Franklyn [2019] FamCAFC 256 (“Franklyn”), the Full Court explained the applicable law in these terms:
27.There is an inherent tension between, on the one hand, separated parents being able to establish new homes wherever they like and, on the other, their restraint by injunction from living too far apart to avoid any impingement of their children’s ability to retain meaningful relationships with both parents. The conflict is between the best interests of the children to know and have regular personal contact with each parent and the interests of the parents to enjoy a high measure of freedom of movement which is not lost by reason only of their parental responsibility for the children (see AMS v AIF (1999) 199 CLR 160 (“AMS v AIF”) at 196, 206, 207–208, 210). The tension at the intersection of those conflicting interests is even greater when an order is sought, not just to restrain one parent’s move further away, but to compel the parent who has already moved away to return and establish a new residence closer to the other parent.
28.While the children’s interests are paramount, their interests are not the sole determinant of parenting orders under Part VII of the Act (AMS v AIF at 207, 225, 230; U v U (2002) 211 CLR 238 (“U v U”) at 282). Parents enjoy as much freedom to live where they please as is compatible with their obligations pertaining to the children (see AMS v AIF at 223 –224, 231 –232; Sampson and Hartnett (No.10) (2007) FLC 93–350; Zanda & Zanda (2014) FLC 93–607 at [132]-[136]). Only when the children’s welfare would be adversely affected must a parent’s right to freedom of mobility defer to the paramount consideration of the children’s best interests (see U v U at 262).
In Adamson & Adamson, the Full Court said:[12]
These rights, and the right of freedom of mobility of a parent, only defer to the paramount consideration of a child’s best interests where those interests would be so adversely affected as to justify such interference; and then the interference is legitimate only to the extent that it is necessary to avoid such adverse effects.
[12] [2014] FamCAFC 232 at [66].
As such, neither party bears an onus to establish that an order permitting or restraining relocation is in X’s best interests. The court must weigh the competing proposals and consider all the relevant factors, including the right of freedom of movement of the parent who wishes to relocate, and how each proposal will provide advantages and disadvantages for X’s best interests.[13]
[13] AMS v AIF [1999] HCA 26; U v U [2002] HCA 36; Taylor v Barker [2007] FamCA 1246; (2007) FLC 93-345; Morgan & Miles [2007] FamCA 1230.
The conflict between the parties has a very long history. Each party attacked the other for the way they conducted themselves during the relationship and for their conduct after separation, in a way that was appropriately described by the ICL as a mutual character assassination.
Many of the matters that were traversed in cross-examination and referred to in submissions are dated. Many of them pre-date the final parenting order that was made by consent on 11 August 2022, and some of them pre-date the relationship.
Whilst I consider that an assessment of the future requires a consideration of the past, it is important to contextualise the relevance of many of the facts and circumstances relied on by the parties, many of which are contested. Further, although each party’s proposal for X’s living arrangements are fundamentally different, they both involve a continuation of his relationship with the other parent. In this each party recognises the importance of X’s relationship with the other.
In Kelly & Hutchens,[14] after noting that a trial judge is not expected to deal with every piece of evidence or grapple with every submission[15], McNab J said:
I also bear in mind that each party is proposing orders that the children spend time with each parent. The hearing was conducted with very detailed cross examination of each parent and invitations being made in the submissions to make adverse findings about each parent. To the extent that it is possible I will avoid doing that bearing in mind what was said by Nygh J In the Marriage of Chandler (1981) FLC 91-008 at [1]:
1.It is a fundamental principle in this court that, where it is clear from the evidence that the relationship between the children and each of the parents is going to continue, the court should refrain from making any finding, unless absolutely necessary, which adversely reflects upon the self-esteem or integrity of each of the parties.
[14] [2024] FedCFamC1F 662.
[15] With reference to Whisprun Pty Ltd v Dixon [2003] HCA 48 and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247.
In my view these general principles have application in this case. In different ways, both parties have been prepared to escalate conflict through conduct including engaging legal processes, knowingly ignoring and breaching court orders, making reports to authorities, involving X’s wider family, bringing personal matters into the public domain and acting unilaterally in a way that has put X in the centre of the dispute between them, year after year.
There are instances of reports to authorities that were investigated with no, or limited further action taken. There are instances of applications for domestic violence orders and personal violence restraining orders being made, and later being withdrawn or dismissed. There is evidence that reflects poorly on the conduct, judgement and insight of both parties at various times throughout the history of the dispute.
After 5 hearing days, and detailed cross-examination of each party, the prominent risk factor for X is the inability of the parties to co-parent in an effective way for him. The parties have the capability to change their behaviours in X’s best interests, but the pitfall has continued to be their willingness to change.
In Boulten & Boulten,[16] Altobelli J said of parental attitudes to conflict and change in the following way:
All this Court can do is make orders. It is for the parents to change their own attitudes towards each other in order to optimise their children’s opportunities for healthy development.
[16] [2022] FedCFamC1F 295 at [40].
In my view, determining what is in X’s best interests does not involve determining or apportioning blame for the actions of the parties spanning several years of intense conflict. An assessment of the parties’ evidence relevantly bears upon their level of insight, and their subjective feelings and attitudes about the other’s conduct. In the main, an apportionment of blame or responsibility for what has happened in the past will not assist the parties in improving their relationship in the future, and apart from where I have assessed matters to be relevant, in my view doing so will not assist in determining parenting orders that are in X’s best interests.
In Grainger, Schonell J said:[17]
If parenting disputes were to be resolved by punishing poor parental behaviour, then the result of my determination would be very different. However, they are not so determined. The Court is charged with deciding what is in the child’s best interests and sometimes as here the implementation of such mandate looks superficially like an endorsement of appalling conduct.
[17] At [167].
Where I have assessed the evidence, s 140(1) of the Evidence Act 1995 (Cth) provides that the court must find a case of a party proved if it is satisfied that it has been proved on the balance of probabilities. In deciding whether it is so satisfied, subsection (2) provides that without limitation, the court is to take into account the nature of the cause of action or defence, the nature of the subject matter of the proceeding and the gravity of the matters alleged.
SHOULD X LIVE WITH MS LARVOR IN CITY C AND SPEND TIME WITH MR VALENA DURING THE SCHOOL HOLIDAYS, OR SHOULD HE LIVE WITH THE PARTIES ON A WEEK ABOUT BASIS, OR SOME OTHER BASIS, IN CITY B?
Ms Larvor wants to go to City C to physically remove herself from the conflict that exists in City B. Whilst Ms Larvor attributes this to, “the constant conflict and harassment from [Mr Valena] and [Ms N]”, in my view the evidence shows that both parties have contributed to creating these prevailing circumstances in City B cumulatively over many years.
If X is not permitted to relocate, then Ms Larvor intends on remaining in City B, although the prospect of doing so is very disheartening for her.
X was born not long after the parties met, and not long after Ms Larvor’s relationship with Mr O had ended. That relationship was a violent one. Mr O is the father of Ms Larvor’s elder child, P, who was born in 2012 and is aged 14.
Ms Larvor described her relationship with Mr Valena to Ms M in a way that recognised it had been rushed, and that the parties did not have a lot of time to consolidate their relationship before they became parents. Mr Valena told Ms M that the relationship was difficult from the beginning.
Ms M gave the opinion that having come out of a violent relationship with Mr O when she was quite young, when she met Mr Valena, it is, “ … highly likely [Ms Larvor] was still traumatised and impacted by her previous relationship …”[18] There is no medical evidence of Ms Larvor’s PTSD diagnosis, although her evidence is that it relates primarily to “ … the ongoing situation with [Mr Valena], although the family violence [she] suffered from [Mr O] has inflicted trauma as well.”
[18] Paragraph 80.
Mr Valena married his wife Ms N in 2023. Ms N has known X since he was 3 years old, and X enjoys a close and loving relationship with her. Mr Valena and Ms N have 2 children, Q, who is 3 years old, and R, who is 2 years old. Ms Larvor’s proposal involves X’s separation from his younger siblings, and his wider paternal and maternal family in City B, which is large.
Ms M did not identify any significant alcohol or substance abuse, or mental health risk factors. As I have observed, Ms M noted a number of concerns about the parties’ parenting capacity, their willingness to prioritise X’s needs above their own, and their propensity to initiate complaints, and use social media and legal avenues to make allegations and seek retribution against one another, which in turn continues to expose X to ongoing parental conflict.
Although there is some evidence that counselling and the completion of courses (albeit court ordered) has assisted the parties in improving their co-parenting relationship, high levels of mistrust and acrimony remain. Mr Valena gave evidence-in-chief that he believes that Ms Larvor is manipulating X and telling him what to say about him, to harass and cause further damage to him. He also gave evidence that at interview with Ms L in September 2023, X seems to have been manipulated or influenced against him, with specific references to paragraphs 21 and 24 of Ms L’s report. Equally, Ms Larvor’s evidence-in-chief is that notwithstanding court orders, Mr Valena continues to smack X.
Ms M’s conclusions that Ms Larvor perceives Mr Valena as aggressive and intimidating, and that Mr Valena perceives Ms Larvor as accusatory and manipulative are consistent with the findings of Ms G, who on 4 February 2022 observed that the parents displayed a level of distrust towards each other.
X was diagnosed with ADHD later that month. As I have observed, whilst the parties were able to resolve the application for final orders made on 27 May 2021 by filing consent orders after participating in a mediation in July 2022, they were not able to resolve the ongoing conflict between them in a way that took notice of X’s diagnosis, or alleviated the risk of significant impacts on X’s emotional health and safety in the ways that had been described in Ms G’s report. That inability persisted notwithstanding similar conclusions being reinforced further by Ms L in 2023 and Ms M in 2024.
The mediation in July 2022 took place against the backdrop of Ms Larvor applying for a domestic violence order against Mr Valena in the same month, though it was withdrawn because of the family dispute resolution conference that was scheduled to take place.
Earlier, in May 2022, Ms N had made a social media post that X had been taken out of City B, “ … against a court order and travelling with a known child abuser … [X] has been taken out of town with no permission or notification … Police are unable to locate him at the moment and we are concerned for his welfare. Police are in the process of filing a missing persons report … Picture is attached please share” Further, a month later, Ms N posted to social media that X was a missing child and with a known child abuser.
In September 2022, approximately 7 weeks after the final parenting order was made by consent, the Police went to Ms Larvor’s home to discuss an allegation that she had attacked Ms N in the car park at the medical clinic after a doctor’s appointment for X.
In late 2022, a report was made to H Authority from K School that X volunteered to a teacher that Mr Valena smacks him all the time, and that Ms Larvor told him that if he does it one more time that Mr Valena is going to be in trouble. An intake assessment was conducted by H Authority and the matter was screened out. A further report to H Authority was made by the school two weeks later. It was also screened out after an intake assessment was conducted. In late 2022, an H Authority report was made by health worker. Reports continued to be made in 2022 and 2023.
In early 2023, Ms Larvor applied for a domestic violence order against Mr Valena. A month later, she made a report to H Authority about risks to X while in Mr Valena’s care. On the same day, Mr Valena applied for a domestic violence order against Ms Larvor, and Ms N applied for a personal violence restraining order against Ms Larvor.
In early 2023, an interim domestic violence order was made against Mr Valena, naming Ms Larvor as the protected person. Mr J applied for personal violence restraining orders against Mr Valena and Ms N, but a week later, he withdrew his applications, and Ms N’s application for a personal violence restraining order against Ms Larvor was dismissed. In early 2023, a report was made to H Authority by X’s school. Again, an intake assessment occurred and the matter was investigated.
In mid-2023, Mr Valena alleged that Mr J manhandled X. He said that Mr J physically restrained X from having contact with him and that he called 000. He said the Police investigated but that no charges were laid. This incident is said to have occurred on the day after Ms Larvor withheld X from Mr Valena.
In mid-2023, Mr J returned to court to apply for a personal violence restraining order against Ms N, but it too was subsequently withdrawn.
On 30 June 2023, the day that he filed his responsive material in these proceedings, Mr Valena applied for a domestic violence order against Mr J, making allegations that Mr J assaulted X in early 2022, more than a year earlier, by kicking him, as well as assaulting him in mid-2023. As part of the evidence led in support of his application, Mr Valena submitted a statutory declaration by Ms N made in mid-2022, in which she gave an account of an incident that suggests Mr J kicking X at S Venue in early 2022 was in terms that Ms N was “not sure if it was playful”.
Mr J denied the allegations made against him, and Mr Valena withdrew the domestic violence order application against Mr J in late 2023.
In large measure, there are considerable factual differences between the parties’ versions, and outright denials of the allegations made by the parties and their partners, in these various incidents. I do not consider it possible or necessary for me resolve these. I agree with the submission made by the ICL that the history demonstrates that the lens through which the parties have seen and interpreted the actions by the other and their new partners and families has been self-centred, negative, and not child focused.
The parties have been prepared to accept uncritically the reports made by X to them and to authorities, failing to take into account his age, the complexities of the family environment that they created for him and the impact of their words and actions on him. They have acted on the reports in serious ways, without taking steps to independently investigate or verify the accuracy of what are objectively speaking very serious allegations of mistreatment of X, and without adequately considering why X might have said the things he did at various times.
I appreciate that both parties were affected by significant stresses at times, which may provide some explanation for their conduct. In June 2023, X was being withheld from Mr Valena. In his evidence he said this was a terrible time. That stress was doubtlessly exacerbated by the fact that very little, and only extremely general information had been supplied to him as to the basis for why X was being withheld from him, and court proceedings had been initiated against him in this court as a consequence, based upon a review taken by Ms Larvor that the final parenting order was no longer in X’s best interests. I accept that the actions taken by Mr Valena at this time involve a degree of lashing out, however they are not responsible or child focussed behaviours.
In late 2023, Ms Larvor made reports to Police about the social media posts made some 2 months prior, and included an allegation that Mr Valena followed her in his car from X’s school, also in mid-2023. A Police investigation deemed there to be insufficient evidence to take any further action.
Ms G’s report was released to the parties on 4 October 2023. The report is critical of Ms Larvor and her decision to withhold X from Mr Valena, inasmuch as it stated, “[X] has not spent any time with his father for approximately three months which, in the absence of abuse, would be likely to cause him feelings of confusion and loss … [X] appeared to be a highly sensitive and perceptive child, and it was the writer’s impression that he wanted to have a relationship with his father, but was so strongly impacted by the adult issues, that the easier and more emotionally comfortable option for him was to align with his mother and reject his father.”[19]
[19] Paragraph 37.
Notwithstanding these observations, and Ms G’s preliminary assessment that the parties appeared unwilling to maintain a co-parenting relationship which promotes X’s wellbeing, Ms Larvor did not positively respond or change her behaviour. She did not start communicating with Mr Valena about X, and nor did she permit X to spend time with him.
On 10 October 2023, Judge Willis made orders requiring the parties to exchange offers the following day, and on 12 October 2023, there being no agreement, her Honour made orders that established a regime for X’s wellbeing and reinforced to the parties the imperative that they change their behaviours for X’s benefit.
Her Honour also considered the application of Rice and Asplund and X’s living and care arrangements. At that time, X had not seen or spent any time with Mr Valena since 22 June 2023, when Ms Larvor withheld him from Mr Valena.
It appears to me that Judge Willis clearly identified in the materials, on untested evidence, that the years long conflict between the parties, extending to their wider family units was having a deleterious impact on X and it needed to cease with considerable urgency.
It is also clear to me that the orders that were made on 12 October 2023 were significantly influential in abating, to some extent, the conflict between the parties and imposing a regime for regulating their co-parenting relationship. Orders were made for X to recommence spending time with Mr Valena, but orders were also made for the parties to comply with directions of X’s medical practitioner about his ADHD. Orders were made requiring the parties to complete the post separation, cooperative parenting course, “Bringing up Great Kids”.
Her Honour made orders imposing a number of injunctions, and requiring the parties to file undertakings in prescribed terms as follows:
(a)Ms Larvor file an undertaking in terms that provide, “Whilst the child is in my care, whilst talking about the father to the child, I will not refer to him as “mean” or any other derogatory term. I will desist from making any comments to the child about the father that could undermine the child’s relationship with the father. I will not engage in any physical discipline of child and will ensure that my partner does not engage in any physical discipline of the child.”
(b)Mr Valena file an undertaking in terms that provide, “I will not engage in any physical discipline of the child.”
Orders were also made obliging each party to ensure that X attend school every school day, when he is in their care.
The orders made by Judge Willis probably acted as a comfort to each party to the extent that each other was required to file undertakings that responded to their unresolved concerns about the other. The orders probably also imposed upon the parties a clearer approach that they needed to take to each other, and to X, to enable them to be more attuned and responsive to his needs.
Whilst the parties indicted that they received Judge Willis’ orders in that spirit, unfortunately the making of the orders did not entirely eliminate the conflict between them. In late 2023, a judge delivered reasons for decision in the cross-applications for domestic violence orders, after a hearing in mid-2023. His Honour dismissed Mr Valena’s application and found Ms Larvor’s application established.
His Honour imposed a domestic violence order upon Mr Valena for 2 years from late 2023. Ms Larvor and X are the named protected persons. The order is in place until late 2025 and restrains Mr Valena from directly or indirectly:
(a)causing harm or attempting or threatening to cause harm to Ms Larvor or X;
(b)causing damage to property, or attempting or threatening to cause damage to property belonging to Ms Larvor or X;
(c)intimidating or harassing or verbally abusing Ms Larvor or X;
(d)stalking Ms Larvor or X;
(e)exposing Ms Larvor or X or Ms Larvor’s children to domestic violence.
Soon after this, and notwithstanding Mr Valena’s evidence in cross-examination that the orders made by Judge Willis were the best ever made, at Christmas 2023, approximately four weeks after the judge’s reasons were delivered, Mr Valena gave X a mobile telephone. He did not discuss doing so with Ms Larvor beforehand. In the new year, in early 2024, Mr Valena told Ms Larvor that he had purchased a mobile telephone for X at a change over. That discussion took place in X’s presence. X is aware of the divide between the parties in relation to his use of technology, telling Mr Valena at the time of the interviews with Ms M, “Mum doesn’t like any devices from your house going to Mum’s”, to which Mr Valena did not respond.[20]
[20] Paragraph 76.
In circumstances where the issue of purchasing a mobile phone for X is significant, in my opinion this is an important example of inadequate communication. It is also inconsistent with Mr Valena’s case and the orders he is seeking. In particular, he seeks an order that “Upon [X] reaching the age of 10 or 11 (as agreed) the parties shall discuss and consider [X] having a communication device of his own.” However, Mr Valena unilaterally provided X with a telephone around Christmas time 2023. Whilst the focus of the evidence was on the mobile telephone, I accept that the terminology of communication device and the impact of such an order goes substantially further than a mobile telephone.
In cross-examination, Mr Valena said that X still has his mobile telephone, and that he has not taken it off him permanently. He said that he will do so when he has an agreement with Ms Larvor. He said that he and Ms Larvor need to talk and agree. This evidence does not sit comfortably with the circumstances in which X was given the mobile telephone by Mr Valena.
Further, although it post-dates Mr Valena’s actions, Ms M’s opinion is that, “[X] is not old enough to be responsible for a communication device at this stage, and thus all communication with either parent is to occur via telephone and/or a device such as iPad belonging to a parent … That when [X] reaches the age of 10 or 11, the parties may wish to consider him having a communication device of his own.”[21]
[21] Paragraph 86.
Ms Larvor’s evidence is that by having a mobile telephone of his own, it has disrupted X and heightened the risks of dysregulation, including on 7 February 2024, when he had left his phone at home, and on 15 February 2024 when he went to his phone as soon as he woke up. On a school day, he became dysregulated when he arrived at school because he had to put his phone a way.
I agree with the ICL’s submission that Ms M doesn’t necessarily have any particular expertise to give an opinion as to when may be an age-appropriate time for a child generally, or X in particular, to have a mobile phone. I also agree that the issue is an example of a dispute that commonly arises between parents, and is a matter for parents to determine in the implementation of a functional co-parenting relationship.
The orders sought by Ms Larvor involve a shared cost of travel for X. The financial statement filed by Mr Valena on 29 January 2024 shows a reasonably limited income, however he has also included a number of assets. It is not contended that Mr Valena does not have the financial ability to pay for the costs of travel that are associated with Ms Larvor’s proposal.
Mr Valena has given evidence-in-chief of his understanding of airline costs to City C, and housing costs in City C. He has pointed to the high costs involved in him travelling to City C with his family. Whilst I accept there is a financial burden that will be imposed upon Mr Valena that is inherent in Ms Larvor’s proposal, Mr Valena has not given any evidence that he is not able to meet those costs.
Is there sufficient detail of Ms Larvor’s plans for X in City C?
There is an opportunity for X’s education and health supports to be provided for in City B. The evidence of what is available in City C is more generally expressed. It is a significant matter for X in the conflict. It is unknown in City C. Ms Larvor has not attended to these arrangements to date. Mr J does not yet have a job, and neither does she. They are confident of getting employment, and setting a life up in City C, but there is a lot that is currently unclear.
These matters are relevant in my consideration of X’s best interests, and to Ms Larvor’s level of planning. Although there is some uncertainty, there is no reason for me to doubt Ms Larvor and Mr J will be able to obtain housing, and also put arrangements in place for X’s schooling. There is no basis for me to doubt the costs associated with a move can be met.
However, Mr Valena has pointed to the lack of detail around the life X will lead in City C, and the inconsistent remarks made by Ms Larvor about moving there. She was reported by Ms L to have been “not in any hurry” to move to South Australia, however in cross-examination she said that she did not use those words.
Further, Ms Larvor accepted in evidence that she was incorrect when she said that City C is an approximately two hour drive from Adelaide, or a 45 minute flight. The travel time between Adelaide and City C is more in the nature of approximately 7 hours by road. Ms Larvor accepted that she did not look into flight details between Adelaide and City C. She is aware, from having used it before, that there is transportation between Town W and Adelaide, but she is not aware how frequently it travels, or how much it costs.
Ms Larvor has looked into the available facilities in City C, including the leisure centre with a swimming pool and slides, she is not sure of the name of the leisure centre. She agreed it may be the City C Leisure Centre.
It was contended on Mr Valena’s behalf that there was a clear lack of planning and research by Ms Larvor into life in City C. In my view, there is some substance to this submission, but I do not find that there is insufficient evidence of support for X in City C. Clearly, there are unknowns, and work that needs to be done by Ms Larvor and Mr J in securing employment, obtaining accommodation, and enrolling X in school.
However, Ms Larvor has given evidence of her intentions in these regards, and of enquiries she has made with City C Hospital about X’s ongoing health needs, and of schooling at Y School. Ms Larvor has family in Adelaide, and Mr Valena and Ms Larvor previously lived for a period of time in Town Z in South Australia.
Mr J considers he is confident he will obtain a job in the trades industry, and Ms Larvor intends to seek work in the community sector.
Additionally, Ms Larvor told Ms M that despite her desires to remove X from being exposed to ongoing conflict between the parties by relocating to City C, she would like to move in about 18 months, the interviews being conducted in early 2024. Ms M went on to express some confusion between Ms Larvor’s fear of Mr Valena, against a proposal to relocate in 18 months.[36]
[36] Paragraph 87.
Ms Larvor pointed to Ms M’s recommendations as a basis for her change of view. That recommendation needs to be read in context, and in full is “If the Court finds that based on historical factors (the ongoing conflict between the parties since separation) and the current presentations of the parties, and the harm to [X] as a result of being trapped in his parents’ ongoing conflict, that there is little confidence in the parties being able to improve their coparenting relationship, it may be necessary to consider the mother’s proposal for her to move away from [City B] and that the relocation occur sooner rather than later.”[37]
[37] Paragraph 93.
In making that recommendation, Ms M went on to anticipate that this would be a decision that the court might make should it find that relocation is the only way to protect X from “the relentless and irretractable conflict between his parents, and there being little chance of the parties being able to improve their current coparenting of [X]”[38]
[38] Paragraph 94.
Ms Larvor agreed that the co-parenting relationship has slightly improved. She also agreed that she wouldn’t propose 21 consecutive nights for X to be in Mr Valena’s care if she felt there was a real risk to his safety. When it was put to her that what had really changed was that she wanted to propose an order that was more likely to succeed, Ms Larvor agreed.
Whilst there are arrangements that need to be put into place, I do not consider that Ms Larvor’s application to relocate to City C with X is unduly ill-conceived or unprepared.
Conclusions as to living arrangements for X
Weighing the advantages and disadvantages of each party’s proposal for X that I have identified up, in my opinion it is not in X’s best interests for him to remain in City B and commence a shared care living arrangement between the parties, or one that may involve him spending 8 nights each fortnight with Ms Larvor and 6 nights with Mr Valena.
I do not consider that the parties have a relationship that enables such an arrangement to operate for X’s benefit.
Whilst I agree that relocation is not the only way to protect X from the environment that the parties have created for him – that a solution is also the parties taking the necessary steps to end the cycle of conflict – I am unable to conclude that that is likely to the extent necessary in the longer-term future.
I consider that Ms Larvor’s proposal to relocate with X to City C is in his best interests.
I also consider that X should spend time with Mr Valena as agreed between the parties, but failing agreement for the Terms 1, 2 and 3 school holidays in South Australia, and for half the Term 4 school holidays.
X should communicate with Mr Valena as agreed between the parties, but failing agreement twice each week and on days of significance.
SHOULD THE PARTIES HAVE SHARED PARENTAL RESPONSIBILITY FOR X, OR SHOULD MS LARVOR HAVE SOLE PARENTAL RESPONSIBILITY FOR HIM?
A parenting order that deals with the allocation of responsibility for making decisions about major long-term issues in relation to the child, may provide for joint or sole decision-making in relation to all or specified major long-term issues.[39] If an order provides for joint decision‑making in relation to major long-term issues, then the parties are required to consult each other in relation to each decision and make a genuine effort to come to a joint decision.[40]
[39] Section 61D(3).
[40] Section 61DAA.
The parties have improved themselves from their lowest points, but that improvement was necessary regardless of what the parenting arrangements for X were determined to be on a final basis, and regardless of whether X was to live in City B or City C. A continuation of their pattern of behaviour, and entrenched cycle of conflict, is untenable.
The improvement that has occurred, despite the areas of conflict that still exist, provides me with greater confidence that the parties are capable of co-parenting in a way that is in X’s best interests, in circumstances he may not be living in the same city as both parents.
Ms Larvor told Ms M on 8 March 2024 that it was proposed, “ … she have sole parental responsibility for [X] and that she would keep the father informed in writing of any medical decision she makes in relation to [X], and that she will consult with the father before making any decisions concerning [X]’s best interests and will inform the father in writing of her decisions.”[41]
[41] Paragraph 19.
I consider that the retention of joint parental responsibility and decision making for major long-term issues is an important aspect of X’s wellbeing and in his best interests, in circumstances where he relocates to City C. The major long-term health issues that are in the most immediate focus are education and health.
I accept the submission by the ICL that a form of hybrid order for major long-term issues is appropriate. Given the history of conflict and progress between the parties on these issues, especially in education and health, I consider that an order allocating sole parental responsibility to one party or the other risks exacerbating conflict and acting counter-productively to the parties’ improvement and co-parenting strategies and objectives.
However, if the parties are not able to reach an agreement on any decision about a major long-term issue, I also agree that Ms Larvor should have the ultimate determinative authority in relation to the decision, particularly as X will be living with her in City C and it will fall to her to implement the arrangements.
I also note Ms Larvor has already proposed that X goes to school at Y School. This was not the subject of any detailed evidence at the hearing. Education is clearly something that is very important to Mr Valena, and a subject that he has strong views about the importance of, and he has previously offered to pay for X’s private school fees. Ms Larvor proposes that the parties share those costs.
I consider in the context of parental responsibility and decision making, that the issue of X’s medication and dosage is a day-to-day issue, rather than a major long-term health decision.
I do not consider that an order conferring sole parental responsibility or sole decision making upon Ms Larvor is in X’s best interests, for these reasons.
WHAT ORDERS SHOULD BE MADE?
The parties agreed that the night X has with Mr Valena in the second week of each fortnight in the current arrangement should be discontinued, and block time is in X’s best interests.
Ms Larvor said she was supportive of X’s time with Mr Valena increasing in line with X’s own capacity increasing. Ms M spoke about an increase of time to six nights each fortnight with Mr Valena, preceded by a family therapy stepping-stone. That therapy is yet to take place.
I intend to make orders permitting X to relocate to City C with Ms Larvor, and for him to spend time with and communicate with Mr Valena in line with the proposal for school holidays and twice-weekly communication by AppClose, in the absence of agreement otherwise. When X is with Mr Valena, he should likewise communicate with Ms Larvor by AppClose. The regulation of the parties’ communication through AppClose other than in prescribed circumstances is also appropriate.
I also consider it appropriate to make orders for the parties to arrange and share the costs of travel in accordance with the orders proposed. Further, the relationship between the parties is a painful and upsetting topic for X, and I consider that it is consistent with his emotional, psychological and social development that he receive all necessary supports that are in his interests in City C. I consider it is appropriate, in all the circumstances, that X not be required to travel by air alone until he reaches the age of 12 years. I also consider it appropriate that the parent who is responsible for X’s travel be the person who accompanies him on the flight.
I will make orders for therapeutic support in line with those proposed by Mr Valena. In my view, it is imperative that the parties improve their co-parenting relationship, and learn to understand and implement child-focussed behaviours and strategies over distance. This is particularly important given that the parties will now live geographically apart.
Section 68B Injunctions
An order under s 68B of the Act is a parenting order for the purposes of s 64B of the Act. An order under s 64B is informed by the best interests of the child, but it is not governed by the paramountcy principle.[42]
[42] Hedlund & Hedlund [2021] FedCFamC1A 84 at [114] – [118].
Section 114AB(2) applies to the Domestic and Family Violence Act 2007 (NT), as a prescribed law under reg 19 of the Family Law Regulations 1984 (Cth).
Section 114AB prevents the court from making many of the injunctions sought by Ms Larvor and the ICL against Mr Valena, as the domestic violence order made by the judge provides for the same protections in many of the orders that are sought. The domestic violence order remains in force until late 2025. Whilst many of the s 68B injunctions against Mr Valena cannot be granted within this time, orders may be made to commence upon the expiry of the domestic violence order.[43]
[43] Hopkins & Elliott [2023] FedCFamC1F 167 at [22].
I consider that the evidence establishes that it is necessary and appropriate for X’s welfare for the parties to be restrained in the terms that are set out and which were agreed in the final parenting order, and ordered by Judge Willis. I will order restraints under s 68B to apply to Ms Larvor. I will also order restraints to apply to Mr Valena. To the extent that I have assessed there to be overlap between these and those imposed by the judge, I will order them to commence upon the expiry or revocation of the domestic violence order made in late 2023.
However, I do not intend to make an order restraining the parties from providing X with a mobile telephone, given the evidence about this. Whilst the parties are in some level of agreement about the order sought, I do not consider it appropriate to make the order for communications devices.
Imposing a restraint on the parties from permitting X to have a communication device, or a mobile phone, until he reaches the age of 10 or 11 as they may agree, in circumstances where he has already been given a mobile telephone, creates the clear risk of disagreement between the parties, and the risk of interfering with X’s wellbeing. I do not consider it is in X’s best interests for the mobile phone to be effectively taken off him, notwithstanding the circumstances in which it was given to him. Further, I agree with the ICL that the order is capable of covering many different types of devices, including gaming devices, which X enjoys playing with Mr Valena, and from his evidence, it is clear that Mr Valena enjoys playing with X.
I will not make the orders sought by Ms Larvor in terms expressed to restrain the parties from discussing parental conflict, or inappropriate adult content with X, or from questioning him about the other parent or their household. In my opinion the intent of these restraints is covered by the other restraints that I will make. I also consider that an element of subjectivity is included within these restraints which is open to confusion and misinterpretation and risks the parties becoming engaged in further disputes about the orders.
I will also order that should any disputes arise between the parties about the orders I will make, they shall attend counselling or mediation, or family dispute resolution, before any application is made to the court.
I will discharge previous parenting orders, and I will release the parties from the undertakings they gave in accordance with Judge Willis’s orders. Those undertakings performed an important role at the time they were given, but they are no longer necessary.
OTHER MATTERS
I appreciate that Mr Valena wants X to remain in City B where his family is, and where X was born and has spent most of his life. I appreciate the significance of what a decision of this kind means for X, Mr Valena and his family, as well as for Ms Larvor and her family.
Ms M’s recommendation was that it may be necessary to consider a move in accordance with Ms Larvor’s proposal to occur sooner rather than later. Apart from that, in my view there is significant benefits in mitigating disruption, for a relocation to a new town to occur before the commencement of the new school year.
Ultimately, as it was expressed by Ms M, the inherent conflict in the parties’ relationship is self-evident by them litigating a 5-day trial probing historical aspects of their lives and their relationship, in proceedings initiated within a year after agreeing a final parenting order by consent.
I have taken notice of what has developed since that time, but I am unable to find that the parties have improved their relationship to the extent where it is in X’s interests for him to remain in City B.
I recognise that the timing of the delivery of these reasons in the making of these orders is very close to the commencement of a new school year. It gives the parties and X limited time before the commencement of the new school year to adjust to the changes in the parenting arrangements that will take place as a result of the orders that I have determined are in X’s best interests.
It was accepted on Ms Larvor’s behalf that there will be a disruption for X, in changing to a new school, new environment and making new friends, in circumstances where he has been through a lot.
The orders that I have made will require Ms Larvor to put immediate steps in place to give effect to a move to City C, so as to settle X into his new environment as best as possible, before he starts school.
I have considered whether it may be in X’s best interests for a relocation to be permitted at a later time, for example in 2026. However, given my findings, and the significance of an order permitting relocation, I am concerned that such an order risks exacerbating conflict between the parties in the meantime, and will operate contrary to X’s best interests as a result during the intervening period.
For these reasons, I will make orders that give effect to a relocation to occur immediately, with the intention for Ms Larvor to make arrangements for appropriate schooling, health, accommodation and other necessary requirements for X, immediately.
I consider it will be in X’s best interests to spend time with Mr Valena before he leaves for City C. Given the uncertainties around timing, I will not make any orders about the time X should spend with Mr Valena pending his relocation. I expect the parties can agree this time spent in the circumstances, however I will grant liberty to apply on this issue, in the event that an agreement is not possible.
I certify that the preceding two hundred and thirty-nine (239) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Liveris. Associate:
Dated: 16 January 2025
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