LEGGETT & CLELAND
[2020] FCCA 2470
•18 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LEGGETT & CLELAND | [2020] FCCA 2470 |
| Catchwords: FAMILY LAW – Parenting – dispute as to parenting arrangements for child aged nearly 9 – competing live with applications – where mother has been primary carer – Held in child’s best interests to remain living with mother and spend weekend time with father during school terms. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 61DA, 65DAA, VII |
| Cases cited: Doyle & Doyle (1992) FLC 92-286 |
| Applicant: | MS LEGGETT |
| Respondent: | MR CLELAND |
| File Number: | LEC 655 of 2015 |
| Judgment of: | Judge L. Turner |
| Hearing dates: | 5 March 2020 and 6 March 2020 |
| Date of Last Submission: | 14 April 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 18 September 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Smith |
| Solicitors for the Applicant: | Beek & Gallagher Legal |
| Counsel for the Respondent: | Mr Priestley |
| Solicitors for the Respondent: | Hunter Family Law |
FINAL PARENTING ORDERS
That all previous parenting plans reached and parenting orders made prior to 5 March 2020 are hereby discharged.
That these final parenting orders are to be read in conjunction with the final parenting orders made by consent on 5 March 2020.
That the child X born in 2011 (the child) live with the mother.
That the father spend time the child during school terms on the second and sixth weekend from 6.30pm Friday until 6.00pm Sunday (Australian Eastern Standard Time).
That the mother within 6 months from the date hereof undertake either online or face to face and provide to father written proof of completion of:
(a)Triple P Program.
(b)Circle of Security
That the parties within 6 months from the date hereof undertake either online or face to face and provide to each other written proof of completion of a Parenting Orders Program.
That prior to the father making any complaints about the mother to the Department of Communities and Justice, the father raise his concerns about the child with the mother in writing and provide the mother with an opportunity to address these concerns.
IT IS NOTED that publication of this judgment under the pseudonym Leggett & Cleland is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
LEC 655 of 2015
| MS LEGGETT |
Applicant
And
| MR CLELAND |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties are in dispute as to the future parenting arrangements for X who is nearly 9.
Agreed final orders
At the first day of the final hearing the parties reached the following parenting orders by consent:
a)The parties have equal shared parental responsibility for the child.
b)The parties make the day-to-day decisions for the child when the child is in their care.
c)How the exchange of information is to take place.
d)Changeover occur at Town B Service Centre.
e)Time for the child with the parties during school holidays.
f)Time for the child with the parties on Mother’s Day and Father’s Day.
g)How the child is to communicate with the parties.
h)What is to be done in the event of medical emergencies for the child.
i)Orders as to non-denigration and respect.
j)Parties not to use illicit substances or drink alcohol to excess.
k)How international travel with the child is to take place.
Proposals
Mother
The mother seeks the following orders:
a)The child live with the mother.
b)During school terms the child spends time with the father for three weekends on the third, sixth and ninth weekend of the school term from 5.00pm Friday to 5.00pm Sunday.
In the alternative if the court orders for the child to live with the father then the mother seeks that the child spends time with the mother during school terms for three weekends on the third, sixth and ninth weekend of the school term from 5.00pm Friday to 5.00pm Sunday.
Father
The father seeks the following orders:
a)The child live with the father.
b)During school terms the child spend time with the mother for two weekends on the second and sixth weekend of the school term from 6.30pm Friday to 6.00 Sunday.
In the alternative if the court orders for the child to live with the mother then the father seeks that the child spend time the father during school terms for two weekends on the second and sixth weekend of the school term from 6.30pm Friday to 6.00 Sunday.
Issues
The issues requiring determination are:
a)With whom should the child live?
b)The number of weekends the child is to spend with the non-resident parent during school terms.
Evidence
In considering these issues regard has been had to:-
a)The material as marked on the court file with a red tick.
b)The written and oral evidence of the parties and witnesses.
c)The two family reports released by Ms C in 2018 (first family report) and 2019 (second family report).
d)The exhibits.
e)The transcripts.
f)The written and oral submissions.
g)Part VII Family Law Act 1975.
h)Relevant authorities.
The parties are legally represented.
For the mother the following witnesses were called and cross-examined:
a)The mother.
b)Mr D (the mother’s partner) (Mr D).
I find the mother and Mr D to be credible witnesses.
For the father the following witnesses were called and cross-examined:
a)The father.
b)Ms E (the father’s fiancé) (Ms E).
I find the father and Ms E to be credible witnesses.
Ms E has spoken to the mother’s foster sister Ms F, through messaging, about the mother’s behaviours ([25] to [27] Ms E’s March 2020 affidavit).
Ms F provided Ms E with information about the mother from an ex-roommate of the mother’s, Ms G ([Annexure ‘B’] Ms E’s March 2020 affidavit).
The paternal grandmother, Ms H wrote a “to whom it may concern” letter regarding the mother ([Annexure ‘C’] Ms E’s March 2020 affidavit).
Ms F, Ms G and Ms H have not provides affidavits and were not called as witnesses to support the father in the final hearing.
As such, no weight has been given to the messages of Ms F and Ms G and the letter of Ms H as this evidence was unable to be tested.
Further there was evidence in the form of text messages attached to the father’s affidavit from the mother’s biological mother, who is now deceased.
Weight has not been given to this evidence.
In addition the family report writer was cross-examined.
I give consideration to the oral and written evidence of the family report writer and find her to be a credible witness.
Findings of fact are made on the balance of probabilities having regard to the evidence and in what follows statements of fact constitute findings of fact.
Relevant history
The relevant history is as follows:
a)The mother, aged 29 is a stay at home mother.
b)The father, aged 30 is a sales manager and works fulltime in sales.
c)In 2008 the parties commenced cohabitation.
d)In 2011 X was born.
e)In January 2012 the parties separated under the one roof.
f)At the time the parties were living in Town J New South Wales.
g)In June 2013 the father physically left the mother and child and moved to Queensland.
h)In 2013 the mother relocated to Town K.
i)In 2013 the father commenced a relationship with Ms E (Ms E).
j)In 2014 the father commenced cohabitation with Ms E.
k)In 2013/2014 the father’s time with the child was limited due to distance.
l)In 2014 the mother gave birth to L (a child from another relationship) who is in her primary care.
m)In December 2015 the parties filed an application for consent orders.
n)In January 2016 final parenting orders were reached by consent whereby:
i)The parties have equal shared parental responsibility for the child.
ii)The child live with the mother.
iii)The child spend time with the father on the second and sixth weekend from 7.30pm Friday to 6.00pm Sunday during school term.
iv)The child spend time with the father for half of the school holidays.
v)The child spend time with the father on Father’s Day and with the mother on Mother’s Day.
o)From January 2016 the parties abided by the court order.
p)By 2017 the mother was living in the Town M area.
q)In or around August 2017 the parties entered into discussions as to a change in the parenting arrangements.
r)In September/October 2017, after the school holidays, the father retained the child in his care, changed the child’s schooling and ceased time between the mother, L and the child.
s)In November 2017 the parties were unsuccessful in trying to arrange mediation.
t)In December 2017 the mother commenced parenting proceedings.
u)In the accompanying Notice of Risk the mother raised concerns as to the impact on X by the imposed change of residence by the father.
v)In December 2017 the father filed his response.
w)In the accompanying Notice of Risk the father raised concerns as to physical, psychological and sexual abuse in the mother’s household due to poor hygiene in the mother’s household, overuse of excessive force for punishment for the child, the mother’s behaviour and lack of control over her emotions and the mother telling the child that her vagina is her “happy spot”.
x)In December 2017 it was court ordered for the child to be returned to the mother and for time for the father to recommence in accordance with the January 2016 court orders.
y)In early 2018 the mother moved to Town N.
z)In March 2018 the first family report was released which recommended “if the court finds that the father’s views and assertions are more accurate than the mothers, that it makes orders in line with the father’s response providing for the parents to have equal shared parental responsibility for X; that she lives with her father; and spends 2 weekends per term with her mother and sister as well as half of the school holidays and time on special occasions” ([53] first family report).
aa)In 2018 the mother commenced a relationship with Mr D.
bb)In late 2018 the parties again entered into unsuccessful discussions for a change in the parenting arrangements for the child.
cc)In 2019 the mother and Mr D moved with the children to Town O which is a short drive from Town N.
dd)In August 2019 the second family report was released which recommended that “the recommendations are unchanged from the previous assessment”.
ee)In November 2019 court orders were made for the father to sign and return the passport application for the child to the mother.
ff)In March 2020 the matter proceeded to a two-day final hearing.
As at the time of the final hearing:
a)The father lives at Suburb P in Queensland with his partner Ms E who is pregnant with their first child.
b)Ms E works part time at Employer Q.
c)The father and Ms E intend to marry later in the year.
d)The father works full-time as well as some weekend work.
e)The mother lives with Mr D, X and L at Town O in New South Wales.
f)The mother works part time for two days a week during school hours.
g)The travelling distance between Suburb P and Town O is approximately 2½ hours each way.
h)The father spends time with X two weekends each school term and half the school holidays.
The law
I will now turn to the law.
The principles governing the determination of competing parenting applications are set out in Part VII Family Law Act 1975.
In essence, when making a parenting order the Court must consider what is in the best interests of the child pursuant to section 60CA.
But, as succinctly put by Murphy J in Hardie & Capris [2010] FamCA 1046 at [48]:-
“‘Best interests’ is not the application of a theoretical construct but rather, the practical application of a number of considerations relevant to the individual needs, desires, health and aspirations of the particular child… of this parenting relationship.”
As discussed by the Full Court in Moose & Moose [2008] FamCAFC 108 at [66] the role of the judicial officer in making orders which are in the best interests of the child is to determine the best interests having regard to “the matters set out in section 60CC(2) and (3), guided in …consideration of the provisions by the objects set out in section 60B(1) and the principles underpinning it contained in section 60B(2).”
As to the primary considerations and the leading authority of Mazorski v Albright (2007) 37 Fam LR, Brown J refers to such considerations as “the twin pillars”:-
a)Where the first pillar is the importance of a child to have a meaningful relationship with both parents; and
b)The second pillar is the need to protect children from physical and emotional harm.
In deciding what is in the best interests of the individual child, sections 61DA and 65DAA come into play, because if the child is subject to an equal shared parental responsibility order, then equal or substantial and significant amount of time to be spent by the non-resident parent, if reasonably practical, must also be considered.
Before considering the law it is necessary in this matter to make some preliminary findings.
Preliminary findings
Mother’s credibility
The mother during the course of the proceedings has not always shared information accurately with the family report writer or with the court.
The father, in written submissions, goes to great length to pinpoint the discrepancies and on that basis submits that the mother is not a credible witness.
Conclusion
I find that the mother, unlike the father and Ms E, is not articulate in her presentation and it is apparent that her lack of education and knowledge on some issues does the mother a disservice.
Add to that her difficulties at times to hear and not responding well under pressure and consequently situations arise where the mother says one thing but means another.
I find however that there was no ill intent by the mother.
The court must take into account the individual and not fall into the trap of preferring one party’s evidence over the other just because that party’s presentation is far more polished than the other.
Where relevant to the issues to the determined the discrepancies have been addressed throughout the judgment.
Otherwise I find that the mother to be a credible witness.
Mother’s physical health
In early 2017, after being diagnosed with cancer, the mother undertook numerous treatments including radiotherapy and chemotherapy, which lasted several months.
This left the mother with long lasting side effects such as sinusitis, damaged saliva glands and loss of hearing in both ears.
The mother had another cancer scare in 2018 but it turned out to be a false alarm.
The mother is now in remission.
Conclusion
I find that the mother’s physical health does not impact on the mother’s ability to care for X and therefore this is not a factor to take into account when determining the future parenting arrangements for the child.
Mother’s mental health
The father maintains that the mother suffered from postnatal depression after the birth of X and that her mental health issues continue.
The father informed the Department of Justice and Communities (DCJ) in September 2019 that the mother had mental health issues.
The DCJ notes in September 2019 state “there was no indication that” the mother “suffered from a mental health. DCJ records do not indicate that she has previously been diagnosed with any mental health conditions”
The mother admits to suffering from depression on and off since her teenage years due to incidences that happened during her childhood and at times sees a social worker at the local neighbourhood centre ([75] trial affidavit).
The mother is not medicated for her depression.
Conclusion
I find that the mother’s mental health does not impact on the mother’s ability to care for X and therefore this is not a factor to take into account when determining the future parenting arrangements for the child.
Mother’s abuse of alcohol and use of illicit substances
During the first family report interviews the father said that “the mother has exposed X to situations where alcohol and substance abuse is the norm” ([11] first family report).
The father also raised the issue with DCJ who notes in September 2019 that the mother “did not identify having any past or current substance use issues. No drug paraphernalia was observed in the home and” the mother “did not appear substance affected. DCJ records do not indicate that substance use has been an issue”.
The mother says “she does not use illegal drugs and drinks alcohol minimally” ([21] first family report).
Conclusion
In the absence of any independent evidence to support that alcohol is being misused and that illicit drugs are being used in the mother’s household, then a finding cannot be made that this is an issue to be taken into account when determining the future parenting arrangements for X.
L’s health
L is not the subject to these proceedings.
Yet, her health issues became an issue in this matter because at times the mother said that L was diagnosed with autism, where it appears that the evidence supports that L has ADHD and suspected autistic traits but has never been officially diagnosed with autism.
Much was made of this issue with the family report writer joining in on the conversation noting that to her L did not display autism, even though the family report writer is far from qualified to make such an assessment.
DCJ notes in September 2019 “after speaking with L’s educator it was confirmed that” the mother “has consistently sought medical treatment for her when required”.
Conclusion
The mother has concerns about L’s behaviour as she can be a difficult child.
I find that the mother has taken the appropriate course by seeking medical assistance to determine what L’s issues are, even though the mother has struggled at times to be accurate when telling others as to the extent of L’s medical problems.
The mother says that “L has required additional health intervention and is in receipt of NDIS support… attends on an occupational therapist and… paediatrician” ([77] trial affidavit)
I find that the mother has met L’s medical needs and that this is not an issue that factors into determining the future parenting arrangements for X.
X’s health
The father is highly critical of the mother because over the years the mother has expressed concerns to the father that X may be autistic, have ADHD or ADD and learning difficulties ([161] trial affidavit) and the father does share these concerns.
Ms E shares this criticism commenting that the mother “wants the father to support X being checked for autism” ([96] Ms E’s March 2020 affidavit).
In late 2019 the mother spoke to the father about having X tested for autism.
As at the final hearing the mother states that “X has no serious health concerns to date outside of common childhood complaints” ([79] trial affidavit).
In cross-examination the mother explained that she no longer holds concerns that X suffers from autism but has a long held belief that X may have “traits” but that these traits are “not severe enough to have her tested” for autism.
Conclusion
Parental responsibility has never been an issue in dispute.
Equal shared parental responsibility was agreed to in the 2016 final orders and continues to be agreed to in 2020.
I do not understand why this is an issue in this matter.
If a parent raises a concern about the child’s health, even where it appears to the other parent to be groundless then one would have thought that the sensible approach would be for the parents to work together to have the necessary tests done, so as to put the issue to rest, rather than fighting over whether testing should be done.
This should be an issue about the child, not about whether one parent thinks the other person is unfounded in their concerns.
The father had the opportunity to engage with the mother in having X tested and did not.
To then use this against the mother to make out the mother is not fit because she is raising concerns about the child that the father considers to be overactive is unfair.
The mother has had serious health scares which undoubtedly has made her vulnerable to concerns for her own child.
I find that this is therefore not a factor that will assist in determining the future parenting arrangements for the child.
Hopefully going into the future that father and Ms E are more receptive to the mother’s concerns and more importantly that the parties remain child focussed in having any medical issues for X thoroughly investigated.
Failed negotiations
Much of the final hearing focussed on the two failed negotiations entered into by the parties as to a change of residence for X.
The first was in 2017 during the mother’s cancer battle where it is clear from the text message exchanges that the mother fluctuated as to whether X should be living with the mother, during what was a very difficult time, or with the father.
The father grew impatient and was insistent on the mother entering into consent orders.
During cross-examination the following exchange occurred:
Counsel: “Do you consider that was putting unnecessary pressure on my client to sign the parenting agreement”
Father: “No”
Counsel: “So threatening to withhold her daughter and not allow her to see her daughter unless and until she signed a document he wanted her to sign, which she was not agreeing to sign, that’s not putting pressure on her?”
Father: “It’s putting pressure on her, yes”
Counsel: “Do you think that was appropriate”
Father: “No”
Eventually after the mother refused to sign consent orders the father took the matters into his own hands and unilaterally retained X in his care for several weeks, providing limited communication and no time with the mother.
The father in cross-examination admitted when asked whether he had the “upper hand” in the situation that “yes, technically” he did.
The father said that he regretted his attitude and “I should have, in good faith, allowed X to go back to her mother”
In November 2017 the mother tried to engage the father in mediation at Legal Aid but mediation did not proceed as the father declined due to work commitments.
The mother had no choice but to file court proceedings for the return of X into her care.
On the first return date in December 2017 it was ordered that the child be returned to the mother and for parenting arrangements to continue in accordance with the 2016 court orders.
In 2018 the discussions for X to live with the father were re-ignited.
The mother at the time was again vulnerable explained in cross-examination she had re-opened discussions because “I was scared of dying… I was scared of my cancer… coming back… I was not mentally in a good place, no”.
Negotiations progressed well but there were two sticking points; whether a passport issue for X and the number of weekends the mother could spend with X during school terms.
The mother wanted four weekends and the father was offering three weekends explaining in cross-examination that “my work commitments at that point in time make it very difficult to do every second weekend. And also for the fact of X having to do that trip, that long distance”
Negotiations broke down.
The issue of a passport for X was dealt with as an interim issue.
Conclusion
The court encourages parents to reach their own agreement for the future parenting arrangements because that is always a preferable outcome.
Just because negotiations occur but are unsuccessful should never be held against a parent.
Yes, the mother fluctuated and changed her mind.
But during both sets of negotiations the mother was dealing with her own health issues, including her mortality, and this would have placed the mother under much strain in working out what was best for X.
I find that the father exacerbated the situation during the first lot of negotiations by trying to force the mother to finalise consent orders through threats of withholding the child and then carrying out those threats by denying the mother (who at that stage was a recovering cancer patient) from spending time with the child over a number of weeks.
The father then added to it by putting work over the needs of the child by not attending mediation which resulted in the mother having to commence court proceedings.
I find that this was not child focussed behaviour by the father as X, and rightfully so, was returned to the mother, resulting in X being displaced from her schooling and her life in New South Wales for the first time in her life.
As to the second lot of negotiations, these failed due to the father’s inflexibility (again work related) in not offering the mother the time the mother sought during the school term and being resistant to the issue of a passport for the child (which resistance was later found to be baseless in an interim hearing).
Apart from the findings made, I further find that the failed negotiations are not a factor that assists the court in determining the future parenting arrangements for the child.
Having made these findings, I now turn to the primary considerations.
Primary considerations
The benefit of the child having a meaningful relationship with both of the child’s parents
What is meant by the term “meaningful” was discussed at length by Brown J in Mazorski, with the Full Court in Moose stating at paragraph [68] that “Her Honour’s discussion was helpful and her conclusions about section 60CC(2)(a) are cogent.”
At [26], Brown J concluded:
“What these definitions convey is that ‘meaningful’, when used in the context of a meaningful relationship, is synonymous with ‘significant’ which, in turn, is generally used as a synonym for ‘important’ or ‘of consequence’… A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative objective and not a strictly quantitative one.”
Kay J in Godfrey & Sanders (2007) 208 FLR 287, spoke of the legislation promoting a “meaningful relationship, not an optimal relationship”.
The Full Court in McCall & Clark (2009) FLC 93-405 at [117] adopted the approach discussed by Bennett J in G & C [2006] FamCA 994 and said the enquiry as to whether a relationship is meaningful is “a perspective one which requires the Court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child”.
It is not disputed by the parties that X has a loving relationship with each of her parents.
Conclusion
I find that X has a meaningful relationship with each of her parents.
I find that whether X lives with the mother and spends time with the father or lives with the father and spends time with the mother that the meaningful relationship will continue.
This consideration therefore does not assist in determining the future parenting arrangements for X.
To protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence
Several issues have been raised as to the mother presenting a risk to the child, which will now be addressed individually.
Family violence in the mother’s household
Before meeting Mr D, the mother was in two relationships where the mother was the victim of family violence and X was exposed to such violence.
The evidence supports that currently there are no issues as to family violence in the mother’s relationship with Mr D.
DCJ in September 2019 notes “there is no indication that there has been any domestic violence between adult household members in the past year”.
Conclusion
I find that historically the child was exposed to family violence being perpetrated against the mother in the mother’s household.
I find that currently the child is not exposed to family violence.
As such this consideration does not assist me in determining the future parenting arrangements for X as I am satisfied that Mr D does not pose a risk to X.
Family violence perpetrated by mother
Post separation the father has taken out two domestic violence orders against the mother; the first in 2015 which has since expired and the second in 2018 (which includes Ms E as an aggrieved party) which is still current.
The mother did not defend the second DVO.
The common theme as to why the father has pursued DVO’s is twofold; firstly the mother’s behaviours at changeover and secondly the mother’s abuse of social media sites used by Ms E.
Changeover
As to changeover, Ms E accompanies the father to changeover as the father does not hold a driver’s licence.
The father states that the mother is threatening and yells abuse, all in front of X.
The mother admits that in the past she has yelled and sworn at the father and Ms E but denies the allegation that she has tailgated the father in her car.
X is aware of the conflict, telling the family report writer during the first family report interviews “they (the mother, father and Ms E) ‘are not friends at all’… she has seen them argue and ‘mums been yelling at them’… this has happened a few times... her mother and Ms E are not friends and… her stepmother probably doesn’t want to see her mother because she might get yelled at. X’s wish for magical change in her family is ‘to get mum to not be mean to Dad and Ms E’” ([41] first family report).
Over time however the conflict appears to have abated for two reasons, firstly an improvement in the mother’s behaviour and secondly the presence of Mr D.
The mother in cross-examination explained:
a)A lot of her anger “does stem from” the father and “we know how to push each other’s buttons”.
b)That in the past she has had concerns about her anger but that “probably in the last two to three years I have been – since counselling and everything else I’ve been receiving, I have now come up with a lot of strategies to control my anger”.
The mother informed the family report writer during the second family report interviews that the mother “has no contact with” Ms E “at changeovers” with Ms E saying that “she stays in the car” but reports the mother “has mouthed swear words at her” ([17] second family report).
The evidence supports that the last occasion where there appears to be altercation between the parties at changeover was in late 2019.
Ms E comments “some changeovers have no issues at all primarily as Mr D… is there, however these changeovers are still very uncomfortable as no one says much of anything” ([13] Ms E’s March 2020 affidavit).
The family report writer comments:
a)“These parents have minimal mutual trust and accused each other of intimidating behaviour at changeovers. My understanding is that changeovers are uncomfortable at best and frequently include parental conflict which is perceived by the father to be unpredictable and anxiety provoking… significantly X is present at these times and these experiences likely contribute to rising anxiety in the child” ([25] second family report).
b)“It appears that the changeovers are not conflict free and that X is exposed to this ongoing parental conflict and is not insulated from her parents’ views” ([35] second family report).
Conclusion
I find that the mother has demonstrated family violence in the presence of the child.
However, despite the concerns raised by the father and Ms E as to changeover, final consent orders have been reached whereby the changeovers continue at Town B.
I find that this is an indication that:
a)The conflict has abated at changeover.
b)Mr D is a calming influence at changeovers.
c)The parties are of the view that X’s exposure to conflict can be minimised by having this arrangement in place.
d)The father and Ms E are satisfied that the changeover arrangement can work.
As such, I find that this consideration does not assist the court in determining the future parenting arrangements for the child.
Social media
As to the social media issue Ms E says that the mother “has had a creepy obsession with me and monitoring/stalking my social media and what I was doing. I had to block multiple of” the mothers “instagram accounts that she was using to stalk me that were under her name/with her picture and complain to the police” ([52] Ms E’s March 2020 affidavit).
The latest DVO contains Order (3) which prohibits the mother “from using the internet or any other communication device (including social networking sites) to communicate with, publish or share pictures of, or make comments concerning the named person”.
Within weeks of the final hearing, the father alleged, after reading the mother’s trial affidavit which makes reference to Ms E’s social media activities, that the mother had breached Order (3) and reported the mother to the police.
Ms E explained that the father “and I have initiated the process of seeking a breach of the current domestic violence order by her online conduct” ([57] Ms E’s March 2020 affidavit).
After robust questioning from the bench the father admitted that the actions of the mother did not amount to a breach and the mother had not charged by police for breach of the DVO.
The mother admits to being resentful of Ms E, especially in respect to her social media posts which have included X in the same clothes as Ms E where the mother in cross-examination spoke of Ms E “replacing me as mum” to X.
When X went to live with the father, the father permitted the child to call Ms E “Mummy Ms E” without consolation with the mother and on the basis that X can call the father and Ms E “whatever she wanted”.
Ms E takes no responsibility for the ongoing dispute between the mother and Ms E.
Conclusion
A finding has been made that the mother has been the perpetrator of family violence which has occurred in the presence of the child.
Whilst the mother’s behaviour is inexcusable, I accept the mother’s concerns that the mother’s reactions are triggered by the father.
The incident as to X calling Ms E “Mummy Ms E” is indicative of the disregard the father shows the mother, knowing full well that such an incident would upset the mother and cause the mother to react.
Reporting the mother to the police for a breach of the DVO when no such breach exists is also indicative of the father automatically reacting badly towards the mother without thinking through the consequences for the mother and more importantly for the child.
If the mother breaches the current DVO order into the future then there is legal recourse open to the father.
As such, I find that this consideration does not assist the court in determining the future parenting arrangements for the child.
Neglect by mother
The father and Ms E are of the view that the mother neglects X.
The father says:
a)The mother “has in the past had difficulties in keeping a clean house back to when we first started living together” ([48] trial affidavit).
b)X “has presented on many occasions in a poor state… we had to replace her underwear as they were filthy and ripped… X came to us wearing dirty underwear in an adult size… arrived with no earrings in her ears” ([167] to [169] trial affidavit).
The father admitted in cross-examination that some of the concerns had not been witnessed directly by the father, but based on information provided to the father by Ms E.
Ms E says:
a)“X’s hygiene during changeover upon picking her up… is often gross and always smelly (smelling not like a child who has played at school all day but one whose clothes aren’t washed/in a dirty environment). She has come to us in ripped dirty underwear … “in a mouldy Town N K-12 school shirt” ([90] and [91] Ms E’s March 2020 affidavit).
b)“X often makes comments unprompted that” the mothers “house is ‘not clean and disgusting’ and that is why she likes being at our home as its ‘nice and clean’” ([92] Ms E’s March 2020 affidavit).
Between January 2015 and February 2020 the father, without first discussing the issues with the mother, reported the mother six times to DCJ for her neglect of X and L.
After the September 2019 report it was recorded by the DCJ that:
a)“The concerns were in relation to X and L were wearing unclean clothes and being dirty and smelly”
b)“The family have never received ongoing statutory child protection casework however they were referred to Brighter Futures in 2015”
c)“X and L’s primary carer… provides physical care consistent with children’s needs”
d)“The children were clean and reported that they shower on a daily basis… they brush their teeth twice a day… the home environment was clean and furnished appropriately to meet children’s needs. There was food in the fridge and cupboards”
e)“The home environment was observed to be clean and there was no odour present. The children had their own bedrooms and clean linen was on the beds. The outdoor area was neat and tidy and the lawns were mowed”
DCJ in a letter to the mother dated 9 October 2019 wrote “this letter is to confirm that after meeting with you we have completed an assessment and closed the case”.
The last report made by the father in February 2020 about the mother’s “house being in a filthy state” was based on what X told the father during a weekend visit.
The concerns were not substantiated by DCJ.
The father in cross-examination accepted what DCJ had to say but still holds “mild concerns” about the child’s hygiene.
As to the father continuing to report the mother to DCJ the father said “absolutely. So if - I have concerns about X’s well-being. That, to me, is the only approach that I can go to where I don’t feel like I’m going to be attacked for making my opinion known. When I tried to discuss these matters with Ms Leggett in the past, I’ve been very much belittled and put down and told my concerns are nothing, which I honestly… feel that I’m not being able to be involved in the care of X when these things happen”.
Conclusion
Firstly I find that there is no evidence to support that the child has been neglected in the mother’s care.
Secondly I find that some of the reports by the father to the DCJ are without foundation and have not based on father’s observations but from what he has been told from others.
Thirdly I find that there is a risk of the father falsely reporting the mother into the future. In that regard orders have been made that the father cannot report the mother to DCJ without first engaging in written correspondence with the mother about his concerns.
Lastly I find that this consideration does not assist the court in determining the future parenting arrangements for the child.
Abuse of child by mother
The father argues that the mother poses a risk to the child due to physical and psychological abuse, informing the family report writer that the mother “is emotionally abusive towards the children and has used excessive force with physical punishment” ([12] first family report).
Between January 2015 and September 2018 the father reported the mother on three occasions to DCJ for abuse.
When the mother was reported in September 2019 it was noted by the DCJ:
a)“On 4.1.15 a report was received in relation to physical abuse… that” the mother “smacked L”
b)“On 21.12.17 there was a report received in relation to the risk of psychological harm”
c)“On 25.8.18 a report was received for excessive discipline… X had been smacked with a wooden spoon”
d)“Records do not indicate that there has ever been an injury to X or L”
e)“On 29.9.2019… Spoke with X and L and they did not disclose they had ever had an injury as a result of abuse or neglect”
f)“There was no incident and neither child has sustained injury as a result of abuse or neglect”
g)“After talking to X… there were no indication that there is domestic violence present in the home”
h)“Neither X or L disclosed that the mother was using excessive discipline, was overly controlling or did not provide emotional support to the children. During the home visit… there was no indication that any of the above characteristics applied to” the mother. “L was at home and” the mother “was observed to be nurturing and meeting all her emotional needs”
i)“After speaking with X and L… as part of the initial response there was no indication that the children are at risk of sexual harm”
j)“The information received… did not identify concerns that their mother… does not protect X and L from serious or threatened harm by others or from a dangerous environment”
k)“There was no indication that the children are at risk of serious or threatened harm”
l)“X stated that she lives with her mother and… Mr D… she is afraid of the cows on the property… and does not like the farm environment however she did not indicate that she felt in immediate danger. There is not substantial information to indicate that this danger is present during the time of assessment”
m)“While talking with X and L there was no indication that by the child has an injury. Therefore there is not substantial information to indicate this danger is present in the immediate period of assessment”
n)“The information… did not identify concerns that the family do not provide access to X and L, are hindering the investigation or are about to flee”
o)“The… mother spoke very fondly of the girls and was observed to be caring and protective of L who was at home when we visited”. The mother “spoke proudly about X’s achievements at school and her participating in dancing”.
p)“There is no information to suggest that any household member has previously mistreated a child in their care… no ‘other’ dangers were identified during the assessment period”
The mother admits that she has in the past as a form of punishment the mother has smacked X.
During the first family report interviews “X noted that there are different rules in her parents’ home. Discipline at her father’s home consists of time-out but no smack. Discipline at her mother’s home consists of ‘be mean, I get in trouble’” ([41] first family report).
The mother says she no longer uses corporeal punishment when disciplining the child.
The father confirmed this in cross-examination stating “from what X has told us, she does time out (at the mother’s house), which is exactly what we do at home, which is really good to hear”.
During the second family report interviews X “in describing family members… often referred to whether they yelled or not. X is clearly affected by this behaviour and noted that her mother mostly yelled at L… her mother says that L does not listen to her. X talked about her mother raising her voice ‘too high’. X said ‘I tell her that I don’t feel safe and I tell her that it’s because of you yelling and I don’t feel safe’. When asked if her mother gets angry, X said ‘not always but sometimes when she yells’” ([26] second family report).
The mother says that “L gets frustrated and has difficulty with change” and that the mother “uses timeout; a warning; and sometimes yelling as means of discipline” ([29] second family report).
The mother admits that at times she speaks loudly and shouts because of her hearing loss.
The family report writer concludes “it is likely that her (X’s) feelings of being unsafe related to her mother is yelling at L, reflect her anxiety regarding conflict and unwanted change…it is likely that X feels that she is heard and has adults attention in her father’s house whereas in her mother’s house, L’s behaviour likely dominates, as observed during this assessment” ([36] second family report).
Conclusion
I find that there is no evidence that X is at risk in the mother’s care due to abuse.
I find that the mother has taken steps to cease corporeal punishment and to ensure that this continues orders have been made that corporeal punishment not take place for X.
I find however that the mother needs to address her yelling as X does not feel safe when the mother yells.
Whilst part of the mother’s loud voice may be from her hearing loss, the mother needs to resort to less confronting ways of getting the children’s attention and in particular L’s attention.
This can be addressed by the mother attending parenting courses and orders have been made accordingly.
Otherwise I find that this consideration does not assist the court in determining the future parenting arrangements for the child.
Overall conclusion on primary considerations
Overall, I find that the findings made on the primary considerations do not support a change in the current parenting arrangements.
Additional considerations
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
In 2017, when the mother was being treated for cancer, X commenced expressing a view that she wanted to live with the father.
The mother acknowledges that at the time it was very difficult for X at home as her mother was repeatedly ill not only from the cancer but from the treatments.
The mother says “I understand my illness caused X distress and her expressing her concerns and opinion by saying she wanted to spend more time with her father was completely normal” ([58] trial affidavit).
X told the mother “I want my dad” and “I want to live with my dad. It’s more fun” ([27] trial affidavit).
The mother acknowledged that she supported the child’s wish to live with the father as “the mother feared that she might not survive the cancer and this contributed to her initial acquiescence to the child wish” ([19] first family report).
When X was retained by the father from September to December 2017 the evidence supports that it was “more fun” for X.
The mother said during this time the father and Ms E “purchased many items for X, engaged in extra activities (significant events on a regular basis such as attending concert with VIP tickets) and spoilt X with numerous gifts” ([55] trial affidavit).
During the first family report interviews when the mother was asked why X wanted to live with the father, the mother explained “the father ‘is on a pedestal’ and that she had promoted the child idealisation of her father… he can be a ‘wonderful parent’; that he tries, and that he was a ‘good Dad’ to X prior to separation… he was an involved father and that X loves him” with the mother adding “I don’t want that to change” ([18] first family report).
The mother says that since X has been returned to her care in December 2017 X has not told the mother that she wants to live with the father ([131] trial affidavit).
During the second family report interviews X:
a)“Has told her mother about her wishes ‘a few times’ recently but she says ‘no it’s not our decision anymore’” ([26] second family report)
b)“Said ‘I do want to live there (the father’s) but mum worries that she’ll lose me” ([26] second family report).
c)“Said ‘I still love her and everything, I just don’t feel safer there” ([27] second family report).
d)“When asked about a desired magical change in her family, X said ‘I’d probably get mum to let me live with dad’” ([27] second family report).
The family report writer concluded after the second family report interviews that “X expresses clear and strong views to live with her father and” Ms E “and has increasingly voiced these wishes over two years. There is nothing to suggest that she is overindulged at her father’s house” ([35] second family report).
As to the views expressed to the family report writer the mother during cross-examination said that X has not “voiced them since”.
During cross-examination the family report writer:
a)Commented “it’s unusual for a little girl to be so strong and to hang onto that for so long… what strikes me about the case is that X has held a strong wish to go and live with her father”
b)When asked “would you accept that it’s not necessarily appropriate for an eight and a half year old to be deciding where she should live” the family report writer responded “well, she’s not, because obviously the court will decide but she does have strong wishes… She had independently told her mother of these wishes from time to time, so it’s not as if she is just telling one parent in order to keep the peace or keep everyone happy or anything like that. She independently makes the statement strongly, so it’s significant to her”.
The mother continues to acknowledge X’s view stating in cross-examination “that she does want to go live with her dad and I understand that she does… she’s going to be a big sister up there… she has the best time up there… I don’t want to lose my baby”.
Conclusion
The Full Court in R & R : Childrens’ Wishes [2000] FamCA 43 after analysing the earlier decisions of H v W (1995) FLC 92-598 and Doyle & Doyle (1992) FLC 92-286 the Full Court held at [44]:
“It is quite clear that their Honours were not saying that if the child's wishes are valid then they are to be acted on by the Court and indeed this is not the law. What is required is that they be given appropriate and careful consideration and not simply treated as a factor in the determination of the child's best interests without giving them further significance. When validly held reasons are departed from by the trial Judge, it is apparent that good reason should be shown for doing so”
As to the weight to be given to such wishes it was held at [54]:
“There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive synthesis on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children's best interests.”
I find that little to almost no weight can be given to the views expressed by X to live with the father.
I base this finding on the following:
a)X was only 6 at the time she first commenced expressing this view; an age that is far too young to understand the ramifications of such a view.
b)X’s view was formed in the most unusual circumstances, where the mother was very ill and fearful of dying and where the mother was supporting the child’s views because of the uncertainty as to the outcome for the mother.
c)Life for X was difficult at the time, with the mother being limited in her capacities due to her illness and treatment and also caring for L.
d)When X went to live with the father the contrast of living styles would have been enormous for the child, where X at the father’s household was the centre of attention and lavished with experiences and gifts.
e)Adding to that contrast was the deliberate action of the father in keeping X away from the mother and her problems.
f)When X then returned to the mother the contrast would have been even greater for X, returning to a situation where X was no longer centre of attention and where she had to share the mother’s affections with L.
g)Adding to that contrast was that the mother X was returning to was now suffering from deafness and other ongoing health issues, even though the cancer was in remission.
h)X now equates life with the father as being a better option for her, with it being even more exciting now that she has a baby sibling on the way.
i)It is therefore no surprise then that X has maintained such a strong view of wanting to live with the father and not wanting to live with the mother.
j)However, X, even now at the age of nearly nine, does not have the cognitive reasoning to understand that whilst X sees no downsides to living with the father, it may not necessarily be in X’s best interests to live with the father.
k)This lack of understanding is demonstrated X in her discussions with the family report writer where the child “rated an imaginary judge’s decision in favour of her father as being ten out of ten; and an imaginary decision in favour of her mother as being five out of ten” ([27] second family report).
Therefore I find that this consideration does little to assist the court in determining the future parenting arrangements for the child.
Nature of the relationship of the child with each of the child’s parents and other persons
Mother
The father in cross-examination said “she’s a very passionate mother. She cares a lot about the… children when she’s in the moment… a supporting mother when it comes to encouraging the children to… be themselves”.
During the first family report interviews “when observed with her mother and sister, X was happy and cooperative and eager to play. The mother was helpful to both girls and gave positive directions at times regarding behaviour. Both girls complied with the mother’s requests or responded positively to her warnings. Play was generally fun for all” ([44] first family report).
Conclusion
I find that X has a loving relationship with the mother.
Mr D and his extended family
The mother says “my extended family now includes Mr D’s parents… we visit them each week for dinner and often stay the night. The children really enjoy their time with Mr D’s family. The girls have their own rooms there which they share. Mr D’s parents are very supportive of us, both the girls love Nannie and Poppy, as they call them and look forward to having sleepovers” ([126] trial affidavit).
Mr D states:
a)“I love these girls” and “they’ve given me a lot of meaning in my life’” ([23] second family report).
b)“I play with the children, engage in activities on the property with them, we’ll get on very well” ([12] March 2020 affidavit).
c)“The children have established a strong relationship with my extended family” ([17] March 2020 affidavit).
d)“She has an excellent life with us” ([24] second family report).
e)“X calls his parents Nanny and Poppy and that they love her” ([24] second family report).
X told the DCJ “she likes Mr D and he is like family”.
Conclusion
I find that X has a loving relationship with Mr D and his extended family.
L
The mother says:
a)“X and L love playing together. X will read, paint and draw with L. The girls also love to cook together making cupcakes, Vegemite scrolls and grated cheese sandwiches. We all go to the beach, one of our favourite pastimes is fishing and mud crabbing” ([121] trial affidavit).
b)“X and L have a sisterly bond that has further developed due to L now being more of a comparable age to X. L is now 5 years of age and only 3 years younger than X. I noticed that her and X’s relationship has completely changed over the past 18 months… more connected play and conversation between the girls” ([135] trial affidavit).
Conclusion
I find that X has a loving relationship with L.
Father and Ms E
During the first family report interviews it was observed that with the father and Ms E “X was excited very physically affectionate to both. She jumped into her father’s arms on arrival and hugged him strongly. She similarly hugged the father on parting… both adults were completely attentive to X and she clearly enjoyed every minute” ([45] first family report).
Conclusion
I find that X has a loving relationship with the father and Ms E.
Father’s extended family
The paternal grandmother and a paternal uncle live in Town J.
There is a paternal aunt and uncle who lives in Queensland and a paternal uncle who lives in Perth.
The paternal grandmother has assisted with changeovers for X and the child stayed with her for a week during the mother’s cancer treatment.
Conclusion
I find that X has a loving relationship with the father’s extended family.
Overall conclusion
I find that no matter where X lives, given her strong relationships with her parents, her stepparents, her sibling and extended family members that these relationships will continue to grow.
As such this consideration does not assist me in determining the future parenting arrangements for X.
Extent to which each of the child’s parents has taken or failed to take the opportunities to participate in making decisions to spend time with and to communicate with the child
After the parties physically separated in 2013 the mother became the primary carer of X.
The mother has continued in that role except for the several weeks the father retained the child in September 2017.
Initially upon separation the father spent very little time with X as the father had moved to Queensland for work with the mother remaining with X in New South Wales.
It was noted in the family report that “it is agreed that there was little contact with the father until 2 to 3 years after separation” ([45] first family report).
In or around 2015 time between the father and X began occurring on a more regular basis.
The 2016 consent orders came about when “the mother… initiated legal action in 2015 so that X could have a relationship with the father. The father stated that the mother was eligible for legal aid so the parents essentially chose to make use of this resource to obtain a parenting plan or court order” ([16] first family report).
After the 2016 orders the father spent time with X for two weekends each school term and for one half of the school holidays.
During this time the mother was living in the Town M area.
Despite invites by the mother for the father to attend X’s dance activities and birthday parties the father did not spend extra time with the child ([113] and [115] trial affidavit).
The mother told the family report writer that “she would like the father to be able to come to events at X’s school” ([8] first family report) with the father commenting that the “mothers ‘offer’ of additional time with X if he does all the travelling” was “not particularly realistic given that the distance between the homes is unreasonable” ([8] first family report).
In 2017 the mother was struggling to comply with the 2016 orders which provided for changeover at Town B due to her cancer and her treatment.
The father in cross-examination said that there were two or three occasions where the mother “wasn’t willing to facilitate the visitation” but “at that point in time” the mother “was suffering through treatment” so the father “didn’t push the matter”.
As a result X missed spending time with the father.
The following exchange occurred during cross-examination:
Counsel: “Where was the changeover?”
Father: “Changeovers happened several times at Town M, from either Ms Leggett’s house and from the McDonald’s. Also there were several visits that did continue to have the changeover at Town B”
Counsel: “How many times did you make the drive all the way to Town M?”
Father: “Four”
Counsel: “Four times… over what period?”
Father: “I don’t believe I can recall the amount of months. It would have been at least a four or five month’s period”
Counsel: “Do you accept that Ms Leggett was suffering through her chemotherapy at that time?”
Father: “Yes”
Counsel: “And do you accept that that would have made it difficult for her to make the drive up to Town B?”
Father: “Yes”
Counsel: “Did you, at any time offer to… do all the driving for the changeovers?”
Father: “No”
Counsel: “Why not?”
Father: “I regret that I didn’t, very much. It was a time where I should have been a little bit more supportive in terms of…”
Judge: “So why didn’t you offer to do all the driving so that you could spend your time with the child?”
Father: “I don’t know. I don’t recall”
Sometime in early 2018 the mother moved to Town N.
Although the father was not travelling to Town N the father complained to the family report writer that the “journey from Brisbane to Town N is seven minutes longer than to Town M” ([8] first family report).
The inability of the father to travel to collect or deliver the child emerged during the 2018 discussions where negotiations failed in part due to the father’s refusal to provide the mother with four weekends each school term with the child.
At the final hearing the father is not seeking any more than two weekends with the child for the non-resident parent.
The father is currently employed fulltime as a sales manager for two employers located in Brisbane.
The father’s standard work week is 38 hours but he is on call for phone calls and is required to work on some weekends either on a Saturday or Sunday.
The father does not have a current driver’s licence.
Conclusion
I find that the father has allowed his work commitments to limit his time with X.
As a consequence the father has not been involved in X’s schooling or extracurricular activities.
I find that if an order is made for X to live with the father then:
a)Because of his work commitments and lack of a licence it will not be the father who is primarily caring for the child on a day to day basis.
b)It will be Ms E who will be caring for X as it will be Ms E taking her to and from school and extracurricular activities and Ms E looking after X when the father is working on weekends.
c)It is unknown as to how the baby will impact on Ms E’s ability to properly care for X.
I therefore find that this consideration supports orders whereby the child remain living with the mother and continue to spend time with the father as per the current arrangements.
Extent to which each of the child’s parents has fulfilled or failed to fulfil the parents’ obligations to maintain the child
This is not a consideration that needs to be taken into account in determining the future parenting arrangements for the child.
The likely effect of any changes in the child’s circumstances, including likely effect on the child of any separation from either parent or any other child or other person
X has, except for between September and December 2017 lived with the mother and her sister L.
When asked by the family report writer if she would miss her mother if she went to live with her father “X happily replied, ‘Yeah but I’d see her, and I could Facetime and talk to her whenever I like’” ([27] second family report).
When the father retained X in 2017, the mother said that L reacted badly and was pulling out her hair (which the father says was happening before X came into his care).
X told the family report writer that if she moved to live with the father, her father and Ms E “say that L will cope without her. X said ‘I’m not sure. I think she will cope; I’ll visit her every 3 weeks” ([28] second family report)
For the past two years, Mr D has also been part of the mother’s family unit.
X is currently in Grade 3 at R K-12 School and enjoys dancing and singing.
The mother says that X travels in the school bus with L and enjoys school and has a good group of friends ([110] and [111] trial affidavit).
X is doing well at school and has won awards ([106] and [110] trial affidavit).
The school reports for 2019 include the following comments:
a)“X is a considerate and kind member of our class and is thoughtful of other students”
b)“She is helpful to others and has shown good leadership skills when required”
c)“X is a kind and caring student who enjoys school and happily plays with her friends and classmates”
d)“In group work she works sensibly with others and participates in all activities”
When X was asked whether she would miss her school if she lived with the father “X said that they were bullies there and added that had her father’s school there aren’t any bullies and said ‘I miss my school friends there’” ([27] second family report).
The mother, when asked in cross-examination how X would feel if she did not get her wish to live with the father said “she will be hurt a little bit”.
During cross-examination when asked “if the orders are that she live with her mother, would there be any negative effects on X from that” the family report writer responded “I think she would be very disappointed, sad. I think it could be deeper than that, although she did tell me that when she last rose this issue, or one of the last times she rose this issues with the mum, and the mum said it’s not up to us or - or to you anymore, and she seemed to accept that. But the father did report that she was down so he phoned her and got excited closer to times when she was going to come and visit. So I think there would be risk to her long-term if she was frustrated in this”.
Conclusion
I appreciate that if X was not allowed to live with the father that this will be difficult for her to accept but I am satisfied given the mother’s insight that this situation will be managed effectively.
However what is unknown is the impact on X if she is removed from all that is familiar to her to then live with the father.
Unfortunately the family reports did not address this issue.
In the family reports and in cross-exanimation comments were not made as to the impact on X if she was to be removed from:
a)Her primary carer.
b)Her sibling.
c)The state in which she has lived most of her life.
d)The schooling system in New South Wales to attend a different school system in Queensland.
The family reports do not addressed how a change in dynamics in the father’s household with a new baby on the way may effect X given that X will no longer be the only child in the father’s household.
The absence of this vital information is of concern.
As such and in the absence of this information I find that this consideration supports that the current arrangements are to remain in place with X living with the mother and spending time with the father.
Practical difficulty and expense of child spending time with and communicating with their parent and whether that will substantially affect the child’s right to maintain personal relationships and direct contact with both parents on a regular basis
The parties live approximately 2½ half hours apart.
The parties disagree on the number of weekends during school terms the child is to spend with the non-resident parent.
The mother’s proposal is for three weekends per school term whereas the father’s proposal is for two weekends per school term.
The mother is prepared, in the event that an order was made for the child to live with the father, to travel to Brisbane on one of three weekends to collect and return the child.
The father is opposed to the third weekend.
If it is the father who is the non-resident parent then a third weekend is not possible due to his employment and limitations because he does not hold a driver’s license.
If the mother is the non-resident parent then a third weekend would, according to the father, result in the child travelling to longer distance frequently within the school term.
The family report writer is of the view as expressed in cross-examination that “it would be good if that parent has the option of a third weekend if they can do it”
Conclusion
I find that this consideration is relevant because if an order was made for the child to live with the father then requests by the mother to spend additional time with X are likely to be refused by the father on the basis that it would not be practical for such time to occur.
I therefore find that this consideration supports orders whereby the current parenting arrangement remain in place with X living with the mother and spending time with the father.
Capacity of each of the child’s parents and any other person to provide for the needs of the child
Father
The mother in cross-examination said “I have no concerns of X’s care with” the father and agrees with the proposition that the father is a good father.
The mother however expressed the following concerns:
a)X will not be able to attend extracurricular activities, such as ballet as the father does not drive and Ms E will be having a baby soon.
b)The father works fulltime so it will Ms E looking after X and not the father.
c)The mother is concerned that Ms E will influence X in that X will become materialistic.
Conclusion
I find that the father has the capacity to meet the child’s needs.
However I agree with the mother that more than likely due to the father’s work commitments that the capacity will fall onto Ms E to meet X’s day to day needs.
Ms E’s capacity to do so may be compromised upon the arrival of the baby.
I therefore find that this consideration supports an order whereby the current parenting orders remain in place with X living with the mother and spending time with the father.
Mother
If you were to accept the father’s position the mother is “essentially unfit to parent” ([13] first family report) because “X lacks adequate care and stability in her mother’s care” ([13] first family report).
The father has consistently held these views since X was born.
When the parties separated under the one roof in early 2012, X was three months old.
At that time the father says the mother was:
a)Financially irresponsible.
b)An inadequate housekeeper.
c)Suffering from postnatal depression.
d)Not properly supervising X.
e)Not coping with the daily care of X.
In mid-2013 the father moved to Queensland leaving the mother to care for X in New South Wales.
The father in cross-examination explained that he still had the same concerns about the mother but that she had external support from her cousin and the paternal grandmother.
In December 2015 an application for consent orders was lodged by the parties which resulted in the January 2016 final consent orders whereby X live with the mother and spend time with the father for two weekends each school term and half of the school holidays.
The father in cross-examination said that at the time the final orders were made he continued to hold the same concerns about the mother’s ability to meet the needs of the child.
When asked why the father then entered into the final parenting orders the father responded “I wanted X to be in Ms Leggett’s care at that point in time because I believe it was in X’s best interest. I was still settling into a new relationship in Queensland with my now fiancé Ms E and I didn’t think that that would be the best environment for X to come into at that point in time”.
When then asked “so believing that this child was of risk of not being cared for properly in her mother’s household, you nonetheless signed an order that permitted the child to live with the mother” the father responded “because, again it was my opinion at that point in time I did not have sufficient evidence to be able to not have X live with her mother, and, at that point in time, I was building a new relationship in Queensland with my now fiancé”.
When it was put to the father “so you put your needs over that of the child” the father responded “unfortunately at that point in time I did”.
The following change occurred between the bench and the father:
Judge: “So am I right then in thinking that the consent you gave, in retrospect, was a conditional consent because, at that point in time, using your words, that was what was best for X, but you had intended to revisit that once you’d established your relationship with Ms E?”
Father: “No… so at that point in time I wanted X to live with… the mother, and I honestly did believe that Ms Leggett would be able to get on her feet and be able to get herself up to that point… in 2015, she was in a long-term relationship with Mr R. She had been with him for quite some time, and they appear to be a little more stable than what she had been, and I was hopeful that that would provide a stable life for X in Ms Leggett’s care”
Judge: “When did you realise that your concerns materialised to such an extent that you didn’t think it was going to be in her best interests, that is the child’s best interests to remain with the mother?”
Father: “When Ms Leggett approached me and asked me to take X into our care in 2017”
Judge: “Right, so you had no continuing concerns from 2015 to 2017?”
Father: “I had made several FACS reports during that time”
Judge: “And why, if you’re making FACS reports during that time weren’t you proactive… if you had significant enough concerns to raise to provide complaints to FACS why is it that you didn’t have enough concerns to bring an application to this court before 2017 to have X in your care?”
Father: Unfortunately, your honour, I don’t qualify for legal aid and I am having to financially…”
Judge: “So again, it was all about you. It didn’t suit you to do that?”
Father: “Your honour at that point in time, I regrettably wasn’t able to, and I did act selfishly”
Conclusion
Findings have been made that the mother has not neglected the children nor does she pose a threat to the children.
As to capacity, given the evidence, it must be questioned whether the father has ever genuinely held serious concerns as to the mother’s ability to meet X’s needs.
The father has never commenced court proceedings because of financial restraints.
The 2016 court orders exist through the mother’s instigation and her funding through legal aid.
The current proceedings exist because the mother commenced the proceedings in response to the father retaining the child in 2017.
All complaints by the father to DCJ have been dispelled.
The father has not availed himself of opportunities to spend more time with the child to see how X is going.
The father did not step up and give assistance to the mother with the care of X during the mother’s cancer scare.
I find that the mother’s incapacity to meet the child’s needs has not been established.
As such this consideration does not assist the court in determining the future parenting arrangements for the child and supports that the current situation remain in place with X living with the mother and spending time with the father.
Maturity, sex and lifestyle of the child
The father is concerned as the mother “has had a number of partners and homes” and “she has found it hard over the years to remain in good and solid relationships for any length of time” ([45] father’s trial affidavit).
The father explains that between 2014 and 2018 the mother and the child moved on at least 13 occasions ([84] trial affidavit).
During the various moves, X lived in several towns and with different adults in the households.
During the first family report interviews “the father asserts that X is at risk in her mother’s care because of her exposure to multiple partners, some of term have been violent, and frequent moves” ([10] first family report).
The mother acknowledged that she “had made poor decisions regarding partners over the years” ([14] first family report).
But since 2018 the mother says that she has had the stability of a loving relationship and security in housing:
a)“From the end of 2018 to date my well-being, stability and that of the children has become cemented as a family unit through the community in Town N, school, stable accommodation part-time employment and new supportive partner in Mr D” ([73] trial affidavit).
b)“I have had stable and consistent accommodation for close to 2 years and currently rent a 4 bedroom house… the children had their own separate rooms in the house… the house is semi-rural… We now have 2 cows… this is very exciting for the girls and provides the opportunity to enjoy a more self-sufficient lifestyle. We also have a dog and 2 cats… that the girls like to play with” ([123] trial affidavit).
c)“I volunteer at S, Town N… a family friendly group that is always willing to help others… once a month the members enjoy a BBQ which I’ve been the girls along to. The girls love playing with the other children” ([125] mothers trial affidavit).
The father acknowledges that the mother has been with Mr D for some time ([45] father’s trial affidavit) and that since 2018 the mother has lived with Mr Ds at his parents’ house and now at a property at Town O ([84] father’s trial affidavit).
It was noted during the family report interviews that:
a)Mr D “presented as being a mild natured and agreeable person… this is his first serious relationship and the longest relationship he has ever had. He expressed no animosity towards the father at all and stated that it would be good if they could all be friendly” ([23] second family report).
b)“It appears that the mother does have support from the community and from the Community Health/Neighbourhood Centre at Town N” ([33] second family report)
c)“She has a new relationship which appears to be healthy and supportive” ([33] second family report).
The father is concerned however that if this relationship was to fail then the mother would lose her job, as her employment is with Mr D’s parents, her financial stability and her home ([46] trial affidavit).
During cross-examination the mother explained that if the relationship with Mr D broke down she could continue to work for his parents and stay in their current home.
Conclusion
I find that historically the mother’s lifestyle was such that X was not in stable supported household.
I find however that since 2018 the mother has provided X with a stable and secure lifestyle where they have lived in the same area, the child has attended the same school and the mother is in a committed and loving relationship with Mr D.
As such I find that this consideration supports a continuation of the existing arrangements whereby the child live with the mother and spend time with the father.
The child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture
This is not a consideration that needs to be taken into account in determining the future parenting arrangements for the child.
Attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents
The father raises the following concerns as to the mother:
a)The mother “has been controlling and manipulative around X and her care and I am concerned about the impact that this will have upon X” ([42] trial affidavit).
b)“I am also concerned about her ability to parent her cooperatively with me. She has not often consulted me about important decisions, and even her conduct since these proceedings has been questionable” ([43 trial affidavit).]
The evidence supports that the mother has chosen schools for the children without consultation with the father, such as sending X to T School in Town M and then changing her school to Town N.
The father too has made decisions about the child without consulting the mother, such as retaining the child in his care in 2017 and changing her school.
The mother admits that on one occasion in 2019 she threatened to withhold the child from the father but did not follow through on the threat.
The evidence supports that essentially the mother has complied with the 2016 orders in providing time for the child with the father.
The mother during cross-examination said “I believe I can facilitate time. I don’t have the restrictions of full-time work; I work part time… I support X going to her father’s”.
Conclusion
The parties have agreed to orders for equal shred parental responsibility so any concerns the parties may have had in consulting about major long term issues must not be causing them concern.
I find that mother will facilitate time between the father and the child should the current arrangements remain in place.
As such, I find that this consideration does not assist me in determining the future parenting arrangements for the child.
Family violence involving the child or a member of the child’s family
This issue has been dealt with.
Whether it would be preferable to make the orders that would be least likely to lead to the institution of further proceedings
Each party has not complied with court orders.
The mother did not provide the father with time with the child during her cancer treatment in 2017.
The father retained the child in 2017.
Otherwise there has been compliance with court orders.
Conclusion
I find that the final orders are required in this matter.
To assist the parties in their compliance with the orders, an order has been made for the parties to complete a Parenting Orders Program.
Any other facts and circumstances
This is not a consideration that needs to be taken into account in determining the future parenting arrangements for the child.
Overall conclusion on additional considerations
Overall I find that the additional considerations support future parenting orders whereby the current parenting arrangements continue with the child living with the mother and spending time with the father.
Overall conclusion on primary and additional considerations
Overall I find that the primary and additional considerations support future parenting orders whereby the current parenting arrangements continue with the child living with the mother and spending time with the father.
Findings have not been made to support a change in the live with arrangements for the child.
Before addressing the issues requiring determination, comment must be had to the family report writer’s views of the mother.
Family report writer’s views of mother
The family report writer holds very strong views of the mother:
a)“The mother’s behaviour appears to amount to emotional manipulation” ([34] second family report).
b)“It appears that the mother uses denial and avoidance as defence mechanisms to deal with this dispute” ([34] second family report).
Whilst I respect the views expressed by the family report writer I am unable, based on the evidence to concur with such views.
With whom should the child live?
The considerations support orders whereby X remain living with the mother and spend time with the father on weekends during school terms.
I find that it is in X’s best interest to remain living with the mother and make that finding based on the following:
a)X, except for less than a two month period in September 2017, has lived with the mother.
b)The mother has been the primary carer for X.
c)X has a close bond with the mother and is fond of Mr D.
d)The evidence does not support that the mother poses a risk to X.
e)The evidence does not support that the mother does not have the ability to care for and meet X’s needs.
f)X is living in stable accommodation in a loving family unit where she is doing well at school.
g)X has a close bond with L.
h)The impact on X moving away from the mother and L has not been given careful consideration and therefore the court must err on the side of caution and find that the best outcome is for X to remain living with the mother.
i)The father would not be the primary carer of X if X was to live with the father due to his work commitments and inability to drive.
j)The ability for Ms E to care for X in the father’s household given that a new baby is on its way has not been given careful consideration and therefore the court must err on the side of caution and find that the best outcome is for X to remain living with the mother.
k)X’s strong relationship with the father and Ms E is able to be maintained and nurtured through her time with the father during school terms and school holidays, as well as telephone communication.
l)X will be able to develop a loving and strong relationship with her new sibling during her time and communication with the father.
m)The mother is and has always been receptive to the father spending more time with X and this can occur should the father choose to take up the offer.
I therefore order that X live with the mother.
Time with the father
As orders have been made for X to live with the mother, then consideration is to be given as to the number of weekends the father is to spend with X during school holidays.
The father is seeking two weekends a term.
I find that to order any more time is likely to give rise to conflict.
Orders therefore have been made for the father to spend two weekends a school term with the child, which is in accordance with the current arrangements and the time that the father is able to accommodate given his work commitments.
I certify that the preceding three hundred and forty-seven (347) paragraphs are a true copy of the reasons for judgment of Judge L. Turner
Date: 18 September 2020
Key Legal Topics
Areas of Law
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Family Law
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