Luo & Bassett
[2022] FedCFamC1F 178
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Luo & Bassett [2022] FedCFamC1F 178
File number(s): SYC 6075 of 2019 Judgment of: CHRISTIE J Date of judgment: 24 March 2022 Catchwords: FAMILY LAW – FINAL ORDERS – parenting – where the mother seeks to relocate interstate with the child – where the father opposes relocation - shared parental responsibility – allegations of family violence – where mother’s mental health threatens to impact parenting capacity – where the expert evidence emphasises the child’s vulnerability Legislation: Evidence Act 1995(Cth) ss 135, 138
Family Law Act 1975 (Cth) ss 4AB, 60CC, 60CA, 65DAA
Surveillance Devices Act 2007 (NSW) ss 4, 7
Cases cited: Hamady & Mansour [2022] FedCFamC1A 1
Sayer & Radcliffe (2012) 48 Fam LR 298
Division: Division 1 First Instance Number of paragraphs: 110 Date of hearing: 13 – 16 December 2021 and 3 – 4 March 2022 Place: Sydney Counsel for the Applicant: Dr Brasch QC Solicitor for the Applicant: JB Solicitors Counsel for the Respondent: Mr Wong Solicitor for the Respondent: Accuro Legal Counsel for the Independent Children's Lawyer: Ms Carter Solicitor for the Independent Children's Lawyer: Blumberg Family Lawyers ORDERS
SYC 6075 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS LUO
Applicant
AND: MR BASSETT
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
24 MARCH 2022
THE COURT ORDERS THAT:
1.The parties have equal shared parental responsibility for X, born 2015 (“the child”).
2.The child live with Ms Luo (“the mother”) until the child leaves Sydney and she be permitted to make his place of residence within a 50 kilometre drive from Melbourne (Tullamarine) airport.
3.The child shall spend time with Mr Bassett (“the father”) as agreed between the parties in writing but failing agreement, as follows:
(a)Until the child leaves Sydney as follows:
(i)Each Tuesday from the conclusion of school until the commencement of school on Wednesday. The father will collect the child from school on Tuesdays and will return him to school on Wednesdays; and
(ii)Each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday. The father will collect the child from school on Fridays and return him to school on Wednesdays.
Thereafter:
(b)In Sydney on six weekends per year during school term to be nominated by the father by the beginning of each school term and to include (if they fall outside the school holidays): the Victorian Labour Day long weekend, the Queen’s Birthday long weekend, the Friday public holiday ahead of the AFL grand final, the weekend before Melbourne Cup (concluding on Tuesday) and the father’s day weekend, with the child to be booked on a flight which is scheduled to leave Melbourne no later than 5.30 pm on the day school finishes and is scheduled to arrive in Melbourne no earlier than 5.00 pm on the day before school starts.
(c)In Melbourne during school term on one weekend in each calendar month from the conclusion of school on Friday to the commencement of school on Monday, with the father to nominate the weekends in writing by the beginning of each school term.
(d)During the 2022 Victorian school holiday periods at the conclusion of terms one, two and three for a period of four nights in Sydney commencing at 10.00 am on the first Saturday after school concludes and concluding at 6.00 pm on the fifth day.
(e)From 2023 for the whole of the holidays at the conclusion of school terms one and two from 10.00 am on the day after school concludes until 5.00 pm two days prior to the school resuming, in Sydney.
(f)In the 2022 summer school holidays in Sydney for two weeks which may be exercised consecutively if the parents agree, in the absence of agreement to be the first week of the school holidays, commencing at 10.00 am on the first Saturday after school concludes until 6.00 pm on the eighth day and the week commencing 14 January 2023 at 10.00 am until 6.00 pm on the eighth day.
(g)In the summer school holidays from 2023 for half the school holidays to be the first half in odd numbered years and the second half in even numbered years, in Sydney.
(h)At such other times as agreed between the parties, including during periods when the father is present in Melbourne.
4.The mother be responsible for the travel costs and arrangements for X when he is flying to and from Sydney.
5.The father be responsible for his own travel costs and arrangements when flying to and from Melbourne.
6.In the event that a flight organised by either parent is cancelled, the party who organised the flight will take all necessary steps to ensure the child travels to the destination city on the next available flight and will notify the other parent as soon as practicable of the cancellation and details of the new flight.
7.For the purposes of changeover:
(a)Where X is travelling as an unaccompanied minor he is to be picked up and dropped off by each parent in accordance with the policy of the relevant airline for unaccompanied minors.
(b)Where changeover occurs in Melbourne it is to occur at X’s school or if on a non-school day, at the main entrance of B Shopping Centre or as agreed in writing.
(c)Where X is travelling accompanied by the mother changeover is to occur in Sydney at the domestic arrival terminal of Sydney Kingsford Smith Airport.
8.Notwithstanding any other order, the child shall spend time with the father on the following occasions:
(a)For the 2022 Christmas period and each alternate year thereafter the child shall spend time with the father from 10.30 am Christmas Eve until 3.30 pm on Boxing Day in Sydney.
(b)In the event that the child’s birthday falls on a weekend and the child is not ordinarily with the father pursuant to these orders the child will spend time with the father from 2.30 pm to 6.30 pm, with the time to occur in the city which the child would be ordinarily in pursuant to these orders.
9.Notwithstanding any other order, the child shall spend time with the mother on the following occasions:
(a)For the 2023 Christmas period and each alternate year thereafter the child shall spend time with the mother from 10.30 am Christmas Eve until 3.30 pm on Boxing Day in Melbourne.
(b)In the event the child’s birthday falls on a weekend and the child is not ordinarily with the mother pursuant to these orders the child will spend time with the mother from 2.30 pm to 6.30 pm with the time to occur in the city which the child would be ordinarily in pursuant to these orders.
(c)From 3.00 pm on the eve of Chinese New Year to 6.00 pm on the first day of Chinese New Year each year.
(d)From 10.00 am until 6.00 pm mother’s day in each year that the child is not ordinarily in the mother’s care pursuant to these orders, in Melbourne.
10.Each party shall ensure that the child has access to his mobile phone or Smart Watch to facilitate an audio or video call between the child and the parent with whom the child is not spending time, each Tuesday and Saturday that the child is in their care between 6.30 pm and 7.00 pm for no longer than 30 minutes.
11.The Australian Federal Police be directed to remove the name of X born 2015 from the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia.
12.The mother shall hold the child’s passports and original birth certificate.
13.The mother and father (“the parents”) shall do all acts and things and sign all documents necessary to renew the child’s passports not less than six months before the relevant date of expiry.
14.Either party is permitted to remove the child from the Commonwealth of Australia as agreed and failing agreement for such school holiday periods that fall entirely within the times the child is in that parent’s care.
15.In the event that a parent intends to travel overseas with the child in accordance with Orders 13 and 14, the travelling parent must provide the other parent no less than 60 days notice prior to the date of departure with the following:
(a)Details of the intended itinerary;
(b)Details of length of trip;
(c)Details of intended departure and return date;
(d)Contact details for the child whilst overseas including address and telephone number;
(e)Details of persons travelling with the children other than the parent;
(f)A copy of the tickets (electronic or otherwise) and booking confirmations; and
(g)The booking identification number for travel.
16.Both parents shall keep the other advised of their residential address, email address and contact telephone number and shall advise the other party within 48 hours of any change to either their residential address, email address or telephone number.
17.Both parents shall keep the other advised of the health of the child including any serious illness, medication or hospitalisation as soon as is reasonably practicable and to allow the other parent to visit the child if hospitalised.
18.The parties are both at liberty to attend school functions to which parents are invited.
19.Each parent is restrained from denigrating the other parent or the other parent’s family, or allowing another person to denigrate the other parent or the other parent’s family, in the presence or hearing of the child.
20.Each parent is restrained from physically disciplining the child.
21.In the absence of a waiver, the parties each pay half of the Independent Children’s Lawyer’s total costs within 28 days of these orders, with the total costs being $18,375 including GST.
THE COURT NOTES THAT:
A.Pursuant to s 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure “A” attached hereto and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Luo & Bassett has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
This is an application for final parenting orders.
An Application for Final Orders was filed by Ms Luo (“the mother”) on 30 November 2020 and later amended on 22 November 2021. The final minute of orders sought by the mother became exhibit 15.
A Response to Final Orders was filed by Mr Bassett (“the father”) on 30 November 2020 and later amended on 2 December 2021. The final minute of orders and alternative orders sought by the father became exhibits 16 and 17.
Each parent seeks parenting orders in respect of the child, X (born in 2015) (“X”). An Independent Children’s Lawyer (“the ICL”) was appointed to represent X’s interests in the proceedings. The ICL sought orders which became exhibit 14.
The mother seeks orders permitting her to make X’s place of residence with her in Melbourne.
The father seeks orders graduating to equal time and orders requiring that X remain living in Sydney.
BACKGROUND
The mother and the father (“the parties”) met in or around February or March 2010. They commenced co-habitation in late 2010 and married in 2013.
In 2015, X was born.
The parties separated on 18 or 20 February 2018 and divorced on 25 September 2020.
The current parenting orders made on 30 November 2020 provide for a pattern of time between that parents such that X lives with the mother and spends time with the father as follows:
(a)Each Tuesday from the conclusion of pre-school/school until the commencement of pre-school/school on Wednesday, and;
(b)Each alternate weekend from 6.00 pm on Friday until 6.00 pm on Sunday.
Effectively, X is with his mother for ten nights in each fortnight and his father for four nights.
THE LAW: RELOCATION
A relocation case is just an application for parenting orders. It is not a specific legal category but rather a set of factual circumstances – one party is seeking to make the child’s place of residence in a location that will (usually) make orders for frequent and regular time with the other party less practical or impractical.
The party seeking to change the location in which he or she cares for the child does not carry an onus. Both the proposal for relocation and the proposal against relocation are to be weighed according to the statutory criteria to determine which best serves the best interests of the subject child: ss 60CC and 60CA of the Family Law Act 1975 (Cth) (“the Act”).
In Sayer & Radcliffe (2012) 48 Fam LR 298 at paragraph 48, the Full Court of the Family Court of Australia said:
A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider the competing proposals of both parents. 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.
The legislative pathway requires not just an appreciation and consideration of the relevant factors in s 60CC(2) and (3) of the Act but also an understanding of the reasonable practicability of the proposed time orders from the perspective of the child and the parents who must facilitate the time: s 65DAA(5) of the Act.
THE EVIDENCE
Both parties filed and relied on a trial affidavit. The mother also relied on an affidavit by her treating psychiatrist, Dr C (“Dr C”) and her sister Ms Q (Ms Q) (in this judgment referred to, without intending disrespect, by her first name “Ms Q”). The father also relied on an affidavit by his partner, Ms D (“Ms D”).
Attached to the father’s affidavit at annexure ‘S’ was a document purporting to be a transcript of a recording taken by the father of the mother without her knowledge or consent following changeover on 28 March 2021. It was not controversial that the father had recorded their exchange on that day without informing the mother that he was doing so. At the commencement of the proceedings, Queens Counsel who appeared on behalf of the mother indicated that objection was taken to the inclusion of the transcript as evidence in the proceedings in reliance upon s 135 of the Evidence Act 1995(Cth) (“the Evidence Act”). Section 135 of the Evidence Act allows the court to refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a)Be unfairly prejudicial to a party; or
(b)Be misleading or confusing; or
(c)Cause or result in undue waste of time.
Queens counsel for the mother indicated that the recording fell foul of the provisions of s 7 of the Surveillance Devices Act 2007 (NSW) (“the Surveillance Devices Act”). Section 7 of the Surveillance Devices Act provides that a person must not knowingly install, use or cause to be used or maintain a listening device--
(a)to overhear, record, monitor or listen to a private conversation to which the person is not a party; or
(b)to record a private conversation to which the person is a party.
The definition of listening device includes any device capable of being used to overhear, record, monitor or listen to a conversation or words spoken to or by any person in conversation, but does not include a hearing aid or similar device used by a person with impaired hearing to overcome the impairment and permit that person to hear only sounds ordinarily audible to the human ear: s 4 of the Surveillance Devices Act.
It was not controversial that the father’s recording of the conversation between him and the mother was undertaken with a listening device. The effect of s 7 of the Surveillance Devices Act is to prohibit such recordings. The intention is to deter persons from covert recordings. Section 7(3) creates an exception to s 7(1)(b), that is the recording of a private conversation where relevantly:
(a)a principal party to the conversation consents to the listening device being so used in the recording of the conversation --
(i)is reasonably necessary for the protection of the lawful interests of that principal party; or
(ii)is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation.
In the circumstances of this case it was argued by counsel on behalf of the father that the recording of the conversation was reasonably necessary for the protection of the lawful interests of the father.
Having regard to the context in the affidavit material, I accept that it was reasonably necessary for the protection of the lawful interests of the father and accordingly s 7 of the Surveillance Devices Act does not apply.
I decline to exercise the discretion afforded to me under s 135 of the Evidence Act to exclude the recording because, in the circumstances of the case and having regard to the conduct of both parties as recorded by the transcript (annexure S), it was relevant to the issues for determination before the court.
Although not raised by counsel, s 138 of the Evidence Act may have been relevant to the determination of the admissibility of the covertly recorded transcript. Section 138 provides a discretion to exclude improperly or illegally obtained evidence. For the reasons discussed above, I concluded that the evidence had not been illegally obtained. It remains the case that evidence that has not been illegally obtained may be considered improperly obtained. Unlike blanket exclusions, s 138 creates a discretion which allows for admission into evidence, evidence which has been either improperly or illegally obtained where the court considers that the evidence has weight and utility. Section 138(3) of the Evidence Act creates a non-exhaustive list of matters which may be taken into account by the court in exercising the discretion. That list is as follows:
(a)The probative value of the evidence; and
(b)The importance of the evidence in the proceeding; and
(c)The nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and
(d)The gravity of the impropriety or contravention; and
(e)Whether the impropriety or contravention was deliberate or reckless; and
(f)Whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g)Whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h)The difficulty (if any) in obtaining the evidence without impropriety or contravention of an Australia law.
I formed the view, and expressed the same at the time of ruling on the admissibility of the document, that the document was relevant to issues in the case, including the parties’ capacity to communicate, cooperate and co-parent, the exposure of the child to conflict and a determination of whether or not there had been family violence. During the course of the hearing the parties agreed to an accurate transcript of the recording.
There were two single expert reports by Ms E (“Ms E”), clinical social worker.
The evidence dealt with the following relevant issues:
(a)The nature of X’s relationship with each of his parents;
(b)The parties’ capacity to communicate, cooperate and co-parent;
(c)The mother’s mental health and any impact that may have on her parenting capacity;
(d)Whether either party engaged in family violence and if so what are the consequences which flow for X and the orders sought by each party;
(e)The reasonable practicability of the parties’ competing proposals.
There was also a single expert report by Dr F (“Dr F”), psychiatrist, which focused on the mother’s mental health.
CONSIDERATION AND DETERMINATION
After hearing the evidence I formed the view that the most significant issues in the case were:
(i)What is the impact of residing in Sydney (when she wishes to reside in Melbourne) on the mother’s parenting capacity?
(j)What is the impact of residing in Sydney (when she wishes to reside in Melbourne) on mother’s mental health and wellbeing?
(k)What is the nature of X’s relationship with each of his parents and other significant people?
(l)What are the advantages and disadvantages to X of the mother’s proposal?
(m)What are the advantages and disadvantages to X of the father’s proposal?
(n)Have one or both of the parents engaged in family violence and if so what is the significance of that finding to the orders sought?
(o)Are the parties’ proposals reasonably practicable?
(p)Is the parties’ communication adequate to support an order for equal time?
(q)Is the parties’ communication equal to parenting in different cities?
The mother’s mental health
The mother is not required to identify a compelling reason to justify her application to change X’s place of residence but she advances in support of her position two related matters which she contends will be of benefit to X. The first is that she says being removed from the immediate day-to-day conflict between the parents will assist her to be a better and more available parent to X. Secondly, she submits that her parenting will be assisted by having the practical and emotional support of her sister and brother-in law, who reside in Melbourne.
It is appropriate that I take into account the mother’s mental health in so far as it impacts upon her capacity to parent X. I am also entitled to consider the impact of poor mental health on the mother in circumstances where she is unable to shield X from it.
The mother gives evidence that she was diagnosed with post-natal depression after the birth of X. The father agrees that the mother had experienced challenges following the birth of X which neither of them identified at the time as being post-natal depression and accordingly, the mother did not immediately obtain assistance. It would appear as though after having obtained assistance, she was able to return to good mental health. However, it is plain that she is currently experiencing symptoms consistent with the diagnosis by her psychiatrist Dr C of Major Depressive Disorder (“MDD”) and anxiety. Dr C also described the mother as having an adjustment disorder. The mother described her symptoms to the court as including sleep difficulties, nightmares and fogginess. She also described finding it difficult to find motivation.
In his oral evidence (as in his written report) Dr F agreed with Dr C’s diagnosis of MDD. However, he questioned Dr C’s characterisation of the mother having an adjustment disorder, since the Diagnostic and Statistical Manual of Mental Disorders (“DSM”) indicates a diagnosis of an adjustment disorder should only be made where no other diagnosis is available and here there is an existing chronic MDD diagnosis. This difference in expert opinion is not material to outcome since the symptoms of the two are common. Dr F was concerned that the mother’s MDD had now become chronic and perhaps medication resistant and while he deferred to the treating psychiatrist his personal view was that a review, medication change or second opinion would be appropriate. The longer the MDD persists the more difficult he said it would be to treat and the poorer the prognosis becomes. He did stress that such a review would not be a quick fix and ceasing one medication and trialling another would take months and may not ultimately be successful.
Dr F confirmed that one of the symptoms of MDD was catastrophising. It had not been clear to Dr F how Dr C concluded that there was a concern about suicidal ideation but after it was clarified that it was the mother’s evidence that she feared a recurrence of such thoughts (as opposed to having experienced a recurrence of such thoughts) he shared the concern voiced by Dr C that she remained at risk for suicidal ideation or suicide. He expected that a move to Melbourne would assist with relief of symptoms.
The father gave evidence in his affidavit dated 9 October 2019 at paragraphs 57 and 58, (which became exhibit 8) consistent with the mother having been diagnosed with depression during a period of residence at P Clinic. He identified symptoms as including a noticeably shorter temper. The father’s evidence also included the following:
I am aware that [Ms Luo] had suicidal thoughts in the past. She has [sic] spoken with me about it before we separated. On one occasion, [Ms Luo] told me, after the fact, that she wanted to drown herself in the bathtub but stopped from doing so when she thought something bad might happen to [X] as I was not at home. I did not notice any change to [Ms Luo]’s state of mental health even after [X] attended day care.
In writing his reports, Dr C relied on the account given to him by the mother as to her symptoms and stressors. Those were identified by him in his various reports to include lack of access to family support, ongoing conflict (with her former husband), and financial stress including lack of employment, social isolation and family illness.
During cross-examination, Dr C was asked whether or not when the proceedings conclude, he would anticipate an improvement in the mother. He considered that it would likely improve her symptoms. Asked whether or not obtaining employment commensurate with her qualifications would assist in alleviating stressors, he agreed that would also be the case. The remaining stressors which are identified by both the mother and Dr C which may not be alleviated include conflict between the parties and lack of family support. The evidence established that notwithstanding the mother had indicated to Dr C that she felt socially isolated in Sydney, she had a number of close friends and close friends to whom she could turn to for assistance both in respect of her own friendships and in providing care to X. The situation in relation to family illness also appears to have passed. Accordingly, the most significant issues which remain stressors for the mother are ongoing conflict with the father and lack of family support.
I find that the mother underplayed the social networks she has in Sydney and the practical support they have offered. The mother has a series of friendships developed through work, the neighbourhood and volunteer work. Those people have from time to time assisted her with X. Some of them are close enough to have been described by her as godparents to either her or X. That said, I am not confident they play the same role as the mother’s sister, Ms Q. The contemporaneous notes of Ms G (“Ms G”), the mother’s psychologist, for the period 2017-2019 demonstrate the “joy and support” the mother derived from visits to her sister.
Dr C was firmly of the view and did not waiver in cross-examination that having family support was a key to resolution of the mother’s symptomology.
Dr F consulted with the mother on 28 October 2020 and sets out in his report what he was told during that consultation. He had available to him, the earlier reports of Dr C. The mother reported to Dr F that she had been picking at the skin on her heels which would bleed and was painful. She feared that she could be a danger to X given that she would injure herself and feared she was losing her mind. She did not want X to witness her hobbling. Following interview, Dr F concurred with the diagnosis of Dr C of MDD. In answer to the question “to what extent (if any) would you expect her [the mother’s] condition to change (and how would it change) if the Court were to allow such relocation”, Dr F said:
It is difficult to accurately predict how the mother’s mental state would change if allowed to relocate to Melbourne. That said, the mother is of the view that this would provide her with significant support and relief. She spoke of the joy that she and [X] experienced in his interactions with her family and cousins. [Ms G] had documented in her clinical records on repeated occasions the positive shift in [Ms Luo]’s affect and functioning during previous visits to Melbourne. These factors are indicators of the likely benefit to [Ms Luo], her mental state and functioning should she be allowed to relocate as proposed.
Dr F’s oral evidence confirmed his earlier opinion that the mother continued to experience MDD, which he regarded as moderate (on a scale from mild to severe). Dr F referred to the ongoing psycho-social stress of the mother remaining in Sydney against her will. This cannot be underestimated. Requiring an adult, with a now chronic diagnosis of MDD, to remain living in a place she identifies as lacking essential emotional support in circumstances where her treating psychiatrist and the single expert share the view that the proposed move is likely to produce a good outcome for her mental health is contrary to the best interests of X.
The parties saw Ms E for the purpose of her preparing a single expert report for these proceedings. In fact, two reports were prepared by Ms E dated 22 September 2020 and 21 October 2021. Ms E, accepting the findings of Dr C, also formed the view that having regard to the potential benefit to the mother’s mental health, her proposed orders represented those which would be in the best interests of X.
Ms E’s oral evidence focused squarely on the interplay between X’s wellbeing and his mother’s mental health. Ms E was concerned about the impact on X of assuming the burden of his mother’s mental health presentation. She was similarly concerned about the need to protect the mother’s capacity to be emotionally available for X. The corollary of her evidence was that she concluded that, if the mother became emotionally available (or more emotionally available) to X, it would be of benefit to X as it would relieve him of the burden of feeling responsible for his mother’s wellbeing.
It is also significant to consider the evidence about the practical aspects of the move and what they represent for the mother and by extension X. The mother has been working in a job which is not commensurate with her skills and experience. She is underemployed and underpaid. As a consequence, she expressed to Dr F feelings of frustration and failure associated with working at less than her usual level. It cannot be underestimated that with reliable family support, the mother may be able to return to work which rewards her both financially and intellectually contributing to her improved mental health with undeniable benefits for X.
Family violence and parental conflict
One of the significant issues in this case was about the impact of parental conflict on X. The most significant example of this was the incident which occurred between the parties on 28 March 2021, recorded by the father, without the knowledge of the mother. At the conclusion of an occasion of contact between X and the father, the mother returned to the father’s home soon after the changeover to confront him about his opposition to X having a mobile phone available to him at all times in the father’s home. X was present throughout the whole of the parties’ exchange. I am conscious that the father knew he was recording. He tried calmly and repeatedly to shut down the conversation or defer it to a time that X was not present. The mother’s response to this endeavour was that her anger escalated. She became more strident and her voice became more high pitched. She swore and she explicitly involved X in the conversation. She seemed not to notice X’s increasing distress as she continued to argue and threaten the father that she would “take an AVO out” if he did not permit X to have a mobile phone.
After the conversation had been taking place for in excess of six and a half minutes, and X was screaming in the background, the transcript records the following:
[Mr Bassett]: Did you just hit me?
[Ms Luo]: Yes.
[Mr Bassett]: Please leave the house. Leave my house.
[X]: No.
[Ms Luo]: Do not do that to him.
[Mr Bassett]: You are doing this to him, [Ms Luo].
[Ms Luo]: How am I doing this to him.
[X] screaming at the background (7:36)
[Ms Luo]: I am standing up for him.
[Mr Bassett]: Leave please.
The parties are at odds as to whether or not, during that incident, the mother hit the father. The father in his affidavit material says “in the midst of that confrontation, she [the mother] just got angrier and angrier and all of a sudden just pushed me on the chest”.
In the recording, the father is heard to say to the mother “did you just hit me?” and the mother responds “yes”. In her affidavit material, the mother explains her concession as recorded in the transcript and recording as her mishearing the father. At paragraph 183 she says:
At the time I was emotional and upset, due to these heightened emotions combined with [Mr Bassett]’s accent I did not properly understand him. I thought that [Mr Bassett] had said “did you hear me?” in a condescending tone.
When asked about this particular incident during cross-examination, and in particular, the allegation that the mother had either hit the father or had been physical with the father, the mother said no. The explanation for why she had agreed with the proposition “did you just hit me?” was that she had misheard the question. I do not accept that. It makes no sense in light of the agreed transcript – since it was the mother who had just spoken at that point and not the father. Having listened to the recording and in particular the context in which the interchange takes place, I do not accept the mother’s explanation.
I find that the mother’s conduct satisfies the definition of family violence under s 4AB of the Act. On 6 April 2021 the mother entered into a Final Apprehended Domestic Violence Order (“ADVO”) by consent – for the protection of the father – for a period of 12 months. That order expires on 5 April 2022. The orders I propose to make do not conflict with the terms of the ADVO. The father’s affidavit evidence said there were three to four occasions when the mother had “lashed out [at him] emotionally and physically”.
The father accepted that he had also lashed out emotionally and said hurtful things to the mother in a misguided effort to get a reaction from her.
The mother contended that the father had engaged in conduct towards her that constituted family violence. She described events including an occasion on which she says the father attempted to hit her. She told Dr F that the father had hit her (this is not in her affidavit) but that that she could not remember the details. The father denies having been violent to the mother. The mother also told Ms E that the father had threatened to kill her if she reported him for yanking X’s arm. The father denied he had done so. I am unable to find on the balance of probabilities that the father was violent to the mother as she alleges. It is however plain that the period of X’s birth was difficult for both adults and each of them indicated to the experts involved in the case that they engaged in conflict which ultimately led to their separation. Each party seeks that X spend significant time in the care of the other and each party seeks an order for equal shared parental responsibility. In that context I am content that each of them takes the view that time with the other parent is unlikely to expose X to family violence.
Communication, cooperation and co-parenting
The parents do not communicate well. The affidavit material contains examples where both parents have, through poor communication, exposed X to parental conflict.
Contained in the evidence filed on behalf of both parties were examples of their communication. Exhibit four contained emails between the parties relating to arrangements for X to spend time with the mother on mother’s day in 2020. On 3 May 2020, the mother requested that the following weekend she collect X on Saturday at 6.00 pm to allow her to have a sleep in on mother’s day. Her email read:
Hi [Mr Bassett],
[X] is to spend Mother’s Day with me this coming Sunday 10 May 2020. Can I please collect him at 6pm Saturday 9 May? Otherwise I’ll have to collect him early Sunday morning and it will defeat the purpose of sleeping in on Mother’s Day.
You shouldn’t miss out on significant time with [X], since that’s around dinner and bedtime.
Thanks.
Kind regards,
[Ms Luo]
The father responded the following day, 4 May 2020 at 10.56 am. His email read as follows:
Hi Ms Luo,
The court order specifies that for Mother’s and father’s [X] is to spend the day with the parent from 9am disregarding the usual agreement.
Given I already have too little time currently (<3 days every fortnight) with [X] I am not really keen on giving up more time especially bed time and mornings which are very special times with [X]. However I understand it’s an important day for you so I would suggest 3 options for you to choose:
- I am happy to drop him off at 9am instead of you coming so you have more time to sleep in
- or I am happy to swap the weekend altogether, [X] will spend this mother’s day weekend with you and the following 2 weekends (15-17 May and 22-24 May) with me.
- do as per your outlined proposal but extend next Tuesday to include overnight, I will pick him up at 3.30 and return [X] at 9am the following Wednesday.
Let me know your preference.
Kind Regards,
[Mr Bassett]
To this point, both the mother’s request and the father’s response appear entirely reasonable, appropriate and child focused. The mother responded on 4 May 2020 at 12.02 pm. Her response read as follows:
[Mr Bassett],
You’re not being fair at all. Quantity of time does not equate to quality time. He goes to bed at 7pm and doesn’t wake until 8-830 the following morning. Remember, he didn’t want to do dinner at yours? [X] tells me he often wakes up alone so unsure how this is consistent with you saying it is a special time for you.
There is no benefit of you dropping him off at 9am. I still need to be up by then. [Mr J] and [X] have planned for a sleep in and breakfast in bed with me. Because they know I deserved it.
No swapping because we already have plans on 16 May.
No overnight on Tuesday either because he has dinner plans with [R].
Please remember, it is what is best for [X] and what makes him feel special. Not you. It was his own idea and he wanted to do something nice for me. Your action is not consistent with your request of wanting family therapy.
No amendments then unless you change your mind.
The mother’s response to the father’s reasonable proposal that he offer her three alternate ways in which she might have the opportunity to sleep in and/or have mother’s day breakfast with X was condescending, critical, inflammatory and, contrary to what she asserts, did not consider what might be appropriate for X.
As discussed above, an incident occurred between the parties at change over on 28 March 2021. Unbeknownst to the mother, the father was recording the interaction between the parties. He prepared a transcript of their interchange for the proceedings and with some amendments, as noted on exhibit 1, it was accepted on behalf of the mother that the transcript was accurate.
The mother confronted the father about her concern that “X told me that you took his phone and when he asked for the phone back you didn’t give it to him”. The father in response to the mother’s concern said, “there is no phone allowed in the house”. The mother’s response was to say “oh no, sorry? You continue to do that I will take an AVO out, okay?”
It is difficult to understand why it was in X’s best interest that he have a mobile phone while in the care of his father, in circumstances where it has led to such considerable conflict between the parents. That conflict has impacted upon X and it seems as though on the mother’s case, X had the phone in order that he be able to report to the mother if he had concerns in the father’s home. This placed X in an unenviable situation where he was at the centre of the conflict of his parents. The recording went for in excess of 11 minutes. During that time X is heard to be crying and screaming.
It placed X at the very centre, both literally and metaphorically of the debate between his parents. His distress is audible. The mother’s incapacity to recognise the consequences of her actions on this occasion create concern that she is unaware of her actions and their impact on X or certainly, is unaware in the moment.
Another incident which shed light on the mother’s mistrust of the father was the mother’s enrolment of X in sports. The father was pleased that the mother had enrolled X and made inquiries directly of the other parents in respect of X’s involvement. The father’s actions led to the mother un-enrolling X and he did not play.
The parties’ involvement in conflict as between themselves and the involvement of the child in the conflict as between the parents has implications for all of the prospective orders sought by both parties. The question for the Court is to consider what arrangement, if any of those proposed, is best able to shield X from exposure to the conflict between his parents.
It is worth noting that it is of little moment which parent bears greater responsibility for the failures of communication in this case as the result is the same – X is exposed to the consequences of poor communication. This should not be interpreted as endorsement of the current circumstances. The mother will benefit if she can come to see X’s father as an equal in the role of parent with something to offer X.
Placing some geographical distance between the parties may function to lessen X’s exposure to conflict for two reasons: firstly, because there will be fewer opportunities for him to witness face to face conflict between his parents and secondly, because it is hoped that the mother will be better able to moderate her responses to the father if her mental health improves and she does not perceive the father as having effectively “trapped” her in Sydney.
Reasonable Practicability
The mother and X currently live in a one bedroom apartment in reasonable proximity to the father’s home and X’s school. The mother pays rent of $516 per week to live in her current accommodation. The mother earns about $60,000 per annum and receives $390 by way of child support from the father and $325 of Centrelink benefits per fortnight. The costs of the proceedings have all but exhausted the mother’s savings.
The mother proposes in the first instance to reside with her sister and her sister’s family. She recognises this would be a short term solution.
The mother gave evidence that her move to Melbourne was primarily necessitated by the improved access to “social, emotional and financial support of my family”. The mother’s sister gave evidence about the emotional and practical support on offer and this evidence was not undercut by cross-examination.
In her evidence in chief, the mother said “I do not have a support network in Sydney. I have found it difficult to build and maintain friendships in Sydney” and indicated that she had endeavoured to maintain friendships with two of X’s friends’ mothers. As it emerged during cross-examination, the mother’s support network in Sydney was more extensive than her evidence in chief would have indicated. During cross-examination, she was asked questions about her relationship with Ms H (“Ms H”). Ms H was identified by the mother as being a close friend and someone who she (the mother) would consider to be her godmother. Ms H lives in the same suburb as the mother and they chat on the phone regularly and would, if it were not for COVID-19, meet in person. Ms H has cared for X in the absence of the mother and the mother agreed that Ms H and X have a good rapport and would have lunch together quite often when the pandemic restrictions did not exist.
The mother was also cross-examined extensively about her relationship with Mr J (“Mr J”). The evidence falls short of establishing that the mother and Mr J are currently in a romantic relationship. The evidence did however establish that he was an important friend to the mother and an important friend to X. The mother said that she met Mr J in about July of 2019. At some point between July of 2019 and early 2020, X came to refer to Mr J as “Papa”. “Papa” is the expression which X uses to refer to his father. The mother gave evidence that she had a conversation with X at the time where she indicated to him that he could not call Mr J “Papa” but could refer to him as his godfather. From that time onwards it would appear from emails that the mother has herself referred to Mr J as X’s godfather. When asked whether or not she had told the father that X had a godfather, she said no, she had not done so because of her belief that to have done so may have caused conflict. When asked what she meant by godfather, the mother referred to it being a term of endearment in her own culture, she having herself had a godmother and a godfather. She explained that godparents were people you could look up to and who were supposed to stand in for the parents if they were not available, although she did not foresee that role for either of X’s godparents. She described X as having a good rapport with Mr J.
Tendered into evidence as exhibit three were five photographs. The first photograph appears to be a picture of Mr J from Twitter. The mother agreed in evidence that it depicted Mr J. The second photograph, which the mother agreed was likely taken by X on X’s device, is a photo of Mr J inside what appears to be an apartment. The next photograph depicts Mr J standing behind the mother with his arms around her. She said he was endeavouring to restrain her in the context of a ball game. The next photograph shows Mr J with the mother and X, attending an art exhibition. The final photograph depicts the three of them at the same art exhibition with the mother appearing to have her head on Mr J’s shoulder. When the mother accompanied the police to the police station following the incident on 28 March 2021 the police told Mr Bassett that X was with the mother’s partner (a reference to Mr J).
I do not need to make a finding about whether there was or is a romantic relationship between the mother and Mr J, the more significant question is, to what extent has Mr J been a source of support to the mother and a significant relationship to X? The evidence obtained through cross-examination suggests that he has been both.
In the context of home schooling, the mother gave evidence that Mr J had promised X that if he was good during home schooling then he would reward X with the three of them taking a trip to the snow. That trip eventuated and the mother, Mr J and X travelled to the snow where they spent at least two nights in a studio serviced apartment.
During the period where the mother had been working from home, she gave evidence that on two occasions Mr J had been responsible for playing sports with X at the apartment complex in which she and X live whilst she had been attending to her work from home.
During conversation about X having begun to refer to Mr J as Papa, the mother gave evidence that she had spoken to Mr J about this issue at the time, saying to X that the grownups had to have a talk. In that context she said obviously he (Mr J) loves X. She saw Mr J’s role as being a positive influence on X. X is excited and happy and he looks up to him.
The mother gave evidence that Mr J provided for X those things which she herself could not provide. He was a role model for X. He teaches X chess, soccer and Western etiquette (e.g. table manners). It was easy to be left with the impression as a consequence of her evidence seen in the context of the holidays and outings taken together, that she was seeking to create for X a nuclear family comprised of her, Mr J and X. There was no suggestion that Mr J was intending to reside with the mother in Sydney or Melbourne.
The parties entered into consent orders when the matter was before his Honour Justice Altobelli on 30 June 2021, which provided in part that they would each attend upon Dr K (“Dr K”) for family therapy and make arrangements for attendance of X. The orders also provided that the family therapy was to be confidential and non-reportable save that the ICL would have leave to have discussions with the therapist as required in respect of the progress of the therapy, attendance by the parties and child, recommendations by the therapist, the parties’ compliance with those recommendations, and any other matter in which the ICL deems relevant to these proceedings for the purpose of updating the Court.
When the matter was before the court on 16 December 2021, counsel for the ICL provided an update on the progress of family therapy and suggested that the information obtained from Dr K was that the mother had attended on five occasions, the father on two occasions and that family therapy was in its early stages but she was hopeful of progress. Otherwise, during the matter, the Court was told that the father had attended family therapy with X, at Dr K’s request. On that occasion, Dr K had requested that the mother attend in person at the commencement of the session and the mother had declined to do so. It is of concern to the Court that the mother, on her own evidence, declined to follow the recommendation of the family therapist. In order to contemplate whether or not the orders which the mother proposes can work in X’s best interests, it is necessary to understand her commitment to the process of family therapy. Whatever orders govern the arrangements in respect of X’s care, both parties sought either equal time or substantial and significant time and in those circumstances, their capacity to communicate and co-parent will be key to protecting X from conflict in the future.
It is necessary to determine whether the proposals for consideration if implemented by way of court order, would be reasonably practicable.
The mother proposes that she reside in Melbourne with X. The father gave evidence that if the mother and X resided in Melbourne, he would remain living in Sydney (and accordingly he sought no parenting orders providing for the two parents to live in Melbourne). Accordingly, any time between X and the father, if the mother is living in Melbourne, will be facilitated by either X or the father travelling. Both parties’ proposals provide a balance between travel by X and travel by the father. That strikes the appropriate balance between the father’s capacity to travel, having regard to his work commitments, the burden of travel on X, X’s commitments in Melbourne and the need for X to spend time with the father in the home of the father and the father’s partner Ms D. The fact that an adult might find the travel inconvenient (indeed onerous) does not mean the proposal is not reasonably practicable: Hamady & Mansour [2022] FedCFamC1A 1. I have made orders which should be feasible given the parameters set by the father’s alternate application. I can find on the basis of the evidence before the court that travel between Melbourne and Sydney is relatively straight forward. I also have to be able to find that the travel can be implemented having regard to the parties’ financial circumstances. I’m comfortably satisfied based on the father’s employment, that of his partner and the mother’s intentions in respect of her work that, whilst it may be expensive for the parties to facilitate this plan, X will continue to spend time with both parents and will not be prevented from exercising time as a consequence of the parties inability to afford it.
The mother suggested that X should spend Victorian long weekends in Sydney with the father. I intend to make that order. The mother told Ms E that in the case of the Melbourne Cup public holiday she would be happy for X to miss the Monday of school and accordingly that weekend X could leave Melbourne on Friday night and return on Tuesday evening. Providing long weekends for X in Sydney gives him access to his father in his father’s home with Ms D and the activities the family can undertake during those weekends are more natural than time which will take place in a hotel or rented accommodation in Melbourne.
The mother has said she will be responsible for the costs of X travelling to Sydney. She says that air tickets can be acquired for less than $300 return. I have required that the father give the mother notice of the Sydney weekends to allow her to book tickets in advance and take advantage of cheaper airfares.
The mother has said she wishes to live in Suburb S, Suburb L, Suburb T, Suburb N or Suburb M. These suburbs are in close proximity to her family. Each of them is within a 50 kilometre driving distance of Melbourne (Tullamarine) airport. It is appropriate for there to be some restraint on the distance the mother lives from the airport to place the least impediments in the way of this arrangement working for X and accordingly the orders I will make will see the mother free to move on the basis that she obtains accommodation within 50 kilometres of the airport.
The father’s proposal is reasonably practicable as it would require the parties to remain in the same city. The challenges of the father’s proposal arise out of the fact that the mother will at least in the short term, continue to reside in a one bedroom apartment. Again, the proposal is possible even if not particularly convenient. One of the significant issues in terms of the reasonable practicability of the competing proposals arises out of the parties’ capacity (or indeed incapacity) to implement the arrangement. On behalf of the father it was submitted that the proposal whereby X lives in Melbourne with the mother would pose greater challenges in terms of implementation having regard to the parties’ limited capacity to communicate and cooperate. I accept that there are a greater number of potential logistical difficulties which might arise in respect of travel if X is to reside in Melbourne. However, I could not be comfortably satisfied having regard to the history that this issue was any more challenging if the parties were living in separate cities than it has been in the same city. The parties’ capacity to implement a substantial and significant or equal time arrangement is also compromised by their capacity to cooperate and communicate. As discussed above, it is clear that one of the potential advantages of the parties not living in reasonable proximity to one another is that it creates fewer opportunities for X to be a first hand witness to disputes about day-to-day matters.
Individual characteristics of the child
In her expert report, Ms E emphasised X’s vulnerability. When Ms E gave oral evidence, she was at pains to repeat her concern that X was a vulnerable child. In Ms E’s first report and to a lesser extent in her second report she described a child who was hyper-aroused and disorganised.
In making her recommendations, Ms E searched for the option, which in her view, might best protect X from an exacerbation of his existing vulnerabilities. She was particularly concerned that X ought not be put in a position where he felt responsible for his mother’s wellbeing or where he bore the burden of her mental ill health. It was particularly for this reason that Ms E settled on the proposed relocation to Melbourne as providing the best opportunity of shifting the burden of responsibility for the mother’s wellbeing from X to the mother’s family and particularly, the mother’s sister.
Ms E gave oral evidence that she had experienced firsthand the capacity of the mother’s sister to provide the mother with support and help the mother regulate emotional distress. In a finely balanced case, the significant importance of protecting a child identified as vulnerable from being exposed to his mother’s distress convinced Ms E, as ultimately it has convinced the court, that the relocation option offers the best hope for X to live with a parent whose mental health will likely improve and to himself be potentially released from the burden of responsibility for his mother’s wellbeing.
X’s views
It is unsurprising that X has voiced a desire to move to Melbourne with his mother in his interview with Ms E. It is less clear that this expressed view represents his actual wishes as opposed to his perception that this would make his mother happy and remove him from the direct conflict between his parents. Ms E concluded it is likely that X wishes both to stay in Sydney and to move to Melbourne. Given X’s age and the circumstances in which he has voiced this opinion I cannot give it any significant weight in reaching my decision.
The relationship between X and the father
On the basis of the evidence before me, the biggest risk to X’s relationship with the father arises out of his loyalty to his mother and primary caregiver. Ms E identified from her listening to the recording which was exhibit two, the fact that X intervenes in the argument between his mother and father in an effort to bring it to end. In the first instance he does so neutrally (effectively telling them both to stop). As the mother escalates X’s interventions also escalate as he elects to support his mother. This example, Ms E concluded was illustrative of the potential for X to reject his father in the event that he continued to be embroiled in parental conflict. Ironically, Ms E observed the relocation is more likely to reduce conflict and X’s exposure to conflict and therefore be protective of the father/son relationship.
One example of the stresses in the father/son relationship was the incident on the occasion of the father’s birthday. The parties had agreed that X would spend some time with his father on that day. The mother sent X with his mobile phone. The period of time which the father and X were to spend together on that day was not lengthy and objectively there was no reason why X needed a phone during that time. X’s desire to immediately phone his mother upon arrival at his father’s home led to conflict which the father was unable to effectively deescalate. The mother contended that this was indicative that X was somehow at risk from the father but not so as to require that his time be supervised or curtailed. The father contended that this incident demonstrated the impact of the mother’s attempts to exercise control over X’s time with the father. I am satisfied that X is not at risk in the father’s care. I am concerned that the mother’s conduct has exposed X to conflict with his father and conflict between his parents. I remain satisfied that X has a good relationship with the father notwithstanding this event.
Ms E conducted observations for the purpose of preparation of both her reports. In the second report she recorded:
[X] was observed to seek physical contact with his father at various times, which was, at times affectionate, such as sitting in his lap, and, at other times, a combination of affectionate, playful and rough.
I accept that there is some risk to X’s relationship with his father arising from the geographical distance and the consequent change to the character of the time spent together (less day-to-day activities). Living in a different city will inevitably mean that the father has less opportunity to participate in X’s school, extra-curricular activities and social activities. I must balance that against the risk that orders requiring X to remain in Sydney (and importantly implicitly requiring the mother’s continued unwilling presence in Sydney) will carry with them a potentially greater risk to the relationship between X and the father based on events to date. On balance I would be more concerned given the expert evidence that orders that X remain in Sydney would jeopardise the relationship.
It was agreed in the proceedings that X had a good relationship with the father, that it was a meaningful relationship and that there would be a benefit to X in the maintenance of that relationship. As discussed above, ironically it became plain that the relationship between X and the father may be better protected by the relocation option.
One of the bases for the conclusion that X’s relationship may be better protected by the relocation option arises out of a concern that, whether consciously or not, requiring the mother to remain in Sydney is unlikely to improve the relationship between the mother and father and is likely to, on balance, exacerbate existing hostilities.
The orders I will make will provide X and the father with some longer uninterrupted time in each other’s company. In that way it is hoped that is will not be experienced by X as any reduction of his time but a reconfiguring of his time that allows him to develop his relationship with each parent free of concern about how that may be perceived in the other household.
While X’s relationship with the father’s partner is secondary to his relationship with his parents, a move to Melbourne may impact on this relationship. It is another factor which is potentially disadvantageous for X. Ms D has been a member of the father’s household since 2018 and Ms E observed that X was comfortable in her presence. The move to Melbourne will necessarily offer fewer opportunities for X, the father and Ms D (and their pet dog) to be together as a household.
X’s relationship with his mother
X’s interactions with his mother during Ms E’s observations were described as “warm and comfortable”.
There is a concern arising out of the evidence provided by the play therapist, Ms O (“Ms O”), to Ms E that X has an anxious attachment to the mother. It was her view that resolution of the current difficulties between the parties would assist to resolve this issue.
One of the potential difficulties arising out of the evidence is the concern that X is attuned to his mother’s thoughts and feelings and may say things or behave in certain ways with a view to pleasing her. During cross-examination the mother said:
[X] will often come back and complain about things or tell me that he’s not having fun. Sometimes I feel like he is just trying to protect my feelings because he knows that [Mr Bassett] does not like me. This is why I’m saying that there could be a possibility that he does want to go.
The father as a source of support to the mother
On 12 July 2021 the parties exchanged email communication about arrangements for X’s care during home schooling. On 14 July 2021 the lawyer’s then acting on behalf of the mother, sent correspondence to those acting on behalf of the father to query why they were instructed that the father had declined to provide assistance. The same day, the lawyers acting for the father, responded to the lawyers acting for the mother and confirmed their own instructions that, contrary to the mother’s assertion, the father was willing to and had offered assistance in home schooling. That correspondence made a specific proposal and the evidence establishes that, for the remainder of Term 3, the parties shared the home schooling for X. Nowhere in the evidence is it suggested that that arrangement did not work to X’s advantage. Indeed when the mother was asked questions in cross-examination about the value of that experience to X, she confirmed that it was indeed valuable. Somewhat curiously then, before the commencement of Term 4, the mother sent a further letter to the father via email indicating that in Term 4 2021, they would revert to the usual care arrangements as provided for under the existing court order. The mother says she felt better able at this point to cope without the father’s assistance and so sought to end the temporary arrangement.
If it is the mother’s position that “I can’t do this alone, I need help I don’t have anyone here”, then rejecting the father’s offers of assistance seems illogical. Ideally, notwithstanding the fact that the parties are separated, the first port of call for support for either of them should be X’s other parent. That fact that the mother was prepared to contact the father and that the father in response did indeed provide assistance with home schooling, provides some hope that the parties may be able to work together to the advantage of X. The mother subsequently took the view that things had returned to usual and she could cope without the father’s help. This echoes the observations the mother made to Ms E as recorded in her first report that when the maternal grandmother offered assistance with X as an infant, the mother was “too proud to accept it”. It would appear, on the basis of the expert evidence that the mother has always viewed herself as capable and independent and viewed outside assistance as an admission of failure.
A substantial amount of the conflict between the parties has centred on the mother’s provision of a mobile telephone to X. The mother has provided the phone to X when he has been spending time with the father as a means by which she and X can communicate.
In general terms, including in this case, the capacity of a child to have direct communication with the parent with whom they are not physically present is theoretically in the best interests of the child. Here however, the amount of conflict generated by the provision of the mobile phone undermines any suggestion that this was an appropriate parenting choice. It is plain from the mother’s affidavit that she had been providing the phone to X not solely to allow him a direct source of communication with her but also to ensure that X could communicate with her if he had any concerns in the father’s household. Accordingly, the mother was using the provision of the mobile phone as a way of monitoring the father’s conduct during X’s time with him. In her affidavit, the mother raises a concern about her fear that X would be physically disciplined by the father and her desire that X be able to contact her in that event. The difficulty with that position is that the mother has an unwavering belief on the basis of things told to her by X that X is at risk of physical harm in the care of the father and consequently, she considers the provision of the phone to be necessary to ensure his safety.
I accept that ideally X’s father would be a good support of practical support to the mother. It is to X’s father that the mother should theoretically turn if there is a parenting issue concerning X. However, the nature of the adult relationship is such that however theoretically appropriate, I am not confident it is realistic. Based on the history the mother has looked to others to assist her because of her poor relationship with the father. An order requiring her to seek the father’s assistance (for example in caring for X if she is unavailable) seems contrary to X’s interests since I have no confidence it will not create scope for further dispute.
PARENTAL RESPONSIBILITY
The parties each agree that they should have equal shared parental responsibility and the ICL concurs. While I am not bound to make the order merely because the parents agree I am also of the view that such an order would be in the best interests of X. Having made an order for equal shared parental responsibility, I do not intend to make orders which relate to X’s schooling or medical treatment – they are not matters about which the parties made submissions and are properly decisions for the parents to make pursuant to their equal shared parental responsibility.
Overseas Travel
Each of the parents sought an order that X’s name be removed from the airport watch list. I will make that order.
X’s mother is South East Asian and his father is European. It is important to both of his parents that X have the opportunity to travel to visit family. It is appropriate to make orders that each of the parents be at liberty to travel overseas during periods of time X is in their care. For that purpose I will make orders providing that each party give the other appropriate notice of any intended travel and travel should occur during their allocated time except by consent in writing.
In respect of travel with the father, it is plain that such travel would ideally take place during the European summer and to that end, it is likely that such travel will take place in the mid-year school holidays.
CONCLUSIONS
I am conscious that the ICL submitted that one of the advantages of X remaining in Sydney with his mother is that if the mother’s mental health were to deteriorate and X was living in Melbourne the father would not be as available to assist X. This may be so but there is no evidence to support the conclusion that the mother’s mental health is likely to deteriorate in Melbourne. It is also unlikely that the mother will call on the father to assist, if she were in Sydney and her mental health deteriorated.
I am also conscious that the mother’s conduct since separation creates a legitimate concern that she does not recognise the value to X of X’s relationship with the father and the importance of its maintenance to X’s psychological wellbeing. I have taken this into account. In determining that X’s mother should be permitted to make X’s place of residence in Melbourne I have taken the view that requiring the mother to live in the same city as the father is not the solution to her lack of appreciation and understanding of his role; that is, I am concerned that requiring her to remain in Sydney is unlikely to improve the situation and may exacerbate it. Ms E concluded that requiring the mother to remain in Sydney may result in further deterioration of the parenting relationship. I accept that opinion. If the mother is able to settle and her mental health improves I remain hopeful that she will see the importance to X of his relationship with his father and in the meantime X will be free to explore his relationship with his father more independently and at a distance from his mother.
Parenting orders are not a prize for good behaviour or a reprimand for bad behaviour. Sometimes they will appear punitive when viewed through the lens of one or other of the adult parties. Here, however, the interests of adults must give way to the best interests of X and that requires making orders that he live predominantly with his mother in Melbourne.
I certify that the preceding one hundred and ten (110) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 24 March 2022
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