Malik and Sommer
[2018] FCCA 444
•27 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MALIK & SOMMER | [2018] FCCA 444 |
| Catchwords: FAMILY LAW– Parenting – final orders – one child, aged 7 years – whether mother and child be permitted to relocate to (omitted) – whether there was family violence throughout the relationship including post-separation and in the presence of the child – whether the father should be required to obtain a mental health assessment prior to overnight time commencing – whether the father should be required to enrol in an anger management course prior to overnight time commencing – whether the maternal grandmother poses a risk to the child as a result of her alleged alcohol abuse – best interests of child. |
| Legislation: Family Law Act 1975 (Cth) |
| Cases cited: MRR v GR [2010] HCA 4 |
| Applicant: | MR MALIK |
| Respondent: | MS SOMMER |
| File Number: | NCC 925 of 2017 |
| Judgment of: | Judge Middleton |
| Hearing dates: | 20, 21 & 22 February 2018 |
| Date of Last Submission: | 22 February 2018 |
| Delivered at: | Newcastle |
| Delivered on: | 27 March 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Samson SC |
| Solicitors for the Applicant: | Aubrey Brown Partners |
| Counsel for the Respondent: | Mr Duane |
| Solicitors for the Respondent: | Watts McCray |
ORDERS
That the parties have equal shared responsibility for the child, X born (omitted) 2010 (“X”).
That the mother be permitted to relocate with X to live within a ten (10) kilometre radius of the (omitted) Post Office.
That X live with the mother.
That X spend time with the father as agreed between the parents in writing and failing agreement, as follows:
4.1From the date of these orders and until the father has complied with orders 9 and 10 each alternate weekend on Saturday from 9.00am to 6.30pm and Sunday from 9.00am to 6.30pm, commencing on the first Saturday after the date of these orders.
4.2Upon compliance by the father with orders 9 and 10 and for a period of six (6) months each alternate weekend from 9.00am Saturday until 6.30pm on Sunday commencing on the first Saturday after the father’s compliance with orders 9 and 10.
4.3At the conclusion of the six (6) month period as provided for in order 4.2:
4.3.1During the NSW School Term, each alternate weekend from 4.30pm on Friday until 6.30pm Sunday; and
4.3.2For half of each Term 1, Term 2 and Term 3 NSW School holiday period as agreed between the parties and in the absence of agreement, for the first half in even numbered years commencing 2018 and the second half in odd numbered years commencing 2019.
4.3.3During the Term 4 / Christmas School holidays:
4.3.3.1 For a block period of 14 nights as agreed between the parties in writing and failing agreement for 14 nights commencing 12 January.
4.4On Father’s Day in the event that X is not scheduled to spend time with the Father pursuant to these orders:
4.4.1Pending the father’s compliance with orders 9 and 10, from 9.00am until 6.30pm, Sunday; and
4.4.2Upon the father’s compliance with orders 9 and 10 from 6.30pm the Saturday before Father’s Day and until 6.30pm on Sunday.
4.5On Christmas, as agreed between the parties and failing agreement:
4.5.1Pending the father’s compliance with orders 9 and 10 from 12 noon until 7.00pm on Christmas Day in odd numbered years commencing 2017 and from 12 noon until 7.00pm on Boxing Day in even numbered years commencing 2018.
4.5.2Upon the father’s compliance with orders 9 and 10 from 10.30am Christmas Eve until 3pm Christmas Day in odd numbered years and from 3.30pm on Christmas Day until 3.30pm on 27 December in even numbered years.
4.6On Easter, as agreed between the parties and failing agreement:
4.6.1Pending the father’s compliance with orders 9 and 10 from 9am until 6pm on Easter Sunday each even numbered year commencing 2018 and 9am to 6pm Easter Saturday, each odd numbered year commencing in 2019.
4.6.2Upon the father’s compliance with orders 9 and 10 from 9am Good Friday until 9am Easter Saturday in odd numbered years and from 9am Easter Saturday until 6pm Easter Sunday in even numbered years.
4.6.3At all other times as agreed between the parties in writing.
That the father’s time with X pursuant to order 4 shall be suspended as follows:
5.1On Mother’s Day, in the event that X is not scheduled to spend time with the mother pursuant to these orders:
5.1.1Pending the father’s compliance with orders 9 and 10 from 9am until 6.30pm Sunday; and
5.1.2Upon the father’s compliance with orders 9 and 10 from 6.30am the Saturday before Mother’s Day until 6.30pm on Sunday.
5.2On Christmas:
5.2.1Pending the father’s compliance with orders 9 and 10 from 12 noon until 7.00pm on Christmas Day in even numbered years commencing 2018 and from 12 noon until 7.00pm on Boxing Day in odd numbered years;
5.2.2Upon the father’s compliance with orders 9 and 10 from 10.30am Christmas Eve until 3.30pm Christmas Day in even numbered years and from 3.30pm Christmas Day until 3.30pm on 27 December in odd numbered years.
5.3On Easter as agreed between the parties and failing agreement:
5.3.1Pending the father’s compliance with orders 9 and 10 from 9am to 6pm Easter Sunday each even numbered year commencing 2018 and 9am Easter Sunday until 6pm each in odd numbered year commencing 2019;
5.3.2Upon the father’s compliance with orders 9 and 10 from 9am Good Friday until 9am Easter Saturday in odd numbered years and from 9am Easter Saturday until 6pm Easter Sunday in even numbered years.
5.4At all other times as agreed between the parties in writing.
That for the purpose of facilitating the Father’s time with X, the mother or her nominee should deliver X to the father at Hungry Jack's (omitted) at the commencement of the father’s time and the father shall deliver X to the mother or her nominee at Hungry Jack's (omitted) at the conclusion of his time.
That the father shall communicate with X via telephone, Facetime or Skype as agreed between the parties and failing agreement each Tuesday and Thursday at 7.30pm. For the purpose of this order, the father shall initiate the call to the mother’s mobile telephone or other number or account as nominated by the mother in writing to the father and the mother shall ensure that X is available to speak to the father.
That within fourteen (14) days of the date of these orders, both parties shall sign all documents and do all things necessary to re-enrol X in (omitted) Primary School. Neither party shall change X’s enrolment without the written consent of the other party or order of this court.
That within twenty eight (28) days of the date of these orders, the father shall do all acts and things necessary to enrol in an Anger Management Course and shall provide to the mother a certificate or documents evidencing his completion of same.
That within twenty eight (28) days of the date of these orders, both parties shall enrol in a Parenting After Separation Course (if not already attended to) and shall provide to the other party a certificate of completion.
That each party shall do all things and sign all such instruments, documents, authorities and the like necessary to ensure that:
11.1Each parent is at liberty to communicate directly with X’s school teachers and other school authorities as to X’s progress at school and any problems being experienced by X and to enable his school records to show each parent as a person to be contacted in the case of an emergency and to ensure that each parent is on the mailing list for copies of school reports and circulars as to upcoming events;
11.2To enable each parent to communicate directly with any treating professional as to any health related treatment being undertaken by X without necessarily first referring to the other parent.
That each parent keep the other informed of all sporting, religious, cultural and educational events (which come to the notice of that parent) in which X is from time to time involved (or which relate to activities of X although he himself might not be involved, for example parent/teacher interviews) and at which parents may attend and each parent be so at liberty to attend.
That each parent ensure that the child attend all sporting and other extracurricular activities in which he is enrolled and at which attendance is required during the period of time that each parent has the child in his or her control.
That each parent at all times keep the other informed as to all medical, dental or other health related treatment being undertaken by X and the identity of treating professionals and in any event notify the then non-present parent immediately upon the happening of a serious accident or illness experienced by X and as to the treatment being rendered.
That each party be and is hereby restrained from denigrating the other or any partner of the other in the presence of the child and in any way using obscene or inappropriate language in the presence of the child.
That each party keep the other informed at all times of his or her current address and telephone number and keep current a telephone service available for the purposes associated with these orders.
IT IS NOTED that publication of this judgment under the pseudonym Malik & Sommer is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 925 of 2017
| MR MALIK |
Applicant
And
| MS SOMMER |
Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant Father Mr Malik is 33 years of age and resides on the (omitted) of New South Wales.
The Respondent Mother Ms Sommer is 31 years old and resides currently on the (omitted) although she wishes to relocate with the child to (omitted) on the (omitted) of New South Wales.
The child subject to the proceedings is X born (omitted) 2010, seven years old time of trial.
The proceedings were commenced on 30 March 2017 as result of the mother unilaterally relocating to (omitted) on the (omitted) of New South Wales.
The father says that the parties commenced cohabitation in 2007. The mother sets out a more detailed history of the relationship.
The mother says that she initially moved to the (omitted) to live with the father and a flatmate in (omitted) 2006. The Mother says she returned to the (omitted) in (omitted) 2006 and the father moved to his parents’ home in (omitted) at that time.
The mother says she then lived with the father at his parents’ home in (omitted) for a few weeks in (omitted) 2006. During that time the mother moved to her sister’s home in (omitted), Queensland and the father moved to his aunt and uncle's home in (omitted), Queensland.
The mother says that the parties thereafter in 2007 commenced cohabitation.
In (omitted) 2009 the mother moved to her parents’ home on the (omitted) and the father says the parties separated on that occasion for 6 months but regularly kept in contact.
In (omitted) 2010 the father returned from a trip to the (country omitted) for a surprise visit, it was during this surprise visit that the child was conceived.
The father returned to live on the (omitted) and the mother thereafter moved to the (omitted) whereupon they lived at the father’s uncle’s home in (omitted).
In (omitted) 2010 the mother moved back to the (omitted) and the father followed.
In (omitted) 2011 the father commenced working as a fly in fly out worker on (employment omitted), representing four weeks working and one week off.
In (omitted) 2011 the parties and the child holidayed in the (country omitted) for three months. Following the holiday the mother returned to live with her parents on the (omitted) with the child. Shortly thereafter, the parties moved back to the (omitted) to live with the father's parents until approximately (omitted) 2012.
In (omitted) 2012 the parties move to (omitted) on the (omitted). The mother obtains employment three days a week at (employer omitted), (omitted). In (omitted) 2012 the father lost his job.
The parties continue to reside thereafter together until in September 2013 the parties separated on the final basis.
Following separation, the mother moved with the child to her parents’ home on the (omitted) of New South Wales.
Between 2013 and 16 August 2016 the parties were able to make arrangements for the care of the child as between them.
On 16 August 2016 the parties met at the mother's solicitor's office to discuss future parenting arrangements and reached an agreement that provided that the child lived with the mother and spend time with the father as follows:
a)each alternate Sunday from 8:30am to 6:30pm commencing 4 September 2016;
b)until 20 September 2016 each Monday and Tuesday after school until 6:30pm;
c)from Monday, 26 September 2016 in lieu of time on Monday and Tuesday nights from after school Monday to before school Tuesday;
d)for five consecutive days during Christmas holidays
The spend time arrangements break down very shortly thereafter and there is continuing disputes between the mother and father.
On 21 December 2016 there is a significant incident between the parents and in front of the child.
The father attempts to see the child at school during February of 2017 without success.
In (omitted) 2017 the mother's parents sell their home on the (omitted).
On 2 March 2017 the father attends school as does the mother and an argument occurs between the two of them. An arrangement is made for the father to spend some time with the child at a park after school. That time does not occur.
On (omitted) 2017 the mother relocates with the child to live with her parents in (omitted).
The mother alleges family violence in the form of physical, emotional and financial abuse throughout the relationship.
When the matter first came before me on 10 May 2017, I made orders requiring the mother to return with the child and that the child spend time with the father each Sunday from 8:30am to 6:30pm and each Monday and Tuesday from collection from school until 6:30pm.
The issues
The issues to be determined are as follows:
1.whether there was family violence throughout the relationship including post-separation and in the presence of the child;
2.should the mother and child be permitted to relocate to (omitted);
3.whether the father should be required to obtain a mental health assessment prior to overnight time commencing;
4.whether the father should be required to enrol in an anger management course prior to overnight time commencing; and
5.whether the maternal grandmother poses a risk to the child as a result of her alleged alcohol abuse.
Material relied upon
The father relied upon the following material:
1.Initiating Application filed 30 March 2017;
2.Notice of Risk file 30 March 2017;
3.Affidavit of Ms E file 19 January 2018; and
4.Affidavit of the father filed 19 January 2018.
The mother relied upon the following material:
1.Amended Response filed 3 October 2017;
2.Affidavit of the mother filed 17 January 2018;
3.Affidavit of Ms M filed 17 January 2018; and
4.Affidavit of Mr G filed 17 January 2018
Both of the parties relied upon the Family report authored by Family Consultant Ms D and dated 29 September 2017.
The orders sought
The father tended a minute of order (Exhibit 1). The orders he sought are as follows:
1.That the parties have equal shared parental responsibility for X born (omitted) 2010 (“the child”).
2.That the mother cause that the child to reside and live on the (omitted) of NSW and not remove the child from school early for the purposes of travelling to (omitted).
3.That X live with the mother and spend time with the father as follows:
3.1From the date of these Orders for a 2 month period from 4pm Saturday to 6.30pm Sunday each alternate weekend commencing on the first Saturday after the date of these orders and each week from collection of school Monday and Tuesday to 7pm;
3.2From the conclusion of the period which is 2 months from the date of these orders for a further 2 month period from each alternate weekend from 4pm Saturday until delivery of school Monday morning and each week from collection of school Monday and Tuesday until 7pm.
4.At the conclusion of the 4 month period as provided for in order 4 above:
4.1During the NSW school term, each alternate weekend from 4pm Saturday until delivery to school Tuesday morning and in the alternate week, from collection of school Monday to delivery of school Tuesday morning;
4.2For half of each of the gazetted school holiday period as agreed between the parties and in the absence of agreement for the first half in even numbered years, commencing 2018 and in the second half in odd numbered years commencing 2019.
4.3On father’s day in the event that X is not scheduled to spend time with the father pursuant to these orders, from 5pm the Saturday before Father’s Day until delivery of school Monday morning.
4.4On Christmas as agreed between the parties and failing agreement in even numbered years from 12noon Christmas Eve until 12 noon Christmas Day and in odd numbered years, from 12 noon Christmas Day until 12 noon Boxing Day and vice versa with the Mother.
4.5On Easter as agreed between the parties and failing agreement in even numbered years from 9am Good Friday until 6pm Easter Saturday and in odd numbered years from 6pm Easter Saturday until 6pm Easter Monday and vice versa with the mother.
5.That the father’s time with X pursuant to order 5 be suspended as follows:
5.1On Mother’s Day from 4pm the Saturday before Mother’s Day until 6.30pm Mother’s Day.
6.That for the purposes of implementing the regime set out herein the collection and return of X does not involve school and the father shall collect X from the Mother at the commencement of the time that X is to be with him and the mother collect X from the father at the end of that time.
7.That each parent do all such things and sign all such instruments, documents, authorities and the like necessary to ensure that:
7.1Each party download to any mobile phone or tablet device the “Skool Bag” application (“App”) used by NSW Public Schools and thus be entitled to receive by streaming all of the usual notices and other information applied to such app by the Department of Education;
7.2Each parent is at liberty to communicate directly with the child’s school teachers and other school authorities as to the child’s progress at school and any problems being experienced by the child and to enable his school records to show each parent as a person to be contacted in the case of an emergency and to ensure that each parent is on the mailing list for copies of school reports and circulars as to upcoming events.
7.3To enable each parent to communicate directly with any treating professional as to any health related treatment being undertaken by the child without necessarily first referring to the other parent.
8.That each parent keep the other informed of all sporting, religious, cultural and educational events (which come to the notice of that parent) in which the child is from time to time involved (or which relate to activities of the child although he himself might not be involved, for example parent/teacher interviews) and at which parents may attend and each parent be so at liberty to attend.
9.That each parent ensure that the child attend all sporting and other extracurricular activities in which he us enrolled and at which attendance is required during the period of time that each parent has the child in his or her control.
10.That each parent at all times keep the other informed as to all medical, dental or other health related treatment being undertaken by the child and the identity of treating professionals and in any event notify the then non-present parent immediately upon the happening of a serious accident or illness experienced by the child and as to the treatment being rendered.
11.That each party be and is hereby retrained from denigrating the other or any partner of the other in the presence of the child and in any way using obscene or inappropriate language in the presence of the child.
12.That each party keep the other informed at all times of his or her current address and telephone number and keep current a telephone service available for the purposes associated with these orders.
13.In the event that the mother be permitted to relocate with X to live at (omitted), NSW, she cause the child to reside within a 10km radius of (omitted) Post Office, orders that the child spend time with and communicate with the father:
13.1From the date of these orders for 3 out of 4 weekends from 4pm Saturday until 6.30pm Sunday and that such time is to commence on the first Saturday after the date of these orders.
13.2On father’s day in the event that X is not scheduled to spend time with the father pursuant to these orders, from 5pm the Saturday before Father’s day until delivery to school Monday morning.
13.3On Christmas as agreed between the parties and failing agreement in even numbered years from 12noon Christmas Eve until 12 noon Christmas Day and in odd numbered years from 12 noon Christmas Day until 12 noon Boxing Day and vice versa with the mother.
13.4On Easter as agreed between the parties and failing agreement in even numbered years from 9am Good Friday until 6pm Easter Saturday and in odd numbered years, from 6pm Easter Saturday until 6pm Easter Monday and vice versa with the mother.
14.That the father spend time with X pursuant to order 17 be suspended as follows:
14.1On Mother’s Day from 4pm the Saturday before Mother’s Day until 6.30pm Mother’s Day.
15.That for the purpose of facilitating the Father’s time with X, the mother or her nominee should deliver X to the father at Hungry Jack's (omitted) at the commencement of the father’s time and the father shall deliver X to the mother or her nominee at Hungry Jack's (omitted) at the conclusion of his time.
16.That the father shall communicate with X via telephone, Facetime or Skype as agreed between the parties and failing agreement each day that X is not with the father between the hours of 7pm and 7.30pm. For the purpose of this order the father shall initiate the call to the Mother’s mobile telephone or other number or account as nominated by the mother in writing to the father and the mother shall ensure that X is available to speak to the father.
17.That each parent do all such things and sign all such documents, instruments, authorities and the like necessary to ensure that:
17.1To enable each parent to communicate directly with any treating professional as to any health related treatment being undertaken by the child without necessarily first referring to the other parent.
18.That each parent keep the other informed of all sporting, religious, cultural and educational events (which come to the notice of that parent) in which the child is from time to time involved (or which relate to activities of the child although he himself might not be involved, for example parent/teacher interviews) and at which parents may attend and each parent be so at liberty to attend.
19.That each parent ensure that the child attend all sporting and other extracurricular activities in which he us enrolled and at which attendance is required during the period of time that each parent has the child in his or her control.
20.That each parent at all times keep the other informed as to all medical, dental or other health related treatment being undertaken by the child and the identity of treating professionals and in any event notify the then non-present parent immediately upon the happening of a serious accident or illness experienced by the child and as to the treatment being rendered.
21.That each party keep the other informed at all times of his or her current address and telephone number and keep current a telephone service available for the purposes associated with these orders.
The mother sought orders as contained in her Amended Response to Initiating Application filed on 1 October 2017 as follows:
1.That the parties have equal shared responsibility for the child, X born (omitted) 2010 (“X”).
2.That the mother be permitted to relocate with X to live within a ten (10) kilometre radius of the (omitted) Post Office.
3.That X live with the mother.
4.That X spend time with the father as follows:
4.1From the date of these orders and until the father has complied with orders 9, 10, 11, and 12, each alternate weekend Saturday from 9.00am to 6.30pm and Sunday from 9.00am to 6.30pm, commencing on the first Saturday after the date of these orders.
4.2Upon compliance by the father with orders 9, 10, 11 and 12 and for a period of six (6) months each alternate weekend from 9.00am Saturday until 6.30pm on Sunday commencing on the first Saturday after the father’s compliance with orders 9, 10, 11 and 12.
4.3At the conclusion of the six (6) month period as provided for in order 4.2:
4.3.1During the NSW School Term, each alternate weekend from 4.30am on Friday until 6.30pm Sunday; and
4.3.2For half of each Term 1, Term 2 and Term 3 NSW School holiday period as agreed between the parties and in the absence of agreement, for the first half in even numbered years commencing 2018 and the second half in odd numbered years commencing 2019.
4.3.3During the Term 4 / Christmas School holidays:
4.3.3.1 For a block period of 14 nights as agreed between the parties in writing and failing agreement for 14 nights commencing 12 January.
4.4On Father’s Day in the event that X is not scheduled to spend time with the Father pursuant to these orders:
4.4.1Pending the father’s compliance with orders 9, 10, 11 and 12 from 9.00am until 6.30pm, Sunday; and
4.4.2Upon the father’s compliance with orders 9, 10, 11 and 12 from 6.30pm the Saturday before Father’s Day and until 6.30pm on Sunday.
4.5On Christmas, as agreed between the parties and failing agreement:
4.5.1Pending the father’s compliance with orders 9, 10, 11 and 12 from 12 noon until 7.00pm on Christmas Day in odd numbered years commencing 2017 and from 12 noon until 7.00pm on Boxing Day in even numbered years commencing 2018.
4.5.2Upon the father’s compliance with orders 9, 10, 11 and 12, from 10.30am Christmas Eve until 3pm Christmas Day in odd numbered years and from 3.30pm on Christmas Day until 3.30pm on 27 December in even numbered years.
4.6On Easter, as agreed between the parties and failing agreement:
4.6.1Pending the father’s compliance with orders 9, 10, 11 and 12, from 9am until 6pm on Easter Sunday each even numbered year commencing 2018 and 9am to 6pm Easter Saturday, each odd numbered year commencing in 2019.
4.6.2Upon the father’s compliance with orders 9, 10, 11 and 12, from 9am Good Friday until 9am Easter Saturday in odd numbered years and from 9am Easter Saturday until 6pm Easter Sunday in even numbered years.
4.6.3At all other times as agreed between the parties in writing.
5.That the father’s time with X pursuant to order 4 shall be suspended as follows:
5.1On Mother’s Day, in the event that X is not scheduled to spend time with the mother pursuant to these orders:
5.1.1Pending the father’s compliance with orders 9, 10, 11 and 12 from 9am until 6.30pm Sunday; and
5.1.2Upon the father’s compliance with orders 9, 10, 11 and 12 from 6.30am the Saturday before Mother’s Day until 6.30pm on Sunday.
5.2On Christmas:
5.2.1Pending the father’s compliance with orders 9, 10, 11 and 12 from 12 noon until 7.00pm on Christmas Day in even numbered years commencing 2018 and from 12 noon until 7.00pm on Boxing Day in odd numbered years;
5.2.2Upon the father’s compliance with orders 9, 10, 11 and 12, from 10.30am Christmas Eve until 3.30pm Christmas Day in even numbered years and from 3.30pm Christmas Day until 33.30pm on 27 December in odd numbered years.
5.3On Easter as agreed between the parties and failing agreement:
5.3.1Pending the father’s compliance with orders 8,9,10 and 11 from 9am to 6pm Easter Sunday each even numbered year commencing 2018 and 9am Easter Sunday until 6pm each in odd numbered year commencing 2019;
5.3.2Upon the father’s compliance with orders 8, 9, 10 and 11 from 9am Good Friday until 9am Easter Saturday in odd numbered years and from 9am Easter Saturday until 6pm Easter Sunday in even numbered years.
5.4At all other times as agreed between the parties in writing.
6.That for the purpose of facilitating the Father’s time with X, the mother or her nominee should deliver X to the father at Hungry Jack's (omitted) at the commencement of the father’s time and the father shall deliver X to the mother or her nominee at Hungry Jack's (omitted) at the conclusion of his time.
7.That the father shall communicate with X via telephone, Facetime or Skype as agreed between the parties and failing agreement each Tuesday and Thursday at 7.30pm. For the purpose of this order, the father shall initiate the call to the mother’s mobile telephone or other number or account as nominated by the mother in writing to the father and the mother shall ensure that X is available to speak to the father.
8.That within fourteen (14) days of the date of these orders, both parties shall sign all documents and do all things necessary to re-enrol X in (omitted) Primary School. Neither party shall change X’s enrolment without the written consent of the other party or order of this court.
9.That within twenty eight (28) days of the date of these orders, the father shall obtain any referral to a Psychologist/Psychiatrist to obtain a mental health assessment and shall provide a copy of that report and the details of any diagnosis, recommendations or treatment prescribed by the practitioner to the mother within seven (7) days of receipt pf the same.
10.That the father shall comply with all recommendations made by the practitioner referred to in order 9 and upon completion of the same, shall provide confirmation of the mother of the completion.
11.That within twenty eight (28) days of the date of these orders, the father shall do all acts and things necessary to enrol in an Anger Management Course and shall provide to the mother a certificate or documents evidencing his completion of same.
12.That within twenty eight (28) days of the date of these orders both parties shall enrol in a Parenting After Separation Course (if not already attended to) and shall provide to the other party a certificate of completion.
13.That each party shall do all things and sign all such instruments, documents, authorities and the like necessary to ensure that:
13.1Each parent is at liberty to communicate directly with X’s school teachers and other school authorities as to X’s progress at school and any problems being experienced by X and to enable his school records to show each parent as a person to be contacted in the case of an emergency and to ensure that each parent is on the mailing list for copies of school reports and circulars as to upcoming events;
13.2To enable each parent to communicate directly with any treating professional as to any health related treatment being undertaken by X without necessarily first referring to the other parent.
14.That each parent keep the other informed of all sporting, religious, cultural and educational events (which come to the notice of that parent) in which X is from time to time involved (or which relate to activities of X although he himself might not be involved, for example parent/teacher interviews) and at which parents may attend and each parent be so at liberty to attend.
15.That each parent ensure that the child attend all sporting and other extracurricular activities in which he is enrolled and at which attendance is required during the period of time that each parent has the child in his or her control.
16.That each parent at all times keep the other informed as to all medical, dental or other health related treatment being undertaken by X and the identity of treating professionals and in any event notify the then non-present parent immediately upon the happening of a serious accident or illness experienced by X and as to the treatment being rendered.
17.That each party be and is hereby restrained from denigrating the other or any partner of the other in the presence of the child and in any way using obscene or inappropriate language in the presence of the child.
18.That each party keep the other informed at all times of his or her current address and telephone number and keep current a telephone service available for the purposes associated with these orders.
In summary the father seeks alternate weekend time with the child commencing 4pm Saturday and gradually increasing until return to school on Tuesday, together with half the school holidays and special occasions.
The father is required to work every Saturday and that is why he seeks an order that the child's time with him commence at 4pm on Saturday so that he can spend the time with the child.
In summary the mother seeks orders that the father spend day only time each alternate Saturday from 9am to 6:30pm and upon the father seeking assistance from a psychologist and obtaining a mental health assessment and completing an anger management course thereafter and for a period of six months each alternate weekend from 9am Saturday until 6:30pm on Sunday.
Upon the completion of the six-month period the mother seeks an order that the child spend time with the father each alternate weekend from 4:30pm Friday until 6:30pm Sunday, half the school holidays and special times including Christmas time.
The evidence
The parties required for cross examination were:
a)the father;
b)the mother;
c)the maternal grandmother; and
d)the family consultant.
The affidavits otherwise relied upon by the parties were accepted into evidence unchallenged.
The unchallenged evidence of Mr G, the maternal grandfather to the extent that it is relevant to an issue is that the father admitted to him that on one occasion he threw the mother's phone.
Furthermore on 22 December 2016 the father told the maternal grandfather that the mother was “an evil bitch and whore”.
The maternal grandfather says that he attends changeover with the mother on most occasions since the mother has returned from (omitted) and he has witnessed the child being reluctant to go with the father and he has encouraged the child to go with his father.
The maternal grandfather's evidence is that he has told the father that he has asked the child on many occasions to speak to him on the telephone but the child refuses. The maternal grandfather gives evidence that he has told the father that he should:
“change your attitude and not swear at Ms Sommer or abuse her in front of X. Despite his tender years he is a very intelligent boy and does not forget or miss a thing and he despises any negative talk or a raised voice towards his mother".”
The maternal grandfather gives evidence that the child has told him on multiple occasions that he “can't wait to get back to (omitted) I love it there".
The maternal grandfather says that the child has lived with him, his wife and the mother for the major part of the child's life and as a result he has a close relationship with the child.
Ms E's Affidavit was admitted into evidence unchallenged. She is the current partner of the father. Her evidence is that she has known the father since she was in year seven at school on the (omitted) and that she and the father began a romantic relationship in (omitted) 2015 and commenced living together in approximately (omitted) 2016.
Her evidence is that she has never witnessed the father to be physically or emotionally violent. Her evidence is the father has never been abusive or violent towards her physically or emotionally.
Ms E gives evidence that she has witnessed that the father and child have a close loving bond and that she too has become involved in the child's life and enjoys that very much. Her evidence is that the child often asks if he can “ring mummy and ask if I can stay tonight".
The mother
The mother gave evidence by way of Affidavit that the father was abusive throughout the relationship. It is her evidence that he often called her names such as “fucking bitch" , “whore”, “you’re a fucking loser”, “get a fucking job, leech" “get up fucking lazy mutt", “your a fucking selfish bitch”, “you’re a fucking lazy slut” and amongst other things “you’re a fucking whore you know you've ruined my fucking life.”
It is the mother's evidence that the father would display his frustration and jealousy in an angry and aggressive way post separation. It is the mother's evidence that at times post separation the father asked the mother to resume the relationship and that when she would not he would become increasingly angry and aggressive.
The mother's evidence was to the effect that the father would yell and swear and denigrate her in the presence or hearing of the child on a regular basis.
In support of those allegations, the mother annexes at Annexure “A” copies of text messages. At page 50 of 82 the text message sent by the father says
“I do need help honestly do you really think I want to be like this too (sic) the woman I loved for so long!!! I'm just still so hurt by not having you and X… I'm at a point where I feel like I'm going to end it all soon. Nothing will ever be the same for me."
At page 51 of 82 there is an exchange as follows:
Mother: “you do not take any of that out on X! Leave X out of it, don't fill his head with confusion. And get help! Don't talk like you do in front of X. Don’t ever put your hands on me like that again”
Father: “I don't fill X’s head with anything thank you. Ppl argue you can't protect him from that.”
At page 53 a text message from the father says
“Saying what? How about you sort your self out and stop relying on the government to get by in life and your parents. Look at yourself to your no perfect. Go be a booty call"
At page 54 the text exchanges as follows:
Father: “I will get that asshole"
Mother: “You need help. You are pathetic. Grow up"
Father: “You made me like this you don't a shit (sic) how I feel this is why I'm like this"
In December 2014 the father had the child and was taking the child to visit his parents. The mother asked the father to message him when she arrived at her Mum and dad's. The following text exchange occurred:
Father: “I’m not messaging you when I get anywhere"
Mother: “You have X he is my son. I want to know he is there safely. Stop being immature"
Father: “Go fuck yourself hore (sic)
Father: “oh wait someone else is doing that for you"
The mother's evidence is that the father at times became physical with her and that he controlled the finances throughout the relationship.
The mother's evidence was that the father became increasingly angry and aggressive towards her and in the presence of the child and that as a result the child started to refuse to spend time with the father and even talk to the father on the phone.
The mother provided evidence that she and the child had lived a substantial amount of time with the maternal grandparents and that as a result the child has a very strong loving relationship with both of the maternal grandparents.
When cross-examined the mother gave evidence that she first became aware of the possibility of her parents moving to (omitted) at the end of (omitted) where it became a serious discussion.
When asked why she did not discuss the move with the father she said “I was afraid of talking to the father and was worried that he would get angry and keep X."
She conceded that she told the child approximately a week or two before the move on (omitted) 2017 and that she had driven to (omitted) and driven past the school and told the child that it looked like a really nice school.
The mother said that she knew the father would be opposed to the move.
The mother did not believe she was attempting to influence the child by driving him to (omitted) and showing him the school, she said rather she was trying to get the child comfortable with the idea and did not think it was involving the child in any dispute.
The mother made an application to enrol the child in the (omitted) Primary School. She conceded under cross examination that she consciously did not put the father's name on the enrolment form. Exhibit 2 in the proceedings is the application to enrol and it confirms that the father's name is totally absent from the form.
The mother conceded that the child had been at (omitted) Public School on the (omitted) all of year 1 and for one half of the first term prior to the move to (omitted) Primary School. She conceded that the child had friends and that those friends came to her house from time to time.
The mother conceded that the agreement reached on 30 August 2016 between the parents fell apart shortly thereafter. It was her evidence that it was as a result of the father’s jealous behaviour, verbal and physical outbursts that increased after that time.
The mother conceded that the father did not spend the five day period over the Christmas holidays and that thereafter she ignored the father's attempts to contact the child. The mother conceded that the father tried to contact the child every day and said that a few calls were answered but that the child would not speak to the father.
The mother said that regrettably she was not encouraging the child to speak to the father until approximately early March 2017. Her evidence was she was not encouraging the child because she had told the father that he needed to do counselling for his anger and she was not prepared for the child to spend time with the father until he did so. She conceded that she was aware that her decision impacted upon the child.
When cross-examined as to when the child last spent overnight time with the father, the mother said that it was Monday of the week of trial and that he had previously had a couple of sleepovers however the child had become reluctant after the first time and the father would not do the counselling.
The mother conceded that the child would most likely pick up on her feelings of insecurity.
The mother said under cross examination that she became concerned that the father would take the child from school in February 2017 and that as a result she would take the child on a Monday and Tuesday from school early so as the father, even if he attended, could not take the child. The mother said that the child was not happy going with the father and she had told the father that.
The mother conceded that on 2 March 2017 the child was spending his last day at (omitted) School. She became aware that the father had attended the school and she immediately attended the school. She conceded that a dispute broke out between her and the father and as a result the school Counsellor became involved.
The parties reached an agreement on that day for the child to spend some time with the father at (omitted) Park. The mother did not agree however that the agreement was not subject to her being able to have the maternal grandfather present for that time. She denied that she had subsequently decided that it would not go ahead unless the maternal grandfather was present.
The mother did concede however that even once the maternal grandfather became available she did not arrange for the child to spend time with his father later that evening.
The mother agreed that she did not arrange any time between the child and the father once she moved to (omitted) until I made orders on 10 May 2017. It was her evidence that she informed the father that he would not be spending time with the child until he underwent counselling for his anger.
The mother agreed that she could have handled things very differently. She gave evidence that approximately 2 weeks prior to the trial both she and the father had had a conversation where they had both apologised for their past behaviour. The mother gave evidence that she was working through her anxieties around having conversations with the father.
The mother acknowledged that she had done the wrong thing by not encouraging the child to speak to his father during the time from December until May 2017.
The child first saw the father on 14 May 2017. The mother acknowledged that when the child saw his father he ran to him and was happy to see him and gave him a big hug. The mother said although the child had been reluctant the evening before, she had reassured the child that it would be okay.
The mother was cross-examined as to her living arrangements since May 2017 and she conceded that she continues to travel to (omitted) and stays at (omitted) each time X is not required to spend time with his father. She continues to work in (omitted).
The mother conceded that she has not attempted to find work on the (omitted) as she loves her job in (omitted) and wants to keep the job in the event that she is permitted to relocate with the child.
The mother gave evidence that her father picks the child up from school on a Friday and drives him to (omitted) and that the child is taken out of school early to facilitate that travel.
Furthermore, the mother gave evidence that she on most occasions leaves on Monday from (omitted) to return the child to school, that requires the child leaving (omitted) with the mother between 5:15 and 5:30am and they both have breakfast along the way.
The mother conceded that she told the child that she wants to live in (omitted) and that it is a possibility in the future. Her evidence is the child asks her regularly whether they can move to (omitted). The mother also conceded that the child has a puppy that lives at (omitted) with the maternal grandparents and it does not travel with them when they return to the (omitted).
The mother has not attempted to look for rental properties since moving back to the (omitted) in (omitted) 2017.
The mother did not agree that she had involved the child in a dispute about where he might live. Paragraph 229 of her Affidavit sets out a conversation that she had with the child. That conversation culminated with the child writing a letter to the Prime Minister of Australia.
I am satisfied that the child has become involved in the parental dispute. He is very aware of the fact that the mother wants to move to (omitted) and he has had many conversations with her about moving to (omitted).
The mother was cross-examined and accepted that she has a brother and sister who both live in (omitted) and that cousins of the child attend the same school, (omitted) Public School on the (omitted) as the child.
The mother gave evidence under cross examination that due to the child's distress in the first few weeks of school in 2017, she arranged for the child to attend upon a GP and arrange for a referral to (omitted). The mother conceded she did not tell the father either about the child's anxiety or that she had taken the child to a GP.
The mother said that over the past nearly 12 months her anxiety around the father is becoming better and that she gets along much better with him although she still gets a little anxious when it is just the two of them.
The mother acknowledged that she received significant support both emotional and financial from her parents.
The mother gave evidence that she believed that the child and the father could maintain a close relationship regardless as to where she might live.
The mother conceded that the child would not be able play team sports regularly if they move to (omitted) and that it would be harder for the father to attend school events if they moved to (omitted). The mother indicated that X likes doing Facetime and that this would allow the father to maintain contact with the child.
The mother was cross-examined in relation to the financial control that she alleged had occurred in the relationship. She conceded that if at any time she needed money, the father would electronically transfer those monies to her and that he gave her a credit card connected to his accounts in April 2013.
When cross-examined as to physical violence, the mother was adamant that the father had kicked her, spat at her and grabbed her by the wrists forcefully.
It was her evidence that in March or April 2013 she made an appointment with Dr D at ‘(omitted)’ for both her and the father to undertake some counselling. The mother says that Dr D told her that she was in a domestic violence relationship.
The mother agreed that the maternal grandparents would continue to support her financially no matter where she lived and that she ultimately planned to live independently in the future.
It was the mother’s evidence that she could provide a better lifestyle in (omitted) and that the child would benefit more from living in (omitted) rather than from remaining on the (omitted), notwithstanding that it would mean he could spend more time with his father.
In relation to the maternal grandmother’s drinking, the mother conceded that the mother drank red wine most evenings but she had not observed her mother falling asleep on the lounge as a result.
The maternal grandmother
The maternal grandmother was cross-examined and confirmed that she had discussions with the mother in relation to the mother’s fear of the father.
The maternal grandmother confirmed that she and her husband helped the mother out with food, buying things for X and with petrol expenses.
The maternal grandmother conceded that she did drink red wine but not every night and that when she drank, she drank 3 to 4 glasses of wine however denied that she fell asleep as result of that consumption.
The father
The father provided an Affidavit wherein he accepted that the parties separated on several occasions throughout the relationship.
It was his evidence that once he commenced working as a fly in fly out worker, he would meet all of the expenses relating to the household and also provide $300-$400 a week for groceries and other household expenses.
The father conceded that he did not pay off the mother's car loan during this time. The father makes a point of the fact that the mother used cosmetic enhancements for her lips.
The father said that upon commencing work as a fly in fly out worker, this put a strain on the relationship and that the parents would argue each calling each other names on a regular basis.
The father gave evidence that in 2013 he became depressed as a result of learning that the mother had begun dating a colleague and training partner and coming to the realisation that he had not properly lived with X throughout the relationship and that due to the breakdown of the relationship, it was likely that he was never going to.
The father's evidence is that he was prescribed antidepressant medication and referred to a psychologist who he saw approximately 4 to 6 times. His evidence is that the medication made him feel nauseous and he stopped taking the medication approximately halfway through the first course, approximately 10 days. Furthermore, he decided to stop seeing the psychologist as he didn't believe he was getting much benefit out of his sessions with the psychologist.
Overall the father's evidence is that he still gets sad from time to time although in his view he is not in a depressed state.
The father conceded in his evidence that due to his depression during the first year of separation, he sometimes declined the chance to spend time with the child. His evidence is that it was rare for the child to spend overnight time with him during that first 12 months.
It is the father’s evidence that the mother began to control the time that the child would spend with the father and that they began having disagreements about this issue.
The father says that in late 2015 when he began his relationship with Ms E, the mother became even more reluctant to allow the child to spend time with him. His evidence is that the mother simply refused to encourage the child to spend time with him and speak with him.
The father gave evidence that on 30 August, a letter setting out the terms that the parties had agreed upon with regards to the care arrangements for the child was provided to him.
The father says that a dispute arose in relation to time that he was attempting to spend with the child on 22 December. His evidence is that he coincidently bumped into the mother at the (omitted) Shopping Centre at (omitted) on that day after he had attended her home and was told she was not at the home.
The father says that during the argument that resulted he grabbed the mother “softly” and regrettably said “why are you being an evil whore going to Sydney for the weekend and leaving X with your parents are not allowing me the option of having him" The father says he deeply regrets that outburst.
The father's evidence is that thereafter the mother refused to allow the father to spend time with the child.
The father gives evidence of a text message exchange on the 27 February 2017, Annexure “H” to his Affidavit, wherein he requested to see the child and the mother informed him that he would not be going because the child did not wish to go. The text message reveals that the mother told the father:
“it was not an argument it was you being angry and aggressive towards me calling me names in front of X you know he doesn't want to go with you, you've seen it go put on your show. You could for once put X before yourself and not go and put him…"
It is the father's evidence that on 2 March 2017, he became aware after attending the school that the child and mother were moving to (omitted). It is his evidence that after the dispute at the school the parents agreed for him to spend time with the child at (omitted) Park.
His evidence is that he waited for 30 minutes and thereafter tried to telephone the mother, she did not answer but sent a text message saying that she was not attending because her father could not bring the child to the park.
The father gives evidence that he did not hear from the mother or see the child from that time until after the orders were made on 10 May 2017.
The father gives evidence that it is approximately 3 hours from (omitted) to (omitted).
It is the father's evidence that he has a rich, warm and loving relationship with the child and that he has observed that the child is under considerable pressure from the mother.
It is the father's evidence that the child can only develop a close relationship with him by a liberal parenting arrangement being in place.
It is the father's evidence that since the orders of 10 May 2017, the child spends regular time in accordance with the orders and asks regularly to sleep overnight in the father's home. The father says that the child has a good relationship with his partner and often rushes to greet her.
It is the father's evidence that since the child has returned to the (omitted), he has attended three school events.
The father gives evidence that the child has missed 64 days of school in a year, however, says despite those absences the child is doing very well at school.
It is the father's evidence that he has a successful (occupation omitted) career on the (omitted) and he says that if he were to move away from the (omitted), he would have to start all over again to create a network and reputation.
The father gives evidence that he has attended two sessions of the Facing Up program, after making contact with the program coordinator in November 2017. There is no further evidence as to whether the father is continuing with the program or whether the program has been completed.
The father gives evidence that he has a brother who lives on the (omitted) and that the child has a good relationship with the brother. The father also has his grandparents living on the (omitted) and the grandparents see the child every six weeks or so. Furthermore, there is an aunty and uncle who live on the (omitted) who have children and all of those people have spent time with the child.
With regards to the paternal grandparents, the father gives evidence that they continue to reside at (omitted) on the (omitted) and they come to the (omitted) about four times per year staying for approximately 2 weeks at a time. His evidence is that they have a great relationship with the child and that the child likes spending time with them.
The father's evidence is that he has seen the maternal grandparents arguing quite often and that the arguments would generally coincide with the maternal grandmother becoming intoxicated.
It is the father's evidence that the maternal grandmother would consume one bottle of red wine each night and that thereafter she would fall asleep on the couch often without eating dinner.
The father inexplicably also gives evidence that the maternal grandfather has a gun in a safe in his home.
It is the father's evidence that the mother is a good mother despite not promoting a relationship between the child and he.
The father otherwise denies the allegations of physical violence alleged by the mother but admits to he and the mother having arguments in which both were verbally abusive towards the other at times.
The father was cross-examined and stated that he was happy with the way the child had been raised and he was happy that there had been a big improvement between he and the mother.
The father conceded that the child was closest to the mother, had always lived with the mother, that child wants to live with the mother, that there had been past problems between he and the mother and that there had been problems with the relationship where the child had said he did not wish to go with him.
The father also agreed that the child was happy to spend time with him now and happy to speak with him on the telephone and use FaceTime.
The father accepted some responsibility for the poor relationship between he and the mother and said regrettably, he accepts that he called the mother names, that there were persistent arguments and that on one occasion he threw the mother's phone after taking it from her. The father agreed that he caused more of the disagreements and that the child was present some times during those disagreements.
The father conceded that the abusive discussions went on for a very long time throughout the relationship and that as a result it wore the mother down.
The father conceded that from time to time he said abusive things to the mother when the child was present and that he agrees it was not good for the child to witness.
The father acknowledged that at the time of separation he knew it was best for the child to live with his mother and that it was best for the mother to live near her parents for support.
The father acknowledged that in October 2013 after seeing a text from a previous boyfriend from the mother, he called the mother a slut amongst other things. Furthermore, the father acknowledged that he grabbed the mother's phone trying to check the history and that a physical struggle then developed between the parents and that the child was in the house and that the mother was highly distressed as a result of the fight.
The father conceded that he has heard the child say to him he does not want to go and spend time with him because the father is angry and yells.
The father acknowledged that on occasions he had been holding the child or on other occasions the mother was holding the child whilst he was abusing the mother and that as a result the child would have felt a degree of discomfort.
The father accepted that he had told the child that he ‘loved his mummy and that she doesn't love me back’.
The father acknowledged that on 22 December 2016 he called the mother a whore twice in front of the child and that there was a struggle in front of the child.
The father was cross-examined about the maternal grandmother’s drinking and he was adamant that he had witnessed the maternal grandmother drinking every day and falling asleep at the dinner table or on the lounge as result of her level of intoxication. He acknowledged however, that the child is safe when with the mother and when living with the maternal grandparents.
The father confirmed that since the orders of 10 May 2017, the child's time with him has been consistent and regular and that the reason why he does not wish the child to relocate to (omitted) with his mother is because he wants to continue to be a consistent presence in the child's life.
Ms D
Ms D under cross examination confirmed that the development of the child’s relationship with his father had been impaired or affected by the working arrangements where in the father worked away for four weeks and was at home for one week.
Ms D conceded that there was less opportunity for shared experiences if the child lived away in (omitted). Her evidence was that there was less opportunity for the relationship to develop and deepen, however the child could still have a strong relationship but that this would depend more on the relocating parent's goodwill and intentions.
Ms D conceded that there was a history that suggested that the mother had made decisions unilaterally, however she said in relation to that aspect of the mother's personality that the mother had become used to being a sole parent, in circumstances where the father worked away from such long periods of time, and in making decisions as a result.
It was her view that the mother struggled handing over joint decisions in those circumstances but she did not form the view that she deliberately did so.
By way of family report, Ms D provides evidence that both of the parents report that since the interim orders of 10 May 2017 have been in place, the child has not been reluctant to spend time with his father.
Ms D raised a concern that the father was not aware that some of his past conceded behaviours toward the mother constituted family violence.[1] The child told Ms D that he did not feel frightened when his parents argue.[2] The child told Ms D that there were times when he did not want to spend time with his father but that it was not because he was frightened of his father or because the father had been mean to him it was because ‘I just want to stay with mum sometimes she is funnier’.[3] The child also said that he believed both his mother and father were still friends.[4]
[1] Paragraph 31 of the Family Report.
[2] Paragraph 61 of the Family Report.
[3] Paragraph 62 of the Family Report.
[4] Ibid.
Ms D discussed the possibility of a move to (omitted) with the child. The child said he would like to go and that it would be good to go. Ms D formed the view that the child believed that he could spend the same time as he does now with the father if he moved to (omitted) and when it was explained to him that he could not the child said he would miss the father but he would still like to relocate.[5]
[5] Paragraph 64 of the Family Report.
Ms D observed the father and child and formed the view that they have a close, affectionate and playful relationship with each other.
Ms D also observed the mother and maternal grandparents and formed the view that the child has a close, affectionate and playful relationship with the mother and the maternal grandparents.
In relation to the child's wishes it was the Family Consultant's view that X has not matured sufficiently to appreciate the potential consequences of relocation on his relationship with the father.
It was Ms D's view that his wishes should not be given significant weight in those circumstances. I am persuaded by that evidence.
In relation to the relocation itself the Family Consultant correctly points out that if the child is able to relocate with the mother, he will have a different relationship with the father then if he remains living on the (omitted).
The Family Consultant is of the view however, that at the child's age and stage of development he will be able to benefit from communicating regularly with the father by telephone, FaceTime and Skype and that he should be able to maintain a meaningful relationship with the father.[6]
[6] Paragraph 79 of the Family Report
The Family Consultant of course sets out that there are pitfalls in relation to the relocation which can result in the child from time to time not spending time with the non-relocating parent.
The Family Consultant recommended that the parties have equal shared parental responsibility.[7]
[7] Paragraph 80 of the Family Report.
Having raised the concern regarding the father's lack of insight into family violence, the Family Consultant also recommended that the father complete a multi-week perpetrators of family violence program such as ‘Facing Up’.
It was also recommended that once the father has provided evidence of completing the ‘Facing Up’ program then overnight progression as proposed by the mother occur whilst the parties are living on the (omitted).[8]
[8] Paragraph 83 of the Family Report.
The Family Consultant did not recommend one way or the other as to whether relocation should occur.
The law
These proceedings involve parenting arrangements for a child aged seven years of age. Accordingly Part VII of the Family Law Act 1975 (the Act) applies.
The child's best interests is my paramount concern.[9] With reference to the objects and principles found in section 60B of the Act and informed by them I must make orders that are in the best interests of the child.
[9] Family Law Act 1975 (Cth), Section 60CA
Section 60CC sets out the matters that I must consider when making a determination that is in the best interests of the child.
Allegations of family violence have been raised. Both parents seek an order for equal shared parental responsibility. In those circumstances and having regard to section 61DA I must determine whether the presumption found within section 61DA(1) applies or whether it is otherwise in the best interests of the child for an order to be made for equal shared parental responsibility.
If I make an order for equal shared parental responsibility the provisions of section 65DAA must be considered.[10]
[10] MRR v GR [2010] HCA 4
The issue of whether the mother can relocate or not looms large in this matter. The legislation does not provide specific reference to relocation. Accordingly, the principal that the paramount concern is the best interests of the child applies and in those circumstances I am not bound by either of the party's proposals provided I afford the parties procedural fairness if I were to make an order that neither proposed. I must consider all of the relevant factors including the right of freedom of movement of the parent who wishes to relocate.[11]
[11] U v U (2002) FLC 93112
The legislation does not demand a consideration of the relevant sections in any particular order.[12] In Heath & Hemming(No.2)[13](2011) Justice Kent set out an approach to parenting cases including one involving a proposed relocation. His Honour said at paragraph 87, the following:
[12] Starr & Duggan [2009] FamCAFC 115
[13] [2011] FamCA 749
‘Upon my review of the authorities it seems to me that the following is a logical and practical approach by the Court, and one which meets the statutory imperatives in a parenting case, including such cases involving a proposed relocation: -
(a)Identify the respective proposals of each of the parties and any proposals of the Court substantially different to those of either party that were identified to the parties in the course of the proceedings as being proposals the Court might consider and about which the parties were given an opportunity to be heard. (AMS v AIF (1999) 199 CLR 160 and U v U (2002) 211 CLR 238)
(b)Informed by the objects expressed in s 60B(1) and the principles underlying those objects in s 60B(2) (and where relevant s 60B(3)) undertake consideration of and make findings about each of the “best interests” considerations set out in s 60CC having regard to the respective proposals. It may be preferable to look at the additional considerations in s 60CC(3) (incorporating subsections (4), (4A) and (6) (where relevant)) before consideration of and findings about the primary considerations in s 60CC(2). (Collu & Rinaldo (supra) [2010] FamCAFC 53))
(c)Consideration of and findings about the s 60CC considerations will result in findings one way or the other about “abuse” and “family violence” within the meaning of those terms as they are defined in s 4 of the Act (s 60CC(3)(g),(k) and s 60CC(2)(b)).
(d)In determining best interests the obligation upon the Court is to consider, weigh and assess the evidence adduced on behalf of the parties touching upon each of the relevant matters. After consideration of all those matters the Court should indicate to which of those matters greater significance is attached and how all of those matters balance out. (Collu & Rinaldo (supra) at [355] cited with approval in Sigley & Evor [2011] FamCAFC 22; (2011) 44 Fam LR 439 at [142]).
(e)Next, determine in accordance with s 61DA whether or not the presumption of equal shared parental responsibility applies having regard to any findings as to “abuse” or “family violence” (s 61DA(2)) and the findings on “best interests” considerations (s 61DA(4)).
(f)If, as a result, the s 61DA presumption is found not to apply, or is rebutted, and it is determined that the parenting order will not provide for the parents to have equal shared parental responsibility, s 65DAA is not triggered and the Court may make parenting orders, consistent with the s 60CC findings, having regard to ss 60CA, 60CC and 60B.
(g)If the presumption applies, or if it is determined that the parenting order should make provision for the parents to have equal shared parental responsibility, then s 65DAA is triggered and the Court must consider:
1.Whether an order for equal time is in the child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, equal time; and if not,
2.Whether an order for substantial and significant time would be in the child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, substantial and significant time.
(h)The questions about “best interests” posed by s 65DAA will be answered by reference to the s 60CC findings undertaken in steps (b),(c) and (d) above.
(i)To answer the question of “reasonably practicable” regard must be had to the factors identified in (a) to (e) of s 65DAA(5) some of which will have also been considered in addressing the s 60CC considerations (as but one example, parental capacity to implement arrangements and to communicate and resolve difficulties). As the High Court highlights in paragraph 15 of its judgment in MRR v GR (supra) s 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there will be equal time (and the same can be said of s 65DAA(2) and substantial and significant time) and s 65DAA(1)(b) (and s 65DAA(2)(d)) requires a practical assessment to be made of the feasibility of equal time or substantial and significant time respectively.
I will follow that pathway.
In Taylor & Barker (2007) FLC 93 – 345, Morgan & Miles (2007) FLC 93–343, Mulvany & Lane (2009) FLC 93–404 and McCall & Clarke (2009) FLC 93–405 in my view confirm the very clear legislative intent in favour of substantial involvement of both parties since the commencement of the Family Law Amendment (Shared Parental Responsibility) Act 2006.
It is in the light of those authorities and the relevant legislative pathway that I will assess the evidence
Assessment of the evidence
The primary considerations
On any view of the evidence, I am satisfied that there is a very real benefit to the child of having a meaningful relationship with both of his parents. The evidence establishes that this child has a close affectionate and playful relationship with both of his parents and that the child is primarily attached to his mother.
The mother has raised the allegation of family violence. The Family Consultant raises as an issue on her own behalf the fact that the father did not appear to have the insight to recognise that some of his behaviour during the relationship and post separation amounted to family violence as defined in the Act.
Both parents concede that they at times engaged in significant disagreement that involved both of them using abusive language during the relationship.
The mother alleged that the father used abusive language and inappropriate terms toward her throughout the relationship. The maternal grandfather gave evidence that was not challenged that the father called the mother ‘an evil bitch and a whore’ whilst in his presence. The text messages annexed to the mother's Affidavit also provide evidence that the father was demeaning, abusive and aggressive towards the mother post separation.
The father concedes that his depression impacted upon his behaviour and furthermore concedes that he used abusive language towards the mother both during and after the relationship came to an end.
In those circumstances I am satisfied that there was family violence amounting to situational couple violence and separation instigated violence.
The unchallenged evidence of Ms E is that there is no family violence as between her and the father.
The mother and father both agree that recently their communication has been far better and that there have been no incidents of family violence between them since December 2016.
When the child was questioned by the Family Consultant about the father's home and the mother's home, the child did not complain of being frightened in either home nor did he complain of the father having arguments with his current partner.
In those circumstances whilst I am satisfied that there was family violence within this relationship continuing post separation until December 2016, I am not satisfied that there is a need to protect the child from physical or psychological harm from being exposed to family violence.
The father raised the maternal grandmother's alcohol use with reference to the need to protect the child from neglect.
There was no evidence provided that the child had been left in the sole care of the maternal grandmother at times that she was intoxicated nor was there any evidence that the child had been neglected whilst in the home of the maternal grandmother as a result of her alcohol consumption.
I am satisfied on the evidence that the maternal grandmother enjoys drinking red wine. I am not able to make a finding as to whether she drinks red wine every night or not and to the extent that she is rendered unconscious as a result of that consumption.
The evidence as it was presented to me does not satisfy me that there is a need to protect the child from physical or psychological harm from being subjected to or exposed to neglect in the maternal grandmother's home.
In light of that I must consider if there is a benefit to the child having a meaningful relationship, what does it mean to have a meaningful relationship and how might I best treat that primary consideration.
In Mazorski & Albright[14] at paragraph 26 Brown J after considering various definitions of the word meaningful and considering previous authorities said this:
‘What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one.’
[14] [2007] FamCA 520
In McCall and Clarke[15] the Full Court said:
‘the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”).
We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant.’
[15] [2009] FamCAFC 92
I interpret from those decisions that it is imperative to frame orders that are in the best interests of the child and if I am satisfied that it is in the best interests of the child to have a meaningful relationship with both parents then I must ensure that the orders that I make promote the meaningful relationship.
Furthermore a meaningful relationship can be established and maintained as a result of quality time rather than necessarily as a result of significant time.
Additional considerations
As I said previously, I am persuaded by the evidence of the Family Consultant that the views of the child should not be given substantial weight.
The child has been influenced by the mother in relation to the move to (omitted). The mother took the child to (omitted) prior to relocating there in (omitted) 2017 to show the child the local school and told the child that it looked like a good one.
Furthermore, the mother has bought the child a puppy that remains in (omitted). The child has a strong relationship with his maternal grandparents and they live in (omitted).
The mother lives in substandard accommodation in the (omitted) awaiting a determination in this matter. Finally the child is taken from school early most Fridays to return to (omitted).
All of the above referred to factors support a finding that the child's views have been impacted upon by the mother and furthermore the Family Consultant was of the view, and as I said am persuaded by her evidence, that the child lacks the maturity and understanding of what a relocation to (omitted) would mean with regards to his time with his father.
I am satisfied on the evidence the child has a strong meaningful relationship with both of his parents and with the maternal grandparents.
I am satisfied on the evidence that the child is primarily attached to his mother. I make this finding on the basis of the evidence that establishes that the father worked away from home for considerable period of times whilst the child was very young. Furthermore, after separation there was difficulty in the child spending time with his father and that difficulty continued right up until May 2017 when the child was nearly 7. For those reasons it is apparent, and I am so satisfied, that the child is primarily attached to his mother.
The evidence satisfies me that the mother has been taking every opportunity to fully involve herself in decision-making, communicating with and spending time with the child.
The evidence establishes that the father has been attempting to avail himself of every opportunity to participate in making decisions, spending time with the child and communicating with the child but that those attempts have been frustrated because of the interpersonal relationship between the he and the mother.
I am satisfied that the mother was not maliciously preventing the father from being involved in the child's life but rather, she was increasingly concerned by the fathers poor behaviour and was not willing to expose the child to that behaviour without the father first addressing it.
There was very little evidence in relation to the parties having fulfilled their obligations to maintain the child. The mother alleged that the father was not contributing towards expenses for the child; the father denied that allegation and said that he had been meeting his obligations either pursuant to the child-support assessment or through private arrangement. The evidence on this issue was such that I could not make a finding one way or the other but I am otherwise satisfied that the child has been provided with sufficient maintenance so that his education, sporting, social and living needs are being maintained by both parents.
If the mother is permitted to relocate, there will be a change in the child's circumstances that has the capacity to impact upon his relationship with his father, his father's partner, and various paternal relatives on the (omitted).
If the child is not permitted to relocate, then there is likely to be an effect in his relationship with the maternal grandparents with whom he spent most of his life and having regard to the mother’s very strong desire to live in (omitted) potentially some effect on his relationship with the mother in circumstances where she will be clearly upset and not provided with the same level of emotional and financial support that she would otherwise get from living with the maternal grandparents.
The mother has effectively been able to maintain the child's relationship with his father and maintain the child's relationship with the maternal grandparents and receive the same emotional and financial support from them by continuing to travel backwards and forwards to (omitted).
The evidence clearly establishes that despite the father’s fly in fly out work arrangements, the mother's alleged gatekeeping, the family violence and the absence of the father from the child's life for five months, the child nevertheless has a strong relationship with his father.
The father's case was that the court could not be confident that the mother would continue to promote the relationship between the child and the father because in the past she has failed to encourage the child's time with the father. I do not accept that as a proposition supported by the evidence.
I am of the view that the mother has always promoted a relationship between the child and the father but that she became increasingly anxious about the child spending time with the father due to the father’s conceded increase in argumentative and abusive behaviour post separation.
Considering the limited amount of time the child has spent with the father throughout his life due to various circumstances, the child has been able to develop a significant and meaningful relationship with his father.
Having regard to the fact that the child has lived predominantly with his mother, I am satisfied that it is because of her efforts that the child has been able to develop and maintain that relationship.
Having made those findings, I am satisfied that the mother has the capacity to ameliorate the effect of any changes in the child's circumstances in relation to his relationship with his father in the event that I make orders that she be permitted to relocate.
There is no practical difficulty and expense relevant if the child remains living on the (omitted) with his mother. Obviously if the child relocates with his mother to (omitted), there is a practical difficulty and further expense for the child to spend time with the father.
It is relevant in my view to note that the distance between (omitted) and the (omitted) is between two and a half and three hours driving time. Whilst that is a reasonable distance between the parents’ proposed homes, that distance does not prevent an order being made for each alternate weekend time if the child were permitted to relocate to (omitted).
Both parents have shown in the past that they lack some capacity to provide appropriate emotional and intellectual support for the child.
The father’s admitted behaviour in the presence of the child reveals a lack of understanding as to the effects of his behaviour on the emotional well-being of the child.
The mother’s efforts to prevent the child from spending time with the father went at times above what was necessary. The mother acknowledges that deficit in her past parenting behaviour.
Submissions were made that I should make a finding that the mother will continue to involve the child in the dispute in the future. I am not persuaded by that submission. The parties both agree that the relationship between them has settled significantly of recent times.
Both parents provide evidence that they are working on their own issues. The mother says she continues to work on her anxiety and the father provides some evidence that he has engaged in the ‘Facing Up’ program.
The parents both agree that the child enjoys spending time with his father and that there are no issues in relation to the care provided by either the father or the mother.
For those reasons I am not persuaded that the mother will continue to involve the child in the dispute, nor that the father will continue to involve the child in the dispute or expose him to a dispute.
I am satisfied overall on the evidence of both the parties that although they lack some capacity to provide for the needs of the child in the past, they are able to meet the child's needs moving forward.
Both parents have failed in their responsibilities of parenthood at times in the past. Both parents have put their needs above the child in the past.
It is pleasing that the parents have both recognised their past bad behaviour and have agreed to work on their relationship for the benefit of the child.
In those circumstances they both satisfied me that they have a good attitude towards not only the child but to their own responsibilities of parenthood.
I am satisfied that they can and will continue to work on their relationship so as to provide the best possible outcome for their child.
I previously outlined my findings in relation to family violence. There is no family violence order in place nor has there ever been a family violence order in place. I am satisfied that although there was family violence in the past, there is no family violence currently and having regard to the parties change in behaviour I am satisfied that there is no evidence to support a finding that there is likely to be family violence between the parents and or exposing the child in the future.
In relation to the relocation itself, the evidence establishes that the child has spent very limited overnight time with his father. As I previously said notwithstanding the limited time that the child spent with the father, he has been able to develop a strong relationship with his father.
The child has been spending daytime only one day a fortnight with his father since May 2017 together with some afternoon time on Monday and Tuesday.
Notwithstanding that limited time and the fact that the child had not spent time with his father for five months, prior to my orders of May 2017, the child has continued to experience a meaningful relationship with his father and has been able to develop a good relationship with the father's partner. The father's evidence is that the child continues to enjoy a relationship with paternal family members at times when he spends time with his father.
The mother's proposal would see the child spending more time with his father and the father's partner, increasing after six months and upon the father completing an anger management course and receiving assistance from a psychologist to each alternate weekend and half school holidays. The distance between the parties proposed residences does not prevent such time from occurring.
If the child remained in the (omitted), the father would be able to spend longer periods of time with the child and be involved in the child's sport and schooling arrangements. That may further develop the relationship between the child and his father although as Brown J said in Mazorski[16] meaningful relationship is a qualitative assessment.
[16] Mazorski & Albright [2007] FamCA 520
If the child remains on the (omitted) he could arguably play sport on a regular basis and spend time with school friends regularly.
However, in light of the evidence, I am satisfied that the mother will travel to (omitted) each alternate weekend and indeed at any time she is not required to be on the (omitted) to facilitate time between the child and the father.
In those circumstances I am not persuaded that the child would spend regular time on the (omitted) so as to enjoy weekend time with his friends and/or regularly play sport on the (omitted).
I am satisfied on the evidence that the mother will be extremely unhappy if she were forced to remain living on the (omitted). I am satisfied on the evidence that she has a keen desire to live in (omitted) now and in the future.
As I said earlier this child has a strong relationship with the maternal grandparents and has lived most of his life with them. He has expressed a view to live at (omitted). Whilst I give very little weight to that view it is nevertheless a relevant factor.
I am satisfied that he would be upset if he could not live in (omitted) with his maternal grandparents, his dog and return to the (omitted) school which he said he liked as much as the (omitted) School.
If the child lives in (omitted) the advantage would be that he would be at a place where he says he would like to live, he would again be living with the maternal grandparents, and his mother with whom he has a primary attachment would be very happy. The home environment in (omitted) is an environment that the child is used to and has settled into throughout his life.
The child explained to the Family Consultant that he enjoyed his school at (omitted) and had made friends. I am satisfied that if the child returned to (omitted) he would quickly reintegrate into the community.
The disadvantage of moving to (omitted) is that the child would not be able to spend weeknights in the father's care. Obviously the father would not be able to be as involved in the child's schooling although the father could from time to time travel to (omitted) for special School events.
Whilst there would be no physical contact between the father and child on weeknights which would obviously be a disadvantage for the child, that disadvantage can be ameliorated through the use of FaceTime or Skype, something that the child enjoys and is becoming more used to.
Another fact that is relevant is the allegation raised by the mother that the father needs to address his own mental health.
The father concedes that at around the time of separation and continuing for a number of years he became depressed. The father says he sought treatment however was dissatisfied with the treatment he received. The evidence of the father is that whilst at times he is still sad and somewhat depressed about the circumstances surrounding the child, he is no longer in a depressed state or suffering from depression.
The mother conceded that the father does not pose a risk to the child nor does the father's partner.
In those circumstances I am not satisfied that the father’s overnight time with the child should be predicated by him receiving satisfactory assistance from a psychologist or other allied mental health care professional.
Parental responsibility
Having made findings that there was family violence within this relationship, the presumption found within section 61DA(1) does not apply. However that is not the end of the matter because an order for equal shared parental responsibility might otherwise be in the best interests of the child.
Having regard to my findings that the family violence in this matter related to situational couple violence or separation instigated violence and my findings that there is no longer any family violence being perpetrated by either parent now, I am satisfied that an assessment as to whether equal shared parental responsibility for this child is an appropriate order.
In assessing such an order, I am satisfied on the evidence that the parties communication and cooperation has increased substantially since the making of the interim orders in May 2017. Both parents acknowledge that they have some work to do with regard to their own personal circumstances however they both concede that they have a good working relationship for the benefit of the child.
The evidence establishes that both parents have admitted wrongdoing in the past and have made a commitment to each other that they will work collaboratively for the benefit of the child.
In those circumstances I am satisfied that an order for equal shared parental responsibility is an order that is in the best interests of the child.
Having so decided the provisions of section 65DAA are triggered.
It was conceded by the father's Senior Counsel that an order for equal time would not be in the child's best interests. That concession was made in circumstances where the father's work commitments prevent him from being present for the child on 6/7 days each week.
The evidence does not satisfy me that an order for equal time is in the best interests of this child because although the parents are beginning to work cooperatively and communicate effectively, it is still very early days. Furthermore, the mother is available for the child the majority of days each week and when she is not available for the child, the maternal grandparents are and this is an arrangement that the child has been used to most of his life.
If the mother lived on the (omitted), an order for equal time might be reasonably practicable provided the parents’ commitment to communicate effectively and resolve difficulties arising in implementing such an arrangement continues to develop.
Clearly if the mother is permitted to relocate to (omitted) the distance between the parents’ homes and the current level of communication, noting that it is in the very early stages of becoming collaborative would satisfy a finding that it was not in the best interests or reasonably practicable for an equal time arrangement to occur.
In the event the mother must remain on the (omitted), the close proximity of the parents would lend some support to an order being made for substantial and significant time.
However as to whether such an order is in the best interests of the child, regard must be had to be child's current circumstances and the findings I have made earlier.
Currently the child spends afternoons, for a number of hours on Monday and Tuesday night, with his father each alternate week. The child is otherwise used to being in the mother's care every other night of the fortnight. That care includes substantial involvement by the maternal grandparents. The child is used to that arrangement and has lived in such an arrangement for the majority of his life.
The level of cooperative parenting between the parents has been poor in the past and is at best on the evidence developing into something better.
A substantial and significant involvement with the child would require a good level of cooperative parenting. The evidence at this stage does not satisfy me that there is a sufficiently good level of cooperative parenting currently in the parents’ relationship.
In short, because the increase in time would affect the child’s settled routine with the mother and the level of communication and cooperative parenting between the parents is in the early stages, I am not satisfied that an order for substantial and significant time is in the best interests of the child should the child remain on the (omitted).
In the event the child is permitted to relocate to (omitted), the distance between the parents’ homes becomes another relevant factor. Based upon distance alone, a substantial and significant time order would not work and is therefore counterintuitive to the best interests order.
Conclusion
Having assessed and weighed the evidence as against the parties proposals, I am of the view that it is in the best interests of the child for the mother to be permitted to relocate the child's residence to (omitted).
I am not satisfied on the evidence that there is a need for the father to obtain a mental health assessment and comply with any recommendations made by the mental health practitioner prior to overnight time commencing.
I am satisfied on the evidence that overnight time should not commence until such time as the father has completed the Facing Up Program and he should continue to complete it.
Notwithstanding that the father works on Saturdays, I am persuaded by the evidence that the child has a sufficiently close relationship with the father's partner such that he would not be distressed from spending Saturday with Ms E.
The father has indicated that there is some flexibility in his working arrangements, noting of course that Saturdays are the busiest day on the working week. It may be that from time to time the father could arrange for some time off on a Saturday.
I am satisfied furthermore that the arrangement on each Saturday and Sunday should continue until such time as the father completes the Facing Up program and that thereafter for a period of six months the child’s time should include overnight time from 9am Saturday until 6:30pm on Sunday.
I am satisfied that it is a child focused approach that thereafter the child's time with his father increases so as to be from 4:30pm on Friday until 6:30pm Sunday and to half of each of the term 1, 2 and 3 school holiday periods.
The father gave some evidence as to having only four weeks annual leave and in those circumstances a block period of two weeks in the long term 4 Christmas school holidays is an appropriate order to be made.
Furthermore such an order would be in the best interests of the child as he would spend quality time with his father during that time and have the majority of time during the Christmas school holidays in his home town of (omitted).
For those reasons I am satisfied that the orders I have made are in the best interests of the child.
I certify that the preceding two hundred and seventy-seven (277) paragraphs are a true copy of the reasons for judgment of Judge Middleton
Date: 27 March 2018
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Procedural Fairness
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Remedies
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