Markwell & Solberg & Anor
[2020] FCCA 1751
•30 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MARKWELL & SOLBERG & ANOR | [2020] FCCA 1751 |
| Catchwords: FAMILY LAW – Parenting – relocation application – allegations of family violence – mental health issues – significant credibility issues. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB (1), 60CA, 60CC(2), 60CC(2A), 60CC(3), 61DA, 61DA(2), 61DA(4), 61DAC, 68Q, 68R, 69ZW, 102NA(1)(c)(ii) |
| Applicant: | MS MARKWELL |
| First Respondent: | MR SOLBERG |
| Second Respondent: | MR RANWICK |
| File Number: | CAC 1533 of 2014 |
| Judgment of: | Judge Hughes |
| Hearing dates: | 8, 9, 10, 11, 15 October 2019, 22, 23 and 24 April 2020 |
| Date of Last Submission: | 24 April 2020 |
| Delivered at: | Canberra |
| Delivered on: | 30 June 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Reeves |
| Solicitors for the Applicant: | Legal Aid ACT |
| Counsel for the First Respondent: | Ms Burgess |
| Solicitors for the First Respondent: | Yeend & Associates |
| Counsel for the Second Respondent: | Ms Evans |
| Solicitors for the Second Respondent: | Mills Oakley |
| Counsel for the Independent Children’s Lawyer: | Mr Ridge |
| Solicitors for the Independent Children’s Lawyer: | Barker & Barker |
ORDERS
All previous parenting orders in relation to the children B born in 2010 (“B”) and D born in 2017 (“D”) are discharged from 3 July 2020.
The applicant mother, Ms Markwell, and the first respondent father, Mr Solberg, shall have equal shared parental responsibility for B.
Until 3 July 2020, B’s living arrangements shall be in accordance with the orders of 1 March 2019.
From the commencement of the third school term in 2020, B shall attend a school in Canberra to be agreed between the mother and Mr Solberg by 3 July 2020 or, in default of agreement, to be chosen by Mr Solberg.
Unless otherwise agreed between the parties in writing, B shall spend the whole of the school holiday period at the end of term 2 in 2020 with her father, returning to her mother at 5pm on Saturday 18 July 2020, subject to order (6) below.
If both parents are living in the Canberra district, from 19 July 2020 B shall live for equal time with each parent, which, unless otherwise agreed, shall be on a week about basis during school terms, with handover at 5pm each Sunday.
If the mother is not living in the Canberra district by 18 July 2020, B shall live with her father from that date and spend time with her mother as agreed between the parents until the mother relocates to the Canberra district at which time the provisions in order (6) above will apply.
With the exception of the term 2 school holidays (which are the subject of order 5 above), B shall spend half of each school holiday period with each parent as agreed, or failing agreement, the first half with her mother and the second half with her father in odd numbered years and vice versa in even numbered years.
During the long summer holidays each year, unless otherwise agreed, B shall spend the first half with her mother and the second half with her father in odd numbered years and vice versa in even numbered years.
Handover of B shall occur as agreed between the parties to share as evenly as possible any travel required.
The applicant mother, Ms Markwell, and the second respondent father, Mr Ranwick, shall have equal shared parental responsibility for D.
Provided the mother lives within 200 km of Town E, D shall live with her mother and spend time with her father as follows:
(a)until 3 July 2020, in accordance with the orders of 1 March 2019, as modified by agreement between the parties;
(b)from 3 July 2020:
(i)during school terms, every second week from 10am Wednesday to 4pm Sunday to coincide with the time B is with her father;
(ii)for half of the 2020 mid-year school holidays on dates to be agreed or, failing agreement, from 10am on Friday 10 July to 5pm on Saturday 18 July;
(iii)thereafter, for half of each school holiday period at the end of terms 1, 2 and 3 each year, to coincide with the time B is with her father;
(iv)until D turns six, for half of the long summer holidays at the end of term 4 each year, on dates to be agreed or, failing agreement, on a week about basis starting with the first week with the mother in odd numbered years and the first week with the father in even numbered years;
(v)upon D turning six, for half of the long summer holidays at the end of term four each year on dates to be agreed or, failing agreement, the first half with her mother and the second half with her father in odd numbered years and vice versa in even numbered years and to coincide with the time B is with her father.
Handover of D shall occur as agreed between the parties or, failing agreement, at the Town F Service Centre on the G Highway, Town F.
In the event the mother lives further than 200 km from Town E, D shall live with her father, spend time with her mother during school term as agreed in writing between her parents and spend time during school holidays in accordance with these orders.
Each parent shall facilitate their child communicating with the other parent at any reasonable time at the request of the child.
Each parent may communicate with their child when the child is in the care of the other parent at times to be agreed or, failing agreement, each Tuesday and Saturday between 6pm and 6.30pm. For the purpose of this order, the parent with care of the child shall ensure the child is available to receive the other parent’s call. If the child is unavailable for any reason, the parent with the care of the child shall facilitate the child returning the other parent’s call as soon as practical and, in any event, within 24 hours.
Unless otherwise agreed, the children shall spend Mother’s Day with their mother and Father’s Day with their father each year, regardless of where they would otherwise be in accordance with these orders, at times to be agreed or, failing agreement, from 9am to 5pm.
Unless otherwise agreed, each child shall spend time with their parents and sibling on their own birthday, their sibling’s birthday and the relevant parent’s birthday, at times to be agreed or, failing agreement, from 3pm to 5.30pm if they would not otherwise see them on those days.
The parties shall take reasonable steps to ensure that the children spend time with their mother together, noting however that the arrangements for the children during the long summer holidays may be different until D is aged six.
The parents of each child shall download a parenting communications app to be agreed or, failing agreement, the Talking Parents app, to be used as the primary form of communication between them.
Each parent may communicate with the other by telephone or text message in urgent circumstances.
The parents of each child shall, within seven days, advise the other of their residential address, email address and mobile phone number and advise of any changes to those details within 48 hours of the change.
Each parent is free to be fully involved in the preschool, school and extra-curricular life of the child, to receive copies of school reports, newsletters and the like and to attend all events and functions to which parents are invited.
Each parent shall promptly advise the other of any serious illness or injury suffered by the child and provide the name and contact details of any treating medical practitioner and, to any extent necessary, authorise the treating medical practitioners to provide full information directly to the other parent.
Each parent is hereby restrained from:
(a)denigrating the other parent(s) or any member of their family to or in the presence of the children or allowing anyone else to do so; and
(b)discussing these proceedings or the issues involved in them with or in the presence or hearing of the children, except to explain the parenting arrangements.
Whenever the children are in the care of their respective fathers, Mr Ranwick may come into contact with B and bring D into contact with Mr Solberg and Mr Solberg may come into contact with D and bring B into contact with Mr Ranwick.
The mother shall take all reasonable steps to engage with a psychiatrist and a clinical psychologist experienced in trauma-focused work (“the therapists”) for the purpose of mental health treatment and therapy. For the purpose of this order:
(a)The mother shall engage the therapists within four months;
(b)The mother shall advise each other party of the name of the therapists within seven days of engaging them;
(c)The independent children’s lawyer shall provide to each of the therapists:
(i)a copy of these orders and reasons for judgment;
(ii)a copy of the report of Dr H dated 4 October 2019; and
(iii)if sought by the therapists, a copy of any medical records pertaining to the mother held by the Court.
(d)The mother may provide a copy of these orders and reasons for decision to her general medical practitioner.
The appointment of the Independent Children’s Lawyer is discharged six months from today.
The contravention applications filed by Mr Ranwick on 30 October 2018 and 5 April 2019 are adjourned to 20 July 2020 at 10am for mention in the duty list.
The applications in a case filed by the mother on 23 April 2020, 9 June 2020 and 10 June 2020 remain listed on 20 July 2020.
Otherwise, all extant applications are hereby dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Markwell & Solberg & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 1533 of 2014
| MS MARKWELL |
Applicant
And
| MR SOLBERG |
First Respondent
| MR RANWICK |
Second Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings in relation to two children, aged nine and three years respectively. The applicant mother relocated with the children from Town E in New South Wales to City J in Victoria on 11 June 2018 without notice to either of the children’s fathers. Following interim proceedings, the mother was ordered on 5 September 2018 to return the children’s residence to the Town E district by 8 October 2018. She did not do so until 7 February 2019 and not until there had been repeated further proceedings. The mother was tenacious in resisting the orders.
The mother seeks final orders permitting her to relocate with the children to City J. Each of the children’s fathers resists the application, primarily on the basis that the distance would make it difficult for their child to maintain a meaningful relationship with them. They each seek primary residence of their daughters or, in the alternative, substantial and significant time with them. They each argued that such time is necessary to preserve the father/child relationship because the mother cannot be trusted to support it.
Background
The mother, Ms Markwell, and the first respondent father, Mr Solberg, met in 2009 when the mother was living in Canberra and Mr Solberg in Town F. They commenced living together in Town F in late 2009 or early 2010. In 2010 their daughter B was born.
The mother and Mr Solberg separated in September 2014. They agreed that B would spend every second weekend and Wednesday afternoons with her father. This occurred for about six weeks before the mother stopped making B available. In October 2014 the mother obtained an interim family violence order against Mr Solberg. Her application for a final order was ultimately refused.
On 31 October 2014, Mr Solberg filed an application for parenting orders in the Family Court of Australia at Canberra. Five days later, without notice to Mr Solberg, the mother relocated with the child to Town E, a distance of about 100 kilometres or one hour’s drive away.
In the 2014 proceedings, the mother made numerous allegations against Mr Solberg, including that he was physically and sexually abusive of B. None of her allegations were substantiated. The parties entered into final consent orders on 11 April 2017 which provided for the mother to have sole parental responsibility for B and for B to live with her mother and spend time with her father. The time was to increase in stages, culminating by the end of October 2017 in B spending every second weekend with her father from Saturday morning to Sunday afternoon and some block periods of up to 3 nights during school holidays.
The orders also provided for B to attend upon a psychologist and, if the psychologist recommended the child not spend overnight with her father, the parents were required to follow that recommendation. The mother took the child to a psychologist who recommended no overnight time occur and, accordingly, B had no overnight with her father.
At the time these proceedings commenced in July 2018, B had not spent any overnight time with her father since 2014 but she had spent six hour blocks with him every second weekend and during school holidays. Although the mother asserted she did all the driving to facilitate that time, I am satisfied on the evidence the father mostly drove to Town E to see B. He said that on the Wednesday afternoons he would take B to a café for afternoon tea or to the park to play. When he had six-hour blocks with her on weekends, he would take her to fishing or to the family farm, or to visit family. He said B often asked when she could sleep at his home and said words to the effect of “I’m scared to ask mum because she will tell me no”.[1]
[1] Affidavit of Mr Solberg filed 13 September 2019 at paragraph 19
Poor drafting of the consent orders meant that the provision for telephone communication between B and her father was included in a stage of the orders which ended in August 2017, after which the mother failed to facilitate the telephone calls.
In January 2016 the mother and the second respondent, Mr Ranwick, commenced a relationship in Town E. They began living together in 2016. A year later in 2017, their daughter D was born. There were tensions in the relationship from early on. Mr Ranwick worked full-time as a tradesman in a business owned and operated by his mother and uncle. He generally worked nights. He was also a part-time member of a community service. For recreation, he played sports at the community centre. The mother and Mr Ranwick’s mother had a poor relationship and each was critical of the other to Mr Ranwick which created a lot of pressure for him.
The mother complained that Mr Ranwick neglected her and the children because, she said, he played sports or went out drinking and socialising with friends whenever he was not working or on call for the community service. For his part, Mr Ranwick alleged that from early in their relationship the mother put increasing pressure on him to minimise his time away from home, whether that was for work or to see his family or friends. He said that, over time, he reduced his contact with others and felt increasingly isolated and conflicted.
In 2017 Mr Ranwick had a disagreement with another member of staff at his place of employment and was moved onto day shifts. His mother said during her evidence that this was designed to reduce pressure on him and make him more available to spend time with his family (comprising the mother and children) but he perceived the move as him being blamed for the disagreement with the other employee. In 2017 Mr Ranwick unsuccessfully attempted suicide by hanging. He left a note for the mother and drove some distance away so that none of his colleagues from the local community service would find him. Mr Ranwick temporarily lost consciousness but survived the hanging and did not reattempt it. He was admitted to hospital for six days and then released into a community mental health program. He was released from that program after several months.
After the suicide attempt, Mr Ranwick stopped working and, in about 2017, began working for Employer K. He returned to work at his previous employment two years later, in 2019 and gradually withdrew from working at Employer K.
In September or October 2017, the mother and Mr Ranwick travelled to City J and City L for a two-week break. They had previously discussed moving to City J and Mr Ranwick had applied for a job as a public servant. Although he made it through to the last round of interviews, he was ultimately unsuccessful and the parties did not move.
The mother and Mr Ranwick separated on 10 June 2018. The mother said that, earlier in the day, she woke up from an afternoon nap and D was not in her cot. She said Mr Ranwick had previously threatened to take D so she assumed he had. She put B in the car and went looking for D. She saw Mr Ranwick’s car at the community centre and found D with Mr Ranwick while he was exercising in the gym. The mother said D was crying and had a skinned and bleeding nose. The father denied that. The mother took D home. She said Mr Ranwick then came home for a short time before leaving again to go and play sports. She alleged that, as he left, he closed the front door on D’s head. Although the mother did not see the incident, she concluded Mr Ranwick had hurt D either intentionally or recklessly. She said B saw what happened and cried out and, when the mother got to D, she was screaming and had a mark on her head. The mother said Mr Ranwick did not comfort D and simply left.[2]
[2] Affidavit of the mother filed 3 September 2019 at paragraph 91
Mr Ranwick agreed that, after the mother took D, he went home for a short period before going out again. He said that, as he was leaving, D crawled into the doorway without him noticing and he accidentally bumped her head with the screen door. He denied D was injured.
When Mr Ranwick returned home after sports, the couple had a major argument.
Mr Ranwick said a friend of his had, that day, sent him screenshots of messages sent to her by the mother making allegations about him being lazy, disinterested in the children and abusive. He said the messages also contained screenshots of his mother’s Will, which, he assumed, Ms Markwell had obtained by somehow accessing his mother’s email account. He said he confronted the mother about those matters when he came home and the mother reacted aggressively by yelling “Get out! Get out!” He said he agreed to leave and told the mother he would return the following day after work to collect his belongings.
Mr Ranwick returned the following day and found his belongings on the front veranda in five garbage bags. He said he did not have a key to the door and the mother failed to respond to his phone calls and text messages. He said it was obvious that the mother and children had gone.
The mother said Mr Ranwick was aggressive during the argument. She said he told her that her life was ruined, that everyone in Town E and Town F was against her and that she would lose her girls. She said Mr Ranwick only left after she threatened to call the police. She said she felt afraid of what else he would do.
The next day, 11 June 2018, the mother moved with both children to City J, approximately 700 kilometres from both Town E and Town F where the children’s fathers live. On her first day in City J, the mother attended the police station, told the police about the argument with Mr Ranwick and apparently provided a copy of a recording she said she made during the argument. She said she also showed the police D’s “head injury”.[3] The recording purportedly made by the mother did not come into evidence in these proceedings. The mother said that, on the advice of police, she obtained medical attention for D and applied for a family violence order.
[3] Mother’s affidavit filed 3 September 2019 at paragraph 94
The mother did not immediately tell Mr Solberg or Mr Ranwick that she had moved. On 12 June 2018 she sent a text message to Mr Solberg advising that she and the children were unwell and asking Mr Solberg to postpone his visit with B for a fortnight. The message implied she and the children were still in Town E.
On 16 June 2018 the mother sent another email to Mr Solberg, advising him that she and the children had left Town E but did not say where they were living. She gave him vague and slightly dramatic reasons for moving:
… I am not prepared to go into explicit details presently however I have every intention of detailing to you throughout the week a recent family crisis (I offer for your peace of mind, not directly affecting B). For now, I need you to know we are no longer in Town E, however we are safe.[4]
[4] Ibid at Annexure M, page 131
The mother facilitated a phone call between B and her father on 17 June 2018. Mr Solberg said B told him that she missed him and asked when she would see him again.
On 21 June 2018 the mother emailed Mr Solberg again to explain why she moved. That email included the following:
Following some threats made by Mr Ranwick and an overwhelming, genuine feeling for our un-safety, I came down to City J to stay with some close family friends who have provided safety, security and support to the girls and I over the years. This was the only place I genuinely, truly felt safe. It is also a very familiar environment to B, having visited and stayed here several times throughout the years, and as you are aware, Victoria is my home state.
… … …
It was of utmost importance to me to ensure stability and normality to continue for B. I was extremely proactive in the measures I took to secure stability and normality for B. By the end of last week, I had met with and enrolled her in a new school, which she commenced Monday and is loving it. I sought legal advice prior to doing this and I was advised that I was within my rights to enrol her in the new school. B has settled in well and has made nice connections with her peers and teachers. We have engaged with our local Parish for support.[5]
[5] Mother’s affidavit filed 3 September 2019 at Annexure M, page 132
Despite B not having spent overnight time with her father since 2014, the mother offered for Mr Solberg to have B for any long weekend and half of all school holidays, commencing immediately, plus extra time if Mr Solberg was in City J. She proposed two FaceTime calls every week and offered to forego all child support claims.
B spent five nights with her father during the school holidays in July 2018. The father said B appeared happy and comfortable during that time. She spoke to her mother every night. He said she became upset after speaking with her mother on the first evening but settled shortly after the call.
Mr Solberg travelled to City J to spend time with B on Father’s Day in early September 2018 and again in 2018 for B’s birthday. B spent a week with her father in the September/October school holidays and, for reasons I will come to, lived with him from 23 January 2019 until early March 2019.
Despite the mother offering and facilitating more time between B and her father than B had ever previously enjoyed, in the current proceedings the mother said that she continued to have concerns about B in her father’s care and said she believed Mr Solberg had sexually abused B in the past . There is a clear inconsistency in the mother’s attitude to Mr Solberg that suggests she was either exaggerating her concerns or was prepared to override them in order to win his support in her dispute with Mr Ranwick. I will return to her allegations about Mr Solberg in due course.
On 25 June 2018 the mother obtained an interim family violence order against Mr Ranwick in the Magistrates Court at City J. On 10 October 2018 a final family violence order was made by consent without admissions for 12 months. The order prohibited Mr Ranwick from committing family violence, damaging property, attempting to locate the mother, keeping the mother under surveillance, publishing material about the mother, communicating with her or approaching her or any place where she lives or works. The restraints were qualified in that Mr Ranwick was permitted to do anything authorised by a family law order. He could also communicate with the mother through a lawyer or mediator and participate in counselling or mediation, provided he did not engage in family violence while doing so.
Family law proceedings
On 26 June 2018 Mr Solberg commenced proceedings seeking the return of B to the Town E/Town F district.
On 30 July 2018 Mr Ranwick commenced proceedings seeking the return of D to Town E.
The two applications were listed together on 1 August 2018. The mother appeared, unrepresented, by telephone. She had filed an affidavit on 26 July 2018 in the proceedings involving Mr Solberg but had not filed any material in the proceedings initiated by Mr Ranwick. By consent, interim orders were made which provided for both children to spend time with their respective fathers for two blocks of three days commencing 2 August 2018 and 16 August 2018. An independent children’s lawyer was appointed. Filing directions were made and the proceedings were adjourned to 5 September 2018 for interim hearing.
The interim hearings
On 5 September 2018 all parties were legally represented. By consent the two sets of proceedings were consolidated. The mother had still not filed any material in relation to Mr Ranwick’s application but said she had tried to file an affidavit online that morning. She was permitted to tender it and rely on it. At the end of the interim hearing, the mother was ordered to return the residence of the children to the Town E district by 8 October 2018. The Town E district was defined to be any place within 100 km of Town E, provided it was between Town E and the Canberra/Town F district.
The mother did not return to Town E by 8 October 2018. On 30 October 2018 Mr Ranwick filed a contravention application and an application for a recovery order in relation to D. On 31 October 2018 Mr Solberg filed an application for a recovery order in relation to B. All three applications were listed on 7 November 2018 when the matter was next in Court in any event for directions.
The mother filed an application in a case and supporting affidavit on 1 November 2018 in which she sought a discharge of the orders of 5 September 2018. In her affidavit she set out a range of obstacles to her returning to Town E and the benefits she saw of her remaining in City J. She said she was unable to comply with the orders of 5 September 2018 because she could not afford to transport her belongings back to Town E or obtain accommodation in Town E. Then she said she owed a debt to a real estate agent because of damage caused by Mr Ranwick to her previous rental property and proceedings had been taken against her in the New South Wales Civil and Administrative Tribunal (NCAT). She said she had agreed to a repayment plan requiring her to pay off the debt at a rate of $30 a week.
The mother gave details of 22 rental properties she said she had unsuccessfully applied for in the Town E region. She deposed to a conversation with one particular real estate agent who said that, in light of the debt associated with the previous rental property, she was effectively “black-listed”. The mother said she had also applied for public housing and crisis accommodation to no avail.
The mother also deposed to having an outstanding electricity bill for her house in Town E which she said she was unable to pay without the assistance of Mr Ranwick. She deposed to having been advised by Origin energy that she would be unable to have electricity connected to any home in the district until that debt was paid. She said she was up-to-date in the payment of her rent and all utility bills in City J.
The mother deposed to having obtained employment as a professional with a firm in City J. She said she was earning about $1,000 a week and had the flexibility to work from home and to finish early to accommodate her parenting duties. She deposed to being ineligible for Centrelink benefits if she were to leave that employment voluntarily. She said she had been applying for jobs in the Town E district without success.
The mother also deposed to D suffering a perforated eardrum. She said she was advised that D needed to have a medical procedure, pending which D should not travel. She also made a number of complaints about Mr Ranwick’s capacity to safely and adequately care for D.
On 5 November 2018 the mother filed a further affidavit in support of her application in a case and in response to the contravention application. She deposed to having a range of medical conditions for which she had support in City J but not in Town E.
On 7 November 2018 the mother’s solicitors were granted leave to withdraw and the mother represented herself. She complained about inadequate representation by her previous lawyers. The mother was given an opportunity to re-argue her case and did so well. She is very articulate and was a strong advocate in her own case. At the end of the interim hearing the original orders were confirmed but the date by which the mother was required to return the children to the Town E district was extended to 8 January 2019. The proceedings were adjourned to 15 November 2018 by which time the Court expected the parties to have investigated the options for a private family report and for solutions to the various practical problems raised by the mother, including her relocation costs, accommodation for her and the children in Town E and financial support for her and the children in the event the mother was not immediately eligible for Centrelink benefits.
On 15 November 2018 the mother was again unrepresented. Various options for accommodation were explored. Ultimately, Mr Ranwick’s mother, Ms M, who accompanied him to Court, agreed to rent a home in Town E in her own name and sublet it to the mother for $100 a week, representing a fraction of the actual costs. The mother was ordered to select a property by 10 December 2018 from a list of rental properties provided to her by Mr Ranwick. Mr Ranwick was ordered to ensure that electricity and any other essential services were connected to the house prior to the mother’s relocation. Mr Solberg was to facilitate the transport of the mother’s belongings from City J to Town E at an expected cost of approximately $1,800 with each of the fathers to contribute $500 and the mother to contribute $800. Mr Solberg indicated a preparedness to pay $100 a week to the mother by way of maintenance for the first four weeks after the cessation of her employment in City J if she did not obtain Centrelink benefits. Orders to give effect to these arrangements were made that day. The order requiring the mother to return the children to the Town E district by 8 January 2019 was confirmed. The parties were given liberty to relist on short notice. Further interim orders were made by consent for each of the children to spend time with their respective fathers. The matter was listed for final hearing for four days on a date to be advised and trial directions were made. A Court funded family report was ordered.
The mother did not appeal the orders of 7 November 2018 or 15 November 2018.
In early December 2018 Mr Solberg and Mr Ranwick travelled together to and from Victoria and hired accommodation together to spend time with their children. The mother saw this as the two men having formed an alliance against her.
Mr Solberg and Mr Ranwick did everything required of them to facilitate the return of the mother and children to the Town E district. The mother was given a reasonable choice of rental accommodation and arrangements were made for the transport of her belongings. Despite this, the mother did not return with the children by 8 January 2019.
The mother said she rejected the accommodation options available to her in Town E on the advice of police because it would mean she was living in a house chosen by Mr Ranwick and rented to her by a member of his family. She said there were concerns that such an arrangement would be inconsistent with the family violence order in place at the time.[6] She was challenged that the arrangement was not in any sense inconsistent with the family violence order. The mother then said “I didn’t feel comfortable living in a house rented to me by Mr Ranwick’s mother.”[7]
[6] Transcript 8 October 2019 at page 94
[7] Ibid
On 7 January 2019 Mr Ranwick’s solicitors wrote to the Court asking for the matter to be relisted because the mother had indicated she would not be returning to Town E with the children. The mother was copied into the correspondence. She emailed the Court later that day and advised that new information had arisen, including that D had returned from her last visit with Mr Ranwick with significant injuries. She asserted that a doctor who examined D had formed the view that the injuries were non-accidental and had made a mandatory report to the Victorian Department of Health and Human Services (DHHS). She said the doctor recommended the mother contact the police. She said the police and DHHS were investigating the allegations.
The matter was relisted on Friday, 18 January 2019. The notification from the Court on 7 January 2019 advised the parties that the mother was permitted to file any further material on which she sought to rely by 11 January 2019, including evidence of the doctor who examined D and any other evidence related to the allegations of risk. The other parties were permitted to file any further material by 17 January 2019.
The mother filed an affidavit on 11 January 2019 in which she made a number of allegations about risks to D in the care of her father. First, she alleged Mr Ranwick demonstrated a lack of concern about D’s health by failing to respond to the mother’s text messages to him in late November/early December 2018 informing him D was sick and had been admitted to hospital. Mr Ranwick said he had not received the messages because he blocked her number after sent him 49 text messages in a row. The mother denied she did this.
The next allegation by the mother was that Mr Ranwick had breached the family violence order by publishing some of their communications. She said that on 8 December 2018, while D was still with Mr Ranwick, she sent him a text message enquiring about D’s health, given her recent illness. In the text message she accused Mr Ranwick of failing to acknowledge the recommendations of the hospital made for D’s benefit. Mr Ranwick answered some of the mother’s queries and added “Furthermore Ms Markwell it’s for your controlling benefit”. The mother then received another text message from Mr Ranwick which contained a screenshot of their text message exchange and the words “I also sent her one more msg. Would love to keep going.” The mother said it was clear Mr Ranwick had intended to send a copy of their text message exchange to a third party, along with his comment about it, but had inadvertently sent it to her. She said she interpreted the words “Would love to keep going” as a reference to him wanting to continue to torture her psychologically as she asserted he had done in the past. She said she regarded the father’s actions in attempting to send a copy of their messages to a third party as a breach of the family violence order which prohibited him doing anything to psychologically abuse her or to electronically publish any material about her. She made a report to the police about the incident and said the police were investigating it.
Mr Ranwick said he had meant to send the message to his mother with whom he lives and who is one of his main supports. His Counsel submitted the message should be interpreted as meaning the father had more to say to the mother but resisted the urge. I agree this is more plausible than the mother’s interpretation. The message indicates some degree of self-control on the part of Mr Ranwick rather than anything sinister.
The third risk to D alleged by the mother was exposure to Mr Ranwick’s behaviour towards the mother which, she said, was threatening and intimidating. She alleged that on 9 December 2018, during handover of D, Mr Ranwick threw D’s bags at the mother’s feet, laughed menacingly in her face and said to her “You’re fucked”, causing her to be fearful. She said she also observed an unknown man staring at her from a vehicle she had not seen before. Two friends who accompanied the mother to handover to observe from a distance told her they saw Mr Ranwick speaking to the man in the vehicle. The mother concluded Mr Ranwick had her under surveillance, contrary to the terms of the family violence order. She made a report to police about that. She said the police were investigating the incident in addition to the one she alleged occurred the previous day.
Mr Ranwick denied throwing D’s bags down or making any threat or disparaging comment to the mother. He said a stranger in another vehicle made a passing comment to him, which he assumes was the same man referred to by the mother. At Court on 18 January 2019 the mother seemed to accept Mr Ranwick’s explanation about the stranger in the vehicle.
Next, the mother alleged that D had a cut on her finger when she returned from visiting her father on 9 December 2018. The mother said B told her D had cut it on a grater when Mr Ranwick was outside drinking with Mr Solberg. Mr Ranwick denied that. He said B scratched her finger on the screen door. He denied ever leaving the child unsupervised.
Next, the mother alleged that her older daughter, B, was at risk of psychological harm from Mr Ranwick. She said that, during her relationship with Mr Ranwick, B had been subjected to direct verbal abuse by Mr Ranwick and had been exposed to his violence towards the mother and D. She said B did not want to see Mr Ranwick but, because the fathers travelled together to City J and stayed in the same accommodation, B was brought into contact with Mr Ranwick which was traumatic for her. Both Mr Ranwick and Mr Solberg denied any difficulty in the relationship between B and Mr Ranwick.
Most significantly, in her affidavit filed on 11 January 2019, the mother alleged that, when D returned from a visit with her father on 30 December 2018, she was withdrawn, covered in a rash and had bruising to her back and abdomen. The mother said she took D to Town N Hospital on the way home. She said D was seen by a Dr O who concluded the bruising was likely non-accidental and made a report to child protection. Later that day, 30 December 2018, the mother attended City J police station and reported D’s injuries. She said she was told the matter would be investigated by the Sexual Offences and Child Abuse Investigation Team (SOCIT).
The following day, 31 December 2018, the mother took D to her GP in City J, Dr P. She said Dr P agreed D’s bruises were likely non-accidental and appeared consistent with excessive restraint or shaking. She said he too made a mandatory report to the Department of Health and Human Services (DHHS).
The mother attached to her affidavit of 11 January 2019 a series of photographs of D, purportedly showing her injuries. The photographs are black-and-white and are of poor quality. Coloured copies of the photographs were made available in Court on 11 January 2019 but were not much better quality. A small bruise over the child’s right hip was clearly visible and a faint bruise appeared to be present on the top half of the child’s right thigh. I was unable to detect from the photographs the marks said to be on the child’s face and back. The mother initially said the child appeared to have a rash on her face. At paragraph 34 of her affidavit she said Dr P commented that the marks on her face appear to be slap marks.
No independent evidence from Dr P was presented by the mother in the interim hearing on 18 January 2019. She said Dr P told her his notes would have to be subpoenaed. The mother annexed to her affidavit of 11 January 2019 a copy of the notes made by Dr O at Town N Hospital. They are handwritten and contain some shorthand that was not able to be interpreted by any of the parties or their legal representatives. The notes that were clear indicated the mother reported to Dr O that D had been with her father for five nights and, at handover that day, was withdrawn, had a generalised rash and a small bruise on her right lower abdomen. Upon examination it was noted the child was an “active, happy baby”. The child was afebrile and all observations were within the normal limits. Some small bruises were noted, as were grazes to the child’s right knee. The summary at the end of the page seems to indicate that, apart from the rash reported by the mother and the child’s initial withdrawn behaviour at changeover, D had some small bruises from an unknown cause and was otherwise well. It appears that Dr O noted that the history (given by the mother) would warrant further investigation and that a report to DHHS was made.
There was no material available from DHHS at Court on 18 January 2019. On that day the mother was unrepresented. Both fathers were legally represented and the independent children’s lawyer appeared. The mother sought a discharge of the orders requiring her to return the children to the Town E district. She said she did not feel safe in Town E as it is a small town and she was likely to encounter Mr Ranwick and his family. She also reiterated previous submissions about having employment in City J and not in Town E. The legal representatives for each of the fathers pressed the issue of a recovery order for each of the children.
B was due to spend time with her father from 23 January 2019 in accordance with previous orders. I ordered that B would remain living with her father from 23 January 2019 until such time as the mother relocated in accordance with the orders of 15 November 2018. I made a recovery order in relation to B but ordered that it remain on the Court file, to be executed in the event B was not made available to spend time with her father on 23 January 2019.
Given the nature of the allegations in relation to D, I was not prepared to issue a recovery order for her until further information was available from DHHS and Dr P. I issued an order pursuant to section 69ZW of the Family Law Act1975 requiring DHHS to produce relevant documents. The Independent Children’s Lawyer agreed to make contact with Dr P to try to obtain evidence from him voluntarily and, otherwise, to issue a subpoena.
The previous orders for D to spend time with her father were suspended until further order. The proceedings were adjourned to 1 March 2019. I noted on the orders that it was likely D’s time with her father would be reinstated on 1 March 2019 unless further evidence weighed in favour of a finding of an unacceptable risk in her father’s care.
The mother made B available to her father on 23 January 2019. Two days later, she wrote to the father asking him to return B to her care voluntarily, notwithstanding the orders of 18 January 2019. She told him in the letter that she intended to appeal the orders. She stated, “If I am unsuccessful on appeal, I will pack my bags and move back to NSW with the girls”.[8] Mr Solberg refused to return B. The mother did not appeal the interim orders, nor did she return to the area by the time B was due to return to her care.
[8] Affidavit of Mr Solberg filed 13 September 2019 at Annexure H, page 63
Mr Solberg enrolled B at Q School in Town F because he had no indication of whether or when the mother would return to the district. B commenced school at Q School at the beginning of Term 1 in 2019.
On 7 February 2019 the mother wrote to each of the other parties to advise she had resigned from her job and was returning to Town E that day. She said she had obtained short-term accommodation and had a plan for longer-term accommodation in Town E. She said she had organised enrolment for B at Town E Public School. This was a different school to the one B previously attended.
Mr Solberg said he was not prepared to simply accept the word of the mother that she was now living in Town E, given she had not requested any assistance to move her belongings and had previously claimed she could not live there. Through his solicitors, Mr Solberg sought some proof the mother had actually moved before further disrupting B’s schooling. His solicitors received no response to that request.
On 9 February 2019 B had a FaceTime conversation with her mother. Mr Solberg said he heard the mother telling B she was living in a motel in Town F while waiting to move into a house in Town F. He said that, when B asked about their animals, the mother said they were still “at home” in City J with people housesitting them. The following day the mother told B that she was in a house in Town F.
On 12 February 2019 the mother sent an email to the father’s solicitors advising that she had obtained emergency accommodation in Town R, a small town approximately halfway between Town E and Town F.
When the matter came before me on 1 March 2019, I was satisfied the mother had moved to Town R. I made interim orders for the mother and Mr Solberg to have equal shared parental responsibility for B and for the mother and Mr Ranwick to have equal shared parental responsibility for D. B was to return to living with her mother on 4 March 2019 and to spend time with her father every second weekend from after school on Thursday to the commencement of school on Monday, half of all school holidays and on special occasions. B was to finish term one in Town F and attend the Town R State School from the beginning of term two unless otherwise agreed.
The mother failed to produce any compelling evidence of a risk to D in the care of her father. Orders were made for D to spend time with Mr Ranwick each week from Tuesday morning to Wednesday afternoon and every second weekend from Friday afternoon to Sunday afternoon. Specific orders were made for special occasions such as Father’s Day and the Christmas period.
The children’s current arrangements remain as ordered on 1 March 2019 except that the mother and Mr Ranwick subsequently agreed to change the Tuesday overnight to Wednesday overnight.
On 4 March 2019 Mr Solberg made an offer for the mother to live with the children in his house in Town F and he would move elsewhere. The mother rejected the offer. She made a point in her oral evidence of saying the offer was on the basis she pay $300 a week in rent.[9]
[9] Transcript 8 October 2019 at page 30
On 15 March 2019 the mother’s car was repossessed and towed away immediately following a handover of D from her mother to Mr Ranwick. The vehicle had been transferred from Mr Ranwick’s name to the mother’s name in January 2018 but Mr Ranwick had continued to meet the loan repayments. The mother said she was not permitted to get her handbag, laptop or other personal items out of the vehicle before it was towed away. In documents produced under subpoena, the mercantile agent asserted the mother was given multiple opportunities to remove her belongings but refused to hand over the key to allow the vehicle to be accessed. The mother said she was ultimately able to retrieve her belongings two weeks after the repossession. The repossession put the mother in a very difficult position because she had no transport for the children and had to rely on lifts or borrowing cars from other people. Mr Ranwick’s father who lives in Town S came to Town R and drove B to school in Town F each day for about three weeks until the end of term when B changed schools.
The mother said she believed Mr Ranwick orchestrated the repossession of the car. She said she saw the car in a local storage yard and had discovered that Mr Ranwick was continuing to make repayments on it. During cross-examination the mother was challenged about that statement. She said she understood at the time that “it was a possibility” that Mr Ranwick was continuing to make the payments. Evidence produced in these proceedings indicated that Mr Ranwick was not making payments on the vehicle and the reason the car remained in the storage yard was because of a complaint made by the mother to the Australian Financial Complaints Authority which resulted in all enforcement action being suspended until the complaint was resolved.
Mr Ranwick had been making car payments of $675 a month during the relationship and after separation. It seems the parties may have agreed for a short period that this would be in lieu of child support for D. However, at some point, the mother applied for an administrative assessment of child support. For a period of, perhaps, two months, the car payments were credited against Mr Ranwick’s liability but, from November 2018, he was required to pay child support in addition to the car payments. Mr Ranwick said he could not afford to make these payments and advised the finance company of that fact when they contacted him about his failure to pay. He was told the car would be repossessed. He did not know the mother’s address in Town R but advised the finance company of the location, dates and times D was due to come to him. It was at one of those handovers that the repossession occurred. The mother then stopped making D available to spend time with Mr Ranwick.
Mr Ranwick filed a contravention application on 5 April 2019 which was listed on 12 April 2019. It was then adjourned to 5 July 2019 for hearing if time permitted. Other orders were made in the parenting proceedings on 12 April 2019. The handover point for the children was changed to occur in Town R because of the mother’s lack of transport. An order was made for both the mother and Mr Ranwick to undertake a psychiatric assessment by an expert agreed between them and the independent children’s lawyer.
On 31 May 2019, the mother filed an application in a case seeking lump-sum and periodic de facto spouse maintenance from Mr Ranwick. That application was also listed on 5 July 2019. Mr Ranwick was ordered to file responding material. Mr Solberg and the independent children’s lawyer were excused from attending.
On 5 July 2019 interim orders were made for Mr Ranwick to pay interim periodic de facto spouse maintenance to the mother in the sum of $200 a week. The application for lump-sum spouse maintenance was dismissed on the basis of Mr Ranwick’s lack of capacity to pay.
On 23 July 2019 the mother bought a car, having borrowed $10,000 from her friends, Ms T and Mr U. She said she repaid $1,800 to them from her tax return and was paying off the rest, including interest, at a rate of $117 a week.
On 30 July 2019 the mother’s solicitors received an email from Mr Ranwick advising that he expected the changeover location to revert to the previous location given the mother now had a car.
The contravention applications filed by Mr Ranwick on 30 October 2018 and 5 April 2019 remain outstanding.
The trial
The trial was heard over five days between 8 and 15 October 2019. For the purpose of the trial the mother was treated as the applicant as the major issue in the proceedings involved her application to relocate to City J. The mother gave oral evidence and was extensively cross-examined. Her friends, Mr V and Ms T, gave evidence for her and were cross-examined.
Mr Solberg gave evidence as did his partner, Ms W, and his mother Ms X. Each was cross-examined. Mr Ranwick and his mother, Ms M gave evidence and were cross-examined. Dr H, forensic psychiatrist, had prepared a report in relation to the mother and Mr Ranwick. He was cross-examined extensively by telephone on 10 October 2019. Ms Y, clinical psychologist, prepared a family report. She was interposed during the evidence of Mr Ranwick on 11 October 2019 and was cross-examined by all parties. I will return to each of these witnesses shortly.
Counsel for each party made oral submissions on the last day of the trial, 15 October 2019. Because time was short, each party was given the opportunity to make further written submissions. The proceedings were then adjourned for judgment on a date to be advised. The mother filed further written submissions on 22 October 2019 but none of the other parties did.
The re-opened proceedings
On 28 November 2019 the mother filed a contravention application alleging Mr Ranwick had failed to make payments of de facto spouse maintenance. The matter was listed on 29 November 2019 for mention. On that day, the mother conceded that the issue of spouse maintenance had not been pursued during the trial. She also agreed that, during submissions, her counsel had stated that, although the mother had a need for spouse maintenance, it was conceded there was no capacity on the part of Mr Ranwick to pay. The spouse maintenance application should have been dismissed that day but was not.
On 29 November 2019 the mother said that she, nonetheless, understood that the interim spouse maintenance order continued until it was formally discharged. I discharged the order with effect from 15 October 2019 and ordered that no arrears beyond that date were payable. The contravention application was summarily dismissed on the basis that it had no prospects of success in the circumstances.
Counsel for Mr Ranwick then made an oral application to re-open the proceedings in order to give evidence that the mother had obtained a new interim family violence order in the Victorian Magistrates Court. Counsel made an oral application for a declaration that, in accordance with s.68Q of the Family Law Act, to the extent of any inconsistency between the family law orders and the family violence order, the family law orders prevailed.
The mother said she had applied for an extension of her family violence order to give her some peace of mind given she was living back in the same district as Mr Ranwick.[10] She said she was unable to attend the family violence order proceedings in Victoria on the first return date, 20 November 2019, because she was no longer receiving spouse maintenance. She said that, as neither party attended, the proceedings were adjourned to February 2020 and the interim order remained in place.
[10] Transcript 29 November 2019 at page 8.20
Counsel for Mr Ranwick said both children were named on the order as people in need of protection from Mr Ranwick. However, the interim family violence order contained a clause that exempted from the restraints any action authorised by a family law order. This meant Mr Ranwick would not be in breach of the family violence order if he were acting in accordance with the family law orders, such as by spending time with D.
The mother said that she had not sought to have the children named on the family violence order. She said she would apply to vary the order to remove the names of the children from it. The relevant part of the transcript is as follows:
MS MARKWELL: …So these orders were made in the absence of Mr Ranwick and myself, your Honour. I certainly never sought for the children to be included on the intervention order and it surprised me just as much when I saw that the girls were listed.
HER HONOUR: Why don’t you just take them off then? Then that will solve it. Why don’t you take them off?
MS MARKWELL: So do I contact the City J Magistrates Court and do that?
HER HONOUR: Yes. Make an application to vary it to remove the name of the children.
MS MARKWELL: I’m happy to do that. Yes. Thank you, your Honour. [11]
[11]Transcript 29 November 2019 at page 8
On that basis, I refused the application by Mr Ranwick to re-open the proceedings. The matter remained listed for judgment on a date to be advised.
On 11 March 2020 Mr Ranwick filed an application a case seeking to re-open the proceedings, supported by an affidavit filed on the same date. In his affidavit Mr Ranwick deposed to a number of incidents that had occurred since the end of the proceedings and which could have a bearing on the final outcome. In summary they were as follows:
a)Despite the mother’s clear indication to the Court on 29 November 2019 that she would have the names of the children removed from the family violence order, she had not done so and a final family violence order naming the children was made on 6 February 2020. Mr Ranwick said he did not participate in those proceedings because he could not afford to travel to Victoria.
b)Since 29 November 2019 the mother had made two separate complaints to New South Wales Police alleging Mr Ranwick had breached the family violence order by coming into contact with B. As a result of the complaints, Mr Ranwick had been subjected to formal records of interview with police but had not been charged.
c)Since the end of the trial in October 2019, the mother had spent most of the time with the children in City J and had failed to make D available to spend time with her father except for a total of 8 nights. Mr Ranwick said he understood that Mr Solberg had had the same experience, and that B has missed a lot of school due to being in City J with her mother.
d)On 1 March 2020 Mr Ranwick was pulled over by police using lights and sirens in Town E and advised they wanted to speak with him about an allegation of physical abuse of D. The police conducted a brief interview of him on the street, during which he was advised the allegations were that D had said to her mother “Daddy smacks me” after her last contact visit and that she had two scratches and a bruise on her body. Mr Ranwick said the police showed him a photograph but he could not identify any scratching or bruising.
e)Since the end of the trial in October 2019 the mother had made three complaints to SafeWork New South Wales about the working conditions in the in the business run by the Ranwick family in Town E which, he alleged, were malicious, interfered with the running of the business and, in his view, were designed to punish him and his family by causing reputational damage to the business.
Mr Ranwick’s application was listed for mention on 16 April 2020. I indicated that, if the proceedings were re-opened, any hearing could be accommodated the following week on 22 and/or 23 April 2020. On that basis Mr Solberg, through his solicitor, indicated that he did not oppose the re-opening. The mother did not oppose the re-opening. The independent children’s lawyer indicated that he was primarily concerned about any delay to the finalisation of the proceedings. He noted that some of the matters raised in support of the re-opening were similar to matters previously raised in the proceedings. However, given the matter could be accommodated quickly, he did not oppose the re-opening.
The re-opened proceedings were listed for hearing on 22 and 23 April 2020. As this was during the COVID-19 restrictions, an order was made for the hearing to be conducted by way of Microsoft Teams audio-visual link.
By operation of section 102NA(1)(c)(ii) of the Family Law Act 1975, the mother, who was unrepresented, would not be permitted to personally cross-examine Mr Ranwick because of the existence of the final family violence order. On 16 April she was urged to apply urgently for legal representation under the Family Violence and Cross-Examination of Parties Scheme administered by the ACT Legal Aid Commission. I indicated that, as a matter of procedural fairness, in the event the mother was not legally represented, neither she nor any other party would be permitted to cross-examine the other parties. This meant the proceedings would have to proceed only on the basis of the evidence in chief and submissions.
I ordered the transcript of the proceedings of 29 November 2019 and a copy was provided to each of the parties or their legal representatives on 20 April 2020.
On 22 and 23 April 2020 Mr Ranwick and Mr Solberg were legally represented. The mother represented herself but had the assistance of counsel who cross-examined Mr Ranwick on her behalf. Her counsel then observed the remainder of the proceedings and assisted her by making objections to various questions put to her during cross-examination. All three parties were cross-examined. The mother relied on an affidavit of her friend, Ms Z, filed on 21 April 2020. Ms Z was briefly cross examined by Mr Ranwick’s counsel but not by any of the other parties.
Oral submissions were made by or on behalf of each party. The mother made her submissions last and said she had more to say than time permitted. Accordingly, she was given the option of filing further submissions by 28 April 2020 and each other party was permitted to file any submissions in reply by 4 May 2020. Further interim orders were made to deal with the children’s arrangements during school holiday periods pending the final decision. The proceedings were again adjourned for judgment on a date to be advised. No further submissions were filed.
During her evidence the mother said that she had felt under pressure on 29 November 2019 when asked about the removal of the children’s names from the family violence order and had agreed to something she did not really want to do. In my view, there is nothing to suggest the mother was under pressure about that issue on 29 November 2019 apart from her own assertion.
The mother said she and the children went to City J on 27 December 2019 for a holiday. She said it was her intention to return to Town R to facilitate the children’s time with each of their fathers. However, on 10 January 2020 she received a letter from City J Health Services indicating a place had become available at City J hospital on 14 January 2020 for D to have her adenoids removed and grommets inserted. Mr Ranwick agreed that this was a necessary operation and was not critical of the mother for accepting that place. The mother organised alternative transport for B to spend time with her father. D, however, remained in City J for her post-operative appointment on 29 January 2020 and a further appointment on the following week. The mother wrote to Mr Ranwick on 29 January 2020 and proposed D spend make-up time with him in February 2020. That time went ahead. Otherwise the mother and children remained in City J for the whole of January and almost half of February 2020.
The mother was sitting an exam in City J on 11 February 2020. She offered Mr Solberg some extra time with B. She said Mr Solberg declined this offer. However, she conceded that, to have that time, Mr Solberg would have to have driven from Canberra to City J to collect B. Mr Solberg said he organises various medical appointments he needs for a long-standing back injury when B is not in his care and he was unable to travel to collect B because of those appointments and because of the discomfort he suffers travelling long distances.
The mother and children returned to Town R a few days after the mother’s exam in mid-February 2020. By then, B had missed the first two weeks of the school year.
The mother went back to City J with the children on 26 March 2020. She said this was because, by mid-March 2020, food and other essential supplies had become scarce in Town R and other towns in the district as a result of the COVID-19 pandemic. She said she drove to Town AA and attempted to buy several cans of soup but was told she could only buy two. She said the children were “starving hungry” and B became very distressed about not having the food she liked and not having any toilet paper. The mother said she panicked and fled to City J where she knew she had support and ready access to essential supplies. She said she did not ask either of the children’s fathers for assistance before leaving. She said Mr Solberg had unhelpfully offered to post her some toilet paper after speaking with B. She said she intended to remain in City J until the judgment in these proceedings was delivered or the COVID-19 pandemic restrictions ended.
Under cross examination the mother conceded that, at the time she left Town R in March 2020, she had various home cooked meals in the freezer so neither she nor the children would have gone hungry. She said, however, that they lacked fresh food such as milk, bread, fruit and other essentials. I am not critical of the mother for seeking support and reassurance from her friends in City J in the early days of the pandemic as this was a time of great uncertainty and anxiety for many people. However, she should not have remained there after the supply of essential products had improved, especially when there were orders for both children to spend regular time with their fathers.
The mother argued that she and the children were better off in City J while schools were closed because she could home school B using the online teaching resources provided by B’s school. She said that, in their house in Town R, B had nowhere to do schoolwork as there was only a narrow bench and no dining room table and the internet quality was inadequate to support her online learning. She agreed in cross-examination that she could have approached the people from whom she rented the house in Town R to ask for the internet to be upgraded or for help with groceries as they had been very helpful to her in the past, including often accompanying her to handover of D. The mother said she did not want to burden them by asking for even more help as they had already done so much for her.
In her evidence, the mother again raised an issue of D being abused by her father. She said that, when she provided D to her father on 19 February 2020 and 26 February 2020, D was reluctant to go and became upset and clingy. She said that D was morose when she returned home on 27 February 2020. Later that day, when the mother put D in the bath she noticed “a significant mark on her bottom”. She rang her friend, Ms Z, who is a professional who lives in Queensland. The mother said Ms Z asked her to send a photo of the mark and then told the mother to take D to a doctor. The mother took her to the Town BB-Town R District Hospital. She said a doctor was called in to examine D. The mother said the doctor diagnosed D as a “victim of physical abuse” and said that it was his medical opinion that D had been hit. The mother said the doctor said the marks were linear in nature, indicating they had been caused by a hand.[12]
[12] Mother’s Affidavit filed 21 April 2020 at paragraph 77
The mother said the doctor made a mandatory report to the NSW child protection agency then told her that both he and the caseworker advised her to not send D to her father. She said she told the doctor that this would be used against her in family law proceedings and the doctor was incredulous that anyone would expect her to send a child into a situation of risk. She said the doctor told her she had a duty to keep her child safe and advised her to make a report to police.
The way the mother reported this incident was typical of the way she reported various other allegations of abuse. She avoided responsibility for alleging child abuse herself by saying that independent, professional people had diagnosed the abuse.
A copy of the hospital notes was annexed to the mother’s affidavit. Although the mother asserted the doctor reached a conclusion of child abuse independently, it is clear from the notes that the mother told hospital staff on arrival that she suspected D had been abused by her father. The notes of the attendance at the hospital read as follows:
Summary of Care
Patient was BIB [brought in by] mum this evening on account of suspected child abuse by the father
– few bruise marks were noticed on the left buttock this evening with associated pain/discomfort
– the child often visits the father unsupervised between 10am on Wednesday to 4pm on Thursday and every second weekend visit from 4pm on Friday – 4pm on Saturday.
– the child recently demonstrated to the mother and the elder sister about how the father beats her with a wooden spoon
– she has been very uncomfortable going to the father’s house in the last few visits and she is often withdrawn when picked up from the place
o/e [On examination]: conscious, not in any obvious distress, active child, a febrile, and anicteric acyanosed , not dehydrated,
Buttock: few hyperemic, linear marks on the left buttock
Extremities: few bruises on the left leg
Principal and Other Diagnosis
Victim of physical abuse (Discharge).…
Plan:
Mandatory report to the department of health services/child protection services NSWConservative management for the bruise
Patient will be safe if she is kept away from the likely source of abuse to prevent further complications: Psychological/mental health and physical. [13][13] Mother’s affidavit filed 21 April 2020 at annexure K
It is entirely predictable that the doctor would conclude that the child had been abused, given the report made by the mother on arrival at the hospital. The mother said during her oral evidence that, about five days before this incident, D had told her and B that her father hit her. She said they were cooking at the time and D took a wooden spoon out of the drawer and demonstrated by repeatedly hitting herself with the spoon.
Mr Ranwick emphatically denied ever hitting D.
I found the mother’s evidence about this utterly implausible. If D had reported to her that her father had beaten her with a wooden spoon and had demonstrated how it occurred, it beggars belief that the mother would hand her over again for another contact visit, which she did. She had withheld D previously for lesser concerns such as two small, unexplained bruises on her back and abdomen on 30 December 2018. I reject the mother’s evidence that D reported her father had hit her.
The mother said she reported the incident to police on 28 February 2020 but the police decided not to pursue the case on the basis the father had denied assaulting the child. The mother said “I found this very concerning, especially given Mr Ranwick and his family’s connections in a very small town, and in circumstances where Mr Ranwick had told me many times that ‘people as powerful as us can get away with anything’”.[14]I did not find that evidence persuasive.
[14] Mother’s affidavit filed 21 April 2020 at paragraph 84
The mother said Mr Ranwick’s allegations that she had made a series of vexatious complaints to SafeWork NSW about the business was “a complete torture of the facts”.[15]She said that on 7 November 2019 D came home with a very red and swollen finger and complained that it was sore. She said there was no explanation from Mr Ranwick about the injury. She said she took the child to the GP who diagnosed D as having a superficial burn. The mother said she assumed D received the burn in the business because the father takes the child there whenever he has her. She said she believes the child is simply left to roam around the business while her father is working, a claim that was vehemently denied by the father. The mother said the doctor advised her she should make a report to SafeWork NSW as it was not appropriate for a toddler to be in the business.
[15] Ibid paragraph 88
The mother annexed the consultation notes to her affidavit of 21 April 2020 at annexure L. There is nothing in them that suggests the doctor advised the mother to make a complaint to SafeWork NSW. The report reads as follows:
having redness in the L/index finger
came from dad’s place
mother does not know what happens
? burn
superficial
mild swellingkeep eye on it
Actions:
Prescription printed: Mupirocin 2% Ointment twice daily – if really necessary
advise to bring the child if it is getting worseThe notation “? burn” suggests the doctor was not sure whether the mild swelling was the result of a burn.
The mother made a second SafeWork report in early December 2019 after D came home sick on Thursday, 5 December 2019 after spending time with her father. She said Mr Ranwick gave her minimal information and D was subsequently diagnosed with gastroenteritis. She said the doctor sought the mother’s permission to make a report to SafeWork on the basis of the child having gastroenteritis and having been in the business earlier that day. There is no evidence of the mother asking Mr Ranwick whether D had been in the business that day.
The mother agreed that, during the 2014 proceedings against Mr Solberg, she gave evidence in glowing terms about Mr Ranwick and his family which included evidence about how much B enjoyed attending the business. She said in these proceedings that that was different because B was a little older than what D is now and she, the mother, kept a very close eye on B whenever she was at the business whereas she believes that Mr Ranwick and his family do not appropriately supervise D. She gave no basis for her belief about what actually occurs at the business. Mr Ranwick and his mother said D does sometimes attend the business for a few hours in the morning. On those days, she is brought in by her grandmother and goes home with her father at the end of his shift.
The mother made a report to police about a breach of her family violence order after Mr Ranwick had incidental contact with B when the two fathers met briefly at a park following handover of their children in Town R on Boxing Day in 2019. The mother initially conceded she made this complaint to police. She then tried to deflect responsibility by saying she did not make a complaint but merely “an enquiry” about whether this constituted a breach of the family violence order.[16] The mother denied insisting the police charge Mr Ranwick but it is clear on the evidence that she spoke to police on more than one occasion to pursue this. I am satisfied she did so in an attempt to have Mr Ranwick charged with a breach of the order. She said in her evidence on 22 April 2020 that B is frightened of Mr Ranwick and should not be brought into contact with him. Mr Solberg said B is not at all worried about Mr Ranwick. This is consistent with the evidence of the family consultant who observed B in the presence of Mr Ranwick and said B showed no signs of discomfort.
[16] Transcript 22 April 2020 at page 101.
I was not persuaded by any of the mother’s evidence about a risk to D in the care of her father.
At the end of the re-opened proceedings I had formed the view that the mother was continuing to do what she had previously done which was to raise a number of “concerns”, largely without foundation, to try to persuade the Court that something was wrong and that it was best to proceed cautiously about D’s time with her father. The mother’s application for the family violence order, her failure to remove the names of the children from the order despite her clear statement to the Court that she would do so, her allegation that Mr Ranwick had breached the family violence order by coming into contact with B, her report to doctors about a bruise on D’s bottom and swelling on her finger and her allegations about D being unsupervised in the business were all designed to interfere with D’s relationship with her father. None of them was persuasive.
The re-opened hearing on 22 to 24 April 2020 occurred in the last week of the gazetted New South Wales school holiday period. The New South Wales Government had, by then, indicated an intention to implement a staged return of children to school, commencing in the third week of the school term, namely, the week beginning 11 May 2020.
The mother conceded that B had not seen her father since March 2020 and D since 26 February 2020. The mother argued that the health and safety of the children required that she remain in City J because travelling back to Town R would expose them to a risk of contracting COVID-19 and that the children’s health and safety took priority over their need to spend time with their respective fathers.
The mother’s attention was drawn to the media release by the Chief Justice of the Family Court and Chief Judge of the Federal Circuit Court on 26 March 2020. The media release stated that the Courts expected parents to comply with court orders in relation to parenting arrangements during the pandemic. The mother said she was familiar with that statement but that she relied on paragraph 1 of the statement to the effect that parents have primary responsibility for the care of their children and must act in their best interests. She said she was putting the health and safety of her children first by remaining in City J.
Ultimately, I was not persuaded that the children’s best interests were met by them remaining in City J. I ordered the mother return the children’s residence to Town R by Friday 1 May 2020. I made orders for some make up time for each of the children with their respective fathers. By consent, I ordered all parties to comply with the government recommendations in relation to the COVID-19 restrictions. Given the history, I also issued a recovery order in relation to the children in the event the mother failed to return them to Town R by the required date.
The orders of 24 April 2020 required each of B’s parents to facilitate B completing all school work required of her. I ordered that the mother and Mr Ranwick register for the Talking Parents app and use it to communicate with each other in relation to D’s arrangements and welfare and to communicate by text message or telephone in the event of urgency.
Given the mother’s attempts to have Mr Ranwick charged with breach of the family violence order following him coming briefly into contact with B, I made an order explicitly permitting Mr Ranwick and Mr Solberg to bring their own daughter into contact with the other child’s father. The proceedings were, otherwise, further adjourned for judgment on a date to be advised.
On 8 May 2020, the mother appealed the interim orders of 24 April 2020. That appeal has not been heard.
The mother’s allegations against Mr Solberg
The mother’s attitude to Mr Solberg and her evidence about the potential risks he posed to B changed repeatedly in the course of the proceedings.
When the mother and Mr Solberg separated in September 2014 they agreed for B to spend every second weekend and every Wednesday afternoon with him. The mother and B moved into the home of an elderly woman named Ms CC who lived in a nearby street. The mother said she was like a grandmother to B and she encouraged B to refer to her that way. However, she agreed that B had not seen Ms CC since 2016 because the mother had chosen to distance herself from Town F and everyone in it.
After separation from Mr Solberg the mother and B returned to Mr Solberg’s home every day while he was at work. The mother said this was because their dogs and all of B’s toys and other possessions remained at his home. On 13 October 2014 Mr Solberg changed the locks on his home which prevented the mother from going there. Around the same time the mother obtained an interim family violence order against Mr Solberg. She said this was because she felt intimidated by him driving past the home in which she and B were living with B. She was asked why that concerned her given she was voluntarily attending at Mr Solberg home every day in circumstances in which he could come home at any time. She did not give any adequate explanation.
During the 2014 family law proceedings the mother had said that it was not safe for B to spend time in her father’s home because of a dangerous level of mould in the house, the presence of asbestos and a hazardous backyard. She was asked why, in those circumstances, she kept going there after separation. She said it was only because she and B still had things at Mr Solberg’s home. She was asked if she was scared of Mr Solberg at that time. She said she was. She agreed that Mr Solberg knew she was going there every day and could have come home in the middle of the day but never did.
Sometime after her relationship with Mr Solberg ended, the mother alleged he had sexually assaulted her. She applied for victims of crime compensation but this was refused on 14 March 2016. She sought a review of the decision and provided to the tribunal copies of her affidavit filed on 10 March 2015 for the purpose of the family law proceedings and a memorandum prepared by a family consultant following a child dispute conference on 22 May 2015. According to the review decision, in her affidavit the mother had said that Mr Solberg had approached her for sex on four occasions between 23 and 25 September 2014 and had “touched her on the breasts and ‘other private areas’ and continued to do so after she asked him to stop”.[17] The memorandum reports the mother saying that Mr Solberg had been sexually violent towards her in the presence of their daughter.
[17] Paragraph 12 of the decision at Annexure B, page 22 of the affidavit of the mother filed 27 September 2019
The victims of crime compensation review decision is annexed to the mother’s affidavit filed on 27 September 2019. It is clear from that decision that the new information provided by the mother, untested though it was, was sufficient to persuade the senior assessor that, on the balance of probabilities, the mother had been indecently assaulted by Mr Solberg. The gravamen of the decision is contained in paragraphs 14 and 15 of that decision which read as follows:
14. Having considered the available evidence, I am satisfied on the balance of probabilities that the offender indecently assaulted the applicant. My findings are based on the applicant’s sworn disclosure within Family Court proceedings, specifically the memorandum and the affidavit.
15. I am satisfied that the elements required for an "act of violence" established per section 19 of the Act; namely a criminal offence involving violent conduct that cause the applicant to sustain an “injury”. [18]
[18] Ibid
The mother said that, during arguments, she regularly locked herself and the children in a bedroom to protect them from Mr Ranwick. I accept this because B told Ms Y the same thing. Mr Ranwick said he usually went outside to let the mother cool down when arguments started. B told Ms Y that she and her mother were worried about what Mr Ranwick might do but also said he never actually did anything to them but, rather, went outside and spoke on the phone. B’s account is consistent with that of Mr Ranwick. The mother’s actions certainly suggest she was fearful but, ultimately, I am persuaded they are more indicative of the melodrama to which the mother was prone and do not support a finding of coercive and controlling behaviour by Mr Ranwick. I find Mr Ranwick did not engage in family violence towards the mother.
There is no compelling evidence that any party has subjected or exposed either of the children to family violence.
The next consideration involves any family violence order that applies to the children or a member of their family. As discussed earlier, the mother has a family violence order against Mr Ranwick that names her and the children as people in need of protection. However, any act performed in accordance with a family law order is exempted from the various restraints in the order. In order to ensure Mr Ranwick is not in breach of the family violence order if he comes into contact with B, I will continue the order made on 24 April 2020 which specifically permits him to do that. I am satisfied that this is in the best interests of both children.
The next consideration is whether it would be preferable to make an order that is least likely to lead to the institution of further proceedings. It is hard to imagine any circumstances involving these parties in which further proceedings will not be necessitated. Although the mother describes both men and Mr Solberg, in particular, as litigious, there is no evidence to support that characterisation. On the contrary, it is the mother’s actions that have necessitated multiple interim hearings and a reopening of the trial. In my view, if the children live with their mother, it is almost inevitable there will be further proceedings because the mother is likely not to comply with Court orders, just as she has failed to comply with orders in the past and even since the final hearing in October 2019.
If the children live with their respective fathers, there may be fewer further proceedings as each of the fathers can be trusted to facilitate their child’s relationship with the mother. However, given the nature of the mother’s personality (or the state of her mental health), there is a reasonable likelihood of further proceedings regardless of the children’s arrangements.
Determination of the children’s living arrangements
The mother initially presented quite a strong case for moving to City J with the children. She gave positive evidence of her circumstances in City J. She had good housing, a job, the emotional, practical and financial support of friends and access to good facilities and support services. There is no doubt she would be much happier were she permitted to relocate with the children and this would likely have positive flow-on effects on the children. If she was genuinely supportive of the children’s relationships with their fathers, she might have been successful, notwithstanding D’s Town E age. However, the mother largely sabotaged her own case by her behaviour and attitude to the children’s fathers. I am strongly persuaded on the evidence that, despite anything the mother says, she is incapable of genuinely supporting the children’s relationship with their fathers and cannot be trusted to comply with orders. The children need to spend at least regular and substantial time with their fathers to develop their own experience and understanding of them and to balance the negative messages likely be communicated to them by their mother. A relocation of the children to City J would likely spell the end of a meaningful relationship between the children and their fathers. It is not in the children’s best interests for this to occur and, accordingly, the mother’s relocation application will be dismissed.
The mother made it clear that if she were not permitted to relocate with the children to City J, she would not relocate. Initially she did not say where she would live in that scenario. She said she did not want to live in Town E or Town F because of the history of having lived there with her previous partners and feeling that everyone in each of those towns was against her and would have her under surveillance. She said she did not want to continue living in Town R as it was too small and she has not had a happy experience living there. Ultimately, she said she would live in Canberra if not permitted to relocate to City J. This immediately increases the opportunity for B to have a meaningful relationship with both parents because they will live in closer proximity than they have for years.
An order for B to live primarily with her father would address most of the concerns about her welfare. It would also give her the opportunity to experience a different form of parenting that is more ordinary, relaxed and less complicated than she has experienced with her mother. It will also provide much better role modelling. Ultimately, however, I am persuaded that the better option for B is to live for equal time with each parent. In my view, such an arrangement will provide an appropriate balance between B’s right to a meaningful relationship with both parents and the need to protect her from harm arising from her mother’s dysfunctional behaviour. B has a close relationship with her mother, has always lived with her and is likely to suffer emotional distress if substantially separated from her. She would also be distressed if separated from her sister, notwithstanding their different ages and stages of development. Ms Y agreed that, as a nine year old, B is likely to perceive living for equal time with each parent as “fair”.[91] This may make it more palatable for her and, perhaps, even a positive development.
[91] Transcript 11 October 2019 at page 119
The impact on the mother of an equal time arrangement will, hopefully, be less devastating than if B were to live primarily with her father. If so, this will be more manageable for B who will keenly feel her mother’s distress. It will also give the mother the opportunity to engage in therapy as suggested by Dr H and Ms Y without feeling as punished and persecuted as she would feel if B was removed from her care more substantially. In the event the mother is unable to desist from her adverse behaviour, B may well end up living full-time with her father but, by then, she will have developed a familiarity and comfort with living with him.
There is a similarly compelling case for D to live full-time with her father. However, despite the warm and affectionate relationship D has with him, I am concerned about the risk to D’s emotional and psychological welfare from separation from her primary carer at an age that is too Town E for her to understand what has happened. This may have long term, adverse consequences for her development. Another concern is that, if D lived with her father, the mother would be in a terrible “Sophie’s Choice” position in which she would have to choose whether to live in Canberra, close to B, or in the Town E district, close to D. Although the best interests of the children are the primary consideration, in my view, D’s best interests can be met in ways which do not visit that cruelty on the mother.
As discussed with Ms Y during her evidence, because D is only three, she can spend longer time with her father during the week than would be possible if she was attending school. This provides the opportunity for D to continue to develop and strengthen her relationship with her father without disrupting her primary attachment to her mother.
The current arrangements in which D spends every Wednesday overnight with her father and every second weekend from Friday to Sunday involve six handovers each fortnight. This, combined with the travel time of two hours between Canberra and Town E, makes those arrangements too disruptive to continue. In my view, it would be better to consolidate the four nights D spends with her father each fortnight into a single block. If that time runs from Wednesday morning to Sunday afternoon, it is a total of five days and four nights each fortnight. Although D has only recently turned three, the quality of her relationship with her father suggest she will be able to manage that time comfortably. This will significantly reduce the number of handovers between the parties and the travel time for both parents and D. The structure also offers the benefit of the children spending a full week together each fortnight in their mother’s home and provides for D the benefit of still having her primary home with her mother and individual time with her for the extra three nights and two days B is with her father each fortnight.
When D commences school, her arrangements will need to change. She will have to live primarily with her mother during school terms but, by then, she will be older and her relationship with her father will be able to withstand the slightly longer separation from him. As with B, in the event the mother does not desist from her dysfunctional behaviour, D may end up living with her father but, by that time, she will have had the opportunity to build her relationship with him in a developmentally appropriate manner.
If the mother decides to relocate to City J in any event, or to any place further from Town E than Canberra, D will live with her father. This is because the risks arising from being separated from her primary attachment figure will be outweighed by the risks that flow from living only with her mother without the ameliorating influence of regular and substantial time with her father. In that event, I cannot determine what time D should spend with her mother, as this will depend on how far apart they live. The mother may choose to live somewhere outside of but proximate to Canberra, such as Town BBB. To allow for that, I will provide for the mother to live within 200 km of Town E (which will encompass Canberra and surrounds) without it affecting where D lives.
On the evidence, I see no reason why D should not immediately spend half of all of the shorter school holidays with each parent. This would usually be a period of about eight days. During the long summer holidays, she should spend time with each parent on a week about basis until she is six. At that age, it would be appropriate for her to spend half of those holidays in a single block of three weeks with each parent.
B should spend half of all holidays with each parent in a block. This allows her to have longer holidays and further afield with her father than what is possible in the current arrangements of a week at time during holidays. It means that for the next three years the two girls will have different arrangements over the long summer holidays but that will meet their different developmental needs and is not likely to have any long-term adverse impact.
I note my determination in relation to these parenting arrangements is consistent with the submissions of the independent children’s lawyer, which were influential.
Parental responsibility
When making parenting orders the Court is required to apply a presumption in favour of the child’s parents having equal shared parental responsibility.[92] Such an order requires the parents to consult each other and make a genuine effort to reach agreement about all major long-term issues concerning the children.[93] The presumption does not apply if there are reasonable grounds to believe a parent has engaged in child abuse or family violence.[94] In this case, there has been no family violence or child abuse and the presumption applies in relation to the children’s arrangements.
[92] S.61DA
[93] S.65DAC
[94] S.61DA(2)
The presumption may be rebutted if the Court is satisfied such an order would not be in the best interests of the child.[95] The mother sought an order for sole parental responsibility for both children, arguing that is in in the children’s best interests. Given the fraught relationship between the parties, such an order is superficially attractive because sole parental responsibility would remove the requirement for the parents to consult each other about major long-term decisions involving their child. However, I have serious reservations about the mother’s capacity to make appropriately child-centred decisions for the children alone. Mr Solberg and Mr Ranwick know their children well and have a lot to contribute to important decisions concerning them. Being equally responsible for major long-term decisions is also appropriate given B will be living for equal time with both parents and D will be spending significant time with her father. There is no evidence of major decisions for either child being hampered because of parental disagreement. On the contrary, the mother and Mr Ranwick readily agreed to D’s elective surgery in January 2020. Accordingly, I will order that the parents of each child have equal shared parental responsibility for them.
[95] S.61DA(4)
One potential exception to equal shared responsibility involves the necessity for B to change schools before the commencement of term three in 2020, less than three weeks after the delivery of this judgment. A decision about which school she will attend in Canberra needs to be made quickly in circumstances in which both parents may be feeling disappointed with the result. Given the history, there is a reasonable chance the mother will not be immediately co-operative. To ensure B is able to commence school on the first day of the new term, in the event the parties are unable to reach a joint decision, I will order that Mr Solberg can choose B’s school. In my view, he can be trusted with that decision. This will be an exception to the equal shared responsibility order in the event of an impasse.
The mother wants to have both children baptised in the Catholic faith. Both of the children’s fathers agree to that but they want to choose one of the godparents for their daughter, rather than the mother choosing both. This is an appropriate exercise of shared parental responsibility and I do not need to make a separate order about that.
Therapy for the mother
It is clearly going to be important for the welfare of the children that the mother engages in therapy with a psychiatrist and a psychologist as recommended by Dr H and Ms Y. The mother said she was prepared to do so. She may be able to continue engaging remotely with her psychologist in City J, Ms HH, with whom she has a positive therapeutic relationship. She will also need to work with a psychiatrist. I accept Dr H’s recommendation that the mother’s therapists should have a copy of his report, these reasons for decision and any relevant medical records. I intend to make orders facilitating this. I am mindful that the mother will need some time to organise this. She will also need time to absorb this decision and will have other pressing matters to attend to immediately following this judgment, including finding somewhere to live in Canberra.
I will order the mother to take all reasonable steps engage the relevant therapists within four months and to promptly notify the other parties of the identity of the therapists. I will order that the independent children’s lawyer provide the report of Dr H and these reasons for decision to the therapists. I am not familiar enough with what medical evidence relating to the mother is held by the Court as not much of it came into evidence. The therapists can ask the mother or the independent children’s lawyer for that information if they think it will be useful.
I will order the appointment of the independent children’s lawyer continue for a period of 6 months to facilitate these orders.
Unless and until the mother returns to paid employment, she is unlikely to be able to afford pay for therapy and will be reliant on the public health system. There is no evidence about the availability of such services. She may be able to obtain from her general practitioner a referral to a psychiatrist and a mental health plan for subsidised access to a psychologist. The mother will need to pursue all such options. To facilitate this process I will order that the mother may provide a copy of the orders and reasons for decision to her general practitioner.
Other matters
During the re-opened proceedings in April 2020, the mother and Mr Solberg agreed for B to spend the whole of the mid-year school holidays with her father to make up for time not spent with him earlier in the year when the mother and children stayed in City J. An order reflecting that was made on 24 April 2020. I will not disturb that arrangement but I will specify that B be returned to her mother on the Saturday afternoon before school commences to give her a day with her mother and sister before starting at her new school.
D should also spend a week with her father during the approaching school holiday period. In addition to furthering D’s relationship with her father, this will help to shield her from her mother’s distress at not being able to relocate and may assist the mother by giving her some child-free time to find accommodation in Canberra.
Given the timing of this decision, which will be delivered only a few days before the end of the second school term, the mother may not have secured accommodation in Canberra before the commencement of the third school term on 20 July 2020. Further, despite the mother’s stated intention to move to Canberra if not permitted to live with the children in City J, she might change her mind. I need to make provision for those contingencies. To minimise the disruption to B’s schooling I could delay the implementation of the orders until the beginning of the fourth school term, which would give the mother more time to find accommodation, but I do not believe that would be in either child’s best interests. In my view, it is better for the children and the parties to implement the new arrangements as quickly as possible rather than drag out the transition period. B missed some weeks of school early in the year and then her school closed due to the coronavirus. It is in her interests to settle in her new school as soon as possible and to have a full semester in the one school. For these reasons, if the mother has not moved to the Canberra district by the commencement of the third school term, B will live with her father until she does. This is for practical reasons and not meant to be punitive of the mother. If the mother takes a few more weeks to find accommodation, B can still spend weekends or other time with her by agreement with Mr Solberg who can be trusted to be reasonable.
Although the mother said that she would move to Canberra if not permitted to relocate to City J, during the re-opened proceedings on 23 April 2020, she said there were some practical problems with her moving to Canberra. The first was that she had outstanding traffic fines, which she said were incurred by Mr Solberg when he drove her car in Canberra during their relationship. She said she would not be able to obtain an ACT drivers licence until those were paid. Mr Solberg said through his counsel that he was prepared to pay those fines, up to $600, which is the maximum amount the mother said was owing.
The mother then said she may not be able to afford to live in Canberra. I accept the mother’s evidence that housing in Canberra is more expensive than in Town R. However, at the time of the re-opened proceedings, the mother was paying rent of $125 on her house in Town R and $360 a week on her house in City J, a total of $485 a week.[96] I am satisfied she can rent a property in Canberra for approximately the same amount. Although she said she thought it would be tight financially, she did not alter her proposal on that basis.
[96] Transcript 23 April 2020 at page 190
Mr Solberg sought an order for the mother to provide him with her phone number, for use in case of urgency. The mother has his phone number but he does not have hers. He said he and the mother communicate using the Talking Parents app but occasionally he has needed to communicate more immediately with her, for instance, to let her know he was running late for handover. He said he could call her using his car Bluetooth facilities if he had her number but, because he does not, he has to pull over and send her a message via the app, which only further delays him. Given the parties will be caring for B equally, I agree it is sensible for them to have each other’s phone number. It is also sensible for the mother and Mr Ranwick to have each other’s phone numbers for the same reason.
In a similar vein, each parent should know the residential address of the other parent so they know where their child lives when with them. Such an order would not place any party or the children at risk. Neither Mr Solberg nor Mr Ranwick has shown any appetite to attend the mother’s home and any resistance by her to such an order would lack credibility in the face of her application that both men spend time with the children at her home.
The mother presented no evidence in support of her application for a change of surname for each of the children. There is, therefore, no proper basis for me to make the order sought and that application will be dismissed.
The contravention applications filed by Mr Ranwick on 30 October 2018 and 5 April 2019 remain outstanding. They have been overlooked in circumstances in which there were multiple urgent interim parenting issues to deal with in the proceedings. I will list them for mention to see if Mr Ranwick still wishes to pursue the applications. If so, given the extensive credit findings I have made, they will need to be heard by another judge.
The mother has also filed three further applications in a case as follows:
a)an application in a case filed on 23 April 2020 seeking permission to provide a copy of Ms Y’s family report to the Australian Health Practitioner Regulation Authority, the Healthcare Complaints Commission, the Australian Federal Police and a solicitor the mother intends to engage for the purpose of civil proceedings, presumably against Ms Y;
b)an application in a case filed on 9 June 2020 seeking that I recuse myself and that the proceedings be transferred to the Melbourne registry; and
c)an application in a case filed on 10 June 2020 seeking financial disclosure from Mr Ranwick and a de facto property settlement with him.
All of these applications are listed in the duty list on 20 July 2020 and I do not need to consider them now.
Apart from these outstanding matters, all extant applications will be dismissed.
I certify that the preceding four hundred and fifty-nine (459) paragraphs are a true copy of the reasons for judgment of Judge Hughes
Associate:
Date: 30 June 2020
[31] Affidavit of Mr Ranwick filed 19 September 2019
[32] Affidavit of the mother filed 27 September 2019 at paragraph 100
Key Legal Topics
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Family Law
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Natural Justice
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Procedural Fairness
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Remedies
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