Marlow and Paxton
[2018] FCCA 90
•17 January 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MARLOW & PAXTON | [2018] FCCA 90 |
| Catchwords: FAMILY LAW – Parenting – whether the child should continue to live with her mother in NSW, or live with her father in (omitted) Queensland – where Court concerned about aspects of the Mother’s parenting capacity – child to live with her father – incidental orders. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: MRR v GR [2010] HCA 4 |
| Applicant: | MS MARLOW |
| Respondent: | MR PAXTON |
| File Number: | WOC 346 of 2015 |
| Judgment of: | Judge Altobelli |
| Hearing dates: | 12 – 14 July 2017 & 27 October 2017 |
| Date of Last Submission: | 27 October 2017 |
| Delivered at: | Wollongong |
| Delivered on: | 17 January 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Cairns |
| Solicitors for the Applicant: | Johnson Horsley Lawyers |
| Counsel for the Respondent: | Ms Mayes |
| Solicitors for the Respondent: | McDonald Leong Lawyers |
| Counsel for the Independent Children's Lawyer: | Mr White |
| Solicitors for the Independent Children's Lawyer: | Acorn Lawyers |
ORDERS
The Father and Maternal Grandfather have equal parental responsibility in relation to the long term issues relating to the care, welfare and development of the child X born (omitted) 2007 (the child) including but not limited to:
(a)The child’s education (both current and future);
(b)The child’s religious and cultural upbringing; and
(c)The child’s health.
In exercising parental responsibility in accordance with Order 1, the Father and the Maternal Grandfather:
(a)inform each other about the decision to be made;
(b)consult with each other on terms that they agree;
(c)make a genuine effort to come to a joint decision; and
(d)keep the Mother at all times informed as to the major long term issues relating to the child and:-
(i)Attempt to communicate to the Mother the decision to be made; and
(ii)Inform the Mother of the final decision made within Twenty-Four (24) hours of making the decision.
The Father ensure that an email is sent each fortnight to both the Mother and the Maternal Grandparents providing an update in relation to the child’s wellbeing, development, progress and any other matter affecting the child and provide the Mother and the Maternal Grandparents with at least two (2) photos of the child. In order to do so, the Mother provide to the Father details of both hers and the Maternal Grandparents’ email addresses within seven (7) days of the date of these Orders.
Living Arrangements
The child live with the Father in (omitted) and spend time with the Mother and/or the Maternal Grandparents as follows:-
(a)During each school holiday period as detailed in Paragraph 8 of these Orders;
(b)For up to Two (2) occasions per school term from the conclusion of school on Friday through to the commencement of school on Monday (or the commencement of school on Tuesday should the Monday be a Public Holiday) in the event that the mother and/or the Maternal Grandparents are in the (omitted) District;
(c)For up to Two (2) occasions per school term at all times as can be arranged in the event that the Father and the child travel to a location in which the mother and/or Maternal Grandparents are residing.
The Mother and/or the Maternal Grandparents be at liberty to contact the child when the child is not in the Mother’s care and/or maternal grandparents’ care at all times as agreed between the parties but in particular, between 6.30 pm and 7.30 pm on Tuesdays, Thursdays and Saturdays with such communication to occur by any electronic means, whether telephone, Skype, Facetime.
The Father be at liberty to contact the child during any time that the child is not in his care at all times as agreed between the parties but in particular, between 6.30 pm and 7.30 pm on Tuesdays, Thursdays and Saturdays with such communication to occur by any electronic means, whether telephone, Skype, Facetime.
The Mother and/or the Maternal Grandparents and the Father will facilitate the child communicating with the other parent or extended family members by telephone, Skype or any other electronic means, at all reasonable times should the child express a wish to communication with such parties and such communication is to occur in privacy and without the use of speakerphone.
Holidays and Special Occasions
The usual living arrangements in Order 4 continue during each school term except for the school holiday periods during which time the child spends time with:
(a)The Father for the first half of the school holiday period in odd numbered years and the second half in even numbered years; and
(b)The Mother, provided that the material grandparents are available to assist the mother in the care of the child during this time, for the first half of the school holiday period in even numbered years and the second half in odd numbered years.
That irrespective of whether the child is attending school, a "school holiday" period be defined as:-
(a)the Queensland Gazetted Primary School Holiday period;
(b)commencing on the last day that the child is required to attend at school for the purposes of the previous school term;
(c)concluding on the first day that the child is required to attend at school for the purposes of the new school term;
(d)Including all public holidays and pupil free days as scheduled by the school from time to time;
(e)The midpoint of the holiday period be at 9.00am on the day which falls in the middle of the school holiday period.
The Father be responsible for making all travel bookings and meeting the cost of the child’s travel to the Mother in Sydney in relation to the school holiday time that the child is to spend time with the Mother pursuant to these Orders.
For the purposes of Order 8, the child will depart (omitted) no earlier than 4.30 pm and return to (omitted) on a flight which is due to arrive in (omitted) no later than 8.00 pm.
Notwithstanding the above, in the event that the parties are within Fifty (50) kilometres of each other on any of the below special occasions, then the child spend time with the other parent as specified:
(a)On Christmas Day for a period of not less than six (6) hours at times agreed between the parents and failing agreement from 12.00pm until 6.00pm on Christmas Day;
(b)with the Father from 9.00am until 5.00pm on Father's Day;
(c)with the Mother from 9.00am until 5.00pm on Mother's Day;
(d)on the child's birthdays for not less than five (5) hours on a non-school day or three (3) hours on a school day at times to be agreed between the parents and failing agreement from 12.00pm to 5.00pm (5 hours) or 3.00pm to 6.00pm (3 hours);
(e)on the Mother 's birthday at times agreed between the parents and failing agreement from 3.00pm to 6.00pm; and
(f)on the Father's birthday at times agreed between the parents and failing agreement from 3.00pm to 6.00pm.
In the event that the parents are not living within Fifty (50) kilometres of the child and the parents are not within Fifty (50) kilometres of each other on any of the Special Days listed in Paragraph 12 above, then the other parent be afforded Skype communication with the child on such special occasions at a time to be agreed between the parents but in particular, from 6.30 pm to 7.30 pm on that day.
Travel within Australia
Each parent be at liberty to holiday with the child within Australia but outside of the District in which they usually live during their time with the child pursuant to these Orders provide that if the parent proposes to take the child outside of the District in which they usually live in excess of Three (3) nights, they provide the other parent with the following information at least Seven (7) days prior to travel:-
(a)Proposed holiday destination or destinations;
(b)Travel arrangements and accommodation details for the child;
(c)Details of persons with whom the child will be staying with whilst on holidays;
(d)Telephone contact number for the child whilst the child is absent from the District in which they usually live;
(e)A travel itinerary including times and dates of travel and fully paid return flight or travel details if applicable; and
(f)Contact the other parent within 24 hours upon return to the District in which they usually live to inform the other parent of a safe return in the event that the travel away from the District in which they usually live includes camping arrangements.
Travel Outside of Australia
In the event that either parent wishes to take the child outside of Australia, the parent who proposes such travel shall seek the consent of the other parent in writing no later than Thirty (30) days prior to the expected date of travel and provide the other parent with the following details at least Fourteen (14) days prior to travel:-
(a)Proposed holiday destination or destinations;
(b)Travel arrangements and accommodation details for the child;
(c)Details of persons with whom the child will be staying with whilst on holidays;
(d)Telephone contact number for the child whilst the child is absent from the District in which they usually live; and
(e)Copies of formal, fully paid return flight itineraries and travel bookings for the child including times and dates of travel; and
(f)An undertaking to the court which is capable of being filed stating that they will return the child to Australia in accordance with the return flight details provided to the other parent in accordance with these Orders.
Neither parent be permitted to travel to any overseas destination which is not a signatory to the Hague Convention unless written consent is obtained at least Sixty (60) days prior to travel. Consent of the other parent is not required in the event that a necessary flight change is required throughout Asia or any other continent in the event that the overseas flight requires such a stopover for not more than Six (6) hours.
During any overseas holiday period, the child have contact with the parent with whom the child is not spending time with on Two (2) occasions per week at times and days as agreed to between the parties with the parent with whom the child is spending time with to facilitate and place the telephone call.
Passports
Within Seven (7) days of the date of these Orders the Mother provide the Federal Circuit Court of Australia Registry at Wollongong with the child’s original Passport.
That the Registry of the Federal Circuit Court retain the child's passport for safekeeping. That the child's passport be released to a parent with the written consent of both parents or Order of the Court. Neither parent will unreasonably withhold their consent to the child's passport being released.
Both parties sign all documents and do all acts necessary in order to obtain and/or renew the child's passport from time to time as may be required and within Fourteen (14) days of a request to do so by the other parent wishing to obtain and/or renew the child's passport. The cost of obtaining the child's passport and/or renewing the child's passport is to be borne solely by the party wishing to do so.
Authorities
The Father ensure that all educational and medical providers as well as any other organisation relevant to the child are informed of and provided with the Mother’s and the maternal grandparents’ contact details and an authority to speak with the mother and the Maternal Grandparents in relation to the child’s progress.
Both parties administer all medication prescribed or recommended to the child by a qualified medical practitioner.
In the event the child is injured or there is any medical or health matter concerning the child, the parent having the care of the child at the time must notify the other parent with respect to such notice as follows:-
(a)Should the injury, medical or health matter include the child being taken to hospital or receiving urgent medical treatment, the parent who has the care of the child is to notify the other parent immediately;
(b)Should the injury, medical or health matter not involve the child being taken to any hospital or receiving urgent medical treatment, then the parent who has the care of the child is to notify the other parent within twenty-four (24) hours of becoming aware of the matter.
Both the Mother and Father be restrained and an injunction issue restraining them from:
(a)the use of excessive physical force upon the child when disciplining them, and the mother and Father shall ensure that no one else excessively physically disciplines the child;
(b)the consumption of alcohol to excess in the presence of the child, and the mother and Father shall remove the child from the presence of anyone else who is consuming alcohol to excess in the presence of the child;
(c)the use of any prohibited drugs whilst the child are in the parents care and for a period of at least Forty-Eight (48) hours prior to the child coming into their care, and the mother and the Father shall remove the child from the presence of anyone else who is using prohibited drugs;
(d)taking prescribed drugs in excess of the prescribed dosage whilst the child are in their care; and
(e)denigrating the other parent, their partner or their family, to or in the presence of hearing of the child and are to ensure that no one else denigrates the other parent, their partner or their family to or in the presence or hearing of the child.
Counselling
Within Seven (7) days of the child relocating to (omitted) to live with the Father, the Father arrange an appointment for her to attend with Ms L of (omitted) for the purposes of receiving ongoing counselling regarding the relocation to (omitted), change in living arrangements, continued contact and connections with the mother and Maternal Grandparents with such counselling to continue until otherwise as recommended by Ms L.
The Father to pay all costs associated with the child’s attendance on Ms L.
The Father is to ensure that the Mother and Maternal Grandparents are provided with all of Ms L’s contact details and provide full authority to Ms L to communicate and contact the Mother and Maternal Grandparents in order to involve them in the counselling process.
Leave be granted for Ms L to be provided with a copy of the following:
(a)The Final Orders of the Court in relation to the child’s living arrangements; and
(b)A copy of the Single Expert Report dated 21 June 2016.
Schooling
Within Seven (7) days of the date of these Orders the Father ensure that the child is enrolled at the (omitted) State School and forward to the Mother all details in relation to the school and ensure that the school is advised as to the Mother’s contact details.
IT IS NOTED that publication of this judgment under the pseudonym Marlow & Paxton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 346 of 2015
| MS MARLOW |
Applicant
And
| MR PAXTON |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about X, who is 10 years old. X currently lives with her Mother in the (omitted) region of New South Wales. These reasons for judgment explain why the Court has ordered that X should now live with her Father in (omitted), Queensland. This has been a very difficult case to decide.
Background
X's Mother was the Applicant in this case. She is 37 years old. X's Father is the Respondent, he is 36 years old. X is their only child. The Mother has three other children. Mr O and A are aged 19 and 17 respectively. The Mother has another child, B, who is one and a half years old.
The parents commenced a relationship in about 2003. That relationship ended in about 2011. The parents have now been separated over six years.
During the relationship, the evidence before the Court leads it to conclude that the Mother suffered depression, which probably started as post-natal depression. She continues to suffer depression today and is on medication in this regard. The Mother’s mental health is a background issue in this case. Of itself, it is not contended by any of the parties to this case that there is a risk of harm to X. It is the combination of the Mother’s depression and other issues in her life, particularly the consumption of alcohol, which is one of the major concerns in this case.
During the relationship between the parents, the Mother commenced shoplifting. It is possible that the Father was unaware of the nature, extent, and consequences of the Mother’s shoplifting until either late in the relationship, or after separation. In any event, she was charged many times, has a long criminal record pertaining to shoplifting and related offences, and has spent time in jail as a consequence of this. The Mother’s shoplifting is a feature of her dysfunction, but it was accepted by all parties, and by the court, based on the evidence before it, that it is not an ongoing problem for the Mother.
The evidence that both parents lead about their relationship suggests that it was dysfunctional in many respects. The Mother alleges that the Father was violent and controlling and was addicted to marijuana. The Father alleges that the Mother was an alcoholic who became violent when under the influence and that she suffered mental health issues, including attempts at self-harm. He contends that this caused her to be a neglectful parent for Mr O, A and X. The Father denies the violence allegations, but concedes that there were frequent verbal arguments, especially over the issues referred to above. He concedes he was a cannabis user, but asserts he has not used for at least 10 years. The Mother does not deny her lengthy criminal record pertaining to shoplifting and associated offences, but maintains that that behaviour no longer continues. The Mother does not deny that she struggled with excessive use of alcohol, but insists that even though she is not abstinent, it is no longer a problem for her. The Father also alleged that the Mother had a gambling problem. The Mother does not deny that she gambled, but insists it was not a problem and, in any event, it has long ceased.
From X’s perspective, indeed probably even from Mr O and A’s perspective, the Maternal Grandparents are the unsung heroes in this case. The Maternal Grandfather sought leave to join into the proceedings on the first day of hearing on 12 July 2017. As will be seen, he sought orders in relation to parental responsibility only. Certainly since the Mother and Father separated in 2011, the Maternal Grandparents have been a rock solid support for her, Mr O, A and X. Even the Mother’s case concedes her dependence on them both historically and presently. The Maternal Grandfather gave evidence in this case. The evidence before the Court suggests that the Mother’s relationship with the Maternal Grandmother fluctuates significantly at times.
The evidence before the Court suggests that since separation, the Mother has entered into at least two dysfunctional relationships. The first of these relationships, with Mr B, was a violent one. The second of these relationships, with Mr I, may well have involved violence, but was most certainly characterised by excessive alcohol use.
Between 2011 and 2013, X did not spend much time with her Father. The parents blame each other for this. In any event, from late 2013 a fairly continuous pattern of contact commenced between X and her Father, with X travelling to Queensland to be with him during school holidays, often for extended periods.
The Father has re-partnered. His partner, Ms A, gave evidence in this case. They have two children, C, who is three, and D, who is nearly one. Whilst they currently live in (omitted), they previously lived on the (omitted) of Queensland.
In April 2015, when X was spending time with her Father, he retained her in his care. There were no orders in place at the time. The Mother commenced recovery proceedings, and the Father was ordered to return X into her care. The circumstances of the Father’s retention of X, and the evidence that the Mother placed before the Court in support of her recovery application, will need to be dealt with in considerable detail in these reasons for judgment.
Since the commencement of these proceedings, X has spent regular time with her Father during school holidays, pursuant to orders of the Court.
The Mother’s proposal was that the Maternal Grandfather and herself have equal shared parental responsibility for X, and that X continue to live with her. X would spend time with her Father for one half of each New South Wales school holiday period, as well as enjoy telephone or Skype communication.
The Father’s proposal was that he have sole parental responsibility in relation to X, but that in the exercise thereof he would keep both the Mother and the Maternal Grandparents at all times informed of major long-term decisions made. The Father proposed that X live with him in (omitted) and spend time with the Mother during each school holiday, as well as for up to two occasions each school term, from the conclusion of school on Friday through to the commencement of school on Monday, in the event that the Father and/or the Maternal Grandparents could come up to the (omitted) district. In addition, he proposed contact for up to two occasions each school terms, in the event that both he and X could travel to a location in which the Mother and/or Maternal Grandparents were residing. He proposed a telephone, Skype and FaceTime communication.
X was represented by an Independent Children’s Lawyer. The order proposed by the Independent Children’s Lawyer was that the Mother, Father and Maternal Grandfather have equal shared parental responsibility for X, that X live with her Mother, that her Mother be restrained from relocating with X outside the area where X and her Mother currently lives. The Independent Children’s Lawyer proposed that X spend time with her Father during school holidays, as well as for two weekends in each school term.
The Minutes of Order proposed by the Mother, Father and Independent Children’s Lawyer are reproduced in the first schedule to these reasons for judgment.
At the hearing, the Mother was represented by her Counsel, Mr Cairns, the Father by his Counsel, Ms Mayes, and the Independent Children’s Lawyer by her Counsel, Mr White.
Evidence was given by the Mother, the Father, Ms A, the Maternal Grandfather, and by Dr A.
The Court needs to decide whether X should continue to live with her Mother in the (omitted) district of New South Wales, or whether she should move to live with her Father in (omitted), Queensland. Depending on this decision, an order will need to be made in relation to the time that X spends with her other parent, as well as the communication which is to take place between them. The manner in which parental responsibility should be allocated is another issue for the Court. This is a case where, regrettably, it is necessary to make findings in relation to the credit of the witnesses who gave evidence. If the Court has concerns about whether a witness is being truthful in their evidence, the Court may well be concerned about their reliability, either as a parent, or as a person providing support to a parent.
The evidence of the expert, Dr A, is important, though not necessarily decisive. Dr A’s evidence is both expert, and independent. She enjoyed the advantage of meeting X, her parents, the Maternal Grandparents, and some of her step-siblings in interview. Dr A did not, however, have the advantage of closely observing the parents in Court. In addition, Dr A probably did not have the time that the Court has had to review all of the evidence in this case and to consider its implications. Nonetheless, Dr A’s evidence is very important, and it will be dealt with early in these reasons for judgment.
The evidence
The Mother relied on the following material:
a)Initiating Application filed 17 April 2015;
b)Notice of Risk filed 17 April 2015;
c)Affidavit of Ms Marlow filed 17 April 2015;
d)Affidavit of Ms Marlow filed 27 June 2017; and
e)Affidavit of Mr J filed 27 June 2017.
The Father relied on the following material:
a)Amended Response of the Father filed 28 June 2017;
b)Affidavit of the Father filed 28 June 2017; and
c)Affidavit of Ms A filed 28 June 2017.
The following documents was tendered into evidence:
| Date | Exhibit No. | Tendered by (eg. A/W, R/H) | Description of Exhibit/MFI |
| 14.7.17 | A1 | AM | School report 2017 semester 1 |
| R1 | RF | Text messages between parties | |
| R2 | RF | Documents from (omitted) Public School | |
| R3 | RF | Documents from FACS | |
| R4 | RF | Documents from Centre health | |
| R5 | RF | Documents from Community Corrections | |
| R6 | RF | Documents from (omitted) Primary school | |
| R7 | RF | Documents from NSW Police | |
| R8 | RF | Documents from Ms M | |
| R9 | RF | Mother’s affidavit dated 17 April 2015 | |
| ICL1 | ICL | Dr A's Report | |
| ICL2 | ICL | QLD Police ICL tag 9 | |
| A2 | AM | Video | |
| A3 | AM | Beach Video | |
| 27.10.17 | ICL3 | ICL | Documents from (omitted) Medical Centre |
| ICL4 | ICL | NSW Police documents | |
| ICL5 | ICL | (omitted) Public School |
The Applicable Law
The applicable law is, of course, Part VII of the Family Law Act 1975 (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
The Case Law
In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The single joint expert report of Dr A
Dr A is a consultant forensic psychologist. Her report is dated 21 June 2016. Dr A’s report, and the evidence she gave in cross-examination, will be examined through the lens of the totality of the evidence before the Court. She interviewed the parents, Ms A, X and Mr O, and the Maternal Grandparents.
Insofar as the report deals with Ms W, the Maternal Grandmother, it is important to note that the Maternal Grandmother did not give evidence at the hearing. This is notwithstanding the fact that she plays an important role in X’s life. For that reason, the entirety of Dr A’s observations in relation to the Maternal Grandmother will be reproduced. Dr A dealt with the Maternal Grandmother at paragraphs 19-24 of her report:
19. Ms W (65) presented as a petite, slim, brunette of pleasant unremarkable appearance commensurate with her chronological age who was appropriately dressed and groomed. She was normally oriented to reality, fully alert and showed no signs of being substance affected. She was polite, pleasant and cooperative with the assessment process.
20. Ms W confirmed that she had held concerns for X’s safety when Ms Marlow was living with Mr I due to couple’s high conflict and alcohol consumption. She referred to incidents in which Mr I had allegedly locked X and Ms Marlow out of the house late at night. Ms Marlow acknowledged she had been in communication with Mr Paxton at that time, had suggested that X should come to live with her and Mr J, and had endorsed his decision not to return X to that conflictual home environment. Ms W admitted concern about Ms Marlow’s heavy drinking, which she attributed to her daughter’s response to stress at difficult times in her life – such as during her relationship with Mr I and after Mr Paxton had abandoned her for Ms A, whom she appeared to blame for luring him away. She claims that her daughter has ceased problematical alcohol use and expressed confidence in her continued abstinence.
21. Ms W expressed opposition to the idea of X relocating to Queensland as she considers that Ms Marlow’s home circumstances are no longer of concern, and X’s main affectional ties are with family here. She expressed strong support for X having regular contact with her father, saying the child “really loves her Dad” and “likes Ms A”. She holds no safety concerns for the child in the home of the father and considers Ms A takes good care of X during visits. Ms W reported having been on amiable terms with Mr Paxton during the 8 years he lived with Ms Marlow, and since. She also reported having been able to communicate civilly with Ms A until late in Ms Marlow’s pregnancy when conflict arose about transport arrangements to the airport for X’s visits, as Ms A allegedly insisted that Ms Marlow should provide transport, as per Orders, which Ms W construed as deliberate nastiness.
22. Ms W acknowledged that her relationship with her daughter Ms Marlow had been conflictual for many years, saying “if we are too much together we clash.” She said her daughter had become “rebellious at 14” and would not accept limits, “taking off at weekends” without her parents’ permission. This led to fights between mother and daughter. She described Mr J as more permissive. At 18 Ms Marlow formed a relationship with Mr P, then 38. Despite being concerned about the large age difference, Ms W reported that Mr P had been a kind and supportive partner to her daughter, until she left him for Mr Paxton.
23. Ms W acknowledged having been unpopular with her daughter for flagging her child safety concerns in 2015 but asserted that at the present time their relationship was harmonious. She pledged on-going practical support. When asked to explain how Mr O and A came to be living with her and her husband, Ms Marlow spoke vaguely about how Mr O had always preferred to spend a lot of time with his grandparents and did not get along well with Mr Paxton. When Mr O came to live with his grandparents, A followed. Both boys are reported to be on good terms with their father, Mr P, whom they visit regularly in Sydney. X also visits. Ms W said Ms Marlow had never been close to her sons but was very close to X and depended on her emotionally. For this reason, Ms W believed her daughter resented Mr Paxton’s suggestion that X should live with the grandparents, although she had not resented the boys’ residential preference.
24. Overall, Ms W impressed as a person who values harmony and social acceptance to the extent that compromises her ability to evaluate objectively. Her thinking struck me as shallow, vague and confused (to the extent that she predicts outcomes on the basis of her hopes for the future rather than her memories of the past). Nonetheless, she seems to mean well by her grandchildren. She seemed genuine about her reasons for reporting her child welfare concerns for X in 2015. In a crisis, she is likely to prioritise the grandchildren’s safety over the mother’s interests, but subsequently suffer such stress and anxiety about any resulting family conflict that her resolve would fluctuate and undermine her good judgement.
In paragraph 24, Dr A is quite strident in her professional opinion about the Maternal Grandmother. As strident as it seems, after having heard the evidence of both the Mother and the Paternal Grandmother, the Court concludes that Dr A’s opinion is soundly based. Indeed, the totality of the evidence before the Court suggests that the Maternal Grandmother may, indeed, have minimised the very fluctuating nature of her relationship with her daughter, the Mother in these proceedings. The Court nonetheless is able to safely conclude that, subject to the nature of the relationship between the Maternal Grandmother and the Mother at any particular time, the former is available to provide ongoing practical support.
Dr A interviewed the Maternal Grandfather, Mr J. He did give evidence, and that evidence will be discussed below.
Dr A met with both parents, and where relevant her observations in this regard will be discussed. It is important to record, however, that the Father was quite open in telling Dr A, and indeed in presenting to the Court, his view that if X could not live with him, she should be living with the Maternal Grandparents, with whom he had obvious confidence that they would not only look after X, but facilitate X’s ongoing relationship with him.
In relation to the Mother, given the focus in this case about her parenting capacity, there is benefit in reproducing some of Dr A’s observations in relation to her. At paragraphs 33-35 Dr A states:
33. Ms Marlow (36) presented as a slender, pretty, appropriately attired, dark-haired woman. She was normally oriented to reality, fully alert and showed no signs of being substance affected. She displayed no flagrant signs of psychopathology. She was polite, friendly and cooperative. She remained emotionally self-controlled throughout our discussions. At times she had difficulty comprehending sentences with complex propositional content and seemed to easily lose the thread when required to follow an explanation or a list of instructions. These observations led me to speculate about likely attentional deficits and low verbal intelligence.
34. Ms Marlow denies all current problems due to mental health or alcohol consumption. She acknowledged having drunk heavily in the past, but asserted she had ceased alcohol consumption during pregnancy and not resumed since. She noted having formerly been prescribed Pristiq for depression but asserted she also ceased medication during pregnancy. Ms Marlow tended to deny or minimised X’s previous exposure to domestic violence as alleged by Mr Paxton. She admitted the highly conflictual relationship with Mr I, but seemed to consider that her declarations that this relationship has ended and that she has no intention to seek a new partner have closed the topic for further review. She reports that Mr I showed no interest in her pregnancy and she expects him not to seek time with B, even though (presumably) he will be pursued for child support via Centrelink and the Child Support Agency.
35. Ms Marlow denied valid reasons for the father holding child safety concerns at the time he withheld X in 2015. She claimed Mr Paxton had been misinformed about the danger allegedly posed by her excessive drinking by Mr I whose motivation was malicious. She gave other examples of Mr I’s spiteful behaviour towards her, claiming “He doesn’t want me to be happy.” She attributed the same motivation to Mr Paxton and Ms A. Ms Marlow apparently perceives the latter to have “stolen” Mr Paxton from her and wanting to “steal” X too. She said of Ms A that since she having her own baby “she wanted to take everything from me, including X.” Overall, Ms Marlow’s ability to mentalize seems to be very under-developed for an adult. Her descriptions of her own motivations and behaviour and speculations about the motivations and behaviour of her ex-partners struck me as childish, shallow, glib, simple-minded and egocentric.
A number of important things should be noted. At paragraph 35 above, for example, the Mother denied that the Father had valid reasons for retaining X in May 2015. That was clearly the Mother’s view at interview, which was in June 2016. As will be discussed below, the cross-examination of the Mother produces a very different result. Again, the last sentence of paragraph 35 may appear to be a somewhat strident opinion in relation to the Mother. The Court, however, has had the benefit of not only observing the Mother for an extended period in the witness box, but also considering the evidence in its totality. The Court concludes that Dr A was well entitled to form the opinion that she did, even on the limited information that was available to her.
As part of Dr A’s report she administered a number of standardised psychological assessments. Some of the more relevant ones are discussed below. Her interpretation of the testing of the Father led her to form the view that he was a person with a realistic, positive self-concept, who answered the questions put to him truthfully. She found the results to the Mother’s personality assessment inventory test to be within normal limits, but with moderate elevations and discrepancies suggesting the potential for problems. For example, Dr A noted at paragraph 39 that the Mother denied a significant alcohol use problem: “but denial must be considered, as she also described certain personality characteristics commonly associated with addiction. Furthermore, she endorsed a critical item in this domain, which is rarely endorsed in non-clinical groups. Poor social judgment is implied by responses, which suggest her self-esteem is reactive to stress. She displays low motivation for self-change…”
The Court observes that Dr A’s interpretation of the test result as suggesting that the Mother had “poor social judgment” is amply supported in the evidence before the Court, which included the Mother’s long criminal history for shoplifting and associated offences, her propensity for dysfunctional relationship with men, and the struggle she has had with both alcohol and gambling at various times in her life. Dr A suggested that the test results could not rule out the possibility of a generalised anxiety disorder, or personality disorder.
By contrast, there were no indications of clinical psychopathology or diagnostic hypotheses which were suggested by the Father’s test results.
In relation to substance abuse, the test administered in relation to the parents suggested that there was a high probability of the Mother having a substance dependent disorder (alcohol) based on her reported lifetime usage. At paragraph 42 she makes this important statement:
“If we assume that she has reported her most recent AOD usage accurately, the probability of a current dependence disorder is low. However, aggregated information (PAI results and case history) suggest the probability of her relapsing alcohol misuse remains high, especially under pressure.”
As will be seen from the evidence presented to the Court, there are concerns about whether the Mother has reported her alcohol use accurately.
The same results in relation to the Father suggested a high probability that he formerly had a substance dependence disorder (other drugs) and a low probability that he does currently. Indeed, the totality of the evidence before the Court in relation to the Father’s alleged cannabis use suggests that whilst he had a problem in the past, possibly 10 years ago, it is no longer a problem for the Father. Whilst this was raised as an issue in the Mother’s case, the evidence simply does not support any conclusion by the Court that the Father continues to use cannabis and that this presents a risk of harm to X.
At paragraph 47, Dr A discusses the results of tests designed to elicit information about the parental reflective function of parents:
I rated the adults’ parental reflective function (PRF) by applying criteria derived from the Parent Development Interview (Fonagy et al) to spoken and written discourse. Mr Paxton and Ms A were both deemed to show normal, unmarked PRF. The discourse of the maternal grandparents also suggested unmarked normal PRF. The grandfather appeared to have greater capacity than the grandmother to rationally evaluate the motivated behaviour of others. The grandmother’s evaluations are likely to fluctuate with her emotional states. The mother’s PRF is deemed marginally normal. She displayed none of the hostile misattributions about her child’s mental states which are associated with grossly pathological care, but she seems to be too self-focused and emotionally immature to be able to shift perspectival stance in order to rationally appraise the motivations of others – particularly when their desires, needs and goals are different from her own. This was markedly displayed in her inability to conjecture about any reasons the father might have had in withholding the child in 2015 except that he wanted to make her (Ms Marlow) unhappy. The mental states of others are opaque but we can draw reasonable inferences from observing their behaviour in social context. Ms Marlow showed very little capacity to imagine X’s view of her predicament – for example, with regard to her divided loyalties or her exposure to adult conflict.
Again, Dr A’s comments about the Mother may well seem strident to the reader, who has not been able to observe the Mother in cross-examination, and who has not had the benefit of the totality of the evidence before the court. Dr A’s comments about the Mother, whilst certainly strident, nonetheless appear correct when all the evidence is considered.
Dr A administered a psychological test designed to assess child abuse potential. She explained at paragraph 48 that the test results are more likely to misclassify a potentially abusive parent as normal, than classify a normally maturing parent as abusive. The test results indicated that the Mother’s child abuse potential score was high, although not elevated about the 95th percentile, the top five per cent being the clinical range. She comments at paragraph 49:
“It is worth commenting that her score on the CAP subscales, problems from other people, was at the test ceiling for that domain. This finding suggests she has an external locus of control – ie, a tendency to blame other people for victimising her, rather than identifying the extent to which her own choices have contributed to unwanted outcomes.”
She also noted that both parents rated their teamwork as parents as inadequate, indeed with the Father describing it as problematic, and the Mother as dysfunctional.
In relation to X, Dr A was of the opinion that she was at ease with all the adults with whom she observed. She had a close, trusting and affectionate relationship with her Maternal Grandfather. When observed with her Father, step-mother and baby sister, C, the atmosphere was warm and comfortable. The psychological tests administered on X led Dr A to conclude that she was not deemed to be at immediate risk of a mood or anxiety disorder, but she may be at risk of becoming compulsively caretaking/compliant.
Her evaluation commences at paragraph 66. For present purposes, paragraph 68-72 bear production:
68. While no risk factors have been identified in the father’s current home environment, his concerns about the mother’s drinking, poor social judgement and inability to provide a calm, stable home environment for her children, appear to be well-founded. Nothing emerged to suggest that X is currently at immediate risk of physical harm in the care of her mother, but on the basis of aggregated information, it is my concluded opinion that Ms Marlow’s capacity to consistently parent children to community standards is impeded by intrinsic personal characteristics which are relatively treatment-resistant. Her cognitive limitations mean she is not a good candidate for talking cures even if she were minded to seek self-improvement. It is commendable that Ms W ceased drinking during her pregnancy and desirable that she should continue to abstain, but there is no basis for confidence that she will. She has made decisions in the past which were not in X’s best interests - such as the precipitate residential move to join Mr I, thereby uprooting X from school and friends. Another very poor decision was to drive with X in the car while intoxicated, if Mr Paxton is to be believed.
69. As the best predictor of a person’s future behaviour is their past behaviour, it is eminently likely that, left to her own devices, Ms Marlow will behave foolishly again, thereby exposing X to unstable, chaotic, conflictual home environments. Ms Marlow has a long history of dysthymic mood, a criminal history that speaks of financial incompetence as well as psychosocial maladjustment, and a history of using alcohol (and allegedly also gambling) for tension-release under stress. Being a single mother on a low income is inherently stressful. Relapsing depression and AOD abuse are both highly likely At interview Ms Marlow showed no insight into her personal vulnerabilities and described no relapse prevention plans, nor any contingency plans for problems foreseeably arising – such as a future family law dispute with Mr I. She relies on other people (her parents, her ex-partner Mr P) to solve problems caused by her imprudence. Ms Marlow’s parenting would not meet community standards without the constant support of the maternal grandparents. In (omitted) the maternal grandparents can monitor the mother’s home situation, compensate for deficits and provide X with a refuge in a crisis.
70. The father contends that for all practical purposes the maternal grandparents provide X’s stable home base. Even so, it is predictable that the mother would resist formalizing that childcare arrangement, for reasons of her income security with Centrelink. Currently the grandparents have no legal authority over X, which limits their capacity to act protectively if the need arises. It is unclear whether, in the absence of Court Orders, Mr and Ms W would intervene assertively with their daughter to remove their granddaughters from the mother’s home environment if she relapsed into alcoholism or entered into another upsetting, domestic relationship, for example. Mr Paxton expressed concerns that Mr J’s indulgence towards his daughter constrains his ability to safeguard his granddaughter - the implication being that Mr J could not prevent Ms Marlow from behaving irresponsibly again but would not invite statutory intervention (FACS) to protect X.
71. This concern must be seriously considered. Mr and Ms W tend to minimise (although not outright deny) personality factors impeding Ms Marlow’s parenting capacity (and her social competence in general). At interview they construed Ms Marlow’s recurring social problems as context-dependent adversity rather than as the outcomes of the poor judgment and poor impulse control which are long-term, stable features of her personality. They would probably be reluctant to publicly challenge their daughter for parental responsibility, even if they considered a change of residence warranted for X (or B). On the other hand, Mr J strikes me as a very law-abiding person who would obey Orders designed to protect X’s interests, even if legal compliance implied thwarting his daughter. In fact, it may impose less strain on the relationship between Ms Marlow and her parents if it were a Court decision to constrain her in ways which protect X’s interests rather than to leave intervention in a crisis completely up to the discretion of the grandparents.
72. In the event that the Court finds that a change of placement for X is necessary, residence with her maternal grandparents is a better option than relocation to Queensland. The temperament, needs and views of the child must be considered. X is a conscientious, socially responsible (perhaps hyper-responsible) child who would feel anxious about the welfare of mother and baby sister if she moved interstate. She has not expressed a desire to do so, despite being a forthright, articulate girl. She is happily settled in school and progressing well. Currently, in her local area she is able to maintain close relationships with her mother, siblings, grandmother and grandfather (probably the most sensible, reliable and consistently available of X’s attachment figures, and possibly the person to whom she feels closest. He is a cooperative person who could facilitate the father-child relationship.) Whereas, if X went to live with her father in Queensland she would lose the safety net provided by established extended family relationships, which do not exist in the father’s environment. The father and his partner were not compelled to move to southern Queensland, and they are not compelled to stay there. There is no known impediment to them moving - further north (to be closer to paternal kin) or south (to be nearer X). It is a question of whether or not X is their top priority.
Dr A concluded that it was not in X’s best interests to live with her Father in Queensland, and that her best interests in fact lay with residing mainly with the Maternal Grandparents. She was of the view that even though the Maternal Grandparents already were, in effect, de facto carers for X, it was preferable for this arrangement to be formalised. In her view, the Mother should not have sole parental responsibility, “…as she cannot be trusted to make decisions in a child’s best interests.” (Paragraph 75). Dr A was of the view that the parents could not share parental responsibility, though it would be workable for the Maternal Grandparents to share parental responsibility with the Father. She recommended that X visit her Father during school holidays and have free telephone and other communication with her Father and step-mother. At paragraph 80 Dr A recommends:
Alternatively, in the event that the Court orders that X is to reside with or spend substantial time with her mother, and/or that the mother continues to exercise parental responsibility in some measure, then Ms W should be restrained from relocating with X without the permission of the Court. X should remain living in the catchment area for (omitted) Public School.
When the competing proposals as at the final hearing are compared with Dr A’s recommendation a number of things become painfully apparent. First, the Mother was in fact seeking an order that X live with her. Second, the Maternal Grandfather was only seeking an order that he share parental responsibility. Thus, even before the hearing commenced there were some quite important issues in relation to Dr A’s recommendations.
At paragraph 68, Dr A clearly expresses concern about the Mother’s capacity to consistently parent. Those concerns are repeated at paragraph 69. At paragraph 70 and 71 Dr A expresses concerns about the role that the maternal grandparents might play, having noted the Father’s concern in relation to them.
Even before the evidence commenced, therefore, there were reasons to be concerned about Dr A’s recommendations. Despite the many concerns that she expressed about the Mother, she nonetheless formed the professional view that X was not currently at risk of physical harm in her Mother’s care. The protective role of the grandparents was noted in the past, but seems to have been assumed for the future. Moreover, there is no clear assertion in Dr A’s report that X could not cope with the transition into her Father’s care, though the Court acknowledges that an implicit underlying theme of Dr A’s report is that placing X in her Father’s care would be a significant change in her life. The main point of Dr A’s report seemed to be, however, that there was no need to bring about this change.
Dr A was cross-examined on the last day of the hearing. All of the Counsel cross-examined her. A number of points emerge from cross-examination:
a)X is not sufficiently self-empowered to confront her Mother in the event, for example, that her Mother relapses into drinking. Dr A was of the view that X would seek help from the Maternal Grandfather, however, if this occurred. The Court makes this observation. It does not regard the question as implying that X should have a role in confronting her Mother’s problematic behaviour, should it arise. Indeed, it would be entirely inappropriate for a child of X’s age to do this. What is concerning for the Court, however, is the evidence in the material produced on subpoena suggesting that when Mr O saw his Mother drinking, at a period when he was living with her, he poured the wine down the drain. An obvious concern for the Court is that X should never be placed in the same position. The extent to which the Court can be reassured about this is entirely dependent on being satisfied in relation to the Maternal Grandfather’s protective role.
b)Dr A was of the view that even though X had seen a lot in her life, she had not developed a dependent attachment style. She had not yet become a caretaker for her Mother, but the risk was that she might progress to that. Again, the Court observes, this is a significant concern for the Court. If there is the risk that X would progressively adopt a caretaking role for her Mother, the Court would consider that quite unacceptable, and not in her best interests.
c)Dr A accepted that there was a risk of relapse for the Mother back into alcohol abuse, but she was of the view that the Maternal Grandfather was sufficiently protective and would intervene if the need arose. Short of that, Dr A did not see the need to disrupt X’s life at this point.
d)Dr A considered it a positive for the Mother that A, her oldest son, would move back in with her. This suggested that A considered his Mother positive. She mentioned that X said that A was her favourite brother. The Court’s concern, however, is that it did not have any evidence about A, or from A. There is very little information about why A has moved back in with his Mother. Dr A’s hypothesis that the move reflects A’s confidence in his Mother’s stability is unsupported by the evidence. There could be other pragmatic reasons for the move.
e)Despite the fluctuating relationship between the Mother, and Maternal Grandmother, the latter was probably a protective factor in the Mother’s life, according to Dr A. She did not think that the Maternal Grandmother presented any risk of harm issues (the evidence before the Court suggest that the Maternal Grandmother herself had some mental health issues, and criminal history relating to shoplifting). Dr A, however, went on to say that if there was the need to remove X from her Mother’s care due to child protection issues, the Department of Family and Community Services would probably intervene, and look at kinship placements. In that context, the Maternal Grandmother’s mental health issues would be part of that assessment. The Court observes, however, that to the extent that Dr A was expressing some form of confidence that the Department would intervene in this case, the Court simply does not share any such confidence. This is based solely on the Court’s own experience in this Registry. It does not address risk of harm considerations, from this Court’s perspective, to consider the possibility of departmental intervention.
f)Dr A agreed she could not be 100 per cent sure that the Maternal Grandfather would intervene should the Mother relapse either into problematic alcohol use, or entering into another dysfunctional relationship. She accepted the grandparents, as a matter of generality, are often deeply conflicted between loyalty to a child, and loyalty to a grandchild. Indeed, the Court observes, this was a theme of the Father’s case, and will be discussed below.
g)In relation to the Mother’s alcohol use, Dr A was clearly concerned that the Mother continued to consume alcohol, even if the moderate levels deposed to by the Mother were correct. Her professional opinion, consistent with research, was that abstinence worked best where there is a history of past problematic alcohol abuse.
h)Dr A had no confidence about the Mother’s motivation, or capacity, for self-change. She lacked insight into her personal vulnerabilities. This was part of the reason for Dr A being so strongly of the view that the Mother needed to abstain completely from alcohol. Dr A took no comfort from the Mother’s assertions that she was undertaking relapse prevention counselling and would consider Alcoholics Anonymous if necessary. She explained that often this reflected that a person with past problematic alcohol use issues had merely received good advice, or was acting in her own rational self-interest.
i)Dr A stated that one relapse factor for the Mother was relational stress, which was a real vulnerability for her. The fact that the Mother was not presently in a relationship was reassuring but, in reality Dr A hypothesised, relationships come and go.
j)Thus, whilst recognising the concern that the Maternal Grandfather would either not intervene when required, or not be aware of the relevant risk issue, Dr A still felt that presently the best safety net for X was the Maternal Grandfather’s extensive involvement in her life.
k)Counsel for the Father asked Dr A to comment on the evidence presented before the Court suggesting that the Mother had mislead the Court at the time she sought recovery of X in May 2015, and that in fact X had been recovered into a toxic and highly dysfunctional home environment consisting of the Mother, and Mr I. Dr A agreed this was concerning, that it demonstrated the Mother’s poor judgment, but most importantly agreed that it reflected a crisis that was part of an ongoing cycle of crises in the Mother’s life. Dr A accepted that the Court might be concerned about the next crisis, especially when the Mother had such limited capacity to be a mature, fully functioning, responsible adult. Nonetheless, Dr A still felt the best outcome for X was living with the Maternal Grandfather. She accepted, however, that X should live with her Father if the Maternal Grandfather were not present. She accepted that the Maternal Grandfather would need to continue to be highly involved in X’s life until she were at least 16. She was confident that he would act on any reports that X made, even though he failed to do so in April 2015 when the Father retained X. Dr A did concede, however, that it was unlikely that the Maternal Grandfather would disclose issues of concern about the Mother in the same way as the Maternal Grandmother did. She accepted that the Court would be concerned about this. Dr A accepted that the Maternal Grandfather loved X very much, but he did so in 2015 as well, and failed to act, though went along with the Maternal Grandmother’s actions in talking to the Father. Dr A agreed that the Court would have to be satisfied that the Maternal Grandfather would prioritise X’s interests, over the Mother’s interests.
l)Dr A reiterated that this was a difficult balancing exercise for the Court. She felt there was no risk of harm at the moment. Her view was that if there were enough safeguards in place, at the moment, it was best not to disturb X’s existing networks. She agreed that there were no risks of harm in the Father’s care, but was concerned about the anxiety, grief and guilt that X would experience in moving into her Father’s care, and the disruption in the relationships with the Mother, the maternal grandparents, and her siblings.
m)Dr A’s final point in re-examination was to reiterate that she found the Maternal Grandfather to be a good man who values social harmony, but who likes to avoid confrontation. The Court observes, therefore, that it must assess the Maternal Grandfather’s capacity to confront the Mother about her problematic behaviour and decisions.
Dr A’s evidence was very helpful to the Court. It provides a lens for understanding the remaining evidence, particularly of the Mother and the Maternal Grandfather. Her recommendations, however, need to be considered in the light of all of the evidence in the case.
The Mother’s Evidence
The Mother was an unimpressive witness. She was a poor historian. She openly acknowledged that she struggled to remember things. Regrettably, the Court finds that she actively misled the Court at the time of the recovery application in 2015. This evidence, which the Court will discuss below, together with other evidence given by the Mother leads the Court to be deeply concerned about the reliability of the Mother’s evidence in relation to the critical risk of harm and parenting capacity aspects of this case.
As a result of the cross-examination of the Mother by the Father’s Counsel, the Court finds as follows:
a)The Mother’s affidavit of 17 April 2015, filed in support of her recovery application, contained a number of material misrepresentations, and omissions. This Court believes that if all the relevant evidence had been placed before the judge who ultimately made the recovery order, His Honour would have either hesitated and called for more evidence, or perhaps even denied the Mother’s application.
b)The Mother failed to disclose to the Court that at the time she was in a relationship with Mr I that was characterised by alcohol abuse, and possibly even violence. At the time she was living in his home, and in a committed relationship. She had described Mr I to her doctor, as her partner. They were planning to have a baby.
c)The Court does not accept the Mother’s explanation that she did not think this information was relevant. The Court does not accept the Mother’s description of the relationship with Mr I as being “on/off all the time”. In cross-examination on this issue the Mother demonstrated what Dr A referred to in the last sentence of paragraph 35 of the family report – behaviour which was: “…shallow, glib, simple-minded and egocentric”.
d)The Mother failed to disclose to the Court that she had an extensive criminal history involving stealing and related offences.
e)She failed to acknowledge that the Father’s allegations about her drinking and gambling had some substance.
f)The Mother failed to disclose that she was depressed at the time, and had a history of depression. She was on a mental health plan that predated the Father’s retention of X.
g)The Mother failed to disclose that she had mental health issues that included depression and threats to harm herself. Indeed, on one occasion she had overdosed on her antidepressants. The Court finds that her denials of this are plainly inconsistent with the objective evidence produced on subpoena. The Mother minimised recorded events that plainly, and reasonably, could be interpreted as self-harm attempts.
h)The Mother misrepresented the allegation of family violence that she had experienced. She failed to refer to the violent relationship with Mr B and, indeed, it was the Father who drew this to the Court’s attention, not the Mother. She failed to accurately represent the nature of the relationship with Mr I.
The totality of the evidence before the Court leads it to find that X was recovered into a toxic and dysfunctional home environment in which her Mother and her partner routinely abused alcohol. The Court finds that the Mother’s later characterisation of Mr I as being an alcoholic was convenient, and that in reality he was as much an alcoholic at the time of recovery, as he was at the later period towards the end of their relationship as the Mother asserts. X was returned to an unsafe environment because the Mother misrepresented the situation to the Court. Moreover, as the Court will find based on the Maternal Grandfather’s evidence, he allowed this to happen in circumstances where the Court finds he either knew of the dysfunctional environment, or should certainly have known and intervened, but did not do so.
Quite apart from the very serious issues discussed above, the Mother’s evidence about her alcohol consumption was problematic, and minimalistic. In cross-examination she agreed that it was not until her third affidavit that she admitted some issues in relation to alcohol use. In a moment of frankness she acknowledged to the Court that even small amounts of alcohol consumed at a time when she was on medication would lead her to become intoxicated. The Mother’s own evidence suggests that she was on medication, namely antidepressants, for extensive periods and, indeed, in all likelihood all of the time except when she was pregnant.
The Mother agreed in cross-examination that at no point in her evidence, in her many affidavits, did she ever provide a full account and history of her consumption of alcohol. She agreed with Counsel’s characterisation that there was the odd “throw away comment” and no detail. She agreed that she did this even when confronting the Father’s case that it was a serious issue for the Mother. Her response was to say, in effect, that the Father was exaggerating and that in any event: “I don’t drink the way I used to.” She agreed, however, with Counsel’s observation that her proposition was impossible to test, and understand, given that she did not provide a history of her alcohol consumption.
A disturbing theme in the Mother’s evidence in cross-examination was externalising responsibility for her past problematic alcohol use. At one stage she blamed it on the Father, asserting that whilst he was working at a hotel, he would steal alcohol and bring it home. When Counsel pointed out to her that this assertion had never been made before in her evidence, she insisted that she was right, even though Counsel’s proposition was correct.
The Mother denied that she ever hid alcohol. The Court considers this evidence to be inherently unlikely. Indeed, one of the FACS files suggest that Mr O emptied the Mother’s wine down the drain. It is unclear how old he was when he did this. A number of possibilities arise. He may have found his Mother’s wine, perhaps hidden, and disposed of it. Another possibility, of course, is that he disposed of it in the Mother’s presence. Either scenario is plainly unacceptable, and speaks of the Mother’s problematic alcohol consumption. But the Court will never know what actually took place because the Mother’s evidence in this regard is plainly unreliable. Quite apart from minimalising the issue, she sought to externalise responsibility onto others, including the Father.
When the Mother denied in cross-examination that she sometimes became an aggressive drunk, this is plainly inconsistent with New South Wales Police records. When the Mother was confronted with these records, the Mother she said she did not recall the events. Of course that is likely because she was so intoxicated at the time.
The Mother’s evidence about her alcohol use is inconsistent as between her affidavits. At one point she denied that she still drank at home, but at another point in cross-examination she gave evidence of drinking alcoholic cider at home. This evidence was corroborated by the Maternal Grandfather. When given the opportunity to clarify her consumption of alcohol at home, she explained that at times she would have a wine with dinner, and it might be once every few weeks. She then explained that she also drank alcoholic cider.
The Mother explained that she went to see a drug and alcohol counsellor in December 2016 because it was what Dr A recommended in her report. She agreed that she referred herself to Brighter Futures, for the same reason.
The Mother agreed that one condition of the travel orders made on 5 August 2015 was that she not consume alcohol. Indeed, this was one of the conditions that a differently constituted court made to manage the risk considerations involved with the Mother travelling with X. The Mother agreed in cross-examination that she did not comply with this order, but insisted that she was not intoxicated, as if this evidence would reassure the Court.
One of the Father’s concerns in this matter is that the Mother has sought to exclude him from decision making in relation to X, as part of an effort to exclude him from X’s life. There are obvious problems with the Father’s contention. For example, the evident excellent relationship that he has with X suggests that if this was the Mother’s strategy, it has failed. In any event, the evidence suggests that the school holiday contact has been facilitated by the Mother, with the usual problems expected of parents who cannot communicate with each other, and who distrust each other. Nonetheless the cross-examination of the Mother demonstrated why the Father would be concerned. For example, when the Mother saw her counsellor in 2015, she gave a picture of X’s life in which the Father was conspicuously inconspicuous, despite the reality. The Father gets but scant mention in applications for enrolment at school.
The Mother was cross-examined about her criminal history. On any objective assessment of the evidence before the Court, and even accepting the Mother’s own statements in these records, she was addicted to shoplifting. She was, at that stage, a kleptomaniac. She continued to offend for many years after she was charged, convicted, and entered into diversionary programs. In all likelihood, the Court concludes, it was only a period in jail that broke the addiction the Mother had. The relevance of these historical events is twofold: first, the Father’s complaint that he was not told that the Mother was incarcerated and that X was in the Maternal Grandparents’ care is substantiated. The Mother’s explanation is that she asked her parents to tell the Father. But even if this is the case, and the Court is sceptical about this, it of course raises the second important issue. The totality of the evidence before the Court is consistent with the Father’s assertion that he was not told when the Mother was incarcerated, and X was in her Maternal Grandparent’s care. There was no adequate explanation from the grandparents as to why this is the case. It begs the question of course, also central to the Father’s case: if the grandparents would not tell him of something as significant as the Mother’s incarceration, could they be trusted to tell him about the Mother’s relapse into alcohol abuse, criminality, mental health issues or dysfunctional relationships?
The Mother was cross-examined about a diversionary program that she participated in in 2009, described as a forum sentencing plan. She agreed that there is no reference whatsoever in these records to the Father, at all. Her explanation was: “He was having an affair”. It was put to the Mother in cross-examination that the Father did not know of the charges. He says he did not. She insisted that he knew. The Mother’s evidence in this regard is unreliable. If the Father indeed knew one would reasonably have expected to see some reference to him in the relevant records. In any event, the Mother agreed that she had only completed three out of five of the commitments that she had entered into. Indeed, she acknowledged that she continued shoplifting throughout the period. In addition, she agreed that some of the records highlighted the gambling problem that she was having at the time. She accepted that she was spending, in 2011, between $100 and $200 per week on gambling, when she had the money.
Another interesting feature about this evidence, and these records, is that the Maternal Grandfather was actively involved in the diversionary program, and represented that he would continue to assist the Mother. Even so, the Mother failed the program and was eventually incarcerated. The Maternal Grandfather’s history of being able to authoritatively intervene in the Mother’s life is probably the best indicator of his future capacity to do so.
When the Mother was cross-examined about her heavy alcohol consumption during her relationship with both Mr B and Mr I, she emphasised that they drank when X was not around. Of course, this merely demonstrates the Mother’s enormous lack of insight. By focusing on the act of consuming alcohol, she conveniently ignores the potential implications on children in her care of funding the purchase of that alcohol, and then the subsequent recovery from excessive alcohol use. There is more than ample evidence before the court to suggest that the Mother struggled to get up in the morning. Returning to the time that the Mother sought recovery, in cross-examination she acknowledged that she was drinking heavily at the time, that the Maternal Grandmother knew that, and the Maternal Grandmother also knew that the Mother’s relationship with Mr I was a turbulent one. Indeed, the Court finds that the Maternal Grandfather knew these things, but was focused on trying to provide stability and safety for X, to the extent he was able.
The Mother was cross-examined as to why the Maternal Grandmother was not in Court, and had not provided evidence. She explained that the Maternal Grandmother was presently looking after the children, and that was why she was not giving evidence. By contrast, the Maternal Grandfather’s evidence was that the Maternal Grandmother did not give evidence because of her mental health issues. His evidence is more plausible, than the Mother’s. The Mother’s attitude about the concerns expressed by the Maternal Grandmother initially to the Father at the time that he retained X in his care, and then later to Dr A in her report, is that there was exaggeration. In cross-examination it was put to the Mother, and the Court entirely concurs in this regard, that the Mother was once again minimising the problems that she was confronting at the time. Indeed, she denied that the Maternal Grandfather was, in his evidence, minimising the nature and extent of his support for the Mother, and X. On balance, the Court does not accept the Mother’s explanation and, indeed, having regard to the totality of the evidence, it is more likely than not that the Maternal Grandfather is minimising the nature and extent of his support for the Mother, and X.
The Mother agreed in cross-examination that X had witnessed the conflict between the Mother and both Mr I, and Mr B. There is clear substance, therefore, in the Father’s concerns that X had been exposed to family violence, whilst in the Mother’s care.
The Mother was cross-examined about her allegations about the Father’s family violence. The concerns that the Court has about the Mother’s credibility generally casts a shadow over her assertions. As it turns out, the Mother’s family violence allegations do not play a significant role in the determination of this case. Even on her evidence, the allegations are historical. The proposals that the Mother makes for the Father’s time with X, and her past proposals for such contact, all seem inconsistent with the allegations that she makes against the Father.
Indeed, the clearest evidence before the Court suggests that both historically, and as recent as during the hearing itself, the Mother sent abusive text messages to the Father, and made abusive telephone calls to him. The text messages were in evidence. She did not dispute them. At best, her explanation was that her messages were retaliatory for his, but she could not present any evidence about this. Some of the messages come late at night. On Monday night 12 July 2017, two nights before the hearing commenced, the Mother sent a Father a series of 12 text messages which were clearly critical, and abusive, and strongly suggest that the Mother continues to harbour strong feelings against the Father, arising out of the breakdown of their relationship, even though this was six years ago.
When it was put to the Mother that X was, in reality, exposed to the very negative feelings that she has about the Father, the Mother denied the same. It is very difficult to accept this evidence in view of the pervasive concerns that the Court has about the Mother’s evidence. If the Mother has sought to denigrate the Father in X’s presence, fortunately there is no adverse manifestation of this in terms of X’s relationship with her Father.
Counsel for the Independent Children’s Lawyer further probed in cross-examination about the Mother’s alcohol use. She agreed that she did not have a relapse plan to prevent her relapsing into alcohol abuse. She accepts that this may have been mentioned in her drug and alcohol counselling. She seemed to be aware that even if her alcohol use was under control, it could relapse. She understood relapse to mean drinking enough to get drunk. She accepted that on New Year’s Eve last year she probably had six drinks. When asked about abstinence, she explained that she did not have the same interest in drinking as she had before and, thus, implicitly, did not feel the need to be abstinent. She accepted that drinking was associated with feeling stressed, and with the partners that she had. When asked whether she accepted that she did have a problem in the past, and was in denial at the time, she said words to the effect: “Yes, deep down I knew I had a problem but I didn’t address it”. She accepted the proposition that if she did not own up to having a problem, there would always be a problem.
The Mother explained that she does not have alcohol in the house, other than for cooking purposes. Her last drink at home was when X was with her Father in Queensland during the school holidays. She purchased two alcoholic ciders. She explained that she did not buy more because, “I don’t trust myself”. She explained that the ciders in question were in bottles, with an alcohol content of 4.5 per cent, which she drank whilst watching TV. When Counsel asked whether X was present, the Mother insisted that she was not, as she was in Queensland with her Father. She volunteered a statement to the following effect, in cross-examination: “She’d know if I was drunk and she’d tell my parents”. The Court is concerned about this statement. Implicit in the statement is a confidence on the Mother’s part that X, who is only 10 years old, would recognise when her Mother was intoxicated. A reasonable assumption is that this is based on history. A further reasonable assumption is that the Mother’s confidence that X would tell her parents, is also based on history. Disclosure to the Maternal Grandparents, therefore, may depend on X’s disclosure, not the Mother’s. Of course what is highly problematic from the Court’s perspective is that X should be placed in this situation. From the Court’s perspective, this is quite unacceptable. The Mother’s statement implies that she sees no problem with this.
The Mother was cross-examined about whether she had considered resuming her relationship with Mr I. She agreed, saying words to the effect that, “It crossed my mind, but I don’t think he’d ever change”. She accepted it was hard to break up with him. She accepted that in November 2016, in discussions with her general practitioner, she had considered reconciliation with him. She agreed that she had had a communication with Mr I via text message.
The Court’s concern, of course, is that the mere contemplation by the Mother of the possibility of reconciliation with Mr I is again reflective of her deep lack of insight. It provides little reassurance to the Court that the Mother can prioritise X’s needs, over her own. Of course, Mr I is the Father of the Mother’s youngest child. It would be naïve to think that, somehow, Mr I is neatly excised from the Mother’s life ad infinitum. Literally in the next breath, in cross-examination, the Mother agreed with Counsel that Mr I was violent.
There are obvious concerns about the Mother’s evidence. It is plainly understandable why Dr A’s preference was that X live with the Maternal Grandparents. It is hard to understand, however, how Dr A could contemplate the possibility of X either living with, or spending substantial time with her Mother, in preference to living with her Father, given the evidence set out above.
That each party may liaise directly with the child’s school principal or teacher to obtain any information about the child’s progress at school including information about events such as swimming carnivals, sports days, parent/teacher interviews and other educational activities such as arranging for sending out newsletters, school photos and academic report cards directly from the school.
That the parties shall keep each other informed as soon as reasonably practical of:
(a) Any medical problems or illnesses suffered by the child, whilst in their care.
(b) Any medication that has been prescribed for the child.
(c) Any medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the child.
That both parties are restrained by injunction from making critical or derogatory comments about the other parent, or members of that parent’s family, in the presence or hearing of the children, and that each party shall do all things necessary to ensure that no other person makes such comments in the presence or hearing of the children.
Minute of Order – Father
Parental Responsibility
The father and maternal grandfather have equal parental responsibility in relation to the long term issues relating to the care, welfare and development of the child X born (omitted) 2007 including but not limited to:-
1.1.The child’s education (both current and future);
1.2.The child’s religious and cultural upbringing; and
1.3.The child’s health.
In exercising parental responsibility in accordance with Paragraph 1, the father and the maternal grandfather:
2.1.inform each other about the decision to be made;
2.2.consult with each other on terms that they agree;
2.3.make a genuine effort to come to a joint decision; and
2.4.keep the mother at all times informed as to the major long term issues relating to the child and:-
2.4.1.Attempt to communicate to the mother the decision to be made; and
2.4.2.Inform the mother of the final decision made within Twenty-Four (24) hours of making the decision.
The father ensure that an email is sent each fortnight to both the mother and the maternal grandparents providing an update in relation to the child’s wellbeing, development, progress and any other matter affecting the child and provide the mother and the maternal grandparents with at least two (2) photos of the child. In order to do so, the mother provide to the father details of both hers and the maternal grandparents’ email addresses within Seven (7) days of the date of these Orders.
Living Arrangements
The child live with the father in (omitted) and spend time with the mother and/or the maternal grandparents as follows:-
4.1.During each school holiday period as detailed in Paragraph 8 of these Orders;
4.2.For up to Two (2) occasions per school term from the conclusion of school on Friday through to the commencement of school on Monday (or the commencement of school on Tuesday should the Monday be a Public Holiday) in the event that the mother and/or the maternal grandparents are in the (omitted) District;
4.3.For up to Two (2) occasions per school term at all times as can be arranged in the event that the father and the child travel to a location in which the mother and/or maternal grandparents are residing.
The mother and/or the maternal grandparents be at liberty to contact the child when the child is not in the mother’s care and/or maternal grandparents’ care at all times as agreed between the parties but in particular, between 6.30 pm and 7.30 pm on Tuesdays, Thursdays and Saturdays with such communication to occur by any electronic means, whether telephone, Skype, Facetime.
The father be at liberty to contact the child during any time that the child is not in his care at all times as agreed between the parties but in particular, between 6.30 pm and 7.30 pm on Tuesdays, Thursdays and Saturdays with such communication to occur by any electronic means, whether telephone, Skype, Facetime.
The mother and/or the maternal grandparents and the father will facilitate the child communicating with the other parent or extended family members by telephone, Skype or any other electronic means, at all reasonable times should the child express a wish to communication with such parties and such communication is to occur in privacy and without the use of speakerphone.
Holidays and Special Occasions
The usual living arrangements in Order 4 continue during each school term except for the school holiday periods during which time the child spends time with:-
8.1.The father for the first half of the school holiday period in odd numbered years and the second half in even numbered years; and
8.2.The mother, provided that the material grandparents are available to assist the mother in the care of the child during this time, for the first half of the school holiday period in even numbered years and the second half in odd numbered years.
That irrespective of whether the child is attending school, a "school holiday" period be defined as:-
9.1.the Queensland Gazetted Primary School Holiday period;
9.2.commencing on the last day that the child is required to attend at school for the purposes of the previous school term;
9.3.concluding on the first day that the child is required to attend at school for the purposes of the new school term;
9.4.Including all public holidays and pupil free days as scheduled by the school from time to time;
9.5.The midpoint of the holiday period be at 9.00am on the day which falls in the middle of the school holiday period.
The father be responsible for making all travel bookings and meeting the cost of the child’s travel to the mother in Sydney in relation to the school holiday time that the child is to spend time with the mother pursuant to these Orders.
For the purposes of Order 8, the child will depart (omitted) no earlier than 4.30 pm and return to (omitted) on a flight which is due to arrive in (omitted) no later than 8.00 pm.
Notwithstanding the above, in the event that the parties are within Fifty (50) kilometres of each other on any of the below special occasions, then the child spend time with the other parent as specified:-:-
12.1.On Christmas Day for a period of not less than six (6) hours at times agreed between the parents and failing agreement from 12.00pm until 6.00pm on Christmas Day;
12.2.with the Father from 9.00am until 5.00pm on Father's Day;
12.3.with the Mother from 9.00am until 5.00pm on Mother's Day;
12.4.on the child's birthdays for not less than five (5) hours on a non-school day or three (3) hours on a school day at times to be agreed between the parents and failing agreement from 12.00pm to 5.00pm (5 hours) or 3.00pm to 6.00pm (3 hours);
12.5.on the mother's birthday at times agreed between the parents and failing agreement from 3.00pm to 6.00pm; and
12.6.on the father's birthday at times agreed between the parents and failing agreement from 3.00pm to 6.00pm.
In the event that the parents are not living within Fifty (50) kilometres of the child and the parents are not within Fifty (50) kilometres of each other on any of the Special Days listed in Paragraph 12 above, then the other parent be afforded Skype communication with the child on such special occasions at a time to be agreed between the parents but in particular, from 6.30 pm to 7.30 pm on that day.
Travel within Australia
Each parent be at liberty to holiday with the child within Australia but outside of the District in which they usually live during their time with the child pursuant to these Orders provide that if the parent proposes to take the child outside of the District in which they usually live in excess of Three (3) nights, they provide the other parent with the following information at least Seven (7) days prior to travel:-
14.1.Proposed holiday destination or destinations;
14.2.Travel arrangements and accommodation details for the child;
14.3.Details of persons with whom the child will be staying with whilst on holidays;
14.4.Telephone contact number for the child whilst the child is absent from the District in which they usually live;
14.5.A travel itinerary including times and dates of travel and fully paid return flight or travel details if applicable; and
14.6.Contact the other parent within 24 hours upon return to the District in which they usually live to inform the other parent of a safe return in the event that the travel away from the District in which they usually live includes camping arrangements.
Travel Outside of Australia
In the event that either parent wishes to take the child outside of Australia, the parent who proposes such travel shall seek the consent of the other parent in writing no later than Thirty (30) days prior to the expected date of travel and provide the other parent with the following details at least Fourteen (14) days prior to travel:-
15.1.Proposed holiday destination or destinations;
15.2.Travel arrangements and accommodation details for the child;
15.3.Details of persons with whom the child will be staying with whilst on holidays;
15.4.Telephone contact number for the child whilst the child is absent from the District in which they usually live; and
15.5.Copies of formal, fully paid return flight itineraries and travel bookings for the child including times and dates of travel; and
15.6.An undertaking to the court which is capable of being filed stating that they will return the child to Australia in accordance with the return flight details provided to the other parent in accordance with these Orders.
Neither parent be permitted to travel to any overseas destination which is not a signatory to the Hague Convention unless written consent is obtained at least Sixty (60) days prior to travel. Consent of the other parent is not required in the event that a necessary flight change is required throughout Asia or any other continent in the event that the overseas flight requires such a stopover for not more than Six (6) hours.
During any overseas holiday period, the child have contact with the parent with whom the child is not spending time with on Two (2) occasions per week at times and days as agreed to between the parties with the parent with whom the child is spending time with to facilitate and place the telephone call.
Passports
Within Seven (7) days of the date of these Orders the mother provide the Federal Circuit Court of Australia Registry at Wollongong with the child’s original Passport.
That the Registry of the Federal Circuit Court retain the child's passport for safekeeping. That the child's passport be released to a parent with the written consent of both parents or Order of the Court. Neither parent will unreasonably withhold their consent to the child's passport being released.
Both parties sign all documents and do all acts necessary in order to obtain and/or renew the child's passport from time to time as may be required and within Fourteen (14) days of a request to do so by the other parent wishing to obtain and/or renew the child's passport. The cost of obtaining the child's passport and/or renewing the child's passport is to be borne solely by the party wishing to do so.
Authorities
The father ensure that all educational and medical providers as well as any other organisation relevant to the child are informed of and provided with the mother’s and the maternal grandparents’ contact details and an authority to speak with the mother and the maternal grandparents in relation to the child’s progress.
Both parties administer all medication prescribed or recommended to the child by a qualified medical practitioner.
In the event the child is injured or there is any medical or health matter concerning the child, the parent having the care of the child at the time must notify the other parent with respect to such notice as follows:-
23.1.Should the injury, medical or health matter include the child being taken to hospital or receiving urgent medical treatment, the parent who has the care of the child is to notify the other parent immediately;
23.2.Should the injury, medical or health matter not involve the child being taken to any hospital or receiving urgent medical treatment, then the parent who has the care of the child is to notify the other parent within twenty-four (24) hours of becoming aware of the matter.
Both the mother and father be restrained and an injunction issue restraining them from:-
24.1.the use of excessive physical force upon the child when disciplining them, and the mother and father shall ensure that no one else excessively physically disciplines the child;
24.2.the consumption of alcohol to excess in the presence of the child, and the mother and father shall remove the child from the presence of anyone else who is consuming alcohol to excess in the presence of the child;
24.3.the use of any prohibited drugs whilst the child are in the parents care and for a period of at least Forty-Eight (48) hours prior to the child coming into their care, and the mother and the father shall remove the child from the presence of anyone else who is using prohibited drugs;
24.4.taking prescribed drugs in excess of the prescribed dosage whilst the child are in their care; and
24.5.denigrating the other parent, their partner or their family, to or in the presence of hearing of the child and are to ensure that no one else denigrates the other parent, their partner or their family to or in the presence or hearing of the child.
Counselling
Within Seven (7) days of the child relocating to (omitted) to live with the father, the father arrange an appointment for her to attend with Ms L of (omitted) for the purposes of receiving ongoing counselling regarding the relocation to (omitted), change in living arrangements, continued contact and connections with the mother and maternal grandparents with such counselling to continue until otherwise as recommended by Ms L.
The father to pay all costs associated with the child’s attendance on Ms L.
The father is to ensure that the mother and maternal grandparents are provided with all of Ms L’s contact details and provide full authority to Ms L to communicate and contact the mother and maternal grandparents in order to involve them in the counselling process.
Leave be granted for Ms L to be provided with a copy of the following:-
28.1.The Final Orders of the Court in relation to the child’s living arrangements; and
28.2.A copy of the Single Expert Report dated 21 June 2016.
Schooling
Within Seven (7) days of the date of these Orders the father ensure that the child is enrolled at the (omitted) State School and forward to the mother all details in relation to the school and ensure that the school is advised as to the mother’s contact details.
Minute of Order – Independent Children’s Lawyer
That the Mother and the Father and the Maternal Grandfather (Mr J) shall have equal shared parental responsibility for the child, X (dob: (omitted) 2007), including but not limited to, decisions relating to:
1.1Education
1.2Religion
1.3Health and medical
1.4Child's living arrangements.
That the Maternal Grandfather and the Father shall communicate about all major long-term decisions to be made for the child.
That the child live with the Mother.
That the Mother be restrained from relocating with the child outside of the (omitted) area or no further than a 10-kilometre radius from the Maternal Grandfather's current residence.
That the child spend time with the Father as agreed; but in the absence of agreement as follows:
5.1During NSW School Terms:
5.1.1For two weekends in each school term as agreed and failing agreement on the 3rd weekend of school term and the 6th weekend of school in the (omitted), or Sydney Area or if flights can be arranged then such time take place in Queensland at the Father's residence from the conclusion of school on a Friday (or such earlier time as agreed) until the Sunday evening (or Monday evening if it is a long weekend or a pupil free day).
5.2During NSW School Holidays:
5.2.1For 9 days in each of the NSW school holiday period at the conclusion of terms 1, 2, and 3 as agreed; but in the absence of agreement from Saturday after school concludes for 9 days of that holiday period in even numbered years and the last 9 days of the school holiday period in odd numbered years.
5.2.2For three weeks of the NSW school holiday period at the conclusion of term 4 as agreed; but in the absence of agreement for the first three weeks of that holiday period in odd numbered years including Christmas day in odd numbered years and the last three weeks in even numbered years.
5.3On Special occasions and it is not already a time the child is spending with the Father:
5.3.1On Christmas Day in even numbered years the Father communicate with the child by telephone or other electronic means between 9am and 10am;
5.3.2On Father's Day the Father communicate with the child by telephone or other electronic means between 9am and 10am;
5.3.3On the child's birthday the Father communicate with the child by telephone or other electronic means between 9am and 10am.
5.4On Special occasions and it is not already a time the child is spending with the Mother:
5.4.1On Christmas Day in odd numbered years the Mother communicate with the child by telephone or other electronic means between 9.00 am and 10.00am.
That for the purpose of travel during school holiday time and during the school term:
6.1For the first 9 days of school holidays the time shall commence on the Saturday after the last day of school term and conclude no later than 4pm on the day 9 days later of the holidays.
6.2For the latter period of the school holidays commencing 9 days prior to the child returning to school and conclude by no later than 8.00pm on the last day of the school holidays.
6.3The Father shall meet the costs associated with the child’s travel to and from the Respondent Father’s home in Queensland to Sydney Airport.
6.4The Mother shall meet the costs associated with the child's travel to and from the Mother's home to Sydney Airport.
6.5The Father will be responsible for all bookings and flights and advise the Maternal Grandfather of the details within 7 days of making the arrangements.
6.6That the Mother or her nominee deliver the child to the representative of the Airline nominated by the Father at Sydney Airport and the Father to collect the child from (omitted) Airport, or such other airport as nominated by the Father.
6.7The parents agree for the child to travel as an unaccompanied minor for the travel to and from Queensland.
That the child shall communicate with the Father via Skype, Facetime, telephone and any other form of electronic communication between 6.30pm and 7.30pm on at least three occasions per week when the child is living with the Mother as agreed and failing agreement each Tuesday, Thursday and Saturday between 6.30pm and 7.30pm.
That the child shall communicate with the Mother via Skype, Facetime, telephone and any other form of electronic communication between 6.30pm and 7.30pm on at least three occasions per week when the child is living with the Father as agreed and failing agreement each Tuesday, Thursday and Saturday between 6.30pm and 7.30pm.
That the Maternal Grandfather do all acts necessary to remove the child from the Mother's household and inform the Father in the event of the following:
9.1That the Mother exhibits symptoms of her being intoxicated in the presence of the child;or
9.2That the Mother exposes the child to domestic violence.
That the Mother, Father and Maternal Grandfather shall ensure that they keep each other informed as soon as it is reasonably practical of:
10.1Any medical problems or illnesses suffered by the child whilst in each parent’s care;
10.2Any medications that have been prescribed for the child;
10.3Any specialist medical appointments with any medical doctors, psychologists, counsellors, or therapists regarding the child;
10.4Any significant social, school or religious functions which the child is to attend;
10.5The details of any school(s) attended by the child;
10.6The details of any sporting body(ies) that the child is involved in;
10.7The residential address of each parent and Maternal Grandfather particulars of others who may live with the child, or stay overnight in the same home as the child;
10.8The full name of any person they form a long-term relationship which has lasted longer than 2 months;
10.9The telephone number and email of each parent and Maternal Grandfather;
10.10Any other important matter relevant to the welfare of the child.
That each of the parents is to provide full particulars of any medical practitioner, health service provider or institution attended by the child and provide any authority or direction necessary to enable the other parent to obtain all necessary information concerning the child.
That each of the parents are to be permitted to liaise directly with the child’s school(s) and sporting bodies to obtain any necessary information about the child’s progress and that both parents are to authorise the school(s) and sporting bodies to facilitate this.
That both parents are to provide the necessary authorities to the Principal of each school attended by the child to ensure that the school forwards to both parents copies of the child’s school reports as they fall due along with copies of all school circulars, newsletters and invitations to any school activities which parents are invited to attend.
That within 28 days of a request from one parent both parties will do all things necessary and sign any required document to obtain a passport or renew the passport on behalf of the child with the cost of obtaining such passport to be shared equally by the parties.
That the passport will remain in the care of the Mother at all times the child is not travelling with the Father and the Father will return the passport to the Mother’s care within 48 hours of returning from any overseas travel with the child.
That for the purposes of travel:
16.1The Mother and Father be permitted to take the child on a holiday overseas by providing the non-travelling parent with 90 days' notice, a complete itinerary, proof of a return flight, travel insurance policies, and contact details while on holiday.
16.2That the Mother will provide the child’s passport to the Father not less than 60 days prior to travel in accordance with Order 16.1.
16.3That the Mother and Father will provide 21 days written notice of any intention to take the child on interstate travel and agreement by the other party will not be unreasonably withheld.
That the parties be restrained by injunction from:
17.1Consuming illicit drugs in the 48 hours prior to and during any period of time with the child and each parent will remove the child immediately from the presence of any person using or affected by illicit drugs;
17.2Consuming alcohol to excess in the 12 hours prior to and during any period of contact with the child and each parent will remove the child immediately from the presence of any person consuming alcohol to excess or who is affected by the consumption of alcohol to excess;
17.3Making critical or derogatory remarks about the other party or members of the other party's family in the presence of the child and the parties are to do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about either parent or members of their families in the child's presence.
17.4Physically disciplining the child or allowing any other person to physically discipline the child.
17.5Discussing parenting arrangements with the child or in the presence of the child, or allowing any other person to discuss parenting arrangements in the presence of the child.
That pursuant to s.62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
That pursuant to s.65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Injunction
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Costs
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Remedies
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Consent
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Procedural Fairness
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