Maunder and Campion

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAUNDER & CAMPION

[2017] FCCA 2595

Catchwords:
FAMILY LAW – Parenting – children returned to Australia through Hague Convention – competing live with orders – child to live with father – concerns about mother’s parenting capacity.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 60CG, 61DA, 64B, 65D, 65DAB, pt VII

Applicant:

MR MAUNDER

Respondent:

MS CAMPION

File Number:

BRC 6584 of 2017

Judgment of:

Judge Cassidy

Hearing date:

26 September 2017

Date of Last Submission:

26 September 2017

Delivered at:

Brisbane

Delivered on:

27 October 2017

REPRESENTATION

Counsel for the Applicant:

Ms Oakley

Solicitors for the Applicant:

Logan Legal Centre

Counsel for the Respondent:

Ms McLennan

Solicitors for the Respondent:

Simpson Family Lawyers

ORDERS

Live with

That the children X born (omitted) 2007 and Y born (omitted) 2009 ("the children") live with the Father.

Shared parental responsibility

That the Mother and Father are to have equal shared parental responsibility for the children in relation to the care, welfare and development involving the children.

Orders for day to day care, welfare and development

That the Father shall have sole responsibility for making decisions about the children's day to day care, welfare and development during times the children live with or spend time with the Father.
That the Mother shall have sole responsibility for making decisions about the children’s day to day care, welfare and development during times the children live with or spend time with the Mother.

Orders for spending time arrangements with the mother

That the Mother spend time and communicate with the children at all times as can be agreed between the parents and failing agreement not less than :-
(a)During weekend one in four in the Brisbane area and during weekend three in four in the (omitted) area from after school Friday until 5.00 pm Sunday with weekend one commencing Friday 3 November 2017.

Changeovers

That for the purpose of the Mother's time with the children, all changeovers shall occur at the (omitted) Queensland. When time is in Brisbane and otherwise at the children’s school or at McDonalds, (omitted).

Special occasions/holidays

School holidays

That the children spend time with the Father for one half of all gazetted school holiday periods, being the first half in odd numbered years and in alternate years thereafter and the second half in even numbered years and in alternate years thereafter; and that any provision for time in this order that is inconsistent with school holiday time be suspended during gazetted school holiday periods.
That the children spend time with the Mother for one half of all gazetted school holiday periods, being the second half in odd numbered years and in alternate years thereafter and the first half in even numbered years and in alternate years thereafter; and that any provision for time in this order that is inconsistent with school holiday time be suspended during gazetted school holiday periods.

Mother's Day

That for the purpose of Mother's Day, when the children are not already in the Mother's care, the Mother is at liberty to spend time with the children from after school on the Friday until 5:00pm on Mother's Day.

Father's Day

That for the purpose of Father's Day, when the children are not already in the Father's care, the Father is at liberty to spend time with the children from after school on Friday until 5:00pm on Father's Day.

Telephone/Skype

That the parent not spending time with the children telephone or skype the children each Tuesday and Thursday between 5.30 pm and 6.30 pm with the other parent to ensure the children are available to take the call.

Overseas travel

That the parties agree to only take the children to a country that is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.
That the parents are at liberty to take the children for overseas holidays for up to two (2) weeks (or more by agreement between the parties) with the giving of one month's written notice to the other parent of that intention as well as details of departure, confirmation of airline flight numbers, flight times, an itinerary (detailing addresses and contact phone numbers) and copies of return airline tickets. The Parent travelling with the children shall ensure the children are able to remain in contact with the parent remaining in Australia.
That each party shall take all steps necessary to provide the children's passports to the other parent for the purpose of such overseas holidays and when the passports are not in use they are to remain in the safekeeping of the father

Additional orders

That the children attend (omitted) State School.
That neither party is to consume alcohol so as to exceed a BAC of 0.05 when the children are in their care unless the children are being supervised by an appropriate adult.
That each party keep the other informed as to his or her residential address, residential telephone number and mobile telephone numbers and shall notify the other of any change as soon as practicable but no later than forty-eight (48) hours.
That both the Mother and the Father must take all reasonable steps to ensure that the other parent is kept informed in a timely manner of any emergency relating to the wellbeing, health and care of the children while the children are in their care and in any event, within twenty-four (24) hours.
That this order operates as an authority for any professional care provider of the children (whether a day care, school, doctor, hospital or otherwise) to release any information concerning the care, welfare and development of the children to both parents. Should either parent seek any documentation in relation to the children (including but not limited to school notices, school reports, and school photograph order forms), that parent shall be at liberty to do so, with the parent seeking any documentation to be responsible for any expenses involved .
That the parties shall not denigrate the other or their family to, or in front of, or within the hearing of, the children and shall direct third parties to refrain from denigrating either party or their family to, or in front of, or within hearing of, the children and failing their compliance with such a direction shall remove the children from that environment immediately.
That the parties shall not discuss any adult issues with the children which shall include court proceedings, changes to parenting orders or agreements, and/or issued of adult conflict.
That each parent be entitled to attend all events involving the children including, but not limited to :-
(a)Sporting fixtures;
(b)Extra-curricular activities that allow for parental attendance or participation; and
(c)School/daycare functions and events that allow for parental attendance or participation and the parent who has the children in their care on the day of such activity will be responsible for the day to day care of the children at such event including the children 's transportation to and from the event unless otherwise agreed upon between the parents.
That either by telephone or electronic communication, both parents shall ensure the other parent is kept informed as soon as is reasonably practicable of:- a. any serious medical problems/emergencies or illness suffered by the children, whilst in the care of that parent (notification is to be provided forthwith with details of the illness/injury as well as the treating Doctor/hospital if applicable):-
(a)any medication that has been prescribed for the children;
(b)any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the children;
(c)the telephone contact number of the parent; and
(d)any other matter relevant to the welfare of the children .
That the parents will foster and encourage the children's relationship with the other parent.
That neither parent will assault, harass, threaten or intimidate the other parent in any way.
That in the event the parents are in dispute about these orders, or if agreement needs to be reached regarding the care, welfare and development of the children, or if these orders require amendment or variation and the like which cannot be resolved by way of communication, negotiation and signed/dated/witnessed written agreement between the parents within fourteen (14) days, the current arrangements will be maintained and the parents agree that at first instance they will attend primary dispute resolution, such as mediation, Legal Aid conference or like service, in good faith, in an endeavour to exhaust the prospects of a consensual resolution of the dispute or grievance or perceived need to amend these orders. The aggrieved parent shall be responsible for arranging such primary dispute resolution, with the costs to be shared. Should the issue not be resolved, both parents are at liberty to make further application to the court with the giving of fourteen (14) days written notice.

IT IS NOTED that publication of this judgment under the pseudonym Maunder & Campion is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 6584 of 2017

MR MAUNDER

Applicant

And

MS CAMPION

Respondent

REASONS FOR JUDGMENT

Introduction

This is a matter where the Court has been asked to decide the future parenting arrangements for two young boys, X, born (omitted) 2007, and he is 10 years old, and Y, born (omitted) 2009, and he is eight years old.

Mother’s proposal

The proposal sought by the mother was set out in her outline of case that was filed on 19 September 2017.
The order that she sought is summarised at page 1 of that outline, and it was for equal shared parental responsibility for the children. She sought that the children live with her in Brisbane and that the children spend time with the father each alternate weekend from 4.00 pm Friday until 4.00 pm Sunday and have half of each school holiday period.
The mother included a suggestion that there be special days and any other time otherwise agreed. She did not specify any particularity of the special days.
The mother sought an order for changeover to occur halfway between the parents’ residence at (omitted), and she sought that each parent be at liberty to communicate with the children by telephone or Skype each Tuesday and Thursday between 5.30 pm and 6.30 pm.
She did not really put anything more specific than that before the Court in her outline of case.

Father’s proposal

The father’s proposal was set out in his outline of case that was filed on 22 September 2017.
The father provided for the children to live with him and equal shared parental responsibility. He sought that the arrangements be by agreement with the mother, but did not specify what weekend time the mother could spend with the children. He provided that the changeover would occur at (omitted) at the (omitted). The father made some provision for special days including the children’s birthday and Christmas.
The father’s proposal was that the children to have half school holidays with each parent alternating. He has sought orders for Mother’s Day, Father’s Day, overseas travel to Hague Convention countries and additional orders that were about emergency contacts, authorities to providers, an order for non-denigration, an order not to discuss adult issues. The father also sought a specific order for the children to attend the (omitted) State School, a school they had been attending prior to their removal from Australia by the mother.

Background facts

The father was born in (omitted) on (omitted) 1981 and the mother was born in 1982 in (country omitted). Her birthday is (omitted) 1982.
The mother came to Australia from (country omitted) in around 2001, and the parties began a relationship in around 2005. They went over to (country omitted) and met the mother’s family in 2006, and that was when she was pregnant with their first child, X.
X was born in 2007, and in that year the father and mother purchased a home in (omitted). That home was put in the father’s name.
In 2008, the mother became pregnant with their second child, Y, and he was born in 2009.
The parties married on (omitted) 2010, and that ceremony occurred in (omitted). In 2011, the parties decided to leave (omitted) to travel around Australia. In October of that year, the parents decided that they would settle in (omitted) Queensland, and they were based at (omitted) at that time.
In 2012, X, their oldest son, commenced prep in (omitted) and there was a separation in August of 2012. The parents attended a mediation in October of that year and they reached an agreement that was effectively an equal time arrangement, although it was not divided on a week on/week off basis.
In 2013 in January, the parties reconciled, and in 2015 Y commenced school in (omitted), it was in that year that the parties moved from (omitted) to (omitted), where the father still lives.
In April of 2015, the mother left the family home and the parties separated and the mother leased a property at (omitted).
Between April and December of 2015, the parties again entered into an equal time parenting arrangement, pursuant to the parenting plan that they had already reached agreement on in 2012.
In December of 2015, the mother moved back into the family home. This was after the mother’s back surgery, and it was in that year that the parties agreed to enrol the children in the (omitted) State School.
In August of 2016, after a very tumultuous relationship, the parties separated on a final basis. The respondent mother did not move out of the family home, however, until November of that year, she moved out on 22 November 2016. The mother applied for a protection order on 18 November 2016. However, she withdrew that application on 9 December 2016. The mother did obtain, on 23 November 2016, a temporary protection order.
The mother had an epileptic seizure on 7 January 2017, and the result of that seizure caused her to have a car accident and she and the boys moved back into the home with the father so that he could care for the children and provide some care for the mother. I note that the relationship did not resume at that time.
On 27 February 2017, the mother removed the children from Australia and went to (country omitted) without the father’s consent, and the next day she notified the father that she had arrived in (country omitted). The father requested the relevant authority to issue the Hague Convention proceedings and the children were returned to Australia on 4 July 2017 pursuant to a Hague Convention order. The mother chose to not return to (omitted) but to stay in Brisbane, which put a good distance between the children and the father.
The first return date in this Court was 18 July 2017, and this Court set the matter down for a priority trial and provided the father with some time with the children.

Parenting arrangements

The parenting arrangements for the children during the relationship were that the mother was primarily responsible for their care as the father was working full-time. The father’s evidence is that he was a hands-on father when he was at home. I accept that evidence, because the mother, in answer to 11(e) of the first domestic violence application she filed for a protection order on 18 November 2016, she swore, with the question being, “Do you want to prohibit the respondent’s presence in, at or in a place associated with any child (e.g. school, day care etc)” and she answered no. And her reason was:
“No he is a good dad who is a hands-on dad.”

Post-separation parenting arrangements

After separation, the arrangements for the children have varied, as the parties have had a number of periods of separation before they finally separated in August 2016.
The parties attended mediation with Relationships Australia after separation, and in October 2012 they reached an agreement that the children would live with the parents for three days and four days in week 1 and with the other parent for four days and three days in week two.
The father’s unchallenged evidence is, at [61] of his affidavit:
“After the mediation, Ms Campion and I did not have a set timetable of when we were to have the boys, we communicated well and worked around our work schedules to organise time spending arrangements, if one of us was unable to pick up, drop off or have the boys for the night, we worked together to ensure that one of us was able to accommodate this. The changeovers occurred at school or at our homes. If one of us was unable to attend, we would notify the other to meet at a different location to change over the boys.”
The parties reconciled in January 2013, and the mother and children moved back into the leased property at (omitted).
In August 2015, the parties separated again on the mother’s evidence. The father’s evidence is that the separation occurred in April of 2015. Not a lot turns on that. The mother moved into a leased property at (omitted), and the father’s case is again that the parents cared for the children equally as per the parenting plan that they had arrived at in the 2012 mediation and that parenting plan provided for a fifty-fifty care arrangement. The mother’s case is silent in this respect, but I accept the father’s evidence.
In November 2015, the mother had back surgery and the parties reconciled and the mother moved back into the property that by this stage was at (omitted).
The parties separated on a final basis in August 2016, but continued to live under the same roof.
The mother left the former matrimonial home on 12 November 2016 and stayed in a tent in a friend’s backyard.
On 7 January 2017, the mother had an epileptic seizure that resulted in a car accident and she returned from hospital to the (omitted) property where the father was residing.
On 27 February 2017, the mother left with the children for (country omitted) and the father did not see them again until the first return date in the Federal Circuit Court, which was 18 July 2017. Orders were made on 27 July 2017 for the children to spend regular time with the father, and that was to be each weekend. The father could only afford every second weekend because of the cost of travel between (omitted) and Brisbane.

Education history of the children

Unfortunately, for these little boys, they have had a significant disruption in their education.
The family report writer summarises the schools X has attended in the family report. She says at [63]:
“X stated that he had attended (omitted) State School (Prep), (omitted) State School (Prep – year 4), (omitted) State School (year five/2017), (omitted) (2017), (omitted) State School (2017) and (omitted) State School (2017). He has attended four schools this year. He attended (omitted) for only four days. He attended (omitted) for less than two weeks and he has not made any real friends yet. The (omitted) State School was his favourite so far because of the outdoor playground. He made ‘a heap of friends’ at the (omitted) school while living in a refuge. He had a ‘fair few’ friends in (omitted)”
Y has also attended four schools this year.

Current arrangements with the mother

The mother has taken a 12 month lease on a property in (omitted). The children are enrolled in the (omitted) primary school that is walking distance from the mother’s home. The mother’s mother, Ms S, has travelled from (country omitted) to support the mother and the boys and she relocated from (country omitted) with her dog (omitted) on (omitted) 2017.

Domestic violence

A troubling aspect of this matter is that the father was not really challenged in relation to the allegations of domestic violence by the mother’s counsel.
I note this is said to be a very significant issue in this case. The mother’s solicitor, at the interim hearing, submitted that this was one of the worst cases of domestic violence this Court would see.

The mother’s evidence of domestic violence needs to be set out in full, in my view.
The first indication of domestic violence is in the mother’s affidavit filed on 27 July 2017 at [8(d)(xiii)] and, in that case, the mother says:
“In addition to the significant financial abuse, there were incidents of domestic violence including verbal and emotional abuse toward me and the children throughout our relationship up to and including the date of our departure to (country omitted).”
The mother then goes on at [13] to swear:
“On 13 July 2017, I filed an Application for a Protection Order at the Southport Magistrates Court. Annexed and marked “C-04”is a true copy of that sealed Application for a Protection Order.”
[14] “The matter was heard before her Honour Magistrate Dooley on 20 July 2017. The respondent appeared by telephone. Her Honour granted extensive domestic violence temporary orders, with the children listed as Named Persons. Annexed hereto marked “C-05” is a true copy of the Southport Magistrates Court’s Temporary Protection Orders dated 20 July 2017.”
The attached application for a domestic violence order is the only place where there is any evidence that the mother has sworn to in relation to domestic violence.
The allegations are that the mother was verbally abused. Particulars set out in [4] give no evidence of when and where this occurred, but the mother alleges that:
“The father repeatedly put me down and yelled at me:
‘You have no rights in Australia!’
‘You look like a prostitute.’
‘You are disgusting.’
‘You are fat.’
‘You are lazy.’
‘You are ugly’
‘You’re mental’.”
The mother alleges financial abuse.
Access to joint accounts was denied to the mother by the father from 2012. The father’s explanation for this was that the mother was spending recklessly and he was not able to account for the $15,000 that had been withdrawn. I note that from that time, the mother had separated and rented her own property and that the parties had reconciled a number of times.
The mother also alleges that she was unable to work full-time because she was the primary carer for the children.
However, I note when the parties separated, the arrangement was, in fact, an equal time arrangement, something that she did not disclose in the evidence.
The mother, alleges, she was removed from a joint lease and I accept that that occurred. I accept that the mother was asked to leave the home and she moved into a friend’s home and occupied a tent in the backyard. The father’s evidence was that when he discovered the mother and the children were to live in a tent, he offered for them to return to the former matrimonial home.
I accept his evidence and I accept that, particularly given that the mother and the children did return to live in the former matrimonial home shortly after this, when the mother had the epileptic seizure that resulted in the car accident.
The mother alleges that she had no finances, but she admitted under cross-examination that she resigned from her employment just prior to leaving for (country omitted) rather than not having the position available to her. Her case is that she resigned because she was not able to drive at that stage.
The mother, in her domestic violence application, alleged the father disconnected the cables to the car battery. The father gave an explanation for this in his evidence. He said the mother had been drinking and threatened to take the children away. His evidence is he disconnected the cable only on that one occasion. I accept this evidence, given the inconsistency in the mother’s evidence in relation to domestic violence generally.
The mother, at no stage, swears to a single incident of domestic violence in any affidavit filed in these proceedings. Her best evidence is the annexed Domestic Violence application. The mother fails to swear to the fact that she brought a Domestic Violence application on 18 November 2016 where she swears that:
“He is a good dad who is a hands-on dad.”
The mother, I note, withdrew that application on 9 December 2016.
The mother alleges that she had to flee to (country omitted) because of domestic violence, however, this is inconsistent with the letter she wrote to the father on her arrival in (country omitted) where she said:
“If you can arrange settlement to be done and some financial security for me and the boys so we can keep a roof over our head I will be on the first plane back. We’ve been together 12 years and it’s only fair and essential until I can work again and drive again.”
The mother also said in another email that she appreciated the father letting her stay after her accident, but noted that things were getting worse and worse. She said that she knew that she was not perfect, and she could be a “pain in the arse” and that they had a volatile relationship. She commented that it was domestic violence.
Ms R records at [50] of her affidavit:
“The mother reported that after separation in 2016 she asked the father to give her $40,000 in property settlement in order to establish a place in (omitted) for her and the children but he refused. She stated that the father had kicked ‘us out and we were living in a tent’. She stated that this was the case for about four weeks. She applied for a protection order personally after the father removed her name from the rental lease and police did not consider the matter family violence. She complained the father then ‘refused to speak to me’ and so she withdrew her application.
When she was in (country omitted), she asked him to pay rent for 12 months and she would return. She reported that the property matters were settled at a conciliation conference the week prior to these interviews.”
This is startlingly inconsistent with what the mother says to Ms R at [53] of the same report:
“Ms Campion was ‘petrified’ about the prospect of having to move back to (omitted). She felt uncomfortable with ‘him having so much power’. She argued that she struggled to gain work and necessary supports in a small town. She argued that she had just established a home and study to advance her prospects and the children are happy where they are. She argued that she had various supports in her environment. She spoke of looking to get the children registered for sport such as (omitted). She stated, ‘I offered him 50/50. The kids need him, but he needs to realise that what he has done to me. They heard and seen a lot of it and that’s why they are standoffish’. She stated that ‘Y doesn’t want to see or talk to his dad’.”
Ms R observes at [12] of her observations:
“The mother argues that she was a clear victim of family violence and in reading her allegations potential concerns are readily apparent. The honourable Court might consider determining whether the mother’s vulnerability is because she is a clear victim of family violence or because of her other vulnerabilities besides. My assessment of the parties suggests the latter and a combination of the two is more probable. The conflict between the parties would seem a personality clash at the source and times of separation and property disputes have clearly been very challenging and heated at times. The mother’s financial and housing needs have been legitimately desperate at such times given her immigration status. Neither parent would appear to be solely responsible for the difficult and unhealthy relationship dynamics in my view.”
The only place where the mother records an allegation that the father raped her is at [36] of Ms R’s report where the mother is recorded as saying this:
“She stated ‘I won’t go near his house again’. She reported that she was subjected to ‘a lot of emotional, physical and in the end sexual abuse and he kicked me out three times’.”
The mother stated at [58]:
The mother stated she could not return to (omitted) if the children were required to return. She complained ‘no one wanted to help me. I was verbally and mentally abused. I was raped…the memories there are horrendous.’ She argued that the father totally disengaged from her and the children in the evenings in the latter part of the relationship.
She said to Ms R at [39] of the report that “she was diagnosed with post-traumatic stress disorder (on account of family violence perpetrated by the father)”. The mother provides no evidence of the post-traumatic stress disorder. I accept Ms R’s evaluation of the domestic violence at [14] of her evaluation which is this:
“While I accept the mother’s perception that she was victimised by the father. I say this may be more emphasised because of her vulnerable character, her presentation, attitude and beliefs rather than the father being the perpetrator of domestic abuse per se. Again I note inconsistencies in her account. For instance, she argues the father subjected her to all manner of abuse though she records that he was a good father and she does not list any risk to the children. I note the mother does not seek to maintain geographical divide though she has sought to keep her address hidden. She also argues for the father to move closer to her and to communicate with her. It would be vastly more common to see an argument for supervised time and avoiding contact with the father in cases of family violence such as she has alleged. She either does not fully appreciate the potential risk or she does not genuinely believe in any risk. My assessment suggests the latter”.
I accept Ms R’s evaluation. I do not find a clear and certain risk pertaining to family violence, but, rather, I accept that neither parent would be solely responsible for the difficult and unhealthy relationship dynamics.
I accept Ms R’s recommendation that the father participate in anger management and that the mother should undergo psychological or psychiatric assessment and support.
I will not make orders to that effect.
Both parents were given an opportunity to have this matter as an interim hearing and they elected to proceed to a final hearing. Those interventions, in my view, would be child-focused and would need to be done by the parents, but I do not see any utility in making any orders conditional on these interventions given that I am making final orders as the parents elected.

Violence and abuse

There is no evidence of violence or abuse in relation to the children and that is a credit to the parties.

The legal principles

The principles governing the Court’s determination in this matter are set out in the Family Law Act 1975 (hereafter “the Act”).
Section 65D of the Act, subject to s.61DA (“the presumption of equal shared parental responsibility”) and s.65DAB (“parenting plans”), gives the Court the power to make a “parenting order”. A “parenting order” is defined by s.64B of the Act.
In deciding whether to make a particular parenting order s.60CA requires that I must have regard to the best interests of the children as my paramount consideration.
In determining what is in children’s best interests I must consider the matters set out in s.60CC(2), the “primary considerations”, and s.60CC(3), the “additional considerations”.
There are two primary considerations. The first is the benefit to the children of having a meaningful relationship with both their parents and the second is the need to protect a child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Act indicates that these considerations are to be considered as having particular importance. They are described as “primary” and as a note to s.60CC indicates, are consistent with the first two “objects” of Part VII, as stated in s.60B that the best interests of children are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests and protecting them from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
There are 13 “additional considerations” set out in s.60CC(3) which I will refer to later in detail in these reasons.
I must also consider (to summarise) the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the child’s best interest being treated as paramount (s.60CG).
I will also be guided by s.60B which sets out the objects of Part VII of the Act and the principles underlying it.

The application of the law in the circumstances of the case

Primary considerations

Determination of relevant factual issues

The mother’s capacity to care for the children

The child X reported at [64] of the family report
“X recalled that it was ‘hard to hear mum and dad yelling’. When the family was intact. He tended to stay outside because ‘I thought it was best’. He was a ‘bit worried’ that the mother might get hurt at such times and because the father once locked her out…. He remembered them ‘fighting about the past’. He reported that the father had let the mother move back into the house after she had a seizure and a car accident. He understood the parties separated because ‘they couldn’t stop yelling’. He indicated that both parents were equally bad at yelling.
This is consistent with my conclusion in relation to the allegations of domestic violence raised by the mother.
At [65] of Ms R’s report, she records that X said:
“he was unsure why the mother returned the children from (country omitted) but he was clear the mother did not want to leave because ‘she felt unsafe’ and she thought the father would be at the airport and it made her scared and he worried ‘about mum’”.
At [67] and [68], the child “revealed that ‘it was hard to get mum up’ out of bed in the morning due to her back injury”. The child recalls that “this occurs ‘sometimes’”, and at those times “he and Y got themselves up and ready for school and they will kiss their mother goodbye before leaving for school”. X said that he would sometimes cook noodles for dinner ‘if mum is very sick or sad’. He stated that she gets sad about the children possibly going to live with the father”, and “sometimes he will look after her by being good and doing things for her”.
The report continues at [68] where the child “indicated the mother talks openly about Court, the father and ‘what he has done and the truth’”. The child “sometimes feels uncomfortable and confused by these conversations”. It appears that X indicated to the report writer that “the father does not really talk about the mother or what is happening”, and X said to the report writer that “he knows mum’s telling us heaps”.
The child indicated that “he hoped that the mother would not return to (country omitted) because ‘we wouldn’t to see her much’”.
It appears that “she has told the child that she may have to go back if the children go to live with their father”.
Y is recorded as saying at [71] that when the parents lived together, it was a lot of fun “all four of us played games”. He said it was not good “when mum and dad were yelling” and he said that “dad hurted mum’s feelings”. And he denied that either parent had ever hurt him, and he understood the parties separated because “‘mum went to (country omitted) with us… she didn’t want dad hurting us’. He confirmed that the father had never hurt them.”
I note in terms of the children’s relationship that Ms R observed at [76] that “the children appeared very aware of their mother’s emotional state and thus worried for her.” The expert observed that the children “seemingly take care of the mother and themselves at times when the mother is not doing well. The parent-child roles may well be reversed in the mother’s household at times given this issue”.
The expert’s conclusion about the mother at [13] of the evaluation is of concern. She says that the mother “impressed as rather histrionic individual with prejudicial and personal history. Her mood shifted rapidly throughout the interviews. There were inconsistencies in her account, her material and her argument and her proposed outcomes. She was at times passive-aggressive in her communication. She is clearly dependant on others rather than independent in her lifestyle or thinking. Much of her argument herein centred on the father and social services in (omitted) not being prepared to help her financially and practically despite her pleas for help, and this forcing her to flee. Her identity is certainly tied into being a victim and she appeared very vulnerable in character”.
I note that the mother entertained suicide this year. Her mental health, according to Ms R, impressed as vulnerable. That is the impression I also had of the mother and Ms R was left questioning the mother’s level of parenting and functioning generally and that is a concern I have.
The issue of the mother’s insight and judgment, in my view, is validly raised by the report writer, and the report writer said that the mother would benefit from learning to take greater responsibility for obtaining independence, and that she is really vulnerable at the moment.
The recommendation for a psychiatric assessment and treatment, in my view, was reasonably made in the circumstances of the expert’s observations, and it was consistent with my observations. I am of the view that the mother’s vulnerabilities raise serious questions about her parenting capacity at this time.

Primary considerations

Turning firstly to the application of the primary considerations set out under ss.60CC(2) and (2A):
“(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.
(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).”
My conclusion as to the primary considerations are that:
a)It is important for X and Y to have a meaningful relationship with both the mother and the father, and this seems to be supported by the evidence of both parents.
b)There is no need, in my view, to protect the children from being exposed to a risk of family violence or harm. Ms R observes at [16] of her evaluation that:
“I am inclined to consider the allegation of family violence more likely situational than pervasive and a symptom of the father’s character alone. This assessment would explain why the mother can not only contemplate but suggest a week about parenting plan, why she can say he is a good father, and also why she is frustrated when the father will not talk to her. She argued that the parties are capable of resolving parenting dispute amongst themselves. Her stance in this regard would seemingly contradict her argument that she is primarily a victim of the father’s abuse.”
Ms R’s evaluation is one that I accept on the evidence that I have considered.
I accept that both parents acknowledge the importance of the children having a meaningful relationship with the other parent. I accept that the father is a committed and involved parent, and the mother is to the extent that her capacity enables her to be.
I treat these primary considerations and my findings as central to the structure of the orders I will make for these two young boys.

Additional considerations

The child’s views

This consideration is set out in s.60CC(3)(a) as follows:
“(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;”
Both boys expressed views to the family report writer.
X did not want to be separated from either parent, and preferred an idea of living in an equal time arrangement.

He also stated, according to [66] of Ms R’s report:
“He stated he thought the arrangement that he had at the moment was okay, but he is sad not to have enough time with his father. He thought the reverse arrangement (living with his father and spending weekend with his mother) would, likewise, be ‘okay’ and sad because he would not see enough of the mother. He replied ‘I really would like that’ when asked how he would feel about a week-about parenting arrangement, assuming the geographical issues were resolved. He presently feels torn between his parents because of the latter. He contemplated that perhaps if things stayed as they are the father could visit them whenever he travels to Brisbane for work. He stated he would like to stay in Brisbane, because he has more friends there now.”
Y also gave Ms R an indication of his views at [72] of the report. It’s recorded that:
“Y stated that it is ‘not as fun’ back in Australia because he liked his friends in (country omitted) and ‘mum is not really happy… she wants… she has no family here’. He mentioned that his maternal grandmother is ‘coming to help’. He does not like the current parenting arrangement because ‘I don’t get to see dad very often’. He thought it would be better to live week-about between his parents ‘but dad don’t want to move to Brisbane and mum don’t want to move’. He rated a week about arrangement 8/10 (great). He rated the current arrangement 5/10 (okay). He rated living with the father and spending weekends with the mother 0/10 (most sad). He became a little teary contemplating the last. He rated his parents as equally good parents. 8 or 9/10.”

The child’s relationship with significant persons

This consideration is set out in s.60CC(3)(b) as follows:
“(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);”
I accept that the children have a close and attached relationship with their father.
Their relationship with their mother is more complex.
Ms R observed the information the mother had provided to the expert had her questioning the level of parenting and functioning generally that the mother was able to provide
The concern I have in relation to the mother’s relationship with the children is summarised in [18] of Ms R’s evaluation where she said this:
“The children impressed as primarily worried for the mother and what might happen for her and them as a consequence of the outcome, if the outcome is not what the mother can tolerate. I assessed that the children are obviously taking on a caretaker role for the mother at least in their minds if not in practice. The children’s report suggests they are independently taking care of themselves and their needs at times when the mother is not coping, unwell or sad. This factor suggests that although the children may want to be more with the mother and they worry about her when they are apart, they may actually need to be more with the father from a child safety perspective and more so if an equal parenting arrangement cannot be worked out in my opinion. X and Y are still too young to be independent and self-protective.:

Parenting and discharge of parenting responsibilities

In the circumstances of this case, it is convenient to deal under this heading with a number of considerations listed in s.60CC. I consider, under this heading, the following paragraphs of s.60CC(3):
“(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;
…
(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;”
With respect to the extent to which the children’s parents have taken or failed to take an opportunity to participate in decision-making, I accept that the mother’s departure to (country omitted) was unilateral and a complete failure on her part to engage the father in any decision-making. Her intention, it appears, was not to return from (country omitted), she says, for six months, but she enrolled the children in school there; she resisted The Hague Convention application and required an order before she returned.
It seems to me that she intended to stay in (country omitted) and, indeed, when she returned to Australia, she needed an order of this Court before the children could spend any time with their father.
I have to consider the extent to which each of the child’s parents have fulfilled their parenting obligations to maintain the children.
The mother has been in a financially difficult situation and the father did not pay any child support while the children were in (country omitted). He pays child support now.
I accept that the father can maintain the children. The mother has difficulty with that because she is not an Australian citizen and is not eligible for Centrelink benefits.
I have to look at the capacity of the parents to provide for the children’s needs, including their emotional and intellectual needs. I accept that the father does have capacity to provide for these children’s needs. I have raised concerns about the mother’s capacity earlier in this judgment.

Effect of any changes in the child’s circumstances

Section 60CC(3)(d) of the Act requires the Court to consider:
“(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;”
These two young boys have significant changes in their circumstances. They have attended four schools this year because of the mother’s unilateral decision to relocate to (country omitted) without the father’s consent or knowledge.
A move to the father’s care would be another major change in the circumstances, particularly for Y, who seems to be very attached to his mother.
However, I note the family report writer’s opinion at [19] of her conclusions where she says:
“It is my opinion overall then that while the children might want the mother most they appear to most need the father. There is however a significant risk that the children going to reside with the father will cause a deterioration in the mother and while I am certain that having the children in her care helps her feel stronger, it is not the children’s job to fortify the mother. I would strongly recommend a psychiatric assessment and ongoing therapeutic support for the mother.”
I am concerned about those observations.

Orders that are least likely to Result in Further Litigation

It is not apparent that the proposal of the mother or father would be less likely to lead to further proceedings.
There is a clear recommendation for a psychiatric assessment and an anger management course. Both parents should participate in these and I am hoping that, if they do that, that will limit the issues of further litigation, but as I have indicated, it is not apparent on either proposal that there would be less likelihood of further litigation.

Parental responsibility

Under s.61DA(1), when making a parenting order, the Court must apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility for them. The presumption does not apply however if there are reasonable grounds to believe that a parent has engaged in abuse of the child, or family violence.
In this case having regard to the findings I have made and as it is not the case of the mother or father that the children need to be protected from abuse or family violence, I intend to apply the presumption and order that the mother and father have equal shared parental responsibility.
Having made that decision I am then required by s.65DAA(1) and (2) to consider whether to make orders that the children spend equal time and if not equal time then substantial or significant time with each parent. The section provides:
“Equal time
(1) Subject to subsection (6), 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) Subject to subsection (6), 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.”
In relation to equal time, I accept that it might be in the children’s best interests and it has certainly been recommended by the family report writer and it reflects the views of the children. Equal time might provide a protective support for the mother where the father would have a much larger involvement in the children’s lives. However, I would not be satisfied that it is the best order without the mother undergoing a psychiatric assessment.
This course I suggested to the parties before the trial commenced, but neither party was agreeable to an adjournment to allow for the appointment of an independent children’s lawyer and a psychiatric assessment.
Both parents were committed, I note, however, to remaining in (omitted) and in Brisbane, and for that reason and that commitment of the parents, it is not practicable for an equal time arrangement to be put into place and the same argument applies for substantial and significant time.

Conclusion

I am satisfied that the father’s proposal is in the children’s best interests for the following reasons:
a)It returns the children to (omitted), where they have lived most of their lives before the mother moved them to (country omitted). This will have the effect of offering the children stability after a very unstable 12 months of change of school and change of residence.
b)It places the children in an environment where they are less likely to be exposed to adult issues in relation to their care. I do not consider the father will involve the children in the dispute to the extent that the mother has done.
c)I also see it places the children in an environment where the father will care for them and they will not be left with a sense that they need to take care of him. This was something that the boys described to the family report writer graphically when they were in their mother’s full-time care and it was a concern I had about her capacity to care for them.

Parenting arrangement during school term

Having regard to all of these matters, I am satisfied that the children should live with their father, but I note that the travel between (omitted) and Brisbane is too arduous for the children to do on alternate weekends.
I intend to order that the children travel to Brisbane one weekend in four and that the mother be at liberty to travel to (omitted) for the third out of the four weekends. This arrangement will also have the advantage that the children will be able to participate in sport in the (omitted) area and this is something that they seem to enjoy and miss.

School holidays and special days

The school holidays can be spent with each parent on an equal half and half arrangement. This is something that was proposed by both parents.
The special days are more complicated because of the distance the children have to travel between (omitted) and Brisbane. I consider that Easter and Christmas special days should alternate with the halves of the school holidays. This ensures the children are able to spend these special times with both parents and not be subjected to arduous travel.
I will make orders sought by the father in relation to the children’s birthdays because it does not involve travel and gives the mother an opportunity to spend time with the boys if she is in the (omitted) area.
I will make the orders that the father proposes for the weekends for Mother’s Day and Father’s Day.

Other orders

The father does not have any telephone time, so I will make the orders that the mother proposed for telephone time.
The father proposes orders for overseas travel, provided it is a Hague Convention country, and given that the mother’s family live in (country omitted), I am confident that it is appropriate to make those orders, particularly given the mother’s understanding that a Hague Convention application will quickly return the children to Australia if she was minded to not return them.
There are a number of usual orders for authorities and non-denigration and the like in the father’s proposal that I intend to make.

I certify that the preceding one hundred and thirty-five (135) paragraphs are a true copy of the reasons for judgment of Judge Cassidy

Date: 27 October 2017

[2017] FCCA 2595

27 October 2017

Key Legal Topics

Areas of Law

Family Law