Meagher and Hermann and Anor

[2018] FCCA 1600

FEDERAL CIRCUIT COURT OF AUSTRALIA

MEAGHER & HERMANN & ANOR [2018] FCCA 1600

Catchwords:
FAMILY LAW – Parenting – where a now 11-year-old child was raised for the first 9½ years of her life by her mother and the man she thought was her father – where that man was shown not to be her biological father in early 2016 – where both the father and the biological father wish to spend time with the child – where the mother seeks to relocate from Melbourne to a regional city – where these are the fourth set of proceedings in relation to this child.

Legislation:

Family Law Act 1975, ss.64C, 65C,60CA, 61DA, 60CC,65DAA

Cases cited:

Bryans & Franks-Bryans [2007] FamCA 377

M and S (2007) FLC 93-313
Goode & Goode [2006] FamCA 1346
Mazorski & Albright (2008) 37 FLR 518
Tait & Densmore [2007] FamCA 1383

Applicant: MR MEAGHER

First Respondent: MS HERMANN

Second Respondent: MR KENT

File Number: DGC 2912 of 2010

Judgment of: Judge Small

Hearing dates: 23-26 October 2017

Date of Last Submission: 28 February 2018

Delivered at: Dandenong

Delivered on: 22 June 2018

REPRESENTATION

Counsel for the Applicant: Dr Starkie

Solicitors for the Applicant: L G Yves Michel & Co

Counsel for the First Respondent: Ms Swann

Solicitors for the First Respondent: Ken Smith & Associates

Counsel for the Second Respondent: Self-Represented

Solicitors for the Second Respondent: None

Counsel for the Independent Children's Lawyer: Mr Brewer

Solicitors for the Independent Children's Lawyer: Robert Halliday and Associates

ORDERS

1. All previous parenting orders in relation to the child [X] born 2006 (“[X]” or “the child”) are hereby discharged.

2. The child shall live with the mother and the mother shall have sole parental responsibility for the child.

3. The mother shall provide written information (meaning by post, email, text, or other electronic communication) to each of the Applicant and the Second Respondent within 7 days of making any major decision about [X]’s welfare, including, but not limited to decisions about the following:

   ·    A change in [X]’s living arrangements

   ·    A change in [X]’s school

   ·    A decision in relation to surgery, including major dental surgery,  proposed for [X]

   ·    Any religious rite such as baptism or confirmation that [X] might be engaged in

   But for the sake of clarity, the mother shall have the sole responsibility for making the final decision in all such cases.

4. The mother is permitted to relocate the residence of the child to Town G.

5. The child shall spend time and communicate with the Applicant:

   (a)during school terms on the second, and, if applicable, the fifth weekend of each month from the conclusion of school or 3:30p.m. on Friday to 5:00 p.m.  on Sunday;

   (b)during school term holidays each year from the conclusion of school or 3:30 p.m. on the last day of the first and third school terms to 5:00 p.m. eight days later;

   (c)during the long summer holidays each year for one period of two weeks by agreement between the parties, and failing agreement for the two weeks beginning at 4:00 p.m. on 27 December in 2018 – 2019 and in each alternate year thereafter, and for the two weeks concluding at 4:00 p.m. on the Thursday before the commencement of the next school year in 2019 – 2020 and in each alternate year thereafter;

   (d)from 4:00 p.m. on Boxing Day to 4:00 p.m. on 27 December 2018 and in each third year thereafter;

   (e)from 11:00 a.m. on Christmas Eve to 11:00 a.m. on Christmas Day in 2019 and in each third year thereafter;

   (f)from 11:00 a.m. on Christmas Day to 4:00 p.m. on Boxing Day in 2020 and in each third year thereafter;

   (g)by telephone, Skype, Facetime or other electronic means:

   (i)at any time at the instigation of the child;

   (ii)on the child’s birthday each year between 8:00 a.m. and 8:15a.m. at the instigation of the Applicant;

   (iii)on the Applicant’s birthday each year between 8:00 a.m. and 8:15 a.m. at the instigation of the Applicant;

   (iv)at other times at the instigation of the Applicant by agreement between the Applicant and the mother, and failing agreement, on each Wednesday when the child is not in his care between 7:00 p.m. and 7:30 p.m;

   and for the purpose of all such calls, the mother shall ensure that the child has access to a charged and working telephone, tablet or computer, that she is available to make or take the call, and that she is afforded privacy for the call’s duration;

   (h)At such other times as might be agreed between the mother and the Applicant from time to time.

6. Changeover for the purposes of the time set out in paragraphs 5(a) and (b) hereof shall take place at the child’s school at the commencement of time and at the home of the Applicant, or such other venue as might be agreed between the parties at the conclusion of time.

7. Changeover for all other times specified in paragraph 5 hereof shall take place at a venue agreed by the parties from time to time and failing agreement, in the car park of the McDonalds Restaurant at Town F.

8. The child shall spend time and communicate with the Second Respondent:

   (a)during school terms on the fourth weekend of each month from the conclusion of school or 3:30 p.m. on Friday to 5:00 p.m.  on Sunday;

   (b)during school term holidays from the conclusion of school or 3:30 p.m. on the last day of the second school term to 5:00 p.m.  eight days later;

   (c)for one week during the long summer holidays each year by agreement between the mother and the Second Respondent, save that that time shall not impede or interfere with the time spent between the child and the Applicant as set out in paragraph 5 hereof;

   (d)from 11:00 a.m. on Christmas Eve to 11:00 a.m. on Christmas Day in 2018 and in each third year thereafter;

   (e)from 11:00 a.m. on Christmas Day to 4:00 p.m. on Boxing Day in 2019 and in each third year thereafter;

   (f)from 4:00 p.m. on Boxing Day to 2:00 p.m. on 27 December 2020 and in each third year thereafter;

   (g)by telephone, Skype, Facetime or other electronic means:

   (i)at any time at the instigation of the child;

   (ii)on the child’s birthday each year between 8:30 a.m. and 8:45a.m. at the instigation of the Second Respondent;

   (iii)on the Second Respondent’s birthday each year between 8:00 a.m. and 8:15 a.m. at the instigation of the Second Respondent;

   (iv)at other times at the instigation of the Second Respondent by agreement between the Second Respondent and the mother, and failing agreement, on each Tuesday when the child is not in his care between 7:00 p.m. and 7:30 p.m.;

   and for the purpose of all such calls, the mother shall ensure that the child has access to a charged and working telephone, tablet or other device, that she is available to make or take the call, and that she is afforded privacy for the call’s duration;

   (h)At such other times as might be agreed between the mother and the Second Respondent from time to time, save that such time shall not interfere with the Applicant’s time with the child as set out in these orders without the consent of the Applicant having first been obtained in writing.

9. Changeover when the child spends time with the Second Respondent shall take place at a venue agreed by the mother and the Second Respondent from time to time.

10. The mother shall ensure that the child attends upon a properly qualified child and adolescent psychologist or psychiatrist to assist her to come to terms with the consequences of these orders.

11. The mother and the Applicant, and the mother and the Second Respondent, shall keep each other informed of any change in their address, telephone number, email address, or other means of contact, within 7 days of such change.

12. The mother shall ensure that the child’s school makes available to the each of the Applicant and the Second Respondent, at their respective cost if any, all school reports, information about parent-teacher interviews and sporting or cultural events, and information about all prizes or awards won by the child, and the Applicant and the Second Respondent shall be at liberty to attend sporting or cultural events, and parent-teacher interviews, save that the Applicant shall attend parent-teacher interviews at a different time from the mother.

13. The mother shall, within 24 hours of occurrence, inform each of the Applicant and the Second Respondent of any serious illness or injury to the child requiring hospitalisation or more than three days’ absence from school, and she shall authorise any treating medical or allied practitioners who are caring for the child to speak to each of the Applicant and the Second Respondent about the child’s treatment. If such illness or injury results in time not being spent between the child and the Applicant or the child and the Second Respondent as provided in these orders, the mother shall provide a medical certificate to them which states the specific nature of the illness or injury and the length of time the child will be unavailable to spend time with the Applicant or the Second Respondent as the case may be.

14. The Applicant and the Second Respondent shall, as soon as possible after occurrence, inform the mother of any serious illness or injury to the child requiring hospitalisation or attention by a doctor, and they shall inform any treating medical or allied practitioners who are caring for the child that the child’s mother has sole parental responsibility for the child and that, save in the case of emergency, it is she to whom they should speak about the child’s treatment at first instance.  

15. The parties are hereby restrained by injunction from:

    (a)criticising, insulting, belittling, or otherwise denigrating any other party or any member of any other party’s family or household in the presence or hearing of the child, and from allowing her to remain in the presence or hearing of any third party who is engaging in such conduct;

    (b)discussing these proceedings or any parenting disputes or issues in the presence or hearing of the child, save to explain the effect of these parenting Orders to her, and from allowing her to remain in the presence or hearing of any third party who is engaging in such conduct;

    (c)allowing the child to access, read or have read to her any portion of the Court’s Reasons for Judgment in this matter, or any document filed in these proceedings.

16. The parties and the Independent Children’s Lawyer shall be at liberty provide a copy of these orders to the child’s school.

17. The Order of Judge Phipps dated 3 June 2016 appointing the Independent Children’s Lawyer is hereby discharged.

18. Otherwise, all extant Applications, save for the Contravention Application filed 5 February 2018, are hereby dismissed and removed from the list of pending cases kept by the Court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 2912 of 2010

MR MEAGHER

Applicant

And

MS HERMANN

First Respondent

And

MR KENT

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a parenting matter concerning the care arrangements for the child [X] born 2006 (“[X]” or “the child”).

2. The parties in the proceeding are Mr Meagher (“Mr Meagher” or “the Applicant”), Ms Hermann (“Ms Hermann” or “the mother”), Mr Kent (“Mr Kent” or “the Second Respondent”), and the Independent Children’s Lawyer.

3. Mr Kent was joined to the proceedings in April 2017 following a parentage test that confirmed he was [X]’s biological father. This test confirmed the results of a less rigorous test conducted by the parties in January 2016.

4. Until February 2016, the parties (and [X]) believed that Mr Meagher was the biological father of [X]. That is, for almost the first ten years of her life, [X] (and Ms Hermann, Mr Meagher and Mr Kent) believed that Mr Meagher was [X]’s father.

5. Upon receiving the results of the parentage test in February 2016, Ms Hermann suspended all time between [X] and Mr Meagher. Ms Hermann also moved with the child to Town G without informing Mr Meagher.

6. Mr Meagher filed an Initiating Application on 23 May 2016 to recommence time with the child pursuant to final orders made on 30 January 2013. Mr Meagher sought orders that the mother return to Suburb A with the child, and for the child to live with him.

7. In her Response, the mother sought orders that the child live with her in Town G and spend time with the Applicant on alternate weekends.

8. When joined to the proceedings, Mr Kent sought orders that the child spend one weekend per month with him.

9. Therefore, the issues to be decided in this case are as follows:

   A.  Who should exercise parental responsibility for [X]?

   B.Should the mother be permitted to relocate to Town G?

   C.How much time should [X] spend with Mr Meagher?

   D.How much time should [X] spend with Mr Kent?

Background

1. Mr Meagher was born on 1965 and is therefore 53 years old. His usual occupation is as an (occupation omitted); however at the time of trial he was unemployed. He is in good health.

2. Ms Hermann was born on 1965 and is 52 years old. She previously worked as a (occupation omitted), however due to a back injury she is currently unable to work. She suffered this injury in 2010 while at work, and has undergone 6 surgical procedures in an attempt to rectify the problem. She deposes that she suffers chronic pain, that she cannot sit or stand for long periods or lift heavy objects, and has difficulty bending over. The severity of that condition was obvious at trial.

3. Ms Hermann has several children from previous relationships, including two daughters of school age who live with her and [X].

4. She would like to move permanently to Town G with [X] and her sisters because she has family there who assist her with the day-to-day practical issues, as well as the emotional issues arising from her physical condition.

5. Ms Hermann has repartnered with Mr C and at the time of trial was living with him in Suburb A. Mr C is apparently originally from Town G.

6. At the time of trial Mr Kent lived in Suburb C but it was his evidence that he was building a new family home in Suburb F. He has been known to [X] all her life as a family friend, and the two families were known to each other well before the discovery that Mr Kent was in fact [X]’s biological father in early 2016.

7. Mr Meagher and Ms Hermann met in early 2004 and commenced a relationship.

8. Ms Hermann and Mr Kent met in mid-2004 and became friends. In about 2005 they had a single sexual encounter, which both parties described as a ‘drunken one night stand’. They have remained friends throughout.

9. [X] was born significantly prematurely on 2006.

10. In March 2007 Ms Hermann moved into Mr Meagher’s house with her three daughters. In September 2007 she and her children moved out of Mr Meagher’s home and into rented premises in Suburb E.

11. From that time Mr Meagher spent time with [X] by agreement, then pursuant to court orders made in 2010, and, from 30 January 2013, in accordance with final parenting orders made by consent on that day, those orders providing for [X] to be in Mr Meagher’s care for five nights each fortnight during school terms, and for half of all school holidays, with particular arrangements being made for special occasions.

12. Upon learning that Mr Meagher is not [X]’s biological father in February 2016, Ms Hermann ceased all time between him and [X], and then moved to Town G with [X] without reference to Mr Meagher.

13. She suffered a major recurrence of her back problem in the first weeks of living in Town G with family members, and remained there, she says, because she needed daily assistance from her family.

14. Mr Meagher instituted proceedings for Contravention of the Orders of 30 January 2013 on 4 March 2016.

15. He filed an Initiating Application seeking to change those Orders on 23 May 2016.

16. Ms Hermann returned to live at her home in Suburb A pursuant to interim Court Orders made on 23 August 2016, and [X] recommenced spending time with Mr Meagher pursuant to the Orders of 30 January 2013.

17. Mr Kent was joined to the proceedings in May 2017 after a second, Court-ordered paternity test confirmed that he is indeed [X]’s biological father.

18. In August 2017, following a s.11F Child-Inclusive Conference, [X]’s time with Mr Meagher was reduced to one weekend a month pursuant to orders made by consent.

19. I made interim orders permitting Ms Hermann to relocate to Town G with [X] at the conclusion of the trial on 26 October 2017, and as far as the Court is aware, Ms Hermann now lives there with [X] and her two daughters from a previous relationship, as well as her mother, brother and sister[1]. She supports herself and her children by way of WorkCover payments as she awaits the outcome of her application for a Total and Permanent Disability lump sum payment as a result of her injury.

    [1] I note that Ms Hermann has six daughters, all but the three living with her are over 18 and living independently.

20. Mr Meagher lives in Suburb B and was unemployed at the time of trial.   

21. Mr Kent lives in Suburb C with his wife and three of his other children, and is employed as a (occupation omitted). At the time of trial, he was anticipating moving to their new home in Suburb F with his family in the near future.

Procedural History

1. These are the fourth set of proceedings between the Applicant and the First Respondent to have been initiated in this Court since [X] was born in 2007.

2. The initial proceedings, initiated by the mother against Mr Meagher on 30 August 2010, were concluded by way of Orders made by consent on 11 October 2010 before (then) Federal Magistrate Phipps.

3. The second set of proceedings, initiated by the Applicant filing an Initiating Application on 8 December 2011, were also concluded by way of consent orders made on 30 January 2013 by (then) Federal Magistrate Hartnett.

4. The third set of proceedings were initiated by the mother on 29 May 2014, and were concluded, again by way of Final Orders made by consent, before Judge Phipps on 5 August 2014.

5. Those proceedings were specific in nature and involved the mother’s successful Application for [X] to be permitted to attend a psychologist.

6. On 4 March 2016, Mr Meagher filed a Contravention Application based on what he said were contraventions of the Orders of 30 January 2013.

7. Mr Meagher then filed an Initiating Application, Affidavit in Support and Notice of Risk on 23 May 2016, seeking orders that [X] live with him in Suburb B and that she attend Suburb D Primary School. He sought an order that “the mother spend time and communicate with [X] as the court pleases”.

8. Ms Hermann filed a Response, an Affidavit in Support and a Notice of Risk on 30 May 2016.  In that Response, Ms Hermann sought orders that the orders of 30 January 2013 be discharged, that [X] live with her in Town G and attend School 1 Primary School, and that she spend time with Mr Meagher each alternate weekend from 5:30 p.m. on Friday to 5:30 p.m. on Sunday. Ms Hermann sought an order that changeover take place at Town F Police Station.

9. The matter came before Judge Phipps in the Duty List on 23 August 2016 after the release of a Family Report prepared by Ms B.

10. Interim Orders were made by consent providing for [X] to live with the mother in Suburb A and spend regular time with Mr Meagher. It was also ordered that the parties enrol the child in counselling, that the mother undergo counselling, and for Mr Meagher and Ms Hermann to have equal shared parental responsibility for [X]. The matter was then set down for trial on 5 October 2017.

11. On 23 February 2017 the matter came before Judge Baumann for Directions. His Honour ordered formal parentage testing for the child to ascertain whether Mr Meagher was [X]’s biological father.

1. On 24 April 2017 the matter came before Judge Burchardt in the Duty List. Judge Burchardt ordered that Mr Kent, having been proven to be [X]’s biological father, be joined to the proceedings, and for the parties to attend a s.11F Child Inclusive Conference. His Honour otherwise adjourned the matter for mention on 15 August 2017.

2. Mr Kent filed a Response, Affidavit in support and Notice of Risk on 19 May 2017 seeking “equal shared parental responsibility for the child”, for [X] to live with the mother, and certain orders for [X] to spend time with him. He did not join issue with the mother’s application to relocate to Town G.

3. On 15 August 2017, after the parties had attended a s.11F Child Inclusive Conference with Family Consultant Ms K (“Ms K”), the matter was adjourned for trial on 23 October 2017.

4. The parties reached interim agreement on 15 August 2017 in relation to the time [X] would spend with Mr Meagher and Mr Kent, and those orders were made by consent. The orders provided for [X] to live with the mother and spend time with Mr Meagher on the second weekend of each month, and with Mr Kent on the fourth weekend of the month. The orders also provided for time with each party on special occasions and holidays and for telephone time.

5. In addition, it was ordered by consent that, until further order, the child attend Suburb A Primary School, that the mother be restrained from relocating the child from Suburb A, for the mother to undergo counselling, and for the parties to enrol the child in specialist counselling.

6. On 23 October 2017 the matter was listed before Judge Burchardt for trial. However, due to judicial availability the matter was transferred to me on this day.

7. The trial ran for 4 days and concluded on 26 October 2017. Witnesses included Mr Meagher, Ms Hermann, Ms Hermann’s general practitioner Dr K (“Dr K”), Ms S (“Ms S”), Mr Kent, the family report writer Ms B (“Ms B”) and Ms K.

8. At the conclusion of the trial on 26 October 2017 I made substantial interim orders.

9. Those orders provided that the Applicant and the mother have equal shared parental responsibility for the child, save that the mother have sole parental responsibility in deciding where the child attends school.

10. I ordered that the child live with the mother and that the mother be permitted to relocate with the child to Town G on an interim basis. I ordered that the Applicant spend time with the child on the first and third weekends of the month and by telephone or Skype once per week. I also ordered that the child spend special occasion and holiday time with the Applicant.

11. I ordered that Mr Kent spend time with the child on the fourth weekend of the month and for one week in school holidays.

12. I ordered that each party organise and complete a post-separation parenting program. Finally, I ordered that the parties make, file and serve written submissions according to a staggered timeline as follows:

    ·    The mother to file her final submissions by 30 November 2017;

    ·    The Second Respondent to file his final submissions by 31 December 2017;

    ·    The Applicant to file his final submissions by 15 February 2018;

    and

    ·    The Independent Children’s Lawyer to file his final submissions by 28 February 2018.

13. I otherwise reserved my decision.

14. The mother filed her final submissions on 29 November 2017 and the Applicant filed his closing submissions on 14 February 2018 pursuant to that order.

15. Neither the Second Respondent nor the Independent Children’s Lawyer filed closing submissions, although counsel for the Independent Children’s Lawyer sent his closing submissions to my chambers well after the ordered time. Given their importance in this matter, I have taken the Independent Children’s Lawyer’s submissions into account, despite them not having been filed.

16. I am aware that the Second Respondent might have prepared closing submissions, as such are referred to in both the Applicant’s and the Independent Children’s Lawyer’s submissions, but it would appear that no such submissions have been filed with or provided to the Court and I have not had the opportunity of reading them.

17. On 5 February 2018, the Applicant filed a Contravention Application, an affidavit in support and a Notice of Risk.

18. That Application was listed before me in the duty list on 16 April 2018, but I adjourned it without making any substantive orders. I have read none of those documents at the time of writing and will not read them prior to the delivery of this judgment.

19. On 17 April 2018, my chambers were contacted by counsel for the mother who sought to object to submissions made by the Applicant[2]. I held a mention in relation to that matter on 18 May 2018, but made no further orders on that day, although I was critical of the Independent Children’s Lawyer for not having made his submissions available to the Court as ordered.

    [2] I note that the submissions objected to were filed on 14 February 2018.

20. Upon being advised that there may be a problem in the matter on 17 April 2018, I ceased writing this judgment and resumed after the hearing on 18 May 2018.

Issues

1. It is not possible to refer to every fact and/or matter raised in the trial of these proceedings and nor is it necessary to do so. The parties should understand that I have had regard to the whole of the evidence, including the transcript of the trial, and if I have not referred to a particular fact or matter it does not mean that I have not considered it.

Issue A. Who should exercise parental responsibility for [X]?

1. An order for parental responsibility is a parenting order[3].

   [3] Section 64B(2)(c) of the Act.

2. The word “parent” is not defined in the Family Law Act 1975 (Cth) (“the Act”), save in relation to a parent of an adopted child, which is not a relevant issue here.

3. Mr Meagher is not a “parent” in strict biological terms[4], but s.64C states that a parenting order may be made in favour of a parent of the child “or some other person”.

   [4] I note, however, that the Shorter Oxford Dictionary includes, in its definition of “parent” “a person who holds the position or exercises the functions of such a parent, a protector, a guardian.”

4. Section 65C of the Act states that the following classes of people may apply for a parenting order:

   (a)Either or both of the child’s parents; or

   (b)The child; or

   (ba)   a grandparent of the child; or

   (c)Any other person concerned with the care, welfare and development of the child.

5. Mr Meagher very squarely falls into the category of persons specified in s.65C(c), and he therefore has standing to bring his Application, but he is not a “parent” for the purposes of parenting orders.

6. The law in relation to parenting orders is found in Part VII of the Act.

7. The objects and principles underlying Part VII are set out in Section 60B and I set those objects and principles out here for the benefit of the parties:

   (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 and 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).

8. Section 60CA makes clear that when a court is making a parenting order, its “paramount consideration” must be the child’s best interests and I will turn to that very important issue shortly.

9. Section 61DA(1) of the Act states that, when making a parenting order, the court must apply a presumption that it is in the best interests of the child for the child’s parents (my emphasis) to have equal shared parental responsibility for the child.

10. Mr Meagher is not [X]’s parent in legal terms and therefore the presumption in S.61DA(1) does not apply to him[5] .

    [5] See Burton & Churchin & Anor [2015] FamCAFC 180

11. That does not mean that I cannot make an Order for him to share parental responsibility for [X] if I find that such an Order would be in [X]’s best interests.

12. In addition, there is authority for the proposition that there is no particular hierarchy in relation to parents and non-parents when a Court is considering parenting orders[6].

    [6] See Aldridge & Keaton [2009] FamCAFC 229

13. In this case, [X] has two, and potentially three father figures: Mr Meagher; Mr Kent; and Ms Hermann’s current partner Mr C.

14. It is simply not practicable for three parents, let alone four, to share parental responsibility for major decisions regarding a child’s care, welfare and development.

15. [X] lives with her mother and has done so all her life. Despite Mr Meagher’s formal Application to the court, he did not press for an order that [X] live in his primary care at trial, and in his final written submissions he sought that “the final orders made on 30 January 2013 be reinstated and that the child spend a minimum of 5 days per fortnight and half school holidays with the applicant father Mr Meagher”. I note that those Orders provide for [X] to live with her mother.

16. Clearly, as [X] will continue to be in her mother’s primary care, Ms Hermann ought to have responsibility for making major decisions about her life.

17. The question here is whether she should share that responsibility with Mr Meagher and/or Mr Kent.

18. Mr Meagher seeks an order that he have equal shared parental responsibility with [X]’s mother. He fulfilled the role of her father for almost her first ten years, and he continues to exercise equal shared parental responsibility for her with Ms Hermann to date.

19. I must now make a final order in relation to that issue, and I note that s.61DB of the Act states that in making a final parenting order, the Court must disregard the allocation of parental responsibility made in an interim order.

20. Mr Meagher is a very important figure in [X]’s life, but the evidence before the Court shows that his role has inevitably changed since [X] discovered that he was not her biological father in early 2016.

21. About six months after becoming aware of that fact, [X] presented to Ms B in August 2016 as experiencing “emotional stress about the events and little understanding about the underlying issues”. She clearly wanted to continue to have a relationship with Mr Meagher, but she was “already experiencing loyalty conflict and the pressure to choose, particularly between Mr Meagher and Mr Kent, given her statements in the interview for this report.”

22. A year later, Ms K describes [X]’s position in relation to Mr Meagher thus:

    [X] discussed (in vague detail) concerns regarding Mr Meagher (sic) and being fearful of him because he punched a hole in the wall and bagged (sic) on the car window. She shared memory of him roughly grabbing her, however it was clear this was not a memory, but information her mother had reminded her of. In addition, Ms Hermann had inappropriately reported to [X] comments Mr Meagher (sic) had made in court documents. [X] acknowledged sharing a very close and positive relationship with Mr Meagher (sic) which she considered ceased immediately once she discovered he was not her biological father.

23. Mr Kent's Response filed 19 May 2017 also seeks an Order that he have equal shared parental responsibility with [X]’s mother.

24. Mr Kent is a parent under the Act, so the presumption in 61DA(1) applies to him, but he has only become known as such in the last couple of years, and I note that the presumption may be rebutted under s.61DA(4) by evidence that it is not in the child’s best interests for his/her parents to have equal shared parental responsibility for him/her. [X] is clear that she wants to get to know Mr Kent better and have a relationship with him.

25. In deciding who should exercise responsibility for making major decisions about [X]’s life, or any other parenting matter, I am bound by s.60CA of the Act to take “the best interests of the child” as my “paramount consideration”.

26. Section 60CC of the Act sets out 16 separate factors that the court must consider when it is considering what orders to make in a child’s best interests, and I have considered each of these factors[7] in the context of the parties’ Applications for parental responsibility.

    [7] I will consider each factor in turn later in these Reasons when deciding whether the mother ought to be permitted to relocate to Town G and how much time [X] should spend with each of the Applicant and the Second Respondent.

27. When I take all the evidence into account, and particularly when I consider evidence showing that the Applicant and the mother are unable to communicate without rancour, and that they have found it impossible in the past to make joint decisions about which school [X] should attend or whether she should see a counsellor, I find that it is neither in [X]’s best interests, nor reasonably practicable for the Applicant and the mother to share parental responsibility for her.

28. Mr Kent’s role in [X]’s life is still developing and its long term prospects are uncertain. In those circumstances I cannot find that it is in [X]’s best interests for him to have parental responsibility for her at this time in her life.

Decision: Issue A

1. I therefore find that it is in [X]’s best interests for her mother to have sole parental responsibility for making the major decisions in her life.

2. Nevertheless, I will make an order requiring Ms Hermann to inform Mr Meagher and Mr Kent of any major decisions she might make in relation to [X]’s care, welfare and development.

Issue B. Should the mother be permitted to relocate to Town G?

1. At the conclusion of the trial on 26 October 2017, I made an interim order permitting the mother to relocate to Town G.

2. The reasons I gave for that decision at that time were centred on the mother’s primary care of [X], the mother’s physical disabilities and her need for assistance in daily tasks and activities, and the mother’s need for the emotional support provided by her family in Town G. All of those factors are important to [X]’s emotional wellbeing.

3. That is, I did not allow the mother to relocate to Town G solely to make her life easier. I permitted the relocation because, as [X]’s primary carer, Ms Hermann’s parenting of [X] would be enhanced by having the practical and emotional support her physical disabilities require.

4. As an order allowing Ms Hermann to relocate to Town G is also a parenting order under s64B(2)(c) of the Act, I must be guided by the legislative pathway set out in the Act and by legal precedent on the issue[8].

   [8] See Goode & Goode (2006) FamCA 1346

5. In Bryans & Franks-Bryans[2007] Fam CA 377, Murphy J considered the relocation of two children to a city some 360 kilometres from the home of the non-resident parent.

6. His Honour reviewed the authorities in relation to relocation cases before the amendments to the Act on 1 July 2006[9], which had set out and refined certain principles for the court to follow in such cases, and then said, at paragraph 70:

   In my view the changes brought about by the Family Law (Shared Parental Responsibility) Act do not alter the approach to be taken to these cases. The assessment of the competing proposals of the parties must still be carried out by reference to Part VII of the Family Law Act. However, the objects, the principles, and the factors to be taken into account in determining what is in the child’s best interests have changed, and there is a presumption that needs to be addressed, and these changes may very well affect the outcome of individual cases.

   [9]See in particular A v A: RELOCATION APPROACH (2000) FLC 92-858; AMS v AIF; AIF v AMS (1999) FLC 92-858; U and U (2002) FLC 93-112; Bolitho and Cohen (2005) FLC 93-224

7. In M and S (2007) FLC 93-313, Dessau J, after following the legislative pathway set out in Goode & Goode [2006] FamCA 1346, said that there is nothing in the 2006 Amendments which would explicitly change the way a court approached a relocation matter, save that there was now an intent in the legislation that both a child’s parents ought to be substantially involved in the child’s life.

8. The principles set out by the High Court and the Full Court of the Family Court  in the cases referenced above might be stated thus:

   ·    the court must specifically consider the competing proposals of the parties in relation to the orders sought

   ·    the overarching requirement that the best interests of the child must be a Court’s paramount consideration does not mean that they must be the Court’s only consideration

   ·    any decision about relocation cannot be separated from issues of where a child will live and the child’s best interests

   ·    the best interests of the child are to be balanced against the legitimate interests of both the relocating and the non-relocating parents in relation to their right to freedom of movement, but when in conflict, the child’s best interests must be given priority

   ·    neither party bears the onus of proof, although if a party seeks to relocate, particularly if that relocation will affect the child’s relationship with the other party, he or she must demonstrate that such relocation is in the child’s best interests

   ·    a party seeking to relocate is not required to show “compelling reasons” for the relocation.

The best interests of the child

1. As the Court’s requirement is to take the child’s best interests as its paramount consideration in making any parenting order, I will now address the law in relation to that matter more fully in the context of the above principles.

2. I have already stated that the Act sets out 16 separate matters the court must address in making any decision about orders that might be in a child’s best interests, and I will now address each of those in turn.

3. There are two “primary considerations” and they 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).

4. The question of what constitutes a “meaningful relationship” has been discussed in many cases before this court and the Family Court of Australia.

5. In an oft-quoted passage from her judgment in Mazorski v Albright (2008) 37 FLR 518 Brown J said, at paragraph 26:

   a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one.

6. In other words, the meaningfulness of a relationship between parent (or parent figure) and a child depends not on the quantity of time spent between them but on the quality of that time.

7. In Tait & Densmore [2007] FamCA 1383, Cronin J said, at paragraph 170:

   To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child… Those adjectives mean that children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate to others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship.

1. In this case, there are three parents, or parent figures, whose relationships with [X] are to be considered.

2. The evidence of Ms B and Ms K, the family consultants who provided the family report and conducted the s.11F Child Inclusive Conference in this matter respectively, is that [X]’s relationship with her mother is close, loving and appropriate, and is certainly “meaningful” in all the terms set out by Brown J and Cronin J in Mazorski & Albright and Tait & Densmore respectively.

3. Mr Meagher’s relationship with [X] is also clearly meaningful to her in those terms, and it appears from all the evidence adduced in this matter that all parties acknowledge that [X] derives great benefit from that relationship despite her confusion about how she currently feels about her biological parentage.

4. The relationship between [X] and Mr Kent is still developing, although there is no suggestion that that developing relationship is not meaningful to [X], and there is evidence that she also derives benefit from that relationship.

5. It is therefore clear to the Court that [X]’s relationships with all three of her parent figures are meaningful and beneficial to her.

6. Nevertheless, the emotional milieu in which she finds herself means that the Court must certainly consider the need to keep her safe from the emotional issues which arise as a bi-product of her circumstances.

7. It is acknowledged by all parties that the circumstances under which she discovered that Mr Kent was her biological father did little to protect her from the inevitable shock of that discovery and its emotional aftermath.

8. It is the mother’s evidence that [X] approached her in 2015 asking questions about her paternity as she said that she did not look like either Ms Hermann or Mr Meagher.

9. Without reference to Mr Meagher, or to [X]’s counsellor, the mother, [X] and Mr Kent then underwent a paternity test in January 2016 which indicated that Mr Kent was [X]’s biological father.

10. When the results of that test were received in February 2016, Ms Hermann, who at that stage had been involved in three separate sets of family law proceedings with Mr Meagher in relation to [X], ceased all contact between him and [X].

11. She did so in the context of [X] having spent regular and frequent time with Mr Meagher since the parties’ separation in 2007. Indeed, since the orders of 30 January 2013, a period of some three years, [X] had spent five nights per fortnight and half of all school holidays with Mr Meagher.

12. The shock of the discovery that Mr Kent was in fact her father, and all contact with Mr Meagher then being suddenly cut off, must have been very difficult for [X] to process, and Ms Hermann now concedes that she might have handled the whole situation much better by consulting [X]’s counsellor before going ahead with the paternity testing.

13. Both Ms B and Ms K were very clear at trial that that would have been a much less traumatic process for [X].

14. If all three parties had been involved in the decisions made about how [X] was to be told this life-changing piece of news, the emotional impact on [X] might well have been contained, but in the absence of that involvement, she has been exposed to increasing animus between Ms Hermann and Mr Meagher, as a result of which she has had to be formally interviewed twice in the course of these proceedings.

15. In balancing the benefit to [X] of having a meaningful relationship with all three of her parent figures with the need to protect her from any adverse consequences resulting from those relationships, the court is bound by s.60CC(2A) to give more weight to the need to protect a child from harm than to the benefit to the child of having a meaningful relationship with all her parent figures.

16. I must therefore craft orders which continue and develop [X]’s beneficial relationships with Mr Meagher and Mr Kent, while exposing [X] to the conflict between Ms Hermann and Mr Meagher as little as possible.

17. The Act then sets out 14 “Additional considerations” for the court to take into account when deciding which orders to make in the best interests of the child:

    s.60CC(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;

18. [X]’s views are seen in the Family Report of Ms B dated 16 August 2016, and in the evidence of Ms K resulting from the Child Inclusive Conference conducted on 10 August 2017.

19. The Independent Children’s Lawyer’s submissions state that [X] “is reaching a stage in her life where her wishes are becoming more pronounced and might need to be the subject in consideration as to where her future family relationships might lie”.

20. [X] is now 12 years old and, I assume, attending secondary school. Her views are therefore a significantly relevant consideration. 

21. Ms B’s report, prepared some six months after [X] had first discovered the truth of her paternity, states:

    85. […] [X] said that she was ‘very upset’ to leave Suburb A Primary School, particularly being separated from her Best Friends (sic), one of whom had attended kindergarten with her.

    86. [X] spoke positively about School 1 Primary School and listed three Best Friends. She said that her favourite subjects are reading, writing and art, and her teacher is nice. A short-term report from School 1 Primary School, apparently completed in consultation with [X], indicates that she is settled and progressing well.

    87. [X] said that living in Town G is ‘fun’ because as she said, ‘we get to go to markets and there’s always stuff on…. my auntie takes me to my cousins every Wednesday for dinner’.

22. At trial, Dr S, for the Applicant, asked Ms B whether, on the basis of her knowledge of [X] taken from interviews for two family reports[10], Ms B thought that [X]’s positive statements about moving to Town G were “absolute”.

    [10] The first report was provided in previous proceedings in 2012.

23. “No”, said Ms B. “It was relatively superficial. It was based on the fun times that she was having with her extended family and the positive – her positive adaptation to school, that’s not superficial, of course, but there are a many (sic in transcript) other issues and factors  that I don’t think [X] (sic in transcript) was able to fully understand.”

24. Ms K’s s.11F memorandum of 10 August 2017, almost a full year after [X] was interviewed by Ms B for her family report, provides a more current view of [X]’s circumstances, but little in relation to the issue of relocation.

25. At her interview with Ms K, [X], then 11 years old, told Ms K that “she wanted to relocate to Town G because her family all live there. She pointed out Mr Kent’s new home is ‘not far’ from Town G.” Ms K states that “it is not within the scope of this brief assessment to make comment on the issue of relocation”.

26. At trial, neither the mother’s nor the Applicant’s counsel asked Ms K any questions about this issue.

27. Under cross-examination by counsel for the Independent Children’s Lawyer, Ms K disagreed with a suggestion that [X]’s wish to live in Town G was “the most powerful” statement she had made to her, saying that [X] had only mentioned that wish once and she had not revisited the issue because the question of relocation was beyond the scope of her task.

28. Nevertheless, it is clear to the Court that [X] is not opposed to the idea of relocating permanently to Town G if that is where her mother will live.

29. As a result of an accident at work which left her with significant physical disabilities, her mother requires daily assistance, and that assistance is only available to her in Town G, where members of her family live.

    (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);

30. The nature of [X]’s relationship with her mother is one of closeness, affection and trust, all of which, of course, is entirely appropriate. [X] has lived with her mother all her life and there is no suggestion that Ms Hermann has not cared for [X] in an appropriate manner.

31. The only concerns the Court has about that relationship relate to Ms B’s statements that she feared that [X]’s wishes had been heavily influenced by her mother, and to the unchallenged assertion by the mother herself that her physical disabilities create difficulties for her in caring not only for [X] on a day-to-day basis, but indeed for herself.

32. Nevertheless, it is conceded by all parties that Ms Hermann will continue to be [X]’s primary carer.

33. For the first 9½ years of her life, [X] had a close and loving relationship with Mr Meagher.

34. Her discovery that he was not her biological father has inevitably and clearly had an effect on that relationship, although she was more than excited to see him after a period of separation from him in 2016, and it is Mr Meagher’s evidence that after time with [X] had been reinstated later in that year, she was “back to her old self”.

35. All parties accept that Mr Meagher is a significant and important figure in [X]’s life, and both Ms K and Ms B refer to him as [X]’s “psychological father”.

36. [X]’s relationship with Mr Kent was still in its developmental stages at the time if trial, but all accounts are that it has progressed in a positive fashion, and I note that [X] has spent overnight time with Mr Kent and his family, which indicates a relationship of some importance.

37. I note that [X] also has a close and long term relationship with Mr Meagher’s mother, and that [X] greeted her warmly and enthusiastically when she saw her at the interview for the family report.

38. As is the case with Mr Kent, [X] is developing relationships with his family, including her half-siblings and grandmother. All the evidence about those connections is positive although those relationships too are in their early stages.

    (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;

39. Ms Hermann, as [X]’s primary carer since her birth, has taken her responsibilities as [X]’s mother very seriously, and it was not until she took the step of obtaining DNA tests in relation to [X]’s paternity that there was really any question about her ability to make appropriate long-term decisions that are in [X]’s best interests.

40. When she believed [X] would benefit from counselling, and Mr Meagher refused to permit [X] to attend, Ms Hermann brought the matter to this Court and obtained an order allowing [X] to receive that counselling.

41. Mr Meagher has taken every opportunity to spend time with [X], and at the beginning of the proceedings, he was seeking orders that she live primarily with him.

42. Until February 2016, there was no question that he was responsible for her as a parent, and indeed, until these orders are pronounced, he has been so responsible for her since her birth.

43. The institution of these proceedings indicates that she is very important to him and he is committed to being a major part of her life.

44. Mr Kent appears to have taken the news that he had another daughter in a generally positive manner. He has taken the opportunity to spend time with [X] and has introduced her to his other children, his wife and his mother.

    (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;

45. Ms Hermann, who has had the primary care of [X] for the whole of [X]’s life, has maintained and supported her financially for that whole period.

46. In addition, for a period when she was working and Mr Meagher was not, she paid him child support as assessed by the Department of Human Services (Child Support) (“the Child Support Agency”).

47. Mr Meagher has paid child support according to assessments at various times during [X]’s life, but I notice that when he contacted the Child Support Agency in 2016 to seek advice about what he should do in the new circumstances of [X]’s paternity, he had some small amount of arrears, which were then cancelled, as was any legal liability he had to pay for [X]’s support in future.

48. At the time of trial, it would appear that Mr Meagher was paying little, if anything, towards [X]’s support.

49. Mr Kent, although only made aware that [X] is his daughter in 2016, and not having had any Child Support Assessment made which might govern his obligations in relation to her financial support, has nevertheless provided Ms Hermann with regular, though modest, payments for [X]’s benefit. That is greatly to his credit, particularly in light of his legal and moral obligations to support his other children.

    (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;

50. If I make Orders for Ms Hermann to move to Town G with [X] on a permanent basis, [X] will be geographically separated to a great extent from Mr Meagher, and from Mr Meagher’s mother, who has been [X]’s grandmother figure all her life. It is clear from Ms B’s evidence that [X]’s relationship with Mr Meagher’s mother is a close, warm and loving one.

51. On the other hand, if I make Orders for Ms Hermann to return to live in the Suburb A area with [X], [X] will be separated from her maternal family who live in Town G, including her maternal grandmother, aunts and cousins with whom [X] is said to have a close and supportive relationship.

52. I will therefore attempt to make Orders that allow [X] to retain all of those valuable relationships, though some will inevitably change in nature over time.

53. There was no evidence that [X]’s relationship with Mr Kent would be affected by a move to Town G.

    (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;

54. If I make Orders for the relocation sought, the three parties in this case will live in a kind of geographical triangle: Ms Hermann in Town G; Mr Meagher in Suburb B; and Mr Kent in Suburb F[11]. The lengths of the sides of that triangle are[12]:

    ·    187.6 kilometres from Town G to Suburb B with a driving time of about two-and-a-half hours

    ·    125.2 kilometres from Town G to Suburb F with a driving time of about one-and-a-half hours

    ·    82.9 kilometres from Suburb B to Suburb F[13] with a driving time of about one-and-a-half hours

    [11] I am assuming Mr Kent’s move to Suburb F as it was his evidence at trial that that move was imminent

    [12] According to Google Maps

    [13] I include this “leg” of the journeys because it is possible that there would be some times when [X] would move directly from Mr Meagher’s care to Mr Kent’s and vice versa.

55. If I do not allow Ms Hermann to remain in Town G, and she returns to the Suburb A area, there will still be a triangle, but its parameters will be slightly different:

    ·    21.1 kilometres from Suburb A to Suburb B with a driving time of about 24 minutes

    ·    119.7 kilometres from Suburb A to Suburb F with a driving time of one-and-three-quarter hours

    ·    82.9 kilometres from Suburb B to Suburb F with a driving time of about one-and-a-half hours

56. It is clear then, that [X] would have to travel for longer times to spend time with the Applicant if she were to live in Town G with her mother than if she and Ms Hermann were to return to Suburb A.

57. There would also be a much greater inconvenience for Mr Meagher.

58. [X]’s travel time to spend time with Mr Kent would be a longer distance but a slightly shorter time.

59. Nevertheless, I do not consider that that distance would “substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis”.

60. It would affect the amount of time Mr Meagher will spend with [X], but not her right to maintain her relationship with him, particularly if I consider the electronic means of contact now available to people who live a significant distance from each other.

    (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;

61. There is no evidence before the Court that any of the parents/parent figures are not capable of caring for [X]’s material needs. She is sheltered, fed, clothed and well cared for in all three parties’ care.

62. She is reported to be doing well at school, and the Court has no concerns about any of the parties’ ability to meet her intellectual needs.

63. The Court does have some concern about the mother and Mr Meagher’s capacity to take account of and meet [X]’s emotional needs.

64. The relationship between Mr Meagher and the mother when all believed Mr Meagher to be [X]’s father was strained and conflictual and involved allegations of quite serious family violence. Exposing any child to disputes and anger between his/her parents cannot be said to meet that child’s emotional needs.

65. As with all separated families, the mother and Mr Meagher need to separate their anger, hurt, grief and disappointment arising from the collapse of their relationship as a couple from their role as [X]’s parents, as conflating those two issues can cause considerable damage to a child’s emotional development.

66. In addition, the mother’s actions in carrying out parentage testing when [X] was seeing a counsellor without reference to that counsellor indicates a lack of awareness of [X]’s more subtle emotional needs.

67. Nevertheless, on the whole, both the mother and Mr Meagher have displayed a capacity to meet [X]’s needs.

68. Mr Kent’s capacity to meet [X]’s needs is still being tested but there is no evidence that he is lacking in that capacity.

    (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;

69. The adult displaying the most maturity in these proceedings appears to me to be Mr Kent. He has “stepped up” to the role as [X]’s parent admirably and has taken his cues from Ms Hermann as to how much contact he has with [X].

70. Both Ms Hermann and Mr Meagher have at times behaved in a less than mature manner, as discussed elsewhere in these Reasons.

71. [X] herself is reported to be a child meeting all her developmental milestones.

72. The only other issue of concern under this sub-section is that Mr Meagher’s heritage is (nationality omitted) and [X] has been exposed to that culture for most of her life. While that is not her biological heritage, it would be a shame if she were not able to explore the richness of that culture into the future.

    (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;

73. There is no evidence before the court that [X] has any Aboriginal or Torres Strait Islander heritage .

    (i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

74. It must be said that all three parties to these proceedings have shown a very positive attitude to being [X]’s parents.

75. It would have been very easy for Mr Meagher to simply “dump” [X] when he discovered that he was not her biological father. That he did not do so indicates a willingness, and, indeed, a determination to be a parent to [X] and to be a positive influence in her life. He is to be commended for that, despite his animus towards [X]’s mother and his lack of financial support since he made that discovery.

1. Ms Hermann, again, has cared for [X] her whole life, and she is fiercely protective of her. It is her responsibilities to [X] and her attitude to her role as [X]’s mother, which have formed the basis of her conduct of this litigation. I did not get the impression that Ms Hermann put her own needs ahead of [X]’s, but rather that she genuinely believes that it is in [X]’s interests, as much as in her own, for [X] to move to Town G.

2. I have already noted Mr Kent’s willingness to be involved in [X]’s life as her parent.

   (j) any family violence involving the child or a member of the child’s family;

3. It is not in dispute that there were ten notifications to the Victorian Department of Health & Human Services Child Protection authorities in relation to [X]’s safety and security in the care of both parents between 2010 and 2016, several of which were in relation to concerns about Mr Meagher’s reported aggressive behaviour at [X]’s school or child care centre, and one in relation to [X]’s concerns about her safety in his care.

4. Ms Hermann alleges that her relationship with Mr Meagher was characterised by family violence in the form of humiliating verbal and emotional abuse, including punching holes in walls in [X]’s presence. She also alleges that Mr Meagher has behaved in an aggressive manner while caring for [X] and that she was contacted by [X]’s school in December 2016 because [X] was apprehensive about spending time with Mr Meagher because of his anger.

5. I note that Ms Hermann says she did not personally inform Mr Meagher of the results of the initial paternity test because she was afraid of his reaction. In those circumstances, she instructed her solicitors to write to him with the news that he was not [X]’s biological father.

6. It is my view that one cannot be an abusive partner and a good parent at the same time.

7. The damage suffered by children who are exposed to family violence can be enormous. It not only frightens them at the time, but it can damage their long term views of themselves, of their parents, and of how relationships are conducted in general.

8. There is no evidence before the Court that Mr Kent has behaved in a manner that would fall within the definition of family violence.

   (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;

9. The Court is not aware of any Family Violence Protection Orders having been made between any of the parties to these proceedings.

   (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;

10. [X] is now twelve years old. Her life has been in some turmoil since February 2016 when she discovered her true biological parentage. She has now lived through four sets of parenting proceedings conducted in this Court. She deserves to have this matter decided in certain terms so that she can come to terms with her new living arrangements without the shadow of Court proceedings hanging over her.

11. It is expected that the Orders made today will be truly final orders in relation to [X]’s care arrangements, although I note that there are further Contravention proceedings on foot.

    (m)    any other fact or circumstance that the court thinks is relevant.

12. In the context of the mother’s application to move to Town G, I consider the back injury she incurred in 2010, and her need for assistance in her daily living as a result, to be of some relevance.

13. It is Ms Hermann’s evidence, at paragraph 62 of her affidavit sworn 10 October 2017 and filed 12 October 2017 (“her trial affidavit”), that her home in Suburb A is on a steeply sloping block of land with “… 8 steps from the carport to the house, 5 steps inside the house from the dining area to the lounge/bedroom level and 10 steps from the back veranda to the backyard, which is steep. Outside there are 8 steps down one side of the house and 3 steps on the other side and then a sloping path of grass and crushed rock. I find it very difficult to get around the house”.

14. Further, she says, at paragraphs 63 and 64 of her trial affidavit:

    63. It is impractical to modify the house to meet my needs, as it would require several ramps to be installed and I would still feel pressure in my back walking up and down the ramps. I have arranged for a tradesman, Mr R to come to my home to give me a quote for modifying my home with ramps to make it easier for me to get around and he told me that the block is too steep and it is not practical.

    64. WorkCover will not cover the costs of modifying my home and I cannot afford to spend money on renovations.

15. The house in Town G where she would live[14] – a house owned by her brother – would provide her with assistance from her mother, her sister, her brother and her partner, all of whom live at that property.

    [14] I assume that Ms Hermann has been living at this property in School 1 since I made the order permitting her to relocate on a temporary basis on 26 October 2017.

16. That property is close to School 1 Primary School, and [X] would be able to walk to school.

17. It is Ms Hermann’s evidence that if she is permitted to relocate to Town G on a permanent basis she would sell her house in Suburb A, although she was uncertain whether she could afford to buy a home in Town G.

18. Ms Hermann’s evidence about her injury and the severity of her consequent disabilities was challenged at trial but I found her evidence, and the evidence of her general practitioner, Dr K, to be convincing, and I am satisfied that while Ms Hermann says her condition is gradually improving, it would be very much better for her physical and emotional health if she were able to avail herself of the assistance afforded to her by her family in Town G.

19. That assistance will mean that she is better able to care for [X] in both emotional and physical terms.

Decision: Issue B

1. When I consider and balance all of the matters set out in ss.60CC(2) and (3), I find that it is in [X]’s best interests to make an order allowing the mother to relocate to Town G with her on a permanent basis.

2. Because her mother will have access to consistent care in Town G, [X] will benefit from the consequent reduction in stress and pain experienced by Ms Hermann.

3. I do not consider that this decision will affect the quality of [X]’s relationship with Mr Meagher, although it will certainly affect the amount of time she is able to spend with him.

Issue C: How much time should [X] spend with Mr Meagher?

1. This issue is essentially at the core of these proceedings.

2. Mr Meagher seeks orders that reinstate the orders of 30 January 2013 so that he would spend time with [X] for nine nights in each fortnight and for half of all school holidays, there also being provision for Christmas, Easter, the child’s and the Applicant’s birthdays, Father’s Day and New Year’s Eve.

3. Mr Kent does not appear to have any particular proposal in relation to the time [X] should spend with Mr Meagher.

4. Ms Hermann’s proposal, as set out in her Outline of Case Document filed on 18 October 2017, is as follows:

   5.  That the child spend time and communicate with the respondent, MR MEAGHER as follows:

   a. During school terms, on the second weekend of every month from the conclusion of school or 3.30pm until 5pm on Sunday;

   b. During school term holidays (not including the long summer holidays), for the first four days and three nights from the conclusion of school until 12.00 noon on the fourth day;

   c.During the long summer school holidays, for the second week;

   d.From 3.00pm on Christmas Eve until 3.00pm on Boxing Day in 2017 and every third year thereafter;

   e.By telephone or text message every Wednesday between 6.30pm  and 7.30pm;

   f.Otherwise, as agreed from time to time, including on the child’s birthday and Father’s Day.

5. I note that, as I have decided that [X]’s mother will have sole parental responsibility for her, I am not bound to consider whether [X] should spend “equal time” or “substantial and significant time” with other parties under s.65DAA(1)(a) and 2(c) of the Act respectively.

6. The mother proposes that changeover occur at the BP service station at Town F should she be permitted to relocate to Town G.

7. At the time of trial Mr Meagher was spending time with [X] on one weekend per month pursuant to the orders made by consent on 15 August 2017.

8. On the final day of the trial, I made interim orders in the following terms:

   4.  The Applicant shall spend time and communicate with the child:

   (a)     during school terms:

   (i)from 6:00 p.m. Friday to 6:00 p.m. Sunday or Monday if a public holiday on the first and third weekends of each month;

   (ii) by telephone, Skype, FaceTime or other electronic means each Wednesday at 6:00p.m. with the Applicant to make the call and the Mother to ensure that the child has access to a fully charged, working telephone, tablet or computer, that the child is available to take the call and that the child is afforded privacy during the call;

   (iii) the child be at liberty to contact the applicant by such means at any time;

   (iv) at other times by agreement between the Mother and the Applicant in writing.

9. In the family report, Ms B says the following:

   63. [X] indicated confusion and anxiety about living arrangements. She said that she would like to get to know Mr Kent, but would like to spend time with Mr Meagher. [X] said that Ms Hermann had invited Mr Kent to attend the report appointment, but that “he said he was working”. [X] said inter alia that she would choose to live with her mother, but dividing her time between Mr Kent and Mr Meagher would be difficult, that “I wouldn’t know how to do it… I want to see all three of them”.

10. And later:

    88. When I asked [X] about living arrangements, she firmly said that she would wish to live with her mother and to spend time with both Mr Meagher and Mr Kent. She expressed some distress however about how to find the time, saying inter-alia that “I wouldn’t know how to do it, but I’d like to see all three of them”.

11. At trial, Ms B said that at her interview with Ms B, [X] “was expressing that she was missing Mr Meagher and that she was looking forward to seeing him again and that she had been somewhat concerned that her mother might continue to keep her from spending time with him”.

12. When asked whether [X] should have “some input in determining… the time she spends with her dad, given the upheaval in her life”, Ms B said:

    I’ve got some concerns about that, your Honour. Certainly, [X]’s (sic in transcript) voice needs to be heard given her age now. But I would have some concerns about adding a lot of weight to what she’s saying because I note to that in the - the family consultant… expressed some concern about the level of influence of the mother”.

13. Under cross-examination by counsel for Mr Meagher, Ms B was taken to the following paragraph of the s.11F memorandum of Ms K :

    It was apparent that [X] had a desire and focus on building a relationship with Mr Kent and her half siblings. She considered it necessary she spend less time with Mr Meagher so that she could focus on building the new relationships. This did not appear to be a rejection of Mr Meagher but an emotional need whilst processing complex feelings in a complex situation.

14. Ms B expressed concern “given the final statement in that paragraph that [X] (sic in transcript) has been supported to behave, that might be rejecting of – of Mr Meagher. I would be concerned about that, yes”.

15. In her closing submissions, the mother’s counsel pointed out that if I were to make an order for [X] to spend two weekends in each month with Mr Meagher and one weekend each month with Mr Kent, that would usually leave only one weekend per month for her to be at home with Ms Hermann. If [X] is living in Town G, and is involved in extracurricular community and sporting activities, it will be difficult for her to be involved in those activities in Town G if she is spending three weekends per month away from home.

Decision: Issue C

1. It is clear to the Court that in circumstances where Mr Meagher has been [X]’s “psychological parent” for the majority of her life, where she clearly derives benefit from continuing that relationship despite some concerns she has about his expression of anger, and where the expert opinion is that while the relationship might have changed somewhat as a result of [X] discovering that Mr Meagher is not her biological father, I find that it would nevertheless be to her detriment if that relationship were to be severed altogether.

2. Ms Hermann has ongoing issues with Mr Meagher, but it is not the relationship between Ms Hermann and Mr Meagher that concerns the Court. Ms Hermann and Mr Meagher will have to work on their own issues without allowing those issues to disrupt [X]’s emotional and psychological development by continuing their dispute.

3. In all the circumstances of the case, and having regard to all the matters discussed in paragraphs 101-202 above, I find that it is in [X]’s best interests to spend time with Mr Meagher for at least one weekend a month, plus one week in two of the three school term holidays and two weeks of the long summer holidays each year. Where a month contains five weekends, [X] will spend the fifth weekend with Mr Meagher. In addition to that time, I will make provision for [X] and Mr Meagher to spend time together on special occasions.

Issue D: How much time should [X] spend with Mr Kent?

1. As I have said several times, Mr Kent’s relationship with [X] is still in its development phase, although all signs are that it is developing appropriately and with benefit to [X].

2. [X] is clear that she wishes to continue to spend time with Mr Kent, as well as with other members of his family, including her half-siblings and grandmother.

3. Ms B was concerned at the speed with which Ms Hermann had allowed the relationship to develop, but by the time Ms K saw the family a year after Ms B’s interviews, her recommendation was that “[X] should be supported to build a relationship with Mr Kent”.

Decision: Issue D

1. In those circumstances, and where Ms Hermann supports the development of [X]’s relationship with Mr Kent and other members of his family, I find that it is in [X]’s best interests to continue to develop a regular and close relationship with Mr Kent.

2. I will make orders that she spend one weekend each month with him during school terms, plus one week in the Second Term school holidays, plus one week of the long summer holidays, as well as special occasions.

Conclusion

1. This case is unusual on its facts, and its course has been confusing and distressing for [X].

2. If Ms Hermann and Mr Meagher can concentrate on their roles as caregivers to [X], and not on the interpersonal conflict between them, and [X]’s relationship with Mr Kent is allowed to develop with the support of all her parent figures, the damage done to her as a result of the events of early 2016 and since, might be ameliorated.

3. It is to be hoped that all parties will accept the judgment of the court in this matter, and that [X]’s future can be one of peace and harmony. That will clearly be impossible while contravention proceedings are on foot, but not having read any documents filed in those proceedings, I am not able to comment on the strength of the allegations made or the viability of those proceedings.

I certify that the preceding two hundred and thirty (230) paragraphs are a true copy of the reasons for judgment of Judge Small

Date: 22 June 2018