Merritt and Partos (No 2)

FAMILY COURT OF AUSTRALIA

MERRITT & PARTOS (NO 2)

[2015] FamCA 756

FAMILY LAW – CHILDREN – Relocation – Best Interests – Where final parenting Orders were made in 2010 that provided for the mother to have sole parental responsibility for the child and for the child to live with the mother and spend time with the father – Where the parents have been in high conflict for the entirety of the child’s life – Where an Order was made in 2011 that neither party could institute proceedings without leave of the Court – Where the mother was granted leave to bring an application – Where the mother seeks an order that she be permitted to relocate interstate with the child – Where the father seeks an order that the child live with him – Relocation granted – Order that the child continue to live with the mother and spend time with the father – Order that the mother continue to have sole parental responsibility of the child.

Family Law Act 1975 (Cth)

APPLICANT:

Ms Merritt

RESPONDENT:

Mr Partos

INDEPENDENT CHILDREN’S LAWYER:

Tracy-Lynne Geysen

FILE NUMBER:

BRC

1985

2007

DATE DELIVERED:

11 September 2015

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

10 and 11 August 2015

REPRESENTATION

THE APPLICANT:

In Person

THE RESPONDENT:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Linklater-Steele of Counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Couper Geysen Family & Animal Law

Orders

That all previous parenting Orders save for paragraph 3 of the Order of Justice Bell of 18 March 2011 are discharged.
That the child, C born … 2006, (“the child”) shall live with the mother and she is permitted to take him to live with her in the area around Q Town, near K Town in the State of New South Wales from the end of the pending September-October Queensland school holidays.
That the mother have sole parental responsibility for making all decisions about the “major long-term issues” (as that term is defined in the Family Law Act 1975 (Cth) (“the Act”)) in relation to the child.
That when the mother is to make a decision about the “major long-term issues” (as that term is defined in the Act) in relation to the child:
(a)       She shall inform the father in writing of the decision to be made;
(b)       She shall invite written input from the father;
(c)She shall take the father’s input into account when making the decision; and
(d)       She shall inform the father in writing of the decision she makes.
That the child shall spend time with the father at all reasonable times as agreed in writing between the parties but, in default of agreement, in accordance with the following:
(a)During the school holidays of the school the child attends when he is living in New South Wales as follows:
(i)For all of the Autumn school holidays each year being from after school on the last day of first term until 3.00 pm on the Sunday of the last weekend of the holidays;
(ii)For the first half of the Winter school holidays each year being from after school on the last day of second term until 3.00 pm on the Sunday of the middle weekend of the holidays;
(iii)For all of the Spring school holidays each year (including this year 2015) being from after school on the last day of third term until 3.00 pm on the Sunday of the last weekend of the holidays;
(iv)For three weeks and three days in one block during the second half of the Summer school holidays in 2015/2016 and in each alternate year thereafter, commencing at 3.00 pm on whatever day is necessary to have the child returned to the mother’s care at 3.00 pm on the second last day before the child returns to school in the new year;
(v)For three weeks and three days in one block during the first half of the Summer school holidays in 2016/2017 and in each alternate year thereafter, commencing immediately after school finishes on the last day of the school year and ending at 3.00 pm on the day that is three weeks and three days later;
(b)For up to two weekends during each school term at the father’s election, conditional upon, unless otherwise agreed in writing in advance between the parties, the following:
(i)The father giving the mother no less than two full weeks’ notice in writing of his intention to have the child with him on the nominated weekend; and
(ii)The father picking the child up from school on the Friday afternoon and returning him to school on the following Monday morning; and
(iii)The father staying for the weekend with the child somewhere within a 60 km radius of the Q Town Post Office; and
(iv)The father taking the child to all of his extra-curricular activities scheduled during that weekend, including any football game, with the mother to give the father details in writing of any such activities and games scheduled during that weekend at the father’s request or as soon after his nomination of that weekend as she learns of the scheduled extracurricular activity or game, whichever is the earlier.
That the child shall communicate with the father during time when he is not in the father’s care as follows:
(a)By video call (such as via Skype or Facetime), on such carrier as is agreed between the parties from time to time, between 6.00 pm and 6.30 pm New South Wales time each Wednesday and Sunday and other special days (as defined in the next sub-paragraph), to be facilitated by the father making the call to the child and the mother ensuring that the child takes the call and is able to talk to his father in private, with the call to be made by telephone on such occasions as the video calling facility is temporarily unavailable for any reason at either end;
(b)“other special days” as used in the previous sub-paragraph means any of Father’s Day, Christmas Day, Easter Sunday, the child’s birthday and the father’s birthday on which the child does not otherwise spend any time in the father’s care.
That the child shall communicate with the mother during time when he is not in the mother’s care as follows:
(a)By video call (such as via Skype or Facetime), on such carrier as is agreed between the parties from time to time, between 6.00 pm and 6.30 pm Queensland time each Wednesday and Sunday and other special days (as defined in the next sub-paragraph), to be facilitated by the mother making the call to the child and the father ensuring that the child takes the call and is able to talk to his mother in private, with the call to be made by telephone on such occasions as the video calling facility is temporarily unavailable for any reason at either end;
(b)“other special days” as used in the previous sub-paragraph means any of Mother’s Day, Christmas Day, Easter Sunday, the child’s birthday, the mother’s birthday and the child’s sister’s birthday on which the child does not otherwise spend any time in the mother’s care.
That save for when the father collects the child from and returns him to his school at the commencement of or conclusion of time the child spends with the father pursuant to the terms of this Order, the child shall transition between the parents at the times provided in the terms of this Order at Region J Children’s Contact Centre, I Town and, only if the contact centre is not scheduled to be open at the time and on the day provided for herein, then at Relationships Australia, Children’s Contact Service, H Town, Queensland.
That only in the event that neither of the Children’s Contact Centres listed in paragraph (8) hereof is scheduled to be open at a time provided for handovers of the child in the terms of this Order, then the handover shall take place at McDonalds Family Restaurant, I Town.
That the mother and the father shall pay in equal shares any fees charged by a children’s contact centre to facilitate handovers of the child between them as provided for in the terms of this Order.
That the father shall, unless invited to do so by the mother in writing, remain away from the child’s extra-curricular activities and football games, save for those that take place on any of the mid-term weekends that the child spends with the father pursuant to paragraph (5)(b) hereof when the father is to take the child to them and the mother shall, unless invited to do so by the father in writing, remain away from them.
That the father is not obliged to take the child to any extra-curricular activities, including football games, scheduled during school holidays in the time that the child is in the father’s care, though he may do so if he considers it appropriate.
That each parent shall keep the other parent informed in writing at all times of their residential address, email address and contact telephone number or numbers, and shall notify the other of any change to any of those within 48 hours of knowing what any such change is or is going to be.
That the mother shall keep the father informed as to the child’s health, in particular, as to any significant injury or illness or change in his health that the child experiences from time to time and the father shall inform the mother of any significant injury or illness or change in his health that the child experiences at any time whilst in his care.
The father shall remain away from the school the child attends in New South Wales save for the times he is collecting the child from the school or dropping him to the school in connection with the time the child is spending with the father as provided for in the terms of this Order and save for any time that he has, with the approval of the school’s administration, made an appointment in advance to speak with the school’s Principal or the child’s classroom teacher or both of them, outside of the child’s classroom environment, to discuss the child’s educational progress.
That the mother shall authorise the school to provide such information to the father about the child’s educational progress as is normally provided by the school to parents of its pupils, as might be requested from time to time by the father, and the mother is authorised, pursuant to s 121(9)(g) of the Act, to provide a copy of this parenting Order to the administration of any school the child attends.
That the mother and the father shall communicate with each other, only as necessary, by text message or email save for in an emergency or to facilitate compliance with the terms of this Order when they may contact the other by telephone.
That each of the mother and the father is restrained from denigrating the other parent or the other parent’s partner to or within the hearing of the child and each shall use his and her best endeavours to ensure that the child is not exposed to denigration of the other parent or the other parent’s partner by any third person.
That the mother shall ensure that the child continues to attend upon Dr F as and when determined appropriate by the mother and Dr F.
That each of the mother and the father shall sign all documents necessary for the child to be issued with an Australian passport as soon as practicable, with that passport to be retained in the care and possession of the mother, save for when the father requires it for the purposes of the child travelling with him to visit New Zealand during any of the school holiday periods during which the child is in the father’s care pursuant to the terms of this Order, where the mother will cause it to be delivered to the father when the child goes into his care at the commencement of the school holiday time during which he is to travel to New Zealand, with the father causing it to be delivered back to the mother when the child returns into her care at the conclusion of the school holiday time during which he has travelled to New Zealand.
That subject to paragraph (22) of this Order, the father is permitted to take the child, C born … 2006, from Australia to New Zealand for holiday visits during any time that the child is spending time in the father’s care pursuant to the terms of this Order, but the father is restrained from taking the child to any other country without the prior written consent of the mother or further order of this Court.
That should the father decide to take the child to New Zealand during any of the school holidays in which the child is spending time with him as provided for in the terms of this Order, he shall inform the mother in writing at least two weeks prior to the commencement of that holiday time and he shall, at the same time, provide the mother with a copy of the electronic air ticket provided by the relevant airline showing the details of the child’s return flights, and he shall also provide the mother with details as to the address or addresses at which the child will be staying in New Zealand and the phone number or numbers at which the mother will be able to contact and speak to the child, either by video call or telephone call, pursuant to the terms of this Order, whilst the child is in New Zealand.
That the Australian Federal Police are requested to remove the name of the child, C born … 2006 (male), from the Family Law Watch List as soon as practicable.
That the Independent Children’s Lawyer shall, at her discretion, inform the child of the outcome of these proceedings and is then discharged.
That pursuant to s 65DA(2) and 62B of the Family Law Act 1975 (Cth) (as amended), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Merritt & Partos (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1985 of 2007

Ms Merritt

Applicant

And

Mr Partos

Respondent

And

Independent Children's Lawyer

REASONS FOR JUDGMENT

C was born in 2006 and is now nine years of age. Unfortunately for this child, the entirety of his life has been spent being at the centre of high conflict between his parents.
C’s parents first met through the internet. Their relationship was a very brief one and from it their child was born. They never lived together and they have never had any period since the child was born where they loved and respected each other or co-parented in a co-operative manner. Since the child was born, both parents have re-partnered, more than once, and his mother has had another child, a girl who is now three years old. Each parent is currently in a new relationship.
C has always lived principally with his mother and also with his sister since she was born. Since he was a baby, he has spent time with his father. Pursuant to the current parenting Order he spends time with his father every second weekend and for half of his school holidays. That ordered arrangement has been in place since 2010.

Issues Now in Dispute

The mother now wants a parenting Order that the child continue to live with her and that she be permitted to relocate the child’s residence to Q Town, where she intends to live with her current partner.
The father seeks that there be a change in residency and that the child goes to live with him and that he be given sole parental responsibility for the child.
In the event the Court determines that the child can live with the mother in Q Town, the father seeks the same amount of time as he currently has, ie every second weekend (and half of the school holidays), with the father to collect the child from Q Town on the Friday and the mother to collect the child from Region J on the Sunday. In addition, the father does not want an obligation imposed upon him to return the child to Q Town to attend weekend football games. Indeed, at the end of the two day trial the father made an oral application for the current Order obliging him to take the child to football games to be discharged in the interim and on 14 August 2015 such an Order was made.
The Independent Children's Lawyer submits that the child should remain living with the mother; that she be allowed to relocate the child’s residence to Q Town; and that the time the child spends with the father be restricted to block school holiday time.

Some History

The father commenced proceedings for a parenting Order in respect of the child in 2007. The proceedings went to trial before Bell J in April 2010. His Honour made an Order that the child live with the mother and that the mother have sole parental responsibility for him, but that he spend alternate weekends with the father and also half of his holidays after he started school. At that time, the father was living on Region J and the mother in the south of Brisbane. His Honour’s Order provided for the parents to share the necessary travel between Brisbane and Region J.
The conflict and the litigation did not end there. The parents were back before Bell J the following year. On 18 March 2011, his Honour made an Order that neither parent could institute proceedings in this Court without first obtaining the leave of the Court and his Honour disqualified himself from further hearing the matter.
In October 2011, Murphy J granted the father leave to file a contravention application. That application was heard by me on 20 December 2011. I found the mother had contravened Bell J’s parenting Order without reasonable excuse and I ordered that the child spend some time with the father to make up for time he had missed. My Order of 20 December 2011, also reflects an understanding that the father had appealed the Order of Bell J restraining both parents from instituting proceedings without first obtaining the leave of the Court. My current understanding of that is that it is agreed that no appeal against that Order was ever heard by the Full Court. It was apparently withdrawn by the father.
At some point in 2012, the father moved from Region J to live in Suburb P to care for each of his parents, who had long separated, but who were both very ill. The mother and the father continued to experience conflict about the timing and the place of handovers of the child between them for the time that he was to spend with the father on weekends and in holidays. The mother wanted to formally change the existing Order to take into account the changed circumstance of the father living in Brisbane. The father did not agree. He maintained the assertion that it was a temporary stay and that he would be returning to live at Region J at some future time.
In September 2013, I gave the mother leave to file an application seeking a variation of the existing parenting Order. The application was then heard in October 2013 by Principal Registrar Filippello who made some interim changes to Bell J’s existing parenting Order, including providing for the child’s weekend time with his father to start from the finish of school on a Friday and to end at the start of school on a Monday, particularly so that the parents did not have to come into face to face contact with each other.
The PR’s Orders also provided for the father to ensure that the child attended sporting and extra-curricular activities whilst spending time with him and obliged the father to return the child to the mother if he was unable to facilitate the child’s attendance at such activities.
Relevantly, it became clear during the recent trial before me, that the child is a talented and committed football player. Both parents agree on that. During football season he has regular weekend game commitments that the PR’s order was plainly directed to.
The proceedings remained in the pending cases list through 2014 and were set for a trial in August 2015.

Over the summer of 2014/2015, the mother formed a relationship with a man who lives in Q Town, a small rural village just south of K Town in northern New South Wales. She started spending time with him there on weekends, taking her two children with her.
In March 2015, the father filed an Application in a Case in which he sought changes to the existing parenting Order to revert back to the 2010 Order of Bell J based on his decision to move back to Region J later that month.
The father’s parents had both passed away in early 2014 and although the father had continued to live in Suburb P in his late father’s house throughout the balance of 2014 and early 2015, he decided to move back to Region J when the administration of his father’s estate required him to vacate his late father’s house and for it to be sold.
The father’s Application in a Case came before me on 11 May 2015. I dismissed it, principally because the trial was then only months away. The mother informed the Court that day that she wanted to move to live in Q Town with her new partner and wanted to amend her application to include leave to relocate the child’s residence with her. I granted her that leave to amend and also granted the father leave to amend his Response to seek such orders as he considered appropriate. It became clear he would be asking for an order that the child live with him.
In late June, I ordered a fresh family report be prepared, preferably by Family Consultant Mr G, who had done reports on this family in previous years. That was done and it was adduced into evidence for the trial.
The trial took place on 10 and 11 August 2015. The mother and the father both appeared without legal representation, but the ICL appeared with counsel.

The Competing Proposals

The mother sought a continuation of the parenting Order that the child lives with her and that she has sole parental responsibility for him. As part of this, she necessarily sought the Court’s approval to relocate the child to live with her and his little sister in Q Town with her new partner. Given the father’s recent relocation back to live at Region J with his new partner, the mother contended that school term weekend time with the father will be too much of a burden for the child to cope with, given the fact that it would take around three hours for the child to be driven from Q Town to Region J and another three hours for him to be driven back at the end of those weekends.
The father asked the Court to make a fresh parenting Order that the child now live with him at Region J and spend time with his mother and sister down at Q Town on weekends and in school holidays. Alternatively, he asked the Court to restrain the mother from moving the child to Q Town, effectively making her stay in Brisbane so that alternative weekends with the father on Region J could continue. The father also ultimately asked the Court to leave alternate weekends in place if the child continues to live with the mother and is allowed to move with her to live in Q Town. In that outcome, the father proposes driving to K Town on the Friday and collecting the child from school and driving him back to Region J with the mother to be responsible for collecting him from Region J on Sunday afternoons and driving him back to Q Town.
Bound up in the determination of the proper parenting Order, is the child’s commitment to playing football. Each parent acknowledges this and pledges their support for the child’s continued involvement in football. This, however, creates additional difficulties in respect of an Order that would provide for the child to spend alternate weekends away at either Region J or northern New South Wales during the football season.
In addition to the other parenting Orders he sought, the father asked for an Order lifting the restraint on the child being taken out of the country that he caused to be put in place many years ago. The father wants to be able to travel with the child to New Zealand, his partner’s country of origin, this Christmas holidays in particular. He also asked for an order restraining the mother from taking the child to see the psychiatrist, Dr F, who has been seeing the child since he was a little boy.

The Principles by which these Competing Applications are to be decided

Pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”), when determining parenting Orders disputes, this Court is to make such parenting orders as the Court thinks “proper”, and, in so doing, must regard the best interests of the subject child as the paramount consideration.
In determining what is in a particular child’s best interests the Court must consider an extensive list of matters.[1] Those matters include, listed as “primary considerations”, the benefit to the child of having a meaningful relationship with each of its parents, as well as the need to protect the child from physical or psychological harm. The “best interests” inquiry may be broad, as the list of matters that must be considered includes “any other fact or circumstance that the court thinks is relevant”.
[1] That list is set out in s 60CC of the Act
Determining what is a “proper” parenting order to make is also subject to the application of a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for that child. The presumption is rebutted where there are reasonable grounds to believe that a parent of the child has engaged in family violence or abuse of the child.[2] Even if there are no such reasonable grounds, the Court may still make a different parental responsibility order if persuaded, on the evidence, the presumption should not apply.
[2] Section 61DA(1) and s 61DA(2) of the Act
“Parental responsibility” is defined in s 61B of the Act. It means, in relation to a child, all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. It matters most, at least in my judgment, when decisions are to be made about what are defined in the Act as “major long-term issues” in relation to a child. That term is defined in s 4 to mean “issues about the care, welfare and development of the child of a long-term nature” and includes (but is not limited to) issues of that nature about the child’s education (eg what school she goes to), the child’s religious and cultural upbringing (eg should she be brought up as a Christian or without taught adherence to a particular faith), the child’s health (eg should she have elective surgery to have her tonsils removed or not), and the child’s name.
If a parenting order is made conferring parental responsibility in respect of a child equally on that child’s parents, there are a number of relevant consequences. Firstly, in so far as the further determination of a proper parenting Order is concerned, the Court must consider whether the child spending equal time with each of the parents is reasonably practicable and also whether such an arrangement would be in the best interests of the child. Whether it is “reasonably practicable” is to be determined by reference to matters set out in s 65DAA(5) of the Act and whether it would be in the best interests of the child is to be determined by reference to the matters I have already referred to. If, after those considerations, an order for the child to spend equal time with each of the parents is not made, the same two pronged consideration must be given to arrangements that provide for the child to spend substantial and significant time with each of the parents. The term “substantial and significant time” is also explained in s 65DAA(3).
Another consequence of a conferral, by parenting Order, of equal shared parental responsibility is the mandatory requirement, imposed by s 65DAC of the Act, when a decision about a major long-term issue in relation to the child is to be made, for each of the parents to consult the other in relation to the decision and to make a genuine effort to come to a joint decision. The provision goes further though. The decision is actually required to be made jointly by the persons who share parental responsibility. The statutory provision does not provide an alternative or fall-back position. Accordingly, as I have said many times before, in my judgment, if the decision is not made jointly it cannot be made at all, thus requiring parties to go back to family dispute resolution processes and, if that fails, to the courts for a decision to be made. This is indeed, in my view, extremely relevant to consider when determining whether the conferral of parental responsibility on two persons is in the relevant child’s best interests.

Parental Responsibility in this Case

In 2010, Bell J conferred sole parental responsibility on the mother in this case. I have not read his Honour’s reasons for that, but expect it was because of his satisfaction that the high level of conflict and mistrust between the parents is such that it would not be in the child’s best interests to put in place a parental responsibility order that obligates consultation, genuine effort to reach agreement and actual agreement before decisions about major long-term issues relating to the child can be made.
Having read and considered the affidavit evidence, and observed and heard the parents in Court now many times, I am confident that mandating such communication between them about the child is not in his best interests. I would not expect any communication between them about important decisions in the child’s life to be conducted civilly and respectfully or to result in any agreed and mutually acceptable outcome. I am quite satisfied that each parent is capable of making such decisions solely and unilaterally in such a way that would put the child’s wellbeing, at least as viewed from the perspective of each parent individually, first. However, I am just as satisfied that they simply cannot do that together in a co-operative manner.
Whichever parent the child lives with principally should have sole parental responsibility, subject to an obligation to inform the other parent in writing of decisions made about major long-term issues in the child’s life.

Evidence going to the decision with which parent the child should live

I was assisted by the recent reports of Mr G, family consultant and Dr R, psychiatrist.
The father has always maintained a belief that the mother suffered from some form of mental illness that negatively impacted upon her capacities to facilitate and encourage the child’s relationship with him. In this context, Dr R’s expert opinions were of importance.
On provisional diagnosis, Dr R could not find any evidence of any major mental illness in the mother. He described her self-described mood symptoms as presenting as an Adjustment Disorder rather than evidence of a major mental illness. He observed, with respect to her personality, that she appears to have an anxious temperament and some obsessive compulsive personality traits which he said might well have contributed to her anxieties about the child in the father’s care, particularly when the child was young.
Again provisionally, Dr R found no evidence of psychosis in the father but did note that the father also reported some mood and anxiety symptoms that he had been suffering in the context of “significant psychosocial stressors”. The doctor reported also that the father admitted to being “somewhat obsessional about the Court process” and also that he is concerned the mother has Obsessive Compulsive Disorder which he believes will negatively impact on their son.
Doctor R said he then read all of the “extensive and complex” documentation that was provided to him before providing his concluding opinions. He began presenting those opinions by pointing out that both parents appear to have formed and maintained a view that was almost entirely negative of the parenting skills of the other parent, yet the child was reported to be happy and well-adjusted and having a loving relationship with both parents.
He said that nothing in the material he read caused him to change his provisional view that the mother does not appear to suffer from a psychotic illness, but he did note that she had previously had symptoms consistent with a major depressive disorder. He was quick to add that she did not present to him with such symptoms or signs of such illness. He accepted that she has had long term issues with anxiety and has continued to engage with her own treating psychiatrist for treatment for this. He opined that her anxiety is part of her temperament and does not just emerge from the co-parenting relationship with the father.
The doctor expressed the view that the mother “exhibits significant obsessional traits to her personality which has perhaps heightened her distress about the welfare of the child in the care of the father”. He also suggested there appears to be some overprotectiveness of the child generally on her part.
Similarly, with respect to the father, the doctor said there was nothing he read that would change his view that the father does not appear to suffer from a psychotic illness. Again, he acknowledged the father had suffered some depressive/anxiety symptoms in recent times and that he was presenting with ongoing anxiety symptoms and “neurovegative disturbance”. However, he opined that whilst the father may meet the criteria for an anxiety disorder with possible panic features he does not meet the criteria for a major depressive disorder.
Personality wise, the doctor said the father also presented with features of obsessional traits, but he did not consider that he meets the criteria for a personality disorder. Nevertheless, he still said he suspected the father’s personality vulnerabilities remained significant. He considered the father appears to be “overly rule bound and to some degree entitled in his attitude”.
Doctor R went on, finally, to make a number of recommendations after commenting that he thought the likelihood of any improvement in the co-parenting relationship in the future “would be minimal”. He recommended:
(a)The mother should continue to avail herself of treatment with a psychiatrist and/or suitably qualified mental health practitioner;
(b)The father should seek a referral to a suitably qualified mental health practitioner to assist him in managing the complexities of a co-parenting relationship with the mother as well as addressing his own obsessional needs and how these have been expressed within the Court process as well as maintaining the conflict with the mother;
(c)That both parents continue to monitor their mental health and follow the advice of their treating doctors in respect of pharmacological treatments;
(d)That the father must demonstrate that he is protecting the child from his own negative views about the mother and that he is not exposing the child to conflict between him and the mother.
I have no reason not to accept the opinions expressed by Dr R as being correct. Indeed, from my own observations of the parents, some of those opinions are easily contextualised and understood.
Importantly, Mr G’s report included reporting of views expressed to him by the child. When asked if he would like to change anything about the current parenting arrangements, the child is reported to have said:
Yes, I’d still like to live with my mum but see my dad more often. Maybe I can see him every, like in the holidays more.
The boy particularly referred to the fact that he likes seeing his sister when asked why he wants to live with his mother. He apparently said that it would not be fair if she did not have a brother living with her. He is also reported to have said that he and his mother have stayed with the mother’s new partner, Mr S, at his place at Q Town some four or five times. Mr G said that the child spoke positively of Mr S. He is also reported to have spoken positively of a potential move to Q Town, but Mr G thought this reflected discussion of the subject with his mother. Mr G also suggested the boy was not old enough to have the level of “cognitive sophistication” necessary to properly consider the full implications of the change. Indeed, the boy was also reported to have told Mr G that he would like to stay at the school he currently attends in the southern suburbs of Brisbane. He is also reported to have said that he would be sad if he went to live with his father on Region J because he would miss his mother and sister, as well as “the animals” and his friends.
Mr G reported observing positive and appropriate interactions between the child and each of his parents, characterised by “a nice balance of warmth, fun and structure” but with the boy being “somewhat more contained” with his mother and “somewhat more animated” with his father. Mr G opined that the boy’s behaviour with each parent suggested that he had formed a secure attachment with both of his parents. He was also observed to be calm, relaxed and familiar with each of his parents’ current partners.
Tellingly, when asked if there is anything he would like to change about each of his parents, the child is reported to have said:
I’d want to change something about both my parents. I’d like them to stop arguing and fighting and I want them to stop saying bad things about each other and for this argument to stop because I don’t like it.
In his evaluation of the matter, Mr G offered the following remarks:
There is, generally speaking, a normative period of adjustment for parents after separation. Based on my experiences with separated parents, at least in the context of my role with the court, I have formed the view that those parents who, after multiple interventions by the court and various other services, continue to again and again rely on litigation to try and solve and correct their co-parenting problems (or more accurately, their interpersonal problems) cannot be ‘fixed’ by parenting orders. In my opinion, this is because this group of individuals have characterological vulnerabilities that prohibit them from reasoning or self-reflection. I believe [Mr Partos] and [Ms Merritt] are two such people. Like all individual problems rooted in the person’s personality structure, change is extremely difficult.
Much has been written about these two parents and their co-parenting difficulties in previous assessment reports and court judgments. Despite this, neither individual appears to have truly reflected on what has been said about them. True insight, which is the ability to understand the cause and meaning of a situation with the internal motivation and emotional impetus to master the situation, is a skill neither parent possesses. For all the reasons I have mentioned, I now, some seven years after I conducted my first assessment in this matter, believe it is unrealistic to think these parents can form an effective co-parenting relationship for the long-term which will be of benefit to the child. In my view, these characterological qualities also indicate that regardless of what intervention is put in place by way of parenting orders, these two people will revert to their habitual, dysfunctional ways. They have reached a point where they assume the very worst of each other.
I have no reason not to accept those opinions as accurate. They accord with views I have independently formed through my own observations of the mother and the father on several occasions over a number of years in this Court. As Mr G says, it is against this backdrop that this Court is being asked to consider what parenting arrangement is now in the child’s best interests.
One opinion Mr G goes on to offer to assist the Court is the opinion that the child would adjust to changing schools, establishing new peer relations, and moving to a new location to live. Mr G says the boy has good self-esteem, good coping skills, an at least average intelligence, a love for sports (particularly football) and good social skills. He said that the changes would not be easy for the child, but he thought he would cope. That is a positive, as each parent’s preferred proposal would see change in the child’s life. Indeed, the mother, who says if she is not permitted to relocate the child with her to Q Town she would stay in Brisbane and seek to have the child remain in her care, makes the case that her financial circumstances have reached a point where she can no longer afford to continue living in the same house because of the size of the mortgage debt she must continue to service and that, similarly, she can no longer afford to keep the child at the private school he attends. She says she will very soon have to sell her property and move to another home and change the boy’s school, sending him to a State school, regardless of the outcome of these proceedings.

Accepting that as correct, as I do, it is clear that change will be presenting itself to the child no matter what. The process of determining the proper parenting Order to make therefore, in my judgment, becomes one of considering, having regard to all the matters listed in s 60CC of the Act, which changes to be effected in the child’s life by his parents are in his best interests.
Dr R, at the end of his report, ventured the helpful view that considerations as to “the degree to which the parties can modify their behaviour” and as to their respective capacities “to facilitate a positive relationship with the other parent” should be the basis of any “best interests” determination in this case.
Of course, the father asserts that the mother has demonstrated that she cannot be considered adequate at facilitating a positive relationship between the child and the father. He asserts history, including some findings of contravention without reasonable excuse over the years, proves this. He presses the argument that he is “untested” as the parent with whom the child principally lives and that he should be given an opportunity to prove that he would be better at facilitating the boy’s relationship with his mother than the mother has been at facilitating the boy’s relationship with him.
As to this, Mr G expressed the opinion that both parents have been “as bad as each other” over a long period of time when it comes to not doing or saying things that are intended to in some way or another undermine the other person’s relationship with the child. However, significantly in my view, Mr G also offered the opinion that the child’s comments to him indicate “very clearly he has a close and loving relationship with his father”. At the same time, Mr G repeated that the child had expressed a wish to continue seeing his father.
As counsel for the ICL submitted, correctly, in my respectful opinion, had the mother been set on a course of “alienating” the child from the father and not positively promoting a relationship with him, these observations support a finding, at least, that such a course has clearly not worked. Indeed, I consider they could very well even support a finding that she has not actually embarked on such a course and has, despite experiencing difficulty in doing so, emotionally and practically allowed the relationship to continue, to be maintained and to develop.
Further, and critically in my view, towards the end of his report, Mr G expressed the opinion that it was not in the child’s best interests to live with his father. Indeed, he considered the father’s stated reasons for wanting the child to live with him were “rather self-serving” and that many of the father’s decisions are made, “first and foremost”, with the father’s own needs in mind. He considered that these characteristics, together with the father’s own past behaviour, indicates the father is “unlikely to facilitate and encourage a relationship with the mother” if the child lived with him.
With respect to the father, I am minded to accept those opinions as correct, having regard to what I have seen and heard of all the evidence in this matter.
Indeed, the father seemingly bases his case for the child to live with him on what he asserts are notions of “fairness” (ie the child has lived with his mother for half his childhood and now should live with his father for the other half) and the asserted “customary social norm in any society” that boys moving into “manhood” transition from spending the “greater part of [their] time with [their mothers] to … living with [their fathers]”.
With respect to the father, as I pointed out to him during the trial, parenting Orders are not decided on notions of “fairness” represented by acceptance of a need for children to spend equal time in their childhood with each of their parents. Furthermore, I know of no “customary social norm” requiring adolescent boys necessarily to transition from their mother’s care to their father’s care. Parenting Orders are decided by Courts weighing all of the evidence, having regard to the best interests of the child being the paramount concern.
The father offers the child life with him in a small home on the northern end of Region J. Although the boy spent years early in his life commuting and staying with his father for weekends and holidays on Region J, the father only took up residence in his current rental home around the beginning of April this year. He has been in a relationship with Ms T since the beginning of last year. Although Ms T still lives and works in Brisbane, along with the father she pays half the rent on Region J home and stays there most weekends. She has found employment on Region J and will be moving up to live there permanently in the near future.
The father’s employment and financial circumstances are not easily understood. He seemed a little embarrassed or, at least, reluctant to discuss his work situation. His evidence was that whilst living in Brisbane over the last couple of years, he principally cared for his parents prior to their deaths and managed his father’s investments both prior to and after his father’s death, whilst living rent-free in his father’s property. He earned passive income by renting out a small apartment he owns on Region J and, in total for the financial year ended 30 June 2015, he believes he earned about $20,000 in gross income.
He told the Court that he finds work from time to time contracting various services. Without providing any detail or corroborative evidence of any sort, he expressed confidence to the Court that he will be receiving significant bequests from the estates of both of his late parents in due course. However, he also told the Court that both of those estates are currently subject to Succession Act 1981 (Qld) claims for adequate provision by persons who allege they were the de facto spouses of his deceased parents at the time of their deaths. One of those, he said had been settled recently and one of them was being defended by the executors of the estate. He also told the Court that he and his two sisters had experienced disagreement in the administration of the estates. Without more, he said that the estates were worth millions of dollars. He was quite apparently telling the Court that he considered his financial future to be secure. Indeed, he told the Court that he intended to commence property development on Region J once he received his entitlements in the estates of his late parents, whatever those entitlements might be.
The evidence further established that the father values his interest in Region J unit property at just under $200,000 but that he has a liability secured by mortgage over that property of in excess of $100,000 and that he continues to draw against his equity in that property to fund his lifestyle and meet his expenditure needs, including the payment of $70 per week child support paid to the mother.
As I told the father, when he gave that oral evidence at the trial, the Court was not left in a position after hearing that evidence of being able to make a finding that the father had the financial security that he was asserting he had. Indeed, his evidence included his own expressed concern about the financial impost of having to drive each second weekend in order to facilitate his son’s time with him and confirmation that he has actually been “living off his savings” which was really the equity in his property.
Additionally, there was no evidence adduced by him about the school he intended to send the child to if he lived with him on Region J, but he said it would be a State school. He concentrated his evidence around the good things he would do with his son if he lived with him, such as going camping and fishing together. He did also confirm that he would ensure the child played football if he was living with him on Region J and that it would be in a good, local competition.
The evidence and the position advanced by the father makes it quite clear that the father dearly loves his son and is devoted to maintaining a relationship with him. Indeed, he clearly wants to be an even more influential parenting figure in his son’s life. Those are things that a parent should be given credit for and encouraged.
However, I remained unpersuaded by the evidence that it would be in the child’s best interests to stop living with his mother and sister and to move to live with his father.
The mother proposes moving with the child and his sister to live with her partner in Q Town during the forthcoming Queensland school holidays. She proposes taking the child from the private school he has been attending and enrolling him in a State (or Public school, as they are called in New South Wales) in K Town, the nearest major centre to Q Town. She said she has made some enquiries of that school and is satisfied that it would be suitable for the child. She said she is particularly satisfied that the school and the area offers the child suitable opportunities to continue his involvement in football.
The mother’s new partner is involved somehow as a paid “activist” for a global environmental organisation. He is north American by origin but has lived in Australia for a long time. He is an educated man, having legal qualifications obtained in the USA. He gave oral evidence and I quickly gained the impression that he was a thoughtful, caring individual who has quickly grown fond of the mother and her children and who believes that he can be a good influence in their lives and they in his. He has some assets behind him, owning a number of real properties in the Q Town area.
Both the mother and her partner gave evidence of an intention to buy a property in the Q Town area that is suitable for them and the two children to live in and that could accommodate the many animals the mother has (2 horses, 3 dogs, a couple of cats, a goat and about 80 chickens) and wants to take with her. The mother said she expects to have about $200,000 to contribute on the sale of the Queensland home she currently owns.
The mother currently works in administration. She said she works about 18 hours per week and the employment is secure. She said she could probably still continue to work from Q Town, but is more interested in finding some employment down in that area as well as developing her own business and she is interested in marketing through the internet. The mother’s partner expressed his willingness to contribute to the cost of purchasing a property for them to live in and to support the mother financially. However, in his oral evidence at the trial, thoughtfully in my view, he even expressed a willingness to consider moving to live with the mother and the children if the mother stayed in Queensland as a result of not being permitted to move the child to northern NSW, though he pointed out that the mother and children are going to have to move anyway because of the mother’s obligation to sell her property to discharge the mortgage and that it would, therefore, be “best to go somewhere one of us knows”.
I am quite satisfied that the child should, in his best interests, continue to live principally in the day to day care of his mother, alongside his little sister. That accords with his own views and, in my judgment, best meets his emotional and practical needs, even as he moves into young male adolescence. I am not satisfied that his mother’s attitude to the child’s relationship with his father is such that moving him to the principal care of his father is justified and nor am I satisfied that the father would somehow better promote the role of his mother in his life if the child was living with him.
Accordingly, what remains to be determined is whether the mother is permitted to relocate the child to live with her in Q Town or not and, whichever of those outcomes is determined, just what time the child continues to spend with his father into the future.
As I have already said, I accept the mother’s evidence that she will not move to Q Town if she is not permitted to take the child there to live with her. I also accept her evidence that, in any event, she will be selling the property that she and the child have been living in in the south of Brisbane and taking the child out of the private school he has been attending for all of his school life until now. These are decisions that I accept are being forced upon her by her rather meagre financial circumstances. She cannot afford to keep paying her mortgage and she cannot afford to keep paying, solely, the school fees at the private school the child attends.
Having regard to these impending changes in the lives of the mother, the child and his sister, the mother’s desire to move to live with her partner who already has a life established around Q Town, and my satisfaction that the move would have quite a positive effect on the emotional wellbeing of the mother, I conclude that permitting the child to move with his mother to Q Town would be in his best interests.
I am conscious, in considering this aspect of the determination, that not permitting the mother to move the child to Q Town would at least permit alternate weekend visits to Region J for him to spend time with his father to continue as they did when the child was younger before his father moved to Brisbane and as they have done since his father moved back to Region J earlier this year. This must now be considered though in the context of the child’s father being most insistent, over the course of time since he returned to Region J, that there not be any Orders that require him to bring the child back to Brisbane for extra-curricular activities, including, in particular, weekend football games during the football season. Having regard to the significant travel involved and the father’s clear concerns about the cost of that, I understand the position he adopts, but do note that it is not a particularly child focused one.
I am satisfied on the evidence in this matter, including the clear acknowledgment of both of his parents, that the child is a very talented and committed football player who wants to continue to develop his skills and to play football as he grows. I am satisfied that he very much enjoys being a part of a team and is quite conscious of what he clearly perceives to be obligations to his team mates that being a part of a team gives rise to. I do not consider that the child would be happy to miss every second weekend’s football game during the football season. I also consider that at this stage of his development, missing every second game would seriously impede his prospects of being accepted as an integral part of a team. I do not consider that the child would like that or choose it himself if he was given the choice.
I am also satisfied that involvement in football is one part of the child’s life where he can get considerable respite from the conflict between his parents, provided, of course, that they are both not at the football ground at which he is playing at the same time. I consider it in his best interests for it to continue, as unaffected by his parenting circumstances as it can be.
In my judgment, that is best achieved by making parenting Orders that permit the child to attend all of his football games without requiring his father to drive him to and from Region J for them. Accordingly, being so satisfied, I consider there is no ‘best interests’ reason for not permitting the mother to move with the child to Q Town and the parenting Order I make will permit that.
As the child suggested himself to Mr G, provision of more time with the father in school holidays is, in my view appropriate and in his best interests in such circumstances. As I observed, the father particularly pointed out the good times he has with the child camping and fishing. In my view, at least, these are great holiday activities. Additionally, as he is not hamstrung by only having four weeks of annual leave each year, I would expect that he will be available to maximise the time he spends with the child during school holiday visits to Region J and that this will make that time they spend together very enjoyable. The parenting Order I will make will allow the child to spend the majority of his school holidays with his father, but will allow what I consider is not an unreasonable amount of school holiday time to still be spent in his mother’s care.
The father told the Court that he will not move to northern NSW or back to Brisbane, even if the mother is permitted to move with the child to Q Town. The distance between Region J and Q Town and my determination that the child should not miss his extra-curricular, weekend activities causes me to be satisfied that mid-term weekend visits to Region J should be avoided as not being in the child’s best interests. However, I consider that provision in the parenting Order for the child to spend some mid-term weekend time with his father conditioned on the father staying for those weekends in northern NSW and ensuring that the child does not miss football or other scheduled extra-curricular activities is appropriate. These visits should also be conditioned on the father collecting the child from his school after school finishes on the Friday afternoon and returning him to school at the commencement of school on the following Monday morning, unless otherwise agreed in writing in advance between the parents. I will provide for same.
Because I am quite satisfied that it is not in the child’s best interests for his parents to both be at his extra-curricular activities, including football games, at the same time, the parenting Order I make will restrict that. It will also restrict the father’s attendance at the school that the child attends once he moves to Q Town. The evidence I have read and heard persuades me that the father’s unrestricted attendance at the child’s school has proven problematic in the past, for the child, for the mother and for the school. I will, accordingly, restrict the father’s attendance at the child’s school to appointments with the Principal of the school and/or with the child’s class teacher, outside of the child’s class environment, made in advance, with the approval of the school’s administration. I will authorise the mother to provide a copy of the parenting Order to the administration of the school so the school’s administration is aware of the restrictions.
I will make provision for the child to communicate during school term with the father by video call such as Skype or Facetime, or by telephone if such facility is temporary unavailable. I will fix such communication at two times per week, namely, Wednesdays and Sundays, in addition to special days. The Order will also make provision for the child to communicate with his mother in the same manner and on the same terms when he is spending school holidays with his father.
I do not consider it in the child’s best interests for him to have to deal with handovers from mother to father and father to mother where they come face to face with each other. I will provide for handovers to take place, where possible, at the child’s school and otherwise at The contact centre, I Town, or as a fall-back (if The contact centre is not open at the scheduled time), Relationships Australia’s H Town children’s contact service, and (if that service is not open at the scheduled time), as a last resort, McDonalds Restaurant in I Town.
Finally, although opposed by the ICL, I am prepared to make a parenting Order that provides for the father to be able to take the child on a visit to New Zealand during the time that the child spends with him in school holidays. I am satisfied that it is appropriate for the child to travel there for a holiday with his father and his father’s partner, who is a New Zealander. I am not persuaded that the father is a flight risk in so far as travel to New Zealand is concerned and, in any event, New Zealand is a signatory to the International Convention on the Civil Aspects of Child Abduction. He proposes specific plans and I consider them reasonable.

However, I am not minded, at this point in time, to allow completely unrestricted international travel. Given the high level of mistrust between the parents, I do not consider that the child’s best interests demand a complete lifting of restraint against international travel. If the father wishes to take the child to visit any other country other than New Zealand, he will need to obtain the mother’s written permission to do so or a further Order of this Court.
I will not restrain the mother from taking the child to counselling with the psychiatrist, Dr F. I am satisfied, particularly by Mr G’s evidence, that the child benefits from the counselling relationship he has with Dr F in the circumstances of the highly conflictual parenting dynamics and that allowing it to continue is in his interests. The father’s submissions do not persuade me otherwise. Indeed, as the ICL seeks a particular Order that the mother continue to take the child to see Dr F as determined appropriate, I will make such an Order. I consider that an Order in the child’s best interests given the benefit I am satisfied he continues to get from that counselling.
Finally, I will not discharge paragraph 3 of Bell J’s Order of 18 March 2011. Accordingly, neither parent may institute any further proceedings in the Court without first obtaining the leave of the Court or a Judge. I do not consider it in the child’s best interests to free the parents from the need to persuade a Judge that further proceedings are necessary if either of them wishes to commence any in the future.
I make a parenting Order as set out at the commencement of these reasons.

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 11 September 2015.

Associate:

Date: 11 September 2015

[2015] FamCA 756

11 September 2015

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