Moffat and Halmos

[2014] FCCA 651

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOFFAT & HALMOS [2014] FCCA 651

Catchwords:
FAMILY LAW – Parenting – interim relocation – allegations of risk – mental ill health – lack of compliance with orders.

Legislation:

Family Law Act 1975, ss.4AB, 60B, 60B(1)(a) 60CA, 60CC(2), 60CC(2A), 60CC(3)

Morgan & Miles (2007) FLC 93-343

Applicant: MR MOFFAT

Respondent: MS HALMOS

File Number: MLC 105 of 2013

Judgment of: Judge Hughes

Hearing dates: 11, 12 and 13 February 2014

Date of Last Submission: 13 February 2014

Delivered at: Melbourne

Delivered on: 7 April 2014

REPRESENTATION

Counsel for the Applicant: Ms Goldthorpe

Solicitors for the Applicant: Joe Mamone Lawyer

Counsel for the Respondent: Mr Grant

Solicitors for the Respondent: MSA Law

Counsel for the Independent Children's Lawyer: Mr Tesoriero

Solicitors for the Independent Children's Lawyer: Danielle Webb Lawyer

ORDERS

THE COURT ORDERS THAT:

1. The mother is permitted to relocate the residence of the children X born (omitted) 1999 and Y born (omitted) 2002 to (omitted), Victoria pending the final determination of the competing parenting applications, but shall not do so before Saturday, 20 February 2014.

2. The independent children’s lawyer shall provide to Dr D in preparation for the pychiatric assessment of the father on 24 April 2014, a briefing letter outlining the relevent issues and enclosing any relevent Court documents.

   For the purpose of this order:

   (a)the independent children’s lawyer will consult with the solicitor for each parent but in the event of disagreement, the independent children’s lawyer will determine what material is provided to the psychiatrist; and

   (b)the independent children’s lawyer has leave to photocopy any material released to the parties and provide it to Dr D.

3. Until further order, the father is restrained from communicating or attempting to communicate with the children except as follows:

   (a)by sending the children letters, cards and photos no more than once per fortnight; and

   (b)by sending gifts on each of the children’s birthdays and at Easter and Christmas time.

4. The mother may inspect anything sent by the father to the children prior to giving it to them and may withhold any inappropriate material.

5. In the event the mother does withhold material she shall advise the solicitors for the father and the independent children’s lawyer that she has done so.

6. The mother shall encourage and facilitate any response by post sought to be made by the children or either of them.

7. The parents shall each keep the other advised of their residential address and of any change to it within 7 days of such change.

8. The mother shall advise the father of the name and contact details of the school in which the children are enrolled in (omitted) and shall ensure the father’s details are included on the enrolment forms.

9. The father may contact the children’s school to arrange to receive copies of the children’s school reports, school photos, newsletters and the like but shall not attend at the school or come within 100 metres of it unless otherwise permitted by a Court order or by agreement in writing between the parties.

10. The time in which an appeal from the decision may be lodged is extended to 28 days from the delivery of reasons for decision.

11. Attached to these orders is information which sets out the obligations these orders create, the consequences that may follow if a person contravenes the orders and information about services to assist with compliance.

AND THE COURT NOTES THAT:

A.The written reasons for decision will be given in due course.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 105 of 2013

MR MOFFAT

Applicant

And

MS HALMOS

Respondent

REASONS FOR JUDGMENT

1. These are parenting proceedings involving two children aged 12 and 14 years.

2. The proceedings were listed for final hearing on 11 February 2014 but on that day the applicant father applied for an adjournment on the basis that he had had a recent heart attack and three hospital admissions, had only recently been granted legal aid and had only instructed his solicitors late in the week prior to the hearing. He produced no medical evidence in support of his application.  He had not participated in the assessments for the last two family reports and had failed to comply with an order made six months earlier that he be psychiatrically assessed. His counsel said the father wanted the opportunity to obtain the psychiatric assessment to prepare further material and to participate in the hearing.

3. The respondent mother did not oppose an adjournment of the hearing provided her application for relocation could be heard on an interim basis that day. She had only filed a formal application to relocate the week prior to the hearing but the issue had been raised in correspondence between the parties in September 2013, had been raised in Court previously and was the subject of one of the family reports so the father was not taken by surprise by it.  The mother said her material was filed late because she was responding to the father’s material which was filed less than a week before hers.  There was some urgency because the mother had given notice to her current employer and had accepted an offer of employment due to start in (omitted) in early March 2014. Any adjourned hearing would not occur until well after that because the appointment for the father’s psychiatric assessment was not until April 2014. The mother had prepared for a final hearing that day. 

4. There was potential for significant prejudice to the father if the matter proceeded that day and to the mother if it did not.  In circumstances in which the children were not spending any time with their father; the mother was providing all of the practical and financial support for the children; the father had failed to comply with Court orders over a period of six months and had displayed an attitude in previous appearances which suggested he may never comply, I decided to hear the mother’s relocation application on an interim basis.

5. Both parties and the independent children’s lawyer were given the opportunity to explore relevant issues through cross-examination. Both parents gave evidence and were cross-examined. Neither called any other witnesses. Although the father was the applicant in the substantive proceedings, the mother was treated as the applicant for the purpose of the interim proceedings.

6. At the end of submissions I ordered that the mother be permitted to relocate with the children to (omitted) on an interim basis. I indicated I would provide reasons for decision in due course. These are those reasons.

Background

1. The parties commenced cohabitation in 1997 according to the mother and 1999 according to the father. They separated in March or April 2009. They have two children: X, born (omitted) 1999 who is aged 14; and Y, born (omitted) 2002 who is aged 12. The mother has an older child, Z, who is now an adult but continues to live with the mother.

2. At the time of separation, mutual intervention orders were made by consent without admission. The father was subsequently convicted of 10 breaches of the intervention order made for the protection of the mother. Following an appeal the number of convictions was reduced to seven.

3. On 11 May 2009, a month or two after separation, the parties signed a written parenting plan which provided for the parents to have equal shared parental responsibility and for the children to live week-about with each of them.

4. The mother said the equal time arrangement worked reasonably well until late 2012 when she says it became evident there was some strain in the relationship between the children and their father. Things came to a head on 25 November 2012 in an incident after which the mother stopped making the children available. I will return to that incident shortly.

5. The mother said the father worked for a short period after separation but as far as she is aware has mostly been unemployed since separation.

6. The mother said that as far as she knows, the father has had a heart condition for all of his life. She said he was told years ago that he needed to have a pacemaker but he refused to have one. She said he also refused to take medication which was prescribed for him.

7. The mother said that to the best of her knowledge, the father has not had permanent accommodation since he was evicted from his sister’s house in late 2012 or early 2013. The father said that occurred in March 2013 and the mother took no issue with that.

The incident on 25 November 2012

1. The children spent the weekend of 24 and 25 November with their father. In her affidavit filed on 5 March 2013, the mother said she first became aware there was a problem that weekend when she began to receive increasingly urgent text messages from Y from about 8.00 pm on 25 November.  She said Y told her in the text messages that X and her father were having a big fight and that the father said they can live with their mother and get her to pick them up.  The mother sent a reply text message asking if X was alright.  Y told her that X was not alright and that she was crying.  He then sent a message asking for help and asking her to come and pick them up which she did.

2. The mother said that she was told by the children that the argument between X and her father involved yelling and screaming and when X attempted to make some dinner, the father grabbed the saucepan from her and threw it against the wall. 

3. During his oral evidence, the father said that X was being disrespectful to him and he sent her to her room.  Without his permission she came out of her room and made herself a bowl of noodles.  He said she cooked them in the microwave oven and there was no saucepan involved.  He said he took the bowl of noodles from X and because it was hot, he dropped it.  When the bowl hit the ground, noodles were sprayed all over the floor and the wall. 

4. The mother said that the children had been showing increasing reluctance to spend time with their father and after the incident neither wished to see him.  They stopped spending time with him at that point. The father described this as an abduction of the children by the mother.

The mother’s proposed relocation

1. The mother is 43 years of age. She has been engaged in full-time employment for many years. At the time of the hearing she was the (occupation omitted) for a (employer omitted) in (omitted), Victoria.

2. The mother has been in a relationship with her partner, Mr W for more than three years. Approximately three years ago Mr W obtained a six-month contract position with the (employer omitted) in (omitted). Although it was intended to be only a temporary placement, the contract was extended and he has remained living in (omitted).

3. The mother has been offered and has accepted a job as a (occupation omitted) for an employment agency in (omitted). When asked how it came about that she happened to obtain a job in the same town in which her partner is living, she said there is a strong network of people working in the (omitted) industry across a broad geographical area of regional Victoria, which includes both (omitted) and (omitted). She said she is very good at her job, is well known in the network and believes she has potential to work at a higher level.  She said she was “head-hunted” by members of an organisation in (omitted) who presumably thought they had some prospect of getting her to work with them given her partner lives in (omitted). She said her current job is the highest position she could achieve in her industry in (omitted). The job she has been offered in (omitted) has a salary which is approximately $18,000 more than her current salary and would put her at an executive level. She said there is also potential for further career advancement in the new job as she has been told there is likely to be movement in the positions above her and that within 12 months she could expect to join the senior management team of the organisation.

4. At the time of the hearing the mother had already accepted the job offer in (omitted) and given notice to her current employer and to her landlord.  She had to start her new job on 1 March 2014. The last day in her current job was to be 26 February 2014 and someone had already been appointed to her current position. She was challenged that by taking those steps she had tried to force the Court’s hand about the relocation. She denied that. She said it was made clear to her that the organisation she wishes to join had a number of projects which need to be implemented and that the job offer was strictly time-limited. She said she was told that if she did not accept the offer, the organisation would have to look elsewhere. She said she knew she was taking a risk because the Court may not permit her to relocate with the children but she also knew the offer gave her the chance to progress her career and enable her to better provide for the children. She said she was afraid that if she turned down the offer, she may not be given such an opportunity again.  I did not get any sense of the mother trying to present a fait accompli.  She impressed me as being fairly pragmatic.  She said that she had always worked and would be able to find work of some sort in the event she was unable to relocate with the children on an interim basis or in the event the job in (omitted) did not work out. However, she did say that finding another job in her industry would be easier in (omitted) than in (omitted) because (omitted) is a much bigger city and is growing more rapidly than (omitted).

5. The mother proposed that she and the children would live with her partner, Mr W, in (omitted) which would save rental expenses. Mr W has two children: 17-year-old A who is currently in year 12 at school; and 20-year-old B who is at university.  A lives with his mother in (omitted). He used to spend every second weekend and most of the school holidays with his father in (omitted) but with the level of work required in year 12, he is spending less time with his father.  At the time of the hearing, B was living with his father temporarily but not expected to continue to do so throughout 2014. Mr W did not provide an affidavit, nor did he attend any of the family report assessments. The mother said this was because nobody asked him to do those things.

6. The mother said the children know Mr W as a result of her being in a relationship with him for more than three years. She said she introduced the children to Mr W about six months after the relationship began and that both families have holidayed together extensively, including for several weeks at a time.  She said the children are very comfortable with him and his children and there is no evidence which suggests otherwise.

7. The mother proposed that if she is permitted to move with the children to (omitted), Y spend time with his father every fourth weekend and during the school holidays. She said she would be content for him to spend the whole of the school holidays with his father if that’s what he wanted. She would also be content for Y to spend extra time with his father if the father came to (omitted). However, she said that any time would have to be subject to the father being physically and mentally well enough to provide a safe environment for Y.

8. The mother said that she believes X needs individual counselling support before attempting to re-establish a relationship with her father. She said she put X’s name on the Anglicare waiting list in (omitted) last year but there is a shortage of resources for counselling for children in the area and a counsellor had not yet been allocated.

9. The mother was asked by counsel for the independent children’s lawyer how she would feel about the father also relocating to (omitted). She said that would be a good option provided the father was well and the children could safely spend time with him.

The father’s circumstances

1. The father lives in (omitted), New South Wales. He is 51 years of age. He has had limited paid employment since the parties separated in 2009. He said that since about 2010, he has been enrolled in an (course omitted), through the distance education facility of the (omitted) School. He said he has completed 16 to 18 of the 24 modules required to complete the (course omitted). However, he has suspended his studies until the court proceedings are finished. He said he has a particular interest in (omitted). He said this is the area in which he already does some voluntary work and would like to work on a permanent basis once fully qualified.

2. The father said that he provides (duties omitted) referred to him by various people including members of the organisations called “(omitted)”. He was asked what qualifications he had (omitted qualifications). He said “Under the legislation in this country, if you hang a shingle out and gain money from it, that’s all you need to be called a (occupation omitted)”[1]. He said, however, that he never charges anyone money and he never tells anyone he is a qualified (occupation omitted). He said he refers any difficult matters to qualified professionals.

   [1] Transcript 12 February 2014 at page 13

3. The father also operates a part-time (omitted) business called “(omitted)” but said because of ill health, he has not been operating the business but will resume doing so once the legal proceedings are finished. He said he receives unemployment benefits of about $610 per fortnight. He said he can earn up to $200 per fortnight from other sources without it affecting his Centrelink payment and that, when the children are in his care, he receives an extra $170 per fortnight in Family Tax Benefit payments. He agreed that until November 2012 the mother paid him child support. He said it was about $39 per fortnight.  The father received no child support from the mother after November 2012 and in the last month or two prior to the hearing, he had been paying child support to her in the order of $20 to $22 per month.  The father suggested that, even though there was an agreement for the children to live week-about with each parent, he had the children more than that and was their primary caregiver. On the basis of all the evidence I have heard, I do not accept that. 

4. After separation, the father lived in a house owned by his sister in (omitted). He and his sister had a falling out. The mother asserted it was the result of the father failing to pay rent. The father said it was a result of a disputed water bill but conceded he was also in arrears of rent of 20 days but he said that came about as a result of the mother ceasing to pay child support to him. Later he said there had been an illegal increase in the rent and in any event, once he was no longer seeing the children, his sister no longer wanted to rent her house to him.  He was ultimately evicted from the premises following a tribunal hearing of some sort. Since then the father has lived in a cabin in a caravan park. The cabin is fully self-contained. The father said he has negotiated a rental arrangement with the manager of the caravan park pursuant to which he pays $250 per week in rent. Over the 2013/14 summer school holidays the cabin was not available to him and the father camped along the (omitted) for 40 days. He has since returned to the cabin.

5. The father was asked what capacity he had to assist in the transport of the children if they relocated to (omitted) and whether he would do so. He replied three times “I will not”[2]. He then volunteered “I’m not the one relocating and destroying the children’s lives. I’m not that one. That’s if this court grants my children’s lives to be destructed (sic) and destroyed in such a manner against their will then, you know, so be it.” He made some dramatic statements about preferring to be dead than only seeing his children on a limited basis.  He said that if the Court ordered that he only have every second weekend with the children it would be “despicable and disgraceful” and he does not know how he would react and what he would do.  He said “I would probably say that would be the end of it”[3] He also suggested that, if he was not seeing the children, he might pursue a career in the (country omitted) or (country omitted) or (omitted).[4]

   [2] Transcript 12 February 2014 at pages 4 to 5

   [3] Transcript 13 February 2014 at page 63

   [4] Transcript 12 February 2014 at page 6

1. The father repeatedly expressed vehement opposition to any structure which would reduce him to what he called a “Macca’s dad”. When asked to explain what a Macca’s dad is, he said as follows:

   The report writer used the terminology Disneyland dad, which is an American term. The Australian term of Macca’s dad’s – Macca’s dad’s [are] reduced – either parent, male or female – to a 740 hours per year on average face time with the child. This is reduced within the first six months, due to children having external activities, friends’ birthdays, soccer games, football games, whatever their extra-curricular activities are. It reduces and the child develops a life and place in the primary carer’s residence and their life. And the Macca’s dad is slowly reduced to picking the children up at Macca’s – which really should be an illegal act. The father usually reduces himself to picking them up at Macca’s, taking them to the movies, go home, drop them off the next day at Macca’s and that becomes a Macca’s dad…[5]

   [5] Transcript 12 February 2014 at page 12

2. The father was asked why he would not consider moving to (omitted) given the following facts:

   a)he had no fixed place of residence;

   b)he could continue studying by distance education from anywhere;

   c)he could do his (omitted) work virtually anywhere; and

   d)he could pursue counselling with X in (omitted).

3. The father said “Well, the kids and I both live in (omitted), and we don’t want to leave (omitted)”. He said they have roots in (omitted) comprising the three of them as a family unit and a broad friendship base. He said if he moved to (omitted) he would face further false allegations by the mother and the conflict would just move from one location to another.

4. The father said he wanted to immediately return to the equal time arrangement for Y. He said he has appropriate accommodation in the caravan park and will be able to obtain alternative accommodation in the near future.

5. The father said he wanted X to attend upon a counsellor in the (omitted) area. He said he had previously arranged counselling at her school when he was concerned about her attitude and her weight. He was asked what the attitude issues were.  He said they were typical teenage issues, teenage rebellion and “pushing the boundaries”[6] He said he imagined the counselling process would begin with X alone but that he would also eventually become involved.  He said that, if the mother relocates to (omitted), X could stay with her aunt in (omitted) but if X relocates to (omitted), a reconciliation of his relationship with her through counselling would not be possible.

   [6] Transcript 13 February 2014 at pages 40 and 41

6. The father said that he would not participate in any professionally supervised time with his children but would consider time supervised by a relative or friend.[7]

   [7] Ibid at page 55

Court proceedings

1. The father commenced proceedings on 7 January 2013 in the Local Court at Echuca and they were transferred to this Court.  The father sought a reinstatement of the week-about arrangements for the children and in the event of non-compliance by the mother, that a recovery order be issued. 

2. The proceedings came before this Court for the first time on 12 March 2013. On that day the parties and the children were ordered to attend reportable family dispute resolution pursuant to s.11F of the Family Law Act 1975. That occurred on 22 May 2013.

Reportable dispute resolution 22 May 2013

1. At the time of the family dispute resolution conference, the children had not spent any regular time with their father since the incident on 25 November 2012. X had not seen her father at all. Y had seen him on three occasions for a limited time over the month prior to the conference.

2. The family consultant, Ms W, identified the major issue as being conflict between the parents to which the children are exposed. X told Ms W that she would like to see her father but did not want to resume the week-about arrangement. She said she would be prepared to see her father on weekends if the Court ordered that but said she would like him to do something about his anger.  She said she did not know why her father was always angry.

3. Ms W reported that the father told her he would prefer to not see his daughter at all rather than see her only on alternate weekends because he did not want to be a “Disneyland dad”. I accept the father’s evidence that he would have used the term “Macca’s dad”.

4. Y told the family consultant that he was keen to resume the week-about arrangement but said he would also like his parents to stop fighting.

5. The family consultant recommended that, provided the father has suitable accommodation, X see her father every second weekend from Saturday morning until Sunday afternoon and Y return to the week-about arrangement. She also recommended the parents undertake a post-separation parenting program and that the father attend a “Tuning into Teens” program and personal counselling to deal with his frustration and anger issues.

6. Orders were made on 6 June 2013 which provided for the parents to attend a post separation parenting course; for the father to undertake the “Tuning into Teens” program and to undertake personal counselling; and for the children to spend time as recommended by the family consultant provided the father continued to live at his current address. If the father vacated his current accommodation, X was to spend time with him every second Saturday and Y was to spend every second weekend from Friday afternoon to Sunday afternoon until such time as the father secured other appropriate accommodation.

7. The mother completed her post-separation parenting course in August 2013. The father did not do any of the courses recommended by the family consultant and ordered by the Court.

The first family report 14 July 2013

1. A family report was prepared by Ms S, psychologist, on 14 July 2013. Ms S met with each parent and each of the children on 12 July 2013 and carried out informal observations of the interactions of all of the family members.

2. Ms S said that the involvement of the father was problematic throughout the assessment. She said as follows:

   Mr Moffat…adopted a demeanour of hostility and antagonism from the outset. Mr Moffat was adamant the process was little more than “one more male bashing set up”. His argumentative nature made it difficult to engage in with reciprocity.[8]

   [8] Family report 14 July 2013 at page 4

3. Ms S noted that the father had refused to see X because the orders provided for alternate weekends only. Y, however, had resumed the week-about living arrangements.

4. The father said he was not willing to attend the parenting courses or counselling ordered by the Court as he believed they were unnecessary, unreasonable and impractical.[9] He seemed to take offence at any suggestion he could benefit from counselling, saying “that is what I do”. 

   [9] Ibid at paragraph 6

5. Ms S said the mother was supportive of the children’s relationship with their father. She said she knew Y would miss his father if his time was reduced. However, she was concerned about the father’s mental health, his aggressive nature and his authoritarian style of parenting.  She was concerned about X not spending time with her father but was at a loss as to what to do in circumstances where the father refused to see her for less than a week at a time.

6. Ms S said the father was clearly a loving and concerned parent who was familiar with the children’s personalities and keen to remain involved in their upbringing. However, she said he was difficult to engage with because he wanted to control the focus and direction of the discussions. She described him as follows:

   Mr Moffat presented as an intense and defensive man who was intermittently attacking and dismissive at interview. He was respectful at times but showed significant disrespect as he offered streams of invective towards the presiding Judge, the adversarial processes and Ms Halmos (and towards McDonald’s family restaurant) on occasions during the interview. Mr Moffat enjoyed a healthy self image and considered himself to be more enlightened about family law matters than seemed apparent. Unfortunately Mr Moffat is self represented and did not impress as having a clear understanding of family law matters. Mr Moffat was unable to accept and consider views and opinions that differed from his own preferred outcomes and he appeared fixed and rigid in his thinking process.[10]

   [10] Family report 14 July 2013 at paragraph 17

7. Ms S said that the only acceptable outcome for the father was a return to the week-about arrangement for both children. If that was not acceptable to X, he said that would mean he would probably never see her again.[11]

   [11] Ibid at paragraph 23

8. In her interview with Ms S, X said she felt she had never got along very well with her father and felt closer to and more comfortable with her mother.  She said she did not like her father’s anger and his yelling, lies, his constant denigration of her mother and his strict control of her activities. She said her mother’s home was more relaxed.

9. Y told Ms S he enjoyed spending equal time with both parents but found the transition between the homes difficult. He said he knew his sister was scared of his father and that sometimes he felt scared too but, if his father is in “one of his moods”, he generally stays out of his way. He said the incident on 25 November occurred when his father “had a big break out and he got really angry.”[12] He said his father is mostly angry with his mother and because X no longer comes to his home.

   [12] Ibid at paragraph 35

10. Ms S said there was little prospect of the relationship between X and her father improving unless the father changed his punitive attitude which, in turn, was unlikely to happen without the support of counselling. She said X was of sufficient maturity to have significant weight placed on her views which were reasonable in the circumstances.

11. Ms S recommended the parties have equal shared parental responsibility for both children but that the mother have authority to make decisions about X in the absence of an agreement with the father. She recommended the week-about arrangement continue for Y as he identifies with his father and enjoys spending time with him.  She recommended that X spend time with her father in accordance with her wishes. She said a different arrangement for each of the children would not be detrimental to the sibling relationship. She recommended the father attend counselling with a view to modifying his parenting approach and, if the matter does not settle, that he undergo a full psychiatric assessment.

12. The matter came before the Court on 4 September 2013. The father failed to appear. By then the mother wanted to relocate to (omitted). A further family report was ordered to take account of the relocation issue and the matter was adjourned for final hearing on 17 October 2013.

The father’s health issues

1. The father said he had a heart attack on Father’s Day, 1 September 2013. He admitted himself to the (omitted) Hospital and was airlifted from there to the (omitted) Hospital in Melbourne where he had a defibrillator implanted. He was driven back to (omitted) by ambulance. During his recuperation period, he didn’t feel well. Again he admitted himself to (omitted) Hospital and was airlifted to the (omitted) Hospital where open-heart surgery was performed and, after some time, he was driven again by ambulance back to (omitted). He said the same thing happened a third time and his defibrillator was adjusted at the (omitted) Hospital. He said that he had been on a recovery program since January 2014 and said his heart is now in good health.

2. During the proceedings the father tendered documents from the (omitted) Hospital confirming he was an inpatient of the Hospital from 1 September 2013 until 12 September 2013 and from 10 October 2013 to 17 October 2013. There were no documents produced in relation to the third admission.

3. The father was not in hospital on 25 September 2013 when the interviews for the second family report were conducted, nor on 18 December 2013 when the interviews for her third report were conducted. In relation to the latter the father said he could not afford to travel to Melbourne. He said he did not contact the family consultant because he had no credit on his phone and no Internet service. He said his availability for appointments in Melbourne is limited in any event because the train arrives at 10.30 am and he has to leave by 1pm. However, on the second day of the hearing the father was asked where he had stayed the previous night. He said he stayed at the home of a relative in Melbourne. It was put to him that he had the capacity to stay in Melbourne, even at short notice. He replied “anywhere, anytime”.[13] It was put to him that he could have stayed in Melbourne when he was due to see a family consultant or a psychiatrist. He said the problem is he had to get to Melbourne first.

   [13] Transcript 12 February 2014 at page 6

The second family report 27 September 2013

1. The mother and children attended upon Ms S on 25 September 2013 but the father failed to attend. Ms S was told that the father had recently been hospitalised with a serious medical condition. He had been admitted to hospital from 1 to 12 September 2013. He said in his oral evidence that, after his release from hospital he was on a range of painkillers and other drugs and was not very well. During the hospitalisation Y remained with his mother but resumed the week-about arrangement a week prior to the assessment for the family report.

2. Ms S said the mother and the children told her about behaviour of the father which, if true, raised serious concerns about the father’s psychological functioning.  Four incidents, in particular, were reported to Ms S as follows:

   i)The mother told Ms S that X had refused to speak to her father until the day of his operation when with her mother’s encouragement she did so. During that conversation the father told X that it was her fault he was having a heart attack. X had refused to speak to him since.

   ii)The mother expressed concern that the father was also stalking X because he stood waiting for her to get off the bus in a position where she was bound to see him and had driven past several times when X was walking home.

   iii)During the weekend prior to the interviews with Ms S, Y was driven by his father to his mother’s home and delivered a message of demand that X come to the father’s home immediately as the Court had ordered. The mother said Y was extremely uncomfortable and stressed while doing so.

   iv)During the week prior to the interviews, the father removed Y from school and took him to (omitted) where they visited friends and family.  Y said the father shook hands with many people saying goodbye because he anticipated dying on 8 October.

3. Y confirmed these incidents with the family consultant. The mother said she was concerned that Y is under enormous pressure from his father. She said she believed Y was continuing to attend his father’s home only to appease him. She said she believed the father’s mental health was in rapid decline and, whether or not she relocates, Y should not be spending so much time with him.

4. Y told Ms S that he felt confused and embarrassed by his father’s behaviour but was worried that if he refused to do what his father said, he might become angry with him. Ms S recounted the child’s conversation with her as follows:

   While Y did not fear his father, he was uncomfortable living with him while his conduct was erratic and his mental health deteriorating. Y shared “I know he’s a bit mad and I can’t live with him… I know he’ll get a bit madder if I don’t live with him”. Y was concerned that if he did not return to live with Mr Moffat, his father would make life difficult. He worried about Mr Moffat attending Ms Halmos’ home and he was concerned Mr Moffat would attend his school “if he comes to school he’ll cause trouble”.[14]

   [14] Family report 26 September 2013 at paragraph 22

5. X was reported to be further estranged from her father than at the time of the first report. She told Ms S that she wanted to move to (omitted) with her mother and place some distance between her and her father. She was also worried about Y spending time with the father.

6. Ms S said there was a pressing need for a psychiatric or psychological assessment of the father but, given the father’s disregard of court orders, she believed that was unlikely to occur. She recommended the mother have sole parental responsibility and not make Y available to spend time with his father until the father’s mental health was assessed. She predicted an escalation in the conflict if Y was not made available but said there was an unacceptable risk to his physical and/or psychological well-being if he continued to spend time with his father without the father obtaining appropriate assistance. 

7. Ms S said she thought the mother’s proposal to relocate was well thought out and reasonable. She noted that the mother had always supported the children’s relationship with their father and maintained a good relationship with the extended paternal family. She said there was no reason to think the mother would impede any of those relationships.

Orders of 27 September 2013

1. Given the content of the family report, the proceedings were listed urgently for mention on 27 September 2013. The mother was represented by counsel.  The father appeared by telephone and protested about the short notice. He said he did not attend the family report interviews because he had been in hospital. During the proceedings that day the father behaved very badly; he was rude, antagonistic and dismissive of the Court. He called the mother’s counsel “a moron” and the Judge “a bitch”. It appears from the transcript that Judge Riley gave him considerable latitude on account of his apparent mental ill health.  The father expressed a lack of confidence in the psychologist who prepared the first two family reports. He sought that a family report be prepared by someone with experience in parental alienation as he asserted the mother was alienating the children from him.

2. The proceedings were adjourned for final hearing to 10 February 2014. An order was made for the appointment of an independent children’s lawyer and the father was ordered to undertake a psychiatric assessment.  The parties were ordered to attend upon Mr T for the preparation of a further family report to be available by 6 January 2014.  It was ordered that, until further order, both children live with their mother and all time with their father be suspended.

The third family report 22 May 2013

1. For reasons which are not apparent, Mr T did not prepare the third family report. It was instead prepared by Dr B who holds a Doctorate in forensic psychology.

2. The mother and children attended the interview with Dr B on 18 December 2013 but, yet again, the father failed to attend, notwithstanding he had been sent correspondence advising of the date and time for the appointment and had received a subsequent phone call to confirm those details.  Dr B conducted a telephone interview with the father on 18 December 2013 but said the report was compromised by the lack of adequate information from him. It was also not known whether or not he had completed a psychiatric assessment. The father told Dr B he was unable to meet with him because he was a student and could not afford the travel costs. He also told Dr B he was recording their telephone conversation.

3. Dr B described the mother as “sincere, well-reasoned, and child-focused”. He said she was aware of the need for the children to have a relationship with their father but presented as genuinely concerned about them, given their father’s behaviour.

4. Dr B said neither child expressed strong views about the relocation.

5. Dr B declined to make any recommendations given the lack of adequate information from the father. He did however express concern about the repeated interviews of the children and recommended that no further assessment occur.

Sunday 5 February 2014

1. On Sunday, 5 February 2014 the father’s grandmother had a 95^th birthday celebration. Both children attended. The father said Y did not leave his side and repeatedly expressed his desire not to move to (omitted). The father said he saw X and asked her for a cuddle but she was aloof to him, which he wasn’t surprised about because she was in the company of her aunt and cousin who, he said, are a negative influence on her. He said that, other than that occasion, he had only seen X twice since November 2012. The first occasion was at the office of the family report writer for the assessment for the first report. He also saw her on one occasion when he went and stood across the road from her at a bus stop because he had been told she had been admitted to hospital for malnutrition and he wanted to see with his own eyes how she was looking.[15]

   [15] Transcript 13 February 2014 at page 39

Facebook communications

1. Although the children had not been spending any time with their father since the orders of 27 September 2013, at the time of the hearing the father had been communicating regularly with Y via Facebook. The mother said the communications were very one-sided with Y often making excuses for not engaging with his father, such as saying he has to go somewhere or has to have dinner or do homework, each of which is sometimes true in any event. The mother described Y as being barraged with messages from his father, sometimes 10 to 20 messages in a row asking Y questions and sometimes the same question repeatedly. She said, for instance, that after their great grandmother’s birthday party on 5 February 2014, the father repeatedly questioned Y about X and her attitude to him. She said the father begins sending messages as early as 7 am until Y leaves for school and then continues in the evening until well into the night. She said that Y sometimes becomes anxious about the communications. She believes Y is under enormous pressure because he loves both parents, is trying to keep the peace with his father and feels sorry for him.

2. The father said in his oral evidence that he tries to speak to Y every day via Facebook. He said Y gets a bit distracted because he plays games while communicating with his father. He said Y’s answers are sometimes short and cryptic “because he is too lazy to write and I do try and make him expand his vocabulary”. The father was clearly well aware that some of the content of his communication upsets Y. He said:

   He does get upset when I ask him questions and I do ask him questions and I am well aware that he doesn’t like it”. [16]

   [16] Transcript 11 February 2014 at page 74

3. The father was asked what sort of questions he asks of Y which causes him to be upset. He said he asks things such as:

   Has X been taken to hospital for malnutrition?

   Why wasn’t X at school today?

   Is she well?

   When asked why on earth he would ask a child those sorts of questions, he said he has no other way of obtaining the information. When asked why he doesn’t ask the mother’s solicitors, he said he gets no response from them.

4. The father sent various excerpts of his Facebook communication with Y to the independent children’s lawyer, purportedly to demonstrate Y’s opposition to relocating with his mother. Some of that communication was tendered and became exhibits M3, M4 and M5 in the proceedings. Some of them are difficult to follow as only discrete parts of the communication were copied by the father and sent to the ICL. The most comprehensive evidence about the communication was tendered by the mother and became exhibit M6 in the proceedings.  It is a printout from Y's Facebook account and shows his communications with his father in the week leading up to the hearing on 11 February 2014. It begins in the middle of a conversation stream on a day which is not apparent from the document but which is probably Monday 3 February or Tuesday 4 February 2014. It reads as follows:

   Father: cool what did he say

   Father: did he say I looked like a caveman I had not shaved in weeks then LOL

   Father:???

   Father: hello

   Father: are you talking or playing a game LOL

   Father: Hello what happened Y where did you go I love you so much kiss X for me mate talk tomorrow same time five ok

   Y: Hi

   Tues 10.39 am

   Father: I may not be on tonight if so around 7 may be I had to go and see your lawyer and tell her you want to stay in Town with Dad, does X want to stay in town with (omitted)??? ask her. Love you proud of you so much

   Wed 4:19 pm

   Father: hey mate

   Father: Love you [how] was school

   Y: Hi

   Father: sorry I did not talk yesterday I was with the lawyer

   Father: to keep you in (omitted) with Dad

   Y: Ok

   Father: I hope they listen to our wishes but if anyone ask you you must say [loud] and clear you want to stay in town with Dad and he is only camping until the court case ok

   Y: Ok

   Father: I’m fighting very hard to keep you here and X but they may let X go but she would come back soon she would miss her friends and school

   Y: Thanks for that

   Father: so how was school mate

   Y: Good

   Father: did you ride a bike home with a white helmet on??

   Y: yes

   Father: fuck off LOL

   Father: I seen you

   Y: Where

   Father: I thought that is my son and then I thought NO I think every kids (sic) is you and X

   Father: on bridge

   Y: Ok

   Father: do you ride all the way home

   Y: No

   Y: I ride to mums office

   Father: then how does the bike get home?

   Father: (omitted) going past all the time now

   Y That will suck

   Father: no way I get the show for free every day LOL

   Y: It will be loud

   Father: they are fast

   Father: Gary and the boys down tonight to set up

   Y: Cool

   Father: then back on [Friday] to camp

   Y: Cool

   Father: until Sunday then I think I will pack up and move back into the unit again

   Father: until easter then I hope to have you back and we can take the jeep away

   Y: Ok

   Father: I was thinking we should do (omitted) with (omitted) and the boys for a week

   Father: what do you think of that

   Father: or that sailboat you and I seen for a night in Melbourne

   Y: Cool

   Father: so (omitted) or the sail boat??

   Father: Hello

   Father: are you playing a game or talking to me

   Y: Yes

   Father: what one LOL

   Y: What do you think

   Father: playing a game LOL

   Father: hello are you winning lol

   Y: Yep

   Father: (omitted) coming over tomorrow to get his boat out of the shed

   Father: I’ll tell him you said get fucked again will I??

   Y: [message is obscured in printout]

   Father: give my love to X could you Y

   Y: Ok

   Father: Ok Love you talk 5 tomorrow if you see dad after school stop ok

   Y: Bye

   Father: Love you

   Father: and stop the games mate

   Father: [heart symbol]

   Father: Ya still playing games Y LOL

   Y: Yep

   Father: what not talking to Dad but game OMG f that

   Y: Sorry

   Father: mate

   Father: I hang out to talk to you and have not a lot of power and time

   Y: Bye

   Father: how was X after Nanna’s party did she say anything about me

   Y: Yep

   Father: what did she say

   Father: tell me what she said mate

   Y: I have to go bye

   Y: It’s homework

   Father: tell dad what she said mate

   Father: tell dad what she said mate it is ok tell the truth ya know she has teenage issues

   Thu 4:40 pm

   Father: Hey mate you around yet? could you tell me what X said I do need to know good or bad I do need to know as I’m fighting for both of you and her love again

   Father: Hey did you read that mate Love you

   Father: [picture of smiley face with heart shaped eyes]

   Father: Ok on later mate LOVE YOU BOTH

   Fri 4:17 pm

   Father: (omitted) down for the (omitted) today

   Fri  9:44 pm

   Y: Cool

   Sat 5:37 pm

   Y: hi

   Y: dad

   Y: are u there

   Sun 8:38 pm

   Father: hey mate just got into the unit how are you

   Y: Hi

   Sun 10:11 pm

   Y: Hi dad there was bad fires in (omitted)

   7:11 am

   Father: There is one in Melbourne tomorrow when I fight to have you back with dad because fire in the [court] room LOL, I love you so much if I can get you back this week do you want to go to the (omitted) in (omitted) with (omitted) and Dad, very proud of you when your lawyer ask remember you have to say it clear it I want to stay okay Love you what did X say I know is was bad but dad would like to know ok

5. [There appears to be some sort of break in the printout of the communication at this point and then continues]

   Y: What party

   Father: Nanna’s on the way home or after she talked about dad

   Y: I don’t remember

   Father: was it good or bad?

   Y: I don’t remember

   Father: well I need to know before court could you try I know you don’t like to talk about this stuff but I have to go to court and not know if she will ever love dad again

   Father: Hello

   Y: Hi

   Father: well I need to know before court could you try I know you don’t like to talk about this stuff but I have to go to court and not know if she will ever love dad again

6. I accept the father’s evidence that some of this communication is him simply trying to stay in touch with his son by the only remaining means. It is also apparent, however, that the father is directly discussing the court proceedings with the child and pressing him to become involved. He told the child what to say to the independent children’s lawyer; told him what to say about his father’s accommodation; pressed him for his views about how X is feeling; and pressed him to report to him what X said after the birthday party for their great grandmother. Sadly, the father missed an opportunity on the last Sunday before the trial when the child initiated a conversation with his father about bushfires in (omitted) and the father used the child’s comment to talk only about what was going to happen at court the next day. The father has clearly put a lot of pressure on the child and such communication needs to cease, at least in the short term.

7. The father was asked why he kept asking Y about what X had said when Y had assiduously avoided answering the question. He said that he kept asking out of frustration and conceded he let that frustration take over.[17]

   [17] Transcript 13 February 2014 at page 22

The father’s psychiatric assessment

1. The father agreed that he participated in the proceedings by telephone on 27 September 2013 when Judge Riley ordered he undergo a psychiatric assessment. He agreed that he told the Court that he had no intention of doing so and that he had not done so. He said during his oral evidence on 13 February 2014 that he took the suggestion that he needed a psychiatric assessment as a personal insult but, by December 2013, he had come to the conclusion that the only way he was ever going to see his children again was to prove that there was nothing wrong with him mentally and decided to go ahead with an assessment. He then encountered difficulty because he was unable to afford to pay for an assessment and he needed to apply for legal aid. Most of the legal firms he approached were closing for Christmas and he did not apply for legal aid until January or February 2014. Consequently, no psychiatric assessment has been prepared but, as mentioned earlier, the father has an appointment for an assessment in April 2014. Orders were made at the end of the proceedings on 13 February 2014 to facilitate the assessment.

Credit issues

1. The mother was a credible witness. She answered questions in a straightforward and open manner and conceded reasonably. Her evidence was compelling.

2. The father was not a persuasive witness. He was combative and frequently non-responsive.  He used the questions he was asked as an opportunity to say what he wanted, even if completely unrelated to the question. He frequently answered questions in a frustratingly oblique manner. An example of this can be seen from the following passage of evidence about whether or not the father had a current driver’s licence:

   Mr G: …Do you have a licence? --- Yes. It’s before the courts. My solicitor---

   Is it current?--- I was pulled over seven times during the (omitted) which was last weekend. Police did licence and registration checks and vehicle checks on every vehicle almost on the road. I’m pretty sure I’m current and quite capable. Yes.

   Well, you know whether you’ve had your licence suspended or not, don’t you? Have you?--- I’ve just informed you. I was pulled over several times as everyone else has.

   That’s not…--- The police did a check---

   Just tell me, have you got a current licence or not? --- Yes, I have.

3. During cross-examination the father was asked when he and the mother separated.  He said they separated on 13 December 2001. It was pointed out to him that his own affidavit filed on 19 December 2012 in the Local Court at Deniliquin states that they separated in March 2009. He said that date was wrong.  He gave an odd explanation for why he nominated an incorrect date in his affidavit. It had to do with the fact that he was applying for a recovery order after the mother stopped making the children available in November 2012.  He said “this was an application for children, nothing more; nothing less…. I wrote this in a manner that I was worried about my kids. I wasn’t worried about the semantics of when we separated and who said what when. I just wanted the children back under interim orders so none of this would happen to the children”. It was put to him that he must have known at the time he swore his affidavit the separation date was wrong by eight years. He said “Yes. It wasn’t a primary concern. It was of no concern to me whatsoever.” [18]

   [18] Transcript 12 February 2014 at 25 to 27

4. It was pointed out that, if he was correct, the parties must have separated before Y was born.  The father agreed that was so. He said they separated under the one roof 13 December 2001 and, when they both moved to (omitted), they lived in separate homes. He was asked whether he nominated an earlier date for the purpose of property proceedings to make any property claim by the mother weaker and nominated the later date in the parenting proceedings to make his parenting application stronger. He denied that.

The law in relation to parenting

1. In any parenting case the court must consider the best interests of the children as the paramount consideration.[19]  However, it is not the only consideration and other matters, such as a parent’s right to freedom of movement, are also important considerations.

   [19] Family Law Act 1975, section 60CA

2. In determining what is in the children’s best interests, the court must bear in mind the objects and principles set out in section 60B of the Family Law Act 1975.  An important object in the context of this case is “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”.[20]

   [20] Ibid, section 60B(1)(a)

3. The court must also have regard to the primary considerations set out in section 60CC(2) of the Family Law Act 1975 which are as follows:

   (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.

4. In circumstances where the primary considerations suggest different outcomes, the court must give greater weight to the need to protect the child from harm.[21]

   [21] Family Law Act 1975, sections 60CC(2A)

5. In this case the children have historically benefitted from a meaningful relationship with both parents.  In recent times that benefit has gradually become outweighed by the need to protect the children from psychological harm arising from the father’s behaviour. He appears to be willing to deliberately embroil the children in his conflict with the mother without regard for the potentially dire consequences and even though he knows they don’t like it. 

6. The court must also take into account the additional considerations set out in section 60CC(3) of the Act. The relevant considerations in this case are as follows:

(a)  any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. X does not wish to have any relationship with her father at the moment and is keen to move to (omitted) to put some physical distance between her and her father.  Although the father believes she is not sufficiently mature for her views to have weight, I do not agree. There is nothing to suggest that X is anything other than an intelligent and articulate (albeit distressed) 14-year-old. The basis of her views is clear and reasonable. In my view her wishes should be accorded significant weight.

2. The mother said Y had told her he was quite happy to move to (omitted) and see how he likes it. The father said that at his grandmother’s 95^th birthday party on 5 February 2014, Y made it clear that he wanted to stay in (omitted) with his father and not move to (omitted). He said, given he had not seen his son for months prior to the first family report, he could not have influenced the child and his views, therefore, ought to be given considerable weight.

3. Counsel for the independent children’s lawyer asked the father why he believed X’s view should have no weight but Y’s should.  He said it was because Y was extremely adamant about his views and they had been consistent over a long period of time.[22] He also said, effectively, that X’s views should be discounted because “girls have hormonal upheavals in teenage years. They – they get completely different to boys. Boys however are younger and on – on the most, for the most part, are immature whereas girls make irrational, emotional decisions instead of logical ones. Boys seem to take a whole view over the whole process and – and sort of make a course for themselves.” [23]

   [22] Transcript 13 February 2014 at page 45

   [23] Ibid at page 45

4. I do not regard Y as expressing his views any more vehemently than X.  It may well be that he reassured his father at the party that he wanted to live with him but it may also have been difficult for him to express a contrary view in those circumstances. It may be that Y is trying to keep each parent happy.

5. Y clearly expressed a desire to spend time with his father until he became worried about his father’s mental health in about September 2013. The evidence supports a finding that Y would want to continue a shared living arrangement if his father was well.

(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).

1. X’s relationship with her father is estranged. The father blames the mother for that. In the first family report he was reported to have said that the mother was manipulating X into not wanting to have a relationship with him and that the mother had turned X into “a typical teenager”. He said he thought X was not old enough for her wishes to be determinative because she was still too immature for that to occur.[24]

   [24] Ibid at page 44 to 45

2. Y remained connected to his father for a lot longer and had a closer relationship with him than did X. It is clear on the evidence, however, that Y became increasingly anxious and worried about his father’s behaviour.

3. Counsel for the independent children’s lawyer asked the father whether he believed he treated the children differently. He said he did not believe that he did. It was put to him that the incident which led to X no longer spending time with him was one in which she told him to “Shut up” and “Fuck off” but, in his communications with Y, he used language like that frequently.  The father agreed with the proposition that he regarded Y as “one of the boys” and that he and Y frequently tell each other to “Fuck off” but they are only joking whereas X was serious and used that language aggressively towards him.[25]

   [25] Transcript 13 February 2014 at page 48

4. In her memorandum of 22 May 2013, Ms W said the following:

   Mr Moffat reported that the family participate in activities that favour the outdoor interests of his son, and even though he was aware his daughter was not interested in these activities, he felt she benefited from being made to go.

5. The father agreed that was an accurate statement of what he told the family consultant. He was asked whether that might have contributed to X’s lack of enthusiasm for spending time with him. He said it was part of the issue he and X were working on with the school counsellor.

(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.

1. The father has been keen to spend time with the children but only on his terms. He has failed to take many opportunities to spend time and communicate with X. He gave confused evidence about why he had not seen her since the incident in November 2012. He made it clear that he did not want to be a “Macca’s dad” and only see his daughter every second weekend and decided, therefore, not to see her at all.  At another point he seemed to be suggesting that he would have been prepared to see her on weekends but refused to pick her up from McDonald’s as that would lead him to becoming a “Macca’s dad”. He said that he went to the usual handover place, a house length from the mother’s home and beeped the horn but X did not come out. He said that, after doing this for a period of 4 to 6 weeks without success, he decided not to push it any further. He said that, when he was going to go into surgery for the second time, he was worried he may never see the children again and wanted to reconcile with X so that she did not have any feelings of guilt if he died during the operation. Accordingly, he decided to get Y to go and ask his sister to come for the weekend.[26]

   [26] Transcript 13 February 2014 at page 42 to 43

2. I was not persuaded by that evidence. It appears to me on all of the evidence that the father simply refused to see his daughter unless and until she capitulated and agreed to continue spending equal time with him.  As the court date approached, however, he sent Y to the front door of the mother’s house with a message that X had to come and spend time with him in accordance with the orders which, by then, provided for every second weekend. This appears to be the only occasion on which he was prepared to see his daughter for a weekend rather than a whole week. The impression I got from the evidence was that the attempt to see his daughter that weekend was a strategic move in the light of the upcoming proceedings. This was reinforced later in the proceedings when he was asked whether he would take the opportunity to spend time with both children every second weekend if orders to that effect were made. He said “No, I couldn’t do that. I couldn’t do it. I physically and emotionally couldn’t.”[27] It was put to him that he had previously said he had been happy to pick up X every second weekend provided he didn’t have to pick her up from McDonald’s. He responded “That's X” and then explained that it was a different scenario because he was still having Y for fifty per cent of the time but seeing both children for such a limited time would make him a “Macca’s dad” which he was not prepared to do.[28]

   [27] Ibid at page 56

   [28] Ibid

3. The father said the last time he spoke to X on the telephone was Wednesday, 26 November 2012 which was the week before the incident on 25 November 2012. He was taken to paragraph 23 of the family report dated 26 September 2013 in which it is reported that X said her father told her over the phone that he was going to die and that it was her fault. The father denied saying that.

(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.

1. For most of the time since separation the mother has provided most of the financial support for the children.  Until November 2012 she also paid child support to the father.  The father said this was only $39 per fortnight. The father made no child support payments between November 2012 and January 2014 when he began to pay $22 per month to the mother. The father said that he has always supported the children financially by (omitted) and (omitted) which he obtained cheaply, “did up” and then sold.

2. It was put to the father that he had made a minimal financial contribution to the children the last 12 to 14 months. He responded “The last 12 or 14 months I haven’t seen my children”. He was asked whether he believes he has an obligation to financially support his children regardless of whether he is seeing them. He responded “So you’re saying that Daniel Morcombe’s parents should pay the abductor? That’s my view”. Daniel Morcombe was a child who was abducted and killed by a stranger. The analogy is appalling but illuminating.

(d)  The likely effect of any changes in the child’s circumstance including the likely effect of separation from either parent or other person which whom he or she has been living.

1. If the children relocate with their mother, they will have less opportunity to spend time with their father. A week-about arrangement will not be an option unless the father moves too. However, in the short term the children would not be seeing their father in any event. There will be an opportunity to explore this issue further at the final hearing.

2. I do note, however, that permitting the move now puts the father in a less advantageous position at the final hearing

(e)  The practical difficulty and expense of the child spending time with or communicating with a parent.

1. If the relocation is allowed, it creates both practical difficulty and expense in the children spending time with their father. It is common ground that the distance between the father’s home in (omitted) and the mother’s proposed new home in (omitted) is about 400 km or four hours drive. Both parties have cars and can drive the children between the homes but the distance is such that the children may become reluctant to travel every second weekend.  Less frequent weekend time and longer periods during school holidays would not be difficult. This is not an immediate problem, however, as at the time of the hearing the children were not spending any time with their father.

(f)   The capacity of each of the child’s parents and any other person to provide for the needs of the child including emotional and intellectual needs.

1. The mother has demonstrated a high level capacity to provide for the broad range of the children’s needs. She has provided well for them in a practical and material sense and is emotionally attuned to them.  She has supported their relationship with their father and has been able to support different arrangements for each child in accordance with their differing needs.

2. The mother did a parenting course when it was ordered in 2013.  As a result of what she learnt during that course, she took the initiative and tried to arrange some counselling for X.  She put her name on a waiting list but, unfortunately, the counselling had not started by the time the matter was heard in February 2014. In my view, the mother can be trusted to seek out appropriate advice and services in order to meet the children’s needs.

3. The father on the other hand lacks insight into his children’s needs and how they can best be met. During the proceedings he conceded that he put pressure on Y by continuing to ask him questions about X even though he knew his son didn’t want to talk about it.  He conceded that, by doing so, he was putting his own needs above those of the child but said that he had no choice because asking Y those questions was his only option. He was asked by counsel for the independent children’s lawyer whether he thought he was being emotionally abusive of Y by doing so. He said, looking at the full context, he would not class it as emotional abuse but would concede it was putting the child in an uncomfortable position.[29]

   [29] Transcript 13 February 2014 at page 50

4. When he was seeing Y he also put emotional pressure on him by crying when they parted.[30]

   [30] Ibid at page 30

5. The father is apparently incapable of properly supporting the children’s relationship with their mother. During his evidence he said that he and the children had developed a game called “love, family and respect” in which he and the children wrestle each other and, when one person captures another, they are not released until they give the other a kiss on the forehead or the cheek and say “love, family and respect”. He said he did this to instil those values into his children. It is clear, however, that notions of love and respect do not extend to the children’s mother even though she is part of their family. The father was asked whether the mother provides a good role model to the children. He said “No; most definitely not”.[31] He was asked what good things he thought the mother offers to the children. He responded that her career comes first whereas he is more family oriented. He said she lacks compassion, leaves the children at home alone and gives them too much free reign whereas he provides boundaries. He was encouraged again to state what good things the mother offers to the children. He said she spends money on them, takes them on holidays and gives them things that they want rather than what they need.[32] When directly asked whether he thinks the mother loves her children, he conceded “I do believe in her manner she does love them”.[33]  He said he did not respect her as a mother but believed, as a parent, she has a right to be in their lives.[34]

   [31] Ibid at page 36

   [32] Ibid at page 36

   [33] Ibid at page 37

   [34] Ibid

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

1. There was not a lot of evidence before me about family violence between the parties during their relationship.  The mother said that when the parties separated they each obtained mutual intervention orders by consent without admission.  She said the father was subsequently found guilty of ten breaches of the intervention order and was fined.  He successfully appealed the decision and three counts were overturned.  That would mean that seven were upheld.  The mother said that the financial penalty imposed on the father by the court at first instance was increased by the appellate court. 

2. I infer that there was a basis for each party to obtain intervention orders.  There is, however, no evidence about the findings made by either court dealing with intervention orders or the breaches. There is no evidence of any current intervention orders.

3. Section 4AB of the Family Law Act 1975 defines family violence as “violent, threatening or other behaviour by a person that coerces or controls a member of the persons family (the family member), or causes the family member to fearful”. I am satisfied that the father has behaved in a coercive and controlling manner towards the children.  Both children have expressed fear of their father and have felt extreme emotional pressure as a result of his actions towards them.  The father’s behaviour towards counsel and the Judge in Court on 27 September 2013 provides an illustration of the sort of behaviour he is prepared to indulge in to achieve his own ends.  There is an unacceptable risk of the children suffering emotional and psychological harm if exposed to such behaviour.

Determination

1. At the end of the proceedings submissions were made by counsel for the independent children’s lawyer and each parent. The father left the court before submissions were made. He may have predicted the outcome.

2. Counsel for the father urged the Court not to allow the mother to relocate with the children on an interim basis. She relied upon the decision of Morgan & Miles (2007) FLC 93 – 343 in which Boland J said the following at paragraph 88:

   It appears to me that the very difficult issues in cases involving a relocation … make it highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the types of cases in which the child’s present stability may be extremely relevant on an interim basis.

3. As I commented to counsel at the time, that might have been a strong argument if the relocation was sought on an interim basis early in the proceedings. In this case, the matter was listed for final hearing and the mother was ready for it to proceed on a final basis that day. The only reason it did not proceed was that the father sought an adjournment in order to obtain a psychiatric assessment he had been ordered to obtain six months earlier. Also, the hearing could not reasonably be described as an abridged interim hearing as it was heard over three days with lengthy cross-examination of both parents.

4. The evidence supports a finding that, at least in the short to medium term, the children spending time with their father or having unrestrained communication with him would present an unacceptable risk to their emotional well-being.

5. The time between the children and their father was suspended in November 2013 by Judge Riley on the strength of the untested September 2013 family report. The father has now had the opportunity to be heard at length but his evidence simply confirms the correctness of that decision.

6. In circumstances in which the father is spending no time with the children and may not do so for a long time unless he seriously addresses the risk issues for the children, I formed the view it was unreasonable to prevent the mother relocating to (omitted) where she can live with her partner of more than three years, take the opportunity to progress her career and earn a significantly higher salary than what she is currently earning. To prevent her from relocating would also not be reasonable in circumstances in which the delay in the final hearing is entirely the fault of the father.

7. The physical distance between the parties’ homes will mean a resumption of an equal time regime in the future will be impossible unless the father also relocates to (omitted). However, it does not prevent the children spending time with him on a regular basis and him being meaningfully involved in their lives. For that to happen, the father needs to take the opportunity to obtain a psychiatric assessment and get help to address the matters raised in these proceedings.

8. In the meantime, the distance between the parents’ homes will provide both the mother and the children with a physical and psychological buffer from the emotional pressure exerted by the father.

9. For these reasons I am persuaded that the move is in the best interests of the children.

I certify that the preceding one hundred and twenty nine paragraphs are a true copy of the reasons for judgment of Judge Hughes

Date:  7 April 2014