Mulgrave and Milne

FEDERAL CIRCUIT COURT OF AUSTRALIA

MULGRAVE & MILNE

[2014] FCCA 684

Catchwords:
FAMILY LAW – Parenting orders for four year old child – where mother has moved to a country town four hours away from the father’s home – where the father seeks orders that she return to Melbourne with the child – meaning of “meaningful relationship”.

Legislation:

Family Law Act 1975, ss.4, 60B, 60CC, 61DA, 65DAA

Collu & Rinaldo [2010] FamCAFC 53
Tait & Dinsmore (2007) FamCA 1383
Godfrey & Sanders (2007) Fam CA 102
Mazorski v Albright (2008) 37 FLR 518

Applicant:

MR MULGRAVE

Respondent:

MS MILNE

File Number:

DGC 1757 of 2013

Judgment of:

Judge Small

Hearing dates:

5 & 6 February 2014

Date of Last Submission:

6 February 2014

Delivered at:

Melbourne

Delivered on:

11 April 2014

REPRESENTATION

The Applicant:

Mr Mulgrave In Person

The Respondent:

Ms Milne In Person

ORDERS

All previous orders in relation to the child [X] born [in] 2009 (“the child”) are hereby discharged.
The Applicant and the Respondent shall have equal shared parental responsibility for the child.
The child shall live with the mother.
For the purposes of Paragraph 3 hereof, the mother is permitted to remain living in [D].
The child shall spend time and communicate with the father:
(a)during New South Wales school terms on each fourth weekend in [D] from 5:30 p.m. on Friday until 7:00 a.m. on Monday beginning on the first weekend when the child would have been spending time with the father pursuant to the interim orders made on 6 February 2014;
(b)during New South Wales school terms on each fourth weekend in [M] from 5:30 p.m. on Friday until 5:30 p.m. on Sunday, beginning on the second Friday after the weekend specified in sub-paragraph (a) hereof;
(c)for one half of each of the New South Wales school term holidays by agreement between the parties and failing agreement from noon on the first Saturday until noon on the second Sunday;
(d)for half of the New South Wales long summer holidays by agreement between the parties and failing agreement:
(i)from noon on the day which is the midpoint of the holidays until 5:30 p.m. on the last Friday in 2014-2015 and in each alternate year thereafter; and
(ii)from noon on the first Saturday until 5:30 p.m. on the day which is the midpoint in 2015-2016 and in each alternate year thereafter;
(e)by telephone or Skype connection or other electronic means:
(i)twice per week by agreement between the parties and failing agreement on Wednesdays and Saturdays at 6:30 p.m. with the father to make the call to a number provided by the mother and the mother to ensure that the child is available to take the call;
(ii)on the child’s birthday, the father’s birthday, Christmas Day and Fathers’ Day each year should the child not be in his care pursuant to these orders, at times to be agreed and failing agreement at 8:30 a.m. with the father to place the call and the mother to ensure that the child is available to take it;
(f)at other times as may be agreed between the parties from time to time.
For the purposes of time spent between the child and the father pursuant to paragraphs 5(a) and (b) hereof:
(i)if the Friday is a public holiday then time shall begin at 5:30 p.m. on Thursday and if Monday is a public holiday then time shall conclude at 7:00 a.m. on Tuesday if time is spent in [D] and at 5:30 p.m. on Monday if time is spent in [M];
(ii)the father shall travel to [D] in one fortnight beginning on the first occasion after the date of these orders, and the mother shall bring the child or cause him to be brought to [M] in the alternate fortnight;
(iii)changeover shall take place at an a venue agreed by the parties and failing agreement, when the father travels to [D] changeover shall take place at the mother’s home, and when the child travels to [M] changeover shall take place at the father’s home.
For the purposes of time spent between the child and the father pursuant to paragraph 5(c) and (d) hereof changeover shall be at a place agreed between the parties and failing agreement the father shall collect the child from the mother’s home at the beginning and the mother shall collect him from the father’s home at the end.
The father is hereby restrained by injunction from ingesting alcohol for 12 hours prior to and for the duration of any period of time the child spends with him.
The parties are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other or any member of the other’s family in the child’s presence or hearing, and from allowing him to remain in the presence or hearing of any third party who is engaging in such conduct;
(b)discussing these proceedings or any parenting disputes or issues in the child’s presence or hearing, and from allowing him to remain in the presence or hearing of any third party who is engaging in such conduct.
If the child is spending time with the father pursuant to these orders on the child’s birthday, the mother’s birthday, Christmas Day or Mother’s Day, then the child shall communicate with the mother by agreement between the parties and failing agreement by telephone or Skype or other electronic means at 8:30 a.m. with the father to provide a number to call, the mother to place the call, and the father to ensure that the child is available to take the call.
Each party shall notify the other as soon as practicable in the event of the child suffering any serious illness or injury while he is in their respective care and each shall authorise any medical practitioner who treats the child to consult with the other parent.
The mother shall authorise any child care centre, kindergarten or school in which the child is enrolled to provide to the father at his expense all information, notices, reports and like materials and he shall be named as a contact person in that institution’s records in the event of any emergency involving the child.
The father shall be at liberty to attend any child care centre, kindergarten or school functions, extra-curricular activities or events to which parents are usually invited.
All extant Applications are otherwise dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 1757 of 2013

MR MULGRAVE

Applicant

And

MS MILNE

Respondent

REASONS FOR JUDGMENT

Introduction

[X] is four-and-a-half years old, having been born [in] 2009. He has lived with his mother, Ms Milne, all his young life.
His parents, Ms Milne and Mr Mulgrave, are in dispute about where [X] should live, although they agree that he should continue to live primarily with Ms Milne.
In late 2012 Ms Milne relocated with [X] to her property in [D], 383 kilometres and four and a half hours’ drive from Mr Mulgrave’s home on the Mornington Peninsula.
Mr Mulgrave seeks orders that Ms Milne return with [X] to Melbourne, and more specifically, to within 50 kilometres of his home.
Ms Milne seeks to remain living in [D] with [X].
The issues in this case are:
· Is the evidence about Mr Mulgrave’s drinking and propensity to commit family violence significant enough for a finding of fact to be made about them?
· In light of those findings, and other matters set out in s.60CC of the Family Law Act1975 (“the Act”), is it in [X]’s best interests to remain living with his mother in [D] or to return to a place within 50 kilometres of his father’s home?
· Whether [X] lives in [D] or Melbourne, how often and in what circumstances should he spend time with his father?
Before answering these questions, it is relevant to set out some of the background to this dispute.

Background

The parties met in Queensland and commenced their relationship in mid-2008 before moving to Sydney, where [X] was born, and then to the Mornington Peninsula in Victoria (“the Peninsula”).
They separated finally in May 2013. There were several periods of separation during the relationship, although when and why those separations occurred is a matter of dispute between the parties.
[X] is the only child of the relationship, although the mother has another child, [Y], born [in] 2002 (“[Y]”), who lived with the parties when they were living together.
[Y] lives with his mother and spends time with his father, who also lives in the Melbourne metropolitan area.
Mr Mulgrave and Ms Milne agree that they effected an informal property settlement[1] after a significant separation in 2011 and that

Ms Milne used her share of that settlement to purchase a property in [D] in mid-2012.
[1] “Informal” because no orders were made about the parties’ property and they did not enter into a Financial Agreement under s.90UJ of the Act.
Mr Mulgrave’s evidence is that Ms Milne told him that the property was bought as an investment. Ms Milne says she bought the property for her and the children to live in.
Mr Mulgrave did not consent to [X] living in [D].
Ms Milne moved to [D] in December 2012 with both children and over the ensuing few months Mr Mulgrave visited several times and also spent time with [X] when Ms Milne brought him to the Peninsula each fortnight to fulfil employment obligations.
In late March 2013 there was an incident at Ms Milne’s home which resulted in Mr Mulgrave leaving her home and staying at a hotel.
The cause and substance of that incident are matters of dispute between the parties, with Mr Mulgrave’s evidence being that the parties had argued over the fact that Ms Milne would not allow the children to go with him to lunch for his birthday, and Ms Milne’s evidence being that Mr Mulgrave had arrived at her home after an afternoon of drinking, intoxicated and aggressive and threatening the lives of himself, her and the two children.
In any event, a rapprochement was reached after that incident and the parties lived together again for a period of a few weeks at

Mr Mulgrave’s home in [M] until he arrived home from work and admitted to having had a drink on the way home. Ms Milne then took the children and left the home.
The parties have not lived together since that day and Mr Mulgrave issued these proceedings a little more than a month later.

Issues and Evidence

Is the evidence about Mr Mulgrave’ drinking and propensity to commit family violence strong enough for a finding of fact to be made about it?

Mr Mulgrave says that the cause of disputes between him and

Ms Milne was his relationship with [Y].
He says that he felt that Ms Milne wanted him to feel and act in the same way toward [Y] that he felt and acted toward [X]. Mr Mulgrave’s evidence is that while he loves [Y], he is simply unable to feel about him the way that he feels about his own son and that Ms Milne was unable to accept that fact.
It appears from his evidence that that issue was certainly a point of contention between the parties.
Ms Milne’s evidence is that the major point of contention was the level of Mr Mulgrave’s alcohol consumption.
She says that he was often intoxicated, that he could not give up drinking, and that when he was affected by alcohol he was often aggressive and abusive to both her and the children.
Mr Mulgrave’s evidence at trial was that he does not have a problem with alcohol, although he acknowledged that Ms Milne did have concerns about his drinking and that it was that issue that precipitated the final breakdown in the relationship in May 2013.
Mr Mulgrave was put under some pressure at trial about his alcohol consumption. In answer to a question about how much he drank regularly, he said that he usually drank two standard drinks[2] a night, three or four nights a week. However, when questioned further, he admitted having drunk six or seven standard drinks or more on more than one occasion during the relationship, and specifically before the incident that occurred at Ms Milne’s home in [D] on 31 March 2013.
[2] Mr Mulgrave stated in oral evidence that he drank Carlton mid-strength beer and that one can of that beer constituted one standard drink.
He denied becoming aggressive or abusive when intoxicated, and said that he could always control his anger during and recall events after he had been drinking.
Ms Milne says that she moved out of the family home several times during the relationship because of Mr Mulgrave’s drinking and aggressive behaviour, and that it was his inability to keep a promise that he would not drink that led to the final separation of the parties.
She specifically cites the following incidents:
(a)shortly before [X]’s birth she left the parties’ home in Sydney and stayed in a hotel close to the hospital where she was to give birth because Mr Mulgrave had punched a hole in a wall of their house in anger while drunk;
(b)on one occasion while the parties were living in Mr Mulgrave’s house on the Peninsula he came home drunk and abused [Y] for minor misbehaviour such that [Y] became very upset and Ms Milne left with the children;
(c)on 31 March 2013, when Mr Mulgrave was visiting [D] he came back to her house very drunk, and screamed at her and the children, saying that he was leaving and that he would kill Ms Milne, her father, the children and himself.
In relation to the first of these specific incidents, Mr Mulgrave admitted to having been angry and to having punched the wall in frustration during an argument a short time before [X] was born.
He said in oral evidence that he had had eight to nine standard drinks on that day and that he did not recall what the argument was about. He said that he recalled Ms Milne leaving the next day, not the day of the incident. Ms Milne was adamant that she had left in the middle of the day while Mr Mulgrave was still “yelling and screaming” and had booked into a hotel near the hospital on the same day.
In relation to the incident when he allegedly abused [Y] and made him cry, Mr Mulgrave denied being intoxicated or screaming at [Y], although he admitted [Y] had cried after he had spoken to him. He did not recall that Ms Milne had left his home with the children on that night.
In relation to the incident in [D] on 31 March 2013, it was

Mr Mulgrave’s evidence that it had been his birthday on [date omitted] and Ms Milne had invited him to come to [D] on the Easter weekend to have a birthday celebration with her and the children.
In email exchanges on 21 March 2013 Ms Milne had written the following:
Next Friday is Good Friday, so yes it is a public holiday. Don’t mess or hurt my boy [Mr Mulgrave]. You are to stay with [X] at Poppy’s overnight or drop [X] back each night you’re up here. I think that’s best for [X], poor boy. He may be a tad hesitant to go with you as he still talking about us hiding at Poppy’s away from your drunk rage. Not nearly what he deserves [Mr Mulgrave], not even close. Step up [Mr Mulgrave]. You’re a very angry drunk, and the kids didn’t ask for you to be in their lives. You should think yourself fortunate to have them, not the other way round.
In a response email later that day Mr Mulgrave wrote the following:
Okay no problem. I will be there Friday morning or Thursday night, depending on what time I get out of the office. I know I stuffed up big time and no one deserves that abuse or me being a total idiot.
The parties argued on the morning of 31 March (which I note was Easter Sunday) and Mr Mulgrave left Ms Milne’s home.
Mr Mulgrave says that he was upset that Ms Milne would not allow him to take [X] and [Y] to lunch with him to celebrate his birthday and that he had gone fishing and then to a hotel bistro for lunch. It was his evidence that he had not consumed any alcohol at that time and had returned to Ms Milne’s residence in an entirely sober state to see if the argument could be resolved at about 4:00 p.m.
He said in evidence at trial that after another argument with Ms Milne he had gone back to the hotel alone and over the next couple of hours or so had consumed six or seven standard drinks. He then drove to

Ms Milne’s home, arriving at about 7:00p.m.
He said that he was upset and angry and that after again arguing with Ms Milne outside her home, and telling her that he was leaving and that the relationship was over, he had driven to a local hotel and booked a room where he stayed overnight. He denies having made any threats to Ms Milne or anyone else on that evening.
He acknowledged in oral evidence that he would certainly have had more than the prescribed concentration of alcohol in his blood when he drove that evening, and that the children had been frightened by his behaviour.
Ms Milne’s evidence is that Mr Mulgrave wanted to take the children to a hotel bistro for lunch to celebrate his birthday and she did not consent to that because she was afraid that he would drink alcohol and potentially place the children at risk.
She acknowledges that Mr Mulgrave left her home after an argument on the morning of 31 March, but denies that he returned, sober, in the afternoon. It was her clear evidence that the next time she saw Mr Mulgrave was at about 8:00 p.m. that evening when he drove up her driveway, screaming obscenities out the window of his car. He was obviously intoxicated, and was extremely aggressive and abusive, threatening to kill her, the children, her father and himself. She says that both [Y] and [X] were present, that [X] had been in her arms, and that both children had been scared and traumatised by the incident.
Under cross-examination on the issue of his drinking Mr Mulgrave was somewhat defensive and, at times, evasive. For instance, when

Ms Milne asked him if he remembered what had made him so angry as to “punch holes in the wall in front of [Y] and I” he said: “I wasn’t punching holes. I punched one hole”.
On another occasion, when describing the same incident, Ms Milne asked Mr Mulgrave if that had been the first time she had had to leave the house with [Y] in fear of him. Mr Mulgrave’s response was: “I don’t think you left the house that night”.
Ms Milne’s distress when recalling the above incidents was palpable, especially the incident of 31 March 2013, and she became teary and appeared visibly shaken several times when asking questions about them.
Overall, on balance, where Ms Milne’s evidence conflicts with

Mr Mulgrave’s on the question of his drinking and aggressive behaviour, I prefer Ms Milne’s evidence. Her recollection of the incidents is detailed and persuasive while Mr Mulgrave’s is vague, defensive and less than satisfactory. On his own evidence Mr Mulgrave drank what a reasonable person would consider excessive amounts of alcohol on at very least two occasions during the relationship, both of which resulted in arguments between him and Ms Milne that led to a period of separation.
I am satisfied that Mr Mulgrave’s alcohol consumption was a major issue in the relationship and that Mr Mulgrave became aggressive and abusive at times while intoxicated to a level that constitutes family violence under the Act.
I further find that [X] witnessed that behaviour on more than one occasion. That is, [X] was exposed to family violence, which is itself a form of child abuse under s.4(1) of the Act.
In the light of that finding, is it in [X]’s best interests to remain living with his mother in [D] or to return to a place within 50 kilometres of his father’s home?
For all the reasons set out above and below, I believe it is in [X]’s best interests to remain living with his mother in [D].

The Law

At the outset, it is relevant to point out that so-called “relocation cases” are not to be decided in any different way to any other parenting case.
That has been made clear by a series of decisions of the Family Court of Australia and this Court[3].
[3][3] See for example Cowley & Mendoza [2010] FamCA 597 per Murphy J; Taylor & Barker (2007) 37 Fam FLR 461 per Full Court.
The law about how parenting matters are to be determined is found in Part VII of the Family Law Act1975 (“the Act”).

Section 60B sets out the objects and principles of the Act in relation to parenting issues and I set out the relevant parts of that section for the benefit of the parties.
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(4) An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
Section 61DA(1) of the Act states that when making a parenting order in relation to a child, the court must apply a presumption that it is in the child’s best interests for the child’s parents to have equal shared parental responsibility for that child.
Sections 61DA(2) and (4) allow respectively for situations where the presumption does not apply, or is rebutted. The presumption does not apply in circumstances where a party has committed child abuse or family violence and is rebutted by evidence that equal shred parental responsibility is not in the child’s best interests.
Neither Ms Milne nor Mr Mulgrave seeks to have sole parental responsibility for [X] and I will therefore exercise my discretion to make an order for equal shared parental responsibility notwithstanding that I have made a finding of family violence.
Once an order for equal shared parenting responsibility is made, the court must then consider whether an order for equal shared time is appropriate. That course is required by s.65DAA(1) of the Act.
Neither party seeks an order for equal shared time in this case. Indeed, both seek an order that [X] live with his mother. I will therefore make such an order.
Section 65DAA(2) then requires the court to consider whether a child should spend “substantial and significant time” with the non-residential parent.
“Substantial and significant time” is defined in s.65DAA(3) as:
·    time that includes both weekend and holiday time and non-weekend and holiday time
·    time which allows a parent to be involved in a child’s daily routine and occasions and events which are significant to the child
·    time which allows child to be involved in occasions and events which are significant to the parent.
Section 65DAA(4) makes it clear that these considerations do not limit the court in the matters to which it can have regard when deciding whether a proposed order would mean that the child spends substantial and significant time with the parent.
In Collu & Rinaldo [2010] FamCAFC 53, the Full Court made clear that the Court must consider whether an order for substantial and significant time is practicable as well as whether it is in the child’s best interests.
As will be seen from the reasons below, I do not believe it is practicable or in [X]’s best interests to spend time with his father other than weekend or holiday time at this time in his life. I will therefore not make orders which provide for [X] to spend “substantial and significant time” with Mr Mulgrave, although the time spent will be regular and reasonably extensive and will allow for some involvement in special occasions.
Section 60CA states that in deciding what orders to make in any parenting case, a Court must consider the best interests of the child as its “paramount consideration”.
Section 60CC sets out the matters a Court must take into account when deciding what is in a child’s best interests.
There are two “primary considerations” set out in s.60CC(2) and fourteen “additional considerations” set out in s.60CC(3).
I will address those considerations in turn.
Section 60CC(2)(a) states that the first consideration the Court must look at is the benefit to a child of having a meaningful relationship with both of the child’s parents.
Section 60CC(2)(b) states that the second “primary consideration” is the need to protect a child from physical or psychological harm as a result of abuse, neglect, or being exposed to family violence.
Where it might be said that those two considerations conflict, s.60CC(2A) makes clear that the need to protect a child takes precedence over the benefit to a child in having a meaningful relationship with both parents.

Section 60CC(2)(a) – the benefit of a meaningful relationship

The question of what a “meaningful relationship” is has been considered in several cases.
In Tait & Dinsmore (2007) FamCA 1383, Cronin J considered the distinction made by Kay J in Godfrey & Sanders (2007) Fam CA 102 between an “optimal” relationship and a “meaningful” relationship, and said, at paragraph 170:
Kay J distinguished between the optimal relationship and the meaningful relationship. … The distinction is clear. An optimal relationship is one which is second to none, unmatched and unequalled. That cannot be what the legislation intended. To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child… Those adjectives mean that children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate to others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship.
In Mazorski v Albright (2008) 37 FLR 518, Brown J considered a situation where the mother wished to relocate the residence of a child from one State to another. Her Honour said, at paragraph 26:
I proceed on the basis that when considering the primary considerations and the application of the objects and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one.
So, if [X]’s relationship with Mr Mulgrave is important, significant and valuable to [X], and if it is healthy, worthwhile and advantageous to him, while setting him a good example in self-discipline, it can be said to be a meaningful relationship and thus of benefit to him.
In this case, the evidence of both parties is that [X] loves his father and enjoys the time he spends with him. That evidence is supported by that of the Family Consultant who prepared a Family Report in these proceedings.
There is also no doubt in my mind that Mr Mulgrave loves [X] dearly.
However, a father loving a child and a child returning that love, is not on its own enough to constitute a meaningful relationship.
Only if the relationship is significant, healthy, advantageous to the child and involves setting a good example is it a meaningful relationship within the meaning of s.60CC(2)(a).
The word “meaningful” does not incorporate any idea of the quantity of time spent between parent and child, and a meaningful relationship can exist and prosper in circumstances where the actual time spent between parent and child is somewhat restricted due to practical circumstances.
[X] has been exposed to Mr Mulgrave’s excessive drinking and to family violence committed by him. In those circumstances it might be said that his relationship with his father is not meaningful within the meaning of s.60CC(2)(a), as it could not be said to be healthy or advantageous to [X], nor a good example to him, to witness that behaviour.
Nevertheless I do take into consideration the fact that [X] derives considerable pleasure from his relationship with his father and that the Family Consultant observed a close and loving relationship between them.
I also take into account that there is no clear evidence of that relationship having been damaged by any incidents occurring after separation.

Section 60CC(2)(b) – the need to protect a child from harm

The question of whether [X] needs to be protected from actual physical or psychological harm as a result of neglect, abuse or family violence is more clear-cut.
While there is no suggestion in this case that [X] is neglected by either parent, I note that exposing a child to family violence is in itself an act of child abuse pursuant to s.4(1) of the Act.
Having found that Mr Mulgrave does have a problem with his alcohol consumption, and that he is prone to commit acts of family violence while alcohol-affected, there can be no doubt that [X] needs to be protected from that behaviour and I will make orders that do so as far as it is possible.

Section 60CC(3) - additional considerations

The additional considerations 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.
[X] is four-and-a-half years old. His views about how much time he should spend with his father are unknown and even if known, would have little weight because of his age.
(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);
It is clear that [X] and his mother have a close, loving and protective relationship. It is also clear that his relationship with his father is of similar quality, although it is not known whether [X] recalls the incident on 31 March 2013 or whether it has affected that relationship.
The Family Consultant Ms O (“Ms O”), from her observation of him, comments that [X] clearly enjoys his time with his father, that he was excited at the prospect of seeing him and that he was reluctant to leave him at the end of the interview session.
Ms O also notes that Mr Mulgrave appropriately encouraged [X] to return to his mother and was able to console him in that situation.
It is Ms Milne’s evidence that [X] also has a strong and close relationship with his maternal family, and in particular with his grandfather and aunts. While Mr Mulgrave believes that the maternal grandfather is a bit tough on [X], I am satisfied that [X]’s relationship with his “Poppy” is strong and beneficial to [X].
Nevertheless, it is and ought to be Mr Mulgrave who is [X]’s primary male role model.
(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.
Both Ms Milne and Mr Mulgrave have taken every possible opportunity to participate in making major long-term decisions in relation to [X]’s care.
However, Ms Milne’s decision to relocate with [X] and [Y] to her [D] property without Mr Mulgrave’s consent shows a certain disregard for Mr Mulgrave’s highly significant role in [X]’s life.
[X] has lived with his mother for his whole life. She has chosen to work part-time so that she can spend time with [X].
Mr Mulgrave has either lived with or spent time and communicated with [X] on a regular basis for almost all [X]’s life. His desire to continue to do so is reflected in his application before this court.
(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;
Both parents obviously support and maintain [X] while he is with them. There is no evidence before the court that either party is negligent in his or her obligation to provide for [X] in the financial sense.
The question of child support was not raised at trial although in his trial affidavit sworn 13 January 2014, Mr Mulgrave deposes that he pays $123 per week in child support which he deposits directly into

Ms Milne’s nominated account. Mr Mulgrave attaches to his affidavit a printout from his bank account which shows sums between $27 and $134 per week being transferred out of his account and marked “child maintenance”. I infer from that evidence that Mr Mulgrave has paid some child support for [X], at least since 3 July 2012.
In her affidavit sworn 22 August 2013 Ms Milne claims that

Mr Mulgrave has never paid the whole or the correct amount of child support.
On balance I find that Mr Mulgrave has paid child support for [X], although I cannot determine whether the amounts paid are correct pursuant to his child support assessment.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
[X] has been living in [D] since late 2012. He is currently enrolled in child care or kindergarten and is likely to begin school in 2015.
He is therefore separated from his father by distance of almost 400 kilometres. He lives in a house being purchased by his mother which provides him with security and stability in his accommodation.
If I were to make an order requiring [X] to live within 50 kilometres of the father’s residence, he would lose that security of accommodation as Ms Milne gave evidence that she cannot afford to purchase a property within those geographical parameters. She and her two sons would be forced back into the rental market which would place them in a much worse financial position than they enjoy at the moment.
In addition, [X] would be separated from his maternal grandfather and his maternal aunt, both of whom live in [D] and both of whom, on the evidence before the court, enjoy a close and significant relationship with him that involves regular and frequent contact.
If I make an order permitting Ms Milne to remain living in [D] with [X] then [X] will be separated from his father by almost 400 kilometres. That fact cannot help but have an impact on [X]’s relationship with Mr Mulgrave.
Nevertheless, [X] has spent regular and relatively frequent time with Mr Mulgrave since his move to [D] in late 2012 despite the distance between their homes. All indications, from both Mr Mulgrave and

Ms O, indicate that the relationship between [X] and his father has remained strong over that time.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
There is no doubt that the 400 kilometre distance between the homes of Ms Milne and Mr Mulgrave creates a practical difficulty for [X] in spending frequent time with Mr Mulgrave.
However the orders I propose to make provide for regular face-to-face time as well as frequent and regular telephone and/or Skype time to be spent. I note in this context Brown J’s comment in Mazorski v Albright that the concept of a meaningful relationship between parent and child is a qualitative one rather than a quantitative one.
It is also without doubt that the distance between the parties’ homes creates a fairly significant expense in that either the father or [X] will have to travel that distance in order to maintain their face-to-face relationship. The costs of that travel will have to be borne by each party.
However, the orders I propose to make provide for each party to incur that expense once per month, and in circumstances where Mr Mulgrave has managed to travel to [D] and Ms Milne has managed to travel to the Peninsula at reasonably frequent intervals, it cannot be said that the expense is prohibitive of [X] and Mr Mulgrave maintaining a meaningful relationship.
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
Ms Milne and Mr Mulgrave are both intelligent and educated people. Both are perfectly capable of providing for [X]’s material and intellectual needs.
It is in the area of meeting [X]’s emotional needs that I have some concerns about Mr Mulgrave’s capacity.
Ms O observes an appropriate, close and loving relationship between [X] and his father, and Mr Mulgrave’s ability to comfort [X] and get him to separate and return to his mother at the Family Report interview certainly shows a sensitivity to [X]’s emotional needs.
However, the findings I have made about Mr Mulgrave’s propensity to be aggressive and sometimes violent when he is affected by alcohol, and his categorical denial that he has any problem with alcohol in circumstances where it has cost him his relationship with Ms Milne, mean that I have some serious concerns about his level of insight into his own behaviour and therefore his capacity to prioritise [X]’s needs over his own.
In contrast, Ms Milne has shown a keen sensitivity to [X]’s need to feel safe and secure and a consistent capacity and willingness to protect [X] from his father’s aggression and violence.
Her decision to move [X]’s place of residence to a location which would make it impossible for him to maintain an everyday relationship with his father might be said to display a certain lack of insight into [X]’s emotional needs. However, the move could also be said to be part of the protective action taken by Ms Milne in the face of

Mr Mulgrave’s behaviour.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
[X] is a little boy. He needs the love and appropriate care of both his parents. There are no particular cultural issues to be taken into account in this case.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This consideration is not relevant in this case.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
Ms Milne has taken care of [X] all his life and obviously loves him dearly. When she has had to work she has ensured that he has been well cared for either by family members or Mr Mulgrave, or that he is in child care.
She has done all that she can to act protectively in relation to [X] and to provide him with a stable and secure home.
Mr Mulgrave clearly loves [X] very much and wants to be an integral part of his life. There is no evidence before the court that his current care of [X] when he spends time with him is anything other than appropriate.
However I note that court orders have prevented Mr Mulgrave from drinking alcohol when [X] is in his care since 7 August 2013. I will continue that restraint in the orders I propose to make.

Mr Mulgrave’s inability to see that his aggressive behaviour when intoxicated had a profound impact on [X], together with his persistent denial that he has a problem with alcohol at all, despite his admission to excessive consumption of alcohol leading to behaviour that caused [X] to be afraid, causes the court to be concerned about his attitude to parenthood. If he wants to have a meaningful relationship with his son he will need to address that problem.
I note that Ms O states in the Family Report that if the court finds that Mr Mulgrave has been threatening and/or intimidating in his behaviour, or that he struggles to moderate his alcohol intake, “he should consider the deleterious effects this can have on his relationship with [X], and as his most significant role model …. on [X]’s healthy emotional and social development”[4].
[4] Family Report paragraph 54.
Ms O suggests that Mr Mulgrave might benefit from therapeutic counselling in order to modify his behaviour should the court make those findings. While I do not propose to make orders about that I urge Mr Mulgrave to consider the benefits he might experience from such a course of action.
(j) any family violence involving the child or a member of the child's family;
I have already found that Mr Mulgrave has committed acts of family violence in [X]’s presence and that those acts have caused [X] to be afraid of him. The target of those mostly verbal and emotional attacks was [X]’s mother and Ms Milne has provided evidence of more than one occasion when [X] was not only present but in her arms when

Mr Mulgrave was screaming at her in a drunken rage.
Section 4(1) of the Act includes in the definition of “child abuse” causing a child to suffer serious psychological harm from being exposed to family violence.
Mr Mulgrave will no doubt be shocked to learn that his behaviour amounts to family violence under the Family Law Act. I think he is genuine in his belief that his behaviour does not amount to family violence but that he has merely engaged in arguments with Ms Milne that made him angry. That belief is misguided.
He will be even more shocked to learn that that behaviour constitutes child abuse under the Act. My impression of Mr Mulgrave is that the last thing he wishes to do is to subject [X] to child abuse. Nevertheless, that is what he has done at law.
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
I am not aware of any family violence order having been made in this case.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
The orders I propose to make will provide [X] with stability and security, and they will allow him to maintain regular and frequent contact, both face-to-face and electronic, with Mr Mulgrave.
(m) any other fact or circumstance that the court thinks is relevant.
I am aware that the orders I propose to make are contrary to the recommendations made by Ms O in the Family Report.
A Family Report is of course just one piece of evidence to be weighed against all the other evidence in the case. Family Reports are of great assistance to the court as they give a unique perspective on the members of the family and their interpersonal relationships.
In this case Ms O recommends that Ms Milne return, with [X], to live within 50 km of Mr Mulgrave’s home.
She bases that recommendation on her interview with Ms Milne and Mr Mulgrave and her observation of Mr Mulgrave with [X]. She does not mention having observed Ms Milne with [X] other than in the waiting room.
Ms O describes Ms Milne as “coherent, polite and engaging”, although elsewhere she is critical of her saying that she contradicted herself on a number of occasions during the interview and that she “appeared to lack conviction in her beliefs and considerations”.
Having seen Ms Milne at the bar table and in the witness box over the two days of trial I cannot say that she appeared to me to lack conviction in her beliefs and considerations. While she appeared emotionally vulnerable and was teary at times, she was absolutely clear in her conviction that [X]’s best interests would be served by remaining with her in [D].
Ms O’s report is again quite critical of Ms Milne in saying that she appears to “undervalue and/or lack insight as to the importance of [X]’s relationship with his father”[5].
[5] Ibid paragraph 55
The report states that if Ms Milne’s feelings toward Mr Mulgrave are not resolved then the impact on [X] will be negative and significant. That is obviously a concern for the court and Ms Milne must attempt to resolve those feelings for [X]’s sake. It is to be hoped that she might address that issue in the counselling sessions she has been attending of her own volition.
Ms Milne’s attitude as described by Ms O is at least partly explained by her experience of Mr Mulgrave’s aggressive behaviour when intoxicated. Indeed at trial Ms Milne said that she thought Mr Mulgrave was a loving but not capable father. Her only concern about [X] spending time with his father centred on Mr Mulgrave’s drinking and related aggressive behaviour.
Ms O’s observation of Mr Mulgrave in his interactions with [X] was that he was “patient and responsive to [X]” and that he “showed interest and was encouraging of his play and well-being”[6]. When the observation session was over [X] expressed some sadness and reluctance to leave his father, who managed this separation well, reminding him that they would see each other very soon and positively reinforcing that he had to go home with his mother.
[6] Ibid paragraph 50.
However, as I have already stated, Ms O was aware of the possibility that there might be a finding that Mr Mulgrave had been responsible for threatening and or intimidating behaviour and that he had a problem with alcohol and that that finding would be significant.
When I balance the contents of the Family Report against all the other evidence in this case I am satisfied that the orders I propose to make are in [X]’s best interests.

Conclusion

[X] is a little boy with the need for stability and security and the love of both of his parents.
The orders I propose to make will provide that stability and security and the fact that both his parents love him very dearly is a good start for a positive future.
Ms Milne impresses me as a strong but sometimes vulnerable woman who is determined to provide the best life possible for her children. She has accessed services to assist with her personal vulnerabilities and I am satisfied that she puts [X]’s needs ahead of her own.
Mr Mulgrave impresses me as a young man vulnerable to alcohol abuse. In every other aspect of his life he appears to be a responsible hard-working citizen. If he is able to address his denial about his excessive alcohol consumption and the aggressive behaviour that flows from it, he may well become the strong role model for [X] that he obviously aspires to be.

I certify that the preceding one hundred and sixty one (161) paragraphs are a true copy of the reasons for judgment of Judge Small

Date: 11 April 2014

[2014] FCCA 684

11 April 2014

Key Legal Topics

Areas of Law

Family Law

Negligence & Tort

Legal Concepts

Injunction

Duty of Care

Negligence