Naparus and Frankham (No.3)
[2019] FCCA 434
•28 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NAPARUS & FRANKHAM (No.3) | [2019] FCCA 434 |
| Catchwords: FAMILY LAW – Parenting – whether mother should be permitted to relocate interstate with child – allegations of family violence – whether father poses an unacceptable risk to the child – whether father’s time with child should be supervised – question of parental responsibility and with whom child should live. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA Evidence Act 1995 (Cth), s.140(1). |
| Cases cited: Beach & Stemmler (1979) FLC 90-629 Chapman & Palmer (1978) FLC 90-510; 34 FLR 405; 4 FamLR 462 Mazorski v Albright (2008) 37 Fam LR 518 McCall & Clark (2009) FLC 93-405 Morgan & Miles (2007) FLC 93-343 |
| Applicant: | MS NAPARUS |
| Respondent: | MR FRANKHAM |
| File Number: | MLC 1462 of 2016 |
| Judgment of: | Judge Mercuri |
| Hearing dates: | 22, 23, 24 and 25 October 2018 |
| Date of last submission: | 25 October 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 28 February 2019 |
REPRESENTATION
| Advocate for the applicant: | In person |
| Solicitors for the applicant: | None |
| Counsel for the respondent: | Mr E Taghdir |
| Solicitors for the respondent: | Nick Graham Legal |
| Counsel for the Independent Children’s Lawyer: | Ms A Glaister |
| Solicitors for the Independent Children’s Lawyer: | Hartleys Lawyers |
ORDERS
All previous parenting orders be discharged.
Subject to order (3), the parties have equal shared parental responsibility for the child [X] born … 2015 (“the child”).
If the mother resides outside of the state of Victoria, the father will have sole parental responsibility for the child in relation to medical and education decision and the parties otherwise continue to have equal shared parental responsibility.
For the purposes of order (3) herein, in relation to any proposed decision for the child, the father shall:
(a)advise the mother by MyMob or SMS of any proposed decision;
(b)seek the mother’s opinion;
(c)take the mother’s opinion into account in making the decision; and
(d)advise the mother of his decision by MyMob or SMS, as soon as practicable.
The mother is prohibited by injunction from relocating the child’s residence outside a radius of 50 kilometres from the centre of Town A in Victoria, save and except if the said relocation is within 50 kilometres of the father’s residence.
While the mother remains resident in Victoria:
(a)the child live with the mother; and
(b)the child spend time and communicate with the father as follows:
(i)commencing on 9 March 2019, on alternate weekends each Saturday and each Sunday from 10:00am until 4:00pm at the paternal grandmother’s home in Suburb B (without the need for the paternal grandmother to be in substantial attendance);
(ii)thereafter, commencing on 1 June 2019, on alternate weekends from 10:00am Saturday until 4:00pm Sunday at the paternal grandmother’s home in Suburb B;
(iii)thereafter, commencing on 7 September 2019, on alternate weekends from 5:00pm on Friday until 5:00pm on Sunday at the paternal grandmother’s home in Suburb B;
(iv)thereafter, commencing 7 December 2019 on alternate weekends from 5:00pm on Friday until 5:00pm on Sunday with every first such occasion to occur at the paternal grandmother’s home in Suburb B and every second such occasion to occur at the father’s home;
(v)thereafter, commencing 7 March 2020 and on an ongoing basis, on alternate weekends from 5:00pm on Friday until 5:00pm on Sunday;
(vi)by telephone, Skype or Facetime twice per week as agreed and failing agreement on Wednesday and Sunday between 5:00pm and 5:30pm;
(vii)upon the child commencing primary school and on an ongoing basis, the child spend time with the father on school holidays as follows:
A.in even numbered years, half of all school term holidays by agreement and in default of agreement the first half commencing from the conclusion of school until 12.00pm on the middle Saturday;
B.in odd numbered years, half of all school term holidays by agreement and in default of agreement the second half commencing from 12:00 noon on the middle Saturday until the last Sunday at 4:00pm; and
C.half of each long summer holidays, save for Christmas arrangements and as otherwise agreed in writing between the parents via MyMob or SMS, and in default of agreement the first half in even numbered years and the second half in odd numbered years with changeover to be at 4pm on the middle Saturday; and
(viii)otherwise as agreed in writing between the parties.
(c)on Father’s Day, if not already during the child’s weekend with the father, the child’s time with the mother shall be suspended from 6:00pm the preceding Saturday until Sunday 5:00pm;
(d)on Mother’s Day, if not already during the child’s weekend with the mother, the child’s time with the father shall be suspended from 6:00pm the preceding Saturday until Sunday 5:00pm; and
(e)for Christmas arrangements, unless otherwise agreed between the parents in writing via MyMob or SMS, they shall take place as follows:
(i)in 2019 and all odd numbered years thereafter, the child shall be in the care of the mother from 3:00pm on Christmas Eve until 3:00pm on Christmas Day and then in the care of the father from 3:00pm on Christmas Day until 3:00pm on Boxing Day; and
(ii)in 2020 and all even numbered years thereafter, the child be in the care of the father from 3:00pm on Christmas Eve until 3:00pm on Christmas Day and then in the care of the mother from 3:00pm on Christmas Day until 3:00pm on Boxing Day.
In the event the mother relocates to Perth:
(a)the child is to remain in Victoria and live with the father, with the first three months of such time to be spent at the paternal grandmother’s home in Suburb B; and
(b)the child is to spend time and communicate with the mother as follows:
(i)for a period of three months from the date the mother leaves Victoria, on each Saturday and Sunday from 10:00am until 4:00pm (such time to be spent no more than 100 kilometres away from the father’s residence);
(ii)thereafter, for a period of three months, each weekend from Saturday 10:00am to Sunday 4:00pm (such time to be spent no more than 100 kilometres away from the father’s residence);
(iii)thereafter each alternate weekend from Friday 5.00pm to Sunday 5:00pm (such time to occur in Victoria);
(iv)upon the commencement of alternate weekend time, by video conference (Skype, Facetime or similar) each Wednesday from 5:00pm to 5:30pm and each alternate Sunday from 5:00pm to 5:30pm;
(v)upon the child commencing school, for one half of all school holidays as agreed (conditional upon the first holiday period not occurring more than 100 kilometres away from the father’s residence); and
(vi)such other times as agreed in writing between the parties.
Each of the parents forthwith do all things and sign all documents necessary to register themselves and the child for the supervised changeover intake process at:
(a)Children’s Contact Services, Suburb C; and
(b)Children Contact Services, Town A (collectively “the supervised changeover services”).
Each of the parties be at liberty to provide a sealed copy of these orders to the supervised changeover services.
Unless otherwise agreed between the parents in writing via MyMob or SMS, changeover shall take place as follows:
(a)until 1 March 2020:
(i)if the child is living with the mother pursuant to order (6) changeover is to occur at the Town A contact service at the commencement of time and at Suburb C contact service at the conclusion of time; and
(ii)if the child is living with the father pursuant to order (7), at Suburb C contact service at both the commencement and conclusion of time; and
(b)thereafter:
(i)if the child is living with the mother pursuant to order (6) changeover is to occur at McDonald’s in Town D at the commencement of time and McDonald’s in Suburb B at the conclusion of time; and
(ii)if the child is living with the father pursuant to order (7) at McDonald’s in Town E at the commencement and conclusion of time.
The parent with whom the child is principally residing at the time shall authorise all schools and kindergartens or childcare facilities at which the child may attend to:
(a)provide the parent with whom the child is not principally residing at the non-resident parent’s expense, copies of all reports, notices and applications for photographs in relation to the child;
(b)communicate with the non-resident parent either by telephone, in writing or by personal attendance, in respect to the child’s progress; and
(c)allow the non-resident parent to attend all functions to which parents are normally invited.
The parent with whom the child is principally residing at the time shall authorise all medical practitioners, counsellors, psychologists, psychiatrists and allied health professionals at which the child may attend to:
(a)provide to the non-resident parent at the non-resident parent’s expense, copies of all medical certificates, reports or such other relevant documents in relation to the child; and
(b)communicate with the non-resident parent either by telephone, in writing or by personal attendance, in respect to the child’s progress.
The mother and father keep each other informed as soon as practicable in respect of:
(a)any serious illness or significant injury suffered by the child whilst in their care, including all details regarding the injury, illness, hospital location, medical practitioners and treatment required;
(b)any medical treatment obtained for the child whilst in their care; and
(c)any medication prescribed for and administered to the child in the 24 hours prior to any changeover and ensure that such medication is provided/administered to the child.
The mother and father continue treatment as recommended by their treating medical practitioners and they be permitted to provide a copy of the family report prepared by Dr F dated 10 September 2018 to their medical practitioners.
The parents attend and complete a post-separation parenting program approved by the Independent Children’s Lawyer for the purposes of enhancing their understanding of the benefit to the child in maintaining an ongoing relationship with both parents post-separation and with a view to improving communication between the parents and provide proof of completion to the other parent and the Independent Children’s Lawyer.
The mother engage and attend upon a counsellor to assist her to support a relationship between the child and the father.
The mother provide a copy of these orders and the family report prepared by Dr F dated 10 September 2018 to her counsellor and follow all recommendations of that counsellor.
The father forthwith attend and complete a men’s behaviour change program as nominated by the Independent Children’s Lawyer and provide proof of completion to the mother and the Independent Children’s Lawyer.
The parents shall provide each other with no less than 7 days prior written notice and particulars of any change of residential address and contact telephone number.
The parents shall download the smart mobile telephone application ‘MyMob: Connecting Families’ and register themselves and connect with each other using the program/application for the purpose of:
(a)communicating or discussing time arrangements in these orders;
(b)communicating or discussing any medical information or treatment concerning the child; and
(c)consulting each other for any matters relating to the child’s care, welfare and development.
Save for an emergency where the parents may call each other, each of the parents shall communicate with each other as follows:
(a)through MyMob in the first instance; and
(b)in the event that there is no response by the other parent using MyMob within 2 hours, they be at liberty to SMS each other;
and each parent shall ensure that the content of all their messages and communication are succinct and focused on the care, welfare and development of the child or matters relating to time arrangements.
In circumstances where the parties are unable to agree on any major long term decision in regards to the child as per the obligations of equal shared parental responsibility then the parties shall attend mediation and make all efforts to resolve that issue at mediation.
For the purposes of order (22), the mother is to provide three mediation centre options to the father including location, date and time and the father is to pick one.
The mother, father and their servants and agents are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other parent or their family members in the presence or hearing of the child;
(b)involving or exposing the child to any discussion which involves a dispute between either parent;
(c)discussing these proceedings or any related documents with or in the presence of the child and from permitting any other person to do so;
(d)physically disciplining the child or allowing any other person to do so;
(e)allowing the child to be exposed to any conflict between the family members of each parent, including at changeover; and
(f)allowing the child to be in the presence or hearing of any other person doing what is prohibited by the restraints in this order.
The father is restrained by injunction from allowing the child to come into contact with his foster brother Mr G, unless:
(a)the father is personally supervising the child and is present at all times; or
(b)if the father is not available to supervise the child for a period of no more than 30 minutes, Ms H or Ms J are to undertake such supervision.
The father is restrained by injunction from allowing Mr G to reside in the same household as the child.
The mother forthwith provide any Australian passport in the name of the child to the father.
Upon compliance with orders (15) and (18) above, the Independent Children’s Lawyer be discharged.
Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
AND THE COURT NOTES THAT:
(A)Prior to the commencement of overnight time, the father will ensure that sufficient arrangements are made for the child to sleep in the paternal grandmother’s home including a separate room and bed.
(B)Any reference to the word ‘school’ in these orders includes primary/secondary school, kindergarten, preschool, childcare and day care.
(C)Pursuant to section 62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.
(D)Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.
IT IS NOTED that publication of this judgment under the pseudonym Naparus & Frankham (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 1462 of 2016
| MS NAPARUS |
Applicant
And
| MR FRANKHAM |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for parenting orders in respect of the child [X] born … 2015 (“[X]”).
For the reasons set out below, I find that it is in [X]’s best interests for:
a)the parents to retain equal shared parental responsibility for [X] whilst they both reside in Victoria;
b)[X] to remain living in Victoria, in the first instance with her mother for such time as she remains living in Victoria and then, upon the mother relocating to Perth, for [X] to live with her father; and
c)for her to spend regular and frequent time with the non resident parent.
Background
Prior to moving to Victoria in 2013, the mother lived in Perth, having originally migrated to Australia from Country 1. The mother and the child currently live in Town A.
The father has at all times resided in Town K, Victoria some 380 kilometres from Town A.
The parties met online in about 2009.
It is common ground that in or about February 2013, there was an altercation between the mother and the maternal grandmother. The police were called to the maternal grandmother’s home and the subpoenaed police notes in respect of that incident relevantly state:
The altercation started as a result of the victim not giving the person of interest money for smokes.[1]
[1] Transcript page 24 at lines 44 to 45, Exhibit C.
The mother denied that this was the cause of the altercation but acknowledged the existence of those comments in the police report. Moreover, the mother denied that during this altercation she hit her mother[2] but conceded that there was an “altercation” or “scuffle”.[3]
[2] Transcript page 25 at line 23.
[3] Transcript page 27 at lines 12 and 15.
It is common ground that following this incident, a temporary restraining order was issued for a short period against the mother.[4] When the temporary restraining order expired, the matter was not pursued any further.
[4] Transcript page 72 at lines 10 to 16, Exhibit C.
The father’s evidence is that following this incident, the mother contacted him and told him of her situation and that she could no longer live with her mother. I accept that evidence which is consistent with the following notation from the Western Australia Police Incident Report Running Sheet:
TPC received from (maternal grandmother). She advised that she doesn’t want (mother) to return to the house. Said she has been paying most things in the house and (mother) does not work…
PTC made to (mother). She advised that she does not intend to go back to her mother’s house and will be seeking alternative accommodation… She advised that (maternal grandmother) is on lots of medication and is mentally ill.[5]
[5] Exhibit C.
The mother moved to Town K with the father in or about 2013.
[X] was born in … 2015.
The mother’s evidence is that the father engaged in family violence throughout the relationship. The father acknowledges that the parties’ relationship was volatile and that they had arguments in which they both raised their voices and used inappropriate language towards the other. He otherwise denies the allegations of family violence.
In October 2015, there was an incident between the parties which resulted in the police being called and the mother leaving the family home with [X] and moving into crisis accommodation in Town E. The facts surrounding this incident are set out in more detail below.
The parties participated in mediation in December 2015 and agreed to a parenting plan which provided for [X] to spend time with the father each alternate weekend at the mother’s home and one day during the other week which could be spent away from the mother’s home (“the parenting plan”).
The parenting plan also provided that the father would not allow the child to come into contact with his foster brother, Mr G although the father did not concede any need for this requirement. The parties also agreed to undertake counselling and/or other programs as recommended by the counsellor to assist with separation and parenting issues.
It was further agreed that the parties would review the parenting plan through family dispute resolution in June 2016.
In the meantime however, the mother was advised that she had been allocated housing in Town A which she accepted, moving in January 2016.
The father initiated proceedings in this court in February 2016 (“the initial proceedings”) and on 6 September 2016, final orders were made by consent providing for [X] to remain living in Town A with the mother and spend time with the father every four weeks on a Saturday and Sunday. These orders also provided for Skype communication between the father and [X] and included a restraint on the mother from moving away from Town A and on the father from bringing [X] into contact with Mr G.
In January 2017, the father commenced spending substantial time in Town A. The mother deposes that the parties reconciled. The father says he moved to Town A to be closer to [X] in response to a demand from the mother that if he did not move closer to her, she would relocate to Perth.
The parties separated on a final basis in June 2017.
On 26 July 2017, the mother obtained an intervention order against the father which suspended the final orders for a period of 21 days.[6]
[6] Annexure N-3 of the affidavit of the mother filed 29 November 2017.
On 29 November 2017, the mother filed an initiating application in this court (“the current proceedings”) seeking the discharge of all previous parenting orders and that orders be made that she have sole parental responsibility, [X] live with her and spend supervised time only with the father. In this application, the mother also sought orders permitting her to change [X]’s surname to Frankham-Naparus, that the parties obtain a passport for [X] and the mother be permitted to travel subject to giving the requisite notice to the father.
On 25 January 2018, the father filed a response in which he sought to discharge the final orders made on 6 September 2016 and orders for the parties to have equal shared parental responsibility, [X] live with the father and spend supervised time with the mother.
On 29 January 2018, the mother filed an amended initiating application in which she sought a further order that she be permitted to relocate to Perth with [X] and in the event that she was not permitted to relocate, that she be permitted to travel with [X] either interstate or overseas upon providing the father with the requisite notice and particulars of her proposed travel.
Proposals of the parties
At trial, the mother’s proposal was as follows:
a)she have sole parental responsibility for [X];
b)[X] live with her;
c)she be permitted to relocate to Perth with [X];
d)[X]’s name be changed to [X] Frankham-Naparus;
e)the father sign all documents that may be required to enable a passport to be obtained for [X] and the mother have possession of the passport;
f)the father complete a men’s behaviour change program and engage in counselling, with progress reports to be provided to the mother;
g)the mother engage in counselling;
h)the parents both engage in mediation within 6 months with a view to re-establishing a connection between the father and [X];
i)communication between the father and [X] occur through Skype three times per week initially, then move to supervised time at a contact centre in Western Australia and progress to unsupervised overnight time when deemed appropriate by the mother;
j)the mother contribute towards expenses for the father’s travel to Western Australia;
k)the child to spend half of all school holidays in Victoria at the mother’s discretion;
l)orders relating to family violence, denigration and social media; and
m)restrictions on father’s extended family having contact with [X].
Conversely, the father’s proposal was as follows:[7]
[7] Exhibit V.
a)all previous parenting orders remain in full force and effect;
b)the father have sole parental responsibility for [X];
c)[X] live with the father;
d)the father and [X] live with Ms H for the first three months and Ms H be in substantial attendance during this period;
e)[X] spend time and communicate with the mother as follows:
i)for the first three months, each Saturday and Sunday for a period of 6 hours supervised;
ii)for the second three months, from 10:00am on Saturday until 4:00pm on Sunday;
iii)thereafter, each alternate weekend from Friday until Sunday and by video conference each Wednesday from 5:00pm until 5:30pm; and
iv)on Christmas Day for a period of four hours;
f)other provisions relating to Mother’s Day and Father’s Day, school holiday time and changeover; and
g)in the event that the mother relocates outside of Victoria or a distance more than 50 kilometres from the father’s residence, her time be suspended immediately.
By the conclusion of the trial, the Independent Children’s Lawyer (“ICL”) submitted a proposed minute of orders, which varied from those sought in their outline of case document as follows:[8]
[8] Exhibit U.
a)in the event the mother moves interstate:
i)[X] remain in Victoria and live with the father;
ii)the parties have equal shared parental responsibility for [X], save that if the mother resides outside of Victoria, the father be required to consult with the mother regarding long-term decisions for the child, and in the absence of agreement, the father make those decisions solely;
iii)[X] spend time and communicate with the mother as follows:
(1)for the first three months, once per month for a period of two hours on two days at times to be agreed between the parties and in default of agreement, from 10:00am until 1:00pm on both Saturday and Sunday on the second weekend of each month, such time to be supervised either professionally or by a member of the paternal family;
(2)thereafter from after school or 3:30pm on Thursday until 5:00pm on Sunday once a month;
(3)upon [X] commencing school, for one half of all school holidays as agreed (conditional upon the first holiday period not occurring more than 100 kilometres away from the father’s residence);
(4)by telephone or Skype twice per week; and
(5)on the Mother’s Day weekend from 10:00am on Saturday until 5:00pm on Sunday with the necessary suspension of the father’s time during that period; and
iv)other provisions relating to changeover at McDonald’s, both parties’ completion of a parenting after separation course, and both parents continuing treatment as recommended by their treating practitioners; and
b)in the event the mother remains in Victoria:
i)[X] live with the mother;
ii)the mother be restrained from changing [X]’s residence without the father’s prior written consent;
iii)[X] spend time and communicate with the father as follows:
(1)from Thursday to Sunday once per month;
(2)upon [X] commencing school, for one half of all school holidays or as agreed;
(3)by telephone or Skype twice per week;
(4)on the Father’s Day weekend from 10:00am on Saturday until 5:00pm on Sunday with the necessary suspension of the mother’s time during that period; and
(5)otherwise by agreement.
In final submissions, counsel for the ICL indicated that the alternate proposal outlined at paragraph 27(b) above was proposed as an interim measure for a period of 6 months to give the mother an opportunity to demonstrate her capacity to comply with court orders. Counsel submitted however, that the alternate proposal was made with “trepidation” in circumstances where she had formed the view that further litigation would likely ensue given the mother’s historical failure to comply with previous court orders.[9]
[9] Transcript page 272 at lines 32 to 38.
Evidence
The mother represented herself in these proceedings. She relied upon all of her affidavits filed in these proceedings, namely:
a)affidavit of the mother sworn 28 and filed 29 November 2017;
b)affidavit of the mother sworn and filed 29 January 2018;
c)affidavit of the mother sworn and filed 21 March 2018;
d)affidavit of the mother sworn 28 and filed 29 May 2018; and
e)affidavit of the mother sworn and filed 20 June 2018.
The mother gave evidence and was subject to lengthy cross examination by both counsel for the father and counsel for the ICL. The mother also relied upon evidence given by Sargent Ms L whom she subpoenaed to give evidence.
The father relied upon the following affidavits:
a)affidavit of the father sworn 22 and filed 25 January 2018;
b)affidavit of the father sworn and filed 16 March 2018;
c)affidavit of the father sworn 28 and filed 29 June 2018;
d)affidavit of the father filed 12 and filed 15 October 2018;
e)affidavit of Ms J sworn 12 and filed 15 October 2018;
f)affidavit of Ms H sworn 12 and filed 15 October 2018; and
g)affidavit of Mr M sworn 14 and filed 15 October 2018.
The father also gave evidence and was subjected to lengthy cross examination by the mother and counsel for the ICL. The mother did not require Mr M for cross examination and his affidavit evidence was admitted without challenge. The mother did cross examine Ms J and Ms H.
The ICL relied upon the following documents:
a)family report prepared by Dr F dated 10 September 2018;
b)section 11F child inclusive memorandum prepared by Ms S dated 26 April 2018; and
c)subpoenaed material produced by:
i)Victoria Police;
ii)Region 2 Primary Health;
iii)Town O Medical Centre;
iv)…Clinic; and
v)Western Australia Police.
General observations of witnesses
Before turning to an analysis of the issues raised in this proceeding, I make the following general observations about the witnesses and the evidence they each gave in these proceedings.
It is clear that both parents dearly love [X] and both, although somewhat reluctantly in the case of the mother, concede that [X] will benefit from having a relationship with each of her parents.
Having said that, the mother was unable to say anything positive about the father or his role in [X]’s life. Her proposal to move to Perth was premised upon her belief that the father plays a minimal role in [X]’s life and that their relationship, such as it is, could be adequately maintained by infrequent supervised visits and Skype or Facetime communication.
The mother’s inability to acknowledge that there was any real bond between [X] and the father, and her reluctant concession that [X] would benefit from maintaining a relationship with her father, also did not reflect well on her ability to support that relationship going forward.
The mother maintained throughout the proceedings that her key concern was [X]’s safety and that her decisions throughout these proceedings were solely motivated by that concern. Whilst she was critical of the father for his failure to acknowledge his conduct, she demonstrated a lack of insight into her own behaviour and the fact that she herself engaged in conduct which constitutes family violence including in the presence of [X].
For his part, the father gave evidence in an open manner. He acknowledged that he does struggle with anger at times and has sought assistance to deal with that. To his credit, he was also prepared to acknowledge that, aside from not encouraging [X]’s relationship with him, the mother did a good job as a parent and provided for [X]’s needs.
I found Ms J to be forthright in her evidence and, to her credit, made appropriate concessions even when the concessions did not reflect well on her conduct.
Ms H impressed me as a fair and honest witness who has done what she can to support the mother and father in navigating their post-separation dealings to facilitate a positive relationship between [X] and her father. Ms H did not seek to overstate her evidence and it was clear that she took no pleasure in making comments adverse to the mother.
Where there is a conflict between the evidence of the mother and the father or the mother and either of the paternal grandmothers, I prefer the evidence of the father and the paternal grandmothers respectively.
The father’s family
Given the allegations against the father’s family, it is useful to say something about the father’s family at the outset.
The father’s biological mother is Ms H. Ms J however, was given guardianship for the father and raised him although he maintained contact with Ms H.
Ms J
Ms J is a foster carer. She has had various foster children in her care over the years. At present, this also includes another child, [Y], who also has an intellectual disability.
The mother raised concerns about Ms J’s capacity to provide appropriate supervision and support to the father when [X] is in his care. In essence, the mother was critical of Ms J’s capacity in this context having regard to the following:
a)the father was abused as a child by Ms J’s then partner;
b)when he was 16 years of age, the father and another teenager in Ms J’s care at the time, had sexual relations which resulted in the birth of a child, subsequently raised by Ms J; and
c)Ms J’s biological daughter, Ms P and Mr G have also had sexual relations with each other, also whilst living with Ms J.
The father’s evidence in relation to these matters was as follows:
a)
he confirmed that he had been sexually abused as a child by
Ms J’s then partner. It is clear from the father’s evidence that whilst this was traumatic, he considers it “unfair” to lay blame at the feet of Ms J[10];
[10] Transcript page 202 at lines 37 to 38.
b)he also confirmed that he did have a sexual relationship with a girl who was placed in Ms J’s care at the time and who he refers to as his foster sister, and this relationship resulted in the birth of a child, who was then raised by Ms J but who is his son. He went on to say however, that:
i)
he and the girl had known each other before she went into
Ms J’s care and had been “boyfriend/girlfriend” prior to Ms J becoming her foster carer;
ii)he was not living with Ms J at the time;
iii)he did not tell Ms J of his relationship with the girl when she went into Ms J’s care; and
iv)they were both 16 years old at the time, “hormones running wild … and we couldn’t just turn them off…”. He said that he would make very different choices now;[11] and
c)he conceded that Ms J’s biological daughter, Ms P had sexual relations with Ms G but said that he had not seen Ms D since Christmas 2015:
I don’t see her any more. I personally… no longer want to have anything to do with her and she has not been around to my mother’s house in approximately the same time. So that wouldn’t be a concern whatsoever.[12]
[11] Transcript page 201 at lines 10 to 47.
[12] Transcript page 200 at lines 22 to 26.
Ms J also gave evidence, which I accept, that as a foster carer she is subject to regular training, reviews, monthly visits and supervision from the relevant government department which administers the foster care system in Victoria.
It is common ground that the relationship between the mother and
Ms J is, at best, strained. The mother put to Ms J an exchange on Ms J’s Facebook page in which she made very disparaging comments about the mother and in which she also identified [X] by name.[13] Ms J conceded that this was her post, that it identified both the mother and [X] and was inappropriate. Ms J stated that she believed at the time that it was a private communication between herself and a friend.[14] Ms J went on to say:
… I’m sorry that I said the things I did. I apologise… It was inappropriate.[15]
[13] Exhibit T.
[14] Transcript page 241 at lines 3 to 5.
[15] Transcript page 241 at lines 13 to 15.
The mother claimed that Ms J’s comments on Facebook was evidence of a breach of section 121 of the Family Law Act 1975 (Cth) either by her or by the father. She also seemed to suggest that the father had discussed these proceedings with Ms J in breach of section 121. The father’s evidence, which I accept, is that he did not discuss the proceedings per se with Ms J, however he did discuss what was happening from time to time.[16]
[16] Transcript page 222 at lines 12 to 24.
Ms J ought to be rightly criticised for the intemperate comments she made on Facebook. To her credit, she did not seek to excuse her comments and acknowledged that they were entirely inappropriate. She went on to say:
I’m hoping that (the mother) will accept my apology and my hand of a cordial relationship… which I have… wanted because she’s my granddaughter’s mother. Why wouldn’t I want that? And given that, I’ve said that I’m more than happy for her and myself to have a discussion, if you like, or however she would like to deal with it, if it was in her capacity and mine to resolve issues that we have personally so that we can then move (the father) and (the mother) into having a better contact and relationship in the meantime I think there would need to be handovers at official places for the time being, for the beginning, I think.[17]
[17] Transcript page 252 at lines 9 to 16.
This comment reflects a level of insight by Ms J about the current state of her relationship with the mother and what might be required to repair that relationship. I accept Ms J’s evidence that she would do whatever is necessary on her part to repair that relationship for the benefit of the child.
Ms H
Ms H gave evidence in these proceedings, which I accept, that she and the mother had a positive relationship until about January 2018. Ms H stated that she noticed a change in that relationship after the mother saw her at court at the first return date on 31 January 2018 supporting the father.
Mr G
Mr G is the father’s foster brother. It is common ground that during the parties’ cohabitation, Mr G lived with them. Mr G has an intellectual disability which the father concedes makes his behaviour at times challenging. It is fair to say that some of the tension between the mother and father during their relationship related to Mr G’s presence in the family home. The father’s evidence, which I accept, is that the mother did not want Mr G to continue living in their home once [X] was born. The mother’s evidence was that Mr G was not hygienic, regularly watched pornography and that this was not an appropriate environment in which to raise a child.
The father stated that although Mr G is 29 years of age, his intellectual age is closer to a 15 year old. This, the father acknowledged, made the family dynamic difficult at times. However, the father denied that Mr G behaved in a sexually inappropriate manner or that [X] would be at risk in his presence.
The father’s evidence, which I accept, was that as at the date of the trial, Mr G no longer lived with him but had moved to Ms J’s home.
The father is in the process of becoming accredited as a carer by the Department of Health and Human Services to provide respite care for [Y] and Mr G in the event that Ms J is unable to provide care for them.
Any orders of this court will need to take into account that at some point, if [X] spends time with or lives with the father, she will, from time to time, and subject to any orders of this court, come into contact with both [Y] and Mr G.
The father’s evidence is that as [X]’s parent, he would ensure that she was supervised at all such times.
The mother’s view was that any contact between [X] and Mr G poses an unacceptable risk to [X] and any orders ought to preclude such contact. She maintains that the father would not, or could not, act protectively if [X] was in his care with respect to Mr G or [Y]. She variously suggested either that he was seeking to mislead the court as to his intention or ability to protect [X] in those circumstances, or that he simply could not guarantee that he would be able to adequately supervise her if she was allowed to be in his care at times when [Y] and Mr G were also present.
Standard of proof
Section 140(1) of the Evidence Act 1995 (Cth) provides that a court must find the case of a party proved “on the balance of probabilities”. Subsection (2) further provides that without limiting the matters which a court may take into account in deciding whether it is so satisfied, it is to take into account:
a)the nature of the cause of action or defence; and
b)the nature of the subject matter of the proceedings; and
c)the gravity of the matters alleged.[18]
[18] Evidence Act 1995 (Cth), s.140(2).
I have applied these provisions in reaching my findings in this matter. In particular, in considering the risk factors raised by the mother, I have had regard to the gravity of the matters alleged, particularly in relation to the allegations made by the mother against the father of family violence perpetrated against her during and after the relationship and the context and nature of the proceedings themselves.
Mental health issues
Both parents suffer from mental health conditions. The mother has alleged that the father has either been incorrectly diagnosed or is not being adequately treated. She makes this assertion on the basis that the psychiatric report prepared by Dr Q states that the father does not suffer from Bipolar Disorder and questioned whether he suffers from Attention Deficit Disorder.
Irrespective of the formal diagnosis, Dr Q concluded that the father’s “mental health currently appeared fairly stable. He is aware of his mental health issues, and generally compliant with treatment.”[19] Moreover, Dr Q said that she did “not have concerns for [X] to be in his custody or unsupervised care”.[20] I accept Dr Q’s assessment.
[19] Exhibit A.
[20] Exhibit A.
The father has raised concerns about the mother’s use of prescription drugs. The mother has been diagnosed with ADD and is prescribed dexamphetamine for that condition.
In the course of cross examination by counsel for the ICL, it was put to the mother that in early 2012, she had been reported for alleged misuse and diversion of dexamphetamine tablets and consequently the ability to prescribe that drug for her was withdrawn. The mother agreed that that was the case, but went on to say “that was a misunderstanding”.[21]
[21] Transcript page 71 at line 22, Exhibit H.
In response, the mother said that Exhibit H makes it clear that her previous treating psychiatrist had not made the application for withdrawal notification. The mother said:
… this doctor that I explained the situation to, he wouldn’t have made this application if he didn’t (think) that it was safe to do so or that if I was abusing the medication, as was indicated…[22]
[22] Transcript page 105 at lines 20 to 25.
Irrespective of any concerns about the mother’s use of dexamphetamine in the past, I am satisfied on the basis of the evidence before me that the mother is currently compliant with the medication that she has been prescribed.
I find on the basis of the totality of the evidence that both parents suffer from mental health conditions and both appear to be engaged in the management of those issues. I am not satisfied that the mental health of either the mother or the father precludes them from parenting [X] or otherwise limits their ability to do so.
Family violence
Family violence is defined in section 4AB of the Family Law Act 1975 (Cth) (“the Act”) as follows:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.
Section 4AB(2) goes on to relevantly provide:
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a)an assault; or
…
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
…
(3)For the purposes of this Act, a child is exposed to family
violence if the child sees or hears family violence or otherwise experiences the effects of family violence.(4)…
The mother’s evidence is that the father was prone to violence during their relationship which continued post-separation.
In particular, the mother alleges that:
a)in approximately 2014, the father was yelling at her and punched a hole in the wall, followed her into the bedroom and then punched a hole in the door which she had closed behind her. The mother alleged that the father “punched holes in wall on numerous other occasions as well”[23] (“hole in the wall incidents”);
[23] Paragraph 9 of the affidavit of the mother filed 29 November 2017.
b)at the end of 2014, the father was yelling at the mother and kicked the kitchen sliding door off its hinges flinging the door into the backyard[24] (“sliding door incident”);
[24] Paragraph 10 of the affidavit of the mother filed 29 November 2017.
c)in 2015, the father:
i)on one occasion, allegedly picked up a knife and threatened to harm himself and blame the mother; and
ii)on another occasion, threatened to kill the mother’s dog[25] (“2015 incidents”);
d)some three weeks prior to final separation, the father allegedly grabbed the mother by the neck and pushed her backwards onto the bed and pinned her down, screaming at her resulting in bruising to her arms[26] (“pinned down incident”);
e)on 12 October 2015 during an argument, the father threatened to leave the family home with [X]. The mother called the police who attended and this resulted in an intervention order being obtained naming the mother and the child as protected persons[27] (“October 2015 incident”);
f)on 23 October 2016, the father told the mother to “fuck off” in the presence of [X][28] (“October 2016 incident”);
g)on 14 December 2016, the father accused the mother of making pornographic videos and being a bad influence on the child[29] (“December 2016 incident”); and
h)between February and June 2017, there were various occasions on which the father became angry and yelled at the mother at times in the presence of [X][30] (“2017 incidents”).
[25] Paragraph 11 of the affidavit of the mother filed 29 November 2017.
[26] Paragraph 12 of the affidavit of the mother filed 29 November 2017.
[27] Paragraph 10 of the affidavit of the mother filed 29 November 2017.
[28] Paragraph 22 of the affidavit of the mother filed 29 November 2017.
[29] Paragraph 23 of the affidavit of the mother filed 29 November 2017.
[30] Paragraphs 25 to 29 of the affidavit of the mother filed 29 November 2017.
In addition to allegations that some of the father’s violence directed at the mother occurred in the presence of [X], the mother also alleges that in or about February or March 2017, [X] wandered into the father’s study and the father yelled at her to “get out of here” and yelled at the mother to “control her”.[31] The mother also alleges that the father pushed [X] out of the room and raised his hand. The mother alleges that she was scared for [X]’s welfare and picked her up and left the room (“study incident”).[32]
[31] Paragraph 26 of the affidavit of the mother filed 29 November 2017 and paragraph 5(ee) of the affidavit of the mother filed 21 March 2018.
[32] Paragraph 26 of the affidavit of the mother filed 29 November 2017 and paragraph 5(ee) of the affidavit of the mother filed 21 March 2018.
The mother further alleged that the father used the time spent with [X] pursuant to the orders of this court, as a means by which to continue to engage in family violence towards her. For example, she alleges that on 19 May 2018, the father texted the mother about changeover shortly after the paternal grandmother had also called her about changeover. The mother reported this incident to the Town R police station (“changeover incident”).
The father denies these various incidents and claims that the mother’s allegations of violence by him are simply a ploy to destroy his relationship with his daughter. The father counter alleges that the mother often abused him verbally.
Hole in the wall incidents
In his affidavit material, the father denies punching holes in the door or walls as alleged. He further stated that he is “house proud” and produced a letter from his real estate agent to support this claim.[33]
[33]The mother subpoenaed Sergeant Ms L from Town K police station. He gave evidence about the October 2015 incident when he attended at the family home in response to a call from the mother. In summary, his evidence was that on that night, the mother had indicated that the father had previously been physically aggressive towards her and pointed to some damage caused to the kitchen cupboard door and a door in the hallway. It was further put to Sergeant Ms L that he then viewed that damage at the mother’s request and discussed it with the father who conceded that he had caused it.[34] The mother points to this as evidence that the father has lied in these proceedings.
[34] Transcript page 110, Exhibits I and J.
Sergeant Ms L’s evidence in relation to this was as follows:
… from what I recall… when I asked him about the punching of the walls, he admitted to the punching of the wall.
…
… from what I saw and what I remember at the time was consistent with someone having punched the walls, and I distinctly asked him whether it was true that he had punched the walls and he said yes. He told me that he had.[35]
[35] Transcript page 115 at lines 11 to 34.
In response, the father provided the following further evidence in relation to this matter in light of the evidence given by Sergeant Ms L:
I never said that I punched it. It wasn’t a door, either. It was a cupboard… Yes, I had put a hole in it. I had not punched it; I had not kicked it…[36]
[36] Transcript page 120 at lines 44 to 46.
The father said that this incident occurred in the context of an argument between the parties about the father cutting off contact with his foster brother where the mother threatened to leave with [X] to go back to Perth or possibly even return to Country 1.[37] The father then said:
At this stage I became extremely upset, extremely emotional, yes, and as I had the cupboard open, I slammed it shut. It was above her head height and I had slammed it shut… When I’ve shut it closed, the palm of my hand had gone through and indented into the cupboard door. So yes, I did put a hole in it. I did not punch it. I slammed it closed. Unfortunately, yes, a hole did go into it. I do regret that that happened, but that is what had happened on that occasion…[38]
[37] Transcript page 120 to 121.
[38] Transcript page 121 at lines 8 to 14.
I find that there was at least one occasion where the father, in the course of an argument, pushed or slammed a door causing damage to the house.
Sliding door incident
The mother’s evidence in relation to this allegation is set out at paragraph 10 of her affidavit filed 29 November 2017. The father denies this allegation.
There is no other evidence which addresses this issue.
The mother has not established that this incident occurred to the requisite standard of proof.
2015 incidents
As stated above, the mother alleges that the father on one occasion, picked up a knife and threatened to harm himself and blame the mother and on another occasion, threatened to kill the mother’s dog. Beyond saying that these incidents occurred in 2015, the mother does not further particularise either of these allegations.
In his responding material, the father denies that he threatened to harm himself with a knife “or anything else” or that he harmed her dog.[39] The father went on to say, ‘I would never hurt an animal at any time ever”.[40] He alleged that the mother’s treatment of her dogs was an issue between them and that he in fact now has the care of one of her dogs. Again, there is no other evidence in relation to these allegations.
[39] Paragraph 18(d) of the affidavit of the father filed 25 January 2018.
[40] Paragraph 18(d) of the affidavit of the father filed 25 January 2018.
The mother has not established that these incidents occurred to the requisite standard of proof.
Pinned down incident
The mother’s evidence is that about three weeks prior to final separation, the father became angry with her about the cost of having her car serviced. She says that he then grabbed her by the neck and pushed her onto the bed and pinned her down with his body weight so she couldn’t move and that he was screaming at her.[41]
[41] Paragraph 12 of the affidavit of the mother filed 29 November 2017.
The father denies that this ever occurred. He concedes that the parties did have discussions about power bills which were high because the mother left the heaters on. He denies ever touching the mother during these discussions but said that he would walk away. He also alleges that the mother would become verbally abusive towards him.[42] The father alleges that the mother has fabricated allegations against him and continues to do so.
[42] Paragraph 18(e) of the affidavit of the father filed 25 January 2018.
In his affidavit filed 25 January 2018, the father makes reference to the intervention order proceedings initiated by the mother or on her behalf, against him. He has annexed to his affidavit a document entitled ‘Further and better particulars of the complainant’s complaint and summons for an intervention order’ filed by the mother on 29 August 2017.[43] In that document, the mother makes the following statement under the heading ‘History of family violence’:
On 12 October 2015, I was living in Town K with the Respondent. [X] was approximately 6 months old.
I told the Respondent that I did not want to be in the relationship anymore and that I was leaving. The Respondent grabbed me by the neck and pushed me backwards onto our bed. He then put his weight on me and held my arms down, pinning me to the bed so I could not move (emphasis added).[44]
[43] Annexure SJF-03 of the affidavit of the father filed 25 January 2018.
[44] Annexure SJF-03 of the affidavit of the father filed 25 January 2018.
I note that this is not consistent with the evidence of Sergeant Ms L who indicated that when he attended at the family home on 12 October 2015, although the parties were clearly angry, the dispute had been verbal in nature and he did not observe any physical violence. Nor is this consistent with the mother’s evidence that this incident occurred some three weeks prior to the parties’ final separation.
The Application and Summons for an Intervention Order filed by Victoria Police on the mother’s behalf dated 16 October 2015, contains the following allegations:
Approximately 3 weeks ago, the resp became angry with the AFM because of the expense he incurred at servicing her vehicle, the resp pushed the AFM onto the bed; and when the AFM tried to stand up, he pushed her back down again, screaming abuse at her and holding her down by the arms so that she could not move. The AFM received bruises to her arms as a result of this incident.[45]
[45] Annexure F-03 of the affidavit of the father filed 25 January 2018.
The father alleges that the mother told him that she needed to get an intervention order in order to qualify for housing for herself and [X]. He says that whilst the events in the application did not happen, he was concerned for [X]’s wellbeing if the mother was not able to find appropriate housing and that is why he consented to the order without admission.[46]
[46] Paragraph 15 of the affidavit of the father filed 22 January 2018, also see annexure F-05 of the affidavit of the father filed 25 January 2018.
As stated throughout these reasons, I find that the parties engaged in heated arguments during their relationship.
However, having regard to the totality of the evidence before me and my concerns about the mother’s propensity to overstate the father’s conduct and minimise her own behaviours, I am not satisfied, on the balance of probabilities, and having regard to the seriousness of the allegation that this incident occurred in the manner alleged by the mother.
October 2015 incident
In her affidavit filed 29 November 2017, the mother describes this incident as follows:
… [X] was approximately six months old. I raised concerns with (the father) about Mr G being around [X]. (The father) got upset at this. I told (the father) that I was going to go and see a counsellor. (The father) then got up and began packing some of [X]’s things. He indicated to me that he was going to take her. I immediately contacted the police who attended.[47]
[47] Paragraph 13 of the affidavit of the mother filed 29 November 2017.
The father has set out in detail his response to this allegation at paragraph 18(f)(i)-(v) of his affidavit filed 25 January 2018. In essence, the father’s evidence is that:
a)the mother, seeing the father with [X] on his lap and Mr G playing a video game, “launched into a tirade of abuse directed at Mr G . She screamed at me why is that Thing (sic) in the house and get that fucking retard away from my child (emphasis added)”[48];
b)after the mother settled down, the father said that he could no longer cope with her outbursts and was leaving with [X];[49]
c)the father contacted Ms J’s partner and asked him to come and collect them. Whilst waiting for Ms J’s partner, the mother threatened to call the police which she then did;[50]
d)when the police arrived, it was agreed that the mother would leave the house with [X] and obtain accommodation in Town E;[51]
e)a week or so later an interim intervention order was obtained naming the mother and [X] as affected family members;[52] and
f)the father understood that the mother had only applied for an intervention order as that would help her find crisis accommodation.[53]
[48] Paragraph 18(f)(i) of the affidavit of the father filed 25 January 2018.
[49] Paragraph 18(f)(i) of the affidavit of the father filed 25 January 2018.
[50] Paragraph 18(f)(ii) of the affidavit of the father filed 25 January 2018.
[51] Paragraph 18(f)(iv) of the affidavit of the father filed 25 January 2018.
[52] Paragraph 18(f)(v) of the affidavit of the father filed 25 January 2018.
[53] Paragraph 18(f)(v) of the affidavit of the father filed 25 January 2018.
As stated above, Sergeant Ms L gave the following evidence about this incident:
My… recollection from that night was that you were both feeling emotionally upset and both displaying a certain amount of anger towards each other
…but it was all verbal.[54]
[54] Transcript page 111 at lines 2 to 8.
Ms J also gave evidence about this incident which was largely consistent with the father’s statement. She said that she received a telephone call from the father late one night in October 2015. She attests to the fact that during this telephone call, she “could hear (the mother) screaming at Mr G to get out calling him a thing and a retard.”[55]
[55] Paragraph 3 of the affidavit of Ms J filed 15 October 2018, transcript page 244 at lines 11 to 15.
I find that both parties engaged in a verbal argument with each other and that this falls within the definition of family violence.
However, I do not accept that the mother was a passive victim in this instance. Rather, I accept the father’s evidence (supported by Ms J’s evidence which I also accept) that the incident was instigated by the mother’s verbal abuse of Mr G. I also find that the situation escalated when the father said he was going to leave and take [X].
In pointing to an inconsistency between the evidence of the father and that of Ms J about whom the father spoke to on that evening, the mother claimed that either the father or Ms J were lying. Ms J maintained that the father spoke to her that evening and she then asked her partner to go and pick the father up (whereas the father had said that he called Ms J’s partner).[56]
[56] Transcript page 244 at lines 29 to 31.
I do not accept the mother’s assertion that the inconsistency between the father’s evidence and that of Ms J is evidence that one or the other of them is lying and therefore goes to issues of credit. It is a minor detail in relative terms and indeed is indicative of two people doing their best to recall incidents which occurred some time ago.
October 2016 incident
The mother’s evidence is that on 23 October 2016, the father told her to “fuck off” in the presence of [X].[57]
[57] Paragraph 22 of the affidavit of the mother filed 29 November 2017.
The father categorically denies this allegation and says that [X] was crying on both Saturday 22 and Sunday 23 October when the mother picked her up at the conclusion of time with the father. He went on to allege that the mother has “fabricated this allegation to distract attention from the fact that [X] enjoys being with (him)”.[58]
[58] Paragraph 18(j) of the affidavit of the father filed 25 January 2018.
As stated, I accept that the parents’ relationship was filled with verbal arguments. I find that a verbal altercation may have occurred on this occasion however, I do not accept the mother’s version that it was the father gratuitously swearing at the mother.
December 2016 incident
On 14 December 2016, the mother alleged that the father accused her of making pornographic videos and being a bad influence on [X].
The father concedes that he did raise the issue of the mother possibly being in a pornographic video. However, he says that he raised this out of concern and disputes that he acted inappropriately.
I accept that the father raised this issue with the mother. However, I prefer the father’s evidence about the incident and on that basis, I am not satisfied that this constitutes family violence.
2017 incidents
The mother alleges that during 2017, the father yelled at her in the presence of [X] on a number of occasions. The mother’s evidence in this regard is as follows:
On or about 6 April 2017 and 27 February 2017 (the father) was at my home and became angry. He yelled and swore at me in front of [X]. [X] and I were both scared. [X] was crying. I was fearful that (the father) would physically attack me as he had done in the past. (The father) is a large man who uses his height to intimidate me.
…
On 31 May 2017 (the father) and I were at his biological mother’s house. (The father) yelled at me in the presence of his family and had to repeatedly be told to calm down.
On 1 June 2017 (the father) and I were discussing his living arrangements… he was planning to move closer to be able to spend more time with [X]. During our conversation (the father) became enraged. He began yelling very loudly at me in the presence of [X]. I repeatedly and calmly asked him to calm down and lower his voice because he was scaring [X]. (The father) did not calm down and simply became angrier. He yelled at me calling me selfish and a bad mother. He also referred to me as a “Cunt”. In the past when (the father) began yelling like this he would then become physically aggressive towards me. I was extremely fearful that (the father) would again become physically violent and that he might harm [X] or I. I pleaded with (the father) to leave. He eventually left but only after screaming and swearing at me again. This was the end of our relationship.
On 21 June 2017 (the father) referred to me as a “terrible mother”. When he called to FaceTime [X] I had accidentally referred to him as (the father) rather than Dad when I passed her the phone. (The father) then continued to call me and denigrate me calling me selfish and a bad mother.[59]
[59] Paragraphs 25 to 29 of the affidavit of the mother filed 29 November 2017.
The father’s evidence in relation to each of these incidents is quite different. He denies the allegations made against him and says in his affidavit material that:
a)on 27 February 2017, the parents had an argument about whether to take [X] to the hospital because she developed an infection and was quite distressed. Not only does he deny that he was yelling at the mother, but the father says that he was told to “fuck off” when he raised the issue later that evening;
b)the mother abused him and told him he was a “bad father” in front of [X] on 9 April 2017 when he was returning home from Town A to Town K;
c)in relation to the alleged incident on 31 May 2017, the father says that it was the mother who was abusive towards him when they visited Ms H in Suburb B while they were discussing where they should live. He says that she repeatedly swore.[60]
[60] Paragraph 18(p) of the affidavit of the father filed 25 January 2018.
Ms H has also given evidence in these proceedings that on
31 May 2017, she witnessed the mother:
yelling at (the father) of how she wanted him to stop travelling between Melbourne and Town K … (the mother) got very upset when (the father) said he wouldn’t be able to work but she could go to work and he would look after [X]. (The mother) responded by telling him he was a ‘lazy f*** and if she had to work she was not moving to Town S or Town T she would choose ‘where they f***ing live’, (the father) asked why she had to be like that and she said ‘just to be a c***’. The conversation became loud and I asked for it to stop so [X] would not get upset as did (the father) also.[61]
[61] Paragraph 9 of the affidavit of Ms H filed 15 October 2018.
At the conclusion of cross examination by counsel for the ICL, I gave the mother an opportunity to expand on this incident and she said:
I said… if I was to work, and I would choose where we live, and yes, I did say that ‘just to be a c***’ but that – it wasn’t – the other swear words – I used the ‘c***’ word but I – and the context was that if I were to work, I will choose where we live, if I’m supporting the family.
…
I was referring to me. I was being a c*** because I was wanting to choose where we lived if I was going to be paying for where we lived.[62]
[62] Transcript page 106 at lines 31 to 43.
Mr M’s unchallenged evidence is consistent with that given by the father and Ms H. At paragraph 5 of his affidavit filed 15 October 2018 he deposed to the following:
May 31st I was at home when (the mother) and (the father) came to our house at first, they were having a normal conversation then all the sudden (sic) I heard (the mother) start screaming at (the father) saying if she had to ‘fucking work’ she was saying she would pick ‘where the fuck they live’. I then heard (the father) ask ‘how is that fair’ to which (the mother) replied because ‘I’m being a c***’.[63]
[63] Paragraph 5 of the affidavit of Mr M filed 15 October 2018.
In relation to the alleged incident on 1 June 2017, the father says when that he was getting ready to leave Town A to return to Town K, the mother became angry and said that if he did not move to Town A, she would move back to Perth with [X]. He also alleges that the mother called him a “useless c***” when he said he needed time to consider it.
Ms H has also given evidence, which I accept, that on the evening of 1 June 2017, when the father was packing to leave Town A, he called her and then gave the phone to the mother who told Ms H that she wanted him to move to Town A and get a house. Ms H also gave evidence that during this call, [X] was crying and that when she asked the mother why, she was told that it was because [X] knew that the father was about to leave.
Ms H gave further evidence, which I accept, that on around 1 June 2017, she had a number of conversations with the mother in which she advised the mother about what she could do to get a larger home through the relevant department for herself, the father and [X].[64]
[64] Paragraph 14 of the affidavit of Ms H filed 15 October 2018.
In relation to the Skype conversation with [X] on 21 June 2017, the father says that the mother referred to him on three separate occasions as “Mr Frankham” rather than “Dad” and he told her it was unfair to [X] to do that. The father deposed that the mother then responded, “I’ll call you whatever I want”. He says that he referred to the situation as being “terrible” not calling her a terrible mother.
In cross examination on this issue, the mother denied saying this but rather maintained that she said “you can’t possibly control how I refer to you.”[65]
[65] Transcript page 39 at lines 20 to 21.
The mother also conceded in the course of cross examination that she did call the father dreadful names “once or twice”.[66] She conceded that she called him a “fat, lazy nothing”.[67]
[66] Transcript page 40 at line 6.
[67] Transcript page 40 at line 15.
Some of the text message exchanges between the father and the mother further evidence the mother’s preparedness to use abusive language towards the father including post-separation. For example, in an email exchange on 13 April 2016, the mother asks the father to get some medication for her. The father’s response is not attached, however, it appears to be negative as the mother replied in the following terms:
I can’t fucking believe you lol
And how stupid I am
This is it
Omfg
You c***
Never call me again, I never want to see you, anything [X] related can be sorted through intermediaries.
You gutless weak little man.[68]
[68] Exhibit G.
In response to some questions from counsel for the ICL about the mother’s apparent preparedness to bring [X] into contact with the father from January 2017, notwithstanding having earlier obtained an intervention order against him, the following exchange occurred:
ICL:You would say, I presume, that between January ’17 and June ’17 that you and the father were working on a reconciliation?
(the mother): Initially it started …yes, we had reconciled for ---
ICL:and you had no concerns with bringing the child into contact with the father over that period?
(the mother): I developed concerns, yes… because of all the disagreements and fighting that we were having.
ICL:All right. But nothing in relation to his care of the child?
(the mother): Well, yes … he wasn’t caring for the child. He was argumentative, he was leaving every two weeks.[69]
[69] Transcript page 77 at lines 5 to 17.
Having regard to the totality of the evidence I find that both parties used abusive language towards each other from time to time and that the mother’s affidavit evidence is very selective in relation to these issues, which is clearly intended to portray her in a positive light.
Study incident
The father categorically denies this incident. He says that he would never strike a child, has a Working with Children Check and a history of working with his mother for the Department of Health and Human Services and Region 2 Uniting Care in Town E.
The father also makes counter allegations about inappropriate discipline of [X] by the mother.
The mother has not established that this incident occurred to the requisite standard of proof. Nor has the father established his allegations that the mother inappropriately disciplined [X]. In any event the concerns raised by each of the parties can be addressed by a restraint on either parent physically disciplining [X].
Changeover incident
As stated above, the mother alleges that the father has used these proceedings generally and the orders permitting him to spend time with [X] in particular, as a means by which to continue to engage in family violence towards her. She has alleged that the father initiated and pursued his applications in this court as a means of seeking to control the mother and has attended changeover in breach of court orders.
For example, in the course of cross examination by counsel for the ICL, the following exchange occurred with the mother:
ICL:Well the father instituted legal proceedings shortly after you moved to Town A and I suggest to you that he did that because … he wanted to be part of his daughter’s life; do you accept that?
(the mother): He instituted the proceedings prior to me moving to Town A…
ICL:And what I’m suggesting to you is that the reason he filed those proceedings was because of his desire to be part of his daughter’s life?
(the mother): No
ICL:Okay. Why do you say he instituted those proceedings?
(the mother): To stop me from leaving.[70]
[70] Transcript page 75 at lines 33 to 43.
The mother has also suggested that the father is continuing in his abuse of her by the ‘lies’ that he and his family are including in the material filed in these proceedings.[71] The mother asserts that Ms H and Ms J have lied in their affidavit material to support their son.
[71] Transcript page 95.
I do not accept this submission.
As stated, I accept both Ms H and Ms J as witnesses of truth. They both impressed me as sensible, down to earth people, who have assisted where possible to work out a solution which would see both parents maintain a positive and meaningful relationship with their daughter notwithstanding the breakdown in their relationship.
Further, in her affidavit of 20 June 2018, the mother alleges that on 18 April 2018, the father was present with his mother when Ms H called the mother about a contact visit which was scheduled to occur at that time. She stated that the father and Ms H “were creating reasons to contact me directly despite there being an intervention order in place”.[72]
[72] Paragraph 8 of the affidavit of the mother filed 20 June 2018.
In addition, she alleges that on 19 May 2018, Ms H called her and then shortly after the father sent her an SMS about dropping [X] off for time with the father pursuant to the orders which were then in place. The mother says that she formed the view on the basis of these communications that the father was present at changeover, that this was in breach of the orders and reported this immediately to Town R police and did not attend changeover. Time did not occur on this occasion.
Ms H’s evidence in relation to both of these incidents is set out at paragraph 22 and 23 of her affidavit filed 14 October 2018. She essentially deposes that she was contacting the mother about facilitating time between [X] and her father pursuant to the orders made by this court on 30 April 2018.
As to the mother’s allegation that the father was present at changeover with his mother in breach of the 30 April 2018 orders, Ms H’s evidence, which I accept, was that she had dropped:
(the father) off at a park down the road and went to the McDonalds where I was supposed to meet (the mother) and [X]. I had been waiting for approximately 20 minutes and I rang (the father) and said that they hadn’t turned up as yet. I tried to phone her to see if she was still coming and there was no answer. I let (the father) know and he sent (the mother) a SMS to let her know what McDonald’s we were at because it wasn’t one near her home. I sent (the mother) another SMS to say it was 11.35 am and I was leaving as she had not turned up.[73]
[73] Paragraph 23 of the affidavit of Ms H filed 15 October 2018, see also Exhibit D.
The father’s evidence in relation to both of these incidents is set out in his affidavit of 28 June 2018 at paragraph 4(a) and (b).
In relation to the 19 May 2018 incident, the father relevantly deposes:
on 19 May, my mother went to the McDonalds restaurant, changeover location set out in the order. (The mother) did not show up as ordered at 11.00 am as ordered. At 11:09 am I sent an SMS to (the mother) to confirm the McDonald’s restaurant we were at, thinking perhaps she was late due to a mix-up in locations. She did not respond. At 11.26am I sent another message asking
(the mother) if she would be bringing [X]. Again, she did not reply. My mother also sent 2 SMS first asking if she would be coming and then to let (the mother) know we were leaving. There was no reply to these messages.[74][74] Paragraph 4(b) of the affidavit of the father filed 29 June 2018.
The SMS text messages sent by the father on 19 May 2018 said:
11.09amMs H is at McDonald’s in Town D as written in orders unsure if you realised that’s the change over spot as opposed to the one on the highway and if you are coming.
11.26amAlmost 11.30 will you be bringing [X] today?[75]
[75] Exhibit D.
Ms H also sent the following two SMS text messages on this occasion:
11.26amHi… are u coming for drop off or should I just head home?
11.35amAs you have not replied I am assume you are not coming so I am heading home as it is 11.35am.[76]
[76] Exhibit E.
The mother was subjected to extensive cross examination about this issue. She maintained that it was clear to her that the father was with Ms H at changeover, that this was in breach of the 30 April 2018 orders and that as a result she was fearful and that is why she reported the matter to the police.
The orders made on 30 April 2018 were in the following terms:
(11)For the purpose of changeover, within 14 days, the parties shall do all things and sign all documents necessary to register themselves and the child for supervised changeover at Suburb C Children’s Contact Service.
(12)Pending the availability of supervised changeover pursuant to order 11 herein or in the event the contact centre is unavailable to provide changeover service, unless otherwise agreed in writing / SMS, the following arrangements shall apply:
(a)at the commencement of the child’s time with the father, the parties shall meet at McDonald’s in Town D; and
(b)at the conclusion of the child’s time with the father, the parties shall meet at McDonald’s in Suburb B.
…
(14)Save for an emergency where the parties may call each other, each of the parties communicate with each other by SMS and shall ensure the content of all their messages are succinct and focused on the care, welfare and development of the child.
…
(2)The paternal grandmother, Ms H will effect changeover on behalf of the father.
The mother was correct in her assertion that the father had made a concession that he would not be present at changeover and on this basis, the orders of 30 April 2018 provided for changeover to be effected between the mother and Ms H.[77]
[77] Transcript pages 29 and 30, see also reasons for judgment delivered by Judge Mercuri on 30 April 2018.
The mother did not attend changeover on 19 May 2018 because she understood from the text message from him and Ms H that he was at changeover. When Exhibit D was put to the mother, the mother did not concede that they were in fact the text messages she received from the father. She said:
I would like to be able to confirm that – cross-reference it with my phone because… I don’t know if that is correct.[78]
[78] Transcript page 32 at lines 9 to 10.
The mother later asked if she could have access Exhibit D and E and in that context, went on to say:
I would like to be able to compare it with my phone because I have concerns that the father has been editing messages and I can prove that he has previously edited messages so falsifying evidence.[79]
[79] Transcript page 36 at lines 2 to 4.
The mother ultimately produced no evidence that the father had been ‘editing’ the messages or falsifying evidence.
The mother confirmed that on receipt of the text messages at Exhibit D and E on 19 May 2018, she filed a complaint with the police. In response to a question from counsel for the father, the mother said “yes I had safety concerns because the father was present at changeover.”[80]
[80] Transcript page 34 at lines 5 to 6.
When asked how she drew an inference that the father was at changeover from the text messages he sent on 19 May 2018, the mother said:
…because he messaged me asking about the changeover… why would he be messaging me when it was the paternal grandmother that was supposed to be there, not him.[81]
[81] Transcript page 35 at lines 9 to 12.
In relation to this issue the following exchange occurred between counsel for the ICL and the mother:
ICL:And what I want to ask you is that you said, look, I was worried he was going to be in attendance. Why didn’t you send a text message to the paternal grandmother and say is your son there? I don’t want him at changeover. Make sure he’s not there?
(the mother): Because I knew he was there.
ICL:I suggest… that your fears could have been alleviated by making a request of the paternal grandmother to confirm to you that the father wasn’t there and in those circumstances you wouldn’t have had any reason to be concerned about effecting changeover?
(the mother): This… whole situation – even talking about it now is causing me – why should I have to make sure that he’s not there when he shouldn’t have been there?
ICL:Well, can I suggest that the reason that you’re required to make sure that he’s not there is because you’re obliged by court orders to provide the child by the father and you’re required to comply with the orders?
(the mother): And the father wasn’t complying with the orders by being there.
ICL:Well, you didn’t know whether he was there or not. You didn’t go?
(the mother): I did know that he was there…
ICL: You didn’t ask anyone. You assumed?
(the mother): I knew he was there.[82]
[82] Transcript page 81 at lines 1 to 21.
The mother seemed to suggest that the court ought not rely on observations over such a short period of time, suggesting that the father might behave in one way whilst he knew that he was being observed and behave in another at home. In coming to my views, I have had regard to the observations made of [X] in the care of her father. Whilst the father may be able to control how he behaved in front of Dr F, the mother’s inference does not explain [X]’s behaviour which is indicative of a child who feels safe and comfortable in the presence of her father.
In particular, Dr F observed that [X]:
a)was chatting happily with her father when they entered the observation room;
b)seemed keen to play with her father;
c)asked her father to read a number of books to her;
d)was comfortable and having fun with her father; and
e)remained quite playful throughout the session.[125]
[125] Paragraphs 81 to 89 of the family report prepared by Dr F dated 10 September 2018.
All of these observations are consistent with a child who is happy to be in the presence and company of her father.
Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child
The mother is critical of the father for his lack of support of her in raising [X] post-separation. Indeed, she appears to be critical of him for not prioritising [X] (and her) over his family. However, for the reasons set out in this judgment, I find that it is the mother’s own conduct in not making [X] available for time with the father that has limited his amount of time with her.
For his part, the father has demonstrated that he wishes to be involved in [X]’s life, both in these and previous proceedings in this court. He initiated proceedings when the mother initially moved to Town A in January 2016. Those proceedings were resolved by consent later that year.
He has actively participated in the present proceedings initiated by the mother in November 2017.
Given the distance between the father’s home in Town K and the mother’s home in Town A, there are inevitable limitations on the amount of time which [X] can spend with each parent. However, the father has demonstrated a preparedness to do whatever he reasonably can to spend time with his daughter, including driving from Town K to Melbourne to spend time with his daughter on weekends pursuant to orders of the court.
Section 60CC(3)(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 are currently in receipt of welfare benefits.
The mother is critical of the father for not moving closer to her to help her raise [X]. For reasons previously discussed, I do not find this to be a valid criticism.
Section 60CC(3)(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
If the mother’s proposal is granted and she is permitted to relocate to Perth, it will be very difficult for [X] to continue to develop her relationship with her father.
The mother has proposed that if she is permitted to relocate to Perth, she will arrange for the child to fly back to Melbourne and or for the father to fly to Perth to spend time with each other on a regular basis (at one point she suggested this might be as frequent as once every three weeks). I note however, the mother maintains that at least initially, any such time should be at a supervised contact centre.
Leaving aside logistical difficulties given the distance and poor connections between Perth and Town K, the mother has not put any evidence before this court about the costs of any such travel and, importantly, how the costs of such travel will be met.
The highest it is put by the mother, is that she expects to be able to find work once in Perth because she will be assisted by her mother and her sister. She has not led any evidence regarding her employment prospects in Perth as compared to Victoria.
It is also relevant that if the mother is permitted to relocate to Perth with [X], and even if arrangements could be made for the father to travel to Perth to spend time with [X], there will be limited opportunities for [X] to spend time with the paternal family. That time has already been significantly limited post-separation, with the exception of Ms H who has assisted in supervising some of the time between the father and [X] and facilitating changeover.
Section 60CC(3)(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
As stated above, if the mother’s proposal is accepted, there are significant practical difficulties involved in facilitating time between [X] and the father.
The father’s proposal, whilst requiring an initial adjustment period for [X] in moving from her mother’s care to her father’s care would allow [X] to continue to maintain a relationship with both parents with relative ease.
The mother has given evidence that it is her intention, irrespective of the outcome of these proceedings, to return to Perth. She has said on numerous occasions in these proceedings that “remaining in Town A is not an option for her” or words to that effect.
That ultimately is a matter for her. However, it is the view of this court that if the mother were to relocate to Perth without [X], the father would do whatever he could to facilitate an ongoing relationship between [X] and her mother. The extent to which this is possible will ultimately, depend on the financial position of the parties at the time.
Section 60CC(3)(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
On the basis of the evidence before me, I am satisfied that both parents are able to meet [X]’s practical needs.
I am satisfied that the mother is able to meet the needs of [X] including her emotional and intellectual needs. Given the evidence she has given in these proceedings, she may have some difficulty in accepting that [X] will spend unsupervised time with the father in the short to medium term. Orders that the mother attend counselling will be of assistance. The orders also provide for the parties to undertake a post separation parenting program.
The mother questions the father’s ability to control his anger and frustration and also questions the father’s ability to act protectively if [X] is in the presence of the father’s extended family.
Having had the benefit of seeing the father give evidence, and having also had the benefit of hearing from both Ms J and Ms H, I am satisfied that the father has the skills to meet [X]’s needs, including her emotional and intellectual needs. I have had regard to Dr F’s comments about the way in which the father communicated with [X] during the observation to help her with her speech which appears to be an issue at this stage. The father’s attendance at a men’s behaviour change program will also give him additional strategies in this regard.
I am also satisfied that the father has access to support from both Ms J, who also lives in Town K and Ms H in Melbourne and that they will both provide him with assistance if required to meet [X]’s ongoing needs.
Finally, the father has demonstrated a level of insight into his own emotional challenges in the past and a preparedness to seek out assistance to deal with those. To the extent that past behaviour is a good indicator of possible future behaviour, this bodes well for the father in demonstrating the ability to identify any shortcomings in his parenting and seek professional support as required.
Section 60CC(3)(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 still a young child. She has developed a positive and loving relationship with her father. However, it is important for that relationship to be maintained and supported over the coming years so that it can continue to develop.
It is evident from the mother’s evidence to this court that she does not hold the father in very high regard. Whilst she seeks to take credit for the positive state of [X]’s relationship with the father, the reality is that without a lived reality of a relationship with her father, there is a real risk that the mother’s antipathy towards the father will adversely influence [X]’s relationship with him.
Dr F relevantly opined that:
If (the mother) continues to maintain such a negative view of
(the father) and devalues what he could potentially offer and bring to [X]’s life, she will continue to struggle supporting and facilitating their time and relationship together.[126][126] Paragraph 108 of the family report prepared by Dr F dated 10 September 2018.
I agree with Dr F’s suggestion that professional support in this regard might assist and the orders provide for that.
The mother has made a number of allegations about the father’s family of origin as evidence of his lack of fitness to spend unsupervised time with [X]. To the extent that the father is a survivor of child sexual abuse, his evidence to this court indicates that he has obtained assistance from professionals in seeking to deal with this past. Neither this, nor any other matters raised at paragraph 46 above are relevant to the orders which the court considers appropriate in this instance.
Section 60CC(3)(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 factor does not apply in this case.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The mother loves [X] and has seen that it is her role to act protectively for her against risks posed by the father and the father’s family.
There is no criticism of the mother for trying to act protectively. The mother has however, overstated the risks posed by both the father and his family. The mother’s failure to acknowledge any benefit to [X] of a relationship with her father does cause some concern about her ability to support that relationship into the future and her lack of insight into the damage this might cause [X].
The father has demonstrated a commitment to be part of [X]’s life through his conduct throughout these proceedings. His primary claim was for [X] to remain living with the mother and to spend regular and consistent time with him. He is prepared however, to take on full time care of [X], should that become necessary if the mother moves to Perth.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family
I have dealt with family violence issues above.
Section 60CC(3)(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
The father is currently challenging the mother’s most recent application for an intervention order. At the time of separation in 2015, he consented to an intervention order without admission.
I also refer to my earlier discussions regarding family violence.
Section 60CC(3)(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 have proposed are in my view the least likely to lead to further litigation in relation to [X]. As noted by Dr F in these proceedings, the ideal outcome for [X], given her age and the fact that she has primarily lived with her mother to date, would be for her to continue living with her mother in Town A and to have regular and consistent time with the father.
The ICL’s initial position also supported an order in those terms. However, in light of the mother’s evidence that she could no longer continue living in Town A and would ultimately return to Perth, either with or without [X], the ICL’s position changed so that [X] would live with the father in that event.
The mother has not given any indication as to when she is likely to move to Perth. In those circumstances, the orders I propose are least likely to lead to further litigation. Those orders relevantly provide that whilst the mother remains living in Town A (or within a 50 kilometre radius of Town A), then [X] should continue living with her and spend regular and consistent time with the father.
When the mother relocates to Perth, [X] will commence living with the father, with some time initially at Ms H’s home to allow a smooth transition as recommended by Dr F. She will then spend regular and frequent time with the mother. Whilst this is not the ideal option as noted by Dr F, it is the least detrimental option and one which will ensure [X] continues to have a meaningful relationship with both of her parents.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant
Whilst these proceedings relate to [X], and the court is required to give primary consideration to what is in her best interests, a relevant and related issue is the mother’s desire to relocate back to Perth.
The mother’s evidence is that she is alone and isolated in Town A. She also gave evidence that if she is permitted to return to Perth she will have the support of her mother and her sister in caring for [X] and that this would allow her to obtain employment and thereby provide a better life for [X].
Even if the court were to accept this evidence (and as stated above, no evidence has been filed by either the maternal grandmother or the maternal aunt in this regard), this needs to be balanced against the need to facilitate a relationship between [X] and her father as well as her mother.
The mother’s failure to facilitate time between the father and [X] after the orders made on 30 April 2018 is also a relevant consideration.
It is the case that the mother filed an appeal against those orders and that that appeal was disposed of by His Honour Justice Strickland on the basis that there was no utility in dealing with the appeal, which was listed for hearing on 21 September 2018 when the final hearing in this matter was to be heard on 22 October 2018. It is also the case that the mother sought a stay of the 30 April 2018 orders which I refused on
20 July 2018.The mother asserts that she made attempts to facilitate time between the father and [X]. Exhibit B is an exchange of correspondence between the father’s lawyers and the mother evidencing these efforts. By email dated 21 August 2018, the mother wrote to the father’s lawyers in which she dictated a series of conditions for any time between the father and [X], including that both the maternal and paternal grandmothers supervise and that it occur at a play centre. This was in response to a proposal for the father’s time to occur at a play centre as a means of progressing his time with his daughter whilst contravention proceedings were initiated.
The mother’s assertion that her email of 21 August 2018 was simply by way of clarification is somewhat disingenuous. The mother was imposing additional conditions that she sought before she would make [X] available for time to be spent with the father. Further, notwithstanding having failed in her application for a stay, the mother continued to fail to comply with the orders made on 30 April 2018.
The 30 April 2018 orders provided for the father to spend time with [X] during daytime only. This followed a period of some months when time had been spent with the paternal and maternal grandmothers in attendance and without any alleged incident. It is important to note that in the mother’s own affidavit material, she deposes that [X] was generally grumpy after her time with the father but otherwise the time was fine.
It is also relevant that the maternal grandmother did not give any evidence about the time that she supervised between [X] and the father. It would be fair to imply from this that there was nothing untoward to report.
In those circumstances, the mother’s failure to comply with the court’s orders does not give the court any confidence that if she were permitted to relocate to Perth, she would support the father’s relationship with [X].
Remaining issues
Change of name
The mother’s evidence in relation to this issue is rather scant. In her affidavit filed 29 November 2017, she deposes:
I seek to change [X]’s name so that her last name is Frankham-Naparus. I would like [X] to be able to identify her name with both of her parents.[127]
[127] Paragraph 49 of the affidavit of the mother filed 29 November 2017.
In her closing submissions, in response to a question from me as to whether she was still pressing this part of her claim, the mother said:
… I would like for [X] to identify with… both of us and… its difficult… when I go to child care and stuff and they ask me you know ‘What’s her name’ and then I say… and then they can’t find her and then I keep explaining that I’ve got different names.[128]
[128] Transcript page 306 at lines 13 to 17.
The father says in his affidavit filed 25 January 2018:
I have no doubt that if (the mother) were allowed to hyphenate [X]’s surname, it would not be long before the Frankham part would drop away. I oppose the change for that reason.[129]
[129] Paragraph 18(cc) of the affidavit of the father filed 25 January 2018.
The relevant principles in applications to change a child’s name are well settled. In addition to the principles articulated in Chapman & Palmer (1978) FLC 90-510; 34 FLR 405; 4 FamLR 462 (“Chapman”) and Beach & Stemmler (1979) FLC 90-629, any such order, being in the nature of a parenting order, would also need to satisfy the primary and additional considerations in section 60CC of the Act.
In Chapman, the issue before the court was whether the children of the marriage could change their surname to take the mother’s married name following the mother’s second marriage. The children lived with the mother and spent some time with the father. The issue in that case arose because the elder child did not wish to continue to be known by his father’s surname.
As noted in Chapman:
…the change or retention of a particular name may affect a child in a number of ways…The desires of the parents are, however, of secondary importance when put alongside the welfare and the wishes of the child in question. Because a change in a child’s surname may cause him or her confusion and because the issue usually arises between the parents the court will exercise a supervisory role in the matter when called upon to do so.[130]
[130] Chapman & Palmer (1978) FLC 90-510; 34 FLR 405; 4 FamLR 462 at [77674].
Chapman also stands for the proposition that the key issue for a court where one or other parent seeks to change the child’s name, is “what should be done to promote the welfare of the child…”[131]
It is for the court to balance in its discretion the factors for and against change. The guiding principle is that the welfare of the child is the paramount consideration. It must stand above the wishes or proprietary interests of the parents.[132]
[131] Chapman & Palmer (1978) FLC 90-510; 34 FLR 405; 4 FamLR 462 at [77675].
[132] Chapman & Palmer (1978) FLC 90-510; 34 FLR 405; 4 FamLR 462 at [77675].
After considering a range of cases in which the question of how a court should approach a ‘change of name’ case, the court summarised the following factors as those to which a court should have regard in determining whether there should be a change to the child’s name:
a)the welfare of the child is paramount;
b)the short and long term effects of any change in the child’s surname;
c)any embarrassment likely to be experienced by the child if its name is different from that of the parent with custody or care and control;
d)any confusion of identity which may arise for the child if his or her name is changed or is not changed;
e)the effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage; and
f)the effect of frequent or random changes of name.[133]
[133] Chapman & Palmer (1978) FLC 90-510; 34 FLR 405; 4 FamLR 462 at [77676]-[77677].
There is a dearth of evidence before the court addressing any of these considerations. The highest that the mother’s evidence goes is to raise potential embarrassment for [X] in having a different name to her mother’s. The mother’s evidence in this regard arguably does not even go to [X]’s embarrassment but rather her own desire to have the same name as her child.
In those circumstances, I am not satisfied that there is sufficient evidence on which the court could properly conclude that it is in [X]’s best interests to grant the mother’s application to change her name.
I therefore do not make any orders for the change of the child’s name.
Travel and passport
The mother’s affidavit filed 29 November 2017 simply states that she would like to be able to travel with [X] in the future although she has no immediate plans to do so.[134]
[134] Paragraph 48 of the affidavit of the mother filed 29 November 2017.
The father opposes both the mother’s application for overseas and interstate travel to Western Australia. The principal reason is that he fears that the mother will use this as an opportunity to keep [X] away from him. In his affidavit filed 25 January 2018, he refers to the fact that the mother was born in Country 1 and has spoken fondly of it in the past and that she may go back to Country 1 to keep [X] from him.[135]
[135] Paragraph 18(y) of the affidavit of the father filed 25 January 2018.
In the usual course, obtaining a passport for a child is something that parents need to be able to agree on as part of the exercise of their equal shared parental responsibility.
At this stage, the mother’s evidence is that she has no plans to travel either interstate (other than to relocate to Perth if permitted to do so with [X]) or internationally. In those circumstances and given the dearth of evidence before this court, the mother has not established that it is in [X]’s best interests for any orders to be made permitting travel or permitting the mother to obtain a passport for [X].
Given the history of the dispute between these parties, it is in [X]’s best interests for the parents to settle into a routine whereby [X] is spending regular and frequent time with each parent.
In those circumstances and particularly where there is no specific proposal for travel put before the court, I do not propose making any orders permitting the mother to obtain a passport for [X] or permitting the mother to travel either interstate or overseas.
Conclusions
For the reasons set out above and having regard to the totality of the evidence before the court, I have concluded that the ideal position for [X] is for her to continue living with the mother while she remains in Victoria and to spend frequent and regular time with the father.
Given her age and the need for frequent and regular time to ensure that her relationship with the father continues to develop in a meaningful way, and given the concerns I have about the mother’s capacity and desire to facilitate such a relationship, I have also concluded that [X] needs to remain living in Victoria. Any move to Perth as proposed by the mother would unduly limit the quality as well as the quantity of time that she can spend with the father.
The mother’s evidence before this court is that she can no longer remain living in Victoria and that irrespective of the court’s determination in this matter, she will be relocating to Perth either with [X] if so permitted, or on her own if not. The mother however, did not give a time frame for any such move.
In those circumstances and having considered the proposals put by the ICL and each of the parties, I have concluded that the best interests of [X] are served by making the orders set out at the beginning of these reasons.
Given the mother’s history of failing to comply with orders of this court for [X] to spend time with the father, I have considered whether it would be appropriate to grant the father liberty to apply with respect to any non-compliance by the mother with these orders. However, I am satisfied that if the mother contravenes these orders and/or a recovery order is sought by the father, this can be dealt with in the ordinary course pursuant to the Act and Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding three hundred and forty-four (344) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Date: 28 February 2019
Paragraph 18(d) of the affidavit of the father filed 25 January 2018; paragraph 16 and annexure
SJF-01 of the affidavit of the father filed 15 October 2018.
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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Remedies
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Statutory Construction
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