NAPARUS & FRANKHAM (No.7)
[2020] FCCA 3139
•26 November 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NAPARUS & FRANKHAM (No.7) | [2020] FCCA 3139 |
| Catchwords: FAMILY LAW – Parenting – relocation – parental responsibility. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC(2), (3), 61DA |
| Cases cited: MRR & GRR (2010) 240 CLR 461 Paskandy & Paskandy (1999) FLC 92-878 Taylor & Barker (2007) FLC 93-343 Champness & Hanson [2009] FamCAFC 96 McCall & Clark (2009) FLC 93-405 |
| Applicant: | MS NAPARUS |
| Respondent: | MR FRANKHAM |
| File Number: | MLC 1462 of 2016 |
| Judgment of: | Judge McGuire |
| Hearing dates: | 26, 27, 28 & 29 October 2020 |
| Date of Last Submission: | 29 October 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 26 November 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms A. Cranenburgh |
| Solicitors for the Applicant: | Elisa Rothschild |
| Counsel for the Respondent: | Mr N. Kanarev |
| Solicitors for the Respondent: | Nick Graham Legal |
| Counsel for the Independent Children's Lawyer: | Ms H. Bonney |
| Solicitors for the Independent Children's Lawyer: | Bowlen Dunstan & Associates |
ORDERS
That the parties have equal shared parental responsibility for the child X born in 2015 (“X”).
That X live with the mother provided that the mother live in the City B municipality or such other place in Victoria not further than the distance between the father’s current home in Town F and City B.
That for these purposes the mother return X to live primarily in Victoria not later than 28 December 2020.
That provided, in any event, that should the mother choose not to return herself to reside in Victoria by 28 December 2020 then X live with the father and for these purposes the mother deliver X to the father in Victoria on or before 28 December 2020 at a point designated by the father and with the mother to meet X’s travel costs accordingly.
That upon X’s return to Victoria then each of the parties by themselves or their servants or agents be and are hereby restrained from removing X from the state of Victoria save and except with the express written consent of the other party or by Court order and also except for any Court ordered school holiday time that X is to spend with that parent pursuant to these orders.
That upon X being returned by the mother to Victoria and the mother also reside in Victoria then X spend time with the father as follows:
(a)An initial period of seven (7) days immediately upon X’s return to Victoria;
(b)Thereafter each second weekend between Friday evening at 5.00p.m. and Sunday evening at 5.00 p.m. but extending to Monday evening at 5.00 p.m. on the event of such time occurring on a long weekend;
(c)For one half of each Victorian gazetted school term holidays as agreed between the parties but failing agreement then for the first half of such holidays being from the first Friday evening at 5.00p.m. until the second Saturday at 12.00 noon;
(d)For one half of each Victorian gazetted summer school holidays commencing 2021/2022 being for the first half of such holidays in 2021/2022 and in each alternate year thereafter and for the second half of such holidays in 2022/2023 and in each alternate year thereafter;
(e)That all weekend time for X with her father be suspended during any school holiday;
(f)Such other times or variations of the above as agreed between the parents from time to time; and
(g)That for the purposes of X spending time with father then the parents share equally in the cost and effort of transit for X between the parents in meeting at some point near half way between their respective homes as agreed between the parents but failing agreement then as designated by the father or, if the mother does not have use of a motor vehicle, then the mother is to reimburse the father for one half of the fuel costs of him doing all of the travelling to effect changeovers.
That provided that should X be living with the father pursuant to order no. (4) hereof then X spend time and communicate with the mother as follows:
(a)In Perth for one half of each gazetted Victorian term school holidays as agreed between the parties but failing agreement then for the first half of term school holidays being from the first Friday until (as close as possible) to 12.00 noon on the second Saturday;
(b)For the first half of each Victorian gazetted summer school holidays in each year being for the first half of such holidays in 2021/2022 and in each alternate year thereafter and for the second half of such holidays in 2022/2023 and in each alternate year thereafter;
(c)At any reasonable time in Victoria but ultimately at the discretion of the father; and
(d)That the mother be responsible for the airline costs for X for the purposes of this order.
That each of the parents do all such things and sign all such documents required for X to forthwith be known socially and formally as X.
That the father be restrained from leaving X alone in the presence of his foster brother Mr G.
That each of the parties be restrained from physically disciplining X or allowing any other person to do so.
That the mother remain compliant with her prescribed medication.
That the father remain compliant with his prescribed medication and continue regular consultations with his medical practitioners.
IT IS NOTED that publication of this judgment under the pseudonym Naparus & Frankham (No.7) 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
Applications
These are parenting proceedings in respect of the parties’ one child, X, born in 2015 (aged five years) (‘X’).
The applicant is the mother. At the commencement of the trial, and through her Counsel only recently engaged, she sought orders inter-alia as follows:
(a)That the mother have sole parental responsibility for X;
(b)That X live with the mother and that she be permitted to live with the mother in Western Australia;
(c)A regime of time for X with the father commencing with time on a Saturday and Sunday, progressing to full weekend time, then progressing to half of school holidays. The father was to spend initial periods of time with X in Perth and then finally during school holidays in his home state of Victoria but only after the passing of many months;
(d)The mother argued for the imposition of a number of injunctive orders in respect X's time with the father including the child not being brought into contact with certain members of his foster family and a number of other injunctive orders relevant to the mother's arguments as to the father's capacity to care for X;
(e)The mother argues for a change in X's surname from ‘Frankham’ to ‘Frankham-Naparus’). Some discussions during the opening submissions of the mother's Counsel suggested that this matter could be resolved by consent with X's name being changed but to ‘Naparus-Frankham’.
(f)By the time of closing submissions, the mother's primary position was essentially the same being that she be permitted to relocate X from Victoria to reside with her in Perth (in circumstances where current interim orders anticipate X remaining in Victoria but where the mother and X have, in fact, been in Western Australia essentially since April 2020);
(g)By closing submissions the mother’s proposal was that X spend time and communicate with the father as follows:
a. In 2020 only for the first 3 weeks of the Christmas school holidays to be spent in Melbourne at the paternal grandmother's home;
b. Thereafter for the first 4 weeks in even numbered years and for 4 weeks in January on odd numbered years;
c. For one and half weeks of two of the short school holidays, father to nominate which holidays at the start of the school term;
d. For half of one short school holiday, father to nominate which at the start of the school term;
e. Once per month from 5pm Friday to 11am Sunday, the father to give the mother no less than 2 weeks notice;
f. By Skype on Father's Day, Father's Birthday, X's Birthday and Ms H’s Birthday, father to nominate a reasonable preferred time no later than one week prior and subject to school hours;
g. By Skype 3 on Tuesday, Thursday and Sunday from 5pm to 6pm Perth local time;
h. By Skype on Easter Day and/or Good Friday, father to nominate a reasonable preferred time no later than one week prior.
5.Parents to share the cost of flight travel equally.
The mother continued to seek an order for sole parental responsibility for X.
The mother's Counsel advised that should the Court not accede to the mother's application to 'relocate' X then the mother would, albeit with the greatest of reluctance, return to live in Victoria but conditional upon the mother being the primary carer of X. In this respect, there appears the following at the foot note of the mother's proposed orders provided as an aide memoire by her Counsel at final submissions:
Please note that no proposal has been made for the child to be placed in the father's primary care, should that occur I will not be residing in Victoria and the relationship between child and mother will effectively end.
Historically, and as will become apparent from the background and chronology to be included in these reasons, the father has not sought primary care of X. He has been candid in articulating a preference that his time for X occur on weekends and school holidays’ thereby delegating primary care to the mother. His position has changed after the mother’s unilateral removal of X from Victoria to Perth on two separate occasions in April and July 2020. At the commencement of the trial the father agreed and adopted the position then taken by the Independent Children's Lawyer (ICL) who sought orders as follows:
(i)The father have sole parental responsibility regarding X;
(ii)That the child live with the father;
(iii)That for a period of 6 weeks there be no face-to-face time between the child and the mother and that during this time the child have FaceTime or telephone contact with the mother each Tuesday and Thursday between the hours of 6:30pm and 7pm;
(iv)That upon the expiration of 8 weeks, there be time supervised between the mother and the child each Saturday for a period of four hours with such time supervised by professional supervisor at the expense of the mother;
(v) That the ICL obtain a report from the supervisor;
(vi)The proceedings be adjourned to a date in February 2021, or alternatively transferred to the Family Court of Australia, Melbourne Registry.
I pause to comment on the preliminary view the orders sought by the ICL (then supported by the father) were interim orders only. Secondly, and if this is the case, I find it difficult to understand how the Court could then, with the trial being effectively part heard, transfer it to another Court? These difficulties were acknowledged by Counsel for the ICL.
By the end of the evidence the position of the ICL, and still supported by the father, had changed to seeking final orders without further interim orders, and as follows:
(a)The father have sole parental responsibility for X;
(b)That X live with the father in Victoria;
(c)That there be a moratorium of time for X with the mother for six weeks with no face-to-face time but telephone communication on Tuesdays and Thursdays;
(d)After six weeks X to commence supervised time with the mother at the City J Contact Centre anticipated to occur on alternate weekends;
(e)Should the mother live in Victoria then after eight weeks of supervised time such time be increased to alternate weekends from Friday afternoon until Sunday afternoon together with one half of school holidays, with the removal of the requirement for supervision and with telephone communication on three times per week;
(f)If the mother is to live in Western Australia (which is her proposal) then for all of the Victorian first and third term school holidays and for one half of the second term school holidays and one half of the long summer school holidays such time to occur in Western Australia plus should the mother be visiting Victoria then time for X with the mother on weekends but on reasonable notice to the father;
(g)A number of what was referred to by Counsel for the ICL as 'protective orders' including:
(i)That the father be restrained from leaving X alone in the presence of his foster brother Mr G;
(ii)That each of the parties be restrained from physically disciplining X or allowing any other person to do so;
(iii)That the mother remain compliant with her prescribed medication;
(iv)That the father remain compliant with his prescribed medication and continue regular consultations with his medical practitioners.
The Issues
There is a primary issue as to whether X's best interests are served by living with her mother or her father where the mother's proposal is that X live with her in Perth and the father's proposal that X live with him in country Victoria.
There are broad issues in respect of the capacities of each of the parties to attend to X’s physical, intellectual and emotional needs where both parents suffer historical mental illnesses and where the relationship, such as it was, between the parents themselves was brief and where difficulties of communication, co-operation, respect and trust prevail.
The mother raises issues as to the father's insight and capacity to be protective of X and specifically in respect of exposure to members of his family who may suffer intellectual disability and/or unhealthy interest in pornography and/or inappropriate sexual behaviour.
The father raises issues as to the mother's insight in understanding the need for X to have a relationship with him and the mother's failure to prioritise X's needs accordingly over and above her own interests.
There is an issue for X of possible change in her primary parent where X has lived with the mother as her primary parent for all of her life.
Neither party is currently in employment and there are issues of logistics and expenses for the child moving between the parents and compounded by the mother's preference to live in Western Australia.
There is an issue as to whether the relationship between X and the father could endure the less frequency of direct contact should she live in Perth as well as the costs and logistics of maintaining that relationship.
Not unusually, matters of historical family violence were to the fore and emphasised in cross-examination and relied upon by the mother in particular.
There remains an issue as to the child's surname albeit there is now apparent agreement with concessions by each of the parties that X should bear the surname ‘Naparus-Frankham’.
The Father’s Case
The father's evidence suggests that he is a reluctant candidate for primary care of X but is obliged to pursue such application as he believes that this is the only option for X to maintain a relationship with both of her parents where he argues that the mother has not and would not support or facilitate his relationship with X.
The father says that the mother is generally a good and loving parent for X save and except for her inability to accommodate X's relationship with him.
The father says that should X relocate with the mother to Western Australia then a combination of the mother's attitude, financial constraints and logistical difficulties will not permit the maintaining of a relationship between X and her father and in circumstances where that relationship between the five year old child and the parent needs proximity and frequency in order to properly flourish.
The father says that he can offer a supportive and protective home for X and is prepared to ensure the proper supervision and protection of his daughter.
The Mother’s Case
The mother says that she has been X's primary parent and with the implication that X and would not cope with being removed from her primary care. The mother says that her own support network and, in particular, her mother and her sister reside in Perth and that she has no relationships, friendships or support, in Victoria.
The mother says that a relocation for X with her to Perth will allow the mother to pursue employment and hence provide financial support for X where the father is unemployed and offers only the statutory minimum of child support.
The mother says that, evidenced by her current sojourn in Perth, her mental health has improved by living with the support of her mother and sister and being happier in herself and that vicariously this will be in X's best interests.
The mother says that the father lacks the capacity, experience and insight to be X’s primary carer. Specifically, the mother argues that the father lives with or associates with members of his foster family who variously suffer intellectual disability, propensity for overt sexual behaviour, and/or criminal histories.
The mother says that she will support X's relationship with the father and will contribute to the costs of travel between Western Australia and Victoria in circumstances where she says that X does, in fact, have a developed and meaningful relationship with her father such that would endure the decrease in frequency of time but where that relationship can be accommodated by block periods of time in school holidays as well as any reasonable time during visits by the father to Western Australia.
The Independent Children's Lawyer’s Case
The change in the ICL's position from the commencement of the trial until final submissions seems based to a large degree on the evidence of the family reporter, Mr D. The ICL relies upon the mother's recent behaviour in respect of Court orders (detailed below) which was provided to Mr D orally as a chronology and where the ICL emphasises that the placing of X with the father would not be as a 'punishment' of the mother rather than a reference to the further breakdown of trust between the mother and the father and the mother's habitual ignoring of Court orders. The ICL says that should the mother relocate with X then it is unlikely, on the balance of probabilities, that the child would have a consistent or beneficial relationship with the father. The ICL says that the mother's proposal involving X relocating to Perth is 'impractical, unworkable, unable to be financially viable, unlikely to be followed by the mother.' The ICL noted that the mother has no employment, no savings, is in debt, and has made no job applications. Further, the father is not in a financial position to travel to Perth and/or finance travel for the child from Perth to Victoria. The ICL argued that there is no goodwill from the mother to the father referencing her evidence in Court that the ‘very sight of him makes me feel sick.' The ICL says that there is 'an air of desperation in the mother's proposal’ and such is not supported by the evidence, the mother's financial position, or her historical attitude towards the father.
The ICL argues that the evidence shows the father to have a close and warm relationship with X despite never having primary care of her and the child having only spent two overnights with him. Nevertheless, the mother herself acknowledges a warm and loving relationship for X with the father and the same was observed by Mr D in his observations of X and the father in 2018. The father's evidence is that X settled well when placed into his care following the recent execution of a Recovery Order and despite what would obviously have been a traumatic event for the child.
The ICL argues that, even leaving aside the mother's recent behaviour, the Court is still left with an analysis or comparison of the parents’ proposals. Again, like the family reporter, the ICL argues that the only reasonable likelihood of X having a relationship with the father is if she does not relocate to Perth. In this respect, and whilst being aware of the wide spectrum of considerations in this complex matter, the ICL referenced the comment of the family reporter, Mr D, that the placing of X into the care of the father would be ‘a lesser of two evils’ if compared to the likelihood of no relationship between child and father should the relocation be permitted.
Background
The background to this matter is complex, significant and relevant to the ultimate consideration that I now make in respect of X's best interests. The ICL has helpfully set out a relevant chronology in his outline of case and which does not appear to be controversial. I borrow from that document in the chronology set out below.
The mother is 41 years of age. She is Country K by origin but has lived in Australia since 1986. There is no evidence that she has currently re-partnered. She and X live at this time with her own mother in Perth. I am told and accept that the household speaks Country K as a first language and that X is exposed to and enjoys her Country K culture. The mother also has a sister living in Perth. Neither the maternal grandmother nor the aunt provided affidavits or gave evidence in these proceedings. The mother is currently unemployed but has historical qualifications in accounting. The father's unchallenged evidence is that the mother has not worked since 2009.
The father is 37 years of age. He lives in Town F in regional Victoria which he says is a small town of some 300 inhabitants. That appears to have been the father's habitual town of residence although he now says that he contemplates a move to City J but perhaps only to accommodate any logistical issues for changeovers for X should the mother return to her previous residence in City B. Town F and City B are approximately five hours drive apart. The father is unemployed. He has some employment history in allied health care. He expresses a wish to return to the workforce but gave no evidence of any job applications. The father's recent family tree is somewhat complicated. The evidence suggests that he was raised by his biological mother's former female partner who in turn operated as a foster carer. There is no evidence that the father is currently re-partnered. He has three ‘foster brothers’ currently living with him including Mr G (aged 31), Mr L (aged 23) and M (aged 13 years). The father says that he is recently accredited himself as a foster carer. The father has a 19 year old son, Mr N, who usually lives in Melbourne and is a university student but might have recently been living with the father during the covid-19 virus. Mr N’s mother may have been a foster child of the father’s foster mother. The mother’s evidence suggests that she considers this to have been an ‘incestuous’ relationship.
The parties met online in about 2009. At that time the mother was living in Perth and the father in Victoria. In 2013 the mother moved from Perth to live in Victoria. The parties dispute the motivation of that move where the father says that the mother was 'homeless' after a dispute with her own mother and the suggestion from the mother being that she moved to Victoria to pursue the relationship with the father. In any event, they commenced living together in a domestic relationship in or about early 2014.
X is the only child of the relationship and was born in 2015. She is five years of age.
The parents first separated on 12 October 2015. At that time police obtained an intervention order against the father in favour of the mother and the child as protected persons.
On 18 December 2015 the parents entered into a Parenting Plan providing for X to live primarily with the mother and in early 2016 the mother obtained accommodation for herself and X in City B being some five hours travel from Town F.
On 6 September 2016 Final Orders were made by consent providing inter-alia:
(1)That the parents have equal shared parental responsibility for X;
(2)That X live with the mother;
(3)That X spend time with the father each fourth weekend on each Saturday and Sunday from 11.00am to 5.00pm and by Skype three days per week;
(4)That the mother not be permitted to relocate further than 80km from City B;
(5)That without admitting the necessity thereof, the father was not permitted to allow the child to come into contact with Mr G.
In or about January 2017 the parties again commenced living together under the one roof in City B. There is dispute between them as to whether or not their relationship reconciled. The suggestion by the father is that the move was one of convenience in respect of his relationship with X and may have occurred on a ‘two-week on/two-week off basis'.
On 26 April 2018 the parties attended a s.11F conference in respect of further disputes and perhaps with an hiatus in the father’s time with X.
On 30 April 2018 interim orders were made being orders of the Court and not by consent as follows:
(1)That X spend time with the father on Wednesday 2 May 2018 and a play centre in City B, with the paternal grandmother Ms H, to remain in substantial attendance;
(2)Commencing 19 May 2018 X spend time with the father each alternate Saturday;
(3)Commencing 14 July 2018 X spend time with the father each alternate weekend on both Saturday and Sunday from 11.00am until 5.00pm on each day;
(4)That pending availability of supervisors changeover at O Contact Centre occur at McDonald's City B and Suburb P at the commencement and conclusion of time, respectively.
X spent time with the father on 2 May 2018 at a play centre in City B in accordance with the orders of 30 April 2018.
On 19 May 2018 the father and his mother arrived at the changeover location. The mother did not attend with the child. The mother later communicated to the father that there would be no further time-with for X and the father.
On 28 May 2018 the mother of filed a Notice of Appeal in respect of the interim orders made 30 April 2018. On 29 May 2018 she filed an application for a Stay in respect of the interim orders.
On 1 June 2018 the mother communicated that she would not be bringing the child to the changeover as the child was extremely ill.
On 16 June 2018 the father attended a changeover pursuant to the orders of 30 April 2018. The mother did not attend with the child.
On 30 June 2018 the father attended at the changeover. The mother did not attend at the changeover but communicated to the father that the child was ill.
On 14 and 15 July 2018 the father attended at the changeovers. The mother did not attend at the changeovers.
On 20 July 2018 the mother's application for a Stay was dismissed.
On 28 and 29 July 2018 the father attended for the changeover. The mother did not attend.
On 11 and 12 August 2018 the father attended at the changeover. The mother did not attend.
On 20 August 2018 the parties met with family consultant Mr D for the preparation of the first family report.
On 25 and 26 August 2018 the father attended for the changeover. The mother did not attend.
On 29 August 2018 an independent psychiatric assessment of the father was undertaken by Dr Q. Dr Q concluded that there were no issues or risks identified with respect to X in the care of the father.
On 6 September 2018 Mr D's first family report was released. He recommended inter-alia that X remain living primarily with the mother but did not support the mother's application to relocate to Perth with X. He recommended time for X with the father progressing to each alternative weekend from Friday at 5.00pm until Sunday at 5.00pm and, when X commenced Prep, for equal share of all school holidays.
On 8 and 9 September 2018 the father attended for changeover. The mother did not attend.
On 21 September 2018 the mother's Appeal was heard and dismissed by his Honour Justice Strickland.
On 22 and 23 September 2018 the father attended for changeover. The mother did not attend.
On 22, 23, 24 and 25 October 2018 her Honour Judge Mercuri heard the substantive parenting case. Her Honour’s orders and reasons were delivered on 28 February 2019 providing inter-alia for the following:
(1)All previous parenting orders be discharged;
(2)Subject to order (3), the parties have equal shared parental responsibility for X;
(3)That should the mother reside out of the state of Victoria, the father will have sole parental responsibility for X in relation to medical and educational decisions and the parties otherwise continue to have equal shared parental responsibility;
(4)The mother be prohibited by injunction from relocating the child's residence out of the radius of 50 kilometres from the centre of City B in Victoria, save and except if the relocation is within 50 kilometres of the father's residence;
(5)While the mother remains resident in Victoria:
a.the child live with the mother;
b.the child spend time and communicate with the father inter-alia and progressing to time on an ongoing basis on alternate weekends from 5:00pm Friday until 5:00pm Sunday and block periods of school holiday time once X commenced primary school.
Her Honour's orders continued and provide that:
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 in the paternal grandmother's home in Suburb P; and
b.the child spend time with the mother variously on weekends in Victoria but progressing to half of school holiday time.
The mother lodged an Appeal in respect of Judge Mercuri’s orders, such being heard and delivered by the Full Court on 18 February 2020. The mother's Appeal was successful. I have read neither the reasons of her Honour Judge Mercuri nor of the subsequent Full Court. However, the headnote from the decision of the Full Court of 18 February 2020 provides:
FAMILY LAW – APPEAL – PARENTING - Procedural Fairness- Where the parties mental health was in issue - Where the primary judge relied on the report of a psychiatrist determining the father was of sound mental health- where that report was only given to the mother on the morning of the trial - Where the mother objected to the primary judge’s receipt of that report - Where that objection was not determined - Where the mother then sought to cross examine that psychiatrist but was denied the opportunity - Consideration of a litigant’s right to cross examine a witness - Where it cannot be said that such cross examination could not have materially affected the outcome - Where it is unnecessary to consider the remaining grounds of appeal - Appeal allowed – Matter remitted for rehearing.
Sometime in 2019 the father's time with X recommenced but on Saturday day time only with the mother not committing to progress to overnight time.
The last time the father saw X pursuant to the interim orders was on 10 August 2019. The mother objected to the presence of the father's foster brother. The mother thereafter unilaterally 'suspended' the father's time. However, telephone time continued each Wednesday and Sunday between X and the father. The evidence is that the father himself may have ‘suspended’ his time with X upon the arrival of the covid-19 virus in about March 2020.
On 5 April 2020 the mother sent a MyMob message to the father advising that telephone time would not proceed as she was driving to Perth with X and her mother. The evidence suggests that this event occurred on the day prior to the closing of borders to Western Australia on account of the covid-19 pandemic. Upon the mother arriving in Perth with X the twice-weekly telephone calls with the father resumed. However, the mother later placed a condition on such calls that the father's biological mother not be allowed to participate in future calls after it is alleged that the mother overheard the paternal grandmother wishing X a happy birthday.
The mother made application for an alternate family reporter for the remitted trial. That application was dismissed on 6 May 2020.
On 7 May 2020 Mr D conducted telephone interviews with the parties. The covid-19 virus prevented face-to-face observations of the child with the parents. Mr D's report is dated 25 May 2020 but, from my recollection, was not released to the Court and the parties until Monday 9 June 2020.
On 24 April 2020 the mother, having left Victoria with X, filed an application initiating proceedings seeking interim orders, inter-alia that she be permitted to remain in Perth with the child. I heard that application on 9 June 2020 after adjourning the substantive trial. I made the following orders:
(1)That the Interim orders of 30 April 2018 in respect of the child, X born in 2015 (“X”) remain in full force and effect but subject only to the current state border closures and for these purposes that within 7 days of the removal of travel restrictions between Western Australia and Victoria the Mother return the child to reside in the City B municipality of Victoria and for these purposes, time between the child and the father commence on the first Saturday within 14 days of such travel restriction removal;
(2) The trial date of 9 June 2020 is vacated;
(3) The proceedings be adjourned for final hearing on 26 October 2020 at 10.00 am with priority at the Federal Circuit Court of Australia at Melbourne (for an estimated duration of approximately four days);
(4)That upon the direction of the Independent Children's Lawyer, the mother make the child available for any further interviews and observations by Mr D, the father and/or the mother for the purposes of an updated Family Report.
The re-hearing of this matter was listed before Judge McGuire in the Federal Circuit Court on 9 June 2020. The trial did not and could not proceed. The matter was adjourned on a combination of applications of the mother and Independent Children's Lawyer where the mother did not have adequate computer technology, the family report had not been provided to the parties, and the Independent Children's Lawyer argued:
That the mother had unilaterally removed the child from the state of Victoria on 5 April 2020 to the state of Western Australia only a matter of days prior to the state lockdown of borders due to the Covid-19 virus. The actions of the mother were in breach of the Interim orders made by the Court on 30 April 2018 and she should return with the child to the state of Victoria consistent with the recommendations made by Mr D in his family report dated 7 May 2020.
The mother did not comply with my orders of 9 June 2020. She subsequently appealed those orders. She applied for a stay of the interim orders of 9 June 2020. That application was refused. The mother appealed that application. The father brought an application for a Recovery Order. I made the Recovery Order but with such order to lay in Court and not be executed for a period of one week, together with a personal plea from the bench to the mother to return the child to Victoria pursuant to my orders and so as to avoid the trauma for X of a Recovery Order. The mother did not return. The Recovery Order was issued and executed. The mother appealed the issue and execution of the Recovery Order. The mother then made an application that I recuse myself from further carriage of the matter on the grounds of perceived bias. That application was unsuccessful. The mother appealed that dismissal of her application. The mother made further application for a Stay of the execution of the Recovery Order. That application was unsuccessful. It is my understanding that the mother lodged a further Appeal. All Appeals were ultimately unsuccessful with a full bench of the Full Court delivering judgment and reasons on 25 September 2020.
Despite the above, and at the time of this trial, the mother had still not returned to Victoria with X.
The mother was represented before me on 9 June 2020. She was subsequently self-represented during further interim and interlocutory applications but was represented by Ms Cranenburgh of Counsel at the trial before me. Ms Cranenburgh commented that she had only received her brief of instructions shortly prior to the commencement of the trial. No application for an adjournment was made. My observations were that Ms Cranenburgh was fully instructed as shown by her comprehensive cross-examination of the father and the family reporter.
The father has been represented by solicitors and Counsel at every Court event, including the trial. The ICL has appeared at the interim/interlocutory events but was represented by Counsel, Ms Bonney, at the trial.
The Recovery Order was executed in Perth on 21 July 2020. The father had flown to Perth, presumably at his own expense, to collect X. He returned to Victoria that day with the X.
The evidence is that the mother was (understandably) reluctant to hand the child to the father through the intervention of police officers. She travelled to Perth airport and later returned herself to Victoria soon after the father.
X spent two nights with the father following the execution of the Recovery Order. The mother then penned an email letter provided to the father's solicitors, the ICL, and the Chambers of his Honour Justice Strickland (who had presided over various Full Court Appeals) indicating her intention to remain in Victoria until the hearing of the substantive application in October 2020.
Two days later, on 25 July 2020, the mother flew back to Perth with X without notice to or permission of the father.
The Evidence - Credit
The mother provided affidavits, gave evidence and was subjected to lengthy cross-examinations. The ICL in her final submissions described the mother's evidence as ‘unconvincing, evasive, defensive, and embellished’. Having had the advantage of seeing the mother give her evidence, be cross-examined and often react to the evidence of the father or submissions of Counsel, I adopt the adjectives used by the ICL.
The mother's evidence was striking in its negativity and she was unable, when asked by Counsel for the father, to find positives in respect of him or his parenting of X save and except perhaps that he loves his daughter. The mother's personality and attitude was perhaps at its most exposed when asked a question by Counsel for the father as to whether or not she carried any photographs of the father in X's room or home? Her body language reaction and response was striking when she volunteered 'the very sight of him makes me sick.'
My observations and understanding of the mother's evidence persuade me that she continues to feel entitled and enabled in her parenting of X and consistent with her failure to comply with Court orders both recently and during 2018. At times I gleaned the impression that the mother saw all 'rights' in respect of her daughter resting with her rather than with X herself.
The mother at times became emotional and tearful when giving her evidence but was for the most part brusque and assertive. She was not prepared to make admissions against interest and her evidence at every juncture was tailored towards shoring up her own case.
The adjectives and descriptions I give above are stark and hopefully demonstrative because, regardless of those observations, there were indications at times, and when the mother let down her guard, of a devoted and loving parent and consistent with the father's complimentary description of her. However, the sense of 'ownership' that I gleaned from the mother, dominated her evidence and her demeanour where she seemed simply unable to grasp the notion of X's best interests being served by having a relationship with both of her parents and where any such ‘concessions’ were made they seem to me to be only in the form of lip-service rather than legitimate.
Counsel for the ICL and the father argued strongly that the Court should not 'trust' the mother to facilitate and support X’s relationship with the father if she be the primary carer. I watched and listened to the mother carefully and tend to disagree but only discretely as to the conclusion of Counsel. I expect that the mother would, in fact, be more inclined to comply with Court orders (leaving aside financial and logistical considerations) but only should she first obtain the orders or result that she desires being that she be the primary carer for X; that she have sole parental responsibility for X; and that she and X be permitted to live in Perth. This attitude is perhaps best put by the father who said in his evidence that 'It’s either Ms Naparus’ way, or the highway'!
I note that the mother has suffered some mental illness diagnoses and has long been prescribed dexamphetamine for a diagnosis of Attention Deficit Disorder (ADD) of some 20 years. Without the benefit of oral evidence from any medical practitioner, I can only speculate as to whether or not this condition has had some impact on the mother's mind set and social attitudes?
The Father
The father provided affidavits, gave evidence and was cross-examined extensively by the mother's Counsel and very competently and relevant to the mother's case. The ICL also cross-examined the father.
The father was an impressive witness. He presented as objective and child focused in tune with X's needs. His responses in cross-examination were considered and informed. He presented as a credible and honest witness. I did not get the impression that his evidence was contrived or structured. Similarly, he was able to be complimentary in respect of the mother's parenting and emphasised on a number of occasions a previous preference for X to live primarily with the mother if he could be confident that the mother would support his relationship with X after these Court proceedings. Significantly, he made proper admissions in respect of matters of family violence but was able to give plausible and contextual evidence as to those matters. Further, he was able to acknowledge the mother's concerns in respect of protective issues in relation to members of his foster family but again impressed as being objectively protective of the X.
Ms H
Ms H provided an affidavit of 14 October 2018. She was cross-examined briefly. She is the father's biological mother and hence X's grandmother although the situation is somewhat confusing in that the father refers to Ms H's former partner as his ‘mother’. Ms H's evidence was unremarkable but, in my view, non-partisan. She referred to an historical civil and good relationship with Ms Naparus and to her own assistance at changeovers in 2017.
Dr Q
Dr Q is a consultant psychiatrist and has provided assessments in respect of each of the parents. She was not required for cross-examination and her affidavits annexing the reports and assessments were read into evidence. Dr Q reviewed all of the copious material filed in the history of this matter.
Dr Q saw the father prior to the first trial. She provided a second assessment following examination of 18 May 2020. The father's reported history is consistent with his affidavit material filed in this Court.
The father reported to Dr Q and admitted a history of anger, anxiety and depression. At page 11 of Dr Q's report appears the following:
At this examination, Mr Frankham said 'I had issues dealing with my anger, anxiety, feeling when I was younger, I went and saw a psychologist when I was 15 years old. I have seen counsellors throughout my life, because I've had feelings - why am I getting frustrated, sad, teary about something so small? until last year. The Men's Behaviour course really taught me a lot about dealing with violence and feelings.
Mr Frankham reported no substance abuse history.
The father reported being the victim of sexual abuse between the ages of 7 and 12 years. He has received counselling.
Dr Q observed the father to be 'cognitively, he was alert, orientated. He reported long-term difficulties with attention, concentration and memory.' Dr Q diagnosed ‘Dysthymia, depression with anxiety, currently stable - (previous post-traumatic stress disorder) (probable Attention Deficit Disorder)’.
The Dr Q's prognosis at page 18 is ‘His mood is likely to fluctuate because of lack of access to his daughter while awaiting family court, however this is not severe’. Dr Q recommended continued counselling or psychological support. Specifically at page 19 Dr Q opines in respect of the father:
As of time of examination, he does not appear to pose any risk to his daughter in himself. He is very attached and loyal to his foster brothers, and may underestimate risks to X. If he became severely depressed, he could be inattentive to her needs. He has long standing difficulties with concentration and memory, which could impact on his ability to provide stable, organised, longer term care.
Mr Frankham's mental health currently appeared fairly stable. His anxiety and dysthymia are a reaction to the stresses of the family court matters. He has long standing difficulties with concentration and memory.
He acknowledged issues with anxiety, anger and depression from childhood sexual abuse, denied any current depression or substance use.
He is aware of his mental health issues and reported being compliant with treatment. He valued therapy from a counsellor X in 2019 and is considering seeing a psychologist about ADD symptoms.
…
As of time of examination, he does not appear to pose of risk to X himself. If he became depressed, he could become inattentive to her needs. It is of concern that there are many foster brothers, some with disabilities and alleged preoccupation with pornography, who he is close to and in regular contact with, if X is in his care.
Dr Q's report in respect of the mother follows examination of 12 May 2020. The examination was conducted via Skype due to the mother being in Western Australia. Dr Q was satisfied that such examination was 'adequate for undertaking this assessment effectively'.
Ms Naparus related a history consistent with her affidavit material. At page 8 of the assessment Ms Naparus is reported as:
With regards X, Ms Naparus said 'she was tested as gifted, quite advanced. I'm hoping to be able to stay here'. She said Suburb R is in the upper class suburbs, next to the beach, and felt she could provide better opportunities for X there.
She said she wouldn't contemplate self-harm, 'I’m breathing to look after the child,)' she said she had 'moments of 0/10, if it wasn't for X. I've shielded her from all of this. I never let her see me cry, I put on a strong face. I am usually strong.
I literally felt like I was prison (sic), I couldn't work, couldn't move. In Suburb S, City B, he wanted to keep me there so he could see his child once a month.
I want to do it myself, I can work, I don't want to sacrifice and put her in childcare all the time. She said her mother could help look after X if she returned to work. She said 'it felt like they were trying to take my child. I stopped his contact a couple of times.'
The mother confirmed a diagnosis of ADD and a prescription for dexamphetamine for the past 20 years. She says that she sees a Perth psychiatrist each six months. She reported no substance abuse issues. At page 12 of Dr Q's assessment the mother is reported as:
She said 'I am stubborn, I have to be in control of things,' mild obsessional traits of paying attention to details and cleanliness.
Dr Q diagnosed the mother as:
Reactive anxiety and dysthymia, part of post-traumatic stress symptoms, with anxiety and depression (in the context of relationship difficulties and alleged family violence)
Attention Deficit Disorder
Mild obsessional traits
Stress of dealings with ex-partner and family court matters.
Dr Q provides a prognosis as:
Currently, her mental health has improved since returning to Western Australia, she does not have any significant psychiatric issues and her prognosis is good. There is a risk of relapse of anxiety and dysthymia, especially if she is stressed with family court matters and triggers such as contact with the father and his family.
…
Currently she does not have any significant psychiatric or personality issues impacting on her functioning. Her attention deficit disorder is stable and treated with dexamphetamine, and her concentration and attention to detail is above average.
I recommend she continues with her current supports, ie her psychologist, psychiatrist and general practitioner.
Her mental health currently appears stable.
She displayed good insight into her mental health and wellbeing, felt that she had improved with the move to Western Australia, support from her counsellor, and maintaining a balanced approach to her health and wellbeing despite the ongoing stresses she is under.
…
She displayed appropriate care and concern of X's health and wellbeing, good understanding of her needs and the capacity to look after and promote her health and wellbeing.
Ms Naparus acknowledged a history of Attention Deficit Disorder, and anxiety and depression in relation to stresses, said she has been receiving long term dexamphetamine treatment for Attention Deficit Disorder, counselling for post-traumatic anxiety and depression. She denies the father's allegations of family violence.
In respect of Ms Naparus's capacity to facilitate X's relationship with the father, Dr Q noted:
She is mindful not to jeopardise X's relationship with the father. She is worried about X’s safety if he has unsupervised access as she does not feel she can trust him to ensure X is not in contact with his foster brothers.
Family Report – Mr D
Mr D is a Reg 7 Family Consultant. He gave evidence and was cross-examined. He has provided two reports being firstly a report of 6 September 2018 prepared for the first trial between these parents and a second report dated 25 May 2020.
Mr D impressed as a professional, informed and considered expert. His qualifications are in social work. No issue was taken with his expertise.
Mr D's recommendations in 2018 were for the parents to have equal shared parental responsibility for X; X to remain living with the mother; that the mother’s proposed relocation of X to Perth not be supported; and that X spend time with her father progressing to each second weekend and school holidays.
Mr D now recommends that the mother return with X to her residence in City B under threat of a Recovery Order and X is to resume time-with the father. He recommends the parties to each undergo fresh psychiatric evaluation and that this be an interim regime with a further addendum report.
Counsel for the parties each gave Mr D a detailed update of facts and litigation since the release of his report in May 2020. By the conclusion of his evidence, Mr D's recommendations had changed dramatically. He now recommends that sole parental responsibility for X be placed in the 'resident parent'. Significantly, he recommends that X be placed in the father's care on a final basis and if that is going to happen then it should be immediate.
Mr D was of the view that the parents ‘track record’ gives very little possibility for the parents being able to discharge equal shared parental responsibility obligations. Mr D opined in the strongest terms that 'X has been robbed of the opportunity to have a relationship with her father.' He suggested the risk of alienation of the child from the father. Although Mr D was comfortable in making these recommendations without having seen the child with the father, it is clear that he was influenced by the new information given to him only during the course of his evidence in Court.
Relevant Law
Although the mother and X have essentially been in Perth since April 2020 save and except for the few days following the execution of the Recovery Order, the determination of X’s living and parenting arrangements within her overall best interests must involve a consideration of the principles of 'relocation'. It is important to note, however, that the Family Law Act (1975) (‘the Act’) is itself silent as to the notion of 'relocation'. It follows, therefore, that relocation of a child is expressly neither prohibited by law nor is there a presumption against it. That is, a proposal by a parent to relocate a child is simply one factor to be considered among the plethora of others in arriving at orders which, on balance of the probative evidence, are in the best interests of the child.
It is trite to observe that s.60CA of the Act obligates the Court to make orders which have the child's best interests as its paramount consideration. A starting point for the Courts legislative consideration of the objects and principles of the Act set out in s.60B.
(1) The objects of s.60B are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 61DA offers a presumption that it be in the best interests of a child for parents to exercise equal shared parental responsibility. ‘Parental responsibility’ can be defined in a practical sense as all of the duties, powers, responsibilities and authority which parents hold in respect of children by reason of law and usually manifested in long-term and important decision-making for children in respect of issues such as education, religion, medical procedures and similar.
The presumption of equal shared parental responsibility does not apply if the Court is satisfied that there has been family violence or abuse of a child. Alternatively, the presumption may be rebutted by evidence satisfying the Court that such an order would not be in the child's best interests. However, if the presumption applies, is not rebutted or, in any event, the Court makes such an order then the Court is mandated to follow a course of statutory and intellectual consideration, firstly, as to whether the child spending equal time between the parents is both in the child's best interests and reasonably practicable. If the answer to either of those questions is in the negative then the Court turns to consider whether the child spending 'substantial and significant time' between the parents is both in the child's best interests and reasonably practicable. 'Substantial and significant time' is defined in the Act as time which includes both week days and weekends for a child with a parent and time which permits the mutual enjoyment of activities.
In the matter now before me and where matters of geography prevail but together with historical animosity between the parents, neither parent is asking for an order for X to spend equal time between them. Neither parent is asking for an order for 'substantial and significant time'. The mother's proposal is that X lives with her in Perth and effectively spends holiday time with the father. The father's application is that X live with him and, after a moratorium on all time, spends weekend and holiday time with the mother.
The peculiarities of matters involving a potential relocation of a child attracted the consideration of the High Court in MRR & GRR[1] where their Honours emphasised the dual requirements of parenting orders to be both in the child's best interests and 'reasonably practicable'. The Court noted at[15]:
Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s.65DA(1) is not determinative of the questions arising under s.65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both the parents remained in X, (the trial judge) was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.
[1] (2010) 240 CLR 461
Full Court decisions, both prior to and after the significant amendments to the Act in 2006[2], emphasised that there can be no dissection by the trial judge of a parenting matter into discrete issues of, firstly, who the child shall live with and then a further or separate issue as to whether a relocation should be 'permitted'. The Court in Taylor & Barker (supra) observed:
In our view, his Honour dealt with the relocation proposed in the context of his considerations of s60CC and s65DAA, at least insofar as it was possible to do so. It should be implicit in our conclusion in relation to this ground, that a relocation proposal should continue to be considered and evaluated, so far as it is possible, in the context of the making of the necessary findings in relation to s60CC matters; however, as we will shortly explain, such a proposal now also needs to be considered in the context of s65DAA.
[2] Paskandy & Paskandy (1999) FLC 92-878; Taylor & Barker (2007) FLC 93-343
Superior Courts over the years in considering parenting matters involving a relocation have assisted trial judges in extracting a number of 'principles' to ground a consideration which ultimately is in the child's best interests. They may be summarised as follows:
·Relocation matters are to be determined generally with reference to Part VII of the Act;
·The child's best interests remain the paramount but not the sole consideration;
·A relocation proposal is to be evaluated within the context of the necessary findings in relation to the child's best interests (section 60CC matters) and, where appropriate, section 65DAA (reasonably practicable);
·The Court must consider the parties’ proposals, including the advantages and disadvantages of the proposed relocation, and may be required to formulate proposals itself in the best interests of the child;
·Neither party bears an onus to establish that a relocation or a continuation of an existing regime will best promote the interests of the child;
·An applicant for relocation need not show 'compelling reasons' in support of the relocation but must produce probative evidence which permits the Court, on balance, to find that a parenting order involving a relocation is in the best interests of the child;
·The child's best interests must be weighed and balanced with the 'right' of the proposed relocating parent’s freedom of movement but that such an adult 'right' must ultimately defer to the child's best interests.
Section 60CC factors
s.60CC(2)(a) - the benefits to the child of having a meaningful relationship with both parents
This is a primary consideration and one that the father here emphasises. He says that should X live in Perth with her mother then a combination of the mother’s obstructive attitude to his relationship with X, geography and financial constraints will work to thwart his relationship with his daughter. He argues that to date X’s relationship with him has been punctuated and, as argued by the mother, they have only spent two overnights together since the parent’s separation. The implication is that, although the family reporter, the mother and the father himself all agree that X has a comfortable and happy relationship with the father, it is still a developing one in the sense of attachment, support and simply quantity of time.
Although this consideration is a ‘primary' one, it is not in itself determinative of my orders or X’s best interests but rather simply one factor to consider within the plethora of factors mandated by s.60CC(2) and (3).[3]
[3] Champness & Hanson [2009] FamCAFC 96
Whilst the Court is to examine the evidence, both current and past, the process for the Court is both a prospective and qualitative one. That is the Court is to make orders which it considers will work in X’s best interests into the future. Secondly, the object of the consideration is not simply the division of X’s time between parents but rather to make orders which provide for quality relationships for X into the future.[4] The evidence satisfies me that X's primary attachment, source of dependency and support is her mother. She has lived with her mother since separation. Time with her father has been limited and punctuated. X is just five years of age and it could not reasonably be expected that Skype, telephone and other media would be an adequate substitute for direct face-to-face contact in the development of a relationship for such a young child with a parent.
s.60CC(2)(b) - the need to protect X from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence
[4] McCall & Clark (2009) FLC 93-405
The mother makes allegations against the father of violence during this short relationship and a propensity for violence post-separation. She particularises incidents of the father punching holes in walls and doors. She alleges that on one occasion in 2015 he threatened to harm both himself and the mother with a knife. She asserts that he threatened to kill her dog. She alleges that, shortly prior to separation, there was a direct physical incident where the mother was grabbed by the neck and pinned to a bed. On this later occasion police were involved and an intervention order obtained naming the mother and X as protected persons. Generally the mother alleges anger, coercion and control by the father.
The father denies generally the mother's allegations but in his evidence makes certain admissions and gives alternative but plausible explanations. The father has completed an anger management course.
The father asserts that there was a degree of mutuality in the arguments between the two coupled with the mother also making threats such as to remove X from Australia.
It is clear to me that the parties are of different personality type. The mother is assertive and at times volatile and emotional in her responses in Court. The father presented as of more calm and quiet demeanour. I expect that there was a fairly high degree of tension, conflict and argument in their short relationship but that such was effectively situational upon the relationship itself and its ending.
It is notable, however, that the father made admissions to Dr Q of a previous anger management issue which may or may not be connected to him being sexually abused as a child. On the evidence before me, however, and together with such proper acknowledgements, the evidence suggests that the father has attempted to address these issues and with a relatively high degree of success.
My observations of the mother remain as a volatile, aggressive, and confrontational personality. The father says that he obtained an intervention order against the mother when she visited his home following the execution of the Recovery Order where she showed anger and aggression. Again, I connect the mother's demeanour then to X having been removed from her care and the mother’s view that perhaps only she is able and entitled to be the primary carer for X.
s.60CC(3)(a) - any views expressed by the child and any factors (such as her maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child's views
X is just five years of age. As such, she is not capable of formulating or rationalising any informed or mature preferences or views as to her living and parenting arrangements. Nevertheless, both parties acknowledge and Mr D observed X to be completely comfortable in the father's company albeit in 2018 when she was just three years old. It is reasonable to conclude that X herself is highly attached to her mother.
s.60CC(3)(b) - the nature of the relationship of X with each of the parents and any other persons including grandparents or other relative
Understandably X’s prime attachment is with her mother. Her relationship with her father is tenuous. It has been punctuated by gaps in time. It has never been of any regime other than weekend day times. X has only ever spent two overnights with her father since the parent’s separation and those being after the execution of the Recovery Order.
The father argues that should X live in Perth with the mother then his relationship with X will be problematic. Leaving aside argument as to the mother's insight and capacity to facilitate and encourage such a relationship, there are the vagaries of distance and expense. At best, it could be anticipated that X would be a visitor only for school holidays. This will remove any realistic opportunity for the father to participate in X's education and extracurricular activities. Any opportunities for spontaneity and flexibility in that relationship would be lost.
The evidence suggests also actual and potential difficulties in the mother's relationship with X. My observations of the mother giving evidence was of some form of entitlement in her parenting of X. This can be an unhealthy trait and one not conducive to X having full and flourishing relationships with both of her parents. Such, of course, would be accentuated by the geographical distance between the parents anticipated by the mother's application and the consequent lack of exposure for X to her father.
s.60CC(3)(c) - the extent to which each of X's parents has taken, or failed to take, the opportunity to participate and make decisions about long-term term issues in relation to the child; to spend time with the child; to communicate with the child; and to fulfil the parent’s obligations to maintain her
Each of these parents is unemployed. The father pays only the statutory minimum of child support. The mother and X are provided for financially by Centrelink.
The father has consistently pursued a relationship with X albeit initially one only on a regime of time-with.
The mother’s attitude is seriously impeached. She has twice now removed X from Victoria to Western Australia without the father's consent being contrary to Court orders and, on the second occasion, after promising a superior Court judge that she would not do so. She attempts to rationalise her actions but unconvincingly so. She has a history of not providing X for time with the father and notably in 2018. She appears to act impulsively in respect of X and seemingly out of self-interest.
s.60CC(3)(d) - the likely effect of any changes in X’s circumstances, and the likely effect on X of any separation from either of her parents, or any other child, or other person (including grandparent or other relative), with whom she has been living
This consideration is an important one. X has always resided with her mother. It is reasonable to assume that a move to live primarily with her father will have substantial impact on her if only by reason of the quite different personalities of the parents. X is just five years of age, not yet completely socialised, and about to negotiate the milestones of school and establishing other relationships. The likelihood of a change in primary parent may be significantly problematic for X. This was recognised by Mr D as one ingredient of his conclusion of 'a lesser of two evils'.
Should X live with the mother in Western Australia and the father remain in Victoria then the nature of X's relationship with each of her parents will change and likely become entrenched. The mother is the dominant parent and entitled in her parenting. X’s time with the father has been inconsistent and punctuated. The mother's commitment to facilitating X's time with the father between Perth and Victoria will be tested should she remain in Western Australia. In any event, X's time with her father would likely and necessarily be limited to school holidays if only by the financial impracticality of more frequent visits.
s.60CC(3)(e) - the practical difficulty and expense of X spending time and communicating with her remaining parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relationships and direct contact with both parents on a regular basis
This is an important consideration. Neither party is in employment. Neither have savings. Air travel between Perth and Victoria will be a financial impost for both of them. Any possible visits by the father to Perth will bring additional costs of accommodation. X is just five years of age and the costs and logistics of travel would be compounded by the likelihood of the need for an accompanying person. The father lives in country Victoria. The travel for X would be onerous.
s.60CC(3)(f) - the capacity of each of the parents to provide for X's needs, including physical, emotional and intellectual needs
The father is rightly complimentary of the mother's physical care of X. It is her insight into X's emotional need to have a relationship with both her parents that is questionable in the mother. However, the mother’s ambition of returning with X to Perth obscures other practical issues. She has no job and according to the father has not worked since 2009. She gives no evidence of any attempts to obtain employment and her optimism in this regard was broad and unconvincing. She has no independent accommodation. Her claimed support network seems only to be her mother and sister. Neither gave evidence to this Court. The mother has existing accommodation on a lease in City B albeit where the mother says that this property is in an undesirable area in which to raise a five year old child and where she says that the property has suffered break-ins during her absence in Perth.
The father presented in his evidence as an objective and insightful parent. He was able to be complimentary where appropriate of the mother. He was able to recognise deficiencies in his own parenting capacity such as inexperience. He was able to acknowledge potential risks identified by the mother but gave plausible and considered responses. His own support network appears established although again the Court heard only from Ms H.
It is the father's inexperience that is problematic here. His parenting involvement with his now adult son Mr N is not highly particularised. His parenting of X has been extremely limited thus far.
s.60CC(3)(g) - the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of X and either of the child's parents and any other characteristic of X that the Court thinks is relevant
X being just five years of age is very relevant. The mother's proposal anticipates X negotiating onerous travel between Perth and country Victoria. X’s young age also impacts on her ability to maintain a relationship with the father should she live in Perth with the mother.
The mother is of Country K heritage. The evidence suggests that she encourages X's understanding of and participation in that heritage.
s.60CC(3)(h) – if the child is an Aboriginal or Torres Strait Islander
Not relevant.
s.60CC(3)(i) - the attitude to the child, and responsibilities of parenthood, demonstrated by each of the child's parents
The relevance of this consideration is directly and importantly in respect of the mother. The evidence suggests that the mother has prioritised her own self-interest over and above the need for X to have a relationship with each of her parents. As mentioned above, the mother is entitled and possessive in her parenting of X. She has shown a capacity to act unilaterally in respect of X. She has frequently acted contrary to Court orders in respect of X. Her demeanour during this trial does not suggest any material change in attitude.
My observations of the father were of a more objective and insightful parent than is the mother.
s.60CC(3)(j) and (k) - family violence involving the child or any members of the child's family and any family violence orders that are applicable
These matters have been dealt with above.
s.60CC(3)(l) - the order that would be least likely to lead to the institution of further proceedings in relation to X
This is an important consideration. Should, as recommended by the ICL and Mr D, the Court place X into the care of the father then the mother says that she will herself live in Western Australia. This, of course, is her prerogative. This will create the same and anticipated logistical difficulties that will occur should X live with the mother in Western Australia. Further, the strongest likelihood is that the mother would become even more embittered and angry towards both the Courts and the father. There would be a likelihood of breaches of Court orders by the mother. This could lead to further litigation.
Should X live with the mother in Perth then a combination of the mother’s attitude, logistical issues, and finances do not combine to give optimism as to an easy operation of Court orders into the future. This could lead to further litigation.
Should X live with the mother but not relocate to Perth then the mother will inevitably be angry and bitter towards the father with a likelihood of breach of Court orders and hence further litigation.
Seen from the above, there is not a great cause for optimism in respect of this matter. Nevertheless, parenting orders are prospective in their operation. Courts are not so presumptuous as to think that we can make ideal or optimum orders. Courts do expect, however, that parents armed with orders and reasons in respect of their child will move forward and parent cooperatively towards their child's best interests. It is trite to observe that ongoing litigation in respect of children is destructive in itself and contrary to children's best interests.
Findings and Conclusion
Matters involving the proposed relocation of a child, and in particular a child as young as X, are among the more difficult ones coming before these Courts. The consideration here is amplified by the mother's historical attitude of entitlement; the conflictual and antagonistic relationship between the parents; logistical issues, and financial constraints.
In the majority of parenting matters Courts are called upon to make orders only of a discreet nature as to the distribution of actual time between children and parents. This is not the situation with an application involving a relocation. The orders will be stark and highly influential in their operation.
Should the Court permit the relocation of a child then inevitably the remaining parent will be left aggrieved and with a significant sense of loss. The nature of the relationship between the child and that parent will almost surely be changed in its frequency and its nature. Relationships for the child with remaining extended family members will be similarly impacted. Those feelings of loss will often be accompanied by a sense of bitterness to the parent successful in the relocation of the child resulting in ongoing mistrust, lack of communication and cooperation. The remaining parent will be denied a relationship of spontaneity and flexibility in participating in the child's education and extracurricular activities. Practical and logistical issues arise and are often prohibitive to a full and flourishing relationship. As the child grows older, he or she will develop personal relationships and interests which will test the durability of any Court ordered time-with arrangements.
To the contrary, however, orders obligating an unsuccessful applicant to live in a location other than his/her preferred one will inspire similar feelings of anger, loss and bitterness. Blame might understandably be directed to the other parent and again resulting in a loss of trust, flexibility, communication and cooperation. A parent left without perceived family or other support may suffer consequent difficulties in their own parenting capacities and with an impact on the child.
Consequently, the nature of parenting matters involving a potential relocation will inevitably bring with them a sense of ‘win’ or ‘loss’ where the Court is left with little or no room for subtle construction in its orders.
I am able to find that X, at just five years of age, is primarily attached to her mother who she looks to as a source of support and dependency. X’s relationship with her father is not as developed as is her relationship with her mother. This is not a criticism of the father but merely a statement of fact resulting from the disjointed and inconsistent relationship for X with the father contributed in a large part by the mother’s unilateral actions in removing X from Victoria to Western Australia and previous non-compliance with Court orders. The fact is that X has always lived with her mother. She has spent two nights only with her father since the parent’s separation. At just five years of age I can reasonably assume that any adjustments for X in removal from her mother’s primary care would be profound and problematic.
I am able to find that the relationship between the parents is mistrustful, disrespectful, suspicious, non-cooperative, and non-communicative. The father’s evidence persuades me that he would be open to improvements in these regards.
I find that the mother parents X ‘as of right’. She shows little regard to Court orders which do not fit with her own perceptions and self-interest. As such, she does not show any insight into the need for X to have a relationship with both of her parents. The mother’s evidence in Court does little to convince me that she has developed any such insight or objectivity in respect of her daughter’s needs.
I accept the father's evidence that the mother is a good and capable parent in respect of X's physical needs.
My observations of the father suggests that he is potentially an insightful and a good and capable parent for X but one yet inexperienced in the care of this child.
I am satisfied that the father acknowledges any ‘risks’ identified by the mother in respect of members of the father's family or foster-family and would be properly protective of X accordingly.
Neither party is in a financial position, in my view, to easily negotiate the logistical and financial issues of travel for X between Perth and country Victoria as anticipated on the mother’s application. The evidence does not persuade me of any imminent changes in their circumstances.
As acknowledged by Mr D, any move of primary parent for X from the mother to the father would necessarily have an impact, emotionally and actually, for this young girl given her age and the fact that the mother has always been her primary parent.
I am generally satisfied that the mother's application to relocate to Perth is out of a long held desire and understandably (and without criticism) from self-interest. She is from Perth and would prefer to live there. I accept that the mother’s happiness and hence, her mental health, would be enhanced by her residing in Perth. Conversely, I accept that the mother would be unhappy and unfulfilled if required to live in Victoria. She has, however, now lived (until recently) in Victoria for a number of years. She is a tough and resilient personality and in all likelihood she would cope with being in Victoria but her personality is such that she would be left embittered.
I accept that the mother has few, if any, established friendship and support networks in Victoria but I also note the lack of any evidence of great particularity or corroboration as to the mother’s support networks in Perth other than her mother and sister neither of whom gave evidence and again noting it being some years now since she left Perth for Victoria.
I am satisfied that there was family violence in the relationship between the parents but am of the view that such was situational or circumstantial to their relationship, its breakdown, and their different personalities. I am satisfied that the mother’s anger and asserted ‘family violence’ in July 2020 was situational upon X being removed from her care by reason of the Recovery Order.
The evidence does not persuade me that these two parents will improve their trust, cooperation and communication in the short term.
I am satisfied that both parties have suffered historical diagnoses of mental health issues but that both receive treatment and medication which, if compliant, will attend to these concerns.
I find that the father is insightful into his historical issues with anger-management and that these are likely connected to his tragic sexual abuse as a child. I find that the father successfully completing an anger management course and shows proper acknowledgement and insight into these issues.
On consideration, there are a number of positives in the mother’s proposal to relocate with X to Western Australia. The mother is and has been X's primary parent. She has a strong desire and preference to live in Western Australia. I have little doubt that she would be happier in herself if this was to occur and that her mental health would be more stable. This in turn would provide comfort, happiness and stability for X. Secondly, the mother would have the support of her own mother and sister where the evidence does not offer any personal networks of support for her in Victoria. It is logical to anticipate that the mother's own personal demeanour, and perhaps her compliance with Court orders, will improve if she is content and happier in herself. The mother has said that she will encourage and facilitate X's time with the father should she be allowed to relocate X to Perth and again this is perhaps a more likely scenario should she be happier in herself and to have achieved her ambition. Further, each of the parents and the family reporter say that X has a comfortable relationship with her father such that might endure less frequent visits but benefit by block periods of time in school holidays. Still further, the mother says that if she becomes settled in herself in Perth then she is more likely to obtain employment and therefore contribute more beneficially to X's financial support. Finally, the mother says that she will feel less 'fearful' of the father if she is in Perth and with the ‘protection' of distance.
Conversely, however, there are negatives in the mother’s proposal which in turn are positives of the father's proposal that X not relocate to Perth and indeed live primarily with him. Firstly, X's relationship with her father cannot be as fully developed as is her relationship with the mother and despite observations as to their comfort. The child has spent punctuated and relatively little time with her father. She has spent only two overnights with him alone. This fact is accentuated and compounded by the difference in the parties’ personalities and likely parenting styles. X’s relationship with her father is therefore more likely to develop into a ‘meaningful’ one if she was to live with her father or have a higher degree of frequency. Secondly, and in a realistic sense, the logistics and expense of X travelling between Perth and country Victoria may well be prohibitive of beneficial time for the child. X is just five years of age. She will need an accompanying person for travel at least for the next year. Neither party is in employment or has savings. My observations thus far are that the mother has not had any 'road to Damascus' insight into the need for X to have an ongoing relationship with the father. She does not have a ‘runs on the board’ in relation to respecting and adhering Court orders providing for X to spend time with the father.
A further option for the Court is that X remain living with the mother but do so in Victoria. This is not the mother’s preference. She presents as a person who will not be happy unless and until she gets her own way and such orders will similarly impact on the mother's demeanour, happiness and possibly her mental health. She has no demonstrated source of support in Victoria. Her personality suggests that requiring her to remain in Victoria, albeit as primary carer for X, will accentuate her anger and bitterness towards the father and this Court. The advantages for X would be of an easier and far more frequent relationship between her and both of her parents. The mother would be away from her preferred support of her own mother and sister but she would be able to travel to Perth during school holidays and the evidence is that the maternal grandmother has previously spent lengthy periods in Victoria with the mother and X.
In conclusion, the family reporter, Mr D, and the ICL now support orders which would place X into the primary carer of the father with a moratorium on time for X with the mother progressing to a traditional regime of weekends and school holidays. Given that I have no reason to not accept the mother’s revelation late in the trial that she would not remain living in Victoria other than as primary parent then this would create all of the difficulties anticipated by X living with the mother in Western Australia in the sense of logistics and finances. Further, and whilst I understand Mr D's colloquial consideration and conclusion as 'the lesser of two evils' I do not, with respect, consider such to be the intellectual process of the Court. The relationship for X with each of her parents would be fundamentally changed by such orders. The impact on this five year old cannot be underestimated. She has only known her mother as her day-to-day parent. She has spent comparatively little time with her father. Whilst the mother is culpable in many respects in her parenting of X and her blatant breach of Court orders, it would not be right to simply visit the sins of the mother onto the child.
In most matters involving a potential relocation, the consideration is very finely balanced, I am of the view that orders which can accommodate the strongest possibility of X maintaining a relationship and developing a meaningful relationship with both her parents is to the forefront of such consideration. Quite simply, I cannot be satisfied that such a relationship for X will occur or continue should the child live in Perth. Secondly, I have real difficulty in rationalising X's best interests with a change of primary care from the mother to the father where this young five year old has always lived with the mother and where, except for some discrete issues, the mother is an adequate and capable parent. Consequently, it seems to me that the best and perhaps only opportunity for X to maintain a relationship with both of her parents is for X to live with the mother but to remain in Victoria.
Realistically, the Court is left with only three options with each bringing obvious and important negatives. If X lives with the mother in Perth or with the father in Victoria then the thrust of the evidence, the circumstances of each parent, and their attitudes generally combine to give me little, if any, confidence in X maintaining any direct relationship with the other parent.
Should X live with the father then she will, as a five year old, be moving from one primary parent to another primary carer and where the attitudes, styles, personalities, and homes of those parents are as different as can be imagined. All of these changes would be confronting in themselves let alone be at the same time as she is negotiating the commencement of her school life. The father is of admirable intentions but with no recent parenting experience of a young child and with various other members of his household some of whom bring their own difficulties whereas X has until now lived as an ‘only child’ in a two-person household with just her mother who cannot be criticised for any lack of focus and devotion to her daughter. These differences would be extremely difficult for both X and the father to negotiate.
Should X live with her mother in Perth then the evidence is that the parents’ finances, the logistical hurdles and the mother’s attitude generally to parenting as-of-right, and negativity toward the father, combine to leave strong doubts as to any consistent face-to-face relationship between X and her father.
There is, of course, a fourth option being that the father move to Perth. Understandably this was not explored at the trial. The father has always lived in Victoria. He has family in Victoria. The mother’s circumstances differ in that she has mainly lived in Victoria since before X’s birth.
In any event, this is not a practical or realistic solution. The mother has now lived in Victoria for some years. She has available accommodation albeit that I accept that it is far from ideal being in City B and in a less than reputable area. The father indicates that he may be willing to move within Victoria or at least to the City J area which may give the mother more housing options.
I accept that the mother is of a personality type that she will not react well to her ambitions in this application not being fulfilled. She is, however, an intelligent and mature woman who has now lived in Victoria for a number of years. An order for X to live with the mother but in Victoria would enable periods of block school holiday time for X which would allow the mother, either with X or alone, to travel frequently to Western Australia.
Consequently, and on a finely balanced consideration of all of the relevant factors against a background of X's best interests, I am persuaded that those interests are best attended by X living primarily with the mother but to do so in Victoria. The father’s time with X will by geographical necessity be limited to weekends and school holidays where the parents should share equally in the costs and efforts of travel. I stress that this determination is made on balance and taking into account all the factors including the mother’s historical mental health issues. It is to the mother's credit that, despite her intense ambitions, she has told this Court that she would 'do whatever it takes' for her to retain primary carer of X. I will order accordingly. However, in all of the circumstances and given the mother’s recent litigation history I will need to place some time provisos on these orders which accommodate both X’s relationship with the father and the logistics of the mother’s return to Victoria or should she later choose to herself move from Victoria then X would live with the father.
On consideration I am also of the view that an order for equal shared parental responsibility is in X’s best interests. I am mindful of the positions of both Mr D and the ICL that the parent with whom X lives should exercise sole parental responsibility. I disagree. It is common for parents at the litigation stage to demonstrate little cooperative parenting capacity. However, both these parents are intelligent and very child focused. Certainly they have a propensity for disagreement. Children can benefit from a breadth of viewpoint. The challenge then is for these parents to contribute, negotiate and compromise. I believe that an order for sole parental responsibility in one parent is far more likely to lead to further conflict and probable litigation.
The issue of X’s surname received little attention in the evidence and Counsel’s submissions. I am of the view that X’s heritage and identity should receive recognition through her surname. Both parties seem to agree that a hyphenated name is appropriate. Consequently the name “Naparus-Frankham” would accommodate X’s Country K heritage and also maintain some consistency of usage.
I certify that the preceding one hundred and seventy-six (176) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Associate:
Date: 26 November 2020
Key Legal Topics
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Family Law
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Civil Procedure
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Injunction
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