Nash & Gammon
[2023] FedCFamC2F 268
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nash & Gammon [2023] FedCFamC2F 268
File number(s): CSC 1031 of 2021 Judgment of: JUDGE COPE Date of judgment: 22 March 2023 Catchwords: FAMILY LAW – parenting – relocation – where mother seeks to relocate from City B to Adelaide with the children – where father opposes relocation – child diagnosed with a mental health condition – where parties both work in transport industry on rosters – where mother currently commuting from City B to Adelaide for work – week about arrangement in place – agreement as to parental responsibility, communication, special times and school holidays – where father concerned about alleged risks posed by mother’s new partner – where Family Report writer supports relocation as mother would be more available to the children – mother’s personal benefits of relocation do not outweigh the negatives for the children – relocation is not in children’s best interest. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) Part VII ss 60CA, 65AA, 121
Cases cited: A v A: Relocation Approach (2000) FLC 93-035; [2000] FamCA 751
AIF v AMS [1999] 199 CLR 160; [1999] HCA 26
B and B: Family Law Reform Act 1995 (1997) FLC 92-755; [1997] FamCA 33
Babcock & Wadell [2019] FamCAFC 129
KB & TC (2005) FLC 93-224; [2005] FamCA 458
Godfrey v Sanders [2007] FLR 287; [2007] FamCA 102
Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520
McCall v Clark (2009) FLC 93-405; [2009] FamCAFC 92
Morgan & Miles (2007) FLC 93-343; [2007] FamCA 1230
Paskansky & Paskansky (1999) FLC 92-878
Sigley v Evor (2009) 33 Fam LR 439; [2011] FamCAFC 22
Starr & Duggan [2009] FamCAFC 115
Tabac & Kelmer [2016] FCCA 1937
U v U [2002] 211 CLR 238; [2002] HCA 36
Wilburn & Wilburn [2019] FCCA 2131
Zahawi & Rayne [2016] FamCAFC 90
Division: Division 2 Family Law Number of paragraphs: 150 Date of hearing: 10 & 11 November 2022 Place: City B Counsel for the Applicant: Ms Stocks of Counsel Solicitor for the Applicant: C Lawyers Counsel for the Respondent: Mr Jacobs of Counsel Solicitor for the Respondent: D Lawyers ORDERS
CSC 1031 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS NASH
Applicant
AND: MR GAMMON
Respondent
order made by:
JUDGE COPE
DATE OF ORDER:
22 March 2023
THE COURT ORDERS THAT:
Parental Responsibility
1.The mother and father have equal shared parental responsibility for the children namely X born in 2012 and Y born in 2014 (“the children”).
2.The parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)They shall inform the other parent about the decision to be made;
(b)They shall consult with each other on terms that they agree;
(c)They shall make a genuine effort to come to a joint decision.
3.That notwithstanding the provisions of Order 1:
(a)The mother shall be responsible for the daily care, welfare and development of the children when they are living with or spending time with her.
(b)The father shall be responsible for the daily care, welfare and development of the children when they are living with or spending time with him.
Living Arrangements
4.Subject to order 5 the children will live with each parent in City B at all times as agreed and failing agreement a week about arrangement with such changeovers to occur Friday at the conclusion of school, or 3.00 pm if a non-school day.
5.Notwithstanding order 4 herein, the children will spend the following times with;
(a)The mother
(i)If not already with the mother, from 3.00 pm to 7.00 pm on the children's birthdays;
(ii)If not already with the mother, from 3.00 pm to 7.00 pm on the mother's birthday.
(iii)The whole of the Mother 's Day weekend, from the conclusion of school on Friday to the commencement of school on Monday;
(iv)Unless otherwise agreed, the children shall remain with the mother for the whole of the Easter holiday period in 2022 and alternating each year thereafter;
(v)For the first half of all school holidays in odd numbered years and the second half of all school holidays in even numbered years.
(b)The father
(i)If not already with the father, from 3.00 pm to 7.00 pm on the children's birthdays;
(ii)If not already with the father, from 3.00 pm to 7.00 pm on the father's birthday;
(iii)The whole of the Father 's Day weekend, from the conclusion of school on Friday to the commencement of school on Monday;
(iv)Unless otherwise agreed, the children shall remain with the father for the whole of the Easter holiday period in 2021 and alternating each year thereafter;
(v)For the first half of all school holidays in even numbered years and the second half of all school holidays in odd numbered years.
6.That for the purposes of calculating the school holidays, the school holidays shall commence on the Friday at the conclusion of the school term. The changeover shall be 12 noon on the middle Sunday of any school holiday period and the children shall be returned to the other parent no later than 3.00 pm on the last Sunday of the school holiday period.
7.That except as otherwise agreed in writing handover of the children will take place on a school day at school and on a non-school day at E Street McDonald’s.
Communication
8.The children shall communicate with their parents on the telephone or via facetime/electronic means at such times as a child reasonably requests but otherwise at any reasonable time between 3.00 pm and 7.30 pm any night and in relation to such communication each parent shall:
(a)ensure that the children are available to receive the telephone call;
(b)arrange for the children to telephone the other parent on the following night, if for any unforeseen circumstance, the children miss the telephone call from that parent;
(c)ensure that the children have privacy during the conversation and specifically not monitor or record the calls or allow a third party to do so.
9.The parent responsible for the care of the children is to contact the other parent as soon as practicable if either of the children become seriously ill, are hospitalised, or are involved in an accident, and are to inform the other parent of the name and address of any medical practitioner and treating facility.
10.That the parties shall communicate via Talking Parents app except in the case of an emergency when they shall communicate via text or mobile telephone.
Authorities
11.These Orders shall, without more, act as authority to each child’s school to provide to each parent (at that parent’s expense) information about each child’s education progress, school related activities, copies of school reports, photographs, photograph order forms, certificates, awards obtained by the child and other school communications ordinarily provided to parents, subject always to the discretion of the school.
12.These Orders shall, without more, act as authority to each child’s medical practitioners (including counsellors and psychologists) to provide to each parent (at that parent’s expense) information about each child’s medical condition, treatment and copies of medical records and reports, subject always to the discretion of the medical practitioner.
Restraints and non-denigration
13.During the time the children are with either parent, that parent will:-
(a)Respect the privacy of the other parent and not question the children about the personal life of the other parent;
(b)Speak of the other parent respectfully;
(c)Not denigrate or insult the other parent or other family members in the presence or hearing of the children;
(d)Use their best endeavours to prevent any other person from denigrating or insulting the other parent or other family members in the presence or hearing of the children; and
(e)Not discuss parental matters and any other adult issues with the children.
14.That both parents will refrain from video recording or voice recording the other parent during the course of changeovers or at any other time and use their best endeavours to ensure no third party makes recordings.
15.Each parent will ensure that the schools attended by the children, and the children’s usual treating medical practitioners (including counsellors and psychologists) are provided with a copy of these Orders.
Other orders
16.Each parent shall complete the Parenting Orders Program and shall provide to the other, within six (6) months of the date of these Orders, a certificate evidencing such attendance and completion at the course.
17.Each party shall provide to the other written notice, via Talking Parents App, of any intention to travel interstate with the children, at least 24 hours prior to such travel occurring except in the case of an emergency.
18.The Independent Children’s Lawyer be discharged 30 days from the date of this order, or in the event that an Appeal is filed at the conclusion of that Appeal.
19.That otherwise all extant applications stand dismissed and the matter is removed from the list of active pending cases.
NOTATIONS
A.Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
B.Each parent has indicated their consent to undertake the Parenting Orders Program in accordance with Order 16.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Nash & Gammon has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE COPE
PART 1: INTRODUCTION
The application before the court is in relation to the living arrangements for the children X born in 2012 and Y born in 2014. At the time of trial the children were almost 10 and 8 years of age respectively.
The child X has a diagnosis of a mental health condition. The Family Report writer describes this as a recurrent pattern of behaviour as a way of dealing with stress and anxiety. Treatment involves a combination of behavioural therapy and the removal of the cause of stress.
The parties commenced cohabitation in 2009 and separated on 18 October 2019. Post separation they lived under the one roof until 31 January 2020. The parties have lived in City B since 2009.
Both parties work in the transport industry on rosters. Both parties have access to affordable travel due to their work. The father works out of City B. Since 2017 the mother has worked out of the Adelaide base, commuting from City B for that purpose.
The current proceedings were commenced by the mother on 10 December 2021. The mother seeks to relocate to Adelaide with the children.
Current living arrangements
The children live with their parents in City B on a week about arrangement and have done so since separation, a period of over three years.
On 21 January 2021, the parties reached agreement when mediating with Mr F. Although that agreement was signed by both parties, it was never filed with the court and the parties continued with the week about arrangement.
The mother has re-partnered with Mr G and they live together.
At the time of trial the father was not in a relationship.
The father’s family live in Adelaide. The mother’s family live in City K.
Risk factors
The risk factors identified in this matter include the following:
(a)The exposure of the children to parental conflict; and
(b)Each parent’s ability to facilitate the children’s relationship with the other parent.
On the mother’s evidence, the father has exposed the children to his feelings of hostility towards her and towards Mr G. This is in part conceded by the father.
The father expresses concerns about alleged risks posed by Mr G to the children. His evidence at trial was that he no longer saw Mr G as a risk but that he remained concerned about him around the children.
Issues for Determination
The issues for the court to determine are:
(a)Whether the children should relocate to Adelaide with the mother, or stay in City B;
(b)If the children remain living in City B, whether the children should continue to spend equal time with each parent or whether the mother should become the primary carer;
(c)If the children relocate to Adelaide, whether they should spend time with the father in accordance with either the mother’s proposal or the father’s proposal or whether there should be some other arrangement.
PART 2: ORDERS SOUGHT
Agreed Orders
The parties agree on the following orders:
(a)Equal shared parental responsibility, although the wording of the orders sought is different;
(b)Communication between the children and the other parent each night;
(c)Time on special days, though time on Christmas Day is not agreed;
(d)Half school holidays, though each parent seeks the first half in odd numbered years and the mother proposes week about in the Christmas holidays with the option to seek a two week block;
(e)The standard authorities to obtain documents and information from schools and health service providers;
(f)A non-denigration clause;
(g)A restraint against voice or video recordings of each other, noting the mother goes further and seeks that parties refrain from verbal and face to face communication. The latter is not agreed;
(h)Communication via the Talking Parents App, which is already underway; and
(i)Attendance at the Parenting Orders Programme.
The Mother’s Proposal
The mother proposes orders that she relocate with the children to Adelaide. She proposes the children spend time with the father for ten days each month in two blocks, of six and four days respectively. She also proposes time on special days and half school holidays.
In the event that she is not successful in the relocation application she seeks the same arrangements here in City B. That is in either case she proposes that the equal time arrangement not continue.
The mother proposes to share Christmas Day with handovers occurring at 1.00 pm. Provision is made in her proposed orders for the parents to communicate via the Talking Parents App, handover arrangements, notifications of interstate travel with the children, leave to provide a copy of the orders to schools and treating professionals, and the parties to complete the Parenting Orders Programme.
The Father’s proposal
The father opposes the relocation of the children. He proposes that the week about arrangement continue.
If the relocation of the children with the mother is allowed, he proposes that the week about arrangement continue. However his evidence is also to the effect that there is no current possibility of him transferring to Adelaide.
In the event that his work does not permit a week about arrangement and the parents do not live in the same town, then he seeks an order setting out an alternative process by which he can select 14 days each calendar month that the children are to be in his care.
He seeks further orders summarised as follows:
(a)Orders that the parties alternate the entire Easter holidays;
(b)A restraint against Mr G sitting on, laying down on or sharing a bed with either child at any time;
(c)A first option to care order;
(d)Orders specifying the location of handovers, and orders to deliver and return all the children’s belongings;
(e)No adult other than a parent be allowed in a bed with the children;
(f)An order that the parents communicate via SMS for urgent communication or otherwise by email – though noting the acknowledgement during submissions that the parties use the Talking Parents App;
(g)Orders requiring notifications of children’s illness; and
(h)Orders as to costs.
PART 3: THE EVIDENCE
Material read by the parties
The material relied on by the parties is set out in their respective Outlines of Case.
The following documents were tendered:
(a)Exhibit F1 – final orders sought by father;
(b)Exhibit C1 – Affidavit of single expert witness Dr H – Family Report dated 11 July 2022
(c)Exhibit F2 – Pages 15b to 17b of the joint Tender Bundle – QPS Solicitor Office Report details dated 28 October 2019;
(d)Exhibit F3 – remainder of the joint Tender Bundle
The mother has included an excerpt from the affidavit of Mr G’s affidavit in his own family law proceedings as annexure. Aside from any arguments as to admissibility, I am troubled about the breach of s 121 of the Family Law Act 1975 (Cth). I place no weight on that document.
Where I have made statements of fact or expressed a view, those are to be read as findings. Where I have made findings, those findings are clear on the face of these Reasons and have been made on the balance of probabilities as required by s 140 of the Evidence Act 1995 (Cth).
The Witnesses
The Mother
The mother was a child focused witness. I had no reason to doubt her evidence. She attempted to give a good account of herself. I am satisfied that she answered questions openly and honestly.
She made sensible concessions, such as her failure to provide evidence about the practical side of her proposal to relocate. At times she struggled to speak positively of the father but that is hardly surprising given the hostile nature of the relationship as witnessed by his email of July 2022 when he again called her a “negligent” mother.
As to her motivation to relocate, I formed the view that they were several, but largely motivated by a desire to separate the father and Mr G. This is due to the fact that she was content to continue to do the travel for about two years post separation and that this application has been filed only after the father’s strong objections to Mr G’s involvement with the children.
The Father
The father was a sensible and child focused witness. The appropriate concessions were made. I formed the view that the father was attempting to present a good picture of himself.
I heard the recording of the parents arguing in 2019. Whilst this was a disturbing recording, it is not unusual at about the time of separation for parents to yell and name call. The poor conduct and language reflected in that recording will not be a decisive factor in my decision for that reason and also because it is now an historical recording – dating from 2019.
The father’s unchallenged evidence is that he is a hands on father involved in school and extracurricular activities. He works flexi time hours to enable him to be available to the children when they are in his care.
Mr G
Mr G was a nervous but unexceptional witness. The troubling issue regarding his presentation and the oral evidence is that I heard three different reasons for the fact that he is not currently seeing his own children and has not done so for a number of years.
Firstly, the mother’s evidence was to the effect that after the separation Mr G fell into a difficult psychological state, that he felt he was not the best father and wanted to work on himself but that the period of non-contact had dragged on.
Then Mr G himself said that “times were tough” in the relationship, and that at separation the mother of his children had moved to Town J, that he was in customer service, it was hard to see the children and it got harder and harder and that she would not allow him to take them out of her care. His evidence is that his former wife believes he is a risk of abduction and as a consequence there is an interlocutory order preventing contact. His evidence is that he is aware of no other reasons for that order.
Lastly, the Family Report writer gave evidence that Mr G explained to her that his ex-partner was reluctant to facilitate time and then Covid intervened.
Like the father, I am of the view that Mr G’s failure to provide straight answers, the provision of differing answers and his failure to acknowledge the validity of the father’s concerns in those circumstances, leaves me with a question mark about him - at the very least about his judgment.
Dr H - The Family Report writer
The Family Report writer supported the mother’s relocation application.
The Family Report writer however conceded the following matters:
(a)The parties are both good parents;
(b)The parents are both able to care for and provide for the needs of the children;
(c)The children have a close attachment to the mother and a positive bond with the father;
(d)The parents have agreed to equal shared parental responsibility;
(e)The children were doing well at the time that she interviewed them;
(f)That X did not want anything to change;
(g)That Y likes seeing both his parents;
(h)That she recommended week about if they lived in the same location.
The Family Report writer’s rationale for recommending a change, despite the facts and opinions outlined above and setting aside the parents’ hostility towards each other, was that if the mother was based in Adelaide she would be more available to the children, that the father would not be constrained and that his family were there. Also, because of the conflict between the father and the mother's partner, she was of the view that it was difficult to arrange care for the children when the mother was not home.
Basically she saw the mother’s relationship with the children as being enhanced if she was able to relocate to Adelaide. The difficulty with that view is that while the mother’s relationship with the children may be enhanced, it would appear that the father’s relationship with the children may be detrimentally affected and his time with the children reduced, if I accept his evidence that there is currently no work available for him in Adelaide. Certainly I have no reason to doubt that evidence. While the mother said otherwise she was in effect relying on workplace gossip. That is not evidence.
The Family Report writer agreed that it was in the children’s best interest to keep the status quo unchanged, however in her mind if the mother’s relationship with the children could be enhanced while the father’s continued she did not see why the mother should be unable to move. There is however no evidence that the father’s relationship with the children would be unchanged by this move.
The Family Report writer acknowledged X’s anxiety and her diagnosis of a mental health condition, which makes her a vulnerable child. When asked to consider the impact of moving her to Adelaide, she expressed the view that it would depend on what was seen as the basis of the child’s anxiety. She acknowledged that the relocation could exacerbate X’s anxiety but expressed the view that conflict could also exacerbate her condition. She expressed the opinion that the father’s negative view of Mr G had the potential to increase X’s anxiety. She expressed the opinion that X’s anxiety was probably multifaceted and that the mother being home recently for four months’ on light duties would have relieved some of that anxiety.
She acknowledged the uncertainty about Mr G’s own family law proceedings. When advised that it was Mr G intention to relocate to Adelaide with the mother, in the event that she is given leave to relocate, she acknowledged that future arrangements for Mr G seeing his own children was an unknown.
When asked if it would change her view about the relocation if indeed there were some reason for an order to be in place that Mr G not spend time with his own children, the family report writer conceded her view may change dependent on the basis for the order preventing contact with his children.
When it was put to her that the uncertainty meant that it was safest to leave the situation as it was she agreed but noted that it left the mother with some very long days.
She saw the recommendation for the father having block time with the children as in some way compensating him for the mother’s relocation. However the block time proposed by the mother is less than that which the children and the father currently enjoy.
She expressed the opinion that there was no issue as regards Mr G’s capacity to be a step-parent. She saw no risk in him being alone with the children, she found no evidence of grooming. She expressed her acceptance of his explanations. She saw no issue with a step-parent assisting with night time routine once the children were familiar with him or reading to them in bed once they were comfortable with him.
She expressed the view that if the time between the children and the father could be maintained and not reduced it would be in the best interest of the children to relocate.
The Family Report writer’s cross examination left me with the impression that she did not see one parent as having the greater capacity or greater bond with the children. She conceded the benefits of not relocating the children, partially because X is a vulnerable child, but commented on the impact on the mother of remaining in City B.
I formed the view that the Family Report writer prioritised the mother’s convenience and ability to spend time with the children over that of the father, but no clear reasons were given for doing so. For those reasons I placed limited weight on her recommendations.
PART 5: THE LAW
This application is governed by the principles set out in Part VII of the Family Law Act 1975 (Cth) (“The Act”). I will be generally guided by s 60B which sets out the objects of Part VII of the Act and the principles underlying it.
In making Parenting Orders, s 60CA and s 65AA provide that the best interests of the child are the paramount consideration.
Section 60CC prescribes the various “best interests” considerations that the Court is obliged to consider in arriving at its determination.
Section 60CC(2) sets out the two primary considerations, described by Justice Brown in Mazorski & Albright (2007) 37 Fam LR 518 as “twin pillars”. I am required to give greater weight to the second of the primary considerations.
The “additional considerations” are set out in s 60CC(3) and I am required to consider all of those issues including parental capacity, the extent to which each parent has fulfilled their parental responsibilities cultural matters and family violence. I must also ensure that any Order I make is consistent with any family violence Order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the child’s best interest being treated as paramount (s 60CG). No greater weight is placed on any particular additional consideration.
In Tabac & Kelmer [2016] FCCA 1937, [112] citing Morgan & Miles [2007] FamCA 1230; Paskansky & Paskansky (1999) FLC 92-878; KB & TC (2005) FLC 93-224, Stewart J summarised the principles which guide the Court in a relocation case[1]:
(1)the best interests of the child remain the paramount, but are not the sole, consideration;
(2)a parent who wishes to move to another locality does not need to demonstrate a compelling reason to do so;
(3)instead, where relocation is under consideration it is necessary to weigh and balance the child’s best interests together with the right of the parent proposing to relocate to freedom of movement;
(4)such cases do not fall for analysis upon whether one parent should have residence of the child and, separately, whether relocation should be permitted; and
(5)the proper approach in a relocation case entails the weighing of the parties’ competing proposals upon s 60CC considerations and any other relevant matter, including a party’s right to freedom of movement.
[1] See also Wilburn & Wilburn [2019] FCCA 2131, [83]-[86] (McNab J)
In Star & Duggan [2009] FamCAFC 115 at [38], the Full Court set out a ‘logical approach’ to addressing the relevant legislative provisions, namely
·first make findings concerning the relevant s 60CC factors;
·then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the children’s best interests; and
·then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) - which may be done by referring back to the earlier s 60CC findings.
Counsel for the father referred me to the case of Babcock & Wadell [2019] FamCAFC 129[2] where the Full Court reviewed the trial judge’s process in considering the relocation application. In particular I was referred to the trial judge’s consideration of certain questions arising from the precedents including:
Is the application genuine in the sense that it is not motivated by some selfish desire to exclude the father or other person from the child's life?
Is the application realistically founded on practical proposals both well researched and investigated?
What would be the impact on the applicant, either as a single parent or at a new spouse or partner, of a refusal of a realistic proposal?
Is the other parent or persons opposition motivated by genuine concern for the future of the child's welfare or is it driven by some ulterior motive?
What would be the extent of the detriment to the father and his future relationship with the child if the application were to be granted?
To what extent would that detriment to be offset by the extension of the child's relationship with the applicant’s family?
[2] Paragraphs [52] & [55]
Whilst counsel for the mother submitted that the sections referred to were not cited with approval by the Full Court, I note that having reviewed the process followed by the trial judge, including the paragraphs which counsel for the father relied upon, the Full Court stated that “the principal thrust of Ground 1 identified above is not made out, and no error of principle has been demonstrated”.[3] So whilst not clearly approving the process, the mere fact that the ground was not made out means that the process undertaken by the trial judge is acceptable.
PART 6: APPLICATION OF THE LAW TO THIS MATTER
[3] Paragraph [60]
The benefit to the child of having a meaningful relationship with both of the child’s parents
The uncontested evidence is that the children have a good relationship with both parents.
The view of the Family Report writer is that the relocation would make the mother more available practically and emotionally for the children and that it was in the children’s best interest to relocate if father’s time maintained.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
There are no significant risk factors argued in this case about either parent. There is however the exposure of the children to the parental conflict which in itself raises a risk of emotional and psychological harm. In this case X has a mental health condition and therefore the exposure to parental conflict carries a greater risk, as she already struggles to cope with stress and anxiety.
The father conceded being concerned in 2020 that there were “grooming” type behaviours on the part of Mr G, and that coupled with what he saw as evasiveness and failures to provide information led to him making three notifications to what is colloquially called Child Safety. He gave evidence that he does not trust Mr G and still seeks an injunction as regards his contact with the children.
The father’s conceded however that he no longer considers Mr G a risk of harm. Nonetheless his evidence is that he remains concerned about Mr G’s involvement with the children due to his history of drugs and gambling. He maintains his application for injunctions regarding Mr G. His evidence was that his stance was now based on the failure by Mr G to be transparent and honest with him, and that it would take a lot to change his view.
It is unsurprising that the father had concerns about Mr G when he became aware that he was not having contact with his own children. There can be a multitude of reasons for such a situation, some sinister indeed. I am not critical of the father for seeking further information, for being reluctant to meet face to face with Mr G or ultimately for making his own enquiries when his lawyer’s letters were unsuccessful.
On the limited evidence to hand, there is no evidence that Mr G is an unacceptable risk of harm to these children. The notifications came to nothing and there is no evidence of other child safety or criminal matters which would lead me to such a view. Indeed I was not urged to make such a finding. Getting onto the bed of someone else’s child’s is a matter of judgment for Mr G - and the mother as the parent who had the children in her care at the time. The children are fond of Mr G and the father needs to allow that despite his own concerns. To do otherwise is likely to cause them unnecessary distress. That said, Mr G can comfort the children without getting into bed with them. These are not his children and he needs to be respectful of that fact.
The mother however needs to acknowledge the validity of the father’s concerns rather than dismiss them. These parents need to learn to trust each other again, they have agreed on equal shared parental responsibility and for that to work they must set aside their issues.
S.60CC(3) The additional considerations
S.60CC(3)(a) Any views expressed by the child and any factors that the court thinks are relevant to the weight it should give to the child’s views
The Family Report reflects that the children are happy with the current arrangements.
To the parents’ credit the children seem unaware of the mother’s wish to relocate. I trust that this means the parents have learned to protect the children from their dispute.
The mother’s affidavit reflects no direct exposure of the children to the parental conflict for about a year, despite the fact that the father has continued to send her abusive text messages – one as recently as July 2022 - and declined to respond to polite exchanges at handover.
I can only imagine how distressing it must be for the children that their father declines to talk to their mother. This is indirect denigration as it clearly tells the children that he does not respect and is not talking to their mother. It is not appropriate to simply ignore the mother of your children in their presence.
S.60CC(3)(b) The nature of the relationship of the child with each of the parents and other persons
The Family Report writer and both parents accept that the children have positive relationships with both of them and also with Mr G.
S.60CC(3)(c) The extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions; to spend time with the child; and to communicate with the child
The mother’s evidence is that the father is not always with the children in the time they are in his care. The father has produced a recent roster and gives evidence that this is not an issue under the system now in place. There is no reason to doubt that evidence. I accept that from time to time both parents have called on others to care for the children. That may be due to work commitments or social choices. That is a matter for them, I do not criticise either parent for the impact their work may have on their ability to be with the children. This is a common situation with many families, particularly separated families.
S.60CC(3)(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
This is not an issue that either party pressed or which troubles me.
S.60CC(3)(d) The likely effect of any changes in the child’s circumstances, and S.60CC(3)(e) The practical difficulty and expense of a child spending time with and communicating with a parent
The mother’s evidence is that she has a strong support network in Adelaide but brought no evidence of that. Her family are in City K. The father’s parents are in Adelaide and his sister lives several hours out of Adelaide. The mother’s evidence was that the paternal family would support her with the care of the children. That was not challenged by the father and I have no reason to doubt that although no evidence was brought from them. I do not know however what other commitments they may have and to what extent any support or assistance may be available. I simply have no evidence.
The fact that the mother has worked at the same place for many years does not mean that she would receive any hands on child care /parenting support from her co-workers. It is a big ask to expect work colleagues and friends to provide practical support in parenting children.
The mother brought no evidence from co-workers of any proposed support and as such for all this court knows there may be limited or no support there. Work colleagues fall in a very different category to the father’s family and the same expectations cannot apply. The mother may well have good networks there but expecting those people to provide hands on support with the children is another kettle of fish. In fact in many cases even family will not provide hands on assistance – either due to their own busy lives or for personal reasons. I am of the view that any potential support in Adelaide is speculative only.
If the father’s evidence is accepted that there are no jobs for him in Adelaide at the current time, so that he would not be available to assist with the children in the event that the relocation occurred.
The mother gave evidence that there were in effect rumours of upcoming work opportunities in Adelaide for the father and that these were in the pipeline but again there was no evidence of that and it was denied by the father. I do not intend to give any weight to rumours.
Whether the mother and children relocate to Adelaide or stay in City B, the mother proposes that the father spend less time with the children. This would mean changing their routine from week about which has been in place for almost three years, so that they have six days one fortnight and four days the next. And if the father is indeed unable to relocate to Adelaide she proposes to reduce time even more to one weekend per term in addition to holiday time.
If the children remain in City B there would be no changes for the children, other than any changes to time as proposed by the mother in the event that she is successful in her application. Their homes, schools, extracurricular activities, friends, X’s psychologist and their treating medical providers would all remain the same.
If the children remain in City B the mother would, however, need to continue to travel for work. The practical difficulty experienced by the mother currently is the travel that she is required to do because her work is based out of Adelaide. She does not want to leave her job as she has 20 years of seniority and has some power over the bids she makes for shifts. I do not criticise her for that as she has worked hard to achieve her current position.
If the mother was able to relocate the children to Adelaide then the following advantages flow:
(a)Her evidence is that she would be able to bid for shifts that would allow her to be more available for the children, coming home to them after work during her block of shifts which is currently impossible. Although she had provided no supporting documents or affidavits, I have no reason to doubt that evidence;
(b)She and Mr G would be geographically remote from the father and his opposition/hostility to Mr G;
(c)She would be closer to the father’s family and arguably more accessible to her own family in City K;
(d)The impact financially of travel for contact in the event the father stayed in City B is minimal as the parents are able to obtain one way flights for $39.
The disadvantages of allowing a relocation of the children to Adelaide include the following:
(a)The children would need to change schools. The mother conceded that the children were happy and doing well at their current school;
(b)The children would need to form new friendships, join new sporting and musical groups;
(c)X indeed is likely to experience stress and anxiety because of those changes;
(d)X, as a vulnerable child, may suffer an exacerbation of her condition;
(e)X would likely need to form a relationship with a new psychologist or undertake therapy remotely;
(f)The father’s unchallenged evidence that if he did not relocate to Adelaide his weekends would be limited to four a year; and
(g)The children are likely to see less of the father – in fact that is certainly the mother’s proposal.
If the mother and children lived in Adelaide and the father did not relocate or could not find work to enable him to relocate, then the travel would fall either to the father or to the children or both. It would simply transfer the onus for travel from the mother to the father and to a lesser extent to the children.
The mother acknowledged that the father earned more money than her and that his skills were not transferable. The father’s evidence is that there is no comparable work for him in Adelaide. The mother disputed this saying she was aware of upcoming opportunities. Neither party provided any evidence about those matters.
The mother’s evidence was that she had made enquiries but was unable to locate similar work in City B. Although she failed to provide any evidence of those enquiries I had no reason to doubt that evidence. Both parents work in a specialised field.
S.60CC(3)(f) The capacity of each of the child’s parents to provide for the needs of the child, including emotional and intellectual needs
The mother conceded that her trial affidavit was at least one third complaints about the father’s conduct. In circumstances where she seeks orders for equal shared parental responsibility and for the father to have significant and substantial time, this is arguably unnecessary and perhaps even self-defeating. Her evidence, however, was that those complaints about the father and his conduct are important as she sees the impact that his behaviour has on the children.
She concedes however that the children love and are bonded to both parents. Further the very fact that the children remain positively bonded to the father reflects well on the mother’s ability to protect them from her own negative opinion of the father. She is to be commended for that.
I do not see one parent as being “better” than the other. For example the recording that was played in court of the parents arguing in 2019 showed the father screaming more loudly than the mother, but they were both arguing. Also I am conscious that the mother was the one recording and no doubt this impacted on her own conduct. It is easy to maintain your cool when you know that you are creating evidence for future use.
The father has made some atrocious and abusive comments in Talking Parents and face to face to the mother calling her things such as “negligent” and “psycho”. He should be ashamed of himself. The children may inadvertently read such communication and it impacts on their mother’s happiness and thus possibly on the children. The father has also said things to the children that expose them to the parental conflict – such as telling them about the recording, warning X against Mr G and not speaking to the mother in the children’s presence. This is indeed shameful behaviour on the part of the father. He has failed the children on each occasion that he has ridiculed the mother or exposed the children to the parental conflict. However the vast majority of the material provided by the mother is from 2019, 2020 and 2021 which supports the view that this conduct is lessening and the parties are moving through the continuum towards a more positive ability to co-parent.
However in the Family Report interview in June 2022 the father suggests that the mother suffers from “Munchausen by Proxy”. I agree with the opinion of the Family Report writer that there is no evidence to support such a statement and it is a disgraceful slur on the mother who is without question a dedicated and caring parent.
The mother has recorded interchanges and has engaged in some passive aggressive behaviours – such as the failure or refusal to provide to the father information about why Mr G was not seeing his own children. The mother conceded that she had threatened to withhold the children on four occasions. The fact that she did not follow through on the threats does not make this type of threat any better.
The mother conceded that the father’s behaviour has more recently improved however she expressed her distrust of what she saw as strategic conduct in the lead up to trial. Given however the few incidents complained of I am satisfied that the father is better managing his conduct.
I am however satisfied that the mother has the far better capacity to protect the children from emotional harm, noting the Family Report writer’s views that they were unaware of the mother’s wish to relocate and remain bonded to their father.
Whilst the mother conceded that X’s mental health condition could be caused or exacerbated by a variety of stressors including school, her evidence was that she was of the view that the father was a significant risk to X’s health because of his conduct.
I do not accept that the father is solely to blame for X’s anxiety and mental health condition. I do however accept that the stressors experienced by X include the parental conflict and that both parents have contributed. That is not to say that I am not critical of the father’s abusive communications to the mother, I am very critical of that, but having viewed the attachments to the mother’s affidavit I can see that there was squabbling and criticism flowing both ways.
The parents had advice from X’s psychologist in August 2020 as to the impact on X of their dispute and yet they remained rude and disrespectful towards each other. That is disappointing and was no doubt distressing for their children.
I am of the view however that with time and reflection the parents have improved their communication. They now have also had the benefit of the Family Report and I am satisfied that they each have capacity to meet the needs of these children.
S.60CC(3)(g) The maturity, sex, lifestyle and background of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The children are young - now 10 and 8 years old respectively. They are however likely to be old enough to be able to maintain long distance relationships via technology.
X’s background of anxiety and mental health condition must be considered as I agree that this condition makes her a vulnerable child.
S.60CC(3)(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The father pays child support as assessed. His unchallenged evidence is that he also pays 100% of the music costs and 50% of other extracurricular activities.
The mother’s evidence is that she pays the children’s health care in full and half school fees, extracurricular activities and medical costs.
I am satisfied that the parents are meeting their obligations.
S.60CC(3)(j) and (k) Any family violence involving the child or a member of the child’s family and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the legislative factors.
Each party accuses the other of family violence. This includes allegations of verbal abuse and physical assaults. The majority of this occurred in the context of separation.
The physical harm alleged by the mother was the parties wrestling over her phone in November 2019 when she was recording, although under cross examination she gave evidence that she had not included everything that occurred in her material. The father talks generally of the mother “assaulting” him but provides no detail. I can only act on the evidence before the court.
Further, given the largely historical nature of those events, the proximity to the time of separation, the parties living under the one roof and the fact that the parties each support orders for equal shared parental responsibility I do not intend to make any findings about the allegations of family violence.
Each party continues to communicate unhelpfully at times and in the father’s case sometimes abusively. The father’s recent decision to not communicate at handovers at all is no better, and is simply another way to expose the children to parental conflict.
To be clear, denigration is not just name calling. Denigration includes turning your back on someone, failing to respond to polite greetings, failing to acknowledge or reply to text messages and other communications, rolling your eyes and making faces at someone. All such actions tell children that you disrespect the other parent. While the children may not see messages between the parties, they often see the fallout and in turn that can cause them further distress.
S.60CC(3)(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
There is no argument raised against finalising this matter.
S.60CC(3)(m) Any other fact or circumstance that the court thinks is relevant
The mother was reluctant to accept any responsibility for the devolution of the parties’ relationship.
PART 7: DETERMINATION
Parental Responsibility
In accordance with s 61DA(1), when making a parenting order, the court must apply a presumption that it is in the best interests of the children for parents to have equal shared parental responsibility.
The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child, or family violence. In this case whilst both parents have alleged family violence by the other they agree that orders for equal shared parental responsibility will be in the best interests of the children.
I am troubled about the exposure of the children to the parental conflict. Both parents should be ashamed of themselves. Each is busy blaming the other when both of them need to take a step back and take a good look at their own behaviour and communications. It is time to start communicating like adults.
Despite their conduct, I am of the view that equal shared parental responsibility is in the children’s best interests for the following reasons:
(a)I accept that the father’s conduct has improved in recent times;
(b)I am of the view that each party will continue to improve their communications; and
(c)They have a proven history of co-parenting for over three years.
Living Arrangements
In making the determination about the children’s living arrangements a number of significant factors were considered and are outlined in this section and in the application of the law above.
The mother has provided no details as to where she and the children would live, what schools the children would attend, what psychologist would take over the support of X or if her current psychologist is prepared to attend to that via electronic means. Whilst the mother had not described in any detail her proposal as regards living in Adelaide that is not necessarily an automatic fail. It does however make it more difficult to assess the positives as well as the negatives around her proposal.
A relocation would most likely reduce the children’s time with the father or at the very least make the schedule of time more complex due to his work commitments. The court is reluctant to make parenting arrangements dependant on the parents’ rosters where that is avoidable.
Whether or not the relocation is allowed, the mother seeks to reduce the father’s time with the children. This suggests that the proposed relocation is motivated by her wish to reduce his time rather than the perceived benefits of the move to Adelaide.
The mother’s family is in City K, not Adelaide, so that they are not readily available to support her if she moves.
There is no evidence about the potential paternal family support or other support that may exist for the mother in Adelaide. As noted earlier, it is not to be presumed that family and work colleagues can and will be available to assist with practical parenting matters. Further it is always preferable that such support comes from parents where possible, particularly with vulnerable children.
There is no evidence that X’s mental health condition would miraculously resolve in the event that the relocation was allowed. While the mother blames the father there is no expert evidence that he is the cause, whether in part or in full. Rather I am of the view that it is the parental conflict which has been the cause for some concern.
There is no evidence that there would be work for the father in Adelaide. The rumours that the mother has heard are not evidence. The father’s evidence, which I accept, is that there is no work currently available for him. The mother concedes that the father’s skills are not transferrable so that he cannot walk into a different line of work in Adelaide.
There is a possibility that this relocation application may be motivated by the father’s objections to Mr G rather than the best interests of the children, given that this application is was made only after those issues arose. Until the actual trial is was unclear whether Mr G also planned to relocate to Adelaide. Why this was not clarified in advance was also not made clear. To seriously consider a relocation all the cards must be on the table.
While the Family Report writer felt the children had the cognitive ability to cope with a relocation, neither child expressed a wish to change the current living arrangements. The Family Report writer’s support for relocation appeared to be based mainly on the benefits of the mother being more available to the children. However, a move to Adelaide does not necessarily mean the mother will be more available for the children. The mother’s evidence is she can bid for different types of shifts, however there is no evidence as to the likelihood that she would get such shifts. Further, there is no evidence to justify prioritising the mother’s availability to parent over that of the father.
There is expert evidence that equal time is working well for these children. The children are doing well at school and have established interests. The father gives unchallenged evidence about their interests and friendship circles outside school. The potential reduction in the father’s ability to access not only the children but also their schools, and medical and allied health providers for the children is particularly relevant when they have a special needs child.
There is no medical evidence that there would be any impact on the mother’s mental health if she was unable to relocate to Adelaide.
The Family Report writer expressed the opinion that the children appeared unaware of the mother’s wish to relocate. That coupled together with the fact that the children have maintained a good relationship with their father, is a credit to the mother. I am satisfied that she has protected the children from any negative feelings she has about the father and is capable of facilitating and encouraging their relationship with the father. I am satisfied that in the event she is given leave to relocate that she would continue to do so.
The mother’s work is based in Adelaide however she has managed the commute from City B successfully for many years both pre and post separation. The court is satisfied that if the mother is not granted leave to relocate she will continue to successfully parent in the way that she has always done post separation. Whilst the mother will no longer need to commute for work if the relocation proceeds, the obligation to travel does not disappear. Instead it shifts to the father and the children as the father must stay in City B, so that either he travels or the children travel or, as seems most likely, a mixture of both.
Whilst far less relevant, as Mr G’s evidence is that he will relocate with the mother, the burden of travel will also shift to Mr G and his children. That is if he does commence spending time with them.
The court must consider X’s health, including the diagnosis of a mental health condition. The court is reluctant to cause the child further anxiety and stress, as must necessarily attach to the changing of her home, her school, her friendship circle and her therapist in addition to reducing her time with her father.
Whilst, arguably, placing distance between the parents will reduce the opportunity for parental conflict and therefore reduce stress for X, the court must balance that against the facts that a move to Adelaide means new school, new home, new friends, new teacher, new psychologist, more travel and less time with her father.
A move to Adelaide will make the mother’s life easier as regards work and capacity to go home at night after work. It will also make Mr G’s life easier as regards removing him from the father’s disapproval. I am however not satisfied that those personal benefits outweigh the negatives for the children if they were to move.
Having considered and weighed in the balance the relevant considerations, the court is satisfied that orders that the children remain living in City B and that the equal time arrangement continue is in the best interests of the children. The court is also satisfied that those orders are reasonably practicable, for the reasons outlined above and in particular as the arrangement has worked well since separation.
The court will therefore make orders for time spending on a week about basis as proposed by the father, and also for special days and holidays in the terms as proposed by the father.
There is not much to choose between the parties’ competing proposals for holidays and special days. The father proposes that the parties alternate the entirety of the Easter holidays and alternate Christmas Day whereas the mother proposes that those be shared. I am supportive of a block time at Easter as it allows ease of travel where each party has interstate family. I support alternating Christmas Day for the same reasons.
Orders will not however be made for the convoluted system proposed by the father around the parties’ possible future rosters or relocations. In the event that such a situation arises in the future the parties may attend mediation to negotiate arrangements and failing agreement have the option of persuading a court that there has been a sufficient change in circumstance.
Changeover location
On a school day the parents are in agreement that the children will be collected to and from school. On a non-school day the mother proposes handovers at the E Street McDonald’s Restaurant while the father proposes the Suburb L McDonald’s.
The trial affidavits reflect that the mother lives in Suburb M and the father in Suburb N. I have been provided with no evidence to support the parties traversing to Suburb L for their handovers and propose to make orders that handovers occur at the E Street McDonald’s Restaurant.
Injunction
In relation to Mr G, I am aware of the historical drug use and gambling, the more recent stalking offences regarding his former partner and the fact that Mr G is not seeing his own children, although the reason for the latter is unclear. There is however no evidence on which I could make a finding of unacceptable risk of harm to these children and indeed I am not urged to that course. That does not mean that there are no risks.
It may be poor judgment on Mr G’s part to fail to be open with the father of children with whom he was living. It may also be poor judgment on Mr G’s part to sit or lie on the bed with someone else’s children when their father objects to him doing so. There is however no evidence or indeed allegation of anything inappropriate on his part. The father himself concedes that he no longer sees Mr G as a risk of harm.
I decline to make the injunctions sought by the father for those reasons, but urge the parties to work to re-establish trust through open and honest and non-judgmental communication.
First Option to Care
I do not propose to make the first option to care order as sought by the father. Each party is perfectly capable of making their own arrangements for the care of the children in their absence.
Parenting Order Programme
The parties have agreed to do the programme. It is disappointing that such poor communicators have not yet done so as it will benefit their children enormously. As they have each agreed to do this course I will make the order. I cannot order it but I also urge Mr G to do the course and to consider how things may look from the father’s perspective.
Communication
The parents are in agreement as to when the children should be able to communicate with the other parent and I support those orders.
The father seeks orders for the parents to communicate via text or email while the mother seeks to continue communication via the Talking Parents App. Given that Talking Parents is the communication form generally used in the past, as reflected in the attachments to the mother’s trial affidavit, orders will be made for a continuation of that method.
Authorities and General Matters
The parties are largely agreed on standard authorities and notifications which the court proposes to make.
Orders will also be made in terms as sought by the mother for notifications of travelling interstate with the children, although seven days’ notice in advance is not necessary. In general terms parents should know where their children are and given that this courtesy has not always been extended in the past I am of the view that the order is necessary on this occasion. I will make orders that each parent give the other at least 24 hours’ notice.
PART 8: CONCLUSION
I am satisfied that the orders the court now makes are in the best interests of the children, X and Y.
I certify that the preceding one hundred and fifty (150) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cope. Associate:
Dated: 22 March 2023
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