Nettle and Nada
[2013] FCCA 1677
•31 October 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NETTLE & NADA | [2013] FCCA 1677 |
| Catchwords: FAMILY LAW – Mother’s clandestine relocation – Mother’s deceit of Father and Court about her residence and residence of child – Mother and child flying from Hobart to Sydney then driving to (omitted) (NSW) for child to spend time with Father – complicity of maternal Grandparents in subterfuge by Mother of the Father and the Court – Mother claims that she advised two different lawyers of having moved without Father’s or Court approval – if correct lawyers in breach of duty to Court in failure to advise of Mother’s unauthorised change of residence & possible misleading of Court – ‘coercive orders’ requiring Mother to return to original area of residence – best interest considerations in parenting orders for young child – Jones v Dunkel adverse inferences drawn against Mother in failure to provide evidence from maternal Grandparents (one of whom was present during the trial) and from Mother’s fiancé – Mother’s former lawyers to be notified of the Mother’s evidence – requirements in relation to “tendency evidence” regarding the Mother’s history and other evidence in relation to deception of the Father (and the Court). |
| Legislation: Evidence Act 1997, ss.94, 97 |
| Fox v Percy (2003) 214 CLR 118 Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422 H v E (1999) 24 Fam LR 542 Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51 MRR v GR (2010) 240 CLR 461 Mazorski v Albright (2008) 37 Fam LR 518 Morgan v Miles (2008) 38 Fam LR 275 Sampson v Hartnett (No.10) (2007) 215 FLR 155; (2008) 38 Fam LR 315 U v U (2002) 211 CLR 238 |
J.D. Heydon, Cross on Evidence (Ninth Australian Edition) (Sydney: LexisNexis Butterworths, 2013)
S. Odgers, Uniform Evidence Law (Tenth Edition) (Sydney: Thomson Reuters, 2012)
| Applicant: | MR NETTLE |
| Respondent: | MS NADA |
| File Number: | CAC 66 of 2011 |
| Judgment of: | Judge Neville |
| Hearing dates: | 22-23 July 2013 |
| Date of Last Submission: | 23 July 2013 |
| Delivered at: | Canberra |
| Delivered on: | 31 October 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr G Howard |
| Solicitors for the Applicant: | KJB Law |
| Counsel for the Respondent: | Self-represented |
| Solicitors for the Respondent: | Not applicable |
| Counsel for the Independent Children's Lawyer: | Not applicable |
| Solicitors for the Independent Children's Lawyer: | Jeanine Lloyd & Associates |
ORDERS
The parents have equal shared parental responsibility for the child, X (born (omitted) 2010) ("the child");
The child live with the Mother;
The Mother is to return to the (omitted)/(omitted) area with X by no later than 31st January 2014.
Thereafter, and unless otherwise agreed in writing between the parties (or by Court order), the Mother is restrained from moving with the child outside a radius of 50 kilometres of the (omitted)/(omitted) area, save that, upon giving the Father written notice of no less than 21 days, the Mother is permitted to move, with the child, to an area that is within a radius of 50 kilometres of the University of (omitted).
That the child spend time with the Father as follows;
(a)Every alternate Saturday, from 10:00 am until 5:00pm and
(b)Every alternate Sunday, from 10:00 am until 5:00pm.
From 7 December 2013 until the child turns four (4);
(c)Every alternate weekend, from 10:00 am Saturday until 5:00pm Sunday.
Upon the child turning four (4);
(d)Every alternate weekend, from 5:00pm Friday until 5:00pm Sunday; and
(e)In 2014, for one week, from 10:00 am on 29 November 2014 until 5:00pm 7 December 2014.
(f)In 2015 and every alternate year thereafter; for the first half of the school holidays;
(g)In 2016 and every alternate year thereafter, for the second half of the school holidays.
Notwithstanding these Orders, the Father will spend time with the child on special occasions at times agreed between the parties, yet failing agreement, from 10:00am until 5:00pm on:
(a)(religion omitted) Christmas;
(b)(country omitted) New Years;
(c)(country omitted) Easter; and
(d)Christmas 2013.
Notwithstanding these Orders, in 2014 and each alternate year thereafter, the child will spend time with the parties as follows;
(a)From 3:00pm on 24 December until 3:00pm Boxing day with the Mother; and
(b)From 3:00pm Boxing until 3:00pm on 28 December with the Father.
Notwithstanding these Orders, in 2015 and each alternate year thereafter, the child will spend time with the parties as follows;
(a)From 3:00pm on 24 December until 3:00pm Boxing day with the Father; and
(b)From 3:00pm Boxing until 3:00pm on 28 December with the Mother.
For the purposes of changeover, if the mother resides in the (omitted) area, the parties attend changeover at (omitted) McDonalds.
For the purposes of changeover, if the mother resides in the Canberra region, the parties attend changeover at McDonalds (omitted).
AND THE COURT REQUESTS THAT:
A.The Independent Children’s Lawyer provide to the former solicitors for the Respondent, namely Irene Pickel and Associates and Streeter Law, and to her former Counsel, a copy of the reasons for judgment in this matter.
IT IS NOTED that publication of this judgment under the pseudonym Nettle & Nada is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 66 of 2011
| MR NETTLE |
Applicant
And
| MS NADA |
Respondent
REASONS FOR JUDGMENT
Introduction
In the signal Full Court decision of Sampson v Hartnett (No.10), Bryant CJ and Warnick J said, at [57] (emphasis added):[1]
If it is within power to order a person not to relocate, it would be surprising if it was not within power to order a person to relocate, although one would imagine the exercises of power to the latter effect would be even more rare, because the effect is more drastic.
[1] Sampson v Hartnett (No.10) (2007) 215 FLR 155; (2008) 38 Fam LR 315; (2007) ¶93-350.
This is such a case: as set out in the reasons that follow it satisfies readily the indicia of ‘rare species’ contemplated by the Full Court, such that the Respondent Mother and the child who is the subject of the proceedings is required to return (or re-relocate) to the area from which they clandestinely moved, without reference to the Father and the Court, some nine months ago. The Mother and child moved in July 2012. This subterfuge by the Mother was, and has continued to be, facilitated to a significant degree by her parents. The Father and the Court continued to be deceived until March 2013.
Couched in different terms, and if the Court may use parlance from modern theatre as well as more traditional judicial idiom, there is something of a “perfect storm” here: it is rather like the confluence of the warnings given by the Full Court in Sampson v Hartnett (No.10), and by a differently constituted Full Court in Morgan v Miles, with a touch of the concerns expressed in the earlier Full Court decision in H v E.[2] As detailed in the reasons that follow, all of the judicial warnings have been flouted by the Mother in this case. The transgressions detailed have, in my view, ultimately compromised the child’s best interests, not least because, over a very considerable period of time, she has been deprived of having the benefit of her Father meaningfully involved in her life, to the maximum extent possible.[3]
[2] Morgan v Miles (2008) 38 Fam LR 275; H v E (1999) 24 Fam LR 542.
[3] See ss.60B(1)(a), (c) & (d), 60B(2), and s.60CC(2) Family Law Act (1975) (“the Act”).
Ultimately, in my view, it matters not greatly whether – as a practical matter – the orders are founded upon the decision of Sampson v Hartnett (No.10), or the judgment in Morgan v Miles – or both. Of course, jurisprudentially, it may be of significance if the orders are dependent on Sampson v Hartnett (No.10) because that decision was primarily concerned with the legislative source of power to order a parent to relocate pursuant to s.114(3) of the Act. On the other hand, Morgan v Miles was, of course, a case that looked specifically to the adversarial/judicial process known now as the “legislative pathway” by which a party, and ultimately the Court, should consider parenting orders in circumstances where one party wishes to relocate and the Court is required to make a decision according to a careful, structured exercise of its discretion.[4]
[4] “Legislative pathway” is the nomenclature from the Full Court decision in Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422 at [81]. “Careful exercise of structured discretion” is the instruction and nomenclature of Boland J in Morgan v Miles (2008) 38 Fam LR 275 at [74].
Although the Court should be and is properly concerned at the Mother’s deception of the Father (and the Court) over a very considerable period of time, and accordingly there must be, in my view, genuine concerns regarding the Mother’s bona fides, ultimately the child’s best interests must be and remain the paramount consideration in the determination of parenting orders.[5]
[5] See s.60CA of the Act.
The Respondent Mother of three year old X is an elegant young lady of some poise and obviously growing accomplishment.[6] Among other things, she is studying two degrees concurrently, one of them ‘remotely’ (i.e. ‘online’) through (omitted) University; the other is through the University of (omitted). On her evidence, she has done well in her studies thus far. She intends becoming a (omitted).[7] She confirmed that she is a well organised person.[8] Indeed, in the light of the evidence referred to later, it may confidently be said that she has very significant organisational skills.
[6] X’s surname was determined by the Mother without any discussion with or reference to the Father. Moreover, the absence of the Father’s name from X’s birth certificate has been an on-going issue for the better part of three years, and notwithstanding relevant orders to ensure that such matters were properly recorded. Among other places, see Transcript (22 - 23 July 2013) pp. 98-99. Hereafter transcript references will simply be by “T” followed by the page number. The Mother also did not discuss with the Father which day-care facility X would attend. See T 111.
[7] T 94-95.
[8] T 94 & 126-127.
Ms Nada has lived in Tasmania with X since July 2012, having moved there from the (omitted) New South Wales (omitted) or region of (omitted)/(omitted).[9]
[9] (omitted) is 141 kilometres from Sydney, 182 kilometres from Canberra (a drive of just under 2 hours), and approximately 50 kilometres from (omitted) (and a drive of perhaps 50 minutes).
Throughout her oral evidence, Ms Nada confirmed that she never told the Father, or the Court, that she had moved to Tasmania. Indeed, she confirmed that, although she intended to advise the Court of her relocation at some appropriate time, she had maintained a ruse with both the Father and with the Court which, she acknowledged, amounted to deliberate deception, whereby until March 2013, all had assumed that she and X were still living in (omitted), NSW.[10] The limited times that X has been able to spend with her Father have involved, so the Court learnt during the trial, X and her Mother flying from Hobart to Sydney (with flights regularly booked not always in advance for the scheduled time between Father and daughter), then being picked up at the airport by her parents, being driven to (omitted), and thence to (omitted) for time for X and her Father at a contact centre. The major beneficiaries of this arrangement have been the maternal Grandparents, who have managed to spend very significant time with X, who usually stayed with them overnight, and obviously travelled with them from Sydney airport to (omitted), and later from (omitted) to (omitted) – and return.
[10] Among many places where Ms Nada was questioned about her surreptitious move, see T 40-41, 43-44, 46-47, 49-52, 105, 108 & 118.
Notwithstanding these logistical difficulties for all – about which the Father (and the Court) was blissfully ignorant – the Mother agreed that the relationship between X and her Father was [now] growing.[11]
[11] T 31
Neither of Ms Nada’s parents, nor her fiancé (about whom “we” all learnt for the first time in the course of the trial), gave evidence in support of the Mother. It must be assumed that their evidence would not have relevantly assisted her.[12] Given that Ms Nada testified that her parents have funded a significant part of her travel from Tasmania with X since the unsanctioned move in July 2012, and that they have transported Mother and child from Sydney airport to (omitted) (and presumably then on to (omitted)) formally, I draw that adverse inference.
[12] See Jones v Dunkel (1959) 101 CLR 298.
In addition to this remarkable fact of the clandestine relocation is the no less astonishing confirmation by Ms Nada that she advised her two different solicitors that she had moved. Indeed, according to her evidence, both sets of lawyers, and her Counsel who appeared at a contravention hearing in February 2013, knew of her move to Tasmania; however, neither the Father nor the Court were advised of it. One of a number of consequences of the Mother’s evidence, if accepted, is that two different solicitors, and one Counsel, deliberately failed to advise the Court of information that was/is directly material to matters in issue before the Court and which they were obliged to disclose.
A further consequence of the Mother’s undisclosed move to Tasmania, and its deliberate non-disclosure for nine months or so, is that the Full Court decision of Morgan v Miles, with Boland J’s emphasis (absent urgent or exceptional or emergency circumstances) that matters of relocation be determined according to “the careful exercise of a structured discretion to determine the appropriate order to be made”, is effectively rendered meaningless.[13] Similarly, the earlier Full Court decision in H v E would also be otiose.[14]
[13] Morgan v Miles (2008) 38 Fam LR 275 at [74], [79], [88] & [91].
[14] H v E [1999] FamCA 358. This decision was cited with approval in the more recent Full Court decision in Sampson v Hartnett (No.10) (2008) 38 Fam LR 315 at [21] & [36] (Bryant CJ & Warnick J), and at [122] (Kay J).
In a number of significant respects, Ms Nada gave evidence that the faults or flaws in her case in relation to parenting (e.g. (a) the importance of disclosing relevant information to the Father and to the Court, and (b) the importance of X having a meaningful relationship with her Father) were sheeted home to or blamed on her lawyers for not properly advising her.[15] For reasons explored later, I do not accept her evidence in this regard. Among other things, it is implausible to a very significant degree.
[15] See, for example, T 114.
Somewhat similar positive sentiments regarding the Mother’s not insignificant capacities to which I have earlier referred were expressed by the experienced Family Consultant, Dr W, in her oral evidence. In the course of it she said: “I think Ms Nada is a resilient person who shows considerable initiative and she may well adapt to those [to be explained later] circumstances.”[16]
[16] T 135
Until a month or two prior to the hearing, the Mother was legally represented. The proceedings themselves have been on foot for the duration of X’s short life. The Mother conducted the trial with some facility as a self-represented litigant, with the aid of her Father as a McKenzie friend.
Fortunately, for reasons explored in a little detail later, the hitherto difficult parenting relationship between the parties has matured at least now to the parents being able to communicate civilly and with reasonable responsibility about matters concerning X. Also, perhaps somewhat miraculously (I say this with some irony – also for reasons noted shortly) the previous spate of consistent obstacles to the Father spending time with X have either been overcome or otherwise ameliorated, essentially over the last six months, which period coincides approximately with the Father finding out (or soon to find out) that the Mother and child had secretly relocated to Tasmania.
In what would otherwise be a relatively straight-forward parenting case, and in addition to the very significant deception of the Mother, there are a number of other distinguishing features that make it significantly less straight-forward. The independent children’s lawyer (“ICL”) identified three such features:[17]
(i)It is not a ‘usual’ relocation case [quite an understatement];
(ii)The Mother’s attitude to the Father “has been extremely oppositional and in conflict”, which included not notifying the Father of X’s birth, not including his name on the child’s birth certificate, and “an attitude of obstruction against the Father … that has been unrelenting till very recent times.”
(iii)The third issue of importance identified by the ICL was the embryonic relationship between the Father and his young daughter.
[17] T 168
Again by way of overview, unsurprisingly the Mother sought orders that would allow her (and X) to remain in Hobart, and for X to spend regular time with her Father – every second weekend. This would, of course, involve regular flights from Hobart either to Sydney or more preferably to Canberra.
The Father, also unsurprisingly, sought to have the Mother and child return to the mainland so that his time with X would be more regularly and easily accommodated. Being in closer proximity to his daughter would, in due course when she commenced school, enable him to attend school and other events during the week, albeit perhaps with a little planning. Certainly such things would be more easily accomplished than if the child and Mother remained in Hobart. The cost and difficulty of regular air travel is, in my view, also a significant consideration.
Although highly critical of the Mother’s deceitful actions regarding (a) the ‘unauthorised’ relocation and (b) the ongoing ruse to the Father and the Court that she remained living in (omitted) (or proximately thereabouts), somewhat surprisingly the experienced ICL proposed that X remain living with her Mother in Hobart, primarily because X was [now] well settled there. This was so also notwithstanding that the Court had no evidence regarding, among other things, the Mother’s fiancé and his involvement in X’s life.
Respectfully, this perspective also took little or insufficient account, in my view, of (a) the Mother’s long-time deceit of the Father (and the Court), (b) the embryonic state of the Father/daughter relationship, and (c) the logistical difficulties that must necessarily attend (and which have attended) the Father’s time with X having proper regard to the interstate and other necessary travel involved. It also took little or insufficient account of the relevant jurisprudence to which I have referred, particularly the import of and principle articulated by Boland J in Morgan v Miles.
For the reasons that follow, and only with slight adjustment, in my view, (a) in the light of all the evidence, (b) having due regard to the legislative pathway and other relevant principle, and (c) in accordance with the ‘paramountcy principle’ set out in s.60CA of the Act, the orders sought by the Father are in X’s best interests.
These reasons proceed as follows: (a) the orders sought by each of the parties and the ICL; (b) the evidence of the parties; (c) the evidence of the family consultant; (d) consideration of the legislative pathway; (e) the contravention hearing, and (f) discussion and resolution.
A. Orders Sought
Orders sought by the Applicant
That the parents have equal shared parental responsibility for the child X (born (omitted) 2010) ("the child").
That the child live with the Respondent Mother.
Within 2 months from the date of these orders, the Mother cause the residence of the child and her own residence to be established in either the (omitted) region or Canberra.
ORDERS SOUGHT IN THE EVENT THE MOTHER RETURNS TO THE (OMITTED)/ CANBERRA REGION
That the child spend time with the Applicant Father as follows;
From the date of these orders until the child turns three (3);
a)Every alternate Saturday from 10:00am until 4:00pm;
Upon the child turning three (3) until 1 November 2013;
b)Every alternate Saturday, from 10:00 am until 5:00pm and
c)Every alternate Sunday, from 10:00 am until 5:00pm.
From 2 November 2013 until the child turns four (4);
d)Every alternate weekend, from 10:00 am Saturday until 5:00pm Sunday.
Upon the child turning four (4);
e)Every alternate weekend, from 5:00pm Friday until 5:00pm Sunday; and
f)In 2014, for one week, from 10:00 am on 29 November 2014 until 5:00pm 7 December 2014.
g)In 2015 and every alternate year thereafter; for the first half of the school holidays;
h)In 2016 and every alternate year thereafter, for the second half of the school holidays.
Notwithstanding these Orders, the Father will spend time with the child on special occasions at times agreed between the parties, yet failing agreement, from 10:00am until 5:00pm the following day on:
(i)(religion omitted) Christmas;
(ii)(country omitted) New Years;
(iii)(country omitted) Easter; and
(iv)Christmas 2013.
Notwithstanding these Orders, in 2014 and each alternate year thereafter, the child will spend time with the parties as follows;
a)From 3:00pm on 24 December until 3:00pm Boxing day with the Mother; and
b)From 3:00pm Boxing until 3:00pm on 28 December with the Father.
In 2015 and each alternate year thereafter;
a)From 3:00pm on 24 December until 3:00pm Boxing day with the Father; and
b)From 3:00pm Boxing until 3:00pm on 28 December with the Mother.
For the purposes of changeover, if the mother resides in the (omitted) area, the parties attend changeover at (omitted) McDonalds.
For the purposes of changeover, if the mother resides in the Canberra region, the parties attend changeover at McDonalds (omitted).
ORDERS SOUGHT IN THE EVENT THE MOTHER REMAINS IN TASMANIA
That the parents have equal shared parental responsibility for the child X (born (omitted) 2010) ("the child").
That the child live with the Respondent Mother.
That the child spend time with the Applicant Father as follows;
From the date of these orders until the child turns three (3);
a)Every alternate Saturday from 10:00am until 4:00pm;
Upon the child turning three (3) until 1 February 2014;
b)Every alternate weekend, from 10:00am Saturday until 10:00am Sunday.
c)For five days from 25 December 2013 until 30 December 2013.
From 1 February 2014 until 1 May 2014;
d)Every third weekend, from 10:00 am Saturday until 5:00pm Sunday.
From 1 May 2014 until the child commences primary school;
e)For one week every month
f)In 2014, for one week, from 10:00 am on 29 November 2014 until 5:00pm 7 December 2014.
From when the child commences primary school;
g)Unless otherwise agreed, on the 3rd and 7th weekend of every school term, from 6:00pm Friday until 5:00pm Sunday;
h)For the whole of the Term 1 and Term 3 school holiday period; and
i)In 2015 (or upon the child commencing school) and every alternate year thereafter, for a four week period during the Term 4 Christmas school holiday period, at a time as agreed between the parties yet failing agreement, from 10:00am 23 December until 23 January; and
j)In 2016 and every alternate year thereafter (or the second year of the child's schooling), for a four week period during the Term 4 Christmas school holiday period, at a time as agreed between the parties yet failing agreement, from 10:00am 2 January 2013 until 2 February.
Notwithstanding these Orders, the Father will spend time with the child on special occasions at times agreed between the parties, yet failing agreement, from 10:00am until 5:00pm the following day on:
(i)(religion omitted) Christmas;
(ii)(country omitted) New Years; and
(iii)(country omitted) Easter.
For the purposes of changeover, the parties shall attend changeover at McDonalds (omitted).
The mother will be responsible for the costs of her and the child's travel from Tasmania and Canberra.
Orders sought by the Respondent
That the parents have equal shared parental responsibility for the child, X, born (omitted) 2010.
That the child lives with her mother.
That the applicant father spend time with and communicate with X as follows:
a.) Until 1st October 2013 for four hours per fortnight as agreed, but failing agreement on Saturday 3rd August from 11:00am to 3:00pm and each fortnight thereafter.
b.) From 1st October 2013 the time shall be increased to 6 hours per fortnight as agreed, but failing agreement from 9:00am to 3:00pm.
c.) From 1st April 2014 the time shall be increased to 8 hours per month as agreed, but failing agreement every fourth Saturday from Saturday 12th April 2013, from 9:00am to 5:00pm and every four weeks thereafter (as per recommendations of the Family Consultant).
d.) From 1st April 2015 the time shall be increased to include overnight, from 10:00am Saturday to 10:00am on the following Sunday, and occurring every four weeks thereafter.
e.) From 1st October 2015 the time shall be increased to 10:00am Saturday to 4:00pm on the following Sunday, and occurring every four weeks thereafter.
f.) From 1st April 2015, the time shall be increased to include 1 week during each school term break being the first week in odd years and the second week in even years and in the summer holidays for a period as agreed, yet failing agreement to occur during the third and sixth week of the six week break period.
g.) The respondent mother shall arrange for X’s travel to either (omitted) (or Canberra ACT if agreed in writing between the parties).
h.) Nothing in these orders shall prevent the father from spending time with X in her environment in Hobart for any of the scheduled time above or additional time in between scheduled visits should he be in Hobart, particularly between visits when the time changes to monthly visits (as recommended by the Family Consultant). In such case, he shall provide written notice to the mother as soon as practicably possible to enable the mother to make arrangements for X or to obtain a refund for X’s pre-booked travel costs. This will provide important opportunities for the applicant father to spend time will X in her own environment in Hobart.
i.) By telephone on the applicant father’s birthday, Father’s Day, X’s birthday and Christmas Day, and every Wednesday between 5:30pm and 6:30pm.
j.) The applicant father and respondent mother will at each changeover provide a communication book to the parent collecting X detailing her most recent eating habits, toileting patterns, sleeping habits, disciplinary matters and any other relevant information in order for both parents to assist X to feel comfortable and familiar in each environment, and to make the transition of changeover as non-disruptive as possible for her.
k.) That should X be in the care of either parent for longer than a week, information will be provided detailing X’s activities, sleeping arrangements etc., in the form of an email, at least once per week.
For the purposes of changeover, the parents will meet at (omitted), (omitted) without the direct presence of any third parties, or if changeover is to occur in the ACT at (omitted) without the direct presence of any third parties, or as otherwise agreed in writing between the parties.
In the event of X becoming distressed or uncomfortable with the above arrangements for whatever reason, the session shall be terminated and she shall be returned to her mother to avoid further distress to her.
Each parent is to notify the other parent as soon as possible or within 24 hours, if X suffers any serious illness or injury or hospital admission whilst in their care and each parent is at liberty to contact any doctor, hospital or other medical profession treating X to obtain information, noting that in the event of any dispute the respondent mother has final decision making ability.
That the parents will consult before enrolling X in any new or ongoing activity which may impact upon the time she spends with the other parent.
Neither of the parents will discuss issues between the parents or say unkind, rude or critical things about the other parent to, or in front of X, or allow any other person to do so.
The applicant father will refrain from smoking in X’s presence, and will ensure that all other persons refrain from smoking in her presence also.
Each of the parties shall provide current addresses, telephone and email contact details to the other at all times.
That the respondent mother will make arrangements for X’s travel to spend time with her father at least 2 weeks prior to each visit, and shall provide these details to the applicant father should he request them.
Nothing within these orders will prevent the parents from making different or additional arrangements by mutual and written agreement, whether the arrangement will be visit time, phone call time or Skype time.
Orders Sought by the Independent Children’s Lawyer
That the parents have equal shared parental responsibility for the child X born on (omitted) 2010.
That the child live with the mother.
That the Applicant father spend time and communicate with X as follows:
a.) Until 1st October 2013 for 5 hours per fortnight as agreed, but failing agreement on Saturday 3rd August 2013 from 11:00am to 4:00pm and each fortnight thereafter.
b.) From 1st October 2013 the time on the Saturday shall be increased to 8 hours per fortnight as agreed but failing agreement from 10:00am to 6:00pm.
c.) From 1st October 2014 the time shall be increased from 10:00am to overnight on the Saturday until noon on following Sunday.
d.) From 1st October 2015 the time shall be increased from 10:00am Saturday to 5:00pm on the following Sunday.
e.) From 1st February 2016 the time shall be increased to include 1 week during each term school holiday period being the first week in odd years and second week in even years, and in the summer holidays for a 2 week period, as agreed and failing agreement for the first 2 weeks in odd years from the first Saturday at noon to the third Saturday at noon and for the last 2 weeks in even years from Saturday at noon concluding on the Saturday at noon prior to commencement of the school term.
f.) The Respondent mother shall arrange for X’s travel to either (omitted) (or Canberra ACT if agreed in writing between the parties).
g.) Nothing in these orders shall prevent the Applicant father from spending time with X in Hobart Tasmania for any of the scheduled time specified above and in such case he shall provide written notice to the mother as soon as reasonably practicable to enable the Respondent mother to make appropriate arrangements or obtain a refund of any of X’s travel costs.
h.) By telephone on the Applicant father’s birthday, Christmas Day, X’s birthday, Father’s Day and on Wednesdays between 5:30pm to 6:30pm.
For the purpose of handover, the parent receiving X into their care will collect X from Catholic Care (omitted) or if changeover is to occur in Canberra at (omitted) or as otherwise agreed in writing between the parties.
That the Respondent mother notify the Applicant father in writing in relation to the child’s:
a.) Medical practitioner, dental practitioner or other health professional appointments or hospital treatment including any counsellor appointments,
b.) The Respondent mother shall authorise the health professionals to discuss any matters with the Applicant father,
c.) The Respondent mother shall do all acts and things to ensure that the Applicant father is provided copies of any tests results, letters, and any referrals from and by health professionals directly from the health professional.
Each parent is to notify the other parent as soon as possible, or in any event within 24 hours, if X suffers any serious illness or injury or hospital admission whilst in their care and each parent is at liberty to contact any doctor, hospital or other medical professional treating X to obtain information, noting that in the event of any dispute the Respondent mother has final decision making ability.
That the Respondent mother authorise X’s school to provide to the Applicant father copies of all school reports, any other reports on school progress and behavioural issues and all school circulars in relation to X including details of other activities and all order forms for school photographs.
The parents will consult before enrolling X in any new ongoing activity which will impact upon the time she spends with the other parent.
Neither of the parents will discuss issues between the parents or say unkind or rude or critical things about the other parent to, or in front of X, or allow any other person to do so.
10.Each of the parties shall provide current addresses, telephone and email contact details to the other at all times.
11.Nothing in these orders is designed to prevent the parents making different arrangements by mutual agreement.
AND IT IS NOTED:
A. These orders have been drafted on the basis that the Respondent mother has relocated from (omitted) to Hobart Tasmania without the prior notification to or the consent of the Applicant father, and are based on the Respondent mother’s assurance that she will support the Applicant father’s ongoing relationship and contact with X. Accordingly the costs of travel to and from Hobart have been allocated to the Respondent mother.
B. In the event that the Respondent mother’s parents relocate to Hobart it is envisaged that the mother will arrange for X to travel to and from Canberra in Lieu of (omitted).
Evidence of the Parties
The Father’s Evidence
Mr Nettle is a (occupation omitted).[18] He has worked at that trade for almost 10 years. He is almost due for some long-service leave. He plans on using that entitlement to spend more time with his young daughter X.
[18] The Father is aged 26; the Mother is 22 years old.
The Father confirmed that he has a new girl-friend, who he expects – in time - will have some involvement in X’s life.[19] In the context of these questions, Ms Nada queried whether the Father was aware that she was recently engaged (he had only learnt of it very recently), and that otherwise there was no information – for the Father or the Court – about Ms Nada’s fiancé.[20]
[19] T 14
[20] T 15
The Father said that he could now identify relevant symptoms regarding X’s health, and that he has been able to address them when X has been in his care.
The Father confirmed that his parenting relationship with the Mother was non-existent. At the same time, he did say that communication between them was now [via email] “really good”, it was getting better, although not [yet] ideal. He confirmed to Ms Nada that he had not received any emails from her regarding X’s day-care and other activities.[21]
[21] T 17
In response to questions from the ICL, the Father confirmed that he was concerned about the emotional or other possible impact on the Mother (and in turn on X) if the Mother was required to return to live in the (omitted)/(omitted) area rather than being able to stay in Hobart.[22] He said that he thought there might be some anxiety or anger generated in the Mother if she was required to move from Hobart.
[22] T 19
The Father said that his time with X was “really good”. He elaborated on the general interaction with his daughter and how positive it had become, even at the contact centre in (omitted).[23]
[23] T 20
He also confirmed that he would like to know more about X’s routines, noting (as suggested by the ICL) that the more he knew of them the more he could plan and accommodate, or even re-schedule things. Very fairly, the ICL observed in her later submissions that the Father had had very little opportunity to develop parenting and related skills because of the limited time he has had with X.
After being briefly taken through the somewhat turbulent early years of the relationship with the Mother, the Father confirmed that he supported her and recognised the importance of her finishing her studies and pursuing her chosen career. That said, he confirmed that, in his view, X would be better off living back in the area where she had first lived, and where her [maternal] Grandparents continued to live.[24]
[24] It has been regularly mooted throughout the proceedings that the Mother’s parents intended to move to Tasmania. The Mother’s evidence was that her parents would move to Tasmania ‘shortly’ irrespective of the Court’s decision in the current matter.
Unsurprisingly, he said that it would be easier to see and spend time with X if she moved back to the (omitted)/(omitted) area.[25]
[25] T 21-22
The Father firmly and formally denied any and all of the allegations of violence made by the Mother in her affidavit material. Certainly, apart from an interim apprehended violence order that issued in late 2010, and its subsequent dismissal, there is nothing by way of police records to support the Mother’s allegations.
The Father agreed that the relationship with the Mother began when they were both quite young, and that both of them had since matured, with still some further maturing to go.
The Father said that he would love to be able to look after X, both on a regular basis (including having her sleep over at his residence – he currently lives with his parents), as well as when the Mother needed assistance and she could call him to help out. Indeed, he indicated that during his long service leave he intended advertising his (omitted) services in the (omitted) region precisely so that he could be closer to X. He confirmed also his desire to being actively involved in X’s life, particularly when she goes to school.
Given the Father’s genuine efforts over the years to engage the Mother to secure his time with his daughter – necessarily but unfortunately through litigation – and upon consideration of his evidence at trial, I have no doubt about the Father’s bona fides and earnest endeavours in relation to doing, as best he can, whatever is and will be in X’s best interests. The Father impressed me as a very genuine and dedicated person, who was intent in every reasonable way to work with the Mother in X’s best interests.
The Father confirmed that he was shocked when he learnt only in March 2013 that the Mother and X had secretly relocated to Tasmania in July 2012.[26] That said, with the benefit of hindsight now knowing that X had been living in Hobart since that time, he did not detect any change in her demeanour towards him.
[26] T 24
Subject to his earlier evidence regarding it being easier to spend time with X if she lived closer to him, the Father said that X’s move to Hobart had not set back his relationship with her. Perhaps this is because there was relatively little to set back.
He confirmed that it was a big and expensive exercise for him to travel to Hobart to see X: the flight alone cost approximately $800. There was then accommodation on top of that. The time involved with the travel occupied a full weekend.[27]
[27] T 25
The Father confirmed that he would like to help out more, such as buying clothes and such things for X (there is no dispute that, with the exception of a period of some six months when he was off work injured, the Father pays child support). He agreed that the use of a contact centre was now not required.
Unfortunately, because the Father’s time with X has been significantly constrained, similarly the paternal Grandparents [and other family members] have been severely limited in the time they have been able to spend with X.
The Father confirmed that X is soon to have a cousin, who he would naturally wish to get to know X – in time.[28]
[28] T 27
Finally, in re-examination, Mr Nettle confirmed that he has never been charged over any incident involving the Mother (or otherwise for that matter).
Formally, I accept the evidence of the Father. He is, in my view, clearly and completely dedicated to the care and well-being of his daughter. Against almost insurmountable opposition from the Mother, the Father has persevered to ensure that he maintains a relationship with X. Where there is any difference in the evidence between the parties, I should be taken to prefer that of the Father. Indeed, almost invariably, the third-party evidence (e.g. notes from the contact centre in (omitted) which confirm the Father’s sensitivity towards X and that nothing untoward happened at any such “contacts”) supports the account of the Father in relation to relevant incidents.
The Mother’s Evidence
The first matters addressed in Ms Nada’s evidence confirmed her understanding of the importance of X having a meaningful relationship with her Father. She confirmed that the relationship between X and her Father “appears to be growing continuously and building.”[29]
[29] T 31
Next, she confirmed that she became engaged to a Mr W in late April of this year; she and Mr W do not live together. They intend to marry sometime ‘within the next two years.’
Ms Nada confirmed that as a student, her only sources of income are via Centrelink benefits, and her parents – “when needed”. In relation to her income, there was some exploration of her weekly or fortnightly expenses. For example, she confirmed that she received $647.00 per week; her rent is $270.00 per week, and her grocery bill is approximately $120.00 per week. Her phone bill is paid for by her Father; gas and electricity adds another $50.00 or so per week, with a further $30.00 paid in petrol costs. Counsel for the Father put to Ms Nada that his rough calculation of these figures meant that she had expenses of approximately $470 per week, which came out of her weekly income of $647.00.
The Mother further confirmed that air travel between Hobart and Sydney for one year for X and herself would result in extra costs of approximately $12,000.00.
It was then put to her that given her income and expenses, she could not maintain fortnightly air travel for X and herself without the financial support of her parents. As was somewhat typical with her evidence, Ms Nada did not answer the proposition put to her directly, but rather parried with it, suggesting that, among other things, she would be supported in due course by the resources of her husband-to-be and by her father-in-law-to-be, who is an employee of (omitted), who receives certain staff discounts which would, according to Ms Nada, translate into some subsidised air travel. However she confirmed that such staff discounts would not be able to be accessed until after she married Mr W – sometime within the next two years.
Ms Nada went on to say that she thought she could afford to pay approximately half the cost of flights between Hobart and Sydney, and implicitly the other half would be paid for by her parents.
Significantly, she said that if her parents did not pay for the other half of the flights, she and X would return “within the region [of (omitted)/(omitted)] to make these visits possible.”[30]
[30] T 34
Ms Nada further confirmed that if she did not have the support of her parents, and she was unable to facilitate the visits, she would “return to the region”. She also agreed that it would make it easier for X and her Father to build and maintain their relationship if they lived in the same area.[31]
[31] T 35
Having said this, Ms Nada was strangely circumspect in acknowledging that if X's Father lived within driving (as opposed to flying) distance of X, he could attend school concerts and other such activities. She was extremely reluctant to concede that living in Hobart was a significant logistical barrier to the Father spending regular and consistent time with his daughter. For example (and on more than one occasion) she remarked: “…I believe that either way, if we are in Hobart or in (omitted), the maintaining and building of this relationship will have no problems.”[32] Respectfully, I do not accept her comments in this regard or general assessment of the lack of logistical or practical difficulties if she and X were to remain living in Hobart with the Father living in Canberra.
[32] T 36
Indeed, at one stage in her evidence, Ms Nada claimed that: “I don’t believe that… me being in Hobart will exclude him [the Father] from the majority of things.”[33] Such statements, respectfully, defy logic and common sense.
[33] T 37
The next part of the Mother’s evidence dealt with her undisclosed relocation.
Among a number of reports that were prepared for the Court, one was by Ms C, who saw the parties on 20th April 2012. It was put to Ms Nada that when she saw Ms C on that occasion, she denied that she had already decided to move to Tasmania. She said: “I had no direct plans. I had not… like I was not planning to move at that point.”[34]
[34] T 37
As with much of Ms Nada’s evidence, she was very precise. In being careful to refer to having no “direct plans” I inferred at the time, and asked her, whether or not she had any “indirect plans.” Effectively she conceded that she did. However, as with most of her other evidence, the responsibility for her decisions or actions rested with someone else. Thus here, she said that she had received advice from certain named police officers at (omitted) Police Station, a domestic violence liaison officer, and her previous solicitor, that she would be best advised to move to alleviate her fears of the Father. Ultimately she confirmed that she had developed plans to leave the (omitted)/(omitted) area some four or five weeks prior to 12th July 2012.
Next followed a discussion about advice that she had received from her first lawyer regarding relocation. Ms Nada said that in this regard, her lawyer (a) was advised that she had planned to move to Tasmania; and (b) told the Mother that there was no difficulty in such a course provided the existing orders for X to spend time with her Father were otherwise complied with.
As a general proposition I have difficulty accepting that any lawyer who is reasonably well-versed in family law matters (as her original lawyer is), could or would advise a party who is involved in ongoing parenting litigation to relocate without the approval of the other parent or authorisation by the Court. At the very least, I consider Ms Nada’s evidence to be disingenuous.
Somewhat later in her evidence, Ms Nada confirmed that the Court was never told of her plans to relocate.[35] Nor was the Father told anything about it. She agreed that the first the Father was told of her relocation was on 22nd March 2013, and that there had been a number of other occasions when the matter was before the Court prior to that date, when this significant factual detail of relocation could have been mentioned to the Court. Ms Nada backtracked somewhat in her earlier evidence regarding what had passed between her and her former [original] solicitor, saying that she did not believe that the solicitor was aware of her move, and that it was not discussed between them. She alternated between saying that she did not recall discussing the relocation with her original lawyer, and then other times saying that she did not discuss it with her at all.
[35] T 40
Among other propositions regarding her deception of the Father and the Court, it was also put to Ms Nada that she did not want either the Court or the Father to know that she had moved. Her response was that her primary object was to ensure that the Father did not learn of her move.[36] She said she did not want the Father to know because she was very concerned for her safety.
[36] T 41
In the light of the independent evidence before the Court, and notwithstanding Ms Nada’s further evidence that her profession of love to/for the Father and her desire to continue a relationship with him was nothing more than a façade, I do not believe there is any evidence to support the claims of concern for her safety. She may well have, in her own mind, built up a level of anxiety or concern; however, the objective evidence points there to be little or no basis for such fears.
Ms Nada confirmed that she informed her more recently-engaged lawyers on 17th January 2013, that she had relocated to Tasmania. She remembered this because 17th January was her first appointment with these new lawyers who are based in Sydney; her original lawyers were based in (omitted). Ms Nada confirmed that she told her lawyers that nobody else was aware of her move.[37] She confirmed that she had made a deliberate decision to hide her relocation to Tasmania.
[37] T 43
The matter returned to Court on 15th February 2013 in relation to the Father’s Contravention Application. This was approximately one month after the Mother had seen her new lawyers and advised them that she had moved in July 2012 to Tasmania and that neither the Father nor the Court was aware of this fact. She confirmed that in February 2013, neither the Court nor the Father was advised of her move to Tasmania. She insisted that she had told her new lawyers of her move.
Then Ms Nada was taken to various statements made in her affidavit material, which dealt with explanations as to why X’s time with her Father did not proceed. For example, in relation to a scheduled visit for 15th July 2012, various paragraphs regarding X’s alleged state of ill health were put to the Mother. It was specifically put to her that the inferences that necessarily flowed from the statements made in her affidavits regarding X’s state of wellbeing were misleading because (a) it implied that, but for X’s state of health, X would have been able to travel to (omitted) for contact (when in fact X and her Mother remained in Tasmania that whole weekend) and (b) no airline ticket had been booked for that scheduled visit in any event. Further, when the Mother telephoned Catholic Care in (omitted) to advise that X would not be attending for the time with her Father because she was unwell, the contact centre was not advised that the Mother was calling from Hobart. Thus, the ruse was put in place early on that an incomplete picture was invariably presented to the Court, the Father and the contact centre. That is, it was concealed that the Mother and child were residing in Hobart and further, that any telephone calls being made by the Mother to the contact centre were also being made from her residence in Hobart.[38]
[38] See the discussion at T 45-48
On a number of occasions, as I have already noted, the Mother very reluctantly conceded that the presentation of her affidavit evidence was at least misleading. She said, for example, that she did not recall whether she deliberately concealed information; on other occasions she said that she did not deliberately mislead anyone; while on still other occasions she said that she gave the relevant information to her lawyers and it was effectively their responsibility to prepare the affidavit. She did ultimately agree that she signed the affidavit and therefore had responsibility for what was contained in it.[39]
[39] T 48-49
Although the Mother denied it to be the case, it would appear clear that the “game was up” for the Mother continuing the deception of the Father and the Court when the Father’s solicitor asked the Mother’s solicitor for details of the day-care centre attended by X. It remained the case that details of X’s day care centre had not been volunteered to the Father (or obviously not discussed with him before-hand), but the Mother says that she instructed her solicitor to forward the details of the day care centre to the Father. Exactly when those instructions were given is not recorded.[40]
[40] T 49-51
The following important exchange between the Father’s Counsel and the Mother should be noted in particular:[41]
You have, by either omission – by not telling anyone – or by the statements that you have made in affidavits, deliberately concealed where you were living? Yes.
[41] T 51
In relation to what Ms Nada described as her extreme anxiety and fears, documents tendered from the Local Court regarding an Apprehended Violence Order directed to the Father, confirm that no final order was ever made, and that in fact it was dismissed without a hearing.[42]
[42] See Exhibit B.
As I have already mentioned, the objective evidence does not support any basis for concern by the Mother about the Father’s conduct towards her. That said, I accept that she had some level of anxiety or apprehension – whatever the basis of it - genuine or confected.
Ms Nada filed a Notice of Abuse/Family Violence in March 2011. However, there were no allegations of violence (or abuse) against the Father from the date of the Interim Apprehended Violence Order, which was taken out in November 2010, until July 2012 – when the Mother moved with X, without either notification or authorisation, to Hobart. Amongst other things, it is this significant period of time when there are no allegations against the Father that leads me to be very sceptical about the Mother’s reasons for anxiety towards the Father. My scepticism is heightened having regard to a significant number of Facebook and SMS text messages, which were later tendered.[43]
[43] Facebook messages became Exhibit D.
I do not propose going through all of the Facebook and SMS text messages in any detail. Relevant parts of them are set out in the transcript references below, and later in these reasons.[44]
[44] See also T 76-83 and Exhibit F. Details of the messages are set out later in these reasons.
Although the Mother says that she maintained a façade of seeking to maintain a relationship with the Father, the nature and frequency of the messages does not indicate or support the contention that the Mother was (or is) anywhere near as apprehensive of the Father as she suggests – or at all. Her claim that her barrage of messages was all a façade likewise does not sit easily with the nature, frequency and volume of them.
All of that said, someone who claims to have kept up a façade in one context, in my view, risks having later, similar fact evidence used even more strongly against them. Thus here, the Mother’s evidence of an earlier façade to deceive the Father further reinforces the gravity of the Mother’s later deceptive conduct and plan which she implemented over a significant period of time, to keep the Father and the Court “in the dark” about her unauthorised relocation. Indeed, if the Court were to accept the Mother’s evidence about keeping up a façade with the Father shortly after the cessation of their relationship via a large number of SMS text and Facebook messages, it might reasonably be taken as part of the overall evidence of the Mother having a history of and propensity to deceive the Father, acknowledging that a single event or instance would not, of itself, be sufficient to establish that the Mother had a tendency to act in a particular way.[45]
[45] See the general discussion by J.D. Heydon, Cross on Evidence (Ninth Australian Edition) (Sydney: LexisNexis Butterworths, 2013) pp.680 ff [21050].
In this regard I simply observe that ss.94 and 97 of the Evidence Act 1997 deal with the requirements to be satisfied if a court is to have regard to “tendency evidence.”[46] In addition to certain notice required to be given, Odgers says (internal citations omitted):[47]
[46] See also the helpful discussion in the Federal Court of Australia Full Court decision in Jacara v Perpetual Trustees WA Ltd (2000) 106 FCR 51, particularly at [47] – [76] (Sackville J) (Whitlam & Mansfield JJ concurring).
[47] S. Odgers, Uniform Evidence Law (Tenth Edition) (Sydney: Thomson Reuters, 2012) pp.460-461. It is almost useless to cite the paragraph numbering in this otherwise important tome because it is so labyrinthine and quite unhelpful. The relevant paragraph number is [1.3.6680] which bizarrely runs from pp.456 – 466.
In assessing the probative value of the evidence, factors to take into account will usually include the cogency of the evidence relating to the conduct of the relevant person, the strength of the inference that can be drawn from that evidence as to the tendency of the person to act or think in a particular way, and the extent to which that tendency increases the likelihood that a fact in issue did, or did not, occur. Assessment of the strength of the tendency inference will normally turn on such factors as:
· The number of occasions of particular conduct relied upon;
· The time gap(s) between them;
· The degree of specificity of the conduct/alleged tendency;
· The degree of similarity between the conduct on the various occasions;
· The degree of similarity of the circumstances in which the conduct took place…;
· Whether the tendency evidence is disputed;
· The issue to which the evidence is relevant (for example, tendency evidence may have greater probative value in proving conduct than in identifying an offender);
· Whether the evidence is adduced to explain or contradict tendency evidence adduced by another party.
I observe further that, strictly speaking, I do not need to rely upon any such statutory provision regarding tendency or propensity evidence for the simple reason that the Mother’s own evidence is clear regarding her account of what she intended by the multiple text and other messages to the Father in 2010. Likewise, her unauthorised relocation, without notification and the on-going deception to the Father and the Court, in large measure, speak for themselves.
Likewise I do not intend traversing the Mother’s evidence in relation to an argument with the Father in August 2010. However, it is important to deal with her evidence in this regard in one particular respect.
The Mother maintained that a witness statement she signed did not accurately record the true facts. But the effect of her evidence was that the Constable responsible for the preparation of the statement did not accurately record the facts as narrated to him by the Mother. Indeed the following exchange took place (emphasis added):[48]
[48] T 72-73. See also Exhibit E, being the Police Statement by Constable (omitted), dated 10th March 2011.
And I suggest to you that Constable (omitted) has put in here what you told him on the day and you didn’t tell him about any assault?‑‑‑No, I disagree with that.
And your position is that rather than you telling a lie about it, Constable (omitted) was telling a lie in this document?‑‑‑I’m not inferring that he was lying. I’m simply inferring that he was made aware of the full incident on the day.
Well, ma’am, that’s disingenuous. Clearly, if he hasn’t put it in there and he said that you only told him that there was a verbal argument then he must be lying, mustn’t he?‑‑‑I cannot agree to that.
HIS HONOUR: But you understand as ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ as Mr Howard has taken you through it that at the commencement of this statement, the policeman says specifically that basically this is the full story, the whole story, the true story and that there are risks for him ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ if there is any variation to that?‑‑‑Yes.
So you say that you told him these extra things including, “Please don’t prosecute”, but none of that is referred to in his statement?‑‑‑No.
So either you told him and he decided to make a statement which was not accurate or you didn’t tell him. You understand they can really be the only true options; can they not?‑‑‑Yes, they can. They are the only options, yes.
Hence, Mr Howard’s question to you, to put it bluntly, either the policeman is not telling the truth or you’re not telling the truth. And you say to me you’re telling the truth, correct?‑‑‑Correct.
And that, therefore, it must follow that the policeman is not telling the truth?‑‑‑Correct.
Further, the Mother ultimately agreed with the proposition that was put to her to the effect that the Facebook and SMS text messages suggest that she was, in fact, not fearful of the Father at all. In response, she simply said: “It appears that way, yes.”[49]
[49] T 83.
It is now necessary to deal briefly with one other particular allegation against the Father, which was said to have occurred on 5th February 2011 at a place called (omitted) in the (omitted) area. The Mother alleges that during this first visit of the Father with X in this park, she was sexually assaulted by the Father.
There is no doubt that there were approximately eight people present on this occasion, most of them from the Mother’s family or her friends. For part of the time, a police officer was also present. It was suggested to her that it was completely implausible that the Father would try to sexually assault her in circumstances where so many people were present, including a police officer. I should add that one of the people present was also videoing the Father’s time with X – X being nursed by her Mother for most if not all of the relevant time. The Mother maintained that the Father attempted to sexually assault her on this occasion.
Respectfully, I find her account of events – none of which are supported by any independent evidence – completely implausible. The Mother also contended that the Father was not charged after the matter had been investigated, but in the same breath maintained that certain named police officers told her that they intended to arrest him. Given that no arrest was made, and nothing in the police record supports the Mother’s account, again I find the Mother’s contentions improbable.
In relation to the travel arrangements that the Mother says she has maintained in recent times, flight records were subpoenaed from Qantas, Virgin and Jetstar. Some of those records were tendered.[50] It is sufficient to note that the range of questions regarding the bookings made by the Mother cast considerable doubt upon the Mother’s account of when and how bookings were made to enable X to spend time with her Father.[51]
[50] See the documents tendered in Exhibits G and H.
[51] See the discussion at T 88-91 & 100-101.
In relation to her university studies, the Mother was taken through a range of universities in Canberra and New South Wales, as well as online university courses, all of which would enable her to complete the qualifications she seeks. She confirmed that she would expect to be able to get credit for the study she has already completed at any university to which she transferred.[52]
[52] T 91-92.
The Mother agreed that she is a well organised person who plans things thoroughly.[53] In this regard the Mother said that in terms of contingency plans, in the event that the Court ordered her to return to the mainland from Hobart, she would reside initially with her parents before seeking any independent housing. In relation to any such return, she said that her fiancé would likely not be able to move with her because he had recently entered into a contract for twelve months with the (omitted).[54]
[53] T 94.
[54] T 95.
In something of an aside, Ms Nada was questioned about some entries in the medical notes of her then general practitioner, Dr B. In those notes, he recorded that one of the reasons the Mother wished to continue to breast-feed X was her concern that if she stopped doing so, X might be able to spend more time with her Father, including overnight. While the Mother accepted that Dr B’s notes seemed to confirm that the Mother wanted to continue breastfeeding so that a consequence of it would be that it would limit Mr Nettle’s time with X, she maintained that Dr B had misunderstood the comments that were made by her to him.[55]
[55] See the discussion at T 96-98 and the medical notes, which became Exhibit I.
I simply observe that as with her comments in relation to the police records, Ms Nada gave evidence that her GP had wrongly recorded information that was given in the course of discussion with her. It is curious if not unfortunate that two independent persons – a police officer and a general practitioner – were both accused either of wrongly or falsely recording information, or completely misinterpreting comments made by the Mother. These matters were specifically put to Ms Nada.[56]
[56] T 98.
Ms Nada suggested that in relation to any change of X’s surname, she thought that it could be amended if required or requested at a later time.[57] Again, respectfully, I cannot and do not accept her evidence. The history of the relationship and matters concerning X confirm that whatever the Mother wants, the Mother will take almost any step to ensure that it occurs.
[57] T 99.
In relation to why and how their seems to have been a change in the Mother’s attitude to the Father spending time with X, and that time being facilitated, the following exchange with the Father’s Counsel is instructive, thus:[58]
[58] T 102.
And I suggest that up until you moved to Tasmania ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ you had been trying very hard to restrict X’s time with Mr Nettle?‑‑‑No.
And that until Mr Nettle commenced his contravention proceeding, you were also wanting to try and restrict his time with Mr Nettle?‑‑‑No.
X’s time with Mr Nettle. And that it’s only been since the contravention application that you have been saying to the court in your affidavit material and otherwise that you support Mr Nettle’s relationship with X?‑‑‑Yes. I thought that was just implied previously. I didn’t – I wasn’t aware that I had to verbally state this.
Well, I suggest to you that the only reason you’re doing that now is because you realise that one of the possible outcomes from these proceedings is that the court might order you back – to order you to return from Tasmania to live either in (omitted) or in Canberra?‑‑‑No.
And that that’s the only reason why you’re saying those things now, that you support X’s relationship with her father?‑‑‑No.
Respectfully, I do not believe the Mother’s evidence just recounted.
The following matters arise from the cross-examination of the Mother by the Independent Child Lawyer.
The first part of the ICL’s cross-examination related to when her lawyers knew that Ms Nada had relocated to Tasmania. Despite it being suggested to her that the lawyers told the Court only when they found out of the relocation, the Mother maintained on a number of occasions that this was not so; she said firmly that her lawyers were told earlier. For example, on two occasions she said:[59]
[59] T 105-106. See also the later discussion at T 107-108.
MS LLOYD: Thank you, Ms Nada. Jeanine Lloyd. I’m representing your daughter today. You gave evidence earlier that you first told your current – or last solicitor about moving to Tasmania at the beginning of the year. Is that ‑ ‑ ‑?‑‑‑Yes.
I want to suggest to you that in fact you didn’t tell her until 22 March or thereabouts?‑‑‑I did tell her on 17 January this year.
The reason I want to suggest to you on 22 March that that in fact was the date was that that was the day that there was general disclosure to the solicitors including myself by your solicitor?‑‑‑Okay. Okay.
And I want to suggest to you that your solicitor told me that that was a surprise to her and that was the day that she learnt that you had – and that she was about to disclose it to everybody as it was her duty?‑‑‑She was disclosing it on that day but she was well aware of it beforehand.
All right. She also told me that you had relocated in September rather than in July ‑ ‑ ‑?‑‑‑Okay.
‑ ‑ ‑ and I believe that there’s some suggestion that the father believed that you had located in December. Can you explain why those different dates were given?‑‑‑I’m unsure as to why there are different dates. I don’t – I don’t know.
See, I want to suggest to you that the reason that your solicitor told me that you had relocated in September was that that married up with some date that you were anxious about, the father’s contact in September ‑ ‑ ‑?‑‑‑Okay.
‑ ‑ ‑ and that that happened to be the – is that just a coincidence that that’s September?‑‑‑I believe so, yes. Yes.
All right. So you don’t have any explanation as to why your solicitor would have said that it was a surprise to her that you had relocated?‑‑‑This was around the same time that we engaged the services of a barrister, and he expressed his concern that she hadn’t yet disclosed this information.
So you’re saying the barrister said, “Hang on. We’re about to go to court on Monday. This is Friday, and we had better ’fess up.”?‑‑‑Yes, we – we engaged his services around a week beforehand.
See, I want to suggest to you that your solicitor had no idea that you had moved to Tasmania and in fact on 15 February when we were supposed to have a court appearance that there was no indication then to the court that you had moved, and that was because your solicitor didn’t know at that stage?‑‑‑She did know.
So you’re saying that there was correspondence back and forth between your father’s solicitors about changing some of the arrangements, extending the time, for example and ‑ ‑ ‑?‑‑‑Okay.
‑ ‑ ‑ but no mention was made at all about Tasmania, and that was deliberately withheld from the father’s ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ solicitors and the court?‑‑-Yes.
On your instructions, was it?‑‑‑I believe so, yes.
So what did you say to the solicitor? “Look, I’ve moved to Tasmania but don’t tell the court.” Is that what you’re suggesting?‑‑‑I was – I was unaware of the implications at the time, although she did stress to me that it was very important that I made the court and Mr Nettle aware of my relocation. But I didn’t directly request that she withheld the information.
Well ‑ ‑ ‑
HIS HONOUR: Sorry, you – I understood you to say earlier that you did give those instructions, but now you’re saying that you didn’t?‑‑‑I didn’t directly instruct her to withhold that information, no.
MS LLOYD: You didn’t directly instruct her, so you’re saying that the solicitor decided not – that was her idea that she wouldn’t tell the court?‑‑‑She kept informing them – informing me that we – we would get to that, yes, that it was vitally important and we would get to it.
Well, I’m suggesting to you that there was a great deal of opportunity between January and March for you to instruct your solicitor to put on an affidavit or to write a letter or to telephone and that that didn’t happen and that that was because (a) your solicitor didn’t know and (b) that’s because you didn’t tell her ‑ ‑ ‑?‑‑‑I disagree. She did.
She certainly confirmed that details regarding the relocation were deliberately withheld from the Father’s solicitors and the Court, and that all this occurred on her instructions.[60]
[60] T 106.
The Mother also confirmed that she once held correspondence (but no longer did so) from her second set of lawyers, which was sent to her home address in Hobart, thus confirming that they were aware at an earlier point in time (on the Mother’s evidence) of her relocation.[61] Ms Nada confirmed that the correspondence was sent similarly to her parents’ residence as it was to her residence in Hobart.
[61] T 107.
In relation to how the Father’s time with X originally progressed at the contact centre in (omitted), the ICL suggested to the Mother that at least some of X’s distress in the early times of contact with the Father were because of the Mother’s anxiety. The staff records confirmed that the staff kept reassuring the Mother that nothing adverse happened in the course of X’s time with the Father.[62]
[62] The contact centre notes from Catholic Care (omitted) became Exhibits A1 and J.
In relation to the situation if the Mother is required to move from Hobart, she said that she would not move to Canberra because she had no family or support in that city; she would prefer to move back to (omitted) where X used to attend playgroups and because she knows the environment. Ultimately, she would move to the (omitted) area because of her preference for university in that city.[63]
[63] T 111.
The Mother confirmed that she had not discussed with the Father anything in relation to X attending day care, or about the proposal of what school or school system X should attend. Her preference is that ultimately X would attend a private school. In this regard, she said: “my parents are able to fund the primary school, private school education should we decide upon that…”[64] To state the obvious: the Mother’s financial dependence/reliance on her parents is clear.
[64] T 111-112.
The Mother agreed that the Father’s time with X has been minimal. She also agreed that the contact centre has not been able to provide any larger block of time other than two hours. Again, she said that no increase in time had been proposed on the advice of her solicitor – although which solicitor allegedly gave this advice was not identified. The Mother confirmed further that X would definitely cope with an increase in time with the Father, and that that time could increase firstly to five hours, and then up to eight hours. The Mother agreed that overnight time will also start and that extended periods of time during school holidays would also commence by 2015. In addition to each of these particular separate aspects with which the Mother agreed, she confirmed that she did not have any concerns about the Father looking after X’s basic needs.[65]
[65] T 113-114.
The Mother proposed resolving issues in the future with the Father via mediation. At the same time, she acknowledged that the Father’s limited time with X had put him at a significant disadvantage in developing his skills to care for X. It was against this background that the Mother made the comment that notwithstanding orders from the Court of some two years standing to engage in programs that would assist her in parenting, she nonetheless claimed that her solicitors (again unspecified which ones) had “not really passed on – [or] explained the importance of direct contact between Mr Nettle and I before now”.[66]
[66] T 114.
Again I have the greatest difficulty accepting the Mother’s evidence in this regard, namely that all problems are able to be placed at the feet of either or both of her former lawyers (and/or Counsel), rather than taking some basic responsibility for her own actions and whatever insight she has, or does not have, regarding the parenting of X and the importance of X’s relationship with her Father. The Mother’s evidence is implausible. I do not accept it. Thus far, it would appear that her studies in (omitted) have not assisted in developing appropriate insight at least in relation to parent/child relationships.
The Mother confirmed that she has been seeing a psychologist for some time in relation to her anxiety issues. The psychologist resides in (omitted), which is in the (omitted)/(omitted) area. The Mother confirmed that from time to time she travels from Hobart to (omitted) to visit her therapist, and sometimes will spend up to a week in the area with her parents. The necessary inference is that the Father knew nothing of such events. The records from the psychologist, Ms B, became Exhibit K. Again to state the obvious: if the Mother wishes to continue to see her therapist, presumably it will be easier, and certainly cheaper, if she returned to a locality that was geographically much closer to her psychologist.
The Mother agreed at the very least that until final orders were made by the Court, travel from Hobart would be more beneficial for X’s time with her Father, for those flights to come directly to Canberra rather than via Sydney. The Mother in fact confirmed that she had suggested to her parents that the flights come to Canberra. However, at the direction or suggestion of her parents, she has maintained the flights to Sydney so that X can spend extra time with her maternal grandparents.[67]
[67] T 117-118
Very curiously, the Mother suggested that the travel by plane every second weekend was pretty much the same as driving X to and from time with her Father. In fact, she maintained that the travel time was approximately the same, whether the drive was to Canberra from (omitted) or the flight was from Hobart to Canberra.[68]
[68] T 120.
For my part, I have very significant reservations that, for logistical and financial reasons alone, an arrangement that requires a Mother and young child to undergo plane travel every second week (plus whatever car travel is required in Tasmania and New South Wales) to ensure that the child spends time with her Father is sustainable. Such an arrangement is inherently problematic. The history of the matter, even with the recently improved communication between the parents, does not give sufficient or reasonable confidence that such an arrangement can be sustained; in my view, it is not in the child’s best interests.
Finally, the Mother agreed that with X’s time in day-care she has had to adjust to Ms Nada not being her full-time carer every day. This would suggest that X has developed a reasonable if not significant degree of adaptability.[69]
[69] T 120.
It can also be conveniently noted here that in the course of her submissions, Ms Nada said that if she was required to return to the Australian mainland, it might be necessary to enter into a new relationship – presumably on the basis that she could not see the current engagement with her fiancé lasting the distance – literally! What this might say about or reflect upon her constancy or stability must necessarily be speculative, given that, among other things, she was making submissions rather than giving sworn evidence. For example, it might be readily argued that the Mother views relationships as something of a disposable commodity. But this might (but it might not) be going too far on the evidence before the Court.
Evidence of Family Consultant
In this section I will deal firstly with the oral evidence of Dr W, then with comments from her report (dated 24th May 2013), which became Exhibit C.
Family Consultant: Oral Evidence
At the outset of her oral evidence, I made the Family Consultant aware of the relatively late-breaking news that came to light in the course of the trial (although Dr W seemed to be aware of some of it) regarding Ms Nada having become engaged, and that her fiancé had recently signed a contract of employment for the next 12 months. She was also advised that Ms Nada’s fiancé had recently purchased a property in Hobart.[70]
[70] In her Report (at par.1.7), Dr W confirmed that, on the Mother’s advice to her, she did not move to Hobart to join her new partner.
In response to questions from Ms Nada, Dr W said that she formed a view that the Father genuinely wished to resolve the situation, and equally that he wanted to increase his time with X. He was hopeful of being able to resolve the matter by way of negotiation with Ms Nada – so Dr W said.[71]
[71] T 132.
In relation to the effect on any relocation (i.e. remaining in Hobart or returning to the (omitted)/(omitted) area), Dr W confirmed that X’s main attachment figure was her Mother, and that “wherever you [the Mother] are, X will be ok”. In the same series of questions, Dr W also said (emphasis added):
Do you believe that in terms of forced separation that being forced to relocate back to the (omitted), (omitted) or Canberra area will affect X in this same way? I mean, in terms of separation from main attachment figures, her day care friends, that kind of thing?‑‑‑Her main attachment figure, I believe, is you.
Yes?‑‑‑So I think wherever you are X will be okay.
Although she has built strong bonds with people in Hobart. Do you think that will affect her?‑‑‑It seems like she is developing bonds with people in a number of places; the most important thing to X is her attachment with you and in a long-term sense an attachment she can develop over time with her father.
In answer to questions from the ICL, Dr W noted the following.
The Full Court also noted, at [29], the trial Judge’s concern, indeed doubt, regarding the on-going financial capacity for plane travel to be sustained. The trial Judge (as noted by the Full Court at [31]) also expressed concern that regular air travel was good for the child because “it involved long hours of travel, detailed arrangements and a lack of flexibility.” Respectfully, I adopt the same views in this matter.
In the result, in H v E the Full Court dismissed the appeal. Among other things, after having dealt with Smithers J’s consideration of the Mother’s lack of bona finds at [46] – [48], the Court went on to say, at [56]:
If the Court ordered a return to Melbourne based significantly upon its dismay at the manner in which injunctions had been flouted, then the Court would be open to the criticism that the welfare of the child had been sacrificed on an altar of high principle, namely that people should not be able to get away with flouting court orders. However, an analysis of the manner in which Smithers J approached his task does not lead us to the conclusion that that was the path he chose to adopt. His Honour expressly dealt with the matters favouring the wife's case, namely a genuine and strong wish to live in Brisbane, the fact that the family were well settled in Brisbane, the economic hardship involved in returning to Melbourne, and the disruption to the mother's family which would be entailed by the fact that she would have to return to Melbourne a lot earlier than she could expect Mr H to return to Melbourne. These would have an impact not only on A but upon the other children as well. His Honour off-set as against those considerations what his Honour perceived as the necessity for frequent access in order to ensure the continuation of a good relationship between father and son in circumstances where there was potential hostility in the mother's household.
The Court further said, at [57]:
The trial Judge was cognisant of the amount of contact enjoyed by the child to his father and the quality of the relationship that had been developed and maintained given the comparative sparsity of such contact in recent months. However his Honour stressed the tender age of the child and the competing forces in the mother's household which would work against the quality of the father-son relationship if frequent contact was absent.
In Sampson v Hartnett (No.10), the Full Court (Bryant CJ, Kay & Warnick JJ) considered the earlier decision in H v E, primarily in the context of a court’s power to order a party to relocate. The following matters should be noted from the Full Court’s judgment. Unless otherwise indicated, all of the following remarks are taken from the joint judgment of Bryant CJ and Warnick J.
It is apposite to note the prefatory comments, beginning at [11], where their Honours said:
[11] While such [relocation] orders may indirectly affect a parent’s freedom of movement, they do not direct a parent to discharge parental responsibility in a manner or in a location which is not one of the options put forward by one party at least, nor do they deprive a parent of choice about where he or she lives.
[12] Consequently, such orders do not expose a parent to sanction if that parent chooses not to continue the anticipated parental involvement post-judgment. For example, the primary parent restrained from changing the residence of a child from a particular location following a case in which that parent proposed remaining as primary parent in such an event, is nonetheless free to hand over the child to live with the other parent. In other words, the primary parent, who by order will retain that position depending on his or her choice about where he or she lives, will “choose” the degree, if not the location of parental involvement.
[13] Orders so limited in their impact on the freedom of choice of parents about the location, manner and degree of parental involvement are consistent with the law’s approach to family life….
[14] Not surprisingly, orders going further than the types so far discussed in their impact on the choice of a parent about the degree and/or location of his or her parenting have traditionally been avoided….
Then at [19], the Court highlighted the nub of the issue then before the Court and poignantly for attention in the current matter. Their Honours said (emphasis added):
There is little doubt that the Family Court has power to “effectively” order a parent not to relocate by ordering that parent, who wishes to act as primary parent, not to change the location of a child. The much less considered question is whether there is power to make an order not to relocate/to relocate directly against a parent.
After discussing a number of cases (which I need not repeat or refer to, except perhaps comments by Gummow and Callinan JJ in U v U)[80], and the terms of ss.64B, 68B, 114 and 65D, the Court commented at [57] – [58] thus (emphasis added):[81]
[57] If it is within power to order a person not to relocate, it would be surprising if it was not within power to order a person to relocate, although one would imagine the exercises of power to the latter effect would be even more rare, because the effect is more drastic. The person being ordered not to move at least has chosen that location as some stage and for reasons which one assumes at least once existed. This contrasts with a person who may not wish to go somewhere and therefore the order is much more of an imposition on that person’s freedom.
[58] However, we conclude there is power under s 114(3) of the Act to enjoin a parent from relocating or to relocate, provided that that injunction is no more than is necessary to secure the best interests of a child. The proper exercise of such a power is likely to be rare, because:
(i) the location of the child will usually be the critical factor, leaving to the parents the choice about their roles; and
(ii) in a parenting case, an order directed to a parent to relocate or not will likely only serve a useful purpose if that parent is to then discharge a particular role as a parent. If the evidence supports a finding that the parent will play that role, if the child is relocated or not, the order directed to the parent will likely be superfluous. If the evidence does not support such a finding, the order will be coercive in nature and be equivalent to forcing that parent to discharge a role in circumstances not of that parent’s choosing.
[80] See U v U (2002) 211 CLR 238 at [89].
[81] See also the comments by Kay J at [121] in Sampson v Hartnett.
Their Honours then posed the relevant question in the following terms, at [59]:
The prospect of ordering a parent to relocate and in effect “parent” in a situation not of that parent’s choosing, legitimately gives rise to concerns, particularly in respect of enforcement….
On matters of practicality, if not logistics, at [75], the Court commented (emphasis added):
To order someone to relocate to another place will require the court to be satisfied that the practicalities of life equally or sufficiently exist in the place to which the party is required to move. One would therefore reasonably expect a close analysis of the moving party’s capacity and/or the other parties’ capacity to provide for such practicalities having regard to the orders proposed by the court. It is probably only in the circumstance of significant wealth of both parties that it might reasonably be inferred that the practicalities of life could be met without detailed inquiry.
In my view, it is also apposite to consider the comments of Boland J in Morgan v Miles, where her Honour was sitting as a Full Court pursuant to s.94AAA(3) of the Act.[82] It is important to consider this case because it outlines precisely the course the Mother should have pursued rather than the surreptitious and mis-leading conduct in which she and her parents engaged over a significant period of time.
[82] Morgan v Miles (2008) 38 Fam LR 275.
It is sufficient to note that her Honour stated, at [74], that the Act “provides for the careful exercise of a structured discretion to determine the appropriate order to be made.”[83]
[83] See also the further comments of the Court at [83], [84], [88] and [91]. For reasons already given, in the light of her Honour’s comments at [88] regarding “cases of emergency”, in my view, the evidence does not support any contention – which was not formally argued in any event – that the Mother’s clandestine relocation was because of any emergency. The evidence does not support in any way such a conclusion.
Then at [77], Boland J said (emphasis added):
The requirements of s 65DAC, properly observed, therefore require parents to consult and make a genuine effort to agree about a move which would make it significantly more difficult for the child to spend time with the “left behind” parent. The operation of s 65DAC, when applicable, clearly precludes a unilateral move by one parent without notice and consultation with the other parent.
It is almost superfluous to observe that the concerns and warnings expressed by her Honour describe exactly what occurred in the current matter: there was no discussion by the Mother with the Father about any relocation; the Father became the “left behind” parent; the Mother moved unilaterally “without notice and without consultation.” And, as noted on numerous occasions already, she kept her relocation secret from the Father and the Court for a significant period of time. She also had ample opportunity as did her lawyers (if they knew, as she insists they did, of her unauthorised relocation) to notify the Father and the Court of the Mother’s change of residence with the child, but did not do so until only a few months before the trial.
For the sake of completeness I note that Boland J set out in significant detail, at [79] of her Honour’s judgment, the matters that would/should normally be taken into account in circumstances where one parent proposed to relocate.
Finally, I note the following from Morgan v Miles, at [91] (emphasis added):
… it is not distance per se which should be the determinative criteria. In many cases what is relevant is the consequence of the move or proposed move. The issues to be determined may be quite different for example, for an infant or toddler developing attachments, to those of older children; or for economically impoverished families where fuel costs may be unaffordable thus impeding maintenance of a meaningful relationship. Conversely, there may be little impact on maintaining a meaningful relationship between a child and the non relocating parent particularly if the child has a history of living predominantly with the relocating parent, and spending time with the other parent where, with alternate arrangements, the child’s relationship with the non relocating parent can be maintained and fostered.
Again to state the obvious: in this case there is a young child who, on all the evidence, is developing an attachment with her Father.
The operation of s.65DAA
By virtue of the Court’s order in favour of equal shared parental responsibility, it remains to consider s.65DAA.
First, it can reasonably be said at this juncture that where-ever the Mother ultimately resides – (omitted)/(omitted) or (omitted) – and assuming that the Father continues to reside in Canberra, a shared care/equal time arrangement is utterly impractical.
Secondly, it then comes to consider whether substantial and significant time is reasonably practicable in all the circumstances.[84]
[84] See s.65DAA(2), (3) & (5).
Whether the Mother ultimately lives in the (omitted)/(omitted) region or the (omitted) area, and with the Father living and working full-time in Canberra, either locality will, in my view, make it unreasonably impractical for the Father to spend substantial and significant time with X, other than when particular events at school and the like are pre-arranged so that proper planning – by both parents – can be undertaken.
In this regard, I note the High Court’s comments in MRR v GR, particularly at [9], [13] and [15], which focus on the importance of considering “the reality of the situation of the parents and the child”, and that a “practical assessment” be made.[85]
[85] MRR v GR 2010) 240 CLR 461.
The orders as sought by the Father, as slightly amended, are, in my view, in the best interests of X. Those orders should be made.
Contravention Hearing: March 2013
One final matter needs to be addressed: it relates to the earlier contravention proceedings, which were heard in March 2013 but not formally resolved. At the time they were heard, the Mother was legally represented by solicitors and Counsel of very significant experience in family law. On her evidence at trial, and contrary to her oral and affidavit evidence at the contravention hearing, her lawyers knew at least from January 2013 that she had moved to Tasmania in July 2012. If this be correct, not only has the Mother deceived the Father and the Court but so too have her lawyers.[86]
[86] Among many places, see the discussion at T 43-44 &105-108.
Because both of Ms Nada’s lawyers withdrew from the proceedings (obviously at different times), in order for the Court to pursue any inquiry into what was known at a particular time (in the light of the Mother’s evidence) would, as a matter of procedural fairness, require them at least to be notified of the Mother’s evidence. In this regard the Court requests that the ICL provide copies of the judgment to both of the Mother’s former lawyers, as well as to her former Counsel. It is a matter for them whether they may wish to put something to the Court (or other relevant authority if at some time in the future the Mother’s evidence or this judgment is referred to them) in response by way of brief submission or otherwise. I do not seek or invite any such comment; it is a matter for the lawyers involved.
In the course of her evidence at trial, the Mother either confirmed or at least conceded that her evidence at various times, and particularly (but not limited to) the submission and affidavits filed for the purposes of the contravention proceedings, did not present the “full picture” of where she and X were living.[87]
[87] Also among many places in the course of the Mother’s evidence at trial, see T 46-53.
In the light of the Mother’s evidence at trial, I cannot accept her explanation given in support of her pleas in relation to the contraventions which, in general terms, were either to deny the alleged breach (such as those pleaded at paragraphs 2, 3, and 12-14 of Attachment A of the contravention application, filed 20th November 2012), or to the effect that she had reasonable excuse not to make X available to spend time with the Father. It was not infrequently pleaded by the Mother that X was unwell and therefore it would not have been in her best interests to spend time with her Father.[88]
[88] See, for example, the Mother’s two affidavits in response to the contravention, both of which were filed on 15th February 2013, as well as her two separate written submissions, filed by her solicitor on 12th April 2013, and by her Counsel, also on 12th April 2013.
However, it is now known, but was not disclosed at the time of the contravention hearing, that the Mother and X were residing in Hobart. While it was likely to be the case that, on some occasions, X was unwell, the reality was that the logistics of booking airfares, travel to the airport in Hobart, thence by air to Sydney, thence by car to (omitted), then to a contact centre in (omitted) – and all these steps subsequently repeated in reverse – all militated against the regularity and relative certainty of X spending time with her Father. Added to these matters are the cost of air travel, which necessarily required the maternal Grandparents to contribute regularly to enable the Mother and X to travel by air, plus the further undisclosed fact that the Mother and X regularly spent extra time with the Grandparents – necessarily at the expense of the Father.
Further, the Mother confirmed that she also travelled to the (omitted)/(omitted) area to attend upon her psychologist (Ms B), sometimes for the period of up to one week.[89] It would appear that the Father knew nothing of these return visits to the (omitted) area.
[89] T 117. Ms B’s notes became Exhibit K.
Originally, the Father alleged 14 breaches of orders, but at the contravention hearing in March 2013, he abandoned a number of them pleaded in the contravention application filed on 20th November 2012.
In short, in the light of her evidence at trial, I reject the Mother’s pleas given at the contravention hearing, and in relation to the matters set out in her affidavits, and the written submissions on her behalf filed by her then solicitor and Counsel.
Learned Counsel for the Father submitted at the conclusion of the trial that, in such circumstances, the Mother should be placed on a bond. However, the terms of the Act require certain procedural steps to be undertaken before placing a person on a bond.
Notwithstanding her legal representation at the time, in my view, although a bond is warranted, it cannot be imposed on this occasion because of the constraints of the Act. Section 70NFE(5) requires the Court to explain to a person who is required to enter a bond the purpose and effect of the proposed requirement and the consequences that may follow if there is failure to comply with the terms of the bond. That explanation has not occurred here.
From what has been said, however, the Mother should be under no illusion of the risk she runs if, subject to relevant evidence, orders are again so flagrantly breached. Subject to evidence and proper process, she would almost certainly be placed on a bond, and also (very possibly) fined. I hope most earnestly that no further, or more severe punishments need to be contemplated.
Conclusion
Each of the following matters from three Full Court judgments are directly relevant to the determination and resolution of the current proceeding.
First, in H v E, the Full Court referred to a principal finding of the trial judge of the lack of bona fides of one parent. Such a finding is warranted here in relation to the Mother. That said, and for all of the significance of the Father and the Court being deceived by the Mother (aided by her parents) over a significant period of time, that is not (and cannot be) the ground or basis for parenting orders. X’s best interests are and must remain the paramount consideration in the determination of those orders.[90]
[90] Cf. s.60CA of the Act.
Secondly, in Morgan v Miles, the Full Court referred to the need for the careful exercise of a structured discretion. The Court also said that, in a relocation case where there is a young child developing attachments, as well as where there are financial considerations regarding travel, different considerations will usually apply, as opposed to where there is an older child and a well-established relationship between that child and the ‘left behind parent.’
Here, there is a young child. The evidence of the parents and the family consultant all confirm that X currently has [only] a developing relationship with her Father. For that to be consolidated, she needs to spend regular and consistent time with him. In my view, the evidence clearly shows that that cannot occur while-ever the Mother continues to reside in Hobart. Moreover, the evidence also makes clear that the Mother requires the financial assistance of her parents to ensure that the large cost of regular air travel can be met. Absent any evidence from them, the Court has very serious concerns about the financial (and other) viability of long distance air travel over a long period of time. Even in the short term, there are too many variables for there to be any confidence that the consistency and certainty of X’s time with her Father will occur if she and her Mother continue to reside in Hobart.
Thirdly, in Sampson v Hartnett (No.10), the Full Court discussed the power and limited if not rare circumstances in which a court may order a parent to relocate. Among other things, at [75], the Court referred to the importance for a court that is considering such an order to have proper regard to the practicalities of the area to which the parent would be ordered to return.
In this case, the (omitted)/(omitted) area is one where the Mother has previously lived and her parents currently still live. There is certainly no evidence that they have moved from the area. And the Mother’s evidence and submission is that (a) if she was permitted to remain in Hobart and the time between X and her Father did not work satisfactorily, she would return voluntarily to that area, and (b) if ordered to return to the mainland, she would first move to her parents’ residence (in (omitted)) before moving to resume her studies at the University of (omitted). Further, the Mother’s therapist/ psychologist (Ms B) also lives/works in the same area, in which case the Mother will have further support available to her.
Formally, I make orders as sought by the Father, as amended by what follows. In my view, they are in X’s best interests.
(i) The Mother is to return to the (omitted)/(omitted) area with X by no later than 31st January 2014.
(ii) Thereafter, and unless otherwise agreed in writing between the parties (or by Court order), the Mother is restrained from moving with the child outside a radius of 50 kilometres of the (omitted)/(omitted) area, save that, upon giving the Father written notice of no less than 21 days, the Mother is permitted to move, with the child, to an area that is within a radius of 50 kilometres of the University of (omitted).
In conclusion, three further matters may be observed:
(a)First, while not formally a consideration as to the terms and parameters of the parenting orders per se, the Mother’s lack of bona fides and disregard of the Court’s orders, if allowed to continue, would risk setting such a precedent that any parent could surreptitiously relocate and then argue, after a period of time, that the child is so well settled in the new area that they could not and should not be returned. Such a precedent, in my view, is unacceptable and cannot be countenanced.
(b)Secondly, I have commented already a number of times in the course of these reasons on the Mother’s manner and conduct. I have done so perhaps in more detail than might more usually be the case. I do so because, in my view, the conduct of Ms Nada, over a significant period of time, has been contemptuous of the Father and of the Court. Further, I have had the opportunity of observing her (and the Father) over a considerable period of time, and more than one court event. It is difficult not to be struck by the dissonance between, on the one hand, the Mother’s very gentle, sweet and beguiling manner and very subtle, dulcet tones in Court, and on the other hand, her persistent deceit, and her blunt SMS text and Facebook messages to the Father. Her reasons for the deceit, such as her fear of the Father, are implausible – certainly over the period of time for which she contends. Her professed fear is certainly not supported by the nature and persistence of her engagement with the Father at the time of the parties’ separation. She also professed either gullibility or naïveté about the Father’s role in X’s life, and or that her lawyers (two sets of them – plus Counsel) wrongly or poorly advised her. I do not accept her explanation. She also claimed that a police officer had lied in relation to a statement he prepared, and that her GP had incorrectly recorded what she had told him. In my view, she has consistently refused to take responsibility for her actions. She invariably seeks to deflect blame and responsibility to others.
(c)I mention each of these matters, albeit summarily, specifically to highlight the particular and very specific consideration I have given to the evidence of the Mother, bearing in mind the central considerations mentioned by the High Court in Fox v Percy regarding the advantages of a trial judge in the evaluation of the credibility and evidence of a particular witness.[91]
[91] Fox v Percy (2003) 214 CLR 118 at [23] (Gleeson CJ, Gummow & Kirby JJ), [65] ff., (McHugh J).
(d)The third and final matter to note is tinged with a certain irony and regret. Had the Mother followed proper process and either sought the Father’s consent about a move to Hobart, or the approval of the Court in accordance with Boland J’s instruction in Morgan v Miles, there is some likelihood (but not certainty) that she would have been able to relocate. It is inconceivable that two sets of lawyers (plus Counsel) did not advise her of this course and possible outcomes if it was not followed. As Agatha Christie’s famous sleuth, Hercule Poirot, regularly declared, ‘order and method’ is important to find the right solution. So it is in parenting matters, and the unique species of that genus, parenting that involves “relocation.” The order and method prescribed by Boland J in Morgan v Miles should have been followed in this case. With blatant cunning and deceit it was not.
I certify that the preceding two hundred and six (206) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 1 November 2013
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