O’Hara & Fadley
[2022] FedCFamC2F 1801
•19 December 2022
Federal Circuit and Family Court of Australia
(DIVISION 2)
O’Hara & Fadley [2022] FedCFamC2F 1801
File number(s): MLC 4419 of 2021 Judgment of: JUDGE O'SHANNESSY Date of res tempore judgment: 19 December 2022 Catchwords: FAMILY LAW – final parenting orders – relocation – res tempore reasons – where the mother seeks to relocate interstate – where the father seeks to restraint mother from moving out of Victoria – where a child does not wish to relocate – where section 61F considered – indigenous connection to place considered – where mother’s proposal reduces frequency of children’s time with father – mother’s proposal in the children’s best interests. Legislation: Evidence Act 1995 (Cth), s 140
Family Law Act 1975 (Cth), ss 4, 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC, 61F
Family Law Act 1975 Act No. 53 of 1975 as amended, s 60B
Cases cited: Adamson & Adamson (2014) 51 Fam LR 626
AMS v AIF (1999) 199 CLR 160
Asher & Wilkinson [2020] FamCAFC 44
Blaze v Grady (2015) 54 Fam LR 172; [2015] FamCA 1064
Cox & Pedrana [2013] FamCAFC 48
D & SV [2003] FamCA 280; (2003) FLC 93-137
Fox v Percy (2003) 214 CLR 118
Franklyn & Franklyn [2019] FamCAFC 256
Goode & Goode [2006] FamCA 1346
Hamish & Brighton [2014] FamCAFC 242
Jurchenko & Foster [2014] FamCAFC 127
McCall & Clarke [2009] FamCFC 92
Morden & Coad [2019] FamCAFC 233
Oswald & Carrington (2016) FamCAFC 152
Sayer & Radcliffe and Anor [2012] FamCAFC 209
U & U [2002] HCA 36
Ulster & Viney [2016] FamCAFC 133
Wagstaff & Wagstaff [2022] FedCFamC1A 119
Division: Division 2 Family Law Number of paragraphs: 111 Date of hearing: 6, 7 & 8 September 2022, 8, 14 & 15 December 2022. Place: City B (via videolink) Counsel for the Applicant: Ms A Skinner Solicitor for the Applicant: Fair Family Law Counsel for the Respondent: Mr D Carne Solicitor for the Respondent: Morrison & Sawyers Lawyers Counsel for the Independent Children's Lawyer: Mr K Nicholson Solicitor for the Independent Children's Lawyer: Medson Legal Pty Ltd ORDERS
MLC 4419 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR O’HARA
Applicant
AND: MS FADLEY
Respondent
AND: INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE O'SHANNESSY
DATE OF ORDER:
19 DECEMBER 2022
THE COURT ORDERS THAT:
1.That Mr O’Hara (‘the Father’), and Ms Fadley (‘the Mother’), have equal shared parental responsibility for:
(a)X born in 2010 (“X”);
(b)Y born in 2015 (“Y”); and
(c)Z born in 2019 (“Z”);
(collectively referred to as “the children”), save that the Mother have sole parental authority for decisions about the children’s education (both current and future) and the children’s health and provided that prior to making a decision about a major long term issue concerning the children’s education or health, the Mother must:
A.Inform the Father in writing (by email or text or via the App), in a timely manner, of the details of the proposed decision/s and the reasons being proposed or contemplated; and
B.Seek the views and opinions of the Father in respect to such proposed decision/s;
C.Where the Father has responded in a timely and courteous manner, the Mother consider the views and opinions of the Father about the major long term issue; and
D.In any event, promptly advise the Father of that decision by email or text or via the App.
2.The children live with the Mother.
3.The Mother be permitted to relocate the children’s primary place of residence to within 50 kilometres of Suburb Q, Queensland, on or after 16 January 2023.
4.The children spend time with the Father as follows:
(a)While the Mother remains in the City B region;
(i)During school term, each weekend, from 10.00 am Saturday until 4.00 pm Sunday; and
(ii)During the long Summer holiday period in 2022/2023:
A.From 10am on 21 December 2022 until 4pm 22 December 2022 (two days/one night);
B.From 10am on 24 December 2022 until 2pm on 25 December 2022 (two days/one night);
C.From 10am on 28 December 2022 until 4pm on 30 December 2022 (three days/two nights);
D.From 10am 6 January 2023 until 4pm on 8 January 2023 (three days/two night);
E.From 10am on 12 January 2023 until 4pm on 14 January 2023 (three days/two night);
(b)Upon the Mother relocating to Queensland:
(i)in Victoria, in the first week of the 1st term Queensland school holidays in 2023, a total of four nights over six days as follows:
A.from 3.00pm Monday to 3.00pm Wednesday (over three day with two nights); and
B.from 3.00pm Thursday to 3.00pm Saturday (over three days with two nights);
(ii)in Victoria, in the 2nd term Queensland school holidays in 2023, for 4 consecutive days with three nights from 10.00am Monday to 5.00pm Thursday in the first week of such holidays;
(iii)in Victoria, in the 3rd term Queensland school holidays in 2023, for 5 consecutive days with four nights from 10.00am Monday to 5.00pm Friday in the first week of such holidays;
(iv)in Victoria, from 2024, for half of each of the Queensland school 1, 2 and 3 term holidays from 4.00 pm on the first Saturday of those holidays to 10.00 am on the middle Sunday of such holidays;
(v)in Victoria, during the Christmas school holidays as agreed and in default of agreement:
A.for two blocks of five (5) nights in 2023/2024 as follows:
a.from 2pm on 26 December 2023 and concluding at 2pm on 31 December 2023; and
b.from 10am on 4 January 2024 and concluding at 10am on 10 January 2024;
B.In 2024/2025 and each alternate year thereafter, for the second half of the day that falls at the middle of the Christmas school holiday period until the day that falls two business days prior to the first day of the new year school term; and
C.In 2025/2026 and each alternate year thereafter, for the first half commencing in December 2022 on the day after the last day of the school year until the day after the day that falls at the middle of the Christmas school holidays;
(vi)upon the Father complying with paragraph 5 hereof, in Queensland, from Friday after school to 5.00pm Sunday, with the Father to provide not less than fourteen (14) days’ notice in writing to the Mother of his intention to travel to Queensland to spend time with the children pursuant to this clause; and
(vii)at other times as agreed in writing by text message or email or the App.
5.The Father’s time pursuant to paragraph 4 hereof be in the substantial attendance of the Paternal Grandmother, the Paternal Grandfather and/or the Paternal Aunt, Ms C, until such time as the Father has completed a Changing Abusive Behaviours program and has provided a certificate of completion of same to the solicitors for the Mother.
6.Until 2026 or such time as the Father has provided evidence to the Mother of him having his own independent accommodation, all overnight time the Father spends with the children in City B pursuant to these Orders shall occur at the home of the Paternal Grandmother, the Paternal Grandfather and/or the Paternal Aunt, Ms C.
7.The Mother shall remain in the City B region during the time that the children spend with the Father pursuant to paragraphs 4(b)(i) to (iii) and paragraph 4(b)(v)(A) of these Orders.
AND THE COURT ORDERS BY CONSENT THAT:
8.The children communicate with the Father via telephone/video telephone /Skype /Facetime/Social Media/Gaming platform as follows:
(a)Between 5:00pm and 6:00pm each Tuesday and Thursday with the Father to make the calls and the Mother to facilitate the calls;
(b)On the children’s and the Father’s birthdays via telephone from 5:00pm to 6:00pm, with the Father to make the telephone call and the Mother to facilitate the telephone call, if the children are not otherwise spending time with the Father.
(c)At all reasonable times as requested by the children, or either of them, with the Mother to make the calls and the Father to receive the calls.
AND THE COURT ORDERS THAT:
9.Changeover for the Father’s time pursuant to paragraph 4(a) hereof occur at the D Contact Centre in City B.
10.The specific times for changeover pursuant to the visits in paragraph 4(b) take place as agreed between the parties on the condition that the Mother exchange the children’s flight itinerary with the Father within 14 days prior to the commencement of each visit, and in default of agreement as determined by the Mother taking into account available flight times and the burden of travel.
11.For the purposes of changeover for interstate travel, unless agreed otherwise in text message, email or on the App:
(a)The Mother shall be responsible for the cost of the Mother’s and children’s flights to and from Victoria for the first term and third term school holidays in each year;
(b)The Father shall be responsible for the cost of the Mother’s and children’s flights to and from Victoria for the second term school holidays and the Christmas holidays;
(c)Prior to Z reaching five years of age:
(i)The Mother shall accompany the children travelling to and from Victoria for the purposes of the Father’s time with the children and the Mother shall book her flights for the first term and third term holiday travel and the Father book such necessary flights for the Mother (when applicable) and the children for the second term and Christmas holiday travel;
(ii)Each parent promptly inform the other of the travel and flight bookings and such flights be booked and paid for, and the other parent be informed, no less than 14 days prior to all school holidays; and
(iii)changeover shall occur at the D Contact Centre in City B or, in the event that the D Contact Centre cannot facilitate same, at the City B Police Station.
(d)Upon Z reaching five years of age:
(i)The flights booked shall occur, where possible, between 9:00am and 7:00pm on the relevant day with the same payments provisions as prior to Z reaching five years of age;
(ii)The children travel by air, as unaccompanied minors;
(iii)The Father or his nominee known to the children collect and deliver the children from Tullamarine airport in Melbourne;
(iv)The Mother or her nominee known to the children collect and deliver the children from the Brisbane Airport or the City E Airport (subject to flight bookings) in Queensland.
12.The Mother and Father do all acts and things necessary to cause and ensure they are able to communicate via the Talking Parents App (‘the App’), but strictly regarding parenting issues relating to the children in a short, courteous and without whingeing manner.
AND THE COURT ORDERS BY CONSENT THAT:
13.The Father, his servants and agents be and are hereby restrained by injunction from:
(a)Abusing, insulting, belittling, rebuking or otherwise denigrating the Mother or any member of her household in the presence or hearing of the children or any of them or from permitting any other person so to do;
(b)Telephoning the Mother save for an emergency concerning the children, or any of them; or
(c)Using physical discipline on the children or any of them.
14.For 24 hours immediately prior to the children spending time with the Father and during all such time, the Father be restrained by injunction from ingesting, consuming or using, or otherwise being under the influence of, or exposing the children to any person under the influence of, any legal or illegal drug or substance, save and except for:
(a)Any legal medication prescribed by a registered medical practitioner and taken or used by the Father or his agents strictly in accordance with such prescription; and,
(b)Any over the counter legal mediation or pharmaceutical substance ordinarily sold in major supermarkets or taken by the Father or his agents strictly in accordance with the directions appearing on such medication or pharmaceutical substance; and
(c)The Father not consume alcohol at all during the time the children are with him.
15.The Mother and Father shall:
(a)Keep the other advised, at all times, of their respective email addresses and mobile phone numbers;
(b)Advise the other immediately in the event that the children, or either of them, suffer any serious illness or injury;
(c)Authorise any medical practitioner and/or allied health professional treating the children, or one or more of them, including counsellors or mental health professionals, to communicate with the other in respect of their medical condition/s and/or health requirements;
(d)Authorise all schools/kindergartens at which the children may attend, from time to time to:
(i)Provide to the other parent, at the other parent’s expense, copies of all school reports, school notices and school photographs in relation to the children;
(ii)Allow the school/kindergarten staff to communicate with the other parent, either by telephone, in writing or by personal attendance, in respect to the children’s progress and wellbeing at school/ kindergarten; and,
(iii)Permit the other to attend all school functions and events which parents normally invited to attend save that the Father shall provide the Mother with at least two (2) days prior written notice by email, text message or the App if he intends to attend any such function or event;
subject to any school policy in relation thereto.
16.The Mother, the Father and Independent Children’s Lawyer shall be at liberty to provide a copy of these Orders to any one or more of the following:
(a)The Principal or delegate of the Principal of the school attended from time to time by the children or any of them; and
(b)Any Medical Practitioner and/or allied health professional attending upon any one or more of the children, the Mother or the Father.
17.Within seven (7) days of the date of these Orders, the Mother shall arrange an appointment for the child X with the Independent Children’s Lawyer for the Independent Children’s Lawyer to explain these Orders and their effect to him.
18.That the order of the Court appointing the Independent Children’s Lawyer be discharged upon paragraph 17 being completed.
19.Pursuant to Rule 12.28 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, it is certified that it was reasonable for the parties to engage a lawyer as Counsel.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym O’Hara & Fadley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR RES TEMPORE JUDGMENT
Judge O’Shannessy
These are the settled reasons of a judgment delivered res tempore on 19 December 2022.
Introduction
These reasons were delivered orally. They have been corrected from the transcript. Legislation and authorities referred to orally have been recited in these reasons. Lists of material relied upon and headings have been inserted and the order of paragraphs revised. Grammatical and repetition errors have been corrected, citations added and an attempt has been made to clarify my reasons and to make the orally delivered reasons easier to read but the substance is unchanged.
The question I have to determine is whether I will accept the children’s father’s (‘the Father’) application. The consequence of which will be that the children remain living nearby to, but not immediately in, the City B area, or whether I will accept the children’s mother’s (‘the Mother’)’s application, for the children to live with her in Queensland and travel to Victoria to visit during school holidays.
The parents have three children, born in 2010 (‘Child X), 2015 (‘Child Y’) and 2019 (‘Child Z’). The Independent Children’s Lawyer (‘the ICL’) is a party to the proceedings.
Background
The Mother is 31 years old and currently employed full-time caring for three children of the relationship, but not otherwise employed outside the household. The Mother has lived most of her life in the City B area. Her parents moved to Queensland in 2007 when the Mother was 16 years old, and at that time, she commenced cohabitation with the Father, who was significantly older, and about 23 years. The Mother had, at that time, been provided with an option, or at least the ability to follow her own strong wish to live with the Father, rather than move to Queensland with her family. The Father is 40 years of age, has not been employed since August of 2019, and he identifies as Aboriginal or part of the F nation. The parents lived together from 2007 until 2020.
In December of 2020, the Mother flew to Queensland with the children for a holiday. The Mother and the Father had a significant dispute about how the Mother would travel to Queensland for the usual annual holiday that the Mother took in Queensland. The parents had separated under the one roof in the month prior, in November 2020. In January of 2021, the Mother told the Father and the Father’s mother, that she would not be returning. The generosity of the Father’s parents to the Father and the Mother should be noted. At the time of separation, the parents and the three children were living in a home purchased by the Father’s parents, with borrowings secured upon their own matrimonial home.
The Mother had travelled to Queensland with the children each year more or less since her mother and step-father had left City B to move to Queensland. The Mother wished to take the family motor car to Queensland at the time of her interstate holiday for convenience. The Father wished to retain the car in his possession. The Father insisted that the Mother fly, and was prepared to pay for such expense.
The Father won the argument, and the Mother was forced to fly to Queensland, but was then without the car. The Mother had proposed and intended to return to the area where she had been living, spend a few months in what was the former matrimonial home owned by the Father’s parents, and then find alternate accommodation. Once the Mother was in Queensland and it is not clear whether it was a couple of weeks or three, she decided that she would no longer return to Victoria to live nearby to where the Father was living. In the meantime, the Father’s parents had told the Father that the home was available for the Mother and the children to live in, not for him.
Partly as a result of the heat and grief and stress of the recent separation and the absence of the children, and a degree of miscommunication, the Mother told the Father some things and a version of that went to his parents. The Mother spoke directly to the Father’s mother as well, and the end result of it was that from the Mother’s perception, the home that was previously available for her to live in, at least temporarily, or even in the medium-term, was no longer to be available. From the point of view of the Father’s mother, the Mother no longer wished to reside in that home, and hence there was no point in keeping it, and arrangements were soon made for the property to be sold. That is the background to this dispute.
The Final Hearing
The Final Hearing originally said to take three days took place over six days as follows: on 6, 7 & 8 September 2022, 8, 14 & 15 December 2022.
Shortly prior to the matter returning on 8 December 2022 (having adjourned part heard on 8 September 2022), the Mother filed a further affidavit which went to communication in the meantime. The matter then proceeded over 8 December 2022, whereby the Mother was cross-examined, and on 14 December 2022, the Family Report Writer was cross-examined.
Shortly prior to 14 December 2022, the Mother’s solicitors provided an affidavit from the Mother’s mother who had hitherto not been a witness. Over objection by the Father’s counsel, I accepted into evidence those parts of that affidavit that related to the issue of whether the maternal grandmother would or had contemplated herself relocating to the City B area.
The matter did not end in either an additional day or an additional two days, and on Thursday, 15 December 2022 the parties undertook final addresses and completed those at a little after 4 o’clock. Hence, these reasons came to be delivered res tempore on Monday, 19 December 2022- that is, orally, shortly after the conclusion of the case rather than immediately after as ex tempore reasons, but they are not the settled reasons of a reserved judgment.
Material relied upon
The Father relied upon the following documents:
·Family Report prepared by Ms G dated 7 July 2022;
·Amended Application for Final Orders filed 15 August 2022;
·Affidavit of Mr O’Hara filed 31 August 2022;
·Affidavit of Ms H filed 2 September 2022;
·Outline of Case Document (Final Hearing) filed 4 September 2022;
The Mother relied upon the following documents:
·Family Report prepared by Ms G dated 7 July 2022;
·Amended Response to Final Orders filed 24 August 2022;
·Affidavit of Ms Fadley filed 24 August 2022;
·Outline of Case Document (Final Hearing) filed 5 September 2022;
·Affidavit of Ms Fadley filed 6 December 2022;
·Affidavit of Ms J filed 9 December 2022.
The Independent Children’s Lawyer relied upon the following documents:
·Family Report prepared by Ms G dated 7 July 2022;
·Outline of Case Document (Final Hearing) filed 4 September 2022.
The following exhibits were tendered into evidence:
Date Name Description Tendered by 07/09/22 F1 7 January 2021 text message thread, pages 13-34 of the tender bundle Mother 07/09/22 F2 2022/2023 child support assessment, pages 35-36 of the tender bundle Mother 07/09/22 F3 Text message screenshots, tender bundle pages 1, 2, 4, 5, 6, 11, 12 Mother 07/09/22 F4.1 Text messages from 10 January 2021, page 3 of the tender bundle Mother 08/09/22 F4.2 Photo of Mother’s phone showing dates/times of messages in F4.1 as being 10 January 2021 Mother 08/09/22 M1 Text messages between paternal grandmother and the Mother, pages 2-9 of the paternal grandmother’s tender bundle Mother 08/09/22 M2 Text messages between paternal grandmother and the Mother regarding the former matrimonial home dated 6 January 2021 Mother 08/12/22 F5 Father’s Supporting Parents After Separation Program Certificate of completion dated 17 November 2021 Father 08/12/22 F6 Father’s ‘Our Kids’ Certificate of completion dated 25 October 2022 – 25 November 2022 Father 08/12/22 M3 Mother’s payslips at Employer K Mother 14/09/22 M4 Minute of orders sought by the Mother Mother 14/12/22 ICL1 Minute of Orders sought by the ICL ICL 14/12/22 F7 Minute of Orders sought by the Father Father 14/12/22 M5 L School letter Mother 14/12/22 ICL2 Post-Family Report writer cross-examination minute sought by ICL ICL 15/12/22 F8 Father’s orders sought at final address Father 15/12/22 ICL3 ICL’s Order sought at close of evidence (18 orders) ICL 15/12/22 M6 Mother’s Orders sought at close of evidence (14 orders) Mother 15/12/22 ICL4 10:17am consolidated minute agreed to by Mother and ICL, and Father’s orders sought in blue ICL 15/12/22 C1 Bundle of documents featuring screenshots of flight prices between Melbourne and Queensland Court
Chronology of events
The Father issued these proceedings on 19 March 2021 in the Magistrates Court of Victoria, seeking an order that the Mother return with the children to the City B area. The matter was transferred to this Court on 22 April 2021.
By way of a short history, as mentioned the Mother’s family left Victoria for Queensland, and in 2007, the Mother and the Father commenced to live together, although they did not marry. In 2010, their oldest child, ‘X’, was born. In 2014, the parents separated, X going to live with the Mother. At this time, the Mother took out an intervention order, and it is undisputed that the Father contravened that order and was charged with contravention, and was sentenced to a month’s imprisonment, wholly suspended.
Notwithstanding those events, the parties resumed cohabitation in 2015, and I infer, shortly before [Y]’s birth. The Mother says in her Affidavit in Chief filed 24 August 2022:
25.I suffered severe complications during [Y]'s birth and was very unwell. I was required to stay at the [M Hospital] for a period of two months. [Y] required [surgery] and stayed in hospital for approximately five months.
26.While I was in hospital, [X] remained in [the Father]'s care. [The Paternal Grandmother] told me that during the time that I was in hospital, she and her husband … ·were responsible for taking [X] to kindergarten and looked after him overnight each week. [The Father] attended Melbourne with [X] on a few occasions to spend time with me.
…
28.When I was discharged, I stayed at the [N House] in Melbourne while [Y] was receiving treatment. [The Father] travelled to Melbourne with [X] and dropped him off to me. This occurred approximately four times. My mother … and my sister also attended the hospital to assist me with the care of [X].
29.When I returned home from hospital, I quickly resumed my role as primary carer for [X]. [The Father] was employed as a [factory worker] three nights per week … and usually slept during the day. [The Father] also slept on his days off. He left the parenting of the children to me.
…
Those events are common ground. ‘Z’ was born in 2019. Prior to Z’s birth, the Father’s parents had purchased the home for the family of the Mother and the Father and the children. Save for short periods of ill health or when the children were little, the Mother always made efforts to obtain employment when she could. The Father, by and large, worked throughout the relationship, until August 2019. The Father had been employed on nightshift on at least three nights per week. The impact of nightshift on the family and the Father’s interaction with the children was significant. From the Father’s perspective, he had interaction with the children on a daily basis, but from the Mother’s perspective, the burden of the day-to-day running of the household and care for the children was left with her.
The Mother characterises the relationship as one whereby she was subjected to what she regards as abuse, foul language and being exposed to the Father venting his anger on her. The Father regarded those matters as arguments back and forth. Ultimately, I find that the Father did not appreciate the impact that his own behaviour, and his language “in those arguments” had on the Mother and on the children.
The Father was made redundant in about August 2019. To this day, he has still not obtained employment. The Father being full‑time in the home, whilst it had the benefit to him of more time with the children was, I find, a significant contributor to the deterioration in the relationship of the parents.
Inevitably, the Mother’s approach to her relationship with the Father changed significantly as she matured. As the Father put it in evidence, they were both children when their relationship commenced. Notwithstanding the Mother’s growing maturity and changing view about what was acceptable behaviour and the type of relationship that she wanted with a life partner, and the Father recognising, to a limited extent, his need to change, the parties continued to grow apart. The parties then separated and appeared to have agreed to have separated at some point in November of 2020 but both remained in the home with the children.
The relationship between the Mother and the Father continued to deteriorate. There were text messages exchanged between them on 7 December, 17 December and 19 December 2021, and parts of those text messages from the exhibits that are in evidence and include the following:
7 December 2020
Mother:Im not working tomorrow so I can take [Y] to hid orientation . Im working Wednesday and Thursday. Your mum is happy to spend the day with him on Wednesday.
Father:I don’t want to see my fuckn mum i told you that!!
Mother:??
Well ill tell her to drop him off and he can just run in..?
Father:No fuck you
Mother: Well you sort it out then.
Father: No im not
Mother: Ok well ill just tell her to drop him off to you
Father: I have enough pressure on my life because of you I don’t need more
I’m not doing this
Mother:How is it pressure? I arranged for your mum to have [Y] so you don’t have to . . You can’t even let her drop him off to you?
The only pressure you have is on yourself..
Father: I don’t want to fuckn see her you selfish fuck
Mother:I’ll tell her just to let him jump out and run in so you don’t have to talk to her .
Father: You better puts bins out
For tomorrow
I know I shouldn’t of said that to you it was to far im struggling atm I shouldn’t take shit out on you I apologise
Mother:Its NOT OK! I don’t feel safe around you. I don’t feel secure with working out the kids with you.. I am not going to continue feeling panicked or worried about what you are going to do or say next or if you are or aren’t going to pick up the kids. When you say things like I want to suck the oxygen from you skull how am I ment to even live under the same roof and sleep peacefully with that kind of negative thoughts going on within your mind.
Its seriously come to the point where you go or I go.
Father:I need to be respected for the kids and Christmas you are right i took it to far it’s not what I want and I don’t want you to feel unsafe I need to be positive for the kids.
Mother:I already feel unsafe. Your chaotic unpredictability is not ok! You keep saying you’ll be civil ans the kids and Christmas is all that matters then this!!. Same cycle over and over.
You can’t unsay anything to make me feel safe after what you said. .
Father:If you want to be enemies fine or I can keep trying to correct my mistakes.
I didn’t want any of this Im struggling to except
…
17 December 2021
Mother: I need the car.
Im going to take [X] he wants to come see [Y] graduate. Its only 2 people from each family and he wants to see.
We will film him.
Father:You don’t want to respect me and be fair im not going to respect you if we can’t come to an agreement then its not going to happen
Fly my kids safely and I will feel comfortable and will be ready to talk
19 December 2021
Mother:I am fed up with the way you speak to me and physically intimidate me, I feel so sad when you say those things and make me feel fear in my body when your around. It hurts me so badly that we have been supports to each other for so many years and now I have decided to leave, you have nothing but hate, rage and anger towards me. … It scares me when you treat me like this, it reminds me of the fear I felt underneath most of our relationship, too scared to say exactly what I want to or whats really truly deep in my heart because I knew you were capable of causing me to feel this fear. I am sorry my feelings have changed and I understand that it is really hard for you … I hope that you can try to see things from a place of understanding as to why going to Queensland to be with my family is so important for me right now. I need to feel safe and loved and to have support from them. I appreciate you because you are paying for the flights. I just wish I could drive … as I do want to take the car to be able to take the kids around while im up there in a safe and reliable secure car. …
Shortly prior to Christmas Day 2020, as I have described, the Mother flew to Queensland for what was to her, an annual holiday with her family who remained in Queensland. I refer to Exhibit F4 being the text messages of the Father to the Mother on Christmas Day (that is soon after the text messages recited earlier):
25 December 2020 14:52
Father: What’s kids doin
I hate your guts your a low horrible selfish dog hope it’s worth it your happiness at everyone else’s expense carma c… you wait brazen low life dog
I’ll never forgive you
25 December 2020 17:33
Father: I miss my children
25 December 2020 20:54
Father: Are the kids ok????
Mother: Yes they have been showered and ready for bed
26 December 2020 13:03
Father:Well at least we know now wy you dumped me so you can get other men” instead of all the lies and bullshit … here we go again you will learn the hard way I have access to your Instagram idiot I see everything
Enjoy yourself now you have the rest of our life to deal with me I hate you so much now and I will never surrender f… you for eternity you peace of shit
These text messages speak for themselves and do not need description.
Unfortunately, though the Mother and the Father’s mother had once been close and had a mutually supportive relationship, that relationship deteriorated over the time of the separation and the Mother’s travel for a holiday to Queensland. I refer to the text messages from the Father’s mother at page 21 to 25 of 42 of the Mother’s Affidavit filed 11 May 2021 and referred to in part as Exhibit M1:
13 January 2021
Mother:I do not deserve to be abused, stalked, threatened and harassed by him. I will do what I believe is right to keep myself and the children safe, secure and supported and his behaviour does not allow me to feel any of that being this far away from him let alone in the same town. I understand he isnt even aware how not ok his behaviour is… But I will not be returning to live there.
Paternal Grandmother:
As I saidI understand and I dont expect u to put up with him but Im shore thre are reason’s on both sides you have faults as well but Im not careing about that you can always get protection
But I dontthink you need that he just wants his kids in his lives he doesn’t want them to.grow up with out a dad…
Mother:I do know what it feels like to grow up without my dad in the same house hold and at times it was sad. But I believe that it was and is the healthier option for the children for us to be apart then to have two parents that are not happy being together. They do not deserve to witness the constant arguing and having to tiptoe around their dad all the time…
Paternal Grandmother:
You speaking lke you no it all .you saying his not a good dad … you was only ment to go on holiday and it’s came to this its just cruel women stop father seeing thre kids every day ..that’s why half of them don’t make it.
…
Paternal Grandmother:
Omg you making out [the Father] a monster you’re safe from him tha kids love him every 1 yell and screams he gave you everything you wanted you were happy or was that all.lies all Im saying kids need thre dad he needs them just live closer bring ya mother with you ..
Mother:Im only telling the truth. … Materially we had everything that does not make the screaming and emotional blow ups and name calling ok. That is not ok. The kids need a healthy dad . I hope [the Father] can chose to be that one day.
Those messages demonstrate the extent to which those once close and supportive relationships had, by that time early after separation, deteriorated.
It must be noted that December 2020 was the last time the Father saw the children until October of 2021, which I will come to. On 14 January 2021, the Mother obtained an interim family violence order against the Father in reliance, among other things, on the nature of the text messages sent to her.
Notwithstanding that deterioration in the relationship on the day following that intervention order, on 15 January 2021, the Mother communicated to the Father’s parents to the effect that they were welcome to communicate with the children:
Mother: … No you guys are welcome to talk to them.
On 8 April 2021, the Mother sought mediation, and the Father refused to participate, which enabled the Mother to obtain a section 60I certificate. However, this had been overtaken by the proceedings that the Father had issued. On or about 22 April 2021, the Father sought a recovery order to compel the Mother to return the children to Victoria.
First orders for Mother’s return: 11 May 2021
The Mother filed a response on 11 May 2021, and the first return of the matter in this Court was on 19 May 2021. On that day, orders were made for the Mother to return with the children to Victoria within a distance of 75 kilometres of City B within 30 days. On 21 June 2021, the Mother filed to review the decision of the Senior Judicial Registrar who had made the 19 May 2021 orders, and the 19 May 2021 orders will be referred to as the “first orders for the Mother’s return.”
Second orders for Mother’s return: 6 July 2021
The Mother did not return within the 30 days, as ordered by the Senior Judicial Registrar, and on 21 June 2021, filed an application for a review. The matter was reviewed by a Judge of this Court on 6 July 2021, and the orders for the Mother to return to Victoria were confirmed, and those orders will be referred to as the “second orders for the Mothers return”. Significantly on that day, orders were made for the Father to have time with the children and to undergo certain courses. I refer to the following Orders of the second orders for the Mothers return:
9.Until further order, the children communicate with the Father via visual electronic platform each Tuesday, Thursday and Sunday between 5.00pm and 6.00pm, and this is to be initiated by the Mother.
10.Until further order, the Mother is permitted to suspend time for up to half of any school holiday period in order to travel to Queensland with the children to visit the maternal grandmother, or for the maternal grandmother to travel to Victoria to see the children.
11.Pursuant to Section 13C of the Family Law Act 1975, the parties are to attend a post separation parenting course as soon as is reasonably practicable and upon completion of same provide a certificate of completion to the solicitors for the other party and the Independent Children’s Lawyer.
12.Pursuant to Section 13C of the Family Law Act 1975, the Father is to attend a Men’s Behavioural Change Program as soon as practicable and provide proof of completion to the solicitors for the other party and the Independent Children’s Lawyer.
(emphasis added)
It is important to note that Order 11 required the parties to attend a post-separation parenting course. The Mother did so, but the Father did not do so until November of 2022. The orders also provided, as recited above, for the Father to attend a Men’s Behavioural Change program as soon as practicable, and provide proof of completion. To this day, the Father has not done so.
The second orders for the Mothers return also extended the time for the Mother’s return to Victoria to 19 July 2021. 19 July came and went, and the children were not returned to Victoria. On 27 July 2021, the Father filed an application in a case, seeking that the children live with him in the circumstances where they had not been returned. As ordered, the parties attended what is known as a section 11F report for the purpose of ascertaining the welfare of the children in the immediate crisis situation that they were in.
Third orders for Mother’s return: 16 August 2021
The matter returned to Court on 16 August 2021, when the third orders for the Mother to return to Victoria were made. On 16 September 2021, the Mother returned to the City B area. She obtained cabin accommodation in a not-too-distant nearby regional city, and the D facility changeover occurred for the first time on 16 October 2021. The previous orders had provided that changeovers be at the D changeover facility in City B to ensure the children were not exposed to violence or allegations or violence;.
The Mother and children return
In November 2021, the Mother obtained her current accommodation in a country town roughly 45 minutes from where she had previously lived in the city of City B.
Further orders: 28 February 2022
The Father completed his parenting course on 17 November 2021, and from then, the orders as made on 6 July 2021, continued. On 28 February 2022, the matter returned to Court, and further interim orders were made. Those orders were made by consent, and they provided as follows:
2.That the Father spend time with the children … each Saturday from 10:15am to 4:45pm and such time to be supervised by the paternal grandmother, paternal grandfather or paternal aunt …
3.That the Father do all acts and things to complete the Parenting Orders Program through [O Centre] Victoria.
4.That upon the Father providing evidence of completion of the Parenting Orders Program referred to in paragraph 3 herein, the Father spend unsupervised time with the children as follows:
(a)Each alternate weekend on Saturday from 10:15am to 4:45pm and on Sunday from 10:15am to 4:45pm.
5.That unless agreed in writing, changeover occur at [D] Children’s Contact Centre.
(emphasis added)
It is significant that those orders by consent provided that the Father was to do a further course, described as a Parenting Orders program, and in addition, the Men’s Behavioural Change program previously ordered was still to be undertaken by the Father.
The Father expressed some confusion as to just which course he was meant to be doing. Nonetheless, the Father was at all material times represented, and I do not accept that the Father was not aware of his requirement to undertake the Men’s Behavioural Change program. It is also significant that the February 2022 orders meant that the Father’s time, until he completed the parenting orders program, was supervised. The burden that supervision placed upon his mother, his father and his aunt, given the length of time that those orders came to remain in place, was significant. When the Father completed the Parenting Orders Program, his time was to become unsupervised. However production of the evidence showing he completed the program was not produced until the fourth day of Trial in December 2022. I infer that it was contemplated by all parties that the Father would undertake that Parenting Orders Program pretty soon after those orders were made. That did not come to pass.
The previous orders had ordered a Family Report to be undertaken, and the Family Report was undertaken by interviews over Teams on 9 May 2022 and also face-to-face observations by the report writer in City B on 20 May 2022. On 7 July 2022, the Family Report was prepared, and I infer released to the parties soon thereafter. It is significant that the Family Report also recommended the completion of a Men’s Behavioural Change program.
Further communication
Whilst the matter was part-heard, there was further communication between the Father and the Mother, but now via the parenting app utilised by them. I set out part of the communication of 22 October, 24 October and 27 October that was attached to the Mother’s further affidavit of 6 December 2022 for the purpose of showing the disparaging and venting tone of the communication:
[The Father] on 10/22/2022 at 10:07:16 PM said:
I thought you would of let the kids call since I didn't get to see them again for the second weekend in a row now I miss them so much and haven't seen them in 2 weeks a simple phone call would of been nice I don't understand wy do you constantly keep them withheld from me no pictures no updates on school reports no information on there progress at school you won't even keep me informed on there health or on the current flood conditions or anything? Wy?? I generally care about my children just as much as you do probably even more soo … can you please find it in your heart to share some of the little things the important things about our children with me it would be much appreciated a small act of kindness would have a greater positive outcome for everyone.
[The Father] on 10/24/2022 at 6:07:31 PM said:
Im tired of your non response and with you not complying with the courts orders in relation to the children and my rights as a father your are Alienating them from me by not letting them call me or see me Im aware of the floods but there is other alternatives … you have to understand and except that I'am there father and I will be apart of the children's life wether you like it or not Im here to stay I've done nothing but tried my best to be nice and polite and positive towards you but you still decide to remain difficult and bitter the children missing out on valuable time with there father … So stop with the immature bitterness be kind or at least follow the courts orders for starters and can you just simply be a nice decent person you’ll find it will be better for everyone involved including yourself and much easier and stress free and we all can smile and be happy and try to be friends and let [the children] benefit from us being positive and set an example for them showing kindness and happiness
[The Father] on 10/27/2022 at 5:53:24 PM said:
I waited all day for my phone call with my children and for you to hang up the phone because I asked what's going on with seeing them this weekend because you wont communicate or tell me anything your aware that I have to update my supervisors because I have to have supervision while on my visit your deliberately withholding information from me to make it difficult for everyone involved You are deliberately Alienating the children from me spitefully this will be documented and forwarded on this is unacceptable and I will be taking further action I've had enough of you failing to comply to Co Parent your emotionally abusing the children they tell you they want to see me … You have failed to comply with everything Alienating the children its a form of Child abuse and is taken very seriously I should know ive completed several parenting and Dad programs And its not ok to pressure the children what not to say to me they get overwhelmed … I'am now very concerned and in fear for my children's safety and well-being and exposure to your mental Child abuse whilst in your care I generally feel and believe they are now unsafe with you.
The nature and timing of that communication demonstrates the difficulty of the parents’ co-parenting and the Father’s continued emotional distress.
The relevant law
Standard of proof
Any findings are made on the balance of probability. I apply section 140 of the Evidence Act 1995 (Cth) (‘the Evidence Act’) which states as follows:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
The competing applications and the subject matter relate to the welfare of young children. Allegations of family violence are matters of the utmost gravity, and I take those matters into account in considering what findings can and should be made on the evidence.
Reliability & credibility
In Fox v Percy (2003) 214 CLR 118, a High Court case concerning the skid marks of a Kombi van on the correct side of the road, at [31], when discussing the drawing of conclusions about truthfulness and reliability solely or mainly from the appearance of the witnesses, the plurality observed:
[31]…in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events…
(citations omitted)
I have endeavoured to follow that guidance.
I also note in Adamson & Adamson (2014) 51 Fam LR 626 (‘Adamson’), the Full Court approved some significant observations about the utility of credit findings in parenting cases. In this case, I think it is important to note and apply the advice of Adamson as to the extent of credit findings and factual findings in a case of parenting. Further, it is not necessary that I make findings as between the Mother’s version and the Father’s version of all past events. To this end, I recite the following paragraphs of Adamson which guide me:
[87]First, we question the nature of the credit findings and, more importantly, the need for many, if not all, of them to have been made in the first place.
…
[89]In Carlson & Fluvium [2012] FamCA 32 (“Carlson”) at [165] to [169] Kent J made the following observations concerning the making of adverse credit findings against a parent in a parenting case:
165.As a general proposition, civil courts usually refrain from specific adverse credit findings against litigants if the disposition of the case can legitimately be achieved otherwise. There are good reasons for that approach. For example, a specific finding that a litigant has misled the court might be tantamount to a finding of perjury. Further, it can be accepted as a given that human beings have the capacity to reconstruct or rationalise or even misconstrue past events or conduct, or to engage in self-justification, particularly in recounting events in highly emotive settings or in respect of highly emotive issues. This may make the distinction between an honest, although wrong, account on the one hand, and a deliberate and calculated obfuscation on the other, difficult to draw.
166.To deny significant limitations in the capacity to use assessment of the demeanour of a witness as an entirely reliable guide to his or her truthfulness would be to deny the existence of plausible liars; or those who may be timid, uncertain or unconvincing, but nevertheless truthful, in relating events.
167.Moderation in this respect is also called for when it is recognised that adverse credit findings in arriving at a decision at first instance may present a significant hurdle to legitimate rights of review of that decision on appeal.
168.These observations apply with at least equal, if not greater, force in parenting proceedings such as these in this Court where the decision does not bring an end to the litigants’ relationship. These parties are, and will remain, the parents of D and K and adverse credit findings in this decision carry the inherent risk that, rather than bringing an end to long-standing conflictual issues, they may be embraced as vindication for the pursuit of further conflict in the future.
169.Moreover, the resolution of parenting proceedings in this Court usually requires consideration of not only the credibility of the parties as witnesses or litigants but appreciation of the characters and personalities of them as people whose future relationship, or the context of that relationship with their child, the Court has the responsibility to decide.
[90]We agree with those observations. It follows from them that in parenting proceedings an adverse credit finding against a parent should not only be necessary to determine the real issues joined between the parties but should be soundly based, with due allowance for the limitations referred to.
I take into account and apply Part VII of the Family Law Act 1975 (Cth) (‘the Act’), and otherwise refer to the following sections of the Act (omitting notes):
Section 4 Interpretation
"major long-term issues" , in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child's education (both current and future); and
(b) the child's religious and cultural upbringing; and
(c) the child's health; and
(d) the child's name; and
(e)changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
Section 4AB Definition of family violence etc.
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b)seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c)comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d)cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
…
Section 60B Object of Part and principles underlying it
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii) to develop a positive appreciation of that culture.
(4)An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
…
Section 60CA Children’s best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
…
Section 60CC How a court determines what is in a child’s best interests
Determining a child’s best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
…
Section 61DA Presumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
…
Substantial and significant time
(2) Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
…
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b)the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
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Section 65DAC Effect of parenting order that provides for shared parental responsibility
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b)the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
…
(3) The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b)to make a genuine effort to come to a joint decision about that issue.
(4)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
…
Section 61FApplication to Aboriginal or Torres Strait Islander children
In:
(a)applying this Part to the circumstances of an Aboriginal or Torres Strait Islander child; or
(b)identifying a person or persons who have exercised, or who may exercise, parental responsibility for such a child;
the court must have regard to any kinship obligations, and child-rearing practices, of the child’s Aboriginal or Torres Strait Islander culture.
The Full Court has set out guidance as to the application of that legislation. The parties and indeed the Family Report Writer have addressed the Court in terms of whether the Mother should be permitted to move or not. When counsel did so, I understood this to be mere shorthand for describing the case as it was experienced by the parents, but that counsel was addressing, in substance, the respective cases and proposals of the parties.
The High Court’s observations in AMS v AIF (1999) 199 CLR 160 (‘AMS v AIF’) discussed later, were in 1999, and in U & U [2002] HCA 36 discussed later, were in 2002, and those observations were under a different legislative setting – that is, as the Act was prior to the 2006 amendments brought in by Act 46 of 2006. Act 46 of 2006 significantly amended Part VII of the Act, and it is unnecessary to recite all of those amendments, but they are effectively recited earlier in these reasons. Those amendments included that section 68F was replaced by what is now the wider section 60CC. The objects and underlying principles of Part VII of the Act are now different to what they were in 1999 or 2002. Notwithstanding that difference of legislation, the authorities of the Full Court and the High Court from that earlier regime continue to be approved and applied by the Full Court. See, for example, Asher & Wilkinson [2020] FamCAFC 44 (‘Asher & Wilkinson’) at paragraph 57, approving D & SV [2003] FamCA 280; (2003) FLC 93-137, a 2003 case, and AMS & AIF, the High Court 1999 case. I am bound by and apply the law as set out in the legislation and as described in guideline cases by the Full Court.
Prior to Act 46 of 2006, section 60B provided as follows:
60B Object of Part and principles underlying it
(1)The object of this Part is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that, except when it is or would be contrary to a child’s best interests:
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
(c)parents share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children.
Section 60B(4) was inserted in the Act by 2011. That referred to the Convention on the Rights of the Child, and I recite Article 9:
1.States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.
2.In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.
3.States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.
4.Where such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of the information would be detrimental to the well-being of the child. States Parties shall further ensure that the submission of such a request shall of itself entail no adverse consequences for the person(s) concerned.
(Emphasis added)
Hence, the Convention, as incorporated into the objects by section 60B(4), contemplates separation from a parent, where necessary, when determining a child’s place of residence.
In Blaze v Grady (2015) 54 Fam LR 172; [2015] FamCA 1064 (‘Blaze’), Kent J observed:
[105]Section 60B of the Act was first introduced by the 1995 amendments to Part VII and the 2006 amendments included some amendments to that section.
[106]The role and significance of s 60B was recently considered and discussed by the Full Court of this Court in Maldera v Orbel. Whilst the Full Court discussed the applicable principles of statutory interpretation of a section as an “objects” clause and the effect of that, nothing in the conclusions expressed by the Full Court would appear to be at odds with observing that the expression of the principles in subsection (2) of s 60B constitutes an expression of a child’s or children’s rights in parenting proceedings. Section 60B(1) makes it plain that those presumptions give way if the contrary be shown in a child’s best interests.
…
[109]The objects expressed in s 60B(1)(a) and (b) each find obvious reflection in the two “primary considerations” expressed in s 60CC(2) as follows:
(as set out earlier in these reasons)
…
[110] Section 15AA of the Acts Interpretation Act 1901 (Cth) provides:
15AA Interpretation best achieving Act’s purpose or object
In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.
[111]In Mills v Meeking Dawson J in the High Court provided the following explanation of the effect of the equivalent Victorian provision as follows:
...the literal rule of construction, whatever the qualifications with which it is expressed, must give way to a statutory injunction to prefer a construction which would promote the purpose of an Act to one which would not, especially where that purpose is set out in the Act. … The requirement that a court look to the purpose or object of the Act is thus more than an instruction to adopt the traditional mischief or purpose rule in preference to the literal rule of construction. The mischief or purpose rule required an ambiguity or inconsistency before a court could have regard to purpose … The approach required by s 35 needs no ambiguity or inconsistency; it allows a court to consider the purposes of an Act in determining whether there is more than one possible construction. … Section 35 requires a court to construe an Act, not to rewrite it, in the light of its purposes.
(footnotes omitted)
[112]It follows that s 15AA (and equivalent provisions in State legislation) do not permit a Court to ignore the actual words of a statute and a court is bound to give effect to clear language in a statute even if in the Court’s opinion the result might be anomalous or unfair.
[113]In this context there is ample authority for the general principle that courts are not at liberty to consider any word or sentence in legislation as superfluous or insignificant. Prima facie, all words in a statute must be given some meaning and effect.
[114]That principle has been held to be more compelling if the words or phrases used in the legislation have been added by amendment …
[115]Subject to the overarching and paramount best interests consideration in s 60CA of the Act, a number of presumptions would seem to follow from the terms of s 60B. For example, the presumption that children’s best interests are met by each of the objects expressed in s 60B(1). The presumption or starting point that children benefit from both of their parents having a meaningful involvement in their lives is unsurprising …
…
A key part of the Father’s case is that on the Mother’s proposal, the children and he will enjoy a relationship of much less quality than if the Mother lived nearby. On the Father’s case, this is a determining factor.
The Mother’s case is that the twice-weekly electronic time that she proposes, plus the school holiday block time that she proposes, will support the Father’s relationship, and that she will herself support that relationship and ensure that it endures. She says that the matters of electronic time twice-weekly and school holiday block time will ensure a meaningful relationship between the Father and the children. Further, she submits that it is not the purpose of the Act to compel a meaningful relationship, only that it be considered. Those matters lead to a consideration of the authorities dealing with that concept. I refer to the following passages of McCall & Clarke [2009] FamCFC 92 (‘McCall & Clarke’):
[54]Also as discussed in Goode, the amending Act introduced changes to the objects provision (s 60B(1) and the principles underpinning the objects (s 60B(2)). The objects and principles in s 60B “provide the context in which the factors in s 60CC are to be examined, weighed and applied in the individual case” (see Goode at paragraph 10). Section 60B(1)(a) is in the following terms:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; ... [our emphasis]
…
Section 60CC(2)
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; ... [our emphasis]
...
[109]The Act does not contain a definition of “meaningful”, nor does it provide any specific criteria to assess how parents either have, or should have, a “meaningful involvement” in a child’s life. It does not give guidance to the interpretation of the phrase “meaningful relationship”.
[110]It is necessary we construe the language of the statute to determine whether the import of the legislation is clear without reference to extrinsic material.
[111]The Macquarie Dictionary defines the adjective “meaningful” as “full of meaning, significant. Significant is defined as “important; of consequence”.
…
[114]Section 15AA of the Acts Interpretation Act 1901 (Cth) provides for a purposive construction of a statute.
[115]The phrase “meaningful relationship” in the context of s 60CC(3)(a) has, not surprisingly, been considered in a number of decisions since the introduction of the amending Act. In Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518 Brown J, after setting out the definition of “meaningful” and “meaning”, said at paragraph 26:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one …
[116]Kay J sitting in the appellate jurisdiction of the Court as a single judge in Godfrey & Sanders (2007) FamCA 102 (an appeal involving an application by a mother to relocate) (observed)agreed with Dessau J’s exposition in M & S (formerly E) [2006] FamCA 1408; (2007) FLC 93-313 of the effect of the amending Act … and later at paragraph 36 said:
… Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
[117]Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child.
…
[121]In coming to our conclusions we accept as appropriate the interpretation of “meaningful relationship” set out by Brown J in Mazsorski. Consistently with our conclusions we also agree with the reasoning of Bennett J in G & C.
…
As can be observed, the Full Court in McCall & Clarke twice emphasised that part of section 60B referring to “meaningful involvement”, but did not emphasise or discuss (other than reciting the provisions) the phrase:
…to the maximum extent, consistent with the best interests of the child.
As explained by the authorities relied upon by Kent J, those words must also be taken into account, but they do not govern section 60CC. I refer to the following paragraphs of Wagstaff & Wagstaff [2022] FedCFamC1A 119:
[19]As another example, the principle of legality “requires that statutes be construed, where constructional choices are open, to avoid or minimise their encroachment upon rights and freedoms at common law” (Momcilovic v The Queen (2011) 245 CLR 1 per French CJ at [43]).
[20] The law is not limited to the express words of the statute.
[21] In relation to the present issue Kirby J explained it in AMS v AIF:
193.Secondly, it is important to remember that in Australia, whilst the welfare (or best interests) of the child are, by statute, the “paramount” consideration in the exercise of jurisdiction such as was invoked here, they are not the sole consideration. … Whilst the legislation considered in this case, and later statutory reforms, give the highest priority to the child’s welfare and best interests, that consideration does not expel every other relevant interest from receiving its due weight. In part, this is because (as the English courts recognised long ago) the enjoyment by parents of their freedoms necessarily impinges on the happiness of the child. But, in part, it is also because legislation such as FLA 1975 and FCA 1975 is enacted to take effect within a society of a particular character whose members enjoy a high measure of personal freedom, diminished only to the extent that the law obliges.
(Footnotes omitted)
…
Neither counsel or I have been able to identify any authority where the extent to which the general principles recited in the pre-2006 High Court authorities of a parent’s freedom of movement are impacted, if at all, by the 2006 objects of the Act where the phrase:
…to the maximum extent, consistent with the best interests of the child
is used. I do not disregard this aspect of the objects of Part VII of the Act, but I am guided by the many observations of the Full Court which bind me.
In this case, neither party suggests the Mother would for a moment contemplate living other than where the children live, and as their primary caregiver. Hence, the nature of the relationship between the Mother and the children means that she can and will only live where the children are living. The effect of that circumstance to her is of the same effect as if it were a mandatory injunction that is sought. That is, she will live where the Court determines the children live. Hence, the authorities of the Court dealing with practicality and the circumstances where a parent is compelled to live somewhere, in my view, must be considered.
I set out the passages in the decision of Franklyn & Franklyn [2019] FamCAFC 256 (‘Franklyn’) that assists me:
[27]There is an inherent tension between, on the one hand, separated parents being able to establish new homes wherever they like and, on the other, their restraint by injunction from living too far apart to avoid any impingement of their children’s ability to retain meaningful relationships with both parents. The conflict is between the best interests of the children to know and have regular personal contact with each parent and the interests of the parents to enjoy a high measure of freedom of movement which is not lost by reason only of their parental responsibility for the children (see MS v AIF (1999) 199 CLR 160 … at 196, 206, 207-208, 210). The tension at the intersection of those conflicting interests is even greater when an order is sought, not just to restrain one parent’s move further away, but to compel the parent who has already moved away to return and establish a new residence closer to the other parent.
[28]While the children’s interests are paramount, their interests are not the sole determinant of parenting orders under Part VII of the Act (AMS v AIF at 207, 225, 230; U v U [2002] HCA 36; (2002) 211 CLR 238 … at 282). Parents enjoy as much freedom to live where they please as is compatible with their obligations pertaining to the children (see AMS v AIF at 223-224, 231-232; Sampson and Hartnett (No.10) [2007] FamCA 1365; (2007) FLC 93-350; Zanda & Zanda [2014] FamCAFC 173; (2014) FLC 93-607 at [132] - [136]). Only when the children’s welfare would be adversely affected must a parent’s right to freedom of mobility defer to the paramount consideration of the children’s best interests (see U v U at 262).
…
As counsel for the Mother submitted, in Jurchenko & Foster [2014] FamCAFC 127 (‘Jurchenko’), the Full Court made the following observations:
[25]It must be remembered that the Family Law Act 1975 (Cth), (“the Act”) does not obligate a court to ensure a child maintains a meaningful relationship with both parents: Mulvaney & Lane [2009] FamCAFC 76; (2009) FLC 93-404 at [89]. Rather, the court must consider the benefit to a child of having such relationships. …
…
[100]Although we recognise Kirby J was in the minority in the outcome in U v U, we nevertheless would adopt the following passage from his reasons:
144.... Treating the wife's refusal to abandon her child and her expression of willingness (if necessary) to stay with the child in Australia as an ‘alternative proposal’ requires, in effect, that parent to show ‘good’ or ‘compelling’ reasons to relocate, given that doing so will always make it more difficult (and in some cases virtually impossible) for physical contact between the other parent and the child to be maintained. Such an approach stacks the cards unfairly against the custodial/residence parent …
…
…
[104]The only proper finding on the evidence here was that the mother did not “contemplate” living in Perth any more than the father “contemplated” living in [Town D]. It was therefore impermissible for the Acting Magistrate to proceed on the basis that the mother was “prepared” to continue living in Perth. …
[105]We accept, as was said by Gummow and Callinan JJ in U v U at [80] and [72] that “the Court is not, on any view, bound by the proposals of the parties” and that “the parties in cases concerning the welfare of children do not define the issues”. However, as Hayne J said in the same case (with the concurrence of Gleeson CJ and McHugh J):
172.That is not to say that the Family Court is to embark upon some roving inquiry about the matter, unfettered by any regard for the evidence led and the matters which the parties seek to contest. Due account must be taken of the fact that proceedings in the Family Court are conducted in a framework of adversarial procedure familiar to the common law. (I do not stay to consider how or to what extent that adversarial model has been modified by the Act or rules of court made under it.)
[106]Having quoted this passage from U v U, the Full Court in D and SV [2003] FamCA 280; (2003) FLC 93-137 said:
Even allowing for the caveat in the last sentence cited from Hayne J, the Court cannot manufacture an alternative proposal with respect to residence when one does not exist.
…
Issues in the case include the extent to which the Father has taken opportunities to utilise the electronic communication with the children, his consumption of alcohol, and the extent of his insight. I refer to the following evidence where the Father was cross-examined, including about his participation in the Court-ordered courses:
MR CARNE:Now, you also say that, the kids should spend some time with you via video or telephone each Tuesday and Thursday between 5 and 6?
FATHER: Yes. As we have been.
MR CARNE:Yes. How much video time have the children been doing with you?
FATHER: We don’t do videos. We just do talk-
MR CARNE: You just do talk. Yes?
FATHER: - as well.
MR CARNE:It would be fair that [the Mother] deposes in her affidavit to offering to give you video time with the kids?
FATHER:Yes. I seen that. We tried it once but we couldn’t get our devices to connect. So we never .....
…
MR CARNE:And, if the – if the children are allowed to move with [the Mother] to Queensland, are you going to look into finding a way that you can do some video conferencing with the children?
FATHER: I guess I will have to.
…
MR CARNE:Okay. Would you want – I presume your position would be at least some time during the school holidays?
FATHER: Yes.
MR CARNE:And, what – what assistance would you give to make that work?
FATHER: I would have to – to maybe fly up there myself.
MR CARNE: Yes?
FATHER: I would struggle.
MR CARNE:You would have the contribution towards the flights for the children?
FATHER: Yes.
…
MR CARNE:Right. So you’re not – you haven’t been working, doing any casual work in recent times?
FATHER:After that … stretch I just ..... whole relationship ended and all this happened with my children and all that so that’s all I’ve been focused on.
…
MR CARNE:When do you think you might end up getting some full-time work?
FATHER:When I figure out what’s going on with my kids. I would like to be, like, you know, get a rough idea of where I’m at and what’s going on with my life so I can focus on .....
…
FATHER:…[X] is a good little boy. Like, we raised him together and – and he is actually going to be a gentleman.
…
MR CARNE:So all of these things that you were describing about the children, what credit do you give [the Mother] for that?
FATHER:I adored their mother for having my kids. I loved her to pieces for that. I’m lucky I was so blessed ..... grateful.
…
MR CARNE:Now, how would you describe the level of communication between you and [the Mother] at the moment?
FATHER: Zero to nothing.
…
MR CARNE:… So you say that you never called her those types of things?
FATHER: No, not then. No.
MR CARNE: Have you called her those types of names since?
FATHER: In the – in the near future, I did, yes. In the past.
MR CARNE:So which of those words would you – which of those labels would you have called her since?
FATHER:.... me again, which ones? There was moll and slut, and what was the other one?
MR CARNE:Yes. She says – the words that she uses in her affidavit, that you’ve referred to her as a slut, a cunt, a dirty moll, a low-life dog, a maggot and a rat?
FATHER:I – I called her a dirty moll. I did. And a rat. But she cheated on me. That’s why I said it.
MR CARNE: I see?
FATHER: That’s the truth.
MR CARNE:And you say that was an appropriate response to her cheating on you?
FATHER:No, it wasn’t. If I could go back, no. As I said, it was many years ago.
…
FATHER:If I could go back, yes, I wouldn’t have said it, because I’m – I’m more older and mature, you know. Like, that was a long time ago. We were together nearly 16 years.
…
MR CARNE:So let’s talk about that for a moment. You were ordered, in February of this year, to go and do a parenting orders course; that’s right?
FATHER: Yes.
MR CARNE: And you haven’t done that, have you?
FATHER:No. Me and – me and [the Mother] had to do – what – what course was that? We both ..... certificate. And then she wanted – now I have to do an extended version of it.
MR CARNE: Yes. Were you ordered to do that in early this year?
FATHER: Yes. I’m booked in right now, and paid.
MR CARNE: And how come you hadn’t booked that sooner?
FATHER:I did. I did the intake and all, everything. This guy with an accent, he’s ringing me. Then I couldn’t get a hold of him back. And – and I missed it. It overlapped. And I had to wait to next season – session. But I’m in there. I got – I got straight in there and I said make sure, and I got a new – a new worker. Her name is [Ms P].
MR CARNE:Well, you’ve annexed to your affidavit a document that says that you applied to do this course on 3 August of this year?
FATHER:That’s what I did.
MR CARNE:It’s not going to start until October?
FATHER:I know. But the first one was done straightaway, the intake. But then, like, I said, what’s going on with it? You know, they – they had that communication. I would call and call and call, and he called back, and I, like, just kept getting an answering machine, and I got no answer. Couldn’t get through.
…
MR CARNE:Because what I’m going to put to you, sir, is there has been an order in place for you for the last 14 months to do that men’s behavioural change course.
…
MR CARNE:Right. And are you telling his Honour that you don’t remember that order?
FATHER:No, not right now. I don’t remember that being part of the order, because, like I said, it got disputed by [the Mother]. We had to come back and get a different judge.
MR CARNE:I’m going to suggest to you, sir, that it would have been raised with you at the time, and you haven’t done one, have you?
FATHER:No, I haven’t done one, I don’t think. I will double-check.
MR CARNE:Do you feel like you ought to do one?
…
FATHER:I don’t feel like I need to, but I would do it.
Section 60CC
Primary considerations
Turning now to section 60CC considerations. Headings merely paraphrase the relevant sections but the whole of the section is referred to.
It is common ground that the children will benefit from having a meaningful relationship with both parents. The issue in the case is what constitutes a sufficiently meaningful relationship in the best interests of the children.
The Father’s personality is a strong one. I find that his personality has a charm and a power and a confidence that will be to the advantage of the children as they grow older. The Mother has a very caring personality, and a very different personality to the Father. The Father does have some insight into the effect of his behaviour. I need to consider the need to protect the children from physical or psychological harm. The issue in this case is the risk to the children of psychological harm from exposure to the Father’s anger and his opinion of the Mother when angry when the children are in his care, or in other words, whether the Father denigrates the Mother to the children when they are in his care. In the circumstances where the parties have placed great weight since July 2021 on the Father completing a Men’s Behavioural Change Program, I accept that there is some degree of risk of the Mother being denigrated to the children. However, I accept, as the parties have maintained since the middle of 2021, that upon the Father completing that course, that risk is significantly minimised.
I do not accept that the Father has chosen or made a choice not to work and not to do the Men’s Behavioural Change program. The Father has not and does not understand the impact of his anger and violence in language on the Mother and the children. The Father is not without insight into his behaviour and personality. In his own words, he wants to do better and be better, but his grief at the end of the relationship and his limited time with the children has limited his ability to think calmly before speaking or texting. These orders that I will make accept that the Father will do the Men’s Behavioural Change program course, and I find that the parents were correct in finding firstly, that the Father needed to do it, and secondly, that he would benefit from the program. It is obvious and common ground that a 20-week program will not be finished by the Father at the earliest before the middle of next year.
Any views expressed by the children
I need to consider the views expressed by the children. In this case, I refer to and repeat X’s views, as reported to the report writer. X does not want to live in Queensland. X wants to live where he can see both his parents. X understands that it is out of the question for his Father to consider moving to Queensland. His Father is rooted in F country. X is also concerned at the impact upon his Mother of living an unhappy life if not living in Queensland. X should not have the responsibility of making everyone happy, but he does.
The nature of relationships
I must consider the nature of the relationship with each of the child’s parents and persons, and I refer to and repeat the observations that the report writer made of the interaction between the children. It is common ground that X, in particular, but also Y, are very close to the Father, and indeed, the Mother regards the children as adoring their father. The children have a very close and nurturing relationship with their Mother. The children are close to the Father’s parents.
Extent failed to take opportunity
I must take into account the extent to which each parent has taken, or failed to take the opportunity to participate in decisions or spend time with the child. In this case, the Father did not have the opportunity to participate in the decision about what Queensland school the children were going to be enrolled in. The Father has taken every opportunity he can to spend time with the children, subject to one particular difficulty. The Father’s slowness in completing the necessary course (that meant that his time would be unsupervised), is a significant matter. However, I find that this relates to the Father’s almost emotional paralysis from the grief of the loss of his relationship and the loss of his time on a daily basis with the children. Nonetheless, the Father took a long time to complete that course, to enable time to move to an unsupervised time.
Extent fulfilled obligations
I must consider the extent to which each of the child’s parents have fulfilled, or failed to fulfil the parent’s obligations to maintain the children. The Father has not been in employment since August 2019. His child support has been the statutory minimum from social security – that is, very, very little. The Mother has had the sole burden of the financial support of these three children since separation, although I do note that when ordered to do so, the Father did provide the rent and bond to assist the court ordered move back to Victoria.
Likely effect of changes
The likely effect of any changes in the children’s circumstances and the practical difficulty and expense of the children spending time and communicating with their parents is at the heart of this case. On the Mother’s proposal, she will be living in Queensland. The Father does not propose to relocate himself. The Father will be in Victoria and the children will be in Queensland. At the moment, the Father has limited emotional and organisational resources to obtain and keep employment and to organise travel to Queensland.
Practical difficulty of regular time
There is a real practical difficulty to regular and frequent time. There is the circumstance that since the order was made for electronic communication, the Father has only ever sought to utilise that by telephone and not by videolink or face-to-face time. The practical difficulty and expense of maintaining a relationship between the children and the Father, when it is common ground that it is to their benefit to have a meaningful relationship, is at the heart of this case. The practicality, difficulty and expense of time on the Mother’s case goes beyond merely the airfares. Given the children’s age and the minimal time he has spent with the children since they have returned to Victoria, it means that for block time, the Mother will need to be nearby for the purpose of ensuring Y and Z – and Z, in particular, settling with the Father and being available in the event that he does not settle. It is also significant that the Mother is prepared, until [Z] is five, to travel to Victoria on each occasion, and stay here, to ensure that that time works smoothly. But the Father lives some distance from the airport, and by the time you allow for the flight and collecting luggage, etcetera, of an hour at either end, it is roughly the flight, plus an hour each end, plus another three hours, or thereabouts, from the airport to the changeover centre in the vicinity where the Father lives. There is practical difficulty and expense in the Mother’s proposal.
Capacity of the parents
I must consider the capacity of each of the child’s parents to provide for the needs, including their emotional and intellectual needs. There is no question about the Mother’s capacity to care for the children, including their emotional and intellectual needs. A question mark has hung over the Father because of his failure to complete the Court-ordered courses in a timely manner. Nonetheless, I find that the Father’s devotion and love of the children will, with the assistance of his family, mean that on periods that he spends time with the children, he will have the capacity to attend to their emotional and intellectual needs. I do not accept the argument pressed by the Independent Children’s Lawyer, that the Father has no insight whatsoever into the children’s needs or to the dynamics of the relationship between himself and the Mother. He needs greater insight, and he needs a greater understanding of the impact of his behaviour, but he does have some considerable insight and sensitivity.
Children’s maturity and background
I must consider the maturity, lifestyle and background of the children, including culture and traditions. The Father is an indigenous man. The Mother has recently assisted the Father’s mother in tracing and connecting, or attempt to connect with her family of origin. The Father’s father has a more difficult course in tracking and connecting with his family of origin, such is the impact of colonialisation over many generations upon this family. I referred the parties during the hearing to the significant impact of that reconnection with country and culture, and referred the parties to the Sally Morgan book, ‘My Place’.
Aboriginal culture
The Father and his family’s intention to continue to discover their connections and to promote the connections of himself and hence the children, to the land where they live is powerfully motivated. It is significant though that the Mother entirely supports that identification and connection. I do not accept that it is necessary for that connection to be promoted and maintained, for the children to actually live day-to-day all their lives on F country. Their Father’s desire for that connection, and the support of his parents, as well as the support of the Mother, will promote that connection. I do not mean, and nothing in these reasons should be taken as meaning, that the Mother’s highly motivated and well intentioned activities to promote the children’s identification as Aboriginal that she has undertaken in Queensland, that there is only one Aboriginal culture throughout the whole of Australia. It is the particular culture of the Father and his parents and the place/s they belong to that is important. The children’s connection to F land will likely be stronger or more easily maintained if they live in the City B area. However, I am convinced that the Mother’s professed motivation about maintaining that culture and connection is genuine.
Family violence
I must take into account any family violence and any family violence orders. In this case, there were family violence orders made in 2014, and the Father was dealt with for breaches of those, and received a severe and heavy penalty, albeit the imprisonment was suspended. I also find from the Father’s demeanour when cross‑examined that the process of that breach and the proceedings and the sentence had a salutary effect upon him. The Mother’s position is that she experiences and fears a repeat of the behaviour of the Father in 2014 that necessitated the family violence order and the breach proceedings.
I find that the Father’s behaviour has been such that the Mother genuinely fears for her wellbeing and safety, were she to be living nearby to the Father. It is unnecessary that I make findings as to the extent of family violence and the occasions of it. Family violence has occurred by abuse and derogatory terms, and the children have been exposed to this. Both parents recognise that children should not be exposed to verbal family violence. The Mother’s recognition of this is significantly greater than the Father’s. The Father’s journey of understanding the significance of that upon his children continues.
However, I do not find that the Father’s capacity to denigrate the Mother, or to abuse her, is such that at this time, it places the children at risk when they are in his care. That will be particularly so when he completes the long-awaited Men’s Behavioural Change program. I am aware of and do accept that there is research that indicates that mere participation in a Men’s Behavioural Change program does not of itself mean that a partner has gained insight or changed their behaviour. In this case, I stress that I found the Father to have insight into his own behaviour. Not enough, but that is a journey that he is on.
Interim or final orders
Both parties seek that I make final orders.
The conclusions that I make are these. The Mother is a very capable person, both as a mother and as an income earner. For example, when in Queensland, she was able to relatively quickly organise to obtain employment. She has skills in a number of areas. She said, and I accept, that save for periods of confinement with child birth and ill health, she has always worked. I find that the Mother genuinely fears living nearby the Father, and genuinely fears that she will not be able to get on with her own life, were she to be living nearby. I do not find that the Mother is at actual risk of harm from the Father, but her fear of interference in her life is significant and genuine and not unreasonable.
Attitude to the responsibility of parenting
I accept that the Mother is highly motivated to do whatever it takes to make the Father’s relationship with the children work, provided she sees it is safe for herself and the children to do so.
Family support and need for personal happiness
I find that the Father deeply loves and is devoted to the children. The loss of his relationship with the Mother and the period of not seeing the children at all from December 2020 until October of 2021, and the limited time he has been able to spend with the children by Court order since, has had a profound effect upon the Father. This was evident in his demeanour and answers in cross-examination. There is no doubt the time that the Father has spent with the children has been limited and significantly less than what it was before the Mother moved to Queensland.
I find that the Mother has significant family support in Queensland, particularly from her mother, but also her sister. The Mother with three children to care for, and the need to work to support herself, needs family support. She does not have that support where she is living at the moment, and I find it is unlikely that she will get the support she needs. The Mother has no family support in the City B area, but she does have family support where she wishes to live. I also find from the Mother’s evidence, and her demeanour when giving evidence, that she will be profoundly unhappy if compelled, for the sake of the children, to live in the area where she now lives.
I find that the Mother’s profound unhappiness of being compelled to live where she does not want to live, without family support, will have a profound impact on her parenting of the children. I accept the Mother’s position that being compelled to live where she does not want to live will mean that she is unable to be the parent that she could be and wishes to be.
Section 61DA and 61F
I must consider the presumption. The section 61DA presumption does not apply here because there is evidence such as would rebut the presumption. I must consider section 61F. As discussed with the Father’s counsel, in this case, I do not have evidence of kinship obligations and child-rearing practices of the children’s Aboriginal culture, but I do have evidence of the importance to the Father and his family, and indeed to the Mother, of the fact that the children are Aboriginal, and of the importance of reconnecting and maintaining a connection with the land.
Parental responsibility: sole or joint?
I must turn, in any event, notwithstanding that presumption does not apply, to whether parental responsibility for major long term decisions should be sole responsibility as sought by the Mother, or joint as sought by the Father. In this case, if the Mother is living in Queensland, it is likely that she will have the burden and responsibility of making the long-term issues and decision in the first instance. The only one that is likely to arise is the children’s education and possibly aspects relating to Y’s or Z’s health. The parents have demonstrated, without attributing blame, that in regard to education and health, collectively they do not have the capacity to confer about those matters and reach an agreement, as directed and contemplated by section 65DAC.
However, in this case, I do not accept that it is in the children’s interests that the Mother have sole parental responsibility for all aspects of their upbringing, or sole responsibility for all major long-term issues. It will be to the children’s benefit in the long run that the Father and the children know that he also has parental responsibility for these children. However in this case, I have determined that the Mother should have sole parental responsibility for education and health, and that otherwise, in regard to religious and cultural upbringing and the children’s name and changes to the children’s living arrangements, subject to these orders, the parents should have equal shared parental responsibility.
However, the Mother having sole parental responsibility for education and health will be subject to conditions of having to inform the Father beforehand, and provided he responds in a timely and courteous and non-whinging manner, then she should consider his proposal and make whatever decision needs to be made, and inform him of that. Effectively, the Mother will have the final word in the event of there being any dispute. In any event, I find that it is unlikely that there will be any dispute about the children’s education or religious and cultural upbringing if the Mother is living in Queensland. If the Mother is to be living where she is now or nearby, there is a potential dispute between the parents as to, in particular, X’s secondary education – that is, which secondary school he should attend.
Equal time?
Given that there is to be some degree of equal shared parental responsibility, I have to consider equal time. In this case, neither party proposes it at this time, although the Father’s preference would be that in the long run, his time with the children expand to eventually end up with equal time. In this case, the parental relationship is such that equal time for these children is not viable or practical, even if the Mother were to be living nearby to the Father.
Substantial and significant time?
I must consider substantial and significant time. The distance between where the parents now live mean that substantial and significant time, as defined by the Act, and indeed equal time, as defined by the Act, is simply not practical.
Conclusion
In all those circumstances the nuts and bolts of the orders that I consider will be in the children’s best interests are largely those according to the joint minute of the Independent Children’s Lawyer and the Mother – that is, permitting the Mother and the children to live in Queensland, save that there will be the changes, as I have contemplated and discussed with counsel during the hearing. Comparing all the advantages and disadvantages of each parents proposal through the prism of Part VII of the Act, and notwithstanding the substantial disadvantage of the reduction in the frequency of the Father’s time the proposal entails, I find that the Mother’s proposal will better advance the best interests of the children.
The changes to the joint orders proposed are that the Mother will pay for the first and third trips up and back, or flights up and back from Queensland to Melbourne, and the Father will pay for the second term or middle term and Christmas trips. That is, each parent will pay the whole of two trips per annum rather than paying half of four trips per annum. That is partly for the reasons expressed by the Father’s counsel, of there being different prices on the “up” and the “down” or the “to” and “from” Queensland. In any event, I am comfortably satisfied that the Mother will do what is necessary, to ensure that the children travel, notwithstanding the personal expense to her. In the long run, I am confident that the Father will also be able to pull his weight and contribute to that expense. I am concerned, in the short run, whether the Father will be able to maintain that situation. I am concerned at the additional stress and potential for conflict that each parent paying half will cause as between the parents, and the uncertainty of whether the children will come down at all or be able to return.
These orders will go out in draft now. I will make them as final orders tomorrow morning, and the purpose is to enable the parties to look carefully at the detail of the orders, to check whether I have inadvertently, in the preparation of these orders this morning, put the children in two places at the one time, or there is some significant lacunae in the orders. I will give the parties the opportunity to firstly confer, and secondly, point out to me via email any glitch or lacunae. Those emails will be made as exhibits. So I would ask the parents’ lawyers and the Independent Children’s Lawyer to point out by 11.30am tomorrow any lacunae or glitch in the orders and if none I will make those orders.
Order number 4(a)(i) provides during school term while the Mother remains in City B. Effectively, the Father’s next time will be on 21 December until 22 December, which is after school has finished. The only reason that the draft 4(a)(i) is in there is that in the event something goes wrong with the Mother’s plans and she is unable to move to Queensland promptly, as she proposes, in the second half of the school holidays. I have also inserted the date that the Mother is at liberty to move on or after 16 January 2023, and by these orders, the last time the Father has with the children before the Mother’s move is on 14 January 2023. I have determined that until further down the track when the Father will have completed the Men’s Behavioural Change program, the most time that he will have will be for this coming school holidays, a build-up from over two days, one night on two occasions, and then over three days and two nights on three occasions, until the children are likely to move with the Mother to Queensland. I have otherwise accepted the submissions of the Independent Children’s Lawyer as to the block periods of the children’s time.
I just want to add one further matter. I have some confidence that the Father’s love and devotion to the children, when he is able to have recovered more sufficiently from his emotional upset of separation from the children, that he will be able to obtain employment, and that he will be able to fund his part of the school holidays travel, and that he is likely to be able to travel to Queensland on occasions to visit the children.
These are my reasons.
I certify that the preceding one hundred and eleven (111) numbered paragraphs are a true copy of the res tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 19 January 2022
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