Rennie and Arnott

FEDERAL CIRCUIT COURT OF AUSTRALIA

RENNIE & ARNOTT

[2017] FCCA 853

Catchwords:
FAMILY LAW – Parenting dispute – where mother initially took decision to move to Queensland from Victoria – father seeking order that mother return – whether child’s best interests met by remaining in Queensland – father’s relationship with child still good despite relocation – orders made as sought by mother and Independent Children’s Lawyer.

Legislation:

Family Law Act 1975, ss.60CC(2), 60CC(3)

Goode & Goode [2006] FamCA 1346

Applicant:

MR RENNIE

Respondent:

MS ARNOTT

File Number:

MLC 509 of 2014

Judgment of:

Judge Burchardt

Hearing dates:

11 and 12 April 2017

Date of Last Submission:

18 April 2017

Delivered at:

Dandenong

Delivered on:

18 April 2017

REPRESENTATION

Counsel for the Applicant:

Mr Rennie, in person

Counsel for the Respondent:

Ms Arnott, in person

Counsel for the Independent Children’s Lawyer:

Mr Brewer

Solicitors for the Independent Children’s Lawyer:

Robert Halliday & Associates

ORDERS

All previous parenting orders with respect to the child X born (omitted) 2011 be and are hereby discharged.
The said child live with the mother and the mother be granted leave to live with the child in Queensland.
(a)The question of parental responsibility be apportioned as follows:
(i)The mother have sole parental responsibility for all questions relating to the education of the child including but not limited to the school to which the child might attend from time to time and extra-curricular activities.
(ii)The mother have sole parental responsibility for the selection of a medical practitioner in Queensland for all non-emergency medical care for the child AND that she, as soon as practicable advise the father of the identity of the said medical practice and authorise the Proper Officer of the said medical practice to communicate directly with the father on all questions relating to the child’s health and welfare.
(iii)The father have sole parental responsibility for the selection of a medical practice in Victoria for non-emergency medical care for the child AND that he, as soon as practicable advise the mother of the identity of the said medical practice and authorise the Proper Officer of the said medical practice to communicate directly with the mother on all questions relating to the child’s health and welfare.
(b)Other than the questions referred to in paragraphs 2(a)(i), (ii) and (iii) hereof, the Parties share equally the parental responsibility for the said child.
The child spend ‘time with’ and communicate with the father as follows:-
(a)For one half of each of the three mid-year school holidays as agreed and in default of agreement commencing with June/July 2017 the first half of such holiday period which will be deemed to commence at 12.00 pm on the first Saturday of such holiday period and upon the child arriving at the boarding/departure lounge of Melbourne Air Terminal AND shall conclude at 12.00 pm on the Saturday representing the middle Saturday of the relevant Queensland school term upon the child arriving at the boarding/departure lounge of the Queensland/Brisbane Air Terminal and each year thereafter.
(b)For half of the Christmas/Long Summer Holidays in each year commencing in 2017/2018 as agreed and in default of agreement such ‘time with’ shall commence at 12.00 pm on the first Saturday of the holidays and upon the child arriving at the boarding/departure lounge of the Melbourne Air Terminal AND shall conclude at 12.00 pm on the Saturday representing as close as practicable to the middle Saturday of such holiday period upon the child arriving at the boarding/departure lounge of the Queensland/Brisbane Air Terminal and each alternate year thereafter – AND – in the Year 2018/2019 as agreed and in default of agreement such ‘time with’ shall commence at 12.00pm on the Saturday representing as close as practicable to the middle of such holiday period and upon the child arriving at the boarding/departure lounge of the Melbourne Airport Terminal AND shall conclude at 12.00 pm on the last Saturday prior to the commencement of the Queensland school year and upon the child arriving at the boarding/departure lounge of the Queensland/Brisbane Air Terminal and each alternate year thereafter.
(c)For the purposes of the child’s travel between Brisbane and Melbourne, he is to be accompanied by the mother or her nominee on the travel from Brisbane to Melbourne and by the father or his nominee on the travel from Melbourne to Brisbane.
(d)In the event that the father visits Brisbane during school, term and upon providing the mother with 21 days advice of such visit, from 12.00 pm of the relevant Saturday until 5.00 pm on the Sunday with changeover to occur at the boarding/departure lounge of the Brisbane Air Terminal.
(e)At other times as might be agreed between the Parties.
(f)By telephone or other electronic means by agreement and in default of agreement on Monday and Friday of each week between the hours of 6.00 pm and 7.00 pm.
(g)The mother be responsible for the cost of travel of the child and adult from Brisbane to Melbourne AND the father be responsible for the cost of the travel of the child and adult from Melbourne to Brisbane, this provision shall remain in full force and effect until such time as the relevant airline no longer requires an adult to accompany a child passenger.
Each party must keep the other advised at all times of their current residential address, telephone particulars and other electronic identification particulars (email and the like) and advise the other of any change thereto as soon as practicable.
Each parent shall as soon as practicable advise the other of any significant injury, illness or accident as suffered by the child whilst in their respective care, identify the treating Health Professionals or institution and where necessary authorise the treating Health Professionals or institution to confer directly with the other parent on all questions relating to the health and welfare of the child.
The mother forthwith authorise the Proper Officer of any and all schools to which the child might attend from time to time to:
(a)Provide to the father, at the expense of the father if any, copies of all school Reports, Notices, Newsletters and any other publications ordinarily provided to parents.
(b)Facilitate communication between the father and the relevant member or members of school staff either by telephone, in writing or by personal attendance in respect of the child’s welfare and progress at the said school and strictly in accordance with the Protocols established by the school.
(c)To permit the father’s attendance at any School event including but not limited to Parent Teacher interviews, school dramatic, musical, cultural, artistic events, working bees and sporting events and all other school events ordinarily open to parents but strictly in accordance with the school protocols.
The mother and father be restrained by injunction from:
(a)Denigrating the other party or any member of their family to or in the presence or hearing of the child or permitting any other person to do so;
(b)Discussing these proceedings to or in the presence or hearing of the child or permitting any other person to do so.
The Parties as soon as practicable attend and complete an appropriate Post Separation Parenting Program and provide written evidence of enrolment documents and Certificate of Completion to the other party.
The mother undertake counselling as nominated by the Independent Children’s Lawyer:
Without admitting the necessity thereof, both Parties are restrained from consuming alcohol to excess whilst caring for the child, or 24 hours prior to his coming into their care.
The order appointing the Independent Children’s Lawyer be discharged.

THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Rennie & Arnott is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

MLC 509 of 2014

MR RENNIE

Applicant

And

MS ARNOTT

Respondent

REASONS FOR JUDGMENT

These reasons for judgment which are, to all effects and purposes, an ex tempore judgment, given that I adjourned last Friday and prepared the judgment over the weekend, will be typed up from transcript and corrected within the limited degrees that obtain where a decision is given in these circumstances. This is a parenting dispute about a young boy, X, born on (omitted) 2011. He will therefore be six on (omitted) 2017. The substantive issue in the proceeding can be expressed shortly.
The father wants the mother to return with X from Queensland to Melbourne. She has been living in Queensland since November 2015. The mother wants to stay in Queensland. There are other subsidiary issues but the question of which state X lives in is the main one between the parties. It should be noted that the Independent Children’s Lawyer supports the mother’s position. Despite the various disputes between them, there are a number of agreed or uncontroversial matters. The father was born on (omitted) 1975. He has full time employment and effectively all of his family live in Victoria.
The mother was born on (omitted) 1979 and is also in full time employment. All her family and her very best friend live in Queensland. The parties met and commenced cohabitation in 2008 in Melbourne, where the mother had been living for some time. The relationship was described by both parties as “tumultuous” to the family report writer. There were problems with alcohol and drugs. X was born, as I have said, on (omitted) 2011 and separation took place in January 2012.
There has been significant animosity between the parents thereafter. Both have surreptitiously recorded conversations. There are florid, mutual accusations and extremely coarse insults have clearly been regrettably common. The mother relocated to Queensland in November 2015 without the father’s permission and being well aware that he would oppose it. The father applied to court for a location order and parenting orders on 14 July 2016. Unfortunately, it has taken some time to come to final trial.
I turn to deal very briefly with the parties’ affidavits. Both parties have filed extensive affidavit material. I have, of course, read all of it and have regard to it. However, I do not propose to paraphrase the affidavits. They are a mass of accusation, counter-accusation and self-exculpation.
As I said, I do not propose to paraphrase the affidavits, which are a mass of accusation, counter-accusation and self-exculpation. As both parties are and have at all times been self-represented, their affidavits are not well-structured and hard to follow and contain material which is repetitive and/or of marginal relevance. The less said about these affidavits, the better. Perhaps the two points I should take from this mass of slightly dispiriting material are, first, the father met Ms K in (omitted) 2013 and they married in (omitted) 2014. Despite a brief period of separation, they are still together.
Ms K has two children of her own. A who is 12 and B who is 18.
Second, the mother has satisfactory employment and accommodation in Queensland and family members within easy reach who offer actual, as opposed to hypothetical, assistance.
This brings me to the family report of Ms E. Ms E noted the details of the relationship which both parties described as tumultuous. She noted the time spent by X with the father after separation.
It should be noted that there was dispute as to how much time was actually spent, whether the father was reliable and whether the mother was obstructive. The report noted the tension and animosity between the parents post-separation. I will read paragraphs 10 and 11 on page 7 of 41:
The mother relocated with X to Brisbane, Queensland, in November 2015 without seeking consent from the father. She reported being aware that she needed the father’s permission for X to move interstate. However, she believed that he had deliberately drawn out their financial dispute to spite her so she was concerned he would do the same in the event that she sought the Court’s assistance to relocate. She believed that if a decision on her relocation had not been made prior to X commencing school, that she would not have been able to move. So she proceeded without the father’s consent, knowing that she may be ordered to return if he sought an application through the Court. At the time, she claimed that felt she had no choice, given she believed she needed the support of her family.
In contrast, the father reported encountering the same challenges as the mother post-separation in relation to negotiating parenting agreements, albeit contrary to the mother’s claims. He reported the mother to have been deliberately difficult and claimed that she has impeded his capacity to be involved in all aspects of X’s development, including decision making. For example; he alleged that she refused to tell him where X attended child-care and was not allowed to collect X directly from child-care. He also maintained that he’s still unsure what age X commenced child-care. The father claimed that there was little communication between the parents post-separation other than during changeover, with this being highly conflictual, with both parents apportioning blame towards the other for such circumstances.
Ms E recorded the parties’ proposals. The father wants an equal time regime spent in Victoria and the mother wants to live in Queensland with the father having half holidays and some extra time in school terms. I note that Ms E found that even arranging the interviews for the report was, as she put it, “fraught with difficulty.” The interview with the father showed he was very accusatory of the mother and his views are set out at paragraphs 31 to 32 of page 16 of 41, which I will now read out.
Reflecting on their relationship, the father believed that X missed him considerably and has begun to request his father visit him in Queensland, or that he is able to spend more frequent time with his father in Melbourne. Consequently, Mr Rennie believed that the strength of the relationship engendered itself to an equal parenting arrangement being in X’s best interest, ahead of the needs of either parent. He also claimed that X has a close relationship with his extended paternal family, as well as with his wife and her children and, as such X was missing out on not being closer to them.
He acknowledged there would likely be some impact to X in having to return to Melbourne, particularly having recently commenced primary school and due to the time he has now spent living in Queensland, however, he did not believe that this would be any more significant than when he moved away from Melbourne to begin with. He believed X would be able to transition quickly, and the perceived benefits of increased time with his father would outweigh any negatives for X in moving back to Melbourne. He did not appear to consider any potential impact on the mother as important.
The mother was also very accusatory of the father. I read paragraphs 38 to 39:
Ms Arnott presented as responsive and engaging, however, she also appeared hostile and oppositional at times in relation to the father, and somewhat anxious and emotional throughout the assessment. She relaxed however, during the second half of the interview, which was reconvened after the lunch break.
Of major concern to the mother at interview, was the need for the parties to secure more detailed parenting arrangements, given the ongoing conflict between the parents. She acknowledged the importance of X maintaining a meaningful relationship with his father, given X’s positive connection to Mr Rennie; however, Ms Arnott appeared to hold reservations in relation to Mr Rennie’s parenting capacity. Specifically, in relation to his history with alleged alcohol abuse and his behaviour towards her which she reported to have been antagonistic, verbally abusive and bullying; this being problematic in X’s presence. These reported experiences, both within the parental relationship and post-separation, appear to have created unresolved issues emotionally for Ms Arnott and compounded her inability to trust the father. Thus, her capacity and desire to interact or co-parent with him appears limited.
At paragraph 47, the report continued, talking about the mother:
Her mother who previously lived in Adelaide, had relocated to Queensland in early 2013, followed by her sister who also moved to Queensland from where she worked in (country omitted). She claimed that her primary support in Melbourne had been her close friend (and the father of one of her nephews); however, he and his family had also moved to Queensland. Ms Arnott’s desire to relocate then reportedly strengthened over time, given her mental health struggles and ongoing issues with the father and, therefore, her desire to be closer to her emotional support network increased.
Paragraph 53, the report continued:
Her worst fears were having to return to Melbourne. She claimed that “it fills me with anxiety” that her parenting capacity may be impacted if she is not able to remain in Queensland, given she believed her mood and emotional resilience would decline in Melbourne, due to the lack of supports available and negative memory associations. She believed that the local community (along with family supports) had more to offer her and X in Queensland, and that the warmer weather means that they get out more. She also believed that there had been a positive seasonal change for her psychologically in moving to a warmer climate; and she believed that she is going to be a far better mother in Queensland than she was, or could be in Melbourne. She holds ongoing fear and anxiety that her mental health and emotional functioning will decline if her bid to remain in Queensland is unsuccessful at Court, and she further worried that the level of parental animosity and conflict would escalate with closer proximity.
Ms K was also interviewed. She was, unsurprisingly, supportive of the father and noteworthily dismissed the mother’s fears of the father’s parenting capacities in relation to X. She was also, to an extent, critical of the mother.
X was interviewed and what was recorded at paragraphs 61 to 63 was the following:
X presented as a vivacious, energetic and extremely socially engaging young boy. He interacted well with others and could build rapport quickly. He was disinterested in formal questioning however, and was therefore difficult to engage at times. Despite this, he interacted well in social play, and presented as a very affable and lovely boy.
X appeared aware that he currently lives in Brisbane with his mother, and that his father lived in Melbourne. However, he appeared unaware and/or unwilling to articulate there being any conflict between his parents. He did not provide any further information of significance about the dispute during the interview.
X is reportedly doing appropriately at school, however was reported by his mother to have some difficulties with listening/concentration. It was not clear whether this behaviour was significant or required any further assessment; however, X certainly did not present at interview as a child with any developmental or behavioural issues.
It should be noted that X was perfectly okay with his mother, with his father and Ms K when he was observed.

The evaluation is set out at paragraphs 71 to 73, as follows:
The parties each described a history plagued with acrimony and conflict, and they have clearly struggled to co-parent effectively together since separation. However, despite their bitterness and animosity toward one another, there is a delightfully charming little boy at the centre of their dispute, who clearly loves and adores both of his parents. In this respect, and despite their otherwise dreadful regard for one another, there appears to be some capacity for focus on their relationship with X when spending time with him. However, there have also been allegations of attempted influence or exposure to family violence by one or both parents that will require further consideration by the Court.
The allegations made by each parent regarding the others behaviour appears troubling, particularly in relation to their behaviour and conduct towards each other post-separation. At interview, the parents appeared so focused on the parental conflict that they appear to have lost of sight of the positive interactions and relationships they each have with X. Instead, they each appear to have potentially acted in a manner self-serving to their own agendas and needs rather than focusing on their son’s wishes, needs or best interests, and their behaviour, in some instances, appears spiteful. In this regard, both parents appear to have contributed to this state of disrepair that is their co-parental relationship. Without a significant shift in their views and behaviour towards each other, there is likely to be a very poor prognosis for their capacity to maintain equal joint parental responsibility, and a very high probability of risk that X will be exposed to ongoing tensions and conflict; particularly as he develops further, and the conflict between his parents becomes more obvious to him.
It is clear from the parental interviews, that the mother knowingly removed X from the greater area of Melbourne, Victoria, without the father’s explicit consent. In fact, she knew, in doing so, that she was relocating X against the father’s express wishes. However, at the time, the mother’s decision making appeared geared around her perception of what was in the best interests of her own mental health and parental capacity; and by extension, X’s best interests. The issue now for the Court is not whether the mother did or did not leave unlawfully; but whether X is able to remain in Queensland in the primary care of his mother, or be returned to Melbourne to be closer to his father.
I noted that Ms E was of the view that shared parental responsibility appeared thwarted by the parental discord and parental attitudes.
Paragraphs 79 to 82 of the report continue:
The father’s proposal for X to live in Melbourne is to ensure that he can maintain a meaningful and significant relationship with X, through regular time spent arrangements. It is Mr Rennie’s argument, that by remaining interstate X’s relationship with him will be considerably reduced, and therefore the strength of this relationship inhibited. Given X’s young age, this indeed may be the case, as he will be unable to share key developmental milestones with his father, such as school, sporting – social and sporting events. However, all key celebratory events, such as birthdays, mothers/father’s days, Christmas, Easter and New Year’s, will be able to be appropriately accommodated through structured parenting Orders. Nonetheless, there is certainly an unknown risk in strengthening paternal relationship(s) with X remaining interstate away from his father and extended paternal family long term.
There is no disputing that X has a positive and meaningful view of that relationship with his father that needs to be preserved through appropriate parenting arrangements. The strength of this relationship is likely to be advantageous in assisting them to be able to maintain a meaningful connection, even at a distance; and it appears that X has maintained a positive view of the relationship – of a relationship with his father over the past 16 months whilst living in Queensland. In this regard, the distance does not appear (on face value) to have detrimentally impacted his opinion or the value of his relationship with his father thus far, however the longer-term implications for their relationship is difficult to determine.
Certainly, X’s relationship with Mr Rennie (and his extended paternal family) would be further enhanced by being able to spend more frequent time with this father, and enable the father to become more involved in all facets of X’s development such as school, his friends and extracurricular activities. However, this appears likely to come at a cost to the mother both emotionally, psychologically and economically, and, thus, the cost/benefit to each of the parties will need to be appropriately explored by the Court.
The mother believes that her mental health will decline if she and X are compelled to return to return to live in Melbourne, where she believes that she has very limited emotional or financial support. She certainly appears emotionally vulnerable in this regard, and there is concern in relation to parental capacity should her mental health or coping decline, particularly as this may have potential implications towards her capacity to prioritise X’s needs. As X’s primary caregiver, the mother’s mental health and emotional wellbeing will likely need to be considered, particularly in relation to her proposal to remain in Queensland. Ms Arnott reports that she has gained a more positive outlook on life, social connectedness, and sense of self or self-esteem since relocating. Furthermore, they have now lived in Queensland for over 16 months, allowing suitable connections to be formed and X has commenced schooling and likely begun to build his own connections. Whilst the evidence provided by the parties is yet to be tested, the mother’s improved outlook may also inadvertently relate to the distance between the parents, given the toxicity of their relationship.
The final passages I am going to read are paragraphs 86 to 88, which are as follows:
The viability of parental responsibility will likely depend on any findings by the Court in association with which state X lives. The acrimonious parental relationship, rigidity of the parents, and ongoing verbal conflict between them, raises a significant problem for their capacity to fully maintain joint parental responsibility.
Irrespective of location, it is recommended that X live primarily with his mother. In practical terms, the proportion of time spent with his father will be dependent on whether X can remain living in Queensland, or must return to Melbourne, Victoria.
It is recommended that changeover occur through a third party, such as a children’s Contact Centre, regardless of location, in order to ensure that X is not exposed to the parental animosity and conflict.
Ms E went on to make various recommendations about counselling and post-separation parenting courses, but the issue of which state X would primarily live in was left firmly to the Court.
This brings me to the submissions made and the evidence given at the Court. Counsel for the Independent Children's Lawyer opened the case by indicating that the orders sought by the Independent Children's Lawyer were essentially for the mother to remain in Queensland and time be spent in Victoria.
Mr Rennie, the applicant father, sought that the mother and child relocate and he sought equal shared parental responsibility. He seeks the orders in his initiating application. Under cross-examination by counsel for the Independent Children's Lawyer, the father said that the child was in Queensland when he drafted his application in May, having gone there in late November 2015. He had no real problems effecting service. He did not know where the child’s kindergarten was.
I should say that there was quite a lot of cross-examination about the father’s endeavours, or lack thereof, to establish where the kindergarten was, but in my view, as I shall explain, I think they were slightly wide of the mark. The father was of the view he would not obtain any information from the kindergarten without the mother’s permission. He wanted them to relocate to Victoria. He was not himself able to relocate because of his partner’s son who had just started secondary school and Ms K would not be moving.
The father has no family in Queensland and would have no emotional support at all were he to move there. He is not proud of his communications with the mother and said he tries to restrain his responses. He went on to say how he stands up for his son and gives his son a voice. He said the child did not choose to move to Queensland. The father expressed some doubt about the extent of emotional support available for the mother in Queensland, but conceded that she has a sister there. He said he pays child support as assessed.
The father said that the mother has a job. She was employed previously in Victoria and could look for a job in Victoria before she relocates. The child could live with him till the mother found accommodation. He was seeking a week about regime. His own wife could look after the child, as she works for (employer omitted). He said the child was not exposed to the ill will between the parties. There was no conflict at changeover.
That concluded the day’s evidence and the following morning, the father under cross-examination confirmed that he still sought orders that the mother relocate. He said he had taken an audio file. This was a surreptitious telephone recording of a conversation in (omitted) in March 2013. He had not told the mother that he was recording the conversation and he recorded it to show her abusing him while he was holding the child.
He said, disingenuously in my view, that this was not done to disadvantage the mother and it is not a terrible course of conduct. He said he had formed the view the relationship was over before the birth of X and he said he met Ms K some four months after separation. Alcohol had been a problem when they were together. They had both drunk a lot. He said he had problems with alcohol, predominantly wine. He gave a description of extensive alcohol consumption.
He also gave a description of the relationship breakdown with Ms K in November 2015 when X relocated, but happily for them, he and Ms K re-engaged in January 2016. His family is in Victoria and that of Ms K also. There is nothing in Queensland. He opined that the mother should have support in Melbourne through various friends, although he admitted she had support in Queensland.
He did not agree that the mother could not obtain accommodation in Victoria. He had Googled realestate.com.au about (omitted) and said there was plenty available. He conceded the mother was a good mother, the child was healthy and well-adjusted, despite being in Queensland since 2015.
He said the return to Victoria would not place huge stress on X. He meets people everywhere and is social and could adjust. He was unaware of X’s education in Queensland. He denied calling the mother a druggie or a fat whore, although he conceded he had used derogatory terms. He said he had called her a fat controller and that he had used derogatory words about her over the years, but this has now ceased.
He tries to keep things to the point and he was eager to undertake a post-separation parenting course. He was cross-examined about what would happen if the mother remained in Queensland. I note that he was prepared to have changeover at the airport and that each party pay half of the cost of the flights. He confirmed, perhaps slightly surprisingly, that it would be Ms K who would predominantly be looking after X during school holidays because he would be working. He went on to say, perhaps noteworthily, why should he be punished because the mother had moved?
The mother herself then cross-examined the father. Beyond showing the obvious tension between the parties, that did not, in my view, take the matter much further.
Ms K was then called. She works as an (occupation omitted). She has not directly spoken to the mother, although she had told the father she would be happy to meet her. She had tried a couple of times to be a negotiator about X, but the mother had not agreed. Then, the mother had made false accusations against her through social media. Ms K strongly denied ever physically chastising X and pointed out she worked in (employment omitted), and I would point out that she was clearly telling the truth.
Under cross-examination by counsel for the Independent Children's Lawyer, Ms K confirmed that it would be positive if she could help. She thought that a post-separation course would help both the parents. She volunteered to go to Brisbane to collect X, with whom she has a good relationship, and confirmed that she has school holidays off.
Ms E was then interposed and her report was tendered as exhibit D1. Under cross-examination by counsel for the Independent Children's Lawyer, she confirmed that one whole school holiday might be okay. The child was young, not quite six, but could be able to cope. He would need telephone time with his mother when he would spend two full weeks with the father. Telephone time would be important to keep the parent connected. Facebook or Skype would be better but the time should be limited.
Individual counselling for the parents might help. Under questioning from the father, Ms E confirmed that both parents would need to change significantly for there to be equal time. If X was compelled to move to Melbourne, there would be significant problems for the mother. If she moved back to a known area, this would be better for her and X, but the parents are unable to support each other.
Under cross-examination by Ms Arnott, Ms E confirmed that half of holidays, half of Easters, half of Christmas and birthdays would be appropriate. She said the orders would need more detail which would alleviate arguments.
Ms Arnott was then called, and under cross-examination by the Independent Children's Lawyer, she conceded the ill feeling between her and the father. The father says he regrets some things, that the mother had not been aware she was being recorded when the audio tape was taken. She did once herself, however, record a conversation but would not do this again.
She wants to do something to improve her relations with the father and sought detailed orders, and she conceded that an incident involving the train to (omitted) was both parties being pig-headed. And she also conceded that she had on one occasion, when asked where the kindergarten was, she had said it was in the affidavit, rather than telling him as she well knew where it was. She said she had to change her attitude. She conceded that Ms K was impressive and expressed that she should be involved.
She said she had family support in Queensland. She works for an organisation that is a (employer omitted), working 60 hours per fortnight. She is studying (omitted) on Fridays and will finish in June of this year, following which, assuming she is successful, she will have a (qualifications omitted). The only holidays that she objects to X spending all of with his father are the July school holidays because that is when his birthday is. Otherwise, a two-week span would be okay.
When cross-examined by the father, she confirmed that she was originally from Adelaide and had moved to Melbourne seventeen and a half years ago. She did have friends in Melbourne. This was not a support network. Her best friend has moved to and remains in Queensland. She had not been in a good situation – a good state of mind in Melbourne. She had been isolated and had constant problems with the father. She had a bout of depression. She knew she had family in Queensland. All of them have children. Queensland is good for X. It was not an easy choice. She was also afraid that if she had mentioned her depression in her affidavit, the father might say she was an unfit parent.
Perhaps I should make a few brief observations about the witnesses. Both parents struck me as being honest, but necessarily blinkered by their perceptions and their experience. But, by the end of the case, I think they both now see the need to try and improve their behaviour, and I should I make it clear that Ms K was an outstanding witness who was calm and sincere and obviously telling the truth. I am well aware of the statutory pathway as set out at paragraph 65 of the decision of the Full Court of the Family Court in Goode & Goode [2006] FamCA 1346, but I will not read it out.
Now, I will turn immediately to section 60CC(2) of the Act. Everyone agrees that there is a benefit to X having a meaningful relationship with both of his parents. It is clear there has in the past been family violence within the broad definition of section 4AB of the Family Law Act, but whatever happened in the past, both parents propose that X spend time with the other parent.
If I go to section 60CC(3)(a), X has not expressed any formal views, but he clearly loves his mother and his father and appears to have an excellent relationship with Ms K.
Turning to section 60CC(3)(b), the mother is the primary carer, but, as I have just said, X has an excellent relationship with his father and Ms K. It is not entirely clear how he gets on with the extended families on both sides. There is not a lot of evidence, but there is no reason to assume those relationships are not good.
Turning to section 60CC(3)(c), this is concerned with the extent to which each of the child’s parents has taken, or failed to take, the opportunity to various things, including making decisions about the child, spending time with the child and communicating with him.
There is no issue under this heading about the mother. She is the primary carer. In part, the mother is critical of the father, and the Independent Children’s Lawyer too. It took the father some time to come to Court, but I accept his explanation. He was depressed and separated after November 2015, and has, at all times, been self-represented. It took him some time to get started and, in my view, that is fair enough. His trip to (omitted) was perhaps a little self-centred, but I point out he does have a marriage to sustain also.
So far as the issue about kinder in Queensland was concerned, I thought the father’s position was entirely understandable. It is well within the Court’s knowledge that where an educational institution is aware that a parent is in a conflictual position with another parent, they tend to be extremely guarded about the other parent. It is clear that the father wants a role in X’s life.
Turning to section 60CC(3)(ca), this concerns the extent to which each of the child’s parents has fulfilled, or failed to do so, their obligations to maintain a child. The mother is the primary carer, and that is all that needs to be said about her. The father pays child support and it appears, by and large, to be pretty much up-to-date.
Section 60CC(3)(d) is concerned with the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, and for these purposes, their extended family. There is no getting around it. If X is in Queensland, the father will be extremely apprehensive about the nature of X’s relationship with him. There would be an obvious difference if X was in Victoria, but I remind the parties of what Ms E said at paragraphs 80 to 81, relevantly, and I quote:
It appears that X has maintained a positive view of a relationship with his father over the past 16 months whilst in Queensland.
This issue is, in truth, the heart of the matter and I will return to it. Section 60CC(3)(e) is concerned with the practical difficulty and expense of a child spending time with and communicating with a parent. There will be some practical difficulties wherever the mother lives. The father, after all, complained about the travel time when the mother was living in Victoria although, obviously, there would be more cost and time if X was to live in Queensland. But all the parties appear to have jobs. With planning and, I emphasise, cooperation, it would seem clear that costs and the practical problems can be overcome. However, even if there was not cooperation, it can still be done. It would just cost the parties more money which, as I find, they would be able to sustain.

Section 60CC(3)(f) is concerned with the capacity of the child’s parents to provide for the needs of the child. The mother is no problem and, in my view, the father is no problem either. I accept Ms K’s evidence that he is a competent parent. I note, however, that both need to address the way in which they interact. Post-separation parenting course and counselling, as recommended by Ms E, are matters I am going to order.
Section 60CC(3)(g) provides that the Court consider the maturity, sex, lifestyle and background of the child and the parents. This, in the context of the matter, has nothing much to add because I have already dealt with them. X is clearly a happy and affable child, and, indeed, I would say that the description of him by Ms E is one that should surely stand to the credit of both of the parents.
Section 60CC(3)(h) is irrelevant. Section 60CC(3)(i) is concerned with the attitude to the child and responsibilities of parenthood, demonstrated by each of the child’s parents. Once again, this is important, but does not add much. Both parents have tended to put their dislike of the other ahead of X’s best interests, but appear now to be on the way to understanding and addressing this.
Section 60CC(3)(j) is concerned with family violence. Family violence is, of course, important, but at the current time, adds nothing because both parents are proposing that X spend time with the other.
Section 60CC(3)(k) is concerned with any outstanding family violence order. If there are any, they are not now of any moment. Section 60CC(3)(l) is concerned with whether there should be final orders or not. It is clear that all parties seek final orders, so that is straightforward. Finally, section 60CC(3)(m) is concerned with any other fact or circumstance the Court thinks relevant.
And the real issue, of course, is where the mother and X are going to live. She has always been the primary carer. She moved to Queensland for support. She was depressed in Melbourne and, as I find, she also wants to get further away from the father. But the mother is not now seeking to excise the father from X’s life. If the mother returns to Melbourne, she will have no job and no home. Even with her extra qualification in June this year, there will be no certainty of employment if she did return to Melbourne. There would be the certainty that she would have no family support and this is an important matter.
On the other hand, if she remains in Queensland, the father will be terribly concerned. Greatly to his credit, he said at the end of the proceeding on Friday, that while he still wants equal time, he will accept the result. In the end, the result is clear. It is not in X’s best interests that his primary carer is miserable. He is well-settled in Queensland and has extended family all around. His relationship with his father can and will be maintained. It was still excellent when he saw Ms E in February 2017, well over a year after he had moved to Queensland.
It is clearly, ultimately, in X’s best interests to live within Queensland with his mother. It is not necessary, therefore, to deal with the father’s proposal for equal time which itself might be thought to face considerable difficulties.
I have tried to structure this judgment to avoid or minimise blame. Both parents have behaved suboptimally but, in my view, impressed me as decent people scarred by their unfortunate personal history. Ms K impressed me and Mr Brewer very favourably. Hopefully, the parties will let her help.
The Independent Children’s Lawyer, in response to a request that I passed to counsel, has engrossed a set of minutes of proposed final orders, which I will cause my associate to hand to Mr Brewer and to Mr Rennie. Obviously, I cannot hand them to Ms Arnott because, Ms Arnott, you are on the phone. These are the orders as sought by the Independent Children's Lawyer when we were together last Friday, so you will know what they say.
The orders seem to me to be entirely consistent with my conclusions, save for one matter which I am going to raise with the parties now and would like their submissions. There was a request by Ms E that the parties, without admitting the necessity, therefore – I am looking at paragraph 94 of the family report – be restrained from drinking alcohol to excess while caring X or 24 hours prior. I do not think that is in the minute that the Independent Children's Lawyer has forwarded on.
Well, I am also going to order that the mother undertake counselling, as nominated by the Independent Children's Lawyer. Subject to those matters, those will be the orders of the Court.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 18 April 2017

[2017] FCCA 853

18 April 2017

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