RHOADES & KEARNEY
[2015] FCCA 1716
•22 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RHOADES & KEARNEY | [2015] FCCA 1716 |
| Catchwords: FAMILY LAW – Consideration of child’s best interests – child to live with father in Victoria. |
| Aldridge & Keaton [2009] FamCAFC 229 |
| Applicant: | MR RHOADES |
| Respondent: | MR KEARNEY |
| File Number: | CSC 45 of 2015 |
| Judgment of: | Judge Willis |
| Hearing date: | 20 February 2015 |
| Date of Last Submission: | 20 February 2015 |
| Delivered at: | Cairns |
| Delivered on: | 22 June 2015 |
REPRESENTATION
| Solicitors for the Applicant: | NQ Family Law Centre |
| Solicitors for the Respondent: | Self-represented |
| Independent Children’s Lawyer: | Ms Gray |
ORDERS
IT IS ORDERED UNTIL FURTHER ORDER:
The Child X born (omitted) 2005 (“the Child”) live with the Father.
The Father and Stepfather (Mr Rhoades) have equal shared parental responsibility, save and except that the Father will have sole parental responsibility for issues and decisions regarding the Child’s religion.
The Child spend time with the Stepfather at all times as agreed between the parties, and failing agreement, as follows:
(a)On one weekend each month to occur on an alternating basis between either (omitted) or Melbourne each month, with the Stepfather to travel to Melbourne in one month and the Child to travel to (omitted) in the other month. Any weekends are to include student-free days.
(b)In the event that any month has a long weekend, the weekend that X spends with the Stepfather should occur on that weekend. In the event that the week-end occurs in a month when there is a gazetted school holiday period, the weekend shall not occur, but rather, will be replaced by spending time pursuant to this order during the school holiday.
(c)On weekends that the Child is travelling to (omitted), the weekend will commence at 12:00 noon on a Friday and conclude at 12:00 noon on the following Monday. Otherwise, when the Stepfather’s weekend occurs in Victoria, his time will commence from after school Friday and conclude prior to school on the following Monday.
(d)One half of the Victorian school holidays, commencing on the Saturday after the conclusion of school and concluding at 5:00pm at the midway point.
(e)Any other reasonable time that the stepfather is travelling to Victoria, on the condition that:
(i)10 days notice is given to the father;
(ii)the Child is taken to school and to his extracurricular activities;
(iii)the period is no longer than one week; and
(iv)that it occur no more than four weeks a year and not in conjunction with any other time.
The Father is to do all acts and things to initiate and facilitate regular time between the Child and his maternal family and cooperate with their reasonable requests for time to be spent with the Child.
BY CONSENT IT IS ORDERED UNTIL FURTHER ORDER:
Neither of the parties feed the child food with artificial additives.
That the Child communicate by Skype, FaceTime or phone at the election of the stepfather no less than three times in each seven day period, such days to be nominated by the father within seven days from the date of this order. In the event that those dates conflict with any extracurricular activities, the father is to advise the stepfather within – to advise the father of a change in the days as and when that is necessary.
Each of the parties are to do all acts and things to attend at a family dispute resolution practitioner or centre and obtain a section 60I certificate.
IT IS NOTED that publication of this judgment under the pseudonym Rhoades & Kearney is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CAIRNS |
CSC 45 of 2015
| MR RHOADES |
Applicant
And
| MR KEARNEY |
Respondent
REASONS FOR JUDGMENT
Background
This application involves tragic circumstances, being the death of the mother and primary carer of young X, born (omitted) 2005, who I shall refer to as young X, given that his father is also named X. Young X’s mother, Ms D, was killed in (omitted) on (omitted) January 2015 when, as a pedestrian, she was walking to the (omitted) airport to catch a plane to fly to Melbourne and collect young X, who had been spending Christmas time in Victoria with his father, Mr Kearney, pursuant to orders of this Court issued only on 6 October 2014 in Dandenong.
Those orders were orders of Judge Jones, by consent, as is indicated on the file but not indicated on the orders. The parties had their matter listed for trial before Judge Jones and after a process of appearing before the judge and the trial starting, it seems, that the matter was stood down for negotiations and the matter was settled. The relocation hearing was initiated by the mother, who wished to relocate from Victoria to (omitted) with X. The mother was married to Mr Rhoades, who is the applicant stepfather in the interim hearing before me.
At the final trial in Dandenong between the mother and father, each agreed to equal shared parental responsibility, which has been agreed to between the parties for years in orders noting that their litigation started back in 2007. In the time that this matter has been reserved, not only have I had many, many other matters to deal with but I needed time to as was agreed to by the parties, go through the extensive history of this matter in order to understand the previous litigation as it was referred to by each of the applicant and respondent. I also needed time to research some case law relevant to the issues in this matter.
The final orders that were made by Judge Jones provide for young X to live with the mother in (omitted) and spend regular time with his father in Victoria – at least once a month plus holidays and specifically, in the Christmas holidays. The orders state:
From noon on the 22nd day after the end of the school year in 2014 until noon on the Sunday before the commencement of the first school term in 2015, ie, January, and each alternate year thereafter.
That order is therefore for a period likely of at least four weeks. The orders are very comprehensive. At the end of the January holidays and on (omitted) January 2015, the father and young X, having had their weeks together sat at the handover location at McDonald’s in (omitted), waiting for the mother to collect X at the agreed time at 12 noon. A phone call was then received from the mother’s mobile by the father, the father having sent an earlier text to see where she was and whether she was delayed at 12.15. The phone call was however not from the mother, rather, it was from the (omitted) forensic police, advising of the shocking accident, which had occurred in (omitted) that morning causing the death of the mother.
Perhaps not unexpectedly, there has now been disagreement about young X’s future living arrangements since that time, with the stepfather initiating an application four days after the death of the mother on (omitted) January 2015 seeking orders that young X live with him in (omitted). The application is opposed by the father, who seeks orders that young X live with him in Victoria.
The Independent Children’s Lawyer(“ICL”) in this matter supports the application that X remain living in Victoria. I was told by the ICL at the commencement of the hearing that the parties have agreed to equal shared parental responsibility and that the father is to have sole parental responsibility for religion. After that was announced by the independent children’s lawyer, Ms Drummond solicitor advocate for the stepfather corrected the ICL and said that it was not agreed that the father is to have sole parental responsibility for religion.
The father is self-represented and I note his own amended response is that he have sole parental responsibility. The ICL and the parties advised me that it is also agreed that wherever young X lives he will spend regular time each month, for a weekend at least, with the other party and that where there is a school holiday in a month the weekend contact will not occur, but half of the holidays will occur instead. Apart from this general agreement – I am told the agreement was very loose as each party wanted to see what the decision would be made by the Court as to the child’s primary place of living and thereafter work out the finer details – it has been agreed, as is specifically ordered in previous orders, that neither party will feed the child food containing additives and obviously this is due to young X’s reaction to such foods.
The stepfather has been legally represented throughout these proceedings. The father was represented at the first mention and since that time has been self-represented. The file shows that he has been self-represented on and off throughout the past proceedings against the mother who appears to have been legally represented throughout. The background of this matter is that the mother and father have a history of litigation in this Court, commencing back in 2007. As I have said, I have been through those files with the agreement of the father and the stepfather to understand the history as referred to by each of the applicant and respondent.
I accept that, as submitted to me by the father, that the theme throughout the litigation has been that the mother has made the father's time, from his perspective, very limited. The father started the litigation seeking orders in an application filed on 10 October 2007. The mother and father began living together in (omitted) 2000 and separated around 19 February 2007. As can be seen in the material, the father has been seeking orders for regular and for increased time since separation and by October 2007, filed for orders in relation to young X, born (omitted) 2005, then aged only two years and four months.
The father’s first application asked for joint custody and regular time with young X and to alternate spending time with him for Christmas and on his birthday, and that the mother not be permitted to relocate without permission. The father’s first affidavit sets out that he would like the matter heard urgently as the mother has refused to communicate to arrange contact and the father had not seen his son since mid-January 2007. He sought orders for every second Sunday between 12 noon and 5 pm.
The mother’s response in the orders sought was that young X be issued with a passport, that young X be permitted to travel and live in (country omitted), with his mother departing in (omitted) 2007, and that the child have contact with his father on an annual basis when his mother returns to Australia to visit at dates and times to be agreed or as ordered. The mother, in her material, sought a passport and said she was marrying in (omitted) 2007 and moving to live with her then new husband in (country omitted) where he works so “we can live together as man and wife”.
The mother had already tried to obtain a passport by that stage and the Department of Foreign Affairs and Trade refused to exercise their discretion to issue a passport as the father disagreed about the child travelling internationally. As Mr Rhoades, the stepfather, says he has known the child since he was 18 months old – that would be (omitted) 2005 – it seems that the mother was intending on marrying Mr Rhoades and moving overseas. I note in the correspondence file that Mr Rhoades has written to the Court about a notice of intended marriage on a letterhead that shows him living in (country omitted) and that he confirmed he had asked the father to sign the passport application for X and the father refused.
It seems, at that stage, that Mr Rhoades was himself still obtaining a divorce at the time. Some might consider this application for relocation internationally due to the mother’s plans for marriage would have made it difficult for a young two-year-old child to have a meaningful relationship with the father. A child of two years and four months moving between Australia and (country omitted) intermittently would likely have had difficulties in building a close bond with the father. At this time, the mother was 39 and the father was 53.
In terms of her relationship with the father, the mother says, in her material, that they met through the internet, they had never lived together on a full-time basis and their relationship ended in November 2006. She said X had always lived with her. It seemed that the father was married when he met the mother and possibly throughout his relationship with her. It is difficult to tell. The mother’s response to the father’s then initial request was that the child had been too young to spend time with the father as the mother was breastfeeding.
She made other allegations about his social behaviour and said that any time the child had with the father needed to be slowly reintroduced as X had not seen his father for 12 months and the father would be a stranger to him. This seems to fit with the father’s statement that he had not seen his child for many months. On the first court date on 11 December 2007, the mother and father proposed Consent Orders to the Court which provided for the child to live with the mother, the father to have regular time for two hours at a time, that the mother was to be present through the father’s time and the mother was restrained from removing the child from Victoria.
The matter was listed for a further hearing on 25 February 2008. Further consent orders were agreed to with the father having longer times with young X, no longer supervised and for periods of four hours and then each Saturday all day. The mother was to contribute to the father’s costs of travel of $35 each week. The mother was restrained from removing the child from Victoria. This matter was listed for a final hearing in October 2008. The mother was legally represented throughout.
The father annexed material to his affidavit at the time, showing fairly warm and affectionate exchanges between himself and the mother, with the mother’s correspondence ending with salutations such as “thank you very much for your understanding, love Ms D”. It seems to be that the parties became bogged down in property issues, which created much acrimony. The mother disputed that the father could even bring a property claim at that stage, saying “we were never married”. An early family report shows the mother lost all trust in the father and then she made allegations about abusive conduct.
The mother wanted to continue breastfeeding, she said to a family report writer, as long as the child wished to and that she saw this as a barrier in 2008 to overnight time. The report states that X, as young as he was, had a good relationship with both parents. Parental communication was poor and Mr Rhoades was seen as an intermediary through whom the father and mother could communicate with each other. A final order was made on 3 December 2008, again by agreement by the father and mother. Again they agreed to equal shared parental responsibility and for contact each alternate weekend, 9 am Saturday until 5 pm Sunday with the father, special days, for the father’s time with the father to be suspended during 3 and 23 January each alternate year in the event the mother travels overseas.
Upon the child commencing school the parties were to attend Relationships Australia or other mediation to discuss an increase in the father’s time with the child and, importantly, an order was made to facilitate the child’s formal name being registered as Kearney-(omitted) at the father’s expense. The mother’s affidavit material shows her saying that her solicitor would do all that was required to effect this change. As it transpired, the solicitor did not do it and the father said he did not need to pay a solicitor – that he could do it himself. In August of the following year, in 2009, the changes ordered to the surname had still not been attended to by the mother, despite orders to do so on 3rd December 2008.
The father then filed an application on this issue and the father sought orders that he be permitted to sign all the documents and lodge them to give effect to the Orders. An order to this effect was made by the Court on 5 August 2009. There were then contraventions lodged by the father alleging the mother had contravened the weekend time orders in May, April and in June. It seems to me that this issue has caused the relationship to sour.
The background to the mother walking to the airport on (omitted) January 2015 in (omitted) was that she had moved to (omitted) prior to an order of the Court to relocate young X and the mother took up permanent employment. I believe she moved herself to North Queensland to take up employment around July 2014 without young X. Young X was not permitted to be relocate from Victoria by the mother , pursuant to previous injunctions in earlier orders of the Court.
There was some controversy between the mother and father in their material about the mother leaving Victoria and I note the mother sent an email to the father at a point after he contacted her to say that he had heard that they were leaving Victoria. The mother denied that she had moved permanently. The father’s material stated that the mother did not ever tell him that she was proposing to move – that he had heard it through young X. The father then said there was further controversy before the relocation trial when the father found out through young X that young X was not living with the mother or, in fact, the stepfather - but rather was living with another family.
In his material the father described that other family as strangers but the mother and stepfather, Mr Rhoades, described the other family as “good friends of the family”. In any event, in this interim period of July, August, September and prior to the trial in October 2014, the mother was living and working in her – what looked to be – permanent employment in (omitted) and flying back to Victoria most alternate weekends, noting that young X spent the other weekend with the father. In this period, whilst the mother had herself moved to Far North Queensland to take up work, the stepfather was also away overseas in his work as a (occupation omitted) for at least one month.
The stepfather has been working in (country omitted) since 2013 on a month-on, month-off basis and this continued when the mother relocated to (omitted). Ms Drummond, for the stepfather, says that the stepdad was away one out of those three months prior to the trial. The step father was an (occupation omitted) and is now an (occupation omitted). There is no doubt, therefore, that for at least a month young X was left in the care of others without either his mother or stepfather in (omitted) Victoria, where he lived with the mother and stepfather and went to school. The father, it seems, was not consulted about this nor was he given the opportunity to have young X live with him.
Following the final Consent Orders of the Federal Circuit Court on Monday, 6 October 2014, and noting the closeness of that time to the end of the school year, young X was nonetheless moved from his school in Victoria the following day and relocated to (omitted) almost immediately, being the day after. According to the subpoenaed material tendered in this matter, by the morning of Wednesday, 8 October 2014, young X was presented to a school in (omitted).
X was presented prior to an interview with the school by the mother with the school. It seems, on the subpoenaed material, he attended school prior to an interview. Young X was dropped off by the mother. No paperwork had been completed, and the school had a concern as the stepfather had previously mentioned autism and the school was left, according to their records, to organise uniforms for X, and the school records state that X left Victoria at 4 am on that very day, flew to (omitted), and started school later that very morning.
This appears to be a very rushed relocation, and no doubt a huge transition for young X who, as I have said, was close to completing his school year in Victoria and who has traits of autism, as seen in the material tendered to the Court in October 2014, and which I have had access to.
The Law
In looking at the law in this matter, this application comes under part VII of the Family Law Act. The objects and principles to be applied are set out in section 60B, however I note the relevant case law which I have researched regarding non-parents and that a number of the objects in section 60B(1) and (2) are expressly to apply to parents, and so are excluded in consideration under those sections in relation to a non-parent.
Similarly, throughout these reasons, I take note of the fact that applicant is a non-parent when I have consideration to, for instance, the presumption of equal shared parental responsibility at 61C(1), which states as follows:
Each parent has a parental responsibility (subject to court orders)
Section 61C states:
Each of the parents of a child who is not 18 has parental responsibility for the child.
The Act reads:
This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order made by the Court (see subsection (3) of this section and subsection 61D for the effect of a parenting order).
I note, in the matter of Aldridge & Keaton [2009] FamCAFC 229, a Full Court decision of Bryant CJ and Boland and Crisford JJ, that the Full Court when considering a judgment involving a non-parent stated, at paragraph 111 that:
While the Act is, since the introduction of the amending Act, more prescriptive than the prior legislation in mandating matters, a Court must take into account in determining best interests it is clear that section 60C(3)(m), which provides a Court must consider any other fact or circumstance that the Court thinks is relevant gives a broad opportunity to a Court to consider many diverse matters relevant to the welfare of a child, and may have particular reference when dealing with an application by a person other than a parent, as in the case in this instance.
The Full Court then referred to a decision of Moore J in Potts & Bims [2007] FamCA 394 at paragraph 8, and see also Mulvany & Lane at paragraph 76, per May and Thackray JJ, stating that:
Although the passage from Moore J’s judgment is lengthy, we think it accurately encapsulates the relevant legal principles to be applied when determining a parenting application which involves a non-parent. It is as follows:
The provisions about children’s arrangements are to be found in part VII of the Family Law Act. The concept of best interests of the child is at the heart of it, and that is designated to be the paramount consideration in making any parenting order. Some part VII provisions refer to “parents” which, given the word’s ordinary meaning, and in the absence of an expanded definition or some other descriptor such as “party” means a number of sections do not apply when assessing best interests “in proceedings that are not between parents but between a parent and non-parent, e.g. a relative.
Section 60B(1) and (2) set out the objects of Part VII and the principles underlying them. However, a number are expressed to apply to parents, and so are excluded in proceedings of the latter kind. For example, paragraph 60B(1)(a), (c), and (d) fall away, and what remains is paragraph (b), namely the object of “protecting children from physical or psychological harm from being subject to, or exposed to, abuse, neglect or family violence”.
Similarly, Paragraph 60B(2)(a), (c) and (d) fall away as underlying principles, and there remains (b), namely except when it be contrary to a child’s best interests) “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. With objects and underlying principles as a guide, the determination of what is in a child’s best interest requires the court to consider both primary considerations and additional considerations set out in section 60CC.
But again the use of the legislator of the word “parents” in a number of those considerations operates to exclude those factors in proceeding between a parent and a non-parent. Falling within that group is the primary consideration in section 66(2)(a) and the additional consideration at paragraph (c), (e) and (i). However, that does not mean those considerations are to be ignored, if the facts of the case raise them as issues, because they can be adduced under other considerations such as (f) capacity to provide for needs or, if nowhere else, under (m), any other fact or circumstance.
On that analysis, the presumption of equal shared parental responsibility imposed by section 61DA if it if applies, and the order is to provide for equal shared parental responsibility, consideration of the child spending equal time or significant time as set out more particularly in section 65DAA are not prescribed pathways in the reasoning process towards a best interest conclusion in proceeding a parent and non-parent. Nevertheless, the particular application may make it necessary to address those outcomes in any event.
In the same decision, while endorsing the comments of Moore J, the Full Court accepted it was unnecessary for the trial judge to make an order that the mother have sole parental responsibility or that she live with her by reason of the mother’s then-undisputed position as the child’s sole parent recognised in section 61C. In the matter before me there is one parent recognised pursuant to this section , and that of course is the father.
In turning to the best interests of young X, I note the primary and paramount considerations in determining a child’s best interests, subject to the caveat of everything I have just read into the record. I must have regard to the relevant matters in section 60CC(2) and (3) of the Family Law Act, subject to my previous caveats. Section 60CC(2)(a) provides that applying the consideration in section 60CC(2), the Court is to give greater weight to the considerations in section 60CC(2)(b).
Discussion
Section 61C provides that each parent has that responsibility, subject to court orders, as I have said. And now that the mother is deceased, all of that responsibility falls to the father. There are no grounds to believe the father has engaged in abuse or family violence, and even allowing for any historic allegations, which have never been tested in any Court, made by the mother in her material, there is no evidence before me to suggest that in 2015 family violence is an issue in this matter.
I note that the father seeks an order for sole parental responsibility and, as I have stated elsewhere, I note that at the commencement there seemed to be some disagreement about what had been agreed and what had not. I must say, with the father being unrepresented, I am somewhat sceptical about his understanding of what he was agreeing to in terms of equal shared parental responsibility, though I note his request that he have sole parental responsibility for religion. On an interim basis, of course, any orders I make today about parental responsibility will be disregarded at the final hearing.
I note that the child has a strong relationship with each of the father and stepfather and that in the past they have been able to communicate with some civility and that, at times, the applicant seemed to be – having read the file – a conduit of messages rather than an irritant. Unfortunately in recent times, since these tragic circumstances have enveloped this family – or these two families – those relationships have become strained.
I have also seen in the file the photographs and affidavit material of the christening of young X, as referred to in an affidavit by the father, who stated in a previous affidavit:
Our son was christened at the (religion omitted) Church in (omitted), as both Ms D and I wanted young X to be involved with my culture. Attached is a picture of the christening. During the christening ceremony, Ms D was asked if she would raise X according to the customs of the church. Ms D replied, “Yes.” Attached is a photograph of the christening.
And I have seen that photograph of X fully decked out in his christening gown. There seems to be now an issue that has arisen in that the applicant step father appears to follow a different religion, and perhaps it is that the mother was also practising that religion. I am not sure. That religion appears to be (religion omitted), and it seems to be that the father understandably takes exception to X being taken to or introduced to another religion, given his christening in the (religion omitted) Church and that he has not agreed to a change in the child’s religion.
Certainly as between the mother and father, with an order for equal shared parental responsibility which has always been in place throughout this entire litigation going back to 2007, there is no evidence of any agreement that the child will be introduced at any stage to another religion, (religion omitted) or otherwise. That being so, and being mindful of the evidence I have of young X’s christening, and having regard to the matters which I have canvassed throughout these reasons and which I will come to, I intend to make an order that the applicant and respondent have equal shared parental responsibility, however, that will be subject to the father having sole parental responsibility for issues and decisions relating to X’s religion. I do not have anywhere near enough evidence before me to satisfy me that even on an interim basis issues to do with X’s religion and any alternate view or practices held by the stepfather or the mother prior to this time ought to mandate that the stepfather now have an equal say in X’s religion.
As I said at the trial of this matter, if that issue is pursued then certainly the Court will look at all of the evidence and make a further determination at that time.
S.60CC(3)(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
In terms of the other matters I will have regard to, in terms of the views of the child, I have had regard to those views as they exist in the material before me. I note that X has an understandable longing to return to (omitted), which obviously was a place where he had a very happy time and in returning there, he would no doubt be returning to, the place where he had some of the happiest years of his life.
He also says he would like to return to (omitted) and again, noting the reports about X’s current state of mind, I understand he would want to return to a place where perhaps he has had some happy times with his mother and certainly his stepfather. In terms of X’s views, the opportunity the Court has had to assess those properly has been very limited as expressed in the interview for the child inclusive conference which has the purpose of giving the Court an understanding of where the parties are up to at that particular point in time.
I understand that at this point in time in February 2014 when the short interviews were conducted, that X is in a very, very difficult and complicated place personally. I also understand and accept the evidence from the father that he has become settled at his school in Victoria and I have given appropriate weight in this interim and therefore abbreviated hearing, to the views of young X in the context of the circumstances of the recent bereavement, his very recent loss of his much-loved mother and no doubt feeling completely torn between the two remaining parent figures in his life, being his father and stepfather.
S.60CC(3)(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
In terms of the nature of young X’s relationship with each of his parents and other persons, including grandparents and relatives, I am satisfied he has an excellent relationship with the applicant stepfather and I am satisfied he has an excellent relationship with his father. One difference between the nature of his relationship with each of these applicant and respondent is that the applicant has been a parent who has co-parented with the mother. No doubt the mother would have asserted that she was the primary carer, being the child’s mother.
The father has had experience at parenting on a solo parent basis as he and the mother were separated for years. To that extent, I have the impression it may be that the applicant has been one step removed from the primary role of parenting X. I am fortified in this belief in the knowledge that the applicant stepfather has had a working life that requires him to be absent for a month at a time each second month. I nonetheless accept that he is, without reservation, a loving stepfather. I accept also that the father is a loving father.
S.60CC(3)(c) The extent to which each of the child’s parents has taken, or failed to take, the opportunity:
To participate in making decisions about major, long term issues in relation to the child; and
To spend time with the child; and
To communicate with the child.
In looking at the extent to which the father has taken the opportunity to participate in making long-term decisions, spend time with young X or communicate with him, I can see throughout the material that he has been constantly agitating for more time for years. He has been agitating to be kept informed about decisions. In the material previously filed by the parties that from the father’s perspective the mother tended to move around without always giving him notice and that on his case she has done this before in relation to her child from her previous relationship (young X’s half sister) and that this has been a source of anxiety and complaint by the father for many years.
The father went to Court to restrain the mother from leaving Victoria to Queensland after he heard that is what the mother planned to do. This does not seem to be disputed by the mother, who wrote to the father on his inquiry as to whether or not he was relocating, telling him that she was not doing it permanently. The facts of the matter suggest that the mother was relocating permanently, at least up to the point of trial and that she had relocated much earlier, as I said, and taken up permanent employment.
S.60CC(3)(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
I am satisfied on the evidence before me at this point in time, that the father has satisfied his parental obligations to maintain young X.
S.60CC(3)(d) 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; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
In terms of the likely effect of changes in the child’s circumstances, including the effect on young X of separation from either of his parents, namely, his father or any other child person, namely, the stepfather, and others with whom he has been living. I have had regard to this issue. On the state of play at the moment, young X, as I have said, is in a very difficult position. The circumstances were that X had only just relocated to Far North Queensland to move in with his mother, who had already relocated there.
This happened, as I said, within two days of orders being handed down. I note that it is the position of the stepfather that, having now relocated to Far North Queensland from Victoria, he does not intend to return to Victoria. I note that the father has been living in Victoria, seemingly for all of his life. He has his fiancé in Victoria. He has his mother, with whom he lives, being the paternal grandmother, and family in Victoria. It would be highly disruptive for the father to relocate on an interim basis to (omitted) or at any stage, but particularly on an interim basis.
It seems, therefore, that the Court at this time is faced with the options of young X living either in Far North Queensland or in Victoria. He is therefore going to miss either one of them, the stepfather or the father, on either arrangement. The applicant stepfather and father, apparently, have put in place by consent, as advised by the ICL, arrangements that X is to spend regular time with the other parent. I commend the parties for realising that X needs to spend time with each of the parties and that is to happen, as I have referred to earlier, with X travelling one month and the adult individual travelling, namely, the stepfather, the other month.
The effect of the child in remaining in (omitted) on the stepfather’s proposal will be that X will not have available to him nearly as much regular and routine physical contact with his father. He will not have anywhere near as much regular and routine contact with the paternal grandmother, with the father’s fiancé, with whom I understand he has a good relationship, on the material. He will not have available to him on a regular, ad hoc basis the comfort and love of his half-sister, with whom I have every reason to believe, on the material, he has a good relationship.
Young X’s relationship with his half-sister, in my view, is very important, particularly at this time in his life when he has lost his most significant female relative, namely, his mother. Her daughter, his half sister, would no doubt be and will become a most significant person in his life. There is obviously affection between young X and his sister and they have a shared loss. The availability of the child spending time with his half-sister is extremely important. She herself has a boyfriend and I can see that there have been agreeable social engagement and family times which are not available in (omitted), between all of these young people.
Similarly, the father has brothers with children and so young X is fortunate to have numerous uncles and cousins in Victoria. The father’s sister is also a strong part of the family circle. While X remains living in (omitted), he remains living in a somewhat isolated circumstance of absolutely no relatives. Even his maternal relatives are available to him in Victoria, albeit they do not live in the same place as the father and arrangements would have to be made to allow for travel and so forth.
I consider it is extremely important for X to have access to all of these relatives and to have an opportunity to spend time with his maternal grandparents, the mother’s sister and the mother’s relatives. All of that opportunity is far more available to him in Victoria. It is not available to him whilst living in (omitted). As I have said, young X has only just moved to (omitted) at the time in October 2014. He had seemingly been plonked into a school at the end of the year and he has had, on the subpoenaed material, a very negative experience at (omitted) School at the time he has been there.
This is very apparent from the subpoenaed material, which talks about X running away from (omitted) School and his mother complaining about X not being used to what she thought was a roughness in the schoolyard and school previously unknown to young X. That is referred in a report of 28 November 2014 in the subpoenaed material, in which the school contacted the mother to let her know that X had run away from school and was missing - that he was seen walking off whilst the class was lining up after second lunch and had not returned.
The mother stated he was possibly hiding somewhere and the mother stated he was “not coping with the new school”. And to quote the mother, she said, “he is not coping with the naughty kids who swear and name call and come from low socioeconomic backgrounds”. She also said if he had not been found in half an hour she would call the police. Young X was found later that day. The mother then came to the office, picked him up and then said that X wanted to go to after school care so she would drop him off there. No doubt the mother had to go back to work.
The mother commented on his high level of autism being a factor in his running off and hiding and that she would have a good talk to him and thanked the school. There was also an incident on 16 October 2014 not long after X started on 8 or 9 October 2014 in which X was punched by another student. That is set out in the subpoenaed material. The school had contact with the mother about that. The deputy principal wrote to the mother, setting out the relevant stories of the particular children involved.
I note overall in this matter that X was removed from his school in Victoria to a new school very hastily after the orders were made and moved from one state to another no doubt with different syllabuses. Similarly, after X’s mother was accidentally killed on (omitted) January 2014, X was taken back to school to start the new year on 27 January 2014 by the stepfather , only several days after his mother’s death. . There was an interview with the school, meeting the stepfather to offer support for X.
The school also initiated contact with X on the (omitted) January 2014 when X returned to school and told young X where he can get support from the school.
I note also that on the (omitted) January a guidance officer met with X and his stepfather before school. The record reads:
Guidance officer met with X and his stepfather, Mr Rhoades, before school. Introduced myself to X and asked if it would be okay to get him from his class later that day and he said yes and asked for it to be after the first lunch break. X appeared very sad and withdrawn and was holding onto Mr Rhoades. He did not seem to want to go to class. Mr Rhoades said he would take him to class and return for a talk with me afterwards. He returned 20 minutes later, saying it had taken that long to get X to feel settled in class.
I queried whether he would be all right to be at school and Mr Rhoades said, “We will just have to see.” Mr Rhoades stated that he had spoken to the solicitor yesterday and felt there was a very good chance that X would be remaining with him. I advised I would call Mr Rhoades if there were any concerns about X today.
I must say, I am somewhat surprised to see that X was taken to school on (omitted) January by his stepfather when his mother was killed on (omitted) on the weekend. The stepfather told the school on the (omitted) that the child wanted to come to school that day but was very disconnected. The note of the teacher says:
I offered to meet with X and offer support but not to interrupt his day if he seemed to be coping well. Mr Rhoades was supportive of this and provided his mobile number in case I had any concerns. Mr Rhoades stated that there were legal issues ongoing and he intended to seek custody.
Young X at that stage, according to the father, was back at school, contrary to his agreement with the stepfather, which he said he made after the accident and when the father spoke to the stepfather and agreed to return X to (omitted). This, of course, culminated in the father, (having heard that X was back at school), attending at the school, and with the agreement of the principal, removing X from school on the (omitted) January 2014 and returning him to live with the father in Victoria.
At the time the father attended at the school, I can see in the material that X was comfortable with the idea of moving to Melbourne, as reflected in the notes, and the principal observed that X showed no sign of discomfort or anxiety when speaking with his father and he said that he had a preference to go now rather than wait around for the rest of the day to transpire. I note also that the records show the principal organised for young X to say goodbye to his friend (omitted) and to provide the details of (omitted)’s contact details to X.
The decision of the stepfather to take X to school on (omitted) January 2014, after his mother was killed 3 days prior is, as I said, one that at some levels surprises me in many respects. Certainly, in the father’s material, he alleges that this was not agreed to by himself and was contrary to an agreement he made with the stepfather. I am particularly surprised at this decision, given the context of young X’s very rocky start with the school and the difficulties that he had encountered in addition to his autism issue.
The applicant draws my attention to the fact that there is a family report in existence prepared for the last trial, which never proceeded and which family report was therefore never tested, and I am asked by the applicant to focus on a passage that says:
The father may not have the ability to place X’s needs ahead of his own.
I will be interested to hear at the trial how this pans out for both of these parties. That family report observations may be validated, . I do not know but, as I said, it has never been tested by way of cross-examination and there have been no findings. In my view, at this stage, as the material currently stands, the father has acted sensitively in agreeing first that X could go back to (omitted) after he had been down in Victoria for weeks prior to the day his mother was killed. The father alleges he made an arrangement that X ought not go back to school in this interim period. The stepfather, for his own reasons, has obviously decided that X will go to school and he says he did this because X wished to do this.
I am sure that young X at age nine would not really know what was good for him at that time and I also am sure that this was a difficult decision all round. However, he has been very quickly placed in school after the orders were made for relocation and I am not surprised he had a difficult time in settling in, starting very late in the year when all the friendship groups have been formed and being removed from his school in Victoria where he had been for some time with a different syllabus in another state, having autism or traits of autism, and such a significant change in living circumstances, with his school friends and teachers.
I am not sure that this issue of young X being sent back to school so quickly has been dealt with very sensitively. Whether or not it was the right decision to send him to school three days after his mother died and to a school that he has obviously been having significant difficulties at remains to be seen. No doubt that will be explored at trial. However, I am certainly not prepared to make a conclusion at this point, as I am asked to do, that the father has been insensitive and does not have the ability to place X’s needs over his own.
Overall, in looking at the likely effect of any changes and the effect on the child of separation from either parent or other child or other person with whom he has been living, and having regard to the respective orders being sought, I have some reservations about the benefits of the applicant’s proposal for X to remain living in (omitted), given the solitude in which he would be living, the lack of maternal and paternal relatives, no sibling and obviously lack of and ongoing regular contact and physical contact with his father, who, at this time, I consider is aware of X’s emotional wellbeing.
I am also not prepared to be critical of the father, as I was asked to be, about his statement to the report writer that if X does not live with him that this will probably kill himself. The submission was in some respects inappropriate. This is an emotional time for everyone in these two families. The father has, as I can see in the records, for years been struggling with a life-threatening illness himself of leukaemia. I am not prepared to be critical of him for making such a comment in the context that from his perspective he has struggled to even spend time he sought with X. Then finally, after years of litigation getting orders for regular time, after having built up his time slowly and having years in which his time was limited, (either, on his evidence, due to the mother’s restrictions or due the demands and pressures of his serious illness) to now find, as the only remaining biological parent, that he faces a new challenge, this time from the stepfather – is in my view, in these circumstances perhaps not unexpected.
Moreover, I consider that the comment ought to be taken in the context of what is happening in this matter. Whether or not it was the right decision for the father to come and remove the child from school and the stepfather, again, is an issue which remains to be determined at the final hearing. Whilst the Family Law Act makes it very clear that on the death of a parent the other parent cannot “require” the child to live with them, no doubt the father considered that the stepfather had failed to carry out their alleged agreement about the interim arrangements following the mother’s death. The father did his own research regarding his ability to make the decision regarding X, and followed through on it.
He was then a parent with effectively sole parental responsibility and it was a decision that the father made about his son, about where he would live and about where he would educated. All of those issues fall within parental responsibility. Unfortunately, as it can be seen in the material, the stepfather had as a high priority that he was going to institute proceedings for X and he did this within a few days of the mother’s death and litigation arising in these circumstances is always going to, with respect to each of the parties, bring out emotions and attitudes which might not otherwise be there.
So there are positions that can be put forth by either party in relation to this very awkward situation. However, what I am satisfied about on an interim basis is that X is now doing very well at his school in Victoria, where the father has placed him. I accepted that young X attended the funeral with his father and, as his father said, he sat with friends from school – his current school in Victoria– and he sat also with his sister. It is, as the ICL submitted to me, not difficult to conclude that X is doing well in his new school and that this is in fairly stark contrast to his schooling experience in (omitted).
I note, in relation to that experience in (omitted), that on (omitted) January Mr Rhoades attended school to clarify the “behaviour management system with X”, that he spoke to Ms S and that X was happily playing before school and he was concerned about the behaviour management incentive. Mr Rhoades stated that “X was choosing not to do what I asked as he did not want stamps for sweets.” The records say:
I informed Mr Rhoades that I am setting up expectations of book work and I was monitoring work to make sure it was glued in. I saw X was taking his time and I asked another student to help him. He did receive a stamp as the job was done. However, I stated clearly that sweets are not a reward. I clarified the behaviour management and stated I would also go through this again with the whole class and show the class some prized examples.
There seems to have been some confusion about what the behaviour management incentives were. I can see entries as well, talking about the mother and her engagement with the school and the mother herself explained in that notations that she herself felt unwelcome at the interview at school. So all in all, this was not a positive experience, it seems, either for the mother or for young X.
S.60CC(3)(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
The parties themselves have agreed that the child will travel from Melbourne to (omitted) and return or (omitted) and Melbourne and return, once a month and the other parent will travel on the month in between. At this stage, they have dealt with the issue of the vast distance between (omitted) and Melbourne. On a final basis, this issue will no doubt be explored in more depth.
S.60CC(3)(f) The capacity of each of the child’s parents; and 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
In looking at the capacity of the child’s parents and any other person, pursuant to section 60CC(3)(f) to provide for the emotional and intellectual needs of the child, I am satisfied that the father has the capacity to provide for the emotional wellbeing of X and that he has the capacity to provide for his education and that he has organised for appropriate schooling. Indeed young X is having a much happier experience in the school he is now attending in Victoria according to the evidence before me.
I note that the father has also organised additional grief counselling and I refer to the report obtained by the father and note that he is intending to continue with that engagement. I am satisfied also, though with a little reservation, that the stepfather has capacity to provide for X’s emotional needs, subject, as I said, to dealing with the matters that I have had some disquiet about referred to in these reasons. I am satisfied in terms of relationships that X has a very good relationship with his stepdad and that X has been glowing about the stepfather being the sort of father that X would want.
There is no doubt X loves his stepfather and they have had a loving relationship in the context of a family unit of his mother and his stepfather. That dynamic will be, in my view, quite different in the future with the absence of the primary parent, being the child’s mother, not being in that family grouping. While I am a little unsure about the father’s capacity to encourage a relationship with all of the maternal family, given the tone of some of the texts received by him and that have been exchanged (including suggestions by the step father allegedly speaking on behalf of the maternal family, that the father ought not to attend the funeral) and given the animosity which has arisen but which I expect to be temporary, I accept the submission of the ICL that these two fathers find themselves in very, very difficult circumstances.
S.60CC(3)(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
I have nothing to add under this section.,
S.60CC(3)(h) If the child is an Aboriginal child or a Torres Strait Islander child, 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 the likely impact any proposed parenting Order under this Part will have on that right
Not applicable.
S.60CC(3)(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
I am satisfied the father has shown responsibilities towards parenting and that he has always attempted to play the role of the father in X’s life. This is not a matter where X has a psychological father that has been the father figure in the absence of the biological father. This is a matter where X has a father and he also has a stepfather. Young X is lucky to the extent to have these two fathers in their respective roles in his life and as the ICL submits, he needs to spend time with each of them. Regretfully, the stepfather is not prepared to return to Victoria, albeit it seems he has only recently moved to (omitted).
He says he has health issues which prevent him from doing so. There were also submissions made that it was difficult or impossible for him to do so because he has a house that has tenants in it. Quite frankly, I do not accept, even on an interim basis, from what I know of the finances and the arrangements, that it is not possible for the stepfather to make arrangements to return to either rented accommodation or any other accommodation. I am satisfied that he has made a decision about his own health and that is a matter for him.
S.60CC(3)(j) Any family violence involving the child or a member of the child’s family
Not applicable.
S.60CC(3)(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:
the nature of the order;
the circumstances in which the order was made;
any evidence admitted in proceedings for the order;
(iv) any findings made by the Court in, or in proceedings for, the order;
any other relevant matter.
Not applicable.
S.60CC(3)(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
These are interim orders at this stage and there will be further orders, though I am minded to give these parties a chance to attend mediation and genuinely discuss this matter before progressing the litigation.
S.60CC(3)(m) Any other fact or circumstance that the court thinks is relevant
I have nothing to add.
60CC(2) The primary considerations are:
The benefit to the child of having a meaningful relationship with both of the child’s parents
In terms of the relevant primary considerations, I am satisfied that it is in young X’s best interests to have a meaningful relationship with his father. How the arrangement is to work, given the distance, is another matter. I am also satisfied that given their long-standing loving relationship it is in X’s interests to have a meaningful relationship with his stepfather. Those arrangements have to be framed within the restrictions of distance and cost of travel and opportunity.
In terms of the father, I am satisfied it is in young X’s best interests to have a meaningful and ongoing relationship with his father. This is particularly so in the tragic circumstances which young X now finds himself, with his mother now deceased and X having only one biological parent remaining. I have had significant regard to this consideration.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
I do not need to have regard to protecting the child from abuse, neglect or family violence as there is no evidence to suggest that X is at any risk of any of these matters whilst he’s in the care of the father and, for that matter, whilst he’s in the care of the applicant stepfather. As I have already referred to, parental responsibility means all the duties, powers, responsibilities and authority which by law parents have in relation to children.
Conclusion
I have taken account of X’s views and the other relevant section 60CC matters pertaining to the father and separately to the stepfather, being a non-parent. I note the ICL in this matter supports X remaining with his father and has indicated to the Court that X appears to be very settled, he has enormous family support in Victoria and that this is a time when he should have the opportunity to receive love and affection from his family on both sides, including his father. The ICL says in regard to young X spending time with the step father that:
He should spend as much time as is physically possible with his stepfather.
I accept the force of those submissions.
I have had regard to all of the relevant section 60CC matters and I am satisfied overall that it is in young X’s best interests to remain living on an interim basis with his father in Victoria. I am satisfied that he is very happy in his schooling in Victoria, that he is settled and that he has had a much more positive experience of the school in Victoria than he did at the (omitted) School in (omitted). I am also satisfied there is much more opportunity for young X’s engagement with his extended paternal family, with his father, with his sister, his aunt and grandmother and, of course, to have the love and affection afforded to him by his father.
If the stepfather were to live in close proximity to the father, I would see an arrangement with much more regular opportunity arising to spend time with X. However, this is not to be. Whilst there is no presumption in favour of a biological parent, I am also satisfied at this time of great loss it is important for X to have the opportunity to live with his father, as I have said, and I am mindful that his own father has suffered from a previous illness of leukaemia. Given the orders I have made about equal shared parental responsibility, it is obviously not open to the Court to consider equal time, given the geographical distances.
Significant and substantial time may be possible, given that there may be opportunities for time to be spent on school days and non-school days. I am satisfied that it is appropriate and in X’s best interests that he have the opportunity of spending such time with a stepfather as can be possible in either (omitted) or Victoria in line with the orders I intend to make.
What I propose to do is to allow some time for discussion and thought and have the matter brought back to me. My earliest future return date now is October so the matter will be mentioned again before me on 13 October at 11.30 am. Each of the parties have leave to appear by phone on the basis that they contact the Registry beforehand and provide their telephone numbers. At that time, I will ask each of the parties to inform me of their position in relation to final orders and the Court will proceed to make orders for the necessary forensic reports to be prepared at that point.
I would take the opportunity to urge each of the father and stepfather to attempt to resolve the matter as they are each much loved individuals as far as X is concerned. Obviously it would be ideal to have both of these people living at the same place and with young X moving freely between them. That would be X’s ideal. However, I am aware that there are a lot of practical issues for each of the adults concerned and it may be necessary for compromises to be made. It is, however, in my view, entirely possible for X to have a meaningful relationship with both parties if there is good will in these very, very difficult circumstances.
I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of Judge Willis
Associate:
Date: 10 July 2015
Key Legal Topics
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Family Law
Legal Concepts
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Jurisdiction
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Consent
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