Rocha & Kerman
[2023] FedCFamC2F 1524
•29 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rocha & Kerman [2023] FedCFamC2F 1524
File number(s): CSC 461 of 2022 Judgment of: JUDGE COPE Date of judgment: 29 November 2023 Catchwords: FAMILY LAW – Parenting – relocation – where mother seeks to relocate from City B to Brisbane – where father opposes relocation – family violence – discussion of s 60CC considerations – order made for equal shared parental responsibility – where mother will facilitate child’s time with the father – where the Court is satisfied that the child’s relocation to Brisbane with the mother is in her best interests – orders made for child to spend time with father in both Brisbane and City B. Legislation: Family Law Act1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 65AA, 65DAA Cases cited: A v A: Relocation Approach (2000) FLC 93-035
AMS v AIF; AIF v AMS (1999) FLC 92-852
B and B: Family Law Reform Act 1995 (1997) FLC 92-755
Godfrey v Sanders (2007) 208 FLR 287
M v M (1988) 166 CLR 69
Mazorski v Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
MRR v GR (2010) 240 CLR 461
Sigley v Evor (2011) 44 Fam LR 439
Taylor and Barker (2007) FLC 93-345
U v U (2002) FLC 93-112
Zahawi & Rayne [2016] FamCAFC 90
Division: Division 2 Family Law Number of paragraphs: 125 Date of hearing: 4-5 September 2023 Place: Cairns Counsel for the Applicant: Mr Williams Solicitor for the Applicant: WGC Lawyers Counsel for the Respondent: Ms Stocks Solicitor for the Respondent: Reaston Drummond Law ORDERS
CSC 461 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR ROCHA
Applicant
AND: MS KERMAN
Respondent
ORDER MADE BY:
JUDGE COPE
DATE OF ORDER:
29 NOVEMBER 2023
THE COURT ORDERS THAT:
Parental Responsibility
1.The mother and the father will have equal shared parental responsibility in consultation with each other for making decisions about major long-term issues for X born in 2018 (“the child”) including but not limited to:
(a)The child’s education (both current and future); and
(b)The child’s religious and cultural upbringing; and
(c)The child’s health; and
(d)The child’s names/name; and
(e)Changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
2.Notwithstanding Order 1 herein:
(a)The mother will be responsible for the day-to-day care, welfare and development of the child whilst the child is living with her;
(b)The father will be responsible for the day-to-day care, welfare and development of the child whilst the child is living with him.
Living Arrangements
3.The child will live with the mother.
4.The mother be permitted to relocate the child to live with her in Brisbane from 1 January 2024.
5.The mother will enrol the child in C School in Suburb D, Brisbane.
6.Until 1 January 2024, the child will spend time with the father as agreed between the parties, but failing agreement for 7 nights per fortnight as follows:
(a)Up to 2 nights from Monday at the conclusion of daycare until Wednesday at the commencement of daycare in week one;
(b)Up to 5 nights from Friday in week one at the conclusion of daycare until Wednesday in week two at the commencement of daycare; and
(c)Changeover will take place at daycare and if a non-daycare day, at the E Playground in Suburb F.
Christmas Holidays 2023
7.For the Christmas school holidays (Queensland) in 2023, the child will spend time with each parent as agreed between the parties but failing agreement as follows:
(a)From the conclusion of daycare on 20 December 2023 until 2:00pm Christmas Day with the mother;
(b)From 2:00pm on Christmas Day until 4:00pm on 1 January 2024 with the father;
(c)From 4:00pm on 1 January 2024 the child shall be with the mother until 4:00pm on 8 January 2024;
(d)From 4:00pm on 8 January 2024 the child shall be with the father until 4:00pm on 15 January 2024; and
(e)From 4:00pm on 15 January 2024 the child shall be with the mother until the commencement of school on 22 January 2024.
From the commencement of the 2024 school year
8.During school terms, the child will spend time with the father as agreed in writing between the parties, but failing agreement as follows:
(a)On two occasions each month for a block of up to seven days on each occasion, with the time to occur in Brisbane on the following terms and conditions:
(i)The father will provide the mother with at least 14 days written notice of the intended dates and an address for the accommodation or residence where he will be staying with the child.
(ii)Changeover will take place at the father’s accommodation or the child’s school.
(iii)The father will ensure that the child continues to attend school during this time.
(iv)There must be a minimum seven-day period in which the child lives with the mother after each block in the father’s care, so that the time in this order is not arranged consecutively.
(b)In addition to Order 8(a), the father is at liberty to attend school events and special events such as the child’s first day of school. The mother will inform the father of such events and facilitate the father spending time with the child in the event that the father travels to Brisbane to attend such events.
9.During the mid-year school holidays, the child will spend time with the father as agreed in writing between the parties, but failing agreement:
(a)for one half, by number of nights, of the March/April and June/July holidays (Queensland) each year, being the first half in odd numbered years and the second half in even numbered years, and
(b)the whole of the September/October school holidays each year from the first Saturday immediately after the last day of term.
10.During the Christmas school holidays each year, the child will spend time with the father as agreed in writing between the parties, but failing agreement as follows:
(a)From 12:00pm (noon) on the first Saturday of the school holidays until no later than 12:00pm (noon) on 31 December in odd numbered years; and
(b)From 12:00pm (noon) on 31 December until no later than 12:00pm (noon) on the last Saturday of the school holidays in even numbered years.
Changeover
11.Changeover will take place at the child’s school or, on a non-school day, at the mother’s house unless otherwise specified in these orders or agreed between the parties in writing.
Special Occasions
12.On special occasions the child will spend time with each parent as agreed between the parties but failing agreement as follows:
(a)On the father’s birthday, if the child is not living with the father on that day, the child will spend time with the father from the conclusion of daycare/school, or 1:00pm if the child does not attend daycare/school, until 7:00pm.
(b)On the mother’s birthday, if the child is not living with the mother on that day, the child will spend time with the mother from the conclusion of daycare/school, or 1:00pm if the child does not attend daycare/school, until 7:00pm.
(c)On the birthday of the child, the child shall spend time with the parent with whom they are not living on that day from the conclusion of daycare/school, or 1:00pm if the child does not attend daycare/school, until the commencement of school the following day.
(d)On the birthday of the child’s brother G, if the child is not living with the mother on that day, the child will spend the day with the mother from the conclusion of daycare/school, or 1:00pm if the child does not attend daycare/school, until 7:00pm.
(e)On Father’s Day (Australia), if the child is not living with the father on that day, the child will spend Father’s Day weekend with the father from the conclusion of daycare/school on Friday to the commencement of daycare/school on Monday morning.
(f)On Mother’s Day (Australia), if the child is not living with the mother on that day, the Child will spend Mother’s Day weekend with the mother from the conclusion of daycare/school on Friday to the commencement of daycare/school on Monday morning.
(g)From and including 2024, the child will spend Christmas with each parent as agreed in writing, or failing agreement as follows:
(i)From 4:00pm on 20 December until 2:00pm on Christmas Day with the mother in even numbered years and with the father in odd numbered years; and
(ii)From 2:00pm on Christmas Day until 4:00pm on 1 January with the father in even numbered years and with the mother in odd numbered years.
13.Where the parents are not in the same town and face to face time cannot be facilitated on special days, then a facetime or other video call will be initiated by the parent who has the child in their care at the time that the face to face time was scheduled to commence.
Airfares – School Holidays
14.Until the father relocates to Brisbane, in the event that he chooses to do so, the parties will equally share the cost of the child’s airfares relating to changeover for the purposes of school holidays as follows:
(a)The mother will book and pay for the child’s airfares from City B to Brisbane; and
(b)The father will book and pay for the child’s airfares from Brisbane to City B.
15.The mother (or an agreed third person) will accompany the child on all flights from City B to Brisbane and the father (or an agreed third person) will accompany the child on all flights from Brisbane to City B until such time Order 16 applies.
16.Upon the child attaining the age of 10 years, the parents are at liberty to book flights for the child to travel as an unaccompanied minor.
Airfares and Accommodation – School Terms
17.For the first 12 months after the mother relocates to Brisbane, the cost of the child’s time with the father during school terms in accordance with Order 8 shall be met by the father and shall be contributed to by the mother as follows:
(a)The father will book and pay for his return airfares from City B to Brisbane; and
(b)The father will book and pay his accommodation in Brisbane;
(c)Noting the provisions of Order 8(a)(i), no less than seven (7) days prior to the travel on each occasion the mother will contribute the sum of $600 to be paid into a bank account nominated by the father;
(d)The cost of travel and accommodation and any other cost of spending time during the school term are otherwise the father’s sole responsibility.
18.After 12 months the father will be solely responsible for the costs of travel and accommodation incurred for time spending during school terms.
Communication
19.The parents will communicate by a co-parenting app in relation to parenting issues and by telephone or in person on occasion of emergency or urgent circumstances.
20.The parents will keep each other informed at all times of any treating medical or other health practitioner who may treat the child.
21.The parents will inform the other parent as soon as reasonably practical of any medical condition, significant health issue or illness suffered by the child.
22.The parents will keep each other informed at all times of their residential address and landline/mobile contact number and notify each other within 48 hours of any change.
Video or Telephone Communication
23.The child will communicate with her parents by video or telephone call on such days and times as agreed by the parties, and failing agreement, the parent who does not have the child in their care will initiate the call each Wednesday and Sunday between 5.30pm and 6.30pm. The days and times of the calls may be varied by written notification at least seven days in advance in order to accommodate any extracurricular activities or special events.
24.In addition to the preceding order, if the child expresses a wish to speak to the other parent, the parent with whom the child is living will at that time assist the child to video call or telephone the other parent at all reasonable times.
25.For the purposes of the video or telephone communication each parent shall:
(a)Ensure the child is available to receive the call;
(b)Ensure that the parent’s mobile telephone or relevant device is operational at that time;
(c)Provide the mobile number or relative device for the child to operate;
(d)Ensure the child has privacy during the conversation;
(e)Ensure that such conversations are not interrupted;
(f)Arrange for the child to telephone the other parent on the following morning if, for any unforeseen circumstances, the child misses the telephone call from that parent.
Travel
26.The parents are permitted to travel within Australia with the child when the child is spending time with the parent pursuant to these orders.
27.In the event that the child is travelling more than 300km away from the parent’s ordinary place of residence, the parent travelling with the child will provide to the other parent at least 7 days notice of the child’s travel, the child’s flight travel itinerary and accommodation details, and ensure that time is to take place during the time that the child is in that parent’s care unless otherwise agreed in writing.
International Travel
28.Both parents are permitted to remove the child from the Commonwealth of Australia for the purpose of overseas travel, subject to the following:
(a)The international travel is to take place during the time that the child is in the travelling parent’s care pursuant to these orders; or
(b)On one occasion per calendar year, the international travel may take place and extend beyond the travelling parent’s regular care schedule, for travel of up to four weeks total duration, but which includes no more than two weeks of the school term.
29.The following further provisions apply to overseas travel:
(a)The travelling parent will provide to the non-travelling parent at least four weeks written notice of the intention to travel including dates of travel.
(b)Forthwith upon receipt of any such notice, the non-travelling parent shall provide to the travelling parent the child’s passports.
(c)Two weeks prior to departure the travelling parent is to provide to the non- travelling parent:
(i)Copies of return tickets;
(ii)Copies of itinerary for the child; and
(iii)Address and phone contact for the child during the period they are away.
30.Each parent is permitted to travel overseas with the child provided that such overseas travel is, other than for the purposes of transit, restricted to countries which are signatories to the Hague Convention on the Civil Aspects of International Child Abduction during their specific periods in which the child spends time with that travelling parent.
31.Neither parent shall take the child to a country that is listed as Level 3 or above on the Smart Traveller website.
32.In the event that international travel (unless it is in the case of an emergency) reduces the other parent’s time with the child pursuant to these orders, then that parent will be provided with makeup time either before travelling and/or after the travelling parent returns with the child.
33.In the event that a parent requests additional international travel in the event of an emergency such as a grave illness by a relative, including grandparents, or to attend a funeral, the other parent will use their best endeavours to facilitate the child travelling at short notice.
Passport
34.Both parents will execute a Passport Application and will do all things necessary to direct and authorise the Department of Foreign Affairs and Trade, and the relevant department responsible for the issuing of a Country H passport, to issue a passport for the child.
35.Both parties will share the cost of any passport application or renewal equally.
36.The child’s passports are to be held by the parent who last travelled with the child and will be made available to the other parent in accordance with these orders.
37.In the event that either party fails to do all things necessary, and sign all such necessary documents, the Department of Foreign Affairs and Trade, and the relevant department responsible for the issuing of a Country H passport, are hereby requested to issue a passport for the child, notwithstanding that a party has not provided his / her consent to the issuing of a passport.
38.In the event that the child’s current passport expires and prior to it expiring, the parties are to sign any and all such necessary documents so as to lodge an Application for renewal / re-issue of a passport with the Department of Foreign Affairs and Trade or the relevant department responsible for the issuing of a Country H passport.
39.In the event that either party refuses or neglects to sign such documents as may be necessary for the re-issue of the child’s passport within fourteen (14) days of a request by the other party to do so, the passport is to issue, notwithstanding that a party may refuse or neglect to sign the Passport Application as may be necessary for the re-issue of the child’s passport.
Non-Denigration Clause
40.During the time the child is with either parent, and during any other communication with the child, that parent will:
(a)Respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b)Speak respectfully of the other parent, their partner and other family members;
(c)Not denigrate or insult the other parent, their partner or other family members in the presence or hearing of the child;
(d)Use their best endeavours to prevent any other person denigrating or insulting the other parent, their partner or other family members in the presence or hearing of the child.
Procedural
41.All outstanding applications be removed from the pending cases list.
NOTATION
A.Pursuant to section 65DA(2) of the Family Law Act 1975 (Cth) 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.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE COPE
The court is asked to determine the parenting arrangements for the child X born in 2018 (‘the child’). At the time of trial the child was four years of age. She turns five in 2023 and is due to start prep in 2024.
The parties are the child’s parents. They commenced living together in 2015 and separated on 23 November 2021. They initially separated under the one roof until the husband moved out on 20 January 2022.
The mother has a son from a previous relationship, G. He is 11 years old and lives with his mother. His father lives at Town J and has occasional contact with G.
The father has two daughters from a previous relationship, being Ms K who is 19 years and L who is 12 years old. Both children live with their mother in Country M. The father has limited contact with them.
The mother has re-partnered post separation with Mr N who lives in Brisbane. Mr N has two children from a previous relationship, being O who is 12 years and P who is 10 years old. They live between him and his former partner in an equal shared care arrangement. The mother seeks to relocate with the child to Brisbane.
The mother’s evidence is that she and Mr N have been in a relationship since early 2022 and had known each other for about six months prior to that time. They became engaged in the lead up to the trial.
The father gave evidence that about two months prior to the trial he had re-partnered with Ms Q. Although they do not live together his evidence is that she stays in his home five or six nights each week. She has filed no affidavit evidence in these proceedings and was not interviewed by the Family Report writer so she is an unknown factor.
Current living arrangements
There is some dispute about the arrangements immediately after the father moved out but he certainly concedes that he did not have his own accommodation for some time and that he travelled away from City B for block periods.
In about July 2022 a week about arrangement started. The mother’s evidence is that this was imposed upon her by the father against her express objections.
At the time the Family Report was completed in March 2023, the child was still living in a week about arrangement. The Family Report writer recommended a reduced time for changeovers given the child’s young age, supporting a four night/three night arrangement. While the mother supported that proposal, the father was not agreeable. In accordance with his proposal a five/two/two/five arrangement commenced in about May 2023 and remains in place.
There are no interlocutory orders or signed parenting plans, although an unsigned parenting plan provided for a three/four/four/three living arrangement.
Competing Proposals
Both parties are adamant that they will not be living in the same town. Their final positions at trial were different from each of their formal applications.
The mother’s position is that, whatever the decision of this court, she will move to Brisbane in early 2024. The father’s position is that he cannot move to Brisbane, that finances and his business interests in City B will not allow it.
So, the final orders made will involve travel for the parties, and also for this very young child.
The father’s proposal
The father’s final position is annexed to his trial affidavit including his proposal in the event that he is not successful.
In the event that he is successful in his application, the father proposes that prior to the commencement of prep the child live with him and spend time with the mother for up to five days each month in either Brisbane or City B, and half the school holidays.
He proposes that changeovers occur in City B. He proposes that the mother be responsible for the cost of travel for the child spending time with her mother.
From the commencement of prep in 2024, he proposes that the mother spend seven days with the child each month in City B. He also proposes half of school holidays with a special provision for Christmas Day. It was submitted that as the child spent no time with the mother on Christmas Eve and Christmas Day last year, the child should be in her care on those special days in 2023, and that was not opposed by the father.
The father proposes that until she turns 10 years of age, only the parents may accompany the child when she travels and thereafter she may travel as an unaccompanied minor.
The mother’s proposal
The mother’s final position is annexed to her Case Outline document including her proposals in the event that she is not successful in her application.
The mother’s position is that she will not leave City B until early 2024. Until that time, she proposes that the current arrangement continue, and she seeks specific orders for time over the Christmas period.
She proposes that after she and the child move to Brisbane, the father will spend time with the child as agreed but if not agreed, then for two blocks of seven nights each month during school terms with that time to occur in Brisbane.
She also proposes the child spend time with the father for half of the March/April and June/July holidays, and the entirety of the September/October school holidays. She makes specific provision for the Christmas school holidays to ensure that the Christmas period is rotated between the parents.
She proposes that after she relocates the changeovers occur in Brisbane.
In relation to the cost of that travel, once she has moved to Brisbane the mother proposes that she will contribute $300 for each return airfare booked by the father and $300 towards accommodation each time he travels to Brisbane for time spending. This contribution would be for a period of 12 months only and she proposed that it be paid directly towards the cost rather than to the father.
In the event that the parents are in the same location, the mother proposes the child spend time with both parents on special occasions and failing that a FaceTime call.
In relation to the cost of the child’s travel during school holidays, the mother proposes that she will pay for the child’s travel to Brisbane at the conclusion of her time with the father. In submissions it was proposed that she will contribute $300 towards the cost of the return airfares.
She also seeks detailed orders in relation to communication between the parents, communication for the child, travel, international travel, passports for the child and non-denigration clauses.
The mother proposes that until the child turns 10 years of age, the mother or her nominee may accompany the child to City B and the father will accompany the child on her return to Brisbane. In exploring this, it was the mother’s proposal that Mr N be able to accompany the child at times when she was not herself available. Once she turns 10 years, the mother proposes that the child travel as an unaccompanied minor.
Family Violence Allegations
The mother alleges that the father perpetrated family violence against her. In particular, she alleges that the father perpetrated family violence including coercive control during the relationship and post separation. She alleges emotional and psychological acts of violence. This includes a Facebook post about the mother being unfaithful in the relationship.
Her affidavit gives evidence of abusive and demanding text messages sent to her by the father. He concedes those messages.
The mother alleges that she suffers insomnia and anxiety and that this conduct has affected her ability to work, however no medical evidence is provided.
Child Abuse Allegations
The father alleges the mother is an abusive parent. He alleges the mother is “volatile and can be violent”, that the mother has “a history of violence and having an aggressive demeanour and explosive temper” and that he had:[1]
… often had to step in to intervene with [Ms Kerman]’s physical and verbal violent behaviour against the children, which often lasted for hours, as [Ms Kerman] is unable to calm herself down and come to reason. This included strangling, hitting and very abusive screaming…
[1] Affidavit of the father filed 7 August 2023, paragraphs 118, 142 and 162.
Issues for determination
The parents agree that whatever the outcome they should share parental responsibility. Despite their issues and difficulties they believe that they can communicate and decide together important issues for X.
The significant issues remaining for determination include the following:
(a)Whether there is an unacceptable risk of harm for X in either household;
(b)Whether it is in the child’s best interest to relocate to Brisbane with the mother or stay in City B with the father;
(c)What configuration of time is in X’s best interests in either event;
(d)How the cost of travel for X to spend time with her parents should be met;
(e)In the event that the mother is given leave to relocate with the child to Brisbane, should only the parents accompany the child when she travels for contact?
MATERIAL READ
An outline of case was filed by the applicant father on 28 August 2023. He relies on the following material listed therein as follows:
(a)Further Amended Initiating Application filed by the Applicant on 28 July 2022;
(b)Affidavit of Mr Rocha filed by the Applicant on 7 August 2023;
(c)Financial Statement filed by the Applicant on 7 August 2023.
An outline of case was filed by the respondent mother on 28 August 2023. She relies on the following material listed therein as follows:
(a)Amended Response filed by the Respondent on 7 August 2023;
(b)Financial Statement filed by the Respondent on 8 August 2023;
(c)Affidavit of Ms Kerman filed by the Respondent on 7 August 2023;
(d)Affidavit of Mr N filed by the Respondent on 7 August 2023;
(e)Notice to Admit Facts and Notice of Disputing Facts.
Expert evidence was relied on as follows:
(a)Affidavit of Dr R, Family Report writer, filed by the Applicant on 21 March 2023;
(b)The Child Impact Report dated 11 July 2022.
The following documents were tendered:
(a)M1 – Annexure R-7 of the father’s affidavit filed on 7 August 2023 – parenting agreement between the father and mother dated 11 April 2022;
(b)M2 – Text messages between the mother and father dated 20 July 2022 to 26 July 2022;
(c)M3 – Text messages between the mother and father dated 26 December 2022;
(d)M4 – Email between the parents dated 7-14 May 2023 in relation to Mother’s Day;
(e)M5 – Email from the mother to the father in relation to making plans for child’s schooling.
At the court’s request, the parties provided their proposed orders to the court in word format.
WITNESSES
The Father
The father clearly loves his daughter very much and desperately wants her to stay in City B. He was however an unreliable and inconsistent witness.
Under cross examination he gave evidence that the mother is a good and loving mother, describing her interactions with the child as “beautiful”, and gave evidence that he continued to support an equal time arrangement.
However, he subsequently confirmed his affidavit evidence that alleged the mother is “volatile and can be violent”, that the mother has “a history of violence and having an aggressive demeanour and explosive temper” and, as noted earlier, that he had:[2]
… often had to step in to intervene with [Ms Kerman]’s physical and verbal violent behaviour against the children, which often lasted for hours, as [Ms Kerman] is unable to calm herself down and come to reason. This included strangling, hitting and very abusive screaming…
[2] Affidavit of the father filed 7 August 2023, paragraphs 118, 142 and 162.
Due to those stark contradictions, I cannot rely on the father’s evidence around the mother/child relationship. I therefore will not accept his evidence as to the risks he alleges regarding the mother.
I am also of the view that the father lacks insight, as he could not see how his own behaviour could cause the child distress or confusion. For example, he saw nothing wrong in telling the child that he did not want to talk about her stepfather, that her stepfather was not nice to him, that her stepfather was trying to take her (X) away from her father, and that her stepfather hurts him (the father). His evidence was that it was his job as her father to protect her. He could not see that by making such statements to her he may cause her confusion and emotional harm – that in fact he was likely exposing her to harm rather than protecting her.
He conceded that he took the child in the car with him when he went to the airport to check up on the mother and where he video recorded the mother embracing Mr N. This action is disappointing to say the least as it exposed the child to the risk of parental conflict and the risk of his own distress at what he witnessed.
The father conceded that he could have done some things better but could not concede that his conduct in preventing time on Christmas Eve (the European tradition) and Christmas Day in 2022 and, more recently, Mother’s Day in 2023 was not child focussed.
The Mother
The mother also clearly loves the child and wishes the best for her. I am however of the view that the mother thinks that what she wants is best for the child and that she pays scant regard to the father’s views.
While the mother and Mr N have not yet lived together permanently, I accept the mother’s evidence that they have each travelled extensively to spend the majority of their time together, spending about $30,000 on travel and related costs.
The mother was quick to get in a reference to the father “street fighting”. She had no need to do so as the father had exposed himself in other ways. Indeed this evidence told me more about her than about the father.
Whilst the mother’s evidence was that the proposed move to Brisbane was motivated by the child’s best interests, and that of her son, I do not accept that. It is for her benefit that she wishes to move; to foster the relationship with Mr N. To move to Brisbane will mean her son changing schools and leaving friends. For X it means leaving her father. The mother reflected little insight as to the potential negative impacts of those changes on the children.
I do not accept the mother’s evidence that but for the father’s consent she would not have progressed the relationship with Mr N. She and Mr N had known each other for six months before they started dating, which commenced prior to the father’s verbal consent to a relocation. I am of the view that if distance was indeed a bar to progressing the relationship then they would never have started dating at all.
The mother is however not required to show compelling reasons and is entitled to seek happiness in a relationship. I do not criticise her for that. I accept her evidence that she hopes and expects that being able to live permanently with Mr N will have flow on benefits for the children including financial and emotional benefits.
I accept her evidence that she believes it is in X’s best interests to have both parents caring for her and that her preference is for the father to move to Brisbane and for the parents and X to all live in the one city.
I do not place the same weight on the relationship of the child and her brother with Mr N as the mother apparently does. I accept that it is a positive relationship, but it cannot be of any significant weight when balanced against the relationship of the child with her father.
Mr N – The Mother’s Fiancé
This witness and the mother both gave evidence that they had become engaged just before the trial. He and the mother had been in a relationship for about a year and a half. This is not a long-term relationship, however given the travel and the cost involved in maintaining that relationship I am satisfied that they are committed to each other. He is not the father of either of the mother’s children, but on the evidence before the court he will be a part of their lives into the future.
During cross examination counsel explored the circumstances around Mr N secretly recording the meeting with the father on 4 April 2022. I am satisfied that the recording of that meeting was an evidence-gathering exercise on the part of Mr N. I do not accept his evidence that it was an impulsive act; that he forgot he was doing it, then remembered only when he took his phone out to take notes after he left the meeting and that he then nonetheless made those notes. To take notes in addition to the recording speaks loudly of the intention.
I was troubled about his evidence that he and the mother would financially assist the father with the cost of travel and accommodation, but only if the father had no other means. I am not sure who would be the judge as to whether the father’s need for financial assistance was genuine. This is particularly so when he also gave evidence that he was of the view that the father was living beyond his means.
I was troubled that despite the mother and Mr N having spent $30,000 on maintaining their relationship, they estimated that the father could maintain his with the child for $15,000 - $20,000 per annum. Nonetheless I accept his evidence that he supports the mother contributing to the cost of travel and accommodation for the father for a set period of time.
Family Report Writer
The Family Report was completed in March 2023. At that time the Family Report writer expressed the opinion that the child was too young for a week about arrangement. She recommended week about not commence until X turns six at the end of 2024. However, if relocation occurs, she supports a week about arrangement. Although she acknowledged the child’s close bond with the father, she was of the view that there was a “slightly” stronger bond with the mother. She supported the child relocating with the mother.
The Family Report writer’s views remained unchanged under cross-examination. She prefers a five/two/two/five arrangement until the child commences Grade 1 but will support a week about arrangement if the parents agree to it, on the basis that she expects they can make it work.
I accept her expert opinion that the father’s criticisms of Mr N have likely created an internal dilemma for the child and caused her anxiety. I accept her opinion that the father is focussed more on what he wants than on the best interests of the child.
I accept her expert evidence that any disruption to the child’s relationship with her brother could cause her major issues.
FINDINGS
Neither parent particularly impressed me with their child focus or insight into the child’s needs. I regard both parents as at times self-focused rather than child focussed. The father was however troubling in his lack of insight and his inability to protect the child from the parental conflict and his feelings about Mr N. The mother presented with a far greater understanding of the child’s developmental needs.
Whilst both parties had differing views about what living arrangements were in the child’s best interests, the mother was willing to accept the advice of the Family Report writer as to the configuration of time that was developmentally appropriate for X at that time. The father was not.
People often behave poorly around the time of separation; there are adjustments to be made and strong emotions to be conquered. The father has however continued to behave inappropriately, as reflected in his behaviour about arrangements on Christmas Day 2022 and Mother’s Day 2023 and as reflected in the communications he sent to the mother around those dates. I do not accept that he thought the mother would be pleased to receive a picture of the child with the cake she baked for her mother on Mother’s Day when he did not facilitate time occurring. In the witness box he conceded no errors in his conduct in denying the child time with her mother on those days or in his communications to the mother. I accept the submissions that his attitude has not changed. I find his conduct and communications around those days to be abusive and not child focussed.
It is noteworthy that property matters have not yet been resolved. This can continue to be a source of conflict and can keep resentments alive.
I am not however critical of the father for not wanting the child to move away. It is natural for people to want things to stay as they are and to not have the added burden and expense of arranging and executing travel and accommodation to spend time with the child.
I am not critical of the father for changing his position. At the time he told the mother and her partner he would also relocate he had not purchased his home and the mother’s new relationship was relatively new. It was over a year ago.
The mother is prepared to move and leave the child with the father. The father is prepared for the child to move away with the mother while he remains in City B. It is hard to be more critical of one parent than the other in that case. Neither is forcing the court’s hand. They are entitled to make those decisions and the court must factor in those positions when deciding what is in the child’s best interests.
THE LAW
This application is governed by the principles set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”). The court is guided by s 60B which sets out the objects of Part VII of the Act and the principles underlying it.
In making parenting orders, s 60CA and s 65AA provide that the best interests of the child are the paramount consideration.
Section 60CC prescribes the various “best interests” considerations that the Court is obliged to consider in arriving at its determination. Section 60CC(2) sets out the two primary considerations, described by Justice Brown in Mazorski v Albright (2007) 37 Fam LR 518 as “twin pillars”. I am required to give greater weight to the second of the primary considerations.
I have considered the following cases as to the definition and import of meaningful relationships:
(a)Godfrey v Sanders (2007) 208 FLR 287 at [36]
(b)Mazorski v Albright (2007) 37 Fam LR 518
(c)McCall & Clark (2009) FLC 93-405
(d)Sigley v Evor (2011) 44 Fam LR 439
The “additional considerations” are set out in s 60CC(3) and I am required to consider all of those issues including parental capacity, the extent to which each parent has fulfilled their parental responsibilities, cultural matters and family violence. No greater weight is placed on any particular additional consideration.
In MRR v GR (2010) 240 CLR 461 the High Court stated that ss 65DAA(1)(a) and (b) and 65DAA(2)(c) and (d) are expressed in imperative terms and oblige the court to consider both the question of best interests and whether it is reasonably practicable to order equal time or significant and substantial time.
A determination as a question of fact that it is in the child’s best interests and reasonably practicable that equal time (or significant and substantial) be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting Order of that kind. It is only when both questions are answered in the affirmative that the Court may give consideration to making an Order for equal time, or if not equal, significant and substantial time.
The relevant principles that assist the court to determine relocation matters are explored in a number of cases, and important guidelines are established in:
(a)B and B: Family Law Reform Act 1995 (1997) FLC 92-755 at 84,194
(b)A v A: Relocation Approach (2000) FLC 93-035
(c)AMS v AIF; AIF v AMS (1999) FLC 92-852
(d)U v U (2002) FLC 93-112
(e)Zahawi & Rayne [2016] FamCAFC 90 at [48]
In deciding a relocation case, the court examines each of the options within the framework of the legislation. Importantly, in determining the issue of potential relocation of a child, the Full Court in Taylor and Barker (2007) FLC 93-345 at [53], held:
… [W]hen dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible (see U v U (2002) 211 CLR 238; (2002) FLC 93-112 and Bolitho v Cohen (2005) FLC 93-224).
APPLICATION OF THE LAW TO THE CIRCUMSTANCES OF THE CASE
Many of the findings that I have made are applicable to the s 60CC factors. I will not necessarily repeat those findings here however where they are relevant to my consideration I have taken them into account.
S 60CC(2) The primary considerations
X is a very young child – she is not yet five years old and is due to start prep next year in 2024. Her connections and attachments at such a young age must be carefully considered.
Both parents give evidence that the child is well attached to and has good relationships with themselves and the other parent. The Family Report writer was of the view that the child “has a positive bond with both parents, and that she enjoys time in their respective company. She was slightly more affectionate with the mother”.[3]
[3] Family Report dated 10 March 2023, p.59.
In M v M (1988) 166 CLR 69, the High Court held that a parenting order ought not be made if such order exposes the child to an “unacceptable risk” of harm. The “unacceptable risk” test has since been authoritatively applied to any potential risk of harm to a child and is not limited to sexual abuse. The “unacceptable risk” is considered in light of each party’s parenting proposals and the availability of any appropriate safeguards.
The father has alleged that the child is at risk of physical harm with the mother stating:
(a)“[Ms Kerman] is volatile and can be violent”;[4]
(b)The child has reported to him that she doesn't want to go back to the mother as “momma is angry”;[5]
(c)The mother has a “history of violence and having an aggressive demeanour and an explosive temper;”[6]
(d)He “often had to step in to intervene with [Ms Kerman]’s physical and verbal violent behaviour against the children, which often lasted for hours, as [Ms Kerman] is unable to calm herself down and come to reason. This included strangling, hitting and very abusive screaming”;[7]
(e)The child had reported that the mother smacks her.[8]
[4] Father’s affidavit filed 7 August 2023, paragraph 162.
[5] Father’s affidavit filed 7 August 2023, paragraph 57.
[6] Father’s affidavit filed 7 August 2023, paragraph 118.
[7] Father’s affidavit filed 7 August 2023, paragraph 142.
[8] Father’s affidavit filed 7 August 2023, paragraph at 150.
Under cross examination the father insisted that this evidence was correct however it was not in his Notice of Risk, and he did not raise it with the Family Report writer. He had earlier in his evidence talked of how “beautiful” their play was and that she was a “great” mother. And despite these extremely serious allegations he continued to support an equal time arrangement. Given those contradictions I do not accept his evidence that the mother is violent or abusive towards the child. I am satisfied that the child is not at risk of harm in the mother’s care.
There are, however, clear risks of psychological or emotional harm arising from the father’s conduct. He conceded the following:
(a)Saying to the child words to the effect that she “has to protect papa from [Mr N]”;
(b)Saying to the child words to the effect that “[Mr N]’s not nice to Papa” and “[Mr N] is trying to take you away from Papa and hurts Papa”;
(c)Saying to the child “let’s not talk about [Mr N]”;
(d)Refusing to allow the child to spend time with the mother on Christmas Eve or Christmas Day 2022, failing to respond to the mother’s request for time on Mother’s Day this year until almost 10:00am on Mother’s Day;
(e)Baking a cake with the child on Mother’s Day for the mother despite not having arranged time as requested, noting that he offered time on the day when it was in effect too late, and then sending the mother a photo of the child with the cake.
Under cross examination the father’s evidence was that he could see nothing wrong with any of those statements or actions. He is either completely lacking in insight or has been wilfully cruel to both the child and the mother.
The father also conceded that he sent the texts to the mother between April and July 2022. That includes 12 abusive comments such as calling her an “arsehole”, “monster”, “bipolar” and saying that her “brain suffers lack of oxygen”.[9] The tone and content together with the frequency and consistency of those text message constitutes family violence.
[9] Mother’s affidavit filed on 7 August 2023, paragraph 130.
However, the mother’s proposal is for an equal time arrangement if at all possible. I am of the view that she does not see the father as an unacceptable risk of harm.
I am of the view that the child is not at an unacceptable risk of harm from either parent. The risks of emotional and psychological harm from the father’s conduct and lack of insight can be ameliorated through restraints and other orders.
S 60CC(3) The additional considerations
The child is not yet five years of age. Her views were not explored by the report writer.
The evidence is that the child has a positive relationship not only with her parents, but also with her brother and Mr N. Although the father is critical of Mr N, there is no evidence that Mr N has behaved in any way other than as a loving stepfather toward the child.
There is a child support assessment in place. The mother clearly suspects that the father has manipulated his income and time to reduce his child support commitments. The father conceded that he does not receive rent from his tenants, although one had done fit-out work on the property in lieu of rent. I am satisfied that he is a loving father who wishes to maximise his time with the child and is not solely motivated by financial considerations.
Whether the child moves to Brisbane or stays in the City B region she will likely spend less time with one of her parents. This is a significant change as she has been spending equal time with both parents. She will also fly for school holiday time with the other parent, although that is not an unusual position.
If the child stays in City B she will be separated from her brother, and the Family Report writer gave evidence of the great importance of sibling relationships. Although the mother could travel regularly to City B for time with the child during school terms, X’s brother would be unable to do so due to his own school commitments. That would mean that the sibling relationship would likely suffer due to long periods of separation.
The mother’s proposal allows for equal time however that involves significant organising, expense and travel for the father. While the mother proposes to contribute financially to the school term time so that an arrangement close to week about can occur, that is only for 12 months and still leaves the major burden on the father when it is the mother who has created the need for travel by her determination to relocate.
The mother could stay in City B and the child continue in her current living arrangements. But the mother does not want to do so, she wants to move to live with her fiancé and to take both X and her other child with her.
The father does not want to move to Brisbane. I do not have enough evidence to make findings about whether he cannot afford to do so. I accept however that at least at the time of trial he was determined not to do so, and his evidence was that it was not practicable financially or as regards his business interests.
So, whether the child lives in City B or Brisbane there will be a high cost of travel. The mother’s evidence about her contribution to the cost of travel was vague to say the least. During submissions the court was advised that in the event that the child lives in Brisbane with her, then the mother proposes that for 12 months she will:
(a)Contribute $300 to each return flight for the father and the child;
(b)Contribute $300 per week to the father’s accommodation in Brisbane when he attends during school terms.
I accept the evidence of the mother and Mr N that they have spent about $30,000 on travel and related to costs to maintain their relationship in the last year. I am therefore satisfied that the mother’s proposal as regards financial contributions to the father’s travel and accommodation is realistic and achievable for her.
In the event that the child stays in City B, the father proposes that the mother meet the cost of travel for contact, and that in the event that she has difficulties he proposes to provide her with a company car and to provide accommodation at his home. He could see no difficulty in that arrangement. He conceded however that someone is currently living in the home so I am satisfied that there is some uncertainty as to when that would be available.
I am satisfied that the mother has the far greater capacity to meet the child’s emotional needs. The father displayed a troubling lack of insight as detailed above.
It was disappointing that the father could not see any benefit in X relocating to Brisbane. There are obvious and concerning disadvantages in being separated from her father, but there are also positives that will flow from her mother and Mr N living together. For example, she will be living with her mother and brother, and the happiness and freeing up finances for that household from her mother and Mr N living under the one roof. Those will naturally flow on to benefit the child.
I am satisfied that the mother has a proven history of encouraging and facilitating the child’s relationship with the father. This is demonstrated by her accepting the living arrangements that the father imposed in about July 2022, facilitating time and gifts for Father’s Day and Christmas Day, having photos of the father available to the child in her home and continuing to communicate and attempt to co-parent with the father in the face of his at times abusive behaviour and his own failures to facilitate time between the child and the mother on special days.
As already addressed, I find the father has not demonstrated any such capacity. I am of the view that the father will continue to struggle to facilitate the child’s relationship with the mother due to his lack of insight.
Both parents are of Country H heritage. The child is fortunate indeed to have access to language and culture from Country H as well as Australia.
There are no orders in place however I have made findings that the father has perpetrated verbal and emotional family violence.
Neither party sought interlocutory orders, and I am satisfied that it is in the child’s best interests to bring litigation about her to an end.
The mother sought to enrol the child in school in both City B and Brisbane such that whatever the outcome of these proceedings the child would not be disadvantaged. The father refused to agree such that if orders are made for her to live in Brisbane there is no plan in place to ease the transition into school.
CONSIDERATION & DETERMINATION
Parental Responsibility
I am satisfied that orders for equal shared parental responsibility are in the child’s best interests for the following reasons:
(a)The parties have in the past been able to communicate appropriately and I am confident that once these proceedings are at an end they will each do so again for the sake of X.
(b)In the event that the child remained in City B, the mother had made a proposal as to an appropriate school. Although there was no agreement from the father, the mother has demonstrated a willingness to think ahead and consult for the sake of the child.
(c)The orders sought by the mother nominate the child’s school in the event that she lives in Brisbane and that order is not opposed by the father.
(d)The parties agree that they should have equal shared parental responsibility, reflecting a willingness to move on from past issues.
(e)The parties intend that if they live in the same city again in the future that the child will spend equal time with each of them. This reflects their willingness to promote the child’s relationship with each other.
Living Arrangements
I am satisfied that the orders sought by the mother for the child to live in Brisbane with her are in the child’s best interests for the following reasons:
(a)As both parents are determined in their primary positions, the child must either live with the father in City B or the mother in Brisbane.
(b)I am satisfied that the mother will encourage and facilitate the child’s relationship with the father. I do not have the same confidence as regards the father based on his conduct and the findings that I have made as set out in these reasons.
(c)The child’s sibling relationship will be better supported if she lives in Brisbane with her brother.
(d)Based on the findings I have made, I am satisfied that the mother is better placed to meet the child’s emotional and psychological needs.
(e)On the mother’s proposal, provided that the father does the travel, an equal time or close to equal time arrangement can be sustained, given the mother’s commitment to support the cost of travel. The father’s proposal would mean less time for the child with her mother and sibling.
(f)As the child’s primary carer, I am satisfied that the mother will communicate and consult appropriately with the father.
I have made some minor changes to the proposed orders for the purposes of clarity and certainty. Where I have changed orders significantly or added orders then these reasons will explain the basis for those changes and additions.
I am satisfied that the mother’s proposal is reasonably practicable as although it involves a great deal of travel for the father, he has travelled extensively for work in the past. Further the mother has agreed to contribute to the cost of travel and accommodation for a 12 month period so that the affordability, at least in those first 12 months, is manageable.
I propose that for the cost and burden of arranging holiday contact be shared relatively equally, with the father to pay for the child to travel to his care and the mother to pay for the child to return to her care.
As regards the cost of travel during school terms, the orders that the mother contribute significantly to the cost for the first 12 months allows the father time in which to either move to Brisbane or which allow him time to make more permanent and affordable arrangements for when he travels to Brisbane to spend time with the child. Further, during that time regular contact will be more likely to occur because of the mother’s financial contributions and that in turn will ensure the child’s relationship with the father is not lost or damaged in this important period following the change in her living arrangements. That is particularly important given her young age.
I shall make orders as sought by the mother to ensure that this Christmas the child is in her care given that the child was in the father’s care for Christmas Eve and Christmas Day 2022.
I will also make the orders sought by the mother for special days and changeovers. This is because certainty as to time and communication on special days will facilitate and foster the child’s connection with her parents.
I do not propose to make orders in terms sought by the mother that she may organise a nominee to travel with the child instead of her. During the trial this was clarified to reflect that if unable to accompany the child she proposed to send her partner. Given the father’s attitude towards her partner and the exposure of the child to those feelings, this proposal risks exposing X to psychological or emotional harm. I do however recognise that there may be occasions when the parents are unable to travel with X themselves. I therefore intend to include the capacity for an agreed person to accompany the child. That may, for example, be a flight attendant or family member or friend. As this holiday travel must be undertaken by each parent only four times a year it is unlikely to be a regular issue.
I have also removed the words “if the child is fit and comfortable to do so” from the proposed order regarding the child travelling as an unaccompanied minor as I am uncertain as to its meaning and it is a phrase likely to cause further dispute.
Other orders
I will make the other orders proposed by the mother with some changes for practicality purposes and to minimise the risk of further conflict and dispute as discussed with the parties during the course of submissions.
I will order that the child’s passport be held by the party who last travelled and released on request of the other parent. This is sensible where there are no real concerns raised as to a risk of a parent absconding overseas with the child. Each parent will travel overseas in future to see family or for work and this should be able to be done with ease.
I will make orders for electronic communication between the child and her parents to occur on set days and times, to be varied to suit the child’s extra-curricular activities or special occasions, so that the orders for ensuring the availability of the child and the conditions in which those calls occur can be enforced.
I will not make orders for the parties to offer each other first option to care. Those orders were not sought by the father and in circumstances where the parties propose to live in different towns I am not satisfied that they are reasonably practicable.
I will not make an order that the parties will be mindful of the conversations they have in the presence or hearing of the child so as to ensure that the child is not involved or burdened with adult issues or conflict. That is an expression of intent rather than an order and is in any event appropriately addressed in the non-denigration clause.
IN CONCLUSION
I am satisfied that the orders that I have made and which are set out at the commencement of these reasons are in the best interests of the child.
I certify that the preceding one hundred and twenty-five (125) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cope. Associate:
Dated: 29 November 2023
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