ROY & BIERMANN

[2014] FamCA 636

FAMILY COURT OF AUSTRALIA

ROY & BIERMANN [2014] FamCA 636

FAMILY LAW – CHILDREN – Where the mother seeks to relocate interstate with the child – Where the child has been in the mother’s primary care – Where the parents have an enmeshed and conflictual relationship – Whether there is any risk of harm to the child in either parent’s care – Where there are allegations of family violence – Where the mother’s proposal would significantly reduce the child’s time with his father – Where the father proposes a significant change to the child’s living arrangements in seeking a change of residence into his care and for the child’s time with his mother to be conditional upon her receiving psychiatric treatment – Where an alternative proposal is agreed to by the Independent Children’s Lawyer as being in the child’s best interests – Where the mother’s relocation application is refused – Where the presumption of equal shared parental responsibility is rebutted upon the circumstances of the case – Where the parent with whom the child is to live is to exercise sole parental responsibility

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61C, 61DA, 65DAA
Evidence Act 1995 (Cth) s 140(2)(a)(c)
Mental Health (Forensic Provisions) Act 1990 (NSW) s 32

G & C [2006] FamCA 994
Malcolm & Munroe and Anor (2011) FLC 93-460
Mazorski & Albright (2007) Fam LR 518
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92

APPLICANT: Mr Roy

RESPONDENT: Ms Biermann

INDEPENDENT CHILDREN’S LAWYER: Mr Samuel

FILE NUMBER: PAC 1485 of 2012

DATE DELIVERED: 7 August 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 28, 29, 30 April 2014 & 1 May 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schroder

SOLICITOR FOR THE APPLICANT: John Stonham & Co

SOLICITOR FOR THE RESPONDENT: Family Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Reynolds

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Brian Samuel & Associates

Orders

1. All previous Orders relating to B, born in 2003, are discharged.

2. The mother is to have sole parental responsibility for the child.

3. The mother is to keep the father informed of significant medical issues relating to the child.

4. B is to live with the mother.

5. B is to spend time with the father:

   (a)During school terms, each alternate weekend from after school Friday to before school Monday, extending to before school Tuesday if Monday is a public holiday or a non-school day.

   (b)For the first week of Term 1, 2 and 3 school holiday periods, commencing after school on the last day of school term and concluding at 10.00 am on the Saturday in the following week.

   (c)       During school holiday periods after the conclusion of Term 4 as follows:

   (i)commencing in even numbered years from 26 December at 10.00 am until 2 January at 10.00 am and from 12 January at 10.00 am until 19 January at 10.00 am; and

   (ii)commencing in odd numbered years from the last day of school term until 26 December at 10.00 am and 12 January at 10.00 am until 19 January at 10.00 am.

   (d)On Father’s Day weekend (in addition to the alternate weekend time provided for in Order 5(a) if Father’s Day falls on a weekend the child would not be ordinarily spending time with the father) from after school Friday to before school Monday, extending to before school Tuesday if Monday is a public holiday or non-school day.

6. Changeover is to take place at the child’s school at the following times:

   (a)at the commencement and conclusion of times provided for in Orders 5(a) and 5(d); and

   (b)at the commencement of times provided for in Orders 5(b) and 5(c)(ii) on a school day.

   For the commencement of time, the father or his agent (who the child is familiar with) is to collect the child from school. For the conclusion of time, the father or his agent (who the child is familiar with) is to deliver the child to school. The mother is not to be in attendance at the school during times of changeover.

7. Changeover is to take place at McDonalds Family Restaurant situate at C Street, Suburb D at the following times:

   (a)at the conclusion of time provided for in Order 5(b);

   (b)at the commencement and conclusion of times provided for in Order 5(c)(i); and

   (c)at the commencement and conclusion of times on a non-school day provided for in Order 5(c)(ii).

   For the commencement of time, the mother or her agent (who the child is familiar with) is to deliver the child to the McDonalds and the father or his agent (who the child is familiar with) is to collect the child from the McDonalds. For the conclusion of time, the father or his agent (who the child is familiar with) is to then deliver the child to the McDonalds and the mother or her agent (who the child is familiar with) is to collect the child from the McDonalds.

8. B’s time with the father pursuant to these Orders is to be suspended on Mother’s Day weekend (for the entirety of the weekend, being from after school Friday to before school Monday).

9. B is to have direct telephone contact with the father at all reasonable times. In this regard, the father is to obtain a mobile telephone and set up a mobile telephone account for the child, which is then to be provided to the child and held by him when in either parent’s care. The father is to pay for all expenses related to the child’s mobile telephone.

10. The mother is to ensure that the child has privacy when speaking with the father on the mobile telephone and, in this regard, the mother is restrained from placing the telephone on speaker.

11. The parents are restrained from communicating with each other, except in the event of an emergency, and in the event of an emergency, the parents are to communicate by either telephone or text message.

12. The parents are restrained from attending the other parent’s residence, except in the event of an emergency.

13. Each parent is restrained from attending events and activities in which the child is involved, except events or activities occurring at a time when the child is living with or spending time with that parent.

14. Each parent is to keep the other informed of any change to:

    (a)their respective telephone numbers for the purposes of Order 11; and

    (b)their respective residential addresses for the purposes of Orders 12 and 19.

15. The father is permitted to obtain directly from the child’s school all information normally provided by schools to parents, including receiving copies of school reports and school photographs (at his own expense).

16. The father is permitted to obtain information directly from any doctor or medical professional that the child attends upon from time to time.

17. Neither parent is to denigrate the other in the presence or hearing of the child, and each parent is to use their best endeavours to prevent any other person from doing so.

18. Neither parent is to discuss the Court proceedings or the dispute between the parents in the presence or hearing of the child, and each parent is to use their best endeavours to prevent any other person from doing so.

19. The mother is permitted to relocate her place of residence to anywhere within a thirty (30) kilometre radius of the father’s current place of residence.

20. All outstanding applications are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Roy & Biermann has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 1485 of 2012

Mr Roy

Applicant

And

Ms Biermann

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. This matter concerns the long term parenting arrangements for the child, who is 11.

2. B’s parents, Mr Roy, who is 45, (“the father”) and Ms Biermann, who is 42, (“the mother”) have an enmeshed, complicated and conflicted relationship.

3. B’s mother Ms Biermann wants to move to Queensland with the child for a new start, whilst the child’s father Mr Roy believes that this would harm the child’s relationship with him and wants the child to live with him in Sydney.

4. The issue for me to determine is whether either of the proposed arrangements, or some other arrangement, is in the child’s best interests.

Background

1. The parents met and commenced a relationship in 2000. They were at that stage in their late twenties or early thirties. They lived together but did not marry.

2. The parents’ only child, B, was born in 2003. The parents separated one month later and the child continued to live with his mother.

3. On 30 September 2003 an interim Apprehended Violence Order (“AVO”) was made against the mother for the protection of the father. A Final Order was made for a period of 12 months on 19 February 2004, which provided that the mother was not to intimidate, assault, molest, harass, threaten or otherwise interfere with the father. This AVO appears to have been made as the mother was harassing the father, though I accept her evidence that she felt that she and the child had been abandoned by the father.

4. On 30 March 2004 parenting Orders were made in the Suburb C Local Court. Although these Orders do not specify who the child was to live with, it appears that he was to live with his mother as the Orders provided for the father to have supervised contact for two hours each Sunday with the child. After some time the contact was no longer supervised.

5. Although there were Orders in place, it is not disputed that the child spent more time with his father than provided for under the Orders.

6. In August 2004 the mother was charged with breaching the AVO protecting the father. She was subsequently convicted in December 2004 and the AVO was varied so that she was prohibited from attending the father’s home. The AVO was also extended for a further two years.

7. On 15 October 2004 a Federal Magistrate made Orders by consent for the child to live with his mother, who was permitted to relocate with the child to F Town. Under those Orders, prior to the relocation, the child was to spend time with his father on alternate weekends from Saturday morning to Sunday afternoon.

8. The mother did not relocate to F Town and the parenting arrangements for the child were also not in accordance with the Court Orders, but as agreed between the parents. The agreement generally meant that the child spent more time with his father than provided for under the Orders.

9. In January 2005 on an occasion when the father returned the child to his mother after contact, the father touched the mother on her breast without her consent. The father was subsequently charged and convicted of indecent assault.

10. In around June 2006 the mother completed an outpatient detoxification program for cannabis misuse. Although the detoxification program was successfully completed, the mother has continued to use cannabis intermittently up until the present time.

11. In around June 2006 the mother was also having difficulties coping with the care of the child and asked the father to care for him. As the mother was prohibited by the AVO from approaching the father’s house, on 12 June 2006 she attended the father’s home with police who asked either the father or his mother to care for the child. When they were both reluctant to do so, the police told the father that if he did not take care of the child, he would go into foster care. The father then agreed to care for the child

12. In July 2006 the mother was charged and convicted of breaching the AVO.

13. In July 2006 the mother applied for parenting orders in the Local Court.

14. On 27 July 2006 a Local Court registrar ordered that the child live with his father and spend time with his mother on alternate weekends from Friday afternoon to Sunday afternoon. Despite these Orders, the child did not spend any time with his mother until the matter returned to Court.

15. On 31 August 2006 Orders were made for the child, who was then three, to live with each of his parents on an equal shared “week about” basis. Changeovers were to occur at pre-school and neither party was to contact the other by phone, including by text message, except in an emergency. The Court also ordered that the parties were to maintain a communication book to pass with the child for communication and that the mother was to maintain visits with a psychologist. It appears that although these Orders provided for the child to spend equal time with each of his parents, this did not occur. Rather, the child lived with his mother and spent time with his father each alternate week from Friday evening until the following Wednesday morning.

16. On 26 April 2007 a Judge of the Family Court made final Orders that the child live with his mother and spend time with his father in accordance with the then current arrangement, that is, each alternate week from Friday afternoon to the following Wednesday morning and half the school holidays, and that the parents share parental responsibility. The parenting arrangements were after this time generally in accordance with the Court Orders, though on occasions the child spent more time with his father than provided for under the Orders.

17. In 2007 the mother purchased a home in G Town where she lived with the child. While living at this address the mother was involved in a number of altercations involving neighbours. Police records indicate police involvement in a number of incidents including occasions where the mother became involved in physical fights with neighbours, sometimes in the presence of the child. On one occasion the child is recorded as having been present when the mother was threatened by another person with a knife.

18. In 2010 the mother sold her home in G Town and purchased a home in H Suburb in the I Town area near to the father. The mother and the child have lived in this house since that date.

19. Between 2007 and 2011 the parents regularly exchanged abusive and offensive text messages. They also regularly spent time with each other and had an intermittent sexual relationship. On occasions each alleged that the other was violent and a number of reports were made by each of them to the police.

20. In February 2011 the father commenced a relationship with Ms J.

21. The mother and Ms J had difficulties from the commencement of this relationship. At some time prior to June 2011 the mother was angry with Ms J and the father because she says the child had told her that he had witnessed the father and Ms J engaging in sexual intercourse.  In June 2011 the mother approached the father’s home where he was with his mother and Ms J, screaming and yelling words such as “I’m gunna punch [Ms J] in the head” in Ms J’s presence. The mother also asked Ms J to come out to “sort things out”. The mother was at the father’s front door for about three minutes during this incident and when she left a neighbour called the police.

22. The mother also sent offensive text messages to the father. The incident at the father’s home and the text messages formed the basis of a provisional AVO, which was made on 3 June 2011 and was continued as an interim AVO on 21 June 2011. The mother’s criminal record indicates that on 23 June 2011 she was charged with stalking and on 25 August 2011 was charged with breaching the AVO and using a telephone service to menace, harass or offend. She was also charged on 2 February 2012 with stalking.

23. Although it is not clear, these charges may relate to further incidents between the mother and Ms J.

24. In one of these incidents the mother informed the Catholic school at which Ms J was employed as a teacher that Ms J was sexually inappropriate in the presence of a child. There was another incident in which the mother confronted Ms J at a soccer match and the two became involved in a physical altercation in the child’s presence. On a further occasion the mother approached a parent while the parent was accompanying children from Ms J’s school on a school excursion and made allegations about Ms J being a paedophile to that parent.

25. From early 2011 the father began to experience difficulties spending time with the child. The mother said she withheld the child as the father was not paying his child support as required, whilst the father says he had paid more than required. The mother did not make the child available to the father so that they could spend time together in each of the school holidays and on a number of particular weekends between April 2011 and March 2012.

26. In April 2011 the mother began Victim Compensation proceedings in relation to the January 2005 indecent assault.

27. The mother was convicted for the June 2011, August 2011 and February 2012 offences on 13 February 2012. On that date a final AVO was also made against the mother for the protection of the father, his mother and Ms J for two years.

28. In April 2012 the father commenced these proceedings.

29. At about this time, on occasions when the child’s time with his father was to commence at 5.00 pm the mother either kept the child from school or collected him before the father could arrive at school. On 10 May 2012 the interim Orders were changed so that the child’s time with his father started at the end of school, rather than 5.00 pm to reduce the problems that had arisen with changeover.

30. On 15 June 2012 in a Children and Parents Issues Assessment a Family Consultant identified that the child was aware of the significant conflict between his parents and raised concerns about each of the parents’ involving the child in their dispute.

31. In July 2013 the Family Consultant interviewed the parents and the child for the purposes of a Family Report. In the Family Report, which was released in August 2013, the Family Consultant not only considered the competing proposals but repeated his concerns about the level of conflict between the parents, to which the child was exposed. He was also of the view that the behaviour of each parent, over time, raised the concern that either or each may possibly have some form of personality disorder and recommended that an expert report be obtained concerning these issues. No such report has been obtained.

32. In July 2013 the mother again threatened to withhold the child from spending time with his father. Otherwise, the interim parenting Orders have been complied with.

33. The parents have at other times through the course of their relationship enjoyed social occasions such as dinners together with the child. They also meet approximately weekly in the course of the child’s changeovers and picking up the child’s belongings. On other occasions the father assists the mother around her home at her request.

34. Currently, the father lives with his 73 year old mother in a four bedroom home in the I Town area.

The parents’ ongoing sexual relationship

1. The father says in his affidavit that following separation and up until he formed a relationship with Ms J in February 2011, the parties maintained a consensual sexual relationship from time to time. The mother does not give any evidence in her affidavit of an ongoing consensual sexual relationship between herself and the father.

2. The matter of a holiday in K Town in January 2014 was first raised under cross-examination of the Family Consultant who was the first witness called. He was asked to comment upon evidence which was then anticipated to be called that the parents arranged a weekend together with the child in January 2014 and in the course of the weekend had consensual sexual relations.

3. The father’s version of the K Town holiday given in oral evidence was that he contacted the mother about the possibility of going away and also of making amends and getting back together. He said that she agreed and he made the arrangements and then told the child who was excited.

4. The father described the family spending three days together, doing activities with the child and having meals together. The father said that he and the mother did not occupy the same bedroom but that the parties had consensual sexual relations during the day which were incomplete and that later when the child was asleep the father went to the bathroom when the mother was in the shower where the sexual activity continued. The father said that after three days they packed up and he drove the mother and the child home. He said that the mother did not make any complaint about the sexual activity at the time or subsequently and that he was not contacted by any authority including the police.

1. Although the father was cross-examined as to these events, it was not put to him that the sexual activity was not consensual.

2. The mother’s trial affidavit was prepared in August 2013 prior to the January 2014 holiday to K Town. In oral evidence in chief she said that she agreed that sexual activity between her and the father took place in the kitchen in K Town. She said that she initially agreed to this activity but half the way through did not want to continue and told the father and he stopped. The mother said later, when she was in the bathroom she felt sorry for the father and continued the sexual activity at his request.

3. The mother was subsequently cross-examined about the entirety of her ongoing sexual relationship with the father. She agreed that in the early stages she acquiesced when he pestered her for sex as she had a desire to reconcile with him.

4. In relation to the K Town trip the mother gave a number of inconsistent versions as to the way in which the trip came about. Ultimately she said that she agreed to go on the trip because the father asked her in front of the child even though she had previously said “no” on numerous occasions when the father pestered her. She said that she agreed to go as she felt guilty towards the child who was asking for one weekend for them to pretend to be a family. She went on to say that a small part of her hoped that the father would change but then she realised that all the father wanted was for her to drop the proceedings and for him to get sex if he could.

5. Although the mother originally said she consented to the sexual activity on the K Town trip, she then said that the father “coerced” her but did not “force” her. She agreed that although she had a mobile phone she did not call police [to complain about the father’s conduct] because she did not want her child’s father to be arrested in his presence. Under cross-examination the mother agreed that she did not obtain an AVO to protect herself from the father’s further advances but did say she went to police and obtained an event number three weeks prior to the hearing. She agreed that she had not sought orders seeking to suspend the father’s time with the child as a result of his behaviour on this trip and conceded that the father had been to her house three times since the K Town holiday at her request to fix her car. She said that the father was the only person she had to call on even though he was her abuser.

6. Under cross-examination the mother said she had told the police she wanted an AVO in relation to the father’s conduct in K Town but says police said they were still investigating the matter. She agreed that she and the father had had face-to-face contact on six to seven occasions since K Town and that he was always at her house picking up and dropping off items and harassing her.

7. When asked whether she was still pursuing police action against the father concerning the K Town incident, the mother appeared to suggest that she would not do so if she was permitted to relocate. She said

   If I am permitted to leave, I don’t see the point. I don’t want [Mr Roy’s] career to be further damaged, as much as the incidents still do occur, I still don’t want to ruin the man’s life. So if, in the event that I am forced to stay here, then yes I will want an AVO for my protection and if charges come about, so be it. But if I am permitted to relocate then I don’t see why I would need to put myself or [Mr Roy] through more Court traumas…

8. I am satisfied on the balance of probabilities that the parents did engage in consensual sexual activity in the course of their holiday to K Town for the following reasons.

9. The mother changed her version of the events numerous times over the course of her evidence. Initially, she gave evidence that the sexual activity was consensual. She subsequently changed her evidence and gave the confusing evidence that the sexual activity was coerced but not forced. The mother also made no complaint about this conduct until it was raised by the father with the Family Consultant on the first day of the trial, even though she has alleged that he was engaged in ongoing sexual abuse of her for ten years. In submissions made on her behalf, this incident was not put forward as an example of sexual assault. The mother only contacted the police three weeks prior to the hearing, that is, three months after the event and even then the matter still appears to be only under investigation. There are no police records of her complaint in evidence. The mother then indicated that she would only take further action in relation to pursuing the AVO and seeking to have the father charged if she were not permitted to relocate to Queensland. Finally, the mother conceded that the father had been to her house three times at her request since K Town to fix her car and on a number of other occasions.

The Parties’ Proposals

The mother’s relocation proposal

1. As noted, in October 2004 pursuant to Orders made in the then Federal Magistrates Court by consent, the mother was permitted to relocate to F Town with the child. The relocation did not occur. Although the mother refers to the making of these Orders in her affidavit, she does not refer to the Order permitting her relocation to F Town and gives no explanation relating to that proposal or why she did not go ahead with it. The mother was cross-examined in relation to this earlier relocation proposal but little further is known.

2. In her Response dated May 2012 the mother sought orders that she be entitled to relocate with the child to “the State of Queensland in January 2013”.

3. In the June 2012 Children and Parents Issues Assessment the mother reported that she proposed to move to Queensland when she finished tertiary studies because her father’s family lived near Brisbane and could offer her support. She said she would use Facebook and Skype to assist the child maintain his school relationships from Queensland.

4. When assessed for the purposes of a Family Report in July 2013 the Family Consultant said that the mother’s proposal was that she move with the child to live in or around L Town on the Region E of Queensland. When interviewed by the Family Consultant the mother said that moving to Queensland would allow her to be closer to family members and referred, in particular, to her sister who lived at M Town, her niece who lived in Brisbane and “people in [N Town]”. The mother referred to finding accommodation in the L Town area and generally made references to the lower costs of living in the South Eastern Queensland region.

5. Under cross-examination the mother said that she believed when interviewed by the Family Consultant that L Town was a suburb of Brisbane but accepted that it well may be on the Region E. The mother then gave answers to the effect that she had not suggested L Town on the Region E to the Family Consultant and that M Town was a possible destination at that time.

6. In the mother’s case outline, handed up at the commencement of the hearing, the mother sought orders that she be permitted to relocate to Brisbane. In final submissions on behalf of the mother it was submitted that a clean break is required by separating the parties by distance and allowing the mother to relocate to Queensland. The submissions also referred to the mother moving to the M Town/Brisbane region.

7. The first time that the mother raised the proposal to live in M Town was in the course of some additional oral evidence in chief. Under cross-examination it became clear that the mother’s sister, who had originally moved to Brisbane, had relocated to M Town about 12 months prior to the hearing.

8. When asked about the various changes to her proposal to relocate to Queensland the mother conceded that she had focused predominantly on why she should be allowed to go rather than the details of the proposal. At one stage the mother was cross-examined about a proposal she had made to relocate to O Town. In relation to this proposal and her various proposals to relocate generally, the mother emphasised on numerous occasions that she wanted to get away from the father, that she should not be required to stay [in I Town] for the father’s convenience and said that she just wanted to get away from the abuse and trauma that the father had put her through.

9. Under cross-examination it appeared that the mother had very little understanding of the distances between the various places she had proposed such as the Region E, Brisbane and M Town and did not understand the significance in these proceedings of having some form of plan or more detailed proposal for the relocation. Overall, the tenor of her evidence was very much connected with moving to Queensland for her own sake rather than giving evidence of any advantage that the move may have for the child. The mother gave very contradictory evidence about whether she had researched the proposal at all and, if so, what the research had revealed. Although the mother said that she had researched the cost of real estate in M Town, she was unable to provide any detailed evidence concerning this issue or about proposed schooling for the child should she be permitted to relocate. The net effect was that it is very difficult to determine what the mother has in mind other than a current desire to leave the I Town area and go to M Town to get away from the father.

10. The mother also relied upon evidence from her father in relation to her proposal to relocate to Queensland. The maternal grandfather currently lives in Sydney, not far from the mother, and said in his affidavit that he intends moving to Queensland but has not made “official plans” as he did not want to leave the mother and the child “completely isolated”. Under cross-examination the maternal grandfather agreed that the mother had not told him where she wished to relocate other than to “Queensland”, even though he had discussed the matter with her as recently as earlier in the week of the hearing. The maternal grandfather said that he intended, if his health permitted, to relocate to Queensland to somewhere close by, but not necessarily the same location as his daughter. He did not ever recall discussing with the mother moving to L Town on the Region E, to O Town or to Brisbane. The maternal grandfather also confirmed that he would probably stay in Sydney if his daughter needed the support and were not permitted to relocate to Queensland. The maternal grandfather also said that he saw his daughter and the child about once every six weeks.

The father’s proposal

1. In his Initiating Application the father’s proposal was that he have sole parental responsibility for the child, that the child live with him and spend time with the mother each alternate weekend from the conclusion of school on Friday until the commencement of school the following Monday, half of the school holidays and on special days.

2. In his case outline filed at the commencement of the proceedings the father sought sole parental responsibility for health and education and that the child live equally with the mother and father on a “week about” basis.

3. By the completion of the proceedings the father proposed that he have sole parental responsibility for education and health. It was proposed that the child live with him and spend time with the mother (conditional upon her receiving psychiatric treatment) each alternate weekend during the school term from after school Friday to before school Monday, gradually increasing to five consecutive days each alternate week from after school Friday to before school Wednesday during school terms, half the school holidays and on special days.

The Independent Children’s Lawyer’s position

1. The Independent Children’s Lawyer supported alternate orders raised by me in the course of submissions that would see the child living with his mother in the Sydney area, sole parental responsibility being allocated to her and the child spending every second weekend and half the school holidays with his father.

The Areas of Dispute

Has the father’s behaviour harmed the mother?

1. It is the mother’s case that she has been the subject of ongoing abuse from the father and that on occasions the child has been exposed to family violence. She contends that this abuse has caused her to suffer from mental health problems and it is central to her application that she be permitted to relocate to Queensland as her mental health will continue to suffer should she be required to remain living in the Sydney area, particularly in close proximity to the father. It is also central to her case that as incidents of family violence have been ongoing since separation up until the present, a move away from the father will reduce the incidents of violence. The father denies that he has abused the mother as alleged and contends that her mental health problems arise from other traumas she has experienced in life.

2. The mother particularly alleges that the father has sexually assaulted her from the date of separation in April 2003 until the present. In her affidavit, the mother gives two examples of conduct which could amount to sexual assault. On the first occasion, which she says occurred in about 2004, the mother says that the father came to her house uninvited and pulled out his penis from his pants and slapped it across her face. In response the mother says she slapped him on the face. According to the mother, her version of events was not accepted by the police and she was herself charged and ultimately convicted in relation to this incident.

3. The second allegation of a sexual assault referred to in the mother’s affidavit is the January 2005 incident that led to the father being charged and ultimately convicted of indecent assault. The mother gives no details in her affidavit about the facts surrounding this charge, though it does not seem to be in dispute that it related to the father touching her on her breast without her consent. The facts upon which he was convicted are unknown. The father’s version of the events surrounding this offence and his conviction are as follows

   The behaviour occurred in circumstances where I was at the residence of the respondent mother. Upon my arrival she had given me a hug. When I was leaving I squeezed her breast in a playful manner. She did not make any complaint about this behaviour.

4. The mother goes on to say in her affidavit “the sexual abuse by the applicant was escalated against me from 2007”. In her affidavit, she outlines the content of phone calls she had with the father at this time, which contain requests by the father of a sexual nature. The mother also sets out excerpts of text messages exchanged between the father and herself. Many of those messages are of a sexual nature and many involve insulting, abusive and offensive language being used by both of the parents. In my view, none of these matters outlined in the mother’s affidavit include any behaviour by the father that could fall within the definition of sexual assault.

5. It was not contended by the mother in the course of the proceedings that the incident of sexual contact in K Town in January 2014 was an example of the ongoing sexual assault by the father of the mother.

6. The mother also alleges that the father has harassed her. The father does not dispute that in about 2009 he created a fake Facebook profile in another person’s name and communicated with the mother under this guise for a period of about four months, and that did amount to harassment.

7. The mother contends that communications, including text messages, sent by the father also amount to harassment. For reasons referred to later, I am of the view that the communications do not reveal that the father alone engaged in a course of harassment of the mother, but rather that they both engaged in a mutually offensive, abusive, harassing and conflictual style of communication.

8. The mother claims that the father’s physical and sexual abuse of her, together with the volatile relationship caused her to suffer from post-traumatic stress disorder, depression and an adjustment disorder.

9. In April 2011 the mother commenced a Victim’s Compensation claim in relation to the “sexual assault” by the father. The mother relies upon an assessment made by a senior clinical psychologist for the purposes of that claim in these proceedings.

10. The mother’s trial affidavit was prepared in August 2013. At that time she says that the Victims Compensation claim, which had been due to be heard in September 2012, had been adjourned. The Notice of Adjournment indicates that there were a number of outstanding documents, including Court results and police reports, which were required prior to the matter being determined. No current information has been provided in relation to the claim.

11. It is clear from the psychologist’s report obtained in the Victim’s Compensation claim that all of the information upon which the psychologist relied was provided by the mother herself. The mother had also nominated Mr P, a then treating psychologist, as her informant for the report but he was unavailable at the time the report was written.

12. The psychologist did not take details of the “sexual assault” from the mother due to the mother’s level of psychological distress at the assessment. In some parts of the report the psychologist refers to a single “act of violence” and on other occasions she refers to the mother reporting that the father “was convicted of the sexual assaults (plural) of her in 2006”. The psychologist goes on to say “it is unclear as to the nature of his conviction, that is, if it involved the perpetrator being incarcerated”.

13. According to the report, the mother reported that she was “a primary victim of sexual assault by [the father] between April 2003 and April 2011”. The mother also reported being subjected to ongoing harassment and intimidation and stalking by the father since their separation. The mother also reported that during her childhood and adolescence she was a primary victim of domestic violence perpetrated by her mother.

14. According to the psychologist, the mother “described classic and reasonably significant psychological symptoms in response to the impact of the period of sexual assault. In general terms, the description of the psychological symptoms was quite consistent with a diagnosis of post-traumatic stress disorder.” The psychologist also documented matters she regarded as notable, such as that the mother reported that she had not had an intimate relationship since her separation from the father and that she purchased a property with high security at all entry points to prevent the potential for the father gaining access to the house. She also noted that under the then current arrangements whereby the child had contact with his father five days per fortnight, this arrangement “retraumatises [the mother] and reminds her of the period of sexual assault”.

15. The psychologist concluded that the impact of “the period of sexual assault” resulted in symptoms which are consistent with chronic post-traumatic stress disorder at a severe level. She also concludes that this disorder is highly correlated with “the act of violence that is the subject of this report” and not with the mother’s exposure to violence by her mother in her childhood. The psychologist concluded that the mother presents with a severe disability and severe impairment of global functioning from the period of sexual assault. The psychologist also concluded that the long term outcome would indicate that the mother would have long term changes in her life such as to her sense of safety, trust and security in the world due to “the act of violence”.

16. The other report relied upon by the mother as evidence of her mental state was prepared by a psychologist, Mr P, in September 2011. This report appears to have been prepared for the purposes of the mother making an application under the Mental Health (Forensic Provisions) Act 1990 (NSW) in relation to a criminal charge against herself.[1] This psychologist had originally given the mother psychological treatment under the auspices of Victims Services, which assessed the mother as suitable for ten hours of counselling. At the time the report was prepared, the mother had completed seven hours.

    [1] Section 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) enables a magistrate hearing a criminal charge against a person to deal with the person in an alternative way, including by dismissing the charge if satisfied that the person suffers from a mental illness or treatable mental condition.

1. In his report Mr P said that much of the discussion in the sessions revolved around the mother’s former relationship and the ongoing strained dynamic between herself and the father. The psychologist was of the opinion that it appeared that the mother was suffering an adjustment disorder with mixed anxiety and depressed mood. He said the mother developed emotional and behavioural symptoms in response to identifiable psycho-social stressors, being the enduring strained association with the father and the ongoing family law matters had exacerbated her disturbance.

2. Taking into account the foregoing evidence, I am not satisfied that the father did engage in an ongoing course of sexual assault as alleged by the mother for the following reasons.

3. There is only cogent evidence of a single incident which occurred in January 2005 for which the father was convicted and was released on an unconditional good behaviour bond for 12 months. The mother has not provided any version of the events that gave rise to this conviction and the father’s version that he squeezed the mother on the breast is, in my view, consistent with the relatively lenient sentence imposed[2], being an unconditional good behaviour bond.

   [2] The maximum penalty for assault with act of indecency is five years imprisonment or two years if dealt with summarily (in a Local Court, by a Magistrate).

4. The other alleged incident of a sexual nature given by the mother in her affidavit resulted in her being charged and she pleaded guilty to that charge and was convicted. There is no evidence to support any finding that the father committed any offence against her at this time.

5. The offensive text messages sent by each of the parties to each other cannot, in my view, constitute sexual assault by the father, though it does appear that each parent was involved in ongoing harassment of the other.

6. In my view, the report of the clinical psychologist prepared for the purposes of the Victim’s Compensation claim cannot carry much weight in these proceedings. The result of the Victim’s Compensation proceedings is not known and, in particular, it is not known whether the psychologist’s report was accepted by that Tribunal. The psychologist was provided with a history by the mother alone, which is inconsistent with a number of matters that the mother does not dispute in these proceedings. The psychologist also did not have access to a number of relevant documents (which is I note also the reason that the Victim’s Compensation proceedings were adjourned) and may have drawn incorrect conclusions supported by the mother’s version. For example, it appears the psychologist may have concluded that there was more than one incident of sexual violence committed by the father throughout the period. It is also apparent that the mother told the psychologist that she had only one offence on her criminal record for possession of cannabis when she was 18, when in fact she had numerous recent convictions for breaches of AVOs and stalking.

7. It is clear that the psychologist was not even aware of the facts which founded the single conviction against the father and may have considered that they were far more serious than is the case, due to her contemplation that the father may have been incarcerated in relation to the offence.

8. The matters that the psychologist regards as “notable” are at odds with the evidence in the proceedings that the mother continued an intermittent sexual, and at times social, relationship with the father after separation. The suggestion by the mother that she has heightened concerns about security and is re-traumatised upon contact with the father is contrary to the evidence that the parties each have a high degree of non-essential and voluntary contact with each other associated with handover and otherwise in the course of co-parenting the child (albeit that that contact is often highly conflictual). It is also inconsistent with the mother at times initiating contact with the father, such as on the morning of the assessment for the Family Report, during the hearing, and to seek his assistance with fixing her car and the like.

9. The psychologist also relied upon other matters as undisputed which are in dispute in these proceedings, matters which have not been alleged in these proceedings or which are completely at odds with the undisputed facts in the proceedings. For example, the mother reported to the psychologist that the father has repeatedly breached conditions of the AVO made against him. There is no evidence of an AVO against the father and his criminal record in these proceedings discloses no offences of this nature. The mother also reported to the psychologist that Ms J had intimidated and harassed her and that there was no basis for the AVO made against her for the protection of Ms J, which the psychologist seems to have accepted when she concluded “there was no evidence at the assessment for the basis of this Apprehended Violence Order”.

10. Finally, and significantly, the psychologist’s opinion was not tested in the proceedings.

11. It appears that the other psychologist, Mr P, first saw the mother under the auspices of Victims Services due to her having been the victim of the indecent assault. He initially had eight hours of therapy with her and the matter was transferred at the mother’s request to a female counsellor. It appears he was then requested to prepare a report in connection with the section 32 application relating to the mother’s own offending. His report does not support the mother’s contention that she suffered from a mental condition due to the father sexually assaulting her but rather that she had an adjustment disorder due to the strained relationship with the father and the ongoing Court proceedings.

12. On the basis of the foregoing, I am satisfied that the father indecently assaulted the mother on one occasion. I am also satisfied that the mother has suffered significant symptoms of psychological disturbance as described in Mr P’s letter of 29 September 2011 and that this disturbance related to the ongoing strained relationship with the father. Other issues related to the mother’s current mental state are dealt with later in these reasons.

Does the mother’s behaviour or mental condition give rise to a risk of harm to the child?

1. The father contends that the mother behaves in an erratic and volatile manner as a result of her inability to control her emotions in a range of contexts, which gives rise to a risk of harm to the child. He also contends that the mother is not receiving appropriate psychiatric treatment for her condition and this raises a risk of harm. The mother disputes these contentions.

2. So far as the mother’s behaviour is concerned, the father contends that the incidents with neighbours in G Town over a number of years are examples of the mother’s inability to regulate her emotions. The mother was cross-examined at length about these events and maintained she did not remember many of them, or if she did, on a number of occasions denied that the events occurred as recorded by police.

3. In addition to the incidents with the neighbours in G Town, the father relies upon similar conflict with members of the mother’s own family, including her being charged with assaulting her sister-in-law Ms Q. The mother was also cross-examined about an incident in July 2005 when police were called to her premises following a complaint by her housemate that she picked up a knife in the course of an argument with him. The mother said in relation to this incident “people argue all the time”.

4. It is also the father’s case that since separation, that is, throughout the child’s whole life, the mother has been abusive, harassing and threatening towards him. He says on numerous occasions he has required the assistance of police and Courts to protect him from her violence and harassment. It is the mother’s case that many of the incidents that the father relies upon are examples of the father’s harassment and threats towards her. This is a factual matter that requires resolution.

5. The first AVO made against the mother for the protection of the father was in September 2003. As I understand it, both parties agree that the Order came about as the mother was being verbally abusive and harassing him.

6. The father says that the breach of AVO in August 2004 related to the mother making abusive and threatening telephone calls and text messages and damaging his car.

7. The mother’s version of this breach is entirely different. She says that she slapped the father across the face and demanded that he leave her home when he came to her home and threatened her that if she did not engage in sexual activity he would “have [her] breached”.

8. The incident relating to the mother’s breach of AVO in July 2006 is also a matter of significant dispute. The father says it related to the mother abusing him and spitting on him at the hospital when the child was undergoing surgery. The mother’s version is that the incident arose when the father had the child in his care under the Court Orders but was refusing to “hand the child back to [her] as required” and refused to reveal where the child was. The mother says she was very worried about the child’s safety and hired a car and waited in it near the father’s home to see if the child was there, which amounted to a breach.

9. The details of the complaint that founded the original AVO made in 2003 and the agreed facts when the mother was convicted for each of the breaches are unknown. There is no corroborating evidence for either version in any record, including police records, so I am unable to determine the facts relating to these breaches. However, it is of significance that the AVO was made against the mother and she was convicted of breaching it on each occasion.

10. Although the father alleges that the mother harassed him and behaved in a threatening and abusive manner throughout the child’s life, there are no other instances of this behaviour in his evidence until the incidents relating to the mother’s conduct towards him and Ms J after that relationship commenced in February 2011.

11. As indicated, the mother agrees that her conduct resulted in an AVO being made against her for the protection of the father, his mother and Ms J in June 2011 and that she was charged in June 2011, August 2011 and February 2012 and ultimately convicted of offences relating to her harassment of Ms J.

12. The mother was extensively cross-examined about her behaviour towards Ms J. In some cases the mother did appear to take responsibility for her own behaviour, such as agreeing that an event which involved adults screaming abuse and fighting with each other at a soccer game was due to her “confronting” Ms J. On other occasions, however, the mother did not agree that her behaviour was impulsive or inappropriate, such as when she approached a parent from Ms J’s school whilst on a school excursion and informed the parent that Ms J was a paedophile.

13. The father also alleges that at the time of the commencement of his relationship with Ms J the mother again began making “threatening and abusive communications” to him by telephone, text message and email. The father annexes a number of examples of what he says are transcripts of text messages he received from the mother. It suffices to say that most of the large number of text message transcripts attached contain offensive language rather than threats.

14. However, there is one group of threatening communications made by the mother to the effect that she will expose the father’s conviction for indecently assaulting her, firstly to Ms J and then to Ms J’s school, apparently on the basis that the school would not allow the relationship between Ms J and the father to continue if it were known that he was a “sex offender”.

15. I am satisfied that the mother has behaved in an erratic and at times volatile manner which may potentially give rise to a risk of harm to the child for the following reasons. Each of the AVOs made between the parties have been made for the protection of the father against the mother. The mother has been convicted numerous times between 2004 and 2012 for breaches of these Orders and on each occasion it appears she has pleaded guilty. Police records of the mother’s conduct in relation to her neighbours in G Town have the recurring themes of the mother publicly using abusive language when she feels aggrieved and becoming involved in physical fights sometimes in the child’s presence, and on one occasion when he was five, the child even intervened in such a fight. On more than one occasion, police formed the view, according to police records, that the mother and the other party were equally responsible for these physical fights, though there are numerous other incidents where she is described as a victim. The mother’s conduct in relation to Ms J, such as contacting Ms J’s employer and a parent on an excursion and informing them that Ms J was a paedophile, and confronting Ms J at a soccer match are further examples of the mother’s erratic behaviour.

16. I am also satisfied based on a close examination of the text messages that the mother’s communication with the father over much of their relationship is offensive and abusive as opposed to threatening and intimidating.

The parents’ current psychological state

1. As indicated, the mother’s psychological functioning is a matter that is relied upon by each of the parties in support of their proposals. The mother says that because of it, she needs to escape from the father, while the father contends it gives rise to a risk of harm for the child.

2. The mother’s affidavit contains no current evidence concerning this issue, except a statement that she is currently seeing a psychologist to overcome “the post-traumatic stress disorder and anxiety” related to the father’s emotional and physical abuse of her over ten years. A report from the mother’s current treating psychologist has not been obtained.

3. When interviewed by the Family Consultant in July 2013 the mother said that her doctor was encouraging her to take anti-depressant medication, but she was reluctant due to previous negative experiences. She told the Family Consultant that her depression, anxiety and post-traumatic stress disorder were a result of her current situation and history with the father and would go away once her situation changes. Under cross-examination, the mother agreed that her general practitioner had referred her to a psychiatrist who she had seen twice. The mother also agreed that she had seen a female psychiatrist to whom she had been referred by another general practitioner on ten occasions. No report from either of these psychiatrists was before the Court.

4. Under cross examination the mother also agreed that she was very distressed and angry and that she needed some help and agreed that she was concerned about her own behaviour when she became agitated and angry. The mother said under cross examination, when asked about her inability to even contemplate the child living with his father, that she did at times have an anger management problem and understood that her anxiety was sometimes misunderstood as aggression.

5. The mother also agreed that she had telephoned the father at 7.30 am prior to Court while she was under cross-examination. She agreed that she had said “tell that fuckwit of a lawyer of yours that I am dressed to go to gaol and he’s got one hour to get to the point or I’m putting up my hands and stopping it”. She said that it was a foolish thing to do but said that she had had an anxiety attack. The mother agreed that this action showed she has high anxiety levels and seems to be impulsive but did not agree that the call demonstrated that she had no fears of coercion from the father or that she was unable to control her impulses.

6. As previously noted, the Family Consultant was concerned that each of the parents may have a personality disorder and recommended that a psychiatric report be obtained.

7. So far as the ongoing sexual relationship between the parents is concerned, the Family Consultant said that the agreement between the parents for them to holiday together at K Town in January 2014 is “baffling”. However, the Family Consultant also said it did fit with the pattern of behaviour that the parents had been engaged in throughout the child’s life, which causes the child to be upset and confused. He said that it is likely that this behaviour would send mixed messages to the child as it would raise his hopes about his parents’ capacity to cooperate. The Family Consultant said history suggests that the child will be disappointed when his parents show that they do not have this capacity.

8. The Family Consultant said that, regardless of the exact details of the weekend in January 2014, the fact that it occurred demonstrates that the parents have some ongoing “enmeshment”.  He said this enmeshment may cause difficulties when either of them re-partners and referred to the mother’s behaviour towards Ms J in this regard. The Family Consultant described this enmeshment as both parties’ incapacity to emotionally separate from one another, which he described as concerning.

9. The Family Consultant was also concerned about the parents’ ongoing social engagement with one another, such as sharing a meal together a short time prior to his assessment. He described this as unhelpful and said that the parents’ failure to learn in 11 years is concerning. He said, although the parents did cooperate at times, they have not shown the capacity to consistently hold their own needs in abeyance so as to continue to cooperate. In these circumstances, the Family Consultant said that it may be that the most sensible course would be to limit the level of contact between them as far as possible.

10. The father was also cross-examined about the role his conduct may play in exacerbating the mother’s emotional state. Firstly, upon cross examination as to their sexual relationship generally, the father agreed that he had maintained some type of sexual relationship with the mother since the child’s birth.

11. The father agreed under cross examination that he was aware that the mother said she had post-natal depression and had mental health problems as a result of having been sexually assaulted when younger and physically and mentally abused by her mother throughout her childhood. He also agreed he was aware recently of her diagnosis of post-traumatic stress disorder, but that he had continued to engage in sexual activity with the mother.

12. When cross examined about the sexually offensive and provocative messages that he sent to the mother over the years, the father ultimately agreed that it was possible that sending such messages may escalate the situation, cause police to become involved and for the child to suffer and that it was not a good idea to “stir the mother up”.

13. The father also agreed under cross examination that setting up a fake Facebook account and pretending to be another person who had a relationship with the mother was deceptive and could have made the mother emotionally upset and angry. He also agreed that his conduct which led to the indecent assault charge was disrespectful to the mother and would also have made her angry and upset.

14. When asked under cross examination whether he sought any treatment for any psychiatric disorder, the father did not appear to understand that his behaviour of being cooperative with the mother at times, then provocative towards her and then appearing to reconcile and cooperate again may raise concern about his own mental state. Although he said that he understood the Family Consultant to say his relationship with the mother was not “healthy” for the child, this had not occurred to him before.

15. I am of the view that the mother’s behaviour is connected to her emotionally fragile state and psychological disturbance, which to a large extent is due to the ongoing strained relationship with the father. I am also of the view that the father is aware of the mother’s fragile psychological state. In his affidavit he says at [65(i)]:

    I accept the Respondent mother has various mental difficulties. It is my belief they relate back to her difficult relationship with her mother during her childhood. The Respondent mother on numerous occasions during our relationship indicated to me that she had been the subject of both physical and mental abuse by her mother.

    He also says that the mother told him that she had been sexually assaulted.

1. Despite the fact that the mother’s conduct and fragile emotional state relates to the strained relationship with the father, each of the parents continues to be drawn to one another due to their “enmeshment” and continues to have contact with the other, including social and sexual contact, which is described by the psychologist as not helpful or healthy for either of them and for the child. I am satisfied that the mother’s particularly volatile behaviour towards Ms J arose from this enmeshment, that is, her incapacity to emotionally separate from the father, even though the mother alleges that he is her abuser. Her ongoing requests of the father to assist her are further examples of this enmeshment. The father likewise seems to be enmeshed and incapable of emotionally separating from the mother and does not appear to understand the damaging impact upon the mother’s mental state of him continuing to have sexual contact with her, even when it seems that she is consenting to it.

2. The father denied that his behaviour had any connection to the mother’s psychological condition until cross examination where he begrudgingly conceded that it was not a good idea to stir the mother up and that his behaviour on a number of occasions would have made the mother upset. In the circumstances of this matter, I am satisfied that the father has little insight into the impact that the extremely contradictory attitude he shows towards the mother has upon the mother’s mental health. The mother herself also appears to lack insight into the damaging effect upon her of perpetuating a relationship with the father, especially a sexual one.

The Law & Discussion

1. The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it, set out in section 60B, form the framework for the part of the Act dealing with parenting.

2. The objects are to ensure that the best interests of children are met by:-

   a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

3. The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   d)parents should agree about the future parenting of their children; and

   e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

4. According to section 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.

5. Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.

6. It is clear from the cases dealing with relocation that these types of matters are not to be dealt with as a separate category of parenting matters. Rather, they are to be determined, like all other parenting matters, in the context of a child’s best interests. The Full Court said in Malcolm & Munroe and Anor (2011) FLC 93-460 at [83]:

   … it is properly part of a Court’s inquiry to consider what each parent proposes and to determine the context of those plans and reasons for them in determining what is in the best interests of a child.

Primary considerations

1. The primary considerations (under s 60CC(2)) are:-

   a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and

   b)The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. 

   As these proceedings were commenced prior to 7 June 2012 when the parenting provisions of the Act were amended, each of the primary considerations are to be balanced equally in this case.

Will the child have the benefit of having a meaningful relationship with both of his parents under the proposed orders?

1. The meaning of the phrase “meaningful relationship” is not defined in the Act itself. The Full Court in McCall & Clark[3] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[4] and has also agreed with the reasoning of Bennett J in G & C[5].  Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:

   What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.

   [3] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92

   [4] (2007) Fam LR 518

   [5] [2006] FamCA 994

2. Bennett J discussed the terminology in G & C (supra) and said “the enquiry was a ‘prospective’ one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).”

3. Although there are shortcomings in relation to each of the parents, which will be dealt with further in these reasons, I accept the submission of each of the parties that a meaningful or significant relationship with both parents will be of advantage to the child.

4. Each of the of the parent’s proposed orders, which involve the child living primarily with one parent but spending time with the other parent, would have the effect of the child enjoying a meaningful relationship with each of his parents. However, the proposal of the mother to move the child to Queensland would involve a significant reduction in the child’s time with his father, and the nature of the relationship between them would inevitably change if the child were to spend only holiday time with his father rather than the more extensive time that they currently spend together.

5. The father’s case goes further, as in submissions made on his behalf it was put that if the mother were permitted to relocate to Queensland the established relationship between the child and his father would cease. The father contends that the evidence establishes that the mother is unable to detach emotionally from the child for any significant period of time and that the mother’s disturbed emotional state is exacerbated when the child is out of her care. The father submits that the mother cannot bear for the child to be away from her, which was demonstrated in Court when the option of the child living primarily with the father led to an almost hysterical reaction from the mother. The father also referred to what he describes as the “threat” directed to him and a challenge to the authority of the Court that, unless the mother can relocate, she will pursue charges in relation to the sexual activity in K Town. Overall, it is submitted that the Court could not be confident on the basis of the mother’s past behaviour, including previous failures to make the child available for time together at holidays and on some weekends, that the mother would promote the relationship with the father if she were permitted to relocate.

6. While I cannot conclude that the relationship between the father and the child would cease in the event the mother and the child relocate, I do accept that the mother, on the basis of her past conduct, may not promote the relationship between the child and his father if she were permitted to relocate and may make it difficult for them to spend time together.

Is there a need to protect the child from harm from being exposed to or subjected to neglect, abuse or family violence?

1. The mother contends that she has been the victim of the father’s abuse and violence and the father contends that the child needs to be protected from the psychological harm occasioned by the mother’s conduct. However, each of these contentions relates to only part of this consideration, which is directed towards the nexus between harm occasioned to a child being exposed to family violence or being subjected to abuse or neglect.[6]

   [6] This primary consideration is limited in scope by the definitions of “family violence” and abuse” set out in sections 4 and 4AB of the Act.

2. There is no suggestion that the child has been neglected or abused. It has also not been suggested that the psychological harm that the child may suffer is due to neglect, abuse or family violence, but to the mother’s erratic behaviour due to her psychological state.

3. I am satisfied that the child has at times been exposed to the erratic behaviour of his mother, which at times can be violent towards people such as Ms J or neighbours. I have also found that the child has been drawn into the parental conflict by each of his parents. However, I am not satisfied that the child has been harmed by being exposed to or subjected to family violence.

4. Therefore, these matters are dealt with under other considerations such as the parents’ capacity and attitude to the child and responsibility of parenthood rather than under this consideration.

Additional considerations

1. Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.

B’s views

1. When the child was last interviewed by the Family Consultant in July 2013 when he was ten, he said that he wanted to spend equal time with each parent or otherwise live predominantly with his mother. He also said that the prospect of living in Queensland was exciting but that he would miss his father.

2. The Family Consultant was of the view that significant weight should not be placed on the child’s views because of the context in which they were given. That context includes the child having been exposed to parental conflict, that it was developmentally inappropriate to suggest that it was up to the child to decide such a matter at his age, that the child loves his parents and that it is likely the child’s views may be reflective of wanting to have a relationship with each of his parents and because of his age.

3. I accept this evidence and attach little weight to the child’s views, apart from them reflecting his love for and desire to have a relationship with each of his parents.

The nature of the child’s relationship with each parent and other significant persons

1. Despite the shortcomings of each of the parents, it seems beyond dispute that the child is closely attached to each of them. There is also evidence to support his attachment to his paternal grandmother.

2. It is the mother’s case that if she is not permitted to relocate to Queensland her health will suffer further and this will have a negative impact on the child and would place the child’s relationship with her at risk. As indicated in these reasons, I am of the view that the father’s conduct towards the mother and the strained relationship has significantly detrimentally affected her emotional state. However, I also consider that ongoing enmeshment and involvement of the parents in each other’s lives is the factor that currently has the greatest negative impact upon the mother’s mental state.

3. Although the mother submits that permitting her to relocate to Queensland is the only way in which her mental state can improve, I am of the view that any orders which provide for a limit on the contact between the parents will be beneficial to the mother’s mental state and reduce the risk of damage to her relationship with the child.

4. The mother stated on a number of occasions under cross examination that her primary reason for wanting to relocate was to be able to get away from the father and that she felt trapped by him in the I Town area. Orders which allow for the mother to move from her current location but maintain the child spending regular time with his father will mitigate the risk of damage to the child’s relationship with each of his parents.

The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent

1. Each of the parents has at times since separation shown little willingness and ability to encourage and facilitate a close and continuing relationship between the child and his other parent.

2. Initially, the father was required to apply to the Court for orders in order to spend time with the child, but in July 2006, when the Orders provided for the child to spend weekend time with his mother, the father did not facilitate this occurring and has not adequately explained why this was the case.

3. At other times the parents have been quite cooperative and for a number of years and the child quite regularly spent more time with his father than provided for in the Orders. At other times, especially in 2011 and 2012, the mother regularly withheld the child from his father, apparently due to her belief that the father had not paid child support as required.

4. I would need to be satisfied, in order to permit the mother to relocate to Queensland with the child, that the mother is willing and able to facilitate and encourage a close and continuing relationship between the child and his father. As I have indicated, on the basis of past conduct, I am concerned about the mother’s willingness and ability in this regard.

The likely effect of change in the child’s circumstances

1. Each of the orders proposed, including that which was raised in the course of the proceedings by myself, which is supported by the Independent Children’s Lawyer, involves a change for the child from his current circumstances.

2. The mother’s proposed orders would provide the most dramatic change with the child being relocated to Queensland. I am of the view that while the child said he was excited about the prospect of moving to Queensland, the reduction in time with his father to holiday time only is likely to have an adverse effect upon the child’s relationship with his father.

3. Although it is the mother’s case that her poor psychological functioning is due to the father’s conduct alone, and I have found that he has significantly contributed to it, there nonetheless remains a concern about the mother’s volatile behaviour in settings other than with the father, including with neighbours, other relatives and friends and towards Ms J. The mother also behaved impulsively and showed poor emotional regulation at times even during the hearing itself, including making an abusive telephone call to the father while under cross examination. Although recommendations had been made for the mother to seek assistance in relation to her mental health for some time, she has been reluctant to seek this assistance and has little insight into the role played by factors other than the father’s conduct upon her mental state. I am concerned that if the mother were permitted to relocate, she would not access the mental health services that she requires, which could place the child at some risk due to her impulsive and erratic behaviour.

4. The father’s proposed orders have the advantage of ensuring that the mother accesses psychological services prior to her commencing spending time with the child. It has the significant disadvantage, however, of amounting to an immediate change of residence for the child and him spending no time with his mother until she receives treatment. I can only conclude that this would have a dramatic impact upon the child as his mother has been his primary carer throughout his life.

5. The proposal whereby the child remains living with his mother but reduces the time with his father to alternate weekends and holidays only, involves the least changes in his circumstances and has the advantages of reducing the parents’ contact with each other, which is the most significant consideration in this case. This arrangement may involve some changes in the future as the mother may decide to move from the I Town area, but her capacity to move is limited under the orders.

Practical difficulty and expense in spending time with and communicating with the other parent

1. This consideration looms large in relation to the mother’s proposal. Under it she proposes that the child only see his father during school holidays. This would involve flights from and to Queensland and some expense, which under the mother’s proposal is to be borne by the father alone. The father was not working at the time of the hearing and it is unknown if he could afford the flights involved in the mother’s proposal. Further, under the mother’s proposal, there are no fixed times for the child’s time with his father to occur, which would involve further negotiation and contact between the parents. This, in my view, is likely to create conflict between them, to which the child may be exposed.

2. The alternative proposals do not involve issues of practical difficulty or expense in spending time with the non-residential parent as the mother would be required to remain living within a 30 kilometre radius of the father’s residence.

Capacity of the child’s parents to provide for his needs, including emotional and intellectual needs

1. Each of the parents has demonstrated a capacity to provide for the child’s physical needs. The mother has a particularly impressive view of the value of education and, although she does not have a well-formulated plan for the future, I am confident that she would meet the child’s educational needs if she were permitted to relocate to Queensland or if she were to remain in Sydney.

2. Each of the parents has demonstrated that they do not understand the child’s emotional need to be protected from their ongoing dispute. Some damage undoubtedly has been done by the exposure to ongoing conflict and verbal abuse between the parents. The father only appeared to become aware during the proceedings of the impact upon the child when he behaves in a provocative and offensive manner himself towards the mother or when he “stirs her up”.  

3. Equally, the parents have shown their incapacity to provide for the child’s emotional needs in their ongoing attempted reconciliations, which have unrealistically raised the child’s hopes about their level of cooperation and have likely left him confused and upset. Neither parent appeared to fully comprehend how these attempted reconciliations and ongoing enmeshed relationship impacts upon the child.

4. The alternative orders supported by the Independent Children’s Lawyer have the advantage of reducing the level of contact between the parties and may assist them in becoming less enmeshed. Each of the parents’ proposed orders provide for a greater degree of contact between them, which brings with it risks associated with ongoing conflict and enmeshment.

Attitude to the child and responsibilities of parenthood demonstrated by each parent

1. Each of the parents has shown an inconsistent attitude to the child and the responsibilities of parenthood. From the mother’s position, the child was effectively abandoned by the father from a very young age and much of her behaviour which was harassing towards the father was in an effort to reconcile.

2. The father has at times spent more time with the child than provided for under the Orders and cared for him full-time, for example, when the mother underwent rehabilitation for her cannabis use. However, at other times he has shown a poor attitude to his parental responsibilities, such as only agreeing to take care of the child when the police informed him that if he did not do so the child would be placed into foster care. Further, after Orders were made in 2006 for the child to live with the father and spend time with the mother, the father refused to allow the child to spend time with his mother and has not adequately explained why he did so.

1. In more recent years, each of the parents has been manipulative towards the other for their own purposes and shown an irresponsible attitude to their respective parental roles. The mother, for example, on the basis of her own belief that the father was not paying child support as required persistently withheld the child from his father at times throughout 2011 and 2012 in particular. The text messages from this period make it clear that the mother made a connection between withholding the child from time with his father and her belief that the father was not paying adequate child support. The father simply states that he has paid more child support than required. Neither parent has produced corroborating evidence in relation to this issue to the Court and it is unknown whether the parties attempted to address this issue through the Child Support Agency or some other formal process.

2. The mother has on a number of occasions exposed the child to violent and volatile altercations with neighbours and others, and on at least one occasion it appears that the child became involved in an incident, possibly in an attempt to protect his mother. While she complains about the impact upon herself of violence said to have been perpetrated by the father, she has failed in her parental role to protect the child from her violent outbursts.

3. The mother’s plan to relocate to Queensland is, in my view, far more based upon the mother’s own desire to escape the father than as a proposal that would benefit the child. Even on this issue, the mother was inconsistent as when the possibility of her relocating to some other part of Sydney was raised so that she would not feel as she expressed “trapped in [I Town]”, it was submitted on behalf of the mother that she could not afford this proposal.

Whether it would be preferable to make an order that would least likely lead to the institution of further proceedings

1. Under the father’s proposal, the child will live with him and only spend time with his mother in an increasing regime if she first receives treatment from a mental health professional. In my view, there is a real risk that compliance with this precondition will give rise to disputes that may see the parties return to Court.

2. Similarly, there is some risk that if the mother were permitted to relocate to Queensland there may be further proceedings given that the mother’s proposal requires the parents to communicate and agree upon the days the child is to spend with his father as well as necessary travel details, and will also involve ongoing cooperation, which the parents have indicated they are not capable of.

3. The alternative proposal, agreed to by the Independent Children’s Lawyer, has the advantage of being more detailed and not leaving anything to agreement between the parents as well as reducing the contact between them to a level which is strictly necessary.

Parental responsibility

1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, section 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.

2. Where the Court is to determine parental responsibility, the starting point is section 61DA. This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence, or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them.

3. Each parent seeks sole parental responsibility for the child.

4. As indicated, the presumption does not apply where a parent has engaged in family violence. I am not, however, satisfied that family violence of the kind that the Act deals with exists in this case[7].

   [7] Section 4AB of the Act defines “family violence” as meaning “violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful.”

5. In this matter there is, however, a high level of conflict between the parents, which raises an obvious difficulty for equal shared parental responsibility. The parents are also enmeshed and I am not satisfied that they can work together in a cooperative manner, focused on the child’s needs, to exercise parental responsibility in an effective manner. They do not appear to be able to put their own needs aside and, as the Family Consultant said, cannot emotionally separate from one another. Their enmeshment has impacted upon their focus on and understanding of the child’s needs, and has had a psychological impact upon the mother. The most sensible course would be for these parents to have as little contact with each other as possible. Limiting their contact with each other would not be conducive of them exercising any form of joint parental responsibility.

6. I am satisfied that equal shared parental responsibility would be practically unworkable between these parents. Having regard to it being in the child’s best interests for him to not be exposed to any further parental conflict, which will require limited contact between his parents, I am satisfied that the person with whom the child lives should have sole parental responsibility for him. An order will be made accordingly.

7. As the presumption has been rebutted, I do not need to consider the statutory framework set out in s 65DAA of the Act when parental responsibility is jointly shared.

B’s living arrangements

1. On the basis of the best interest considerations, including in particular the nature of the child’s relationships with each of his parents and the likely impact of a change in circumstances, I am satisfied that it is in the child’s best interests to continue to live with his mother, who has been his primary carer for his entire life. Although I do have some concerns about her behaviour, to a large extent it relates to her ongoing relationship with the father and does not raise such a significant risk of harm that it would justify changing the child’s residence. I am also satisfied that it would not be in the child’s best interests for his time with his father to be significantly reduced, and in this respect, their time together should continue to be regular time, not just school holiday block periods as proposed by the mother.

2. I am satisfied that the child should spend alternate weekends with the father. This is short of substantial and significant time, which must also include non-weekend time. However, I do not consider mid-week time to be appropriate in this case because of the parent’s enmeshment and conflict. For the child’s benefit, the parents need to be separated and the child needs to be protected from the confusion arising from his parents’ enmeshed and “on-again, off-again” relationship. It is therefore not considered appropriate that the child spend more than alternate weekend time with his father during school term. Changeovers can take place to and from school on these occasions, avoiding the need for the parents to come into any direct contact.

3. For the same reasons, orders will be made for the parents to have limited communication, except in the event of an emergency involving the child.

4. In finding that the child should spend alternate weekend time with his father, I am also satisfied that it is not in the child’s best interests for the mother to be permitted to relocate him to Queensland. In my view, it is appropriate, however, for the mother to be permitted to relocate further away from the father’s current residence. An order will be made that she be permitted to relocate within a 30 kilometre radius of the father’s residence. As the child’s time with his father will not include mid-week time, any relocation permitted under these orders will not have a significant impact on the maintenance of the relationship between the child and his father.

5. Having regard to all of the circumstances in this case, the orders outlined at the forefront of these reasons for Judgment are considered to be in the child’s best interests and orders are made accordingly.

I certify that the preceding one hundred and eighty-six (186) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 7 August 2014.

Legal Associate:       

Date:    7 August 2014