Sachs and Sachs
[2014] FCCA 2839
•23 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SACHS & SACHS | [2014] FCCA 2839 |
| Catchwords: FAMILY LAW – High conflict parents – father and child in Adelaide – mother in Melbourne – where child is to live – spends time with. |
| Legislation: Family Law Act 1975, ss.60, 60CC, 61DA, 65DAA |
| Goode & Goode (2006) FLC 93-286 Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187 MRR & GR (2010) 240 CLR 461 Paskandy & Paskandy (1999) FLC 92-878 Reiner & Bedford [2014] FCCA 170 (7 March 2014) Watson v Foxman (1995) 49 NSWLR 351 |
| Applicant: | MR SACHS |
| Respondent: | MS SACHS |
| File Number: | ADC 1449 of 2009 |
| Judgment of: | Judge Altobelli |
| Hearing dates: | 8 – 9 May, 3 October 2014 |
| Date of Last Submission: | 8 December 2014 |
| Delivered at: | Wollongong |
| Delivered on: | 23 December 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms Hurley |
| Solicitors for the Applicant: | Di Rosa Lawyers |
| The Respondent appeared in person |
ORDERS
That the orders made in the Federal Magistrates Court of Australia at Adelaide on 20 May 2009 be hereby discharged.
That the Father shall have sole parental responsibility for the Child [X] born [omitted] 2007 (“the Child”).
That the Child shall live with the Father.
That the Child shall spend time with the Mother as follows:
(a)During term time on two weekends from 10:00am Saturday until 4:00pm Sunday in Melbourne with such weekends to be nominated by the Mother and with the Mother to provide the Father with no less than 21 days prior written notice of such weekend;
(b)During the Adelaide school holiday period from 7:00pm on the first Friday until 4:00pm second Sunday (or at such other times as can be agreed) provided the Mother provide the Father with no less than 21 days’ notice of her intention to take holiday time;
(c)During term time on one additional weekend in Adelaide, from immediately after school on Friday to before school on Monday, with the Mother to provide the Father with no less than 21 days notice of her intention to take this additional time.
(d)Such further time and upon such conditions as can be agreed between the parties, noting however in the event the Mother travels to Adelaide she is to provide the Father with no less than 7 days prior written notice of her intention to travel to Adelaide.
That handovers and the commencement and conclusion of the Mother’s time whilst in Adelaide be at a location as can be agreed or in default of agreement at the [address omitted], Adelaide.
That the parties shall keep each other informed of their residential addresses and telephone numbers at all times, and shall forthwith advise the other of any changes thereto (including but not limited to the Mother’s address whilst she is staying in Adelaide with the said Child).
For the purposes of handover in Melbourne at the commencement of time, that it occur at the luggage pick up point at the Airport Terminal and at the conclusion of time, that it occur at the domestic check in foyer of the Father’s nominated airline together with all of the said Child’s luggage.
At least 21 days before the periods of time the Mother nominates for time with the Child, or is entitled by these Orders to spend time with the Child, she must book and pay for the Child’s flight from Adelaide to Melbourne and notify the Father of these arrangements, which must be consistent with these Orders. At least 14 days before the period aforesaid, and after the Mother has notified the Father of the travel arrangements, he must book at his own cost the Child’s travel from Melbourne to Adelaide and notify the Mother of these arrangements, which must be consistent with these Orders.
It be a condition of these Orders that:
(a)the Father (or a nominated person) accompany the Child on her travels to and from Melbourne for the first 12 months or until such time as the Child expresses a wish she does not require parental support;
(b)in the event that the Child requests to contact the Father by telephone that she be permitted to do so; and
(c)in the event the Child becomes distressed at any time, the Mother do contact the Father (or the nominated person in 9(a) above) and the Father be at liberty to see the Child if the Child so requests.
The non-resident parent be at liberty to communicate with the said Child via telephone, Skype or Facetime (or equivalent) each Sunday night from 6:30pm (Adelaide time) or at such other times as shall be requested by the said Child from time to time.
That the parties shall forthwith notify the other of any medical emergency or serious health issue concerning the said Child and provide the Mother with any medical information and/or documentation concerning the said Child as the Mother shall reasonably request from time to time.
That the Father shall advise the Child’s school to provide the Mother with reports, notices and other information that is usually provided to parents by any school, education institution concerning the said Child’s education and extra-curricular activities as the Mother shall reasonably request from time to time.
That the Mother do pay within 14 days her half share of the Family Assessment Report as was Ordered by Judge Simpson on 8 November 2013, unless she has reached an agreement with the Report writer to the contrary.
That the parties do equally pay for the costs of the Ms N Family Consultant incurred for her attendance at Trial for the purposes of giving evidence.
That the Mother be restrained and an injunction be granted restraining the mother and or her agent from:
(a)Removing the Child from Adelaide; and
(b)Attending at the Child’s school;
unless in accordance with a Court Order and otherwise without the written consent of the Father.
That the Mother be permitted to attend at the Child’s school for the purpose of attending any function or event that a parent would ordinarily be entitled to attend.
That the parties are restrained and an injunction granted from:
(a)Denigrating the other party, or member of that parties family in the presence or hearing of the Child; and
(b)Permitting or allowing any third party to denigrate the other party, or member of that parties family in the presence or hearing of the Child.
The parties shall do all things necessary to facilitate the Child telephoning the other party if the Child wishes to speak to the other party.
The Mother is to ensure that the Maternal Grandmother is not to be present at, or within 500 metres of, the location of any changeover for the purpose of these Orders.
Notwithstanding anything to the contrary in these Orders, and having regard to the making of these Orders after the commencement of the Child’s school holidays, unless the parents have already made their own arrangements by the time these Orders are made, the Mother may spend time with the Child for a period of one week, calculated from 12:00pm on day 1 to 12:00pm on day 8, provided she gives the Father 14 days’ notice, and provided that the Child is returned to the Father (with changeover to be in accordance with Order 5 above) no later than the Saturday before the commencement of school term 1, 2015.
That all applications be removed from the pending list.
IT IS NOTED that publication of this judgment under the pseudonym Sachs & Sachs is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 1449 of 2009
| MR SACHS |
Applicant
And
| MS SACHS |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about [X], born [in] 2007, now seven years old. [X]'s parents are at war with each other, ostensibly about where [X] should live and how much time she should spend with the other parent. In reality, this dispute masks a power struggle between them, and suggests that many years after the end of their relationship, there are unresolved issues between them which are merely manifested in the war about [X].
Regrettably for [X], this war commenced in 2009 when she was merely two years old. Even though there was a ceasefire for a short period of time, the war resumed in earnest in 2012. What is plainly evident is that [X] is caught in the crossfire of her mother and father's conflict with each other. She is the one suffering the most as a result of the dysfunction of both her parents. They are seemingly oblivious to the psychological harm she has been, and continues to be at the risk of, experiencing.
Background
[X]'s father is the Applicant in this case. He is 46 years old, lives in Adelaide, and describes himself as a [occupation omitted]. [X]'s mother is the Respondent. She lives in Melbourne and describes herself as undertaking home duties, as well as casual [omitted] work. She is 32 years old. The parents commenced cohabitation in 2004 and married in 2006. In 2008, when [X] was one year old, the parties enrolled her to attend [A] School in Adelaide. The significance of this will become apparent shortly.
The parents separated for the first time in 2009 and on 20 May 2009 entered into Consent Orders which were made by Federal Magistrate Simpson, as he then was. These Orders provided for [X] to live with her mother and spend time with her father. Later in 2009, the parents reconciled.
By April 2011, [X]'s parents had separated on a final basis. The evidence indicates that it had become apparent to both parents that [X] had some developmental issues that required remedial therapy, and would benefit from attending a program called Kids Sense which was conducted at [A] School in Adelaide. As will be seen, there is some contention about which of the parents made this decision and who initiated the idea, but the evidence is quite clear that by October of 2011, [X] had commenced therapy with Kids Sense and by November, she had commenced attending at [A] School in Adelaide.
At about that time, [X] started living with her father in Adelaide as she had, up until then, been living with her mother in Melbourne. The situation at the time, therefore, was that despite an order that provided for [X] to live with her mother in Melbourne and spend time with her father, she was, in fact, living with her father in Adelaide and spending time with her mother. Whilst the evidence is clear that both parents agreed that [X] should attend [A] School in 2012, the Father believes it was a long-term, if not permanent arrangement, whereas the Mother believes it was a temporary arrangement limited, in fact, to 2012 with [X] to return to her care after a year at [A] School.
In 2012, it is relatively uncontentious that [X] spent at least four periods of block time with her mother, three of which seem to have been organised between the parents themselves, and one of which was ordered on 6 December 2012 after the Father commenced the present proceedings. A procedural history of the matter will be provided below.
The progress of the litigation appears to have been hampered and delayed as a result of the Mother changing legal representation and becoming self-represented. In any event, after a false start as a result of what would appear to have been the Mother's lack of engagement in the Family Report process, a report was eventually obtained but not until February 2014. Various orders were made in 2013 that dealt with the Mother's time with [X].
By the time of the Final Hearing before me, the Mother had become self‑represented but at least a Family Report had been obtained. Curiously, until a very late state (indeed too late) no one had sought the appointment of an Independent Children's Lawyer despite this case clearly requiring one due to the intractable nature of the conflict between the parents, but the Court recognises that it is possible that even if the order had been made, funding may not have been available to actually appoint one. The Mother became completely self-represented at the hearing.
The orders sought by the Father are reproduced in the First Schedule to these reasons. In short, he sought orders that [X] continue to live with him in Adelaide but spend time with her mother, both in Adelaide and in Melbourne, and gradually increasing in terms of duration.
The Mother's proposal was that the parenting orders revert to the original Consent Orders made in 2009 that provide for [X] to live with her and to spend time with her father. As the hearing progressed, I was very keen to ascertain from the Mother whether she had an alternative proposal in case the Court decided that [X] should remain living with her father. As with much of the Mother's evidence, for reasons that will be discussed below, it was difficult to understand what she meant.
Nonetheless, doing the best the Court can, when asked on oath on 3 October 2014 about an alternative proposal, the Mother explained this in terms of:
Every occasion I want, he must give it... He must not breach orders... I should see her on birthdays, holidays, Christmas, school holidays... And in the school term, I should be able to just turn up in Adelaide, tell the Father, and he should encourage [X] to spend time with me.
The Family Consultant recommended that [X] continue to live with her father and spend time with her mother. The evidence of Ms N, the Family Consultant, will be dealt with in much more detail.
The issue before the Court is where [X] should live, for what period, and under what conditions should she spend time and communicate with the other parent, how parental responsibility should be allocated, and whether various other restrictions should be imposed on the conduct of the parents.
These reasons for judgment will be structured as follows. A procedural history of this case will be provided in the next section. The evidence that the parties relied on will be identified. I will set out the applicable law. As to issues of credit arising in this case, indeed there is very little common ground between the parents, it will be necessary to make observations and findings about the reliability of the evidence given by the parents. The expert evidence of the Family Consultant will then be set out and discussed in some detail. This is not because this evidence has primacy, but rather because it is independent and expert evidence. The remaining evidence will then be considered using the framework of various relevant provisions contained in the Family Law Act 1975 (hereafter referred to as the ‘the Act’).
Procedural history
The matter first came before Federal Magistrate Simpson on 7 May 2009. Final Consent Orders were made on 20 May 2009 which provided for equal shared parental responsibility, for [X] to live with the Mother in metropolitan Melbourne, and for the Father to spend time with her each alternate weekend for a period, and then gradually increasing as [X] attained the age of three years, then commenced pre-school, and then school. It is apparent from these Orders that, at the time, the Father would be in Adelaide, and the Mother and [X] in Melbourne.
The matter then came back before Federal Magistrate Simpson on 20 November 2012. On 6 December 2012, the 20 May 2009 Orders were suspended and Orders were made to facilitate [X] spending time with her mother in Melbourne. As will be apparent from the matters of background identified earlier in these reasons, [X] had been living with her Father in Adelaide for all of 2012.
On 13 February 2013, Federal Magistrate Simpson made an order that [X] spend time with her mother as agreed between the parties in writing. His Honour also ordered a Family Assessment Report (which I have referred to in these reasons as a ‘Family Report’). The matter was listed for Hearing before His Honour on 23 October 2013. However, on 27 September 2013, the trial date was vacated. On that date, there was no appearance by or on behalf of the Mother.
On 8 November 2013, there was a further order for a Family Report and, amongst other things, His Honour listed the matter for hearing again on 8 May 2014.
On 15 November, the matter was again before His Honour who made Orders by consent for [X] to live with her father and spend time with her mother, as defined in the said order.
The Family Report, dated 13 February 2014, was released shortly after that date. When the matter came before Judge Mead, on 31 March 2014, with no appearance by or on behalf of the Mother, Her Honour made some directions, the intent and effect of which were to ascertain what, if any, issues remained in dispute and whether the Mother intended to defend the Father's application in view of the Report.
On 30 April 2014, Her Honour, Judge Mead, in fact, appointed an Independent Children's Lawyer as a matter of urgency, given the imminence of the hearing on 20 May 2009. It appears that no such Independent Children's Lawyer was, in fact, appointed. In cross examination, the Mother gave evidence about an event which occurred outside the Court room but in the Court building. Security was called to attend. She shouted at the Father:
You couldn’t even get it up to give the sperm for her.
The Mother agreed that the Maternal Grandmother joined in what can only be described as an undignified melee. The context of this cross-examination was statements the Father asserts [X] made to him questioning whether he was her father, and the sources of [X]’s belief.
The Hearing commenced before me in Adelaide on 8 and 9 May 2014. The Family Consultant, Ms N, gave evidence. Ms S, the principal of [A] School, gave evidence. The parents gave evidence. The Hearing could not be completed and so, after hearing submissions and having regard to the evidence I had heard, I made some Interim Orders to seek to ensure that [X] would spend time with her mother between 9 May and 2 October 2014, being the date to which the matter was stood over for completion of the evidence.
The Orders were quite prescriptive as the evidence, by 9 May, clearly indicated that the parents lacked a capacity to enter into their own arrangements about parenting matters and, indeed, struggled to even comply with Court Orders. In short, the Orders provided for [X] to spend time with her mother in both Adelaide and Melbourne, as well as allocating responsibility for organising travel, paying the cost, parental behaviour and communication.
The matter came before me on 3 October 2014 in order to complete the evidence. On that date, I made further Interim Orders for the Mother to spend time with [X] in both October and November 2014 in Melbourne. It was anticipated that reasons for judgment and Final Orders would be available before the end of November 2014. On 30 October 2014, however, less than four weeks after the conclusion of the hearing, the Father filed an Application in a Case in which he sought, in effect, to reopen the evidence so that the Court could take into account events after 3 October, and to vary the Interim Orders that had been made on that date.
This Application came before me on 5 November 2014. The events in question will be discussed below. I made a number of directions to facilitate the production and access to evidence from the Australian Federal Police and Qantas Airways Limited. I also made directions in relation to evidence about the availability of supervised changeover facilities closest to the airports at both Melbourne and Adelaide. I made orders requiring the Mother to ensure that the Maternal Grandmother not be present at the time of changeover. I otherwise declined to vary the Interim Orders made.
The matter then came back before me on 8 December 2014 late in the afternoon. As it turned out, neither parent’s proposals changed by the end of the last appearance before me. As it turns out, the best source of evidence about the events that led to the matter being relisted before me is a statutory declaration made by the Maternal Grandmother on 31 October 2014 at Melbourne Airport. Her evidence is consistent with, for example, the notes produced by the Australian Federal Police. Her evidence was untested but is largely admissions against interest. She explains that she was there with the Mother and [X] to meet the Father so that [X] could return to Adelaide after Court ordered weekend time with the Mother. It is unnecessary to go into details of the alleged communication between the parents as some of this is in dispute. From the Court’s perspective this was just another example of the parent’s chronic inability to agree to anything about [X]. The focus is on the Maternal Grandmother’s actions, all of which took in place in public, and in front of [X]:
I lashed out at Mr Sachs and began hitting him multiple times with my handbag. I was pushing him in an attempt to get my granddaughter to say goodbye.
This was yet another undignified and very public melee, this time played out in front of [X].
The evidence relied on by the parties
As previously indicated, a Family Report was prepared by a Family Consultant, Ms N, dated 13 February 2014. Ms N was examined by both parties.
The Father relied on the following documents:
·Further Amended Initiating Application, filed 6 February 2014;
·Affidavit of Mr Sachs, sworn 25 October 2012;
·Affidavit of Mr Sachs, sworn/affirmed 6 February 2014; and
·Affidavit of Mr Sachs, sworn 4 May 2014.
The Father was cross-examined.
In the Mother's case, she relied on the following Affidavits, Statutory Declarations and unsworn documents:
·Response to Initiating Application, filed 7 December 2012;
·Affidavit of Ms Sachs, sworn 4 December 2012;
·Affidavit of Ms Sachs, sworn/affirmed 7 November 2013;
·Affidavit of Ms Sachs, sworn/affirmed 7 May 2014;
·Affidavit of Ms Sachs, sworn/affirmed 1 October 2014;
·Statutory Declaration of Ms D (the Maternal Grandmother), dated 31 October 2014; and
·A Declaration by Ms Sachs, without date or signature
The Mother was extensively cross-examined.
It is significant to note a few matters. Firstly, the Mother did not call the Maternal Grandmother to give evidence in her case, and the Father did not call the Paternal Grandmother and his partner to give evidence in his case. Secondly, the Court declined to allow further cross‑examination of the parties after 3 October 2014, so that evidence that was led in relation to the Father's Application in a Case was untested.
The Court is satisfied that what evidence there is either speaks for itself (the business records produced by the Australian Federal Police and Qantas Airways) or contains admissions (the Statutory Declaration of the Maternal Grandmother made 31 October 2014). The Court could discern no prejudice to either party, in these circumstances, in declining to allow further cross-examination. It was, in this Court's opinion, overwhelmingly in the best interests of [X] that these proceedings be finalised as promptly as possible.
The applicable law
The recent decision of Judge McGuire in Reiner & Bedford [2014] FCCA 170 sets out the relevant law in relation to relocation matters. I respectfully adopt, and reproduce in these reasons, His Honour’s statement of the relevant law at paragraphs 27-41 of his reasons with minor editing and omissions to reflect irrelevant material.
The Relevant Law
27. The issues in this matter demonstrate the difficulties facing parents and Courts where a proposed relocation of a child is raised. These difficulties are compounded where the child is still very young.
28. The Court is mandated to make orders which are in children’s best interests but many of the usual relevant considerations in a parenting matter are amplified by reasons of distance and the obvious impact on relationships with the remaining parent and other important persons in a child’s life should a relocation take place together with questions of the primary parent’s capacity to parent successfully are also brought to the fore.
29. It is inevitable that whatever order a Court makes in allowing or refusing a relocation, one or other of the parents will be left understandably aggrieved. If the relocation is permitted then time and nature of contact between the child and the remaining parent will almost always become less regular or less frequent and/or take a different form and/or bring with it its own limitations and difficulties. If there is a relocation then the primary parent will often take on a greater role and presence in the child’s life than might otherwise be expected. There will be a sense of loss and often a feeling of bitterness in the remaining parent. These emotions may flow to members of the remaining parent’s extended family and create difficulties for communicative and cooperative parenting thereby testing the parents’ own relationships which may have been until then productive and respectful. Conversely, if the relocation is not allowed then the primary parent will usually be left unhappy and often bitter with thwarted ambitions. The blame will inevitably be placed on the other parent and again testing the preferred cooperative and respectful relationship between them. All of these emotions and reactions have the potential to impact on the child and his or her own relationships.
30. The jurisdiction of this Court in making parenting orders comes from Part VII of the Family Law Act 1975 (“The Act”). The task for the Court is to make orders which, on balance of the probative evidence and the proposals of the parties, is in the child’s best interests. The jurisdiction of the Court is effectively in respect of children and whilst the Court may permit or refuse the relocation of a child, it cannot usually per se make orders which prevent the freedom of movement of an adult.
31. The Act itself is silent as to the notion of relocation of children. In that sense, relocation is neither prohibited nor is there is a presumption against it. Rather, a proposal by one parent to relocate a child, be that intrastate, interstate or internationally, is just one of many considerations for the Court in arriving at orders which on balance are in the best interests of the child.
32. Importantly, whilst the prospect of relocation may be the major or even igniting issue in the proceedings, relocation is not to be treated separately to the overall determination of the child’s best interests. That is, there is no specific category of “relocation case” and a matter involving a proposed relocation fails to be determined like any other parenting case. The Full Court in Paskandy & Paskandy [1]noted:
[1] (1999) FLC 92-878
There can be no dissection of the case into discrete issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be ‘permitted’.
33. Section 60B of the Act sets out the objects and principles underlying those objects in respect of children’s matters. This provides the framework for determining the best interests of children. That section states:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
34. Section 60CC of the Act sets out the mandatory considerations that a Court is to reference in respect of the proposals of the parties and the evidence given and adduced. That section provides:
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
35. In determining parenting orders and responsibilities, the Court must follow a pathway of statutory and intellectual considerations confirmed by the Full Court in Goode & Goode[2]. The starting point is that there is a presumption that it is in a child’s best interests for the parents to have equal shared parental responsibility for that child[3]. Parental responsibility refers to all those duties, powers, responsibilities and authority which parents have in relation to children by way of law. Such responsibilities usually manifest in long term and important decisions for children in relation to issues such as education, religion, medical procedure and the like as opposed to day-to-day decisions.
[2] (2006) FLC 93-286
[3] S.61DA
36. The presumption of equal shared parental responsibility applies unless there are reasonable grounds for the Court to believe that a parent or a person who lives with a parent has engaged in the abuse of a child or in family violence within the broad definition in the Act[4]. Alternatively, the presumption of equal shared parental responsibility may be rebutted by evidence satisfying the court that it would not be in the child’s best interest for the parents to exercise that responsibility.[5]
[4] S.61DA(2)
[5] S.61 DA(3)
…
38. If the presumption of equal shared parental responsibility does apply and is not rebutted, then the Court is obliged to consider two discrete parenting options or regimes. Firstly, the Court is to consider whether the child spending equal time between the parents is both in the child’s best interests and reasonably practicable?[6] If the answer to either of these questions is in the negative, then the Court must move to consider whether the child spending “substantial and significant time” with each of the parents is both in the child’s best interests and reasonably practicable.
[6] MRR & GR (2010) 240 CLR 461
39. “Substantial and significant time”, is defined in the Act[7] as:
[7] S.65DAA(3)
a) The time the child spends with the parent includes both:
i) Days that fall on weekends and holidays; and
ii) Days that do not fall on weekends and holidays; and
b)The time that the child spends with the parent that allows the parent to be involved in:
i)The child’s daily routine;
ii)Occasions and events that are of particular significance to the child;
iii)The time the child spends with the parents allows the parent be involved in occasions that are of special significance to the parent.
…
41. A long line of judicial authority has provided assistance for trial judges in extracting principles to be referenced in parenting matters involving a potential relocation. Significant amendments to the Act in 2006 enlivened judicial and academic debate in respect of matters involving a proposed relocation of a child. It seems, however, the authorities agree that the relevant principles remain valid (Taylor & Barker [2007] FamCA 1236; McCall & Clark [2009] FamCAFC 92; Sealer & Archer [2008] FamCAFC 142) and can be summarised as follows:
· Relocation matters are parenting cases to be determined in terms of Part VII of the Act and in the context of making necessary findings in respect of the relevant s.60CC factors but also within the context of the s.65DAA considerations of equal time or substantial and significant time and “reasonably practicable”;
· The best interests of the child remain the paramount but not the sole consideration;
· The child’s best interests must be weighed and balanced with the “right” of the parent to “freedom of movement” but such must ultimately defer to the child’s best interests; and
· Neither party carries an onus of proof in respect of the proposed relocation and the Court is to consider each party’s proposal generally including the advantages and disadvantages of a relocation or, may itself formulate proposals in the best interests of the child.
· A parent wishing to relocate a child need not provide compelling reasons in support of the relocation.
Reliability of evidence given by witnesses
It is, indeed, regrettable that credit findings are necessary in this case. Such findings are necessary, however, when the evidence of the parents is so divergent, especially on issues surrounding the Mother’s contact and communication with [X] in the post-separation. As will be seen, some of these credit findings are based on inconsistencies in evidence, both internal and external, but some of the findings are based on demeanour. There are obvious limitations in using demeanour to make adverse credit findings.
This is a case where credit findings are important. That means the Court needs to decide whether to accept the evidence of a witness, or witnesses, in whole or in part. Credit findings may be based on independent evidence, for example, a business record, public record, or the evidence of an independent person. Independent evidence may lead to a finding that the evidence of a witness should not be accepted. Often witnesses give competing versions of events. Each version of the event must be considered carefully and compared to other evidence including independent evidence. In some cases a party needs to rely on evidence of spoken words as the foundation of a cause of action, or to establish an essential fact in issue. In Watson v Foxman (1995) 49 NSWLR 351 at 319, Chief Justice McLelland in Equity said:
Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions of self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.
Each element of the cause of action must be proved to the reasonable satisfaction of the Court, which means that the court “must feel an actual persuasion of its occurrence or existence”. Such satisfaction is “not…attained or established independently of the nature and consequence of the fact or facts to be proved” including the “seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding”: Helton v Allen (1940) 63 CLR 691 at 712.
Considerations of the above kinds can pose serious difficulties of proof for a party relying upon spoken words as the foundation of a causes of action based on s.52 of the Trade Practices Act 1974 (Cth) (or s.42 of the Fair Trading Act), in the absence of some reliable contemporaneous record or other satisfactory corroboration. That is the position in the present case. There is no contemporaneous document in evidence which supports the making of any such promise or representation as is relied on and no other satisfactory corroboration.
Thus a court must always be conscious of the fallibility of memory and the distorting impact of self-interest. How a witness gives evidence is an important consideration. Thus a witness who “gives evidence in a forthright way, unperturbed under cross-examination, the court may well be disposed to believe the evidence than would be the case with a halting and prevaricating witness”: Cross on Evidence at [1285]. Nonetheless the Court must be very careful if making findings based solely on demeanour and must provide adequate reasons for making such findings: Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187. Ipp JA on that case, with whom Mason J and Tobias JA agreed said at [29]:
Often important issues of credibility involve sub-issues. Often, objective facts, or facts that are probable, are capable of having significant bearing on the sub-issues. In cases of this kind, it is incumbent upon trial judges to resolve the sub-issues and to explain, by reference to the relevant facts, the conclusions to which they have come. This having been done, they should then turn to the ultimate facts in issue and explain how their decisions on the sub-issues have assisted them in forming a conclusion on the ultimate issue. It is only when adequate reasons of this kind are given that an unsuccessful party will be able to understand why the judge has believed his or her successful opponent.
The other complication in this case is that whilst the Mother was expertly cross-examined by an experienced Counsel, the Father was cross-examined by the Mother and for a relatively short period of time. Even that does not prevent credit findings being made adverse to the Father, as it turns out.
The Mother was an unimpressive witness. Her behaviour was histrionic during most of the time that I observed her in Court. By histrionic, I mean that her behaviour and speech was consciously emotional and overdramatic. She resisted the suggestions that the Court gave to her about her conduct and manner in Court, ignored directions, and frequently had to be reminded that I was entitled to make assessments about her character and the evidence she gave based on her behaviour in Court. Indeed, I commented at least once, and probably twice, to both parents that if this is how they behaved towards each other in a Court of law, one could only imagine how they behaved towards one another when not subjected to the critical scrutiny of the Court.
There were several shouting matches between the parents in Court. I do not have the benefit of a transcript but I suspect I asked the parents, during the temporary lulls between their shouting matches, rhetorically, "What chance does [X] have if you two behave like this in a Court of law?" What is extraordinary, of course, is that the Father should participate in these shouting matches, despite being accompanied by solicitor and Counsel, but more will be said about him in due course.
Quite apart from the Mother’s histrionic behaviour during the case, she was frequently unresponsive in cross-examination, often ignoring the question that she had been asked in preference to making a statement she no doubt thought advanced her case.
It is frequently the case that parents, in these difficult children's cases, externalise responsibility for their actions or inactions. The Mother certainly did so. The nature and extent of her externalisation severely undermines her credibility. For example, frequently she said in cross-examination that she did not see the text message/email/letter/report/Affidavit that was before the Court, or she did not see those documents till later, or she was not getting her mail, or she received an email but could not open the attachment, or that she did not receive Express Posts, or that her lawyers got it wrong or that her Affidavit contains evidence she did not give, or that her plane was running late, or that there was a mistake in the order. In short, the sum total of the Mother's evidence in cross-examination was that she did nothing wrong and it is all the Father's fault.
In order to demonstrate the Court's concerns about the Mother's credibility generally, it is necessary to focus on some specifics. She was cross-examined about paragraph 9 of her Affidavit of 4 December 2012 where she gives evidence about enrolling [X] at [A] School in Melbourne as a result of [X]'s behavioural issues. In paragraph 9, she says, “In or around November 2011, a place happened to become available for [X] at [A] School.” Now, first she said that she had never said this to her lawyer. Next, she said that she had never read the Affidavit in question. A few moments later, she said that if she had made the decision to enrol [X] at [A] School, it was because she had been pressured by the Father to do so. Then she denied, however, that she made the enquiry at [A] School.
The Mother's denials on this topic are unconvincingly. She was plainly seeking to distance herself from the decision that she either made or actively contributed to, to send [X] to [A] School because of a special program it ran that would deal with the developmental issues pertaining to [X] that the Mother had herself identified. This is evidence that the Mother herself gives, not just in her Affidavit of 4 December 2012, but also in her Affidavit of 7 November 2013. The Mother's denials in cross-examination were plainly disingenuous.
The Mother then said in cross-examination that she did not know that [X] had started school at [A] School in 2012. The Court does not accept her evidence. [X]'s attendance at [A] School was part of the Mother's plan for her, and to somehow seek to assert that she had been excluded from [X]'s life by not being told about the enrolment is disingenuous.
Another matter strongly indicative of concerns about the Mother's evidence is that her cross-examination was so often full of generalisations even when confronted with, for example, very specific pointed questions. Thus, she was extensively cross-examined about occasions when she was in Adelaide in 2012 and 2013 when she could have spent time with [X] but did not do so. She said that the Father knew she would be in Adelaide and, therefore, should have initiated this. She was asked when did she tell the Father that she was staying on in Adelaide such that she could spend time with [X]? Her answer was, “Many times.” She was pressed, “When?” and she replied, “He knew. We spoke about it.”
Another aspect of the Mother's evidence that is far from satisfactory pertains to the nature and frequency of her work in Melbourne. For example, she explained to Counsel for the Father in cross‑examination that she was on Centrelink benefits, was not in employment and was, therefore, available to provide the day-to-day care for [X]. And yet, when I asked her to explain why it seemed that she had not been very diligent in seeking to spend time with [X] since 2012, she told me that she had been working quite a lot and trying to become professional in her work.
For all the above reasons, noting that not all the relevant evidence has been recited, the Court has real concerns about accepting the evidence of the Mother unless corroborated by other independent evidence. The Court would have to be very careful indeed to prefer her evidence over that of the Father's on contentious, relevant issues.
The Father was also an unimpressive witness. He participated in the shouting matches in Court in circumstances where one would have expected him to be far more constrained as a result of the presence of his own solicitor and Counsel. That did not deter him. Whilst his histrionics were not in the same league as that of the Mother, he certainly demonstrated a capacity to do so.
Moreover, in the short cross-examination conducted by the Mother, he was less than convincing when answering questions about the arrangements that had allegedly been made for [X] to spend time with her mother during a weekend in October coinciding with [X]'s birthday. There had been talk about a breakfast meeting according to the Father. The Mother suggested that, having regard to the time at which he made a certain phone call her, breakfast would have been impossible. His suggestion that he was going to bring the breakfast to her beggars belief. Despite the reservations held about the Father's evidence, it is more likely than not that he is the more reliable historian as between the Mother and himself. Nonetheless, even his evidence needs to be considered very carefully before accepting the same.
The Family Report
In her Report, Ms N sets out matters of background, all of which are consistent with the evidence before the Court. Her description of the current conflict and communication between the parties was again consistent with the evidence. If anything, she underestimates the real extent of the difficulties that the parents experience. Each parent identified issues of concern about the other, and then Ms N systematically takes these issues up with the parent.
It is important to record what the Family Consultant perceived to be the proposals that each parent was advancing to the Court. In relation to the Father, this is set out at paragraph 31.
Request to the Court
Mr Sachs believed it was in [X]’s best interests to “slowly introduce” her to the idea of spending time in Ms Sachs’ care in Melbourne. He proposed that [X] first spend an overnight period of time in her mother’s care in Adelaide, for example at the mother’s cousin’s house in Adelaide, and then when she’s “proven she can come down and commit to her time” with [X], he would then support [X] travelling to Melbourne either accompanied by the mother or unaccompanied once the age of 7 years, if and when [X] felt safe to do so. He was in support of [X] spending time with her mother in Melbourne for one weekend each school term plus half of all school holidays, with the parties alternating special occasions each year. Mr Sachs was also in support of the Court Ordering Ms Sachs to call [X] at least once a week. He thought once a week was ideal, stating that if it was any more frequent it may not be meaningful and would also risk [X] feeling disappointment should her mother not comply.
At least until the filing of the Application in the Case after the conclusion of the Hearing, this continued to be the Father's proposal to the Court.
The Mother's proposal is recorded at paragraph 32.
Ms Sachs believed it was in [X]’s best interests to be immediately returned to her primary care and reside in Melbourne. She was in support of [X] spending time with the father during school holidays. She was not in support of any unaccompanied travel until [X] was aged 18 years. Ms Sachs stated that if the Court Ordered [X] to remain in Adelaide she would “never give up on [X]”. When asked if she would consider relocating to Adelaide, Ms Sachs stated that this would be her absolute last resort given her supports, employment and “my life” are in Melbourne, plus she was “quite fearful” of Mr Sachs and his extended family. She added that it would be hard for her to justify being in Adelaide when she knew [X] would have a better life in Melbourne.
Whilst the Mother's position at the end of the evidence seemed to be consistent with her proposal, the Court formed the impression that there was, at least, a growing awareness in the Mother that the Court would not be making orders consistent with her proposal. If she was prepared to herself relocate to Adelaide, it is not something that was seriously raised as part of her case.
The Family Consultant, of course, met with [X] and her observations are recorded at paragraphs 35 to 40 inclusive.
DISCUSSION WITH [X]
[X] presented as an immaculately dressed, happy, playful, and vivacious 6-year-old child who was a delight to interact with. She easily separated from her father to engage in discussion with the Family Consultant, however she clearly sought comfort from knowing that he was not far away. She appeared acutely aware of the purpose of the discussion and upon entering the interview room immediately disclosed that she did not want to go to Melbourne. She appeared to say this spontaneously after hearing discussion about her mother arriving later that day at the Assessment. She did not appear to make this statement as a result of feeling pressured to do so (i.e. adult influence). She then happily engaged in further discussion on a range of topics and her disclosures appeared to be accurate reflections of her personally held views. She presented with no obvious developmental delays but rather appeared to be a bright child who was thriving in her care environment.
[X] appeared to understand that the discussion with the Family Consultant was to assist the “Court” decide when and where she spent time with each parent. She stated that she was worried about having to go and live in Melbourne because “I don’t like all about it”, and she asked “can you write a note to the Court” saying this. Notwithstanding these comments, she stated that she had felt “happy” when spending time with her mother in Melbourne, however “sometimes I feel so very strict, my mum”. She explained that her mother told her to pack up all her mess whereas at her father’s house she was allowed to leave the mess on the ground and usually “[Ms P] cleans it up while I’m at Yaya’s [her grandmother] house”.
In later discussion, [X] stated that she had remained in Adelaide for a very long time and that given her mother remained in Melbourne she did not think she would be seeing her mother anymore. She added that she also had not spoken to her mother on the telephone for a long time. She was unable to describe how she felt about this, however she did not appear unhappy or distressed when speaking on this topic, rather simply accepting of the situation.
[X] stated that she lived with “daddy and Yaya and aunty [Ms M] and Papu and [Ms P]”. She stated that her Yaya “sometimes makes me junk food like cakes and cookies” and she loved this. She stated that her father went to work but that she did not want him to leave, preferring him to stay home with her. What she loved most about her father was “him doing work and fixing my iPad on the internet”. She then spontaneously added how much she loved the Littlest Pet Shop toys. What she did not like about her father was “sometimes he screams at me”, for example when she had been making “silly jokes” at a party. During discussion about [Ms P], [X] stated that “sometimes she fights with my daddy” and that “sometimes she’s not nice when she’s frustrated”.
[X] reported that she had never been smacked or hurt as a result of being disciplined. She stated that only “[Y]” had smacked her and demonstrated this by gently tapping her stomach. She tried to explain who [Y] was, however this was unclear to the Family Consultant. It appeared that [Y] was a same aged peer who was a friend of the family. [X] did not indicate being upset about this interaction with [Y]. She denied ever feeling hurt or scared, including at school. She described her school to be a “little bit nice” and to have lots of friends who she loved drawing with.
She stated that she had some positive memories of her time spent with her mother and these included when they played with building blocks together in Melbourne and more recently when they were together that the Airport. [X] stated that she was happy to see her mother at the Airport and happy that she then went back to Melbourne. When asked about her future wishes, [X] stated that she wanted to spend time with each parent “just the way it is” and “no more” time with her mother.
As it turns out, despite what would appear to be a record of [X] expressing her views in relation to the issue before the Court, the Court declines to place any weight on this consideration. Despite obviously being a delightful and possibly even mature for her age little girl, the Court does not believe that [X] has the maturity to be able to express a view that should be taken into account. Of deeper concern to the Court is the fact that [X]'s parents have been unable to shield her from the entrenched conflict between them, and the evidence of both the Mother and the Father contained examples of conflict being overtly played out in her presence (the latest example being at Melbourne airport in October 2014), and inappropriate discussions taking place either with [X] or in her presence. In these circumstances, to place any weight on [X]'s view would be, plainly, inappropriate.
What the above evidence does demonstrate, however, is that [X] is both happy and well settled in the life that she has in Adelaide with her father, her father's partner, and her father's family.
The Family Consultant, of course, observed [X]'s interaction with both her mother and father. In relation to the Father, she records, at paragraph 41:
OBSERVATIONS
Observations of [X]’s time in her father’s care were all positive to view. They shared naturally free-flowing discussion and play that was age appropriate and appeared enjoyable for both. Mr Sachs was encouraging of [X]’s educational play and was heard to provide her with praise and encouragement. He also continued to comment to the Family Consultant at times with praising comments about [X], which appeared genuine and spontaneous. Given Ms Sachs was 30 minutes late, [X] stated a number of times that she no longer wanted to wait for her mother to arrive but rather go and find her grandmother who was waiting across the road (to avoid contact with Ms Sachs) and go shopping. In response Mr Sachs appeared genuinely encouraging of [X]’s need to wait for her mother to arrive and spend some time playing with her. [X] continued to seek reassurance that her father would wait nearby during this time and that he would not leave the building without her. [X] was seen to seek physical affection from her father, which was reciprocated by Mr Sachs.
What is significant about this passage is what the Family Consultant described as the Father's genuine encouragement of [X] to wait for her mother who was running late for the Family Report interviews. This behaviour is hardly consistent with the Mother's assertion that the Father was seeking to alienate [X].
In relation to the Mother, the Family Consultant observed, at paragraph 42:
Upon Ms Sachs’ arrival, [X] easily transitioned into her care with the assistance of the Family Consultant. [X]’s immediate response to her mother was “mum, I’m not going to Melbourne”. Ms Sachs was slightly shocked at first and became teary in response to this comment and also the likely overwhelming feelings associated with seeing [X] for the first time in a number of weeks. Ms Sachs then effectively managed her emotions and happily told [X] how much she loved and missed her and how beautiful she was. [X] then noticed her mother’s tears and stated, “do you want me to come to Melbourne? Well okay …” but did not complete the sentence before then excitedly showing her mother into the play room/office and engaging her in immediate play and discussion.
The observation continued at paragraph 43:
[X] appeared excited to see her mother and spoke rapidly and happily about a range of topics that interest her such as the Littlest Pet Shop and iPad games. Ms Sachs brought [X] presents, which [X] appeared to enjoy. Throughout their shared play and discussion on the shared interest of music, [X] listed a number of toys she ‘told’ her mother to purchase for her. In response, Ms Sachs stated that she had so many toys and Christmas presents waiting for her in Melbourne and would buy her anything she wanted. She added to the Family Consultant that she felt “overwhelmed” at how beautiful [X] was. Towards the end of the play session, Ms Sachs asked [X] if she would like to spend more time with her in the next three days whilst she remained in Adelaide. They also spoke of overnight time together at which time [X] stated that she wanted more time with her mother on the proviso that it was in Adelaide. She said that she wanted three sleeps and then said “no 20”, to which Ms Sachs told [X] to make sure she told her father this. At the end of the play session [X] easily separated from her mother’s care after saying “bye” and ran out to tell her father that she wanted “20” sleeps in her mother’s care. Mr Sachs simply said “okay” and then left with [X].
The Family Consultant's evaluation commenced from paragraph 45. This paragraph is important to reproduce for the parents' sake:
EVALUATION
At the conclusion of the Assessment it was clear that the conflict remained high between the parties. It appeared there was a total breakdown in communication between the parties and a complete inability to negotiate effectively on children’s issues. This was of great concern for [X]. Children thrive in environments free from family conflict where parents are free to focus on the needs of the children and effectively communicate these needs, demonstrating effective problems solving skills and effective communication skills. It would be essential for [X] in the long-term to see her parents come together and effectively communicate on issues relevant to her, and do so in an open and respectful manner. It would be recommended that the parties start to communicate using Email, allowing for communication to be in more detail and easily recorded. It would also be recommended that all communication remain child-focused and respectful. It was hopeful that in time the parties could learnt to rebuild their trust of one another and engage in face-to-face communication at handovers without the risk of [X] being exposed to conflict.
As foreshadowed in earlier comments in these reasons, it is possible that the Family Consultant has underestimated the precise nature and extent of the conflict between the parents and their communication problems. Thus, the Family Consultant's description of the conflict as being “high” is not an accurate description based on the experience of this Court. The use of the word “extreme” is a better description. The Family Consultant refers to the “total breakdown in communication”, but the evidence in this case demonstrates that it is not just a case of being no constructive communication but, rather, a case of highly toxic communication. Having regard to all the evidence, however, the Court agrees that the parents suffer from a “complete inability to negotiate effectively on children's issues.”
The Family Consultant could find no evidence to substantiate the Mother's concerns about the Father's violence and drug use issues. Indeed, having regard to all the evidence, the Court agrees. To the extent that the Mother had any such concerns, they were plainly inconsistent with her actions in leaving [X] in the Father's care at the end of 2011. Likewise, the allegations of inappropriate physical discipline were found to have no basis.
The Family Consultant described as “sad and unfortunate” that [X] had only had minimal time with her mother in the last few years. As will be seen, the Court will conclude that this very sad outcome was mainly attributable to the Mother's inaction, and partly attributable to the dysfunctional dynamics between the parents.
The Family Consultant rejected the contention that the Father was seeking to alienate [X] against her mother. Again, this is consistent with the evidence. Indeed, having regard to all the evidence, if there is any deterioration in the relationship between [X] and her mother, it is more likely to be the result of the Mother voluntarily estranging herself from [X].
At paragraph 50, the Family Consultant concludes as follows:
At the conclusion of the Assessment it was not considered to be in the child’s best interests to be taken from her primary carer and placed in the primary care of her mother in Melbourne. Rather it was considered to be in her best interests to support the current primary care arrangement and also support Ms Sachs to spend more regular and substantial time with [X], with this time building up slowly to factor in [X]’s young age and emotional vulnerability when needing to separate from her father, especially for overnight periods of time. This was particularly pertinent given her very limited time spent with her mother in recent years and her clear level of anxiety about having to travel to Melbourne to spend time with her mother. Furthermore, it also appeared that [X] had a significant attachment to her paternal grandmother and it was likely that this had assisted [X] to build a healthy level of resilience and reduce the negative emotional impact felt as a consequence of her time spent away from her mother. It would be important for this meaningful attachment to be nurtured and maintained, particularly in the short-term at least, until [X] had developed a more secure attachment to her own mother.
At paragraphs 52 to 56, the Family Consultant makes a more detailed evaluation of the best outcome for [X].
The final recommendations are contained at paragraph 57 in the following:
RECOMMENDATIONS
· It is respectfully recommended that:
· The parties share parental responsibility.
· The child remains in the father’s primary care.
· If the mother lives in Adelaide, she spends time with the child on a gradually increasing basis building up to each alternate weekend plus one weeknight each week. Shared care may be considered in the future, depending on the parties’ conflict and communication.
· If the mother resides in Melbourne then she spend time with the child on a gradually increasing basis as follows:
Ø [X] spends two days and one night with her mother in Adelaide staying at Mr and Ms Sachs’ cousin’s house.
Ø Then soon after (i.e. two or three weeks later), [X] spends one night and two days with her mother in Melbourne.
Ø Then as of the following school holidays, [X] spends two nights and three days in her mother’s care in Melbourne.
Ø Then, the following school term [X] spends one weekend mid-term from Friday after school until Sunday late afternoon in her mother’s care in Melbourne, and this arrangement be ongoing for each school term.
Ø Then the following school holidays, [X] increases her time in her mother’s care to five nights.
Ø Then the following holidays it be arranged that she spend seven nights in her mother’s care.
Ø Then the holiday period after that and beyond/ongoing she spend half of all school holidays in her mother’s care, with a maximum of two weeks away from her father at any one time, unless otherwise agreed between the parties.
Ø That the parties alternate their time with [X] over Christmas and Easter each year.
· [X]’s travel to and from Melbourne to be accompanied by either parent (initially her father for emotional support) for a 12-month period and then subject to her wishes.
· [X] communicate with the non-residing parent via the telephone, Skype or Face Time (or equivalent) each Sunday night at 6.30 pm, plus subject to her wishes.
· The parties communicate via Email and text message whilst communication remains problematic.
· Ms Sachs remain up to date on major school and sporting events for [X] and that she be at liberty to attend any such event as any other parent would on the proviso that she provided the father with adequate warning of her intention to attend in order to avoid conflict.
· Ms Sachs to be at liberty to spend additional time with [X] in Adelaide as per the parties’ negotiations.
There is an Addendum to the Report of Ms N which bears the date 13 February 2014. It was prepared having regard to the Affidavit of the Father of 6 February 2014 which had not been read as part of the preparation of the original report. In the Addendum, she makes some observations and recommendations about sharing the cost of travel and parental responsibility.
Ms N was cross-examined, initially by Counsel for the Father and then by the Mother. A number of matters emerged. Firstly, it was apparent that the Mother had still not paid her share of the fees for the preparation of the Report. This is despite a Court order to that effect. The Mother later gave evidence to the Court that she did not pay for the Report as she did not accept its recommendations. The non-payment of fees is relevant only insofar as it reflects on the Mother's attitude relating to these proceedings, to matters of parenting, and generally.
In relation to parental responsibility, Ms N explained that she was still committed to equal shared parental responsibility, but she did concede that she remained unclear about the Mother's ability to participate in joint decisions. And so, if the Court ordered her to have minimal time, and the high conflict between the parents was considered, she inferred that sole parental responsibility was an option.
The Family Consultant was referred to evidence of the Mother and Maternal Grandmother attending [X]'s school unannounced on 30 April 2014, and the evidence that would be adduced about the distress and anxiety that this caused [X]. The Family Consultant expressed, perhaps in understated terms, that if the evidence were as suggested, it would indicate that the Mother did not understand [X]'s needs and vulnerabilities. She described school as being “a safe and predictable place”. Without using these words, the Family Consultant was clearly trying to explain to the parents in Court, particularly the Mother, that school was one of those few places for [X] where she was not potentially caught in the crossfire of her parent's conflict and that, therefore, the Mother’s intrusion into this safe place was not in [X]'s best interests.
Indeed the evidence clearly establishes the distress and anxiety that this unexpected visit caused for [X]. The evidence also plainly demonstrates that the visit was about meeting the Mother's needs and not [X]'s. In cross-examination by Counsel for the Father, the Family Consultant agreed that the Mother should be restrained from attending [X]'s school except in relation to normal parental activities that are organised in advance.
The Mother cross-examined the Family Consultant. She did not put to the Consultant that she was biased towards the Father or that she knew the Father's family, something which she later asserted in her own evidence. There is no evidence before the Court to suggest that the Family Consultant acted inappropriately in any way.
The Mother presented the Family Consultant with photographs of herself and [X] which are clearly happy events but, as the Family Consultant explained, “A photo is one piece of information that depicts a beautiful scene.” The Family Consultant explained that her role was to assess all information and not just isolated moments that are captured on film. She rejected the Mother's assertion that [X] was somehow fearful of her father and, indeed, suggested that she was “thriving in her environment”.
The Mother suggested to the Family Consultant that the anxiety that [X] clearly suffers is derived from the fact that she does not spend enough time with her mother. The Family Consultant suggested that the reality was more likely to be that [X] was confused and anxious because of the Mother's lack of consistency in terms of involvement in her life. Indeed, she said words to the effect that [X] “would benefit from your involvement in her life consistently”. She explained to the Mother that it has nothing to do with the Mother being an unfit mother. She explained that the Mother's inconsistency was very stressful for [X] who thrived on predictability.
At the end of the Mother's cross-examination and the end of the Family Consultant's evidence, I asked her to explain to the Mother what it was that she might do differently. She said that the Mother should make regular and consistent telephone calls to [X]. She should come to Adelaide and spend time with [X] as often as possible. The emphasis was on consistency and predictability.
Nothing was raised in cross-examination that would, in any way, detract from the evidence the Family Consultant made, her observations, evaluation and recommendations. Having regard to all the other evidence, however, and as previously observed, the Family Consultant may have underestimated the toxic nature of the communication between the parents and the extreme entrenched conflict between them. Whilst this may not be directly relevant to the recommendations about communication and spending time with her mother, it does assist the Court in making a decision about parental responsibility.
Meaningful relationship
What is an interesting feature of this case is that [X] appears to have been able to sustain a good relationship with her mother despite the clear evidence of the Mother's lack of consistent involvement in her life since 2012, an aspect of the evidence that will be discussed in greater detail below. The fundamentals of a good relationship are clearly there. Even the Mother reports that her time with [X] is very positive and fruitful. One can only imagine how much better and deeper this meaningful relationship will be if the Mother were to accept the Family Consultant's advice, and to strive for consistency and predictability of involvement in [X]'s life.
Given this is the case, in all reality both proposals advanced to the Court would meet the requirement of a meaningful relationship. This consideration is, accordingly, not determinative on the facts of this case.
Protecting [X] from harm
To the extent that the Mother's case was based on [X] having to come into her care because of risks of harm in the Father's care, there is simply no evidence to support this contention. The clearest fact contraindicating this concern is that the Mother allowed [X] to go into her father's care in Adelaide from the end of 2011. It is inconceivable that she would have allowed this to happen if she had genuine concerns about her safety.
The only other psychological harm that [X] is exposed to is her parent’s conflict, as intense and intractable as it is. That is probably not a form of harm that is contemplated by s.60CC(2)(b). The parents should note, however, that exposure to conflict is probably just as insidious as being subjected to or exposed to abuse, neglect or family violence.
[X]'s views
For reasons previously articulated, in discussing the Family Consultant's Report, the Court intends to place no weight on any evidence that has been adduced about [X]'s views.
The Nature of [X]’s Relationships
The evidence suggests that [X] has a good relationship with not only her parents, but both her grandmothers. There is some evidence to suggest that she enjoys a good relationship with the extended family on both her mother and father's side.
Whilst this is not something that the Family Consultant specifically observed, it is the Court's impression that the Mother's relationship with [X] is a very intense one, probably attributable to the fact that she has spent so little time with her over the last few years. Both parents are probably guilty of not properly observing boundaries because the evidence of both parents suggests that [X] has both seen and heard things relating to her, the parental relationship and this case that she ought not have.
The evidence suggests that the involvement of the Paternal Grandmother in [X]'s life is at least a daily one. The Mother, interestingly, had nothing negative to say about the paternal grandmother. Indeed, it is quite possible that the communication between the Mother and Paternal Grandmother is far better than that between the parents. Likewise, at least until recently, the relationship between the Father and Maternal Grandmother appeared to be a sound one. The recent airport incident may well have soured this. This network of alternate relationships is important to [X] because it enables some form of communication to take place to make up for her parent’s inability to do so.
It is most unfortunate that neither parent chose to call their respective mothers to give evidence in their case so that the nature of [X]’s relationship with her grandmothers could be explored and properly assessed in the context of what orders to make.
The Father’s proposal to the Court adequately ensures that [X] will continue to have a relationship with her mother and the other significant adults in her life, both on the maternal and paternal side.
The Mother's proposal in this regard is somewhat problematic because it is not clear. A return to the 2009 orders would probably, in a minimalistic sense, sustain [X]'s existing relationships. At the end of this day, this consideration is not determinative of its own right.
Parental involvement in decision-making, time and communication
One of the main aspects of the Father's case is the contention that the Mother failed to spend time and communicate with [X] at certain times, and failed to take advantage of all the opportunities she had to spend time and communicate with [X] at other times. The totality of the evidence before the Court supports this contention. The cross‑examination of the Mother on this issue by the Father's Counsel was very effective.
In 2012, the Mother admitted in cross‑examination, that she only spent three periods of block time with [X] in either Melbourne or Adelaide, that is, in February, May and October. This was pursuant to an arrangement between the parents. Orders made on 6 December 2012 provided for further contact. When given the opportunity to explain why she could not spend more time with [X] in 2012, she gave no plausible explanation, other than engaging in the externalising behaviour that was the subject of judicial comment earlier in these reasons.
In 2013, the situation deteriorated. Putting aside Court-ordered contact, the parents were unable to agree. It was put to her that she could have had the case relisted. The Mother explained that she ran out of funds but, of course, that did not prevent her conducting the Final Hearing on her own behalf. In cross‑examination, she admitted that she had the opportunity to spend time with [X] in November 2013, pursuant to Court order, but she did not come to Adelaide to take advantage of that.
When pressed to explain why she did not take advantage of offers to spend time or Court‑ordered contact, the best the Mother could do was to rely on conversations that she had with the Father as an explanation. When pressed to explain precisely what conversation, and when, her evidence was generalised (for example, sometimes beforehand, sometimes at Court, sometimes after Court) and provided no clarity on the issue. It was pointed out to the Mother that when, on 8 November 2013, she asked the Father to spend time with [X] after Court but before returning to Melbourne, even on short notice, the Father facilitated this taking place. This was inconsistent with her previous assertion that she had asked the Father for time but he declined.
She was asked why she did not ask for time on 15 November 2013, given that she was in Adelaide. She explained, in generalised terms, that she had asked him many times but he had said “no”. She was plainly unresponsive to the question.
She was cross-examined about the opportunity to spend time with [X] during the course of the family assessment interviews, but she sought to explain that away by externalising responsibility to a misunderstanding of the Orders, the way in which the Orders were communicated to her, etcetera – another missed opportunity. When I directly asked her for some explanation as to why she did not pursue spending time with [X] with greater vigour on an occasion when she was in Adelaide, she gave no plausible explanation. She complained of communication difficulties with the Father. I suggested to her that she might have rung the Father's solicitor. She explained to me that she wanted to “re-establish contact with him” (that is, the Father). This is hardly a plausible explanation.
Another low point of the Mother's case is her explanation as to why she did not accept the Father's offer to spend time with [X] on 2 October 2014. The Court is satisfied that the evidence establishes that on 29 September 2014, the Father's solicitor wrote to the Mother by email and, subsequently, sent the same letter by Express Post to the Mother's current address. The letter reminds the Mother that the trial was resuming before me on 3 October 2014. It forwards the Father's updating Affidavit. It contains the following paragraph:
On a separate issue, as you will be in Adelaide for the purpose of the trial, our client has proposed that you spend time with [X] on Thursday, 2 October 2014 from 10 am to 6 pm. Our client is happy to facilitate handovers at a location of your choosing.
The Mother's first explanation is that she neither received the email nor the letter. The Court does not accept her explanation. It is part of the externalising behaviour that the Mother manifests throughout her evidence. When pressed in cross-examination, she conceded that there had been telephone calls between the Father and herself about spending time on 2 October, but she asserted there was no agreement, and that some of the telephone calls became heated.
Interestingly, when further pressed about receipt of the email and letter in question, the Mother changed her evidence. It is not that she did not receive the email. The problem was opening the attachment so she could not read the letter. When shown the letter in question, dated 29 September 2014, the Mother's response was quite interesting. After saying that she had not seen this letter (quite predictable and consistent with her other externalising behaviour), she said words to the effect, “It was obscene for me to only get this offer.”
That is a most revealing comment for a person who claimed to be viewing the letter of 29 September 2014 for the first time in the witness box. Clearly, she took great offence at the offer of spending time from 10:00am to 6:00pm on 2 October. The inference to be drawn from this comment is not that the Mother was not aware of the offer to spend time with [X] but, rather, that it was an offer unacceptable to her. The inference is supported by the evidence she then gave in cross‑examination which moved to a detailed examination of the telephone calls that occurred between 28 September and 1 October 2014.
She was taken through the call log systematically. It was put to her that she was shouting and screaming at the Father, and would hang up on him. She denied this comment, accusing the Father of being loud and harsh, but agreed that she spoke to [X], wished her a happy birthday but was told that [X] did not want to spend time with her. It was put to the Mother that, in reality, even in the telephone calls, that the Father had agreed for her to spend time with [X] on her birthday. Her response was to say, “But it was not enough.” Incidentally, given the performance of both parents in Court, it is quite likely that they were both shouting at each other over the telephone.
It was put to her that at 8:46 pm on 1 October, the Father had sent her a text message offering to meet the Mother the next day, that is, 2 October 2014, the day before the resumption of the Hearing. At first, she told the Counsel for the Father that she did not see the message until much later in the morning at which point it was too late, whilst also complaining that the Father was making it out as if [X] did not want to see her. At this point, incredulous as I was about the evidence I was hearing, I suggested to the Mother that, perhaps, what was really happening between her and the Father is that they were engaged in a power struggle in relation to [X]. She agreed, showing a rare sign of insight.
She then told me the following, “I saw the text message and I left it.” The inference to be drawn from the context of this evidence is not just that she saw the text message and left it, but that she saw it the night before when it was sent and consciously chose to leave it, thus leading to the hypothesis that this entire exchange between the parents had little to do with the [X], but much to do with each seeking to control the other, particularly the Mother seeking to dictate the terms of her contact with [X]. When further pressed in cross-examination, she agreed that [X] probably would have enjoyed spending time with her but that, in any event, she did not accept the offer.
The evidence summarised above is, by no means, the entire evidence about the Mother's missed opportunities to spend time with [X]. It is, in this Court's opinion, more than adequate to support a finding that she has, without any adequate explanation, failed to take the opportunities that were available for her to spend time with [X]. This finding extends for the period 2012, 2013 and 2014 up until the Interim Orders were made on 8 May and 3 October 2014. What is both perplexing and intriguing, however, is the absence of any plausible explanation for her behaviour. To the extent that she seeks to blame it on the Father, this is only partially the case as the evidence is clear that he proposed opportunities which, for whatever reason, the Mother did not accept.
Quite frankly, the Court remains mystified about the Mother's behaviour in this regard. For someone who pursued her application with a passion verging on histrionics, her inability to take advantage of the opportunities that were clearly there is a mystery. It reflects poorly on her parental capacity. It reflects poorly on her maturity as a parent. It reflects poorly on her attitude to [X] and to her responsibility as a parent to [X].
The extent to which parents have met obligations
Section 60CC(2)(ca) requires the Court to consider the extent to which each of [X]'s parents has fulfilled, or failed to fulfil, that parent's obligations to maintain [X]. Since [X] has been in the Father's care, he has borne all of the costs of meeting her needs, including expensive schooling fees, and the additional cost of providing the occupational and speech therapy that [X] has needed so much. The evidence suggests that the Mother has offered nothing. She says that the Father never asked. Such is the perverse relationship between the parents, this may well be true. Nonetheless, it does not detract from the obligation the Mother had. As previously indicated in these reasons, the Court does have reservations about the Mother's evidence in relation to her work commitments and financial circumstances.
Impact of Change for [X]
Section 60CC(3)(d) requires the Court to consider the likely effect of any changes in [X]'s circumstances, including the likely effect on her of separation from a parent or other significant person.
The Father's proposal offers the least change in circumstances for [X]. This is important. The expert evidence in this case from the Family Consultant emphasises the importance and need for [X] to have a stable and predictable routine, particularly in light of the developmental needs that both parents agreed that she had in 2011, and which the evidence clearly demonstrates that she continues to have today. The evidence about the impact on [X] of her mother's unannounced visit at the school demonstrates that she becomes distressed and anxious from changes in her routine.
The Mother's proposal would be a physical and emotional wrench for [X], and a change that the Family Consultant strongly counselled against. The Mother's proposal is strongly contraindicated by this consideration.
The Court has considered the possibility that the Father relocate to Melbourne. Even on this scenario, [X] would be deprived of the stability of her school at [A] School, and the important support role of the Paternal Grandmother, and is thus not in her best interests.
Issues of practical difficulty and expense
On any scenario, the Mother's or the Father's, either the parents will be travelling between Adelaide and Melbourne or [X] will and, possibly, both. This consideration, however, needs to be put in context. Issue of practical difficulty and expense do not provide an explanation for the Mother's failure to take advantage of the opportunities that were clearly there for her to spend time with [X]. To that extent, issues of practical difficulty and expense are not the main issue in this case. However, it is a nagging, peripheral and significant issue.
The Father has borne a disproportionate burden, both in terms of travel and cost, arising out of the Interim Orders that have been made. The Mother has not always complied with the order, whereas the Father appears to have often gone beyond the obligations imposed on him by the Orders in order to mitigate the impact of travel on [X]. He is in a far better position financially that the Mother (subject to what is not known about the Mother's financial circumstances), but then again he bears all of the costs pertaining to [X].
The history of this matter indicates that whilst this is a potentially troublesome issue, matters relating to practical difficulty and expense have not prevented [X] from spending time and communicating with her mother and, thus, these issues are not such as to affect [X]'s “right to maintain personal relations and direct contact with her mother on a regular basis”.
Parental capacity
If one removes from the present equation the parent’s inability to communicate except in a toxic fashion, their lack of trust for each other and the entrenched parental conflict, all matters that rather seriously detract from their parenting capacity, both seem more than able to provide for [X]’s physical and emotional needs.
The only concern in this case is the Mother’s seeming refusal to accept that the developmental needs which led to [X] being enrolled at [A] School, and participating in the Kids Sense program in 2012 continue to exist today, albeit slightly mitigated. The objective evidence from [A] School and Kids Sense, whilst charting [X]’s progress as a result of the therapy that she has received between 2012 and 2014, also clearly signals that there is more work to be done.
In cross-examination, the Mother indicated that she did not understand why [X] still needed therapy. The objective evidence is there. The Father not only understands the needs that [X] has in this regard, but is prepared to do what it takes to support [X] and ensure that these needs are met. The Mother has signalled to the Court that she does not have the capacity to do so, starting from the premise that there are no special needs extant today.
Maturity, sex, lifestyle and background matters
[X] enjoys a Greek heritage on both sides of her family. There is no evidence before the Court to suggest that this will change or that either parent has any desire to change the same.
The Mother's seeming immaturity is of concern to the Court. Her behaviour since separation and during the course of these proceedings can, in general terms, be described as the behaviour of someone who is not cognisant of the need for a parent to behave in a mature and adult fashion. Mature adults do not, for example, engage in screaming matches with each other in open Court. The evidence suggests that both are capable of doing this, but the Father's successful track record as a parent to [X] since the end of 2011 suggests that lack of maturity is not as great an issue for him.
Attitudes to the child and to the responsibilities of parenthood
Having regard to all the evidence that has been discussed so far in these reasons, to the extent that these parents have allowed themselves to engage in the behaviour towards the other that they have, they demonstrate irresponsible parenthood and a poor attitude towards their daughter. The Mother takes this to a new degree, well beyond that of the Father, however. Her failure to take advantage of the opportunities to spend time with [X] in recent years is hard to understand. She seems to have prioritised her needs over that of her daughter.
Whereas the Court is satisfied that notwithstanding all the issues that have been raised about the Father in these reasons, he will both support [X]'s relationship with her mother and comply with Court Orders, the same cannot be said for the Mother. The Mother has a far greater propensity than the Father to simply ignore Court Orders when they do not suit her, whereas the Father has demonstrated to the Court that he is better able to contain his deeply negative feelings about the Mother when in the presence of [X].
The Court is not satisfied that the same is true of the Mother as regards the Father. There is a deep‑seated enmity here that arises from what she considers to have been a broken agreement to return [X] to her care after a year at [A] School. That may well be how the Mother perceives the agreement to be but it is not consistent with the evidence before the Court. If there was any agreement about the return of [X] to her, it was an open‑ended one contingent upon [X] having overcome the developmental problems that took her to Kids Sense and [A] School in the first place. That milestone has not yet been achieved.
There is a glimmer of hope with the Mother. She seems to have come out of the most recent event at Melbourne Airport relatively unscathed, with the Maternal Grandmother being the protagonist. Whilst her attitudes are such that they clearly contraindicate [X] coming into her care, there is some hope that she might commit to, and engage with, a set of very prescriptive orders that give her the opportunity to spend time with [X] in both Adelaide and Melbourne on a gradually increasing basis.
Family violence
This consideration has been discussed earlier in these reasons. It is not a determinative consideration on the facts of this case.
The order least likely to lead to the institution of further proceedings
It is hard to prognosticate about a set of orders that is least likely to lead to litigation between parents who have been litigating for most of their daughter's life. There is the real prospect that these parents will continue to litigate, no matter how prescriptive the Orders are, and no matter how comprehensive the reasons are in order to explain why the Orders are made. The Court can only do the best it can.
Parental responsibility
The Mother proposes a return to equal shared parental responsibility. The Family Consultant prefers this. The Father seeks sole parental responsibility. The presumption in this case is rebutted as the Court is satisfied, on the basis of all the evidence before it, that it is not in the best interests of [X] for her parents to equally share parental responsibility for her. The lack of trust between the parents, toxic communication, intractable conflict, and inability to agree on how to deal with [X]'s special needs all point to an order for sole parental responsibility in favour of the Father.
There is the risk, of course, that the Father will exclude the Mother from all aspects of [X]'s life. The Court discounts that possibility. Firstly, Orders can be made that compel and facilitate the provision of information relating to [X] by her father, and the schools and institutions in which she is or may be involved. In any event, by continuing to seek to encourage [X]'s relationship with her mother, despite the high conflict between them, the Father has demonstrated that he can see beyond his own needs and feelings towards the Mother, and focus instead on [X]'s needs.
Whilst not required to consider equal time or substantial and significant time, just in case the Court is wrong about its decision in relation to parental responsibility, it has considered both equal time, and substantial and significant time, and rejects the same as being neither in [X]'s bests interest (for reasons set out above) and certainly not reasonably practicable, having regard to the geographical distance between the parents in Melbourne and Adelaide.
Orders in the best interests of [X]
The Father was the only party to this case to submit a set of proposed Orders, so that this document will be the starting point of the present discussion.
Orders 1 to 3 are appropriate, are consistent with the evidence, and are in the best interests of [X], having regard to all the matters set out above. The focus turns to the terms of any order for [X] to spend time and communicate with her mother.
Orders 4.1 and 4.2 are unnecessary in this case, having regard to the time [X] has spent with her mother since the hearing started before me. The Father proposes two weekends in Melbourne during [X]’s school terms, and one period of up to 10 days during the school holidays. His proposal is broadly consistent with the expert evidence of Ms N, and the Court is satisfied it is in [X]’s best interests. Whilst the Father seems to leave open to agreement more weekend mid-term time in Adelaide, it is best not left to agreement. Order 4.4 will be redrafted to mandate weekend time in Adelaide mid-term, subject to the conditions prescribed.
Order 5 deals with handovers. The evidence in this case is replete with examples of the difficulties the parents have had in this regard. It is essential that the Maternal Grandmother not attend changeovers. The Court has actively considered using the services of supervised contact services to facilitate changeover. The Court is grateful to the solicitor for the Father in providing evidence about the availability of such services. What becomes clear from that evidence is that the use of these services is quite impractical in circumstances of inter-state travel. Until [X] is old enough to travel unaccompanied, changeovers for her time in Melbourne is to occur at Melbourne airport as Order 7 states and changeover for her time in Adelaide is to be as proposed in Order 5. The Orders will be prescriptive in this regard. The Mother expressed concern about [X] travelling as an unaccompanied minor, and expressed the preference to herself accompanying her instead. That is a matter for the Mother. How she will afford it is unclear on the evidence. Whether, and if so under what conditions, [X] can travel as an unaccompanied minor is, the Court believes, also a matter of the relevant policy of the airline on which she travels.
Orders 6 and 9 are appropriate on the evidence. Order 10 imposes all the cost of travel on the Mother. This is inappropriate. One likely consequence is that [X] will not spend time with her mother. The cost should be borne equally. Indeed, in the circumstances of this case, Order 8 will prescribe that the Mother book [X]’s flight from Adelaide to Melbourne, and the Father the return journey, at their own expense. The Mother’s track record in this regard is not impressive. The onus is on her.
Orders 11-19 are also appropriate. Order 14 needs to be amended to reflect any arrangement the Mother has made with Ms N to pay by instalments. Order 16 is clearly necessary having regard to the evidence of the distress suffered by [X] when her mother attended her school without notice. Order 20 is considered unnecessary.
I certify that the preceding one hundred and thirty-three (133) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Associate:
Date: 23 December 2014
Schedule one
Orders sought by the Applicant Father
That the orders made in the Federal Magistrates Court of Australia at Adelaide on 20 May 2009 be hereby discharged.
That the Applicant father shall have sole parental responsibility for the child [X] born [omitted] 2007 (“the child”).
That the child shall live with the Applicant father.
That the Respondent mother shall spend time with the child (noting that time to be taken in Melbourne or additional time is conditional upon the mother strictly adhering to the terms of these orders and her failure to do so will cause her time with the child to reset and recommence pursuant to paragraph 20 hereof) as follows:
4.1From 10.00am Saturday until 4.00pm Sunday in Adelaide on two (2) occasions over a period of 2 months on such weekend to be nominated by the mother, with the mother to provide the father with no less than 7 days prior written notice of such weekend.
4.2Thereafter from 7.00pm Friday until 4.00pm Sunday in Adelaide on two (2) occasions over a period of 2 months on such weekend to be nominated by the mother, with the mother to provide the father with no less than 7 days prior written notice of such weekend.
4.3Thereafter:
4.3.1During term time on 2 weekends from 10.00am Saturday until 4.00pm Sunday in Melbourne with such weekends to be nominated by the mother and with the mother to provide the father with no less than 21 days prior written notice of such weekend
4.3.2During the Adelaide school holiday period from 7.00pm on the first Friday until 4.00pm second Sunday (or at such other times as can be agreed) provided the mother provide the father with no less than 21 days’ notice of her intention to take holiday time.
4.4Such further time and upon such conditions as can be agreed between the parties noting however in the event the mother travels to Adelaide she is to provide the father with no less than 7 days prior written notice of her intention to travel to Adelaide.
That handovers and the commencement and conclusion of the mothers time whilst in Adelaide be at a location as can be agreed or in default of agreement at the [address omitted], Adelaide.
That the parties shall keep each other informed of their residential addresses and telephone numbers at all times, and shall forthwith advise the other of any changes thereto (including but not limited to the mother’s address whilst she is staying in Adelaide with the said child).
For the purposes of handover in Melbourne at the commencement of time, that it occur at the luggage pick up point at the Airport Terminal and at the conclusion of time, that it occur at the domestic check in foyer of the father’s nominated airline together with all of the said child’s luggage.
Upon notice given to the father by the mother of her intention to take time in paragraph 4 in Melbourne on the dates she has nominated, the father shall book the child’s flights and provide the mother with the child’s itinerary 14 days prior to travel.
It be a condition of paragraph 4 that:
9.1the father (or a nominated person) accompany the child on her travels to and from Melbourne for the first 12 months or until such time as the child expresses a wish she does not require parental support;
9.2in the event that the child requests to contact the father by telephone that she be permitted to do so; and
9.3in the event the child becomes distressed at any time the mother do contact the father (or the nominated person in 9.1) and either be at liberty to see the child if the child so requests.
The mother shall pay for the child’s flights to and from Melbourne pursuant to paragraph 4 no later than 7 days prior to the scheduled departure date into the father’s nominated bank account and her failure to do so renders the visit void.
The non-resident parent be at liberty to communicate with the said child via telephone, Skype or Facetime (or equivalent) each Sunday night from 6.30pm (Adelaide time) or at such other times as shall be requested by the said child from time to time.
That the parties shall forthwith notify the other of any medical emergency or serious health issue concerning the said child and provide the mother with any medical information and/or documentation concerning the said child as the mother shall reasonably request from time to time.
That the father shall advise the child’s school to provide the mother with reports, notices and other information that is usually provided to parents by any school, education institution concerning the said child’s education and extra-curricular activities as the mother shall reasonably request from time to time.
That the mother do pay within 14 days her half share of the Family Assessment Report as was Ordered by Judge Simpson on 8 November 2013.
That the parties do equally pay for the costs of the Ms N Family Consultant incurred for her attendance at Trial for the purposes of giving evidence.
That the mother be restrained and an injunction be granted restraining the mother and or her agent from:
16.1Removing child from Adelaide; and
16.2Attending at the child’s school unless in accordance with a Court Order and otherwise without the written consent of the father.
unless in accordance with a Court Order and otherwise without the written consent of the father.
That the mother be permitted to attend at the child’s school for the purpose of attending any function or event that a parent would ordinarily be entitled to attend.
That the parties are restrained and an injunction granted from:
18.1Denigrating the other party, or member of that parties family in the presence or hearing of the child; and
18.2Permitting or allowing any third party to denigrate the other party, or member of that parties family in the presence or hearing of the child.
The parties shall do all things necessary to facilitate the child telephoning the other party if the child wishes to speak to the other party.
Subject to the condition contained with paragraph 4, and prior to paragraph 4.1 coming into operation, the respondent mother shall spend time on the first weekend occasion in Adelaide from 10.00am to 4.00pm on the Saturday and 10.00am to 4.00pm on the Sunday.
That all applications be removed from the pending list.
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