Shams & Alkaios (No 2)
[2024] FedCFamC2F 620
•20 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Shams & Alkaios (No 2) [2024] FedCFamC2F 620
File number(s): MLC 13363 of 2021 Judgment of: JUDGE GLASS Date of judgment: 20 May 2024 Catchwords: FAMILY LAW – PARENTING - Whether 11 and 8 year old boys should live with their father in Victoria or their mother in Queensland Legislation: Family Law Act 1975 (Cth) s 4, 4AB, 60B, 60CA, 60CC, 61CA
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 7.06
Cases cited: Deiter & Deiter [2011] FamCAFC 82
Eastley & Eastley (2022) FLC 94-094
Grier & Grier (2023) FLC 94-135
Jurchenko & Foster (2014) FLC 93-598
Kramer & Another & Ward (2017) FLC 93-817
Lysons & Lysons (2019) FLC 93-891
Maclean & Greenwood (2022) FLC 94-117
Muldoon & Carlyle (2012) FLC 93-513
Oberlin & Infeld (2021) FLC 94-017
Searson & Searson (2017) FLC 93-788
U v U (2002) 211 CLR 238
Division: Division 2 Family Law Number of paragraphs: 125 Date of hearing: 6-8 May 2024 Place: Melbourne Counsel for the Applicant: Mr Chislett Solicitor for the Applicant: MacGregor Barristers & Solicitors Counsel for the Respondent: Ms Mallet KC Solicitor for the Respondent: Westminster Lawyers ORDERS
MLC 13363 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS SHAMS
Applicant
AND: MR ALKAIOS
Respondent
ORDER MADE BY:
JUDGE GLASS
DATE OF ORDER:
20 MAY 2024
THE COURT ORDERS THAT:
1.The parties make joint decisions in relation to all major long-term issues in relation to the Children, X, born 2013, and Y, born 2016.
2.In the event that the Mother remains living interstate, the Children live with the Father and spend time with the Mother during school terms as follows:
(a)In Melbourne, on the second and eighth weekend of each school term, from the conclusion of school Friday until the commencement of school Monday (or Tuesday if Monday is a public holiday); and
(b)In Queensland, for the fifth weekend of each school term, from the first available flight after 7.00pm in Melbourne on Friday, with the children to return to the Father’s care in Melbourne by no later than 5.00pm on Sunday (or Monday if that day is a public holiday).
3.In the event that the Mother returns to live in Metropolitan Melbourne, the Children live with the parties in a week on week off in an equal time arrangement, with changeover to occur from the conclusion of school on Friday (or 3.00pm on non-school days).
4.The Children spend time with the parties during school holidays as follows:
(a)With the Mother, during each school term holidays, from 8.00am on the day following the last day of school term until 5.00pm on the middle Saturday of the holidays;
(b)With the Mother, for the first half of the long summer holidays in odd numbered years from 8.00am on the day following the last day of school until 5.00pm on the middle Saturday, and in even numbered years for the second half from 5.00pm on the middle Saturday until 5.00pm the day immediately prior to school term resuming;
(c)With the Father at all other times; and
(d)As may otherwise be agreed between the parties in writing by no later than 28 days prior to the holidays.
Changeover
5.Changeover take place:
(a)On school days at Suburb B School; and
(b)On non-school days, the parent whose time with the Children is commencing shall collect from the other parent’s home.
6.For the purpose of the Children’s travel to and from Queensland pursuant to these Orders, the parties shall equally share the costs with:
(a)The Mother paying the cost of travelling to Queensland at first instance and the Father refunding her 50% within 14 days; and
(b)The Father paying the cost of the Children returning to Melbourne from City C at first instance and the Mother refunding him 50% within 14 days.
Communication
7.Each parent be at liberty to contact the Children by telephone or video call when they are in the other parent’s care, as follows:
(a)On each Monday and Wednesday with the parent with whom they are spending time with to facilitate a telephone call to the other’s mobile between 7.30pm and 8.00pm;
(b)With the other parent to refrain from interfering or interrupting the call, or recording it in any way; and
(c)Each party otherwise facilitate the Children contacting the other parent at any reasonable time should the Children request it.
8.Both parties keep each other informed of their respective telephone numbers and email addresses and notify each other immediately of any change to those contact details.
9.Each parent keep the other informed of their current residential address and in the event that one parent intends to move, provide the other parent with 28 days’ prior notice of their change of address.
10.The parties shall communicate with one another regarding the Children in the first instance via the Our Family Wizard Parenting App.
Restraints
11.Each party be and is hereby restrained from:
(a)Discussing with the Children or with any other person in the Children’s presence details of the family law matter and these proceedings;
(b)Denigrating, abusing, belittling, rebuking or insulting the other party to the Children or within their presence or hearing; or
(c)Causing a third party to act in non-compliance with these Orders.
12.The Mother be restrained from removing the Children from the State of Victoria and from relocating the Children’s residence more than 10 kilometres away from Suburb B.
13.The parties be restrained by injunction from removing the Children’s enrolment from Suburb B School.
Education
14.Unless otherwise agreed between the parents in writing, the Children remain enrolled at Suburb B School for the balance of their primary school education.
15.Unless otherwise agreed between the parents in writing, the Children attend D School for their secondary education.
Travel
16.The Father retain the Children’s passports unless the Children are travelling with the Mother pursuant to these Orders.
17.Each parent be permitted to travel overseas for a holiday with the Children for a block of up to 3 weeks once per calendar year on the following terms and conditions:
(a)The travelling parent shall provide not less than 30 days’ written notice to the non travelling parent as to the travel;
(b)No less than 14 days prior to the travel the travelling parent shall provide to the non travelling parent a travel itinerary including the address where the Children will be staying for the duration of the holiday, the flight number(s) and the airline(s) the Children will be travelling with; a copy of the Children’s travel insurance, copies of the Children’s return airfare and emergency contact numbers;
(c)Any period of travel shall not take place between 22 and 29 December, unless otherwise agreed;
(d)The Children are not to spend more than 3 weeks without spending their usual time with the non travelling parent unless agreed in writing with the travelling parent;
(e)Each parent shall ensure the travel shall, as far as is practicable, take place during school holidays unless otherwise agreed in writing;
(f)The Children shall have all immunisations as recommended by the General Practitioner prior to such travel;
(g)The travel take place provided that there are no Australian government directives/restrictions preventing or advising against the travel;
(h)The travelling parent shall ensure the Children communicate with the non travelling parent at least once every other day by video call at times to be agreed and in the absence of agreement at 7.00pm AEST every second day of the holiday; and
(i)The Father do all acts and things to ensure that in the event the Mother is the travelling parent, he releases the children’s passports to the Mother not less than 7 days prior to the travel and the Mother shall return the passports to the Father within 48 hours of her return.
Medical
18.Each parent keep the other appraised of any medical or allied health practitioner treating the child/Children and each parent is at liberty to liaise with the said professional.
19.In the event of a medical emergency involving one or both of the Children, including but not limited to serious illness, accident or hospitalisation, the parent with the care of the Children:
(a)Immediately contact the other parent by telephone and if unanswered, via text message or email; and
(b)As soon as practicable, provide the other parent with all documentation and information in their possession regarding the illness or incident.
Other
20.Within 30 days of the date of these Orders, the Mother transfer to the Father’s nominated bank account her half share of the costs of the Family Report prepared by Ms E.
21.All previous parenting Orders be discharged.
22.All extant application are dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE GLASS:
These proceedings concern X, now 11 years old, and Y, now 8 years old.
X and Y live with their father, Mr Alkaios, in Melbourne. He proposes a continuation of those living arrangements.
The children’s mother, Ms Shams, lives in Queensland. She proposes that they live with her there.
The parties rely on the documents identified in their Outlines of Case filed on 2 May 2024, save that Ms Shams relies on her Affidavit filed on 25 April 2024 rather than the one filed on 22 April 2024. The final Orders sought by Mr Alkaios are contained in Exhibit R2.
Mr Alkaios put a number of documents to Ms Shams in cross-examination. They were not tendered into evidence. I accordingly rely only on the parts of those documents that were read to Ms Shams during cross-examination.
The applications fall to be determined by reference to Part VII of the Family Law Act 1975 (Cth). I am guided by the objects of that Part.[1] The children’s best interests are the paramount consideration.[2] In determining those best interests, I am to consider the matters prescribed by section 60CC of the Act.
What arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of the children and each person who has the care of the children (whether or not a person has parental responsibility for the children)
[1] Family Law Act 1975 (Cth), s 60B.
[2] Family Law Act 1975 (Cth), s 60CA.
History of care arrangements
In considering what arrangements would now promote the children’s safety, it is instructive to consider the arrangements agreed between the parties after their separation.
Mr Alkaios deposes that the parties separated in October 2016, while Ms Shams deposes to them having done so in February 2017. It is not now necessary to resolve that controversy.
Ms Shams deposes that after the parties’ separation, Mr Alkaios “refused to spend substantial time with the children for approximately 12 months”.[3] Mr Alkaios deposes that after separation, the children spent “five to six nights per fortnight” with him.[4] I prefer Mr Alkaios’ evidence. It is consistent with contemporaneous records from the Department of Human Services that record Mr Alkaios having 40% care of the children from February 2017 until January 2018. Ms Shams conceded in cross-examination that she was then in receipt of Family Tax Benefit. She accordingly had an obligation to keep the Department of Human Services advised of the care arrangements for the children.
[3] Affidavit of Ms Shams filed 9 April 2024, paragraph 24.
[4] Affidavit of Mr Alkaios filed 15 April 2024, paragraph 83.
Mr Alkaios deposes that from around December 2017, the children commenced spending equal time with each of their parents. I accept that evidence, which is also consistent with records from the Department of Human Services.
The consensual equal time arrangement remained in place until Ms Shams unilaterally relocated to Queensland with the children in January 2023.
In accordance with interim Orders made on 15 February 2023, the children returned to Melbourne that month. Those Orders provided for a resumption of the equal time arrangement in the event Ms Shams also returned to live in Melbourne. She did not do so. The consequence is that the children have been living in Melbourne with their father since that time.
Ms Shams has accordingly consented to arrangements that resulted in the children spending substantial unsupervised and overnight time with their father from the date of the parties’ separation and increasing to equal time approximately twelve months’ later. That arrangement continued with her consent for a period of approximately five years. Thereafter the children lived primarily with their father as a result of her decision not to return to Victoria.
Any suggestion by Ms Shams that the children’s safety is now jeopardised by continuing to live with their father in Melbourne is inconsistent with her having consented to those arrangements and having remained in Queensland without the children since February 2023.
Generalised assertions
Ms Shams gives generalised evidence of her concerns about Mr Alkaios’ care of the children. She maintained in oral evidence the currency of each of those concerns. They include:
·she believes the children to be in an “abusive and potentially harmful situation”;[5]
·she fears Mr Alkaios’ “abuse and manipulation of the children”;[6]
·she believes the children to be in a “potentially abusive environment”;[7]
·she considers Mr Alkaios to have “a bullying nature” and to be “abusive and controlling”;[8]
·she sees “the effect his behaviour is having on the children”;[9] and
·in 2020, Mr Alkaios’ “abuse started to get out of control”.[10]
[5] Affidavit of Ms Shams filed 9 April 2024, paragraph 139.
[6] Affidavit of Ms Shams filed 9 April 2024, paragraph 148.
[7] Affidavit of Ms Shams filed 9 April 2024, paragraph 149.
[8] Affidavit of Ms Shams filed 25 April 2024, page 7.
[9] Affidavit of Ms Shams filed 25 April 2024, page 7.
[10] Affidavit of Ms Shams filed 9 April 2024, paragraph 106.
Ms Shams gave oral evidence that in 2019, X was “telling me stories… there was side effects of what I believed to be verbal abuse”. She also gave oral evidence that she believes Mr Alkaios to be “verbally abusive” and “emotionally abusive”. She also alleged Mr Alkaios is her “former abuser” and believes that he was “abusing the children”.
The quoted evidence is not persuasive. On their own, they are conclusory statements unsupported by facts which might enable me to be satisfied of the conclusion.[11] The basis of Ms Shams’s beliefs is not explained in the evidence referred to.[12] I am accordingly unable to be satisfied of the generalised assertions quoted in the previous paragraphs unless they are supported by other evidence. Their veracity is also inconsistent with the consensual history of the children’s care.
Any history of family violence, abuse or neglect involving the children or a person caring for the children (whether or not the person had parental responsibility for the children)
[11] Kramer & Another & Ward (2017) FLC 93-817 at [10].
[12] Lysons & Lysons (2019) FLC 93-891 at [52]-[57].
Allegations of physical violence
In early 2016, Ms Shams deposes that Mr Alkaios “swung his arm to punch me with a clenched fist” but missed.[13] Mr Alkaios denies that he did so. He deposes to Ms Shams hitting him on his chest and shoulders with her handbag, and that the incident occurred in 2015 rather than 2016. His oral and affidavit evidence was consistent. His oral evidence was given in a calm and straightforward manner. There was nothing about it that caused me to doubt its veracity.
[13] Affidavit of Ms Shams filed 9 April 2024, paragraph 96.
Ms Shams relied on the evidence of her paternal aunt, Ms F. Ms F gives evidence of being in a different room to the parties and overhearing a door slam, a commotion, shouting, and something smashing to the floor. She gives conclusory evidence that when she entered the room, Mr Alkaios was “still threatening to hit” Ms Shams.[14] Ms Shams gives no such evidence. Ms F’s version of events is denied by Mr Alkaios and he was not challenged on it in cross‑examination. Although Ms F was also not challenged on her evidence, I find no basis to reject Mr Alkaios’ evidence in relation to the incident. Given the inconsistencies in Ms Shams’s evidence in relation to a subsequent incident in late 2016, I prefer Mr Alkaios’ evidence. I do not accept Ms Shams’s evidence that Mr Alkaios swung his arm to punch her with a clenched fist. Her allegation of family violence on that occasion is not established.
[14] Affidavit of Ms F filed 8 April 2024, paragraph 26.
In late 2016, Mr Alkaios sought to retrieve his credit card from Ms Shams. Ms Shams deposes that Mr Alkaios “attacked me, in front of the children, wrestled me to the ground while yelling at me”.[15] Mr Alkaios denies her evidence. He deposes that he saw his credit card sitting on top of her bag and “reached for it” before Ms Shams began screaming “get off me” and then lay on the ground.[16] He deposes that he was not on top of Ms Shams and was not touching her. His oral and written evidence was consistent. There was nothing about the way in which he gave his evidence in cross-examination that suggested to me it was unreliable.
[15] Affidavit of Ms Shams filed 9 April 2024, paragraph 97.
[16] Affidavit of Mr Alkaios filed 15 April 2024, paragraph 138.
Ms Shams’s evidence is inconsistent with contemporaneous Police records. She called the Police that day and reported that Mr Alkaios “came from behind her to grab her back [sic] and she fell to the ground”. Ms Shams confirmed in oral evidence that the reference to “back” should be “bag”. She accepted that is what she told Police on the day. It is also recorded that she told Police that “she believed he did not mean to assault or hurt her, that it was a stress reaction and he wanted the card back”.
When confronted with the inconsistency referred to in the previous paragraph, Ms Shams gave further inconsistent oral evidence, including:
[MS SHAMS]: …I remember the incident. The incident was he attacked me and I fell to the ground.
KING’S COUNSEL FOR [MR ALKAIOS]: You weren’t pushed to the ground?
[MS SHAMS]: He was on top of me.
KING’S COUNSEL FOR [MR ALKAIOS]: You weren’t pushed to the ground?
[MS SHAMS]: When someone’s on top of you, you kind of fall together.
KING’S COUNSEL FOR [MR ALKAIOS]: Did he fall to the ground as well?
[MS SHAMS]: I can’t remember if he fell to the ground or not.
…
[MS SHAMS]: I’m saying that when he was attacking me, he came over the top of me to get to my bag, and then pushed… he did, whether we say pushed, either way, we both went together.
…
[MS SHAMS]: I fell to the ground, but it was due to him jumping on top of me.
…
[MS SHAMS]: He did not fall to the ground, he attacked me to get to my bag, he came from behind, to get to my bag, and in doing so, he knocked me over to the ground. I don’t recall him going with me to the ground. It all happened very quickly, and I remember getting up, and I just grabbed the card and I threw it.
Ms Shams was subsequently taken in cross-examination to a report from G Service dated late 2016. That report included reference to Mr Alkaios jumping on Ms Shams, pushing her to the ground, and “dragging her around”. She accepted that her report of the incident to G Service was different, but claimed that she “wouldn’t have lied”.
Ms Shams relied on evidence from her friend, Ms H. Ms H’s evidence was also inconsistent with Ms Shams’s evidence that she was “wrestled” to the ground.[17] Ms H deposes that Mr Alkaios “pushed” Ms Shams to the ground.[18] I do not accept Ms H’s evidence. She observed the incident from her car parked a distance down the street. After trying to visually map the scene in the witness box, she described her position in oral evidence as being “all the way down here” over a “bit of a crest”. She gave oral evidence that the distance between her and the parties was “less than a hundred metres, not even, fifty metres”. I reject her subsequent oral evidence that she was a distance double the length of the courtroom away given she thereafter drove her vehicle towards the parties to intervene in the argument. Had she been no more than twenty metres away, she would have had no need to drive her car closer in order to approach the parties. I accept Mr Alkaios’ unchallenged oral evidence that she was approximately forty to fifty metres away. Whilst she claimed in oral evidence to have clearly seen the episode, I am not satisfied that from the distance she was sitting in her car she could distinguish between Ms Shams falling while Mr Alkaios grabbed her bag, as Ms Shams described to Police contemporaneously, and Mr Alkaios pushing her.
[17] Affidavit of Ms Shams filed 9 April 2024, paragraph 97.
[18] Affidavit of Ms H filed 8 April 2024, paragraph 15.
Ms H also gives evidence Ms Shams did not make a report to Police that day and they had discussions about her doing so that evening or the next day. That evidence is also inconsistent with contemporaneous Police records which record Ms Shams having made a report to Police on the morning of the incident. That inconsistency also impugns the reliability of Ms H’s evidence.
Inconsistent with any assertion that this incident suggests the children’s safety is jeopardised in Mr Alkaios’ care, the Police record that Ms Shams advised them that day that “the kids were more than safe with him… and that she is certainly not in fear of him”. Police record that during a follow up call to Ms Shams, it was determined no Police intervention was required as there were “nil threats / assaults”, and Ms Shams was “not in fear of” Mr Alkaios. Those records are consistent with Ms Shams’s description to the children’s day care in late 2016 that the split was “amicable”.[19]
[19] Affidavit of Ms Shams filed 25 April 2024, Annexure N, page 128.
Ms Shams submits that I should prefer her evidence of what transpired on the day in question. In particular, she submits I should accept her evidence that Mr Alkaios wrestled her to the ground. She nevertheless accepts there is a discrepancy between her evidence that she was wrestled to the ground, and Ms H’s evidence that she was pushed.
Given the multiple inconsistencies in Ms Shams’s evidence, and the unreliability of Ms H’s evidence, I am not satisfied that Mr Alkaios pushed, wrestled, attacked, jumped on, or dragged Ms Shams in late 2016, as is variously asserted by her. I accept his evidence that she fell as he reached for her bag. Given Ms Shams’s contemporaneous representations to Police that she was not in fear, I am satisfied that Mr Alkaios’ conduct on the occasion did not amount to family violence.
In early 2021, Ms Shams deposes to X telling her that “Daddy got so angry that he strangled [Y]”, and that she was “uncertain how to interpret this”. [20] Mr Alkaios gave oral evidence that he has never put his hands around the children’s throat. He gave credible oral evidence that when the children were younger, he had grabbed Y by the front of his shirt while he was having a tantrum. He gave unchallenged oral evidence that Y did not look scared. I am not satisfied that incident amounts to abuse or family violence as those terms are statutorily defined.
[20] Affidavit of Ms Shams filed 9 April 2024, paragraph 80.
Other allegations of violence and abuse
Ms Shams contends that Mr Alkaios cut her off financially in October 2016. It is common ground that he then removed her access to his business account. Ms Shams gave oral evidence that this was the sole basis for her assertion that she was then cut off financially. I reject any suggestion that his conduct amounted to family violence as that term is defined.[21] Ms Shams continued to have access to her own funds. She deposes that after Y’s birth in 2016, she received “maternity leave pay for 6 months” and “Centrelink payments for a further 3 months”.[22] She gave oral evidence that in November 2016, she had obtained further employment in retail. That evidence contradicts her assertion that she had no income available to her after October 2016. Ms Shams also conceded that Mr Alkaios continued to meet all of the outgoings for the household, herself and the children, including rent. Mr Alkaios offered to, and did, pay childcare fees for the children. I am not satisfied that Ms Shams was denied financially autonomy, or that financial support was unreasonably withheld from her.
[21] Family Law Act 1975 (Cth), s 4AB.
[22] Affidavit of Ms Shams filed 9 April 2024, paragraph 98.
I also do not accept any suggestion that Mr Alkaios denied Ms Shams the opportunity to take household items from the parties’ home after separation. He gave unchallenged oral evidence that he vacated the home at Ms Shams’s request in order for her to remove items she sought to retain.
Ms Shams submits that I should find Mr Alkaios to have verbally abused her. The term “abuse” is defined in the Act only insofar as it is used in relation to a child.[23] Certainly children should be protected from verbal abuse between their parents. However, the evidence focused on the inappropriate language used in written correspondence between the parties, and it is not suggested the children were exposed to it.
[23] Family Law Act 1975 (Cth), ss 4(1).
Both parties have inappropriately sworn at each other. In evidence are messages between the parties in which both use a range of inappropriate language towards each other. The evidence does not satisfy me that the use of language by one party was worse than the language used by the other. I am not satisfied that it coerced or controlled either party, or caused them to be fearful. It accordingly does not amount to family violence.
Mr Alkaios accepted in cross-examination that he had potentially accused Ms Shams of promiscuity at one point and that he had called her a “cunt”, “Karen” and a “faggot”. Although he did not initially recall doing so, he accepted that he called her new partner, Mr J, a “parasite”. He also accepted he sent a text message referring to Y as a “blonde dickhead", giving unchallenged and uncontradicted evidence that both he and Ms Shams used that terminology at the time, and that he had no intention of disparaging the children.
Mr Alkaios denied in cross-examination that he had asked one of the boys to call Ms Shams a slut, that he had texted her three to four times a day to yell at her, that he had made negative comments about her appearance in front of other people, that he had accused her of being a terrible mother, that he had called Ms Shams names in front of the boys, or that he had disparaged her in front of the boys. Mr Alkaios also denied that he had threatened to bash Mr J or told the children they need to kill Mr J. Given the concessions made by Mr Alkaios recorded in the previous paragraph and the straightforward way in which he gave his evidence, I accept those denials.
Inconsistent with Ms Shams being intimidated by Mr Alkaios or feeling unsafe with him, she concedes that she invited him into her home to build a bunk bed and attended children’s birthday parties together with him. Ms Shams denied Mr Alkaios’ evidence of him staying at her home on a few occasions when she had to go out or was unwell, helping to set up her house and helping her with electronic issues. Ms Shams nevertheless did not challenge Mr Alkaios’ evidence. Given the multiple other inconsistencies in Ms Shams’s evidence, I prefer his evidence.
Ms Shams put to Mr Alkaios that he punished the boys by locking them outside. She deposes that in July 2022, Y disclosed to her that his father had “made him sleep outside”.[24] Mr Alkaios denied that he had locked the children outside. He gave credible evidence that he had used a secure patio area as the naughty corner for the children at one stage for periods of between five to ten minutes. I accept his evidence.
Explanations for the inconsistency between the history of care arrangements and allegations of family violence
[24] Affidavit of Ms Shams filed 9 April 2024, paragraph 87.
Ms Shams gave oral evidence that the children first started showing signs of being abused in 2020, referring to them starting to show signs of anxiety. She gave evidence that shortly after 2019, the children were “embroiled in either conflict between the two of us, or his abuse, his verbal, his bully-like behaviour”. She was cross-examined about the equal time arrangement that persisted thereafter as follows:
KING’S COUNSEL FOR [MR ALKAIOS]: You then say that despite the fact that for four years as at January 2023, you had seen the children suffer greatly, you took no action to change the equal shared parenting arrangement?
[MS SHAMS]: I wasn’t able to change it, because I didn’t have support in Melbourne. My hands were, in my words, tied, I guess, because if I have to work, I need him to support me, either picking up kids, and I was working two jobs at one stage, if I was working on the weekend which is his weekend to have the kids, well then I have to rely on him because I don’t have anybody else.
She also gave oral evidence that she did not seek to change the equal time arrangement prior to December 2021 because she “did not have any support here in Melbourne”. That oral assertion is inconsistent with her written evidence that from 2016 to 2019 she “had the support of [her] sister […] and best friend […]”.[25] Further Ms Shams’s partner lived in Melbourne in 2020. She conceded in oral evidence she had his support, albeit that they lived in different residences.
[25] Affidavit of Ms Shams filed 9 April 2024, paragraph 27.
Ms Shams sought to further explain her decision to continue the equal time arrangement that she considered to be abusive by giving oral evidence that “I don’t believe I had much of a choice because I needed to work, and I can’t bring my children to work”. She also gave oral evidence that “I went about it in a way that I felt was the best way, which was coming to Court”. Ms Shams nevertheless made no application to the Court until December 2021.
Ms Shams also gave oral evidence that it was not more important for her to go to work rather than prevent her children being abused, and that her children’s safety was “absolutely” first and foremost. The fact that she took no steps to change the equal time arrangement until her application to relocate to Queensland in December 2021, leads me to conclude that she considered it unnecessary to change the week about arrangement to protect her children from harm. I am not satisfied that the children were then being abused during the long-standing consensual arrangements, as Ms Shams now alleges.
I do not accept that Ms Shams’s failure to return to Melbourne in 2023 to provide care for the children was necessitated on financial grounds. She was then, and continues to be, employed at a rate of approximately $80,000 per annum. Her production of unpaid bills does not establish a financial inability to live in Melbourne.
Any family violence order that applies or has applied to the children or a member of the children’s family
There is not now, and has not been, a family violence order applying to the children or a member of their family. Ms Shams is recorded to have “strongly resisted” information about making an application for such an order when she spoke to Police in late 2016.
Given my lack of satisfaction of harm caused by Mr Alkaios towards the children, I am not satisfied a change of the children’s residence is necessary to promote their safety.
Mr Alkaios gives evidence that the children reported to him in February 2024 that Mr J and Ms Shams were “pushing and shoving each other” in front of the children.[26] Both Mr J and Ms Shams denied having done so, although admitted they have had some arguments. Given Mr Alkaios proposes that the children spend substantial unsupervised overnight time with Ms Shams, I consider it unnecessary to determine whether Mr J and Ms Shams were involved in a physical altercation.
[26] Affidavit of Mr Alkaios filed 15 April 2024, paragraph 161.
Any views expressed by the children
In July 2022, X told the Family Consultant, Ms E, that he did not wish to live in Queensland. He is reported to have said “I don’t want to go to Queensland, I don’t want to go away from Dad… Mum disagreed and said she wanted a better life for me... this is a better life!”[27] He also said that he didn’t want to live in Queensland because “we would be on planes all the time, it would be wasting time and it would take […] hours to get to Dad’s”.[28] [Y] then told Ms E that his mother “is going to make us go and live in Queensland… she’s going to force us because her husband is there and she needs helping”.[29]
[27] Affidavit of Ms E filed 9 April 2024, Annexure ME2 (“Child Impact Report”), paragraph 79.
[28] Child Impact Report, paragraph 79.
[29] Child Impact Report, paragraph 80.
In January and February 2023, the children lived with Ms Shams in Queensland and briefly attended K School. They accordingly had an experience of living in the arrangements now proposed by her. They thereafter saw Ms E again.
In April 2023, X told Ms E “I would like to live with Dad and go to [Suburb B School] and go to Mum in Queensland for holidays for two to three weeks”.[30] He also said “I would rather live with my Dad, he cooks better food, Mum cooks good, but I don’t like it, I eat everything my Dad cooks… I have limits on games [referring to screen time] at Dad’s, there’s no Nintendo at Mum’s.”[31] He told Ms E “I’d be sadder if I’m fulltime at Mum’s because there’s better food at Dad’s and more TV there.”[32] When asked about missing the parent with whom he would not live, he said, “I’d miss Mum, but holidays would be two to three weeks in Queensland and that would be fine … I’d really miss Dad though, I was crying every night when we were going to live in Queensland… my Dad was very worried.”[33] He also told Ms E that he made a few friends at K School “but not best friends, all my best friends are at [Suburb B]”, being his school in Melbourne.[34]
[30] Affidavit of Ms E filed 13 June 2023, Annexure ME1 (“Update Family Report”), paragraph 65.
[31] Update Family Report, paragraph 64.
[32] Update Family Report, paragraph 66.
[33] Update Family Report, paragraph 67.
[34] Update Family Report, paragraph 60.
In April 2023, Ms E asked Y about living in Queensland and attending K School. He said “it was the worst thing, I liked being with Mum, but I wanted to come back to Dad and go to [Suburb B School].”[35]
[35] Update Family Report, paragraph 71.
Neither party suggested that Ms E had inaccurately recorded the children’s views. No further updated report was sought or obtained by either party. I accept her evidence in relation to the children’s views.
Significantly, Y told Ms E in April 2023 that “I’d feel normal again if Mum comes back to Melbourne”.[36] Consistent with that report, Mr Alkaios gave oral evidence that the children ask for Ms Shams to come down to Melbourne. Ms Shams gave the following oral evidence:
KING’S COUNSEL FOR [MR ALKAIOS]: The boys are both clear though that they’re asking for you to come back and be with them in Melbourne, aren’t they?
[MS SHAMS]: They have asked me to return, yes.
KING’S COUNSEL FOR [MR ALKAIOS]: But they want to stay in Melbourne, they just want you to come back too?
[MS SHAMS]: I understand they want what’s familiar to them, yes.
[36] Update Family Report, paragraph 66.
There is accordingly no dispute in relation to the children’s views that they want to remain living in Melbourne and would prefer their mother return to Melbourne. As Ms Shams conceded in closing address, it is not disputed that the children have said they don’t want to live in Queensland.
Ms Shams submits that the boys were being coached by Mr Alkaios to say they don’t want to live in Queensland. She put to Mr Alkaios that he had “deliberately influenced the children”, “given them a negative image of Queensland” and “done everything to influence their wishes in this case”. Mr Alkaios denied the assertions. He denied talking to the boys about the proceedings or putting X in the situation of having to choose between his parents. There was nothing about the way Mr Alkaios gave that evidence that caused me to doubt its veracity.
Ms Shams suggested to Mr Alkaios that X could not have done his own research before telling Ms E in 2022 that it would take several hours to get to Dad’s from Queensland. Mr Alkaios gave unchallenged evidence that he was pretty sure the children had previously flown that route. I am not satisfied of any coaching involved in X’s statement to Ms E.
Ms Shams suggested to Mr Alkaios that X’s use of the phrase “tell the Judge…” to Ms E was indicative of coaching by him. Mr Alkaios suggested that he could have come up with the idea himself or obtained the idea from his mother. He later gave oral evidence that X’s specific comments were purely coming from X. It is also possible, although it was not explored with Ms E, that she asked X if there was anything he wanted to tell the Judge. Ms Shams forensically failed to exclude those alternative possibilities. I am accordingly not satisfied that X’s use of the phrase is indicative of coaching by Mr Alkaios given his denials.
In July 2022, Y told Ms E that “Dad thinks it’s bad because there’s bigger storms [in Queensland] and it can’t flood here”.[37] Ms Shams put to Mr Alkaios in cross-examination that he had told Y there are bigger storms in Queensland. Mr Alkaios denied having done so. He gave evidence that the children put that together from having watched the news during severe flooding and storm events in Queensland. His evidence was not successfully challenged and I accept it. I also accept his evidence that he has not told the boys there are huge snakes in Queensland and that they might get bitten. His explanation that the boys had seen snakes themselves on Ms Shams’s property was not challenged.
[37] Child Impact Report, paragraph 80.
Mr Alkaios also denied that he talked negatively about Ms Shams’s diet and religion, even though he accepted that he had told Ms E that Ms Shams’s views about those matters was “crap”.[38] He also gave evidence that he tells the boys that when they’re in Ms Shams’s household they have to eat what she provides to them. There was also nothing about the way he gave that specific evidence that caused me to doubt its reliability and I accept it.
[38] Child Impact Report, paragraph 206.
When asked why X would have reported to Ms E that his dad was very worried, Mr Alkaios gave evidence that he was teary when he spoke to X in Queensland via FaceTime in around January 2023. He denied saying to X that he was “very worried”. I do not accept that X’s report to Ms E that his father was very worried is indicative of any coaching by Mr Alkaios. At the time, the children had recently been relocated to Queensland without Mr Alkaios’ knowledge or consent, and I am not satisfied his display of emotion was at all inappropriate.
Ms Shams asked Ms E whether she considered the boys to have been coached or coerced to make the statements they had to her. She gave evidence that:
I don’t think they were being coerced, and I don’t think they were being deliberately coached, intentionally coached. But they were, in both of the reports, they presented as very exposed to the level of anxiety that there was, particularly, experienced by their father, and the level of tension and conflict, and difference between the parents.
The evidence does not satisfy me that Mr Alkaios has coached the children to say they don’t want to live in Queensland.
Mr Alkaios deposes, without challenge, to the children enjoying their school and loving their local area. Ms E opines, also without challenge, that the children “demonstrate age-appropriate maturity” and have “reiterated their wish to remain living in Melbourne”.[39] X was “unequivocal… about his sense of emotional attachment to [Mr Alkaios]”.[40] I consider that weight should be accorded to the children’s views expressed in circumstances where they have direct experience of the parties’ respective proposed living arrangements.
[39] Update Family Report, paragraph 107.
[40] Update Family Report, paragraph 107.
The developmental, psychological, emotional and cultural needs of the children
Ms E opines that the children “continue to present as healthy and well cared for”,[41] that they are “functioning physically and intellectually to standard”, that psychosocially they are “thriving in the school and community provided by living with [Mr Alkaios]”,[42] and that they present as “psychologically and emotionally stable, facilitated by the stability of [Mr Alkaios’] caregiving”.[43] Ms Shams told Ms E in April 2023 that the children “present as settled in [Mr Alkaios’] care”.[44] The evidence now before the Court is consistent with those opinions and representations, which I accept. Mr Alkaios gave unchallenged evidence that “the current situation is working really well” and the boys are in “a routine and a structure”.
[41] Update Family Report, paragraph 57.
[42] Update Family Report, paragraph 92.
[43] Update Family Report, paragraph 95.
[44] Update Family Report, paragraph 38.
Ms E opines that weight should be “accorded to the emotional/psychological support provided by [X] and [Y’s] involvement in the school and community of [Suburb B], provided primarily by [Mr Alkaios] but when [Ms Shams] did live nearby, by her as well”.[45]
[45] Update Family Report, paragraph 106.
Ms E also opines orally that she “found the children to be very stable and secure and settled, not only in their relationship with the father and his partner, but in the whole psychosocial environment” and was:
aware that as the children get older, it’s now some two years since I first met the children, that, as [X] particularly moves towards adolescence, the continuity of a stable environment, that doesn’t have the sort of differences in lifestyle that the mother’s living environment would provide, would be much more capable of ensuring healthy emotional development for both children, but particularly for [X].
Ms Shams asked Ms E how she considered the boys would cope with a relocation to Queensland. She gave the following oral evidence:
I think they would be much more emotionally distressed at a relocation now given that for the last 18 months they’ve been settled in their familiar school and community environment with their father, that historically has been part of their lives. Particularly because of the lifestyle differences, and the requirement by the mother, it seems, that the children do adapt almost unquestioningly to her lifestyle, I think that would lead to a great deal of, I think, emotional regression. There was concern about both children’s regressive behaviour and symptoms of distress in terms of incontinence, twitching, and nightmares throughout this process, and particularly during the first report. I think that the children’s potential for their development as they move towards early adolescence is going to be much more compromised should they be required to live in Queensland.
Ms Shams did not challenge those opinions. I find Ms E’s opinions to be founded on her unchallenged observations and expertise. I accordingly accept them.
The capacity of each person who has or is proposed to have parental responsibility for the children to provide for their developmental, psychological, emotional and cultural needs
Mr Alkaios’ parenting capacity
Ms E observes that Mr Alkaios presented as concerned to provide for “[X] and [Y’s] relationship with their mother and significant others”, and as “continuing to support a meaningful relationship for the children with [Ms Shams]”.[46]
[46] Update Family Report, paragraph 45.
Ms Shams submits that Mr Alkaios is only facilitating the children’s relationship with her while he is under the spotlight of the litigation. She relies on his hostility expressed towards her in Ms E’s first report, although accepts that it was somewhat ameliorated by the time of her second report. Ms Shams contends that if the boys live with Mr Alkaios, he’ll find ways to become obstructionist and fail to facilitate the boys’ relationship with her.
I do not accept Ms Shams’s submissions. There is no suggestion of any previous refusal or failure by Mr Alkaios to promote the children’s relationship with their mother. Indeed, contrary to any such suggestion, Ms Shams has complained about numerous occasions when Mr Alkaios has asked her to care for the children while they were in his care. Mr Alkaios doing so is inconsistent with any desire by him to deprive the children of a relationship with their mother. Those complaints are essentially raised in relation to the extended post-separation period prior to any litigation commencing.
Mr Alkaios also now proposes that I make orders providing for the children to live equally between each of their parents in the event Ms Shams returns to Melbourne. His maintenance of that position, despite Ms Shams’s refusal to return since her unilateral relocation in January 2023, is indicative of a positive attitude towards the children maintaining a substantial and significant relationship with their mother.
That Ms Shams fears Mr Alkaios will not support her relationship with the children does not establish it to my satisfaction. Mr Alkaios’ expressed hostility towards her in July 2022 is contradicted by his presentation to Ms E in April 2023. It is also contradicted by the impression I formed from his oral evidence. He credibly denied considering Ms Shams to be a terrible mother. He also credibly gave evidence that he thinks Ms Shams is “very loving towards the children, she’s very nurturing, she’s also great at entertaining the kids, she’s always been fun to be around”. I accept his oral evidence that he will do everything in his power to make the orders he proposes work.
Ms Shams’s submission also finds no support in Ms E’s evidence. She did not consider Mr Alkaios would find reasons to obstruct the children’s time with Ms Shams after the spotlight or microscope of the litigation ends.
Ms Shams put to Mr Alkaios that he plays music in the background and otherwise makes noise to interrupt the children’s communication with her. Both he and Ms L gave credible evidence that the boys sometimes wander through the house while speaking to their mother, including walking into rooms where there is background noise. Both gave evidence that they appropriately encourage the children to return to their rooms to speak to their mother privately. That evidence was not successfully challenged and I accept it.
Ms Shams deposes that she is “fearful” Mr Alkaios is “still struggling to care for the children however is not admitting it due to the current proceedings”.[47] She seeks to explain the basis of that belief by reference to the fact that, regularly throughout 2017 to 2022, Mr Alkaios messaged her to say it was “too hard to care for the children” and that she needed to come and pick them up.[48] She also deposes that “[d]ue to family court proceedings [Mr Alkaios] has temporarily ceased saying it is too hard to care for the children”.[49] The basis for her assertion about Mr Alkaios’ motivation is not articulated.
[47] Affidavit of Ms Shams filed 9 April 2024, paragraph 93.
[48] Affidavit of Ms Shams filed 9 April 2024, paragraph 93.
[49] Affidavit of Ms Shams filed 9 April 2024, paragraph 93.
Mr Alkaios denies Ms Shams’s evidence. I prefer his evidence. Despite Ms Shams’s concerns, not only did she continue to facilitate the equal time arrangement, but she voluntarily left the children in his full-time care for two extended periods of three to four weeks in 2018 and 2019 while she travelled overseas on holiday. She contended in oral evidence that she did so in the hope that he could help care for them. I do not accept that Ms Shams would voluntarily have left the children with their father for those extended periods of time if she genuinely believed that he was unable to cope with their care.
Ms Shams gave oral evidence that in 2016, Mr Alkaios suffered a panic attack whilst caring for the children and took himself to hospital, and that he called her incessantly saying that he could not cope with their care. In circumstances where Ms Shams thereafter left the children in his care for extended periods of time, I am not satisfied that the incident is demonstrative of any incapacity in Mr Alkaios providing for the children’s needs.
I reject Ms Shams’s oral evidence that, prior to the Court proceedings in December 2021, Mr Alkaios told her every day or every second day that he was not coping. She went on to give oral evidence that the majority of such communications are in her affidavit. That evidence was exaggerated, there is not a body of messages from Mr Alkaios in her affidavit with the frequency that she alleges. Her conclusory statements that Mr Alkaios “often messaged me to say it was too hard to care for the children” and that it was a “regular occurrence throughout 2017-2022” does not satisfy me of the conclusion.[50] Mr Alkaios’ general denial of Ms Shams’s evidence was not challenged. I do not accept that Mr Alkaios was frequently or generally unable to cope with the care of the children. I accept his evidence that he had sought assistance from Ms Shams on occasions when he was unwell or when he had been unexpectedly caring for the children for extended periods because of COVID-19 pandemic restrictions.
[50] Affidavit of Ms Shams filed 9 April 2024, paragraph 93.
It was suggested to Ms Shams in cross-examination that she asserts that spending time with their father is something that negatively impacts the children’s mental health. She answered: “Yes, for longer periods, when they’re with him for longer periods”. She also gave evidence that “once they became of age to talk, it was evident that, yes, it was not a healthy environment for them”. That evidence is inconsistent with Ms Shams’s evidence that she encouraged a relationship between the children and their father and that she encouraged an “equal shared parenting arrangement”.[51] She agreed in oral evidence that she had driven and encouraged the children’s relationship with their father. She also gave oral evidence that the equal time arrangement was her idea. Given both her encouragement and facilitation of the children’s ongoing relationship with their father, including him caring for them equally, I reject her evidence that his care of the children has negatively impacted their mental health, or that he provided an unhealthy environment for them.
[51] Affidavit of Ms Shams filed 9 April 2024, paragraph 24.
Ms Shams sought to explain the inconsistencies referred to in the previous paragraph by reference to the fact that she didn’t know at the time that the children’s time with their father was emotionally abusive because she wasn’t there and the children “weren’t able to talk”. That evidence is fanciful and I reject it. Ms Shams accepted that in 2019 X was 6 years old and able to talk. The equal time arrangement continued thereafter with Ms Shams’s consent until January 2023.
Ms Shams criticised Mr Alkaios for cancelling an appointment for the children to see a psychologist. I do not accept the criticism. Ms Shams had obtained the referral for that appointment without consulting Mr Alkaios. He understandably wanted to be involved in the referral process. Mr Alkaios is now facilitating X’s attendance upon a psychologist. I am not satisfied that his actions in cancelling the appointment unilaterally arranged by Ms Shams are reflective of any general incapacity to provide for the children’s medical needs.
Generally, Ms E observed that Mr Alkaios presented “as appreciative of his parenting obligations and thoughtful about [X] and [Y’s] needs”, as “concerned to provide for their development with regard to education, psychosocial support”,[52] and as “engaged with [X] and [Y’s] extracurricular activities as well as providing a structured routine during school time”, which final consideration was also noted by the family therapist previously engaged by the parties.[53] Ms E also observed Mr Alkaios to impose “firm boundaries for the children, and they were responsive”.[54] She opines that he presents as “competent and capable of providing for [X] and [Y’s] development, welfare and safety”,[55] and “more emotionally contained”.[56] I accept her evidence which was not successfully challenged.
[52] Update Family Report, paragraph 45.
[53] Update Family Report, paragraph 47.
[54] Update Family Report, paragraph 51.
[55] Update Family Report, paragraph 88.
[56] Update Family Report, paragraph 89.
To Mr Alkaios’ credit, he has engaged with a psychologist and continued to do so in accordance with Ms E’s recommendations. I accept his evidence that the psychologist has assisted him with stressors and his use of language.
Absent challenge to it, I also accept Ms E’s opinion that Ms L presents as “a thoughtful and engaged adult who is emotionally significant to [the children]”, with whom they interacted with “warmth and ease”,[57] and who is a “positive psychological resource” for the children.[58] I also accept her opinion that Mr Alkaios and Ms L “present as providing a safe and secure emotional base, with co-operative and facilitative caregiving”.[59]
[57] Update Family Report, paragraphs 55-56.
[58] Update Family Report, paragraph 90.
[59] Update Family Report, paragraph 90.
Ms Shams’s parenting capacity
Ms E observed Ms Shams to be “warm and engaged with the children, who were delighted to see her”, with Y jumping into Ms Shams’s arms, and warmly embracing her.[60] She considers that overall, Ms Shams presents as “competent and capable of providing for the development, welfare and safety” of the children.[61] To Ms Shams’s credit, she also has continued to attend upon psychological therapy recommended by Ms E. However, her “attitudes about aspects of caregiving such as dietary preference appear to be more uncompromising and therefore a potential source of stress for the children in managing transitions between hers and [Mr Alkaios’] households, a stress to which [she] seems insensitive”.[62]
[60] Update Family Report, paragraph 41.
[61] Update Family Report, paragraph 84.
[62] Update Family Report, paragraph 84.
Comparing Ms Shams’s presentation across her two assessments, Ms E opines that whilst presenting as “appreciative of her parenting obligations and aware of the children’s emotional and psychological needs”, she presented as “less child focused and more preoccupied with her own needs”.[63] I find one example to be her travel to Queensland in June 2021. She was unexpectedly required to remain in Queensland due to pandemic restrictions until approximately 10 July 2021. Thereafter she was able to return to Victoria, undertake COVID‑19 testing and isolate until the result was negative. She refused to undertake the test, with the result that she did not return to Melbourne for a further period of at least a week.
[63] Update Family Report, paragraph 34.
Ms E considers that Ms Shams’s unilateral relocation indicated “a disregard for the ongoing litigation process, a minimising of [Mr Alkaios’] role in the children’s development and welfare and particularly minimising the need for [X] and [Y] to have ongoing contact and communication with a caregiving figure assessed as competent”.[64] She opines that Ms Shams’s “restriction of contact for the children with [Mr Alkaios] at the time of the relocation presents as self-serving rather than child focussed, particularly in the context of her unilateral decision and actions and the likelihood that [X] and [Y] would be confused if not distressed about separation from their father”.[65] She also opines that the unilateral relocation raises “concerns for the level of child focus and support of [Mr Alkaios’] role that she might consistently demonstrate, should the Court determine that relocation is permitted”,[66] and “indicates a level of disregard for the significance” of the children’s relationship with their father.[67] Ms E considers that Ms Shams, by her “quite extreme action in unilaterally relocating”, has intensified the psychological burden for the children.[68] I accept those opinions which were not the subject of any successful challenge.
[64] Update Family Report, paragraph 35.
[65] Update Family Report, paragraph 36.
[66] Update Family Report, paragraph 82.
[67] Update Family Report, paragraph 83.
[68] Update Family Report, paragraph 94.
Despite Ms Shams’s submission that it is Mr Alkaios who may not facilitate the children’s relationship with her should they remain living in Victoria, I accept Ms E’s evidence that it is Ms Shams’s “valuing – demonstrably limited by her actions – of the children’s relationship with [Mr Alkaios] and of his caregiving capacity, that presents as a risk”.[69] I also accept her opinion that there is “no certainty that [Ms Shams] will facilitate [X] and [Y’s] relationship with their father, and her capacity to be consistently child focussed is under question”.[70]
[69] Update Family Report, paragraph 103.
[70] Update Family Report, paragraph 104.
Ms Shams has taken steps which are inconsistent with her prioritising and valuing Mr Alkaios’ role as the children’s father. In July or August 2021, she effectively sought to cut Mr Alkaios out of communication with the children’s school and withdrew her authorisation for him to collect the children from after school care. She actively withheld information in relation to the children’s welfare from him. She took the children to a see a paediatrician without his agreement. In November 2021, she enrolled the children at school in Queensland without acknowledging the existence of Mr Alkaios as the children’s father.
The impact of Ms Shams’s decision not to return to Victoria with the children in February 2023 is evident from X’s comment to Ms E in April 2023 that “Mum is now married to [Mr J] and she cares more about him than me”.[71] Ms E considers that to be a “relatively normal experience of emotional displacement for a child of [Y’s] age and his birth position” [72] but one that must be addressed.
[71] Update Family Report, paragraph 70.
[72] Update Family Report, paragraph 70.
Absent challenge to it, I also accept Ms E’s opinion that Mr J presents as “a capable adult who is a significant emotional figure” for the children, with whom they present as “easy and familiar”.[73] I also accept her opinion that Mr J presents as “supportive of the children and a positive psychological resource”.[74] However, she considers there to be a risk of emotional damage to the children by Mr J “overstepping his role”.[75]
[73] Update Family Report, paragraphs 53-54.
[74] Update Family Report, paragraph 86.
[75] Update Family Report, paragraph 97.
I accordingly find Mr Alkaios to have a greater capacity to provide for the children’s needs.
Alternative proposals
I am required to consider Mr Alkaios’ ability to move to Queensland.[76] He was asked what his position would be if the children were to move to Queensland. He was asked whether he wanted orders that would provide for the children to spend time with him every five weeks and half of the school holidays, on the assumption he would remain in Victoria. He gave oral evidence that “I don’t think that would work. I would need to eventually move to Queensland”. So much is consistent with his written evidence that, despite he and his partner having “no desire or interest in relocating to Queensland”, he would “do everything in my power to try and find employment there and find somewhere to live there”.[77]
[76] Jurchenko & Foster (2014) FLC 93-598 at [103]-[104], quoting Deiter & Deiter [2011] FamCAFC 82 at [94].
[77] Affidavit of Mr Alkaios filed 15 April 2024, paragraph 29.
Mr Alkaios was asked whether he could pack up and move his business to Queensland. He gave oral evidence that “it would be very difficult”. So much is consistent with his written evidence that “it would be incredibly difficult, if not impossible, to build a successful […] business in Queensland”.[78] Nevertheless, it is also his written evidence that when his partner Ms L gives birth, he will take on the primary carer role as she wishes to continue working.
[78] Affidavit of Mr Alkaios filed 15 April 2024, paragraph 31.
Mr Alkaios deposes that he and the children are settled in Melbourne “with a strong network of friends and family”,[79] including Ms L, her mother, his sister and his aunt. He also deposes to Ms L wanting to stay in Melbourne with her support network. Ms L gives similar evidence.
[79] Affidavit of Mr Alkaios filed 15 April 2024, paragraph 30.
By contrast, Ms Shams is unwilling to entertain or consider the possibility of herself returning to Victoria. That unwillingness is demonstrative of a level of self-serving rather than child focus, as opined by Ms E.
The benefit to the children of being able to have a relationship with their parents, and other people who are significant to them, where it is safe to do so
On the parties’ primary proposals, the children will live interstate from one of their parents. That practical reality will significantly limit the time the children are able to spend with the interstate parent. Both make substantially similar proposals for the children to spend a weekend with the other parent in their home state every fifth weekend and for half of the school holidays. I accept that will essentially be the extent of the time the children are able to spend with an interstate parent.
It is relevant to consider the nature of the children’s relationship with the parties and other significant adults in their lives. In July 2022, the children “presented with strong self-concepts and equally positive views about their parents”.[80]
[80] Child Impact Report, paragraph 77.
In April 2023, X spoke to Ms E “equally positively about both parents”. [81] He said that his father “doesn’t get cross anymore, it’s normally about my little brother but Dad doesn’t get angry, his voice just goes up”.[82] He said that Ms Shams “is the angriest”.[83] He said that Ms L “is very loving too”.[84] Of Mr J, he said “he acts like a Dad, he is a Dad to his kids, he’s now my Stepdad and I don’t want that… I didn’t want it in the first place when [Mr J] and Mum met”.[85]
[81] Update Family Report, paragraph 61.
[82] Update Family Report, paragraph 61.
[83] Update Family Report, paragraph 63.
[84] Update Family Report, paragraph 62.
[85] Update Family Report, paragraph 62.
In April 2023, Y also spoke to Ms E “equally positively about both parents”.[86] He said that his father “hasn’t got cross for a year”.[87]
[86] Update Family Report, paragraph 69.
[87] Update Family Report, paragraph 69.
I accept Ms E’s opinion that the children “demonstrate sound emotional relationships” with both of their parents.[88] She gave oral evidence that their father was absolutely attuned and responsive to the children and they are strongly bonded with their mother.
[88] Update Family Report, paragraph 96.
She considers the children will “continue to benefit from meaningful relationships with both parents”,[89] and their “development will be facilitated by the affection, responsiveness, encouragement and teaching that they can receive” from both of their parents.[90] In that context, Ms E considers that the equal shared care arrangement that had been in place prior to Ms Shams’s relocation to Queensland in early 2023 “likely supported the positive parenting capacity of both” parents.[91] The children “spoke positively about [Mr J] and [Ms L]”.[92]
[89] Update Family Report, paragraph 99.
[90] Update Family Report, paragraph 100.
[91] Update Family Report, paragraph 105.
[92] Child Impact Report, paragraph 81.
I am satisfied the children have strong and sound relationships with each of their parents that can be sustained despite the geographical distances between them.
Anything else that is relevant to the particular circumstances of the children
Ms Shams submits that she is settled in Queensland and has a settled relationship with her husband. She did not articulate how the fact of her being so settled suggests that the children, who are settled in Melbourne, ought be removed from their present environment to live with her in Queensland.
The children are not Aboriginal or Torres Strait Islander children.
CONCLUSIONS
Ms E recommends that the children remain living with Mr Alkaios in Melbourne. If Ms Shams continues to live in Queensland, Ms E recommends that the children spend as much time with her in Queensland as possible, including during holidays and at least one weekend each school term. Ms Shams indicates through her Counsel that she will not return to live in Melbourne.
The issue of whether a parent relocates with children is an issue for the Court and is not the province of opinions arising from the expertise and experience arising from Ms E’s qualifications as a psychologist.[93] Nevertheless, what is within Ms E’s expertise and experience is to offer a professional assessment of the respective proposals for the children to live with each of their parents in established environments. As has been observed, the children have experienced living with each of their parents in the now proposed environments. In that circumstance, I do not consider Ms E has strayed beyond her professional capacity by making the recommendations she has. Ms Shams made no such suggestion.
[93] Searson & Searson (2017) FLC 93-788 at [26] and the cases there cited.
I am not bound by Ms E’s recommendations, nor am I bound to accept or reject in whole or in part her evidence.[94] I am responsible for considering and giving appropriate weight to the totality of the evidence presented.[95] Nevertheless, her evidence, which I find to be suitably qualified and based on appropriate foundation, carries substantial weight. Departure from it requires careful consideration.[96]
[94] U v U (2002) 211 CLR 238 at [83] per Gummow and Callinan JJ, with whom Gleeson CJ, McHugh and Hayne JJ agreed.
[95] Grier & Grier (2023) FLC 94-135 at [88], citing Maclean & Greenwood (2022) FLC 94-117 at [33].
[96] Muldoon & Carlyle (2012) FLC 93-513 at [105] and the cases there cited.
Ms Shams directly engaged with only one aspect of Ms E’s opinion in closing address, namely Ms E’s assessment that in the event the children were living in Queensland, Ms Shams would not support the children going back to Victoria. She submitted that the reality is the opposite, namely that if the children are living in Melbourne with Mr Alkaios, he would not support the children travelling to Queensland to spend time with her. I have rejected that submission for reasons already advanced.
In any event, Ms E’s reasons for recommending the children continue to live in Melbourne go well beyond the suggestion that Mr Alkaios is better placed to facilitate the children’s relationship with Ms Shams than she is with him. Her recommendation is consistent with the children’s expressed views, their settled psychosocial environment in Melbourne, and Mr Alkaios having a greater capacity to meet the children’s needs. Being myself satisfied of those matters, I am also satisfied that the children’s best interests are now served by remaining living with Mr Alkaios in Melbourne.
Although Mr Alkaios and Ms L are not unable to move to Queensland, it is a step associated with significant difficulty. It will be incredibly difficult for Mr Alkaios to establish a business in that environment. It will deprive them of the significant supports available to them in Victoria. It would also remove the children from their well-established and settled environment. I am not satisfied it is in the children’s best interests. Ms Shams herself made no proposal for what parenting orders would be appropriate in that circumstance.
Ms E recommends that in the event Ms Shams returns to live in Melbourne, the children spend week about time with each of their parents. Despite expressing some hesitation in her oral evidence given subsequent events, she maintained that recommendation. Mr Alkaios proposes that recommendation be embodied in an order. Ms Shams made no submissions in relation to the proposal. Whilst she has repeatedly indicated that she will not return to live in Melbourne, I do consider that the order proposed by Mr Alkaios is in the children’s best interests in the event she changes her mind.
No attempt was made by Ms Shams to articulate how an order for her to have sole parental responsibility could practicably be implemented in the event the children live with Mr Alkaios in Melbourne. I am not satisfied that such an outcome is practicable. It is not in the children’s best interests for the parent with whom they are primarily residing to be deprived of parental responsibility.
Consistent with the encouragement prescribed by section 61CA of the Act, Mr Alkaios proposes that the parties make joint decisions in relation to major long-term issues in relation to the children. Whilst I have some doubt about the parties’ capacity to co-operate and communicate in relation to such decision-making, I am satisfied that the outcome proposed by him is in the children’s best interests. It affords both parents the maximum opportunity to be involved in significant decision-making for the children.
Mr Alkaios proposes that, unless the parties otherwise agree, the children be enrolled at D School. He gave oral evidence that they are currently zoned to attend that school. Although he has a number of other schools under consideration, he seeks a default position to be embodied in the Orders. Ms Shams made no submissions with respect to the relief proposed. She gave oral evidence that she didn’t believe she would have any objections to the children attending there if they remain in Melbourne. In order to minimise the prospect of future dispute between the parties, which dispute would be contrary to the children’s best interests, I accept the appropriateness of Mr Alkaios’ proposal.
Mr Alkaios proposes that the children spend time with Ms Shams in Melbourne for two weekends each school term, and for one weekend each school term in Queensland. He proposes that they spend equal time with each of the parties during school holiday periods. Ms Shams made no alternative proposal in the event the children remain in Melbourne. She made no submissions with respect to the relief sought by Mr Alkaios. I find that relief to be in the children’s best interests, affording what appears to be the maximum practical time they can spend with Ms Shams given the geographical limitations.
Mr Alkaios proposes that the parties each book one airfare for the children and for the other to refund 50% of its cost. He points to conflict that has occurred between the parties in relation to booking flights and their associated cost. Although Ms Shams proposes a continuation of the arrangement whereby each party pay the cost of one airfare, she made no submission with respect to either proposal. Given the existing arrangements have led to conflict between the parties, I prefer Mr Alkaios’ proposal, which seeks to minimise future conflict.
I also prefer Mr Alkaios’ proposal for the children’s communication with each of their parents, which is more specific and prescriptive. It is accordingly less likely to lead to further disputation.
I am satisfied that the injunctive relief proposed by Mr Alkaios is in the children’s best interests, including to ensure they are not again removed from their current school or living environment.
Ms Shams proposes that the children be restrained from being taken outside of Australia by Mr Alkaios without her consent. Mr Alkaios proposes that both parties have liberty to take the children outside of Australia upon thirty days’ prior notice. Neither party made any submissions with respect to their position. I find no reason to limit only Mr Alkaios’ capacity to travel overseas with the children. I prefer his proposal which affords the children the opportunity to travel overseas with both of their parents. In the event either party objects to the proposed travel, they will have sufficient time to take any measures then deemed necessary.
Both parties propose to ensure they are notified of medical and other relevant information concerning the children. I prefer Mr Alkaios’ proposals which are more prescriptive and positively require the praties to provide medical information to each other.
Ms Shams proposes orders that the parties attend upon various therapists. She made no submission in support of the application. The orders proposed are self-standing and are likely to be beyond power,[97] and for that reason I decline to make them.
[97] Oberlin & Infeld (2021) FLC 94-017 at [51]-[52] and the cases there cited; Eastley & Eastley (2022) FLC 94-094 at [58].
I also decline to make the order sought by Ms Shams requiring Mr Alkaios to facilitate the children’s attendance upon psychologists. The order proposed is not contingent upon such treatment being necessary or recommended for the children. I am satisfied that Mr Alkaios will ensure the children’s attendance upon necessary medical treatment without such orders.
I also decline to make the further order sought by Ms Shams requiring Mr Alkaios to attend a further parenting program in light of his unchallenged evidence that he previously completed the course he understood he was required to attend.
Ms Shams advanced no reason why she ought not be required to contribute 50% of the cost of the single expert witness, Ms E. I will grant the relief to that effect sought by Mr Alkaios, which relief is consistent with the default position.[98]
[98] Federal Circuit and Family Court of Australia (Family Law) Rules 2021, r 7.06.
I decline to make notations to the final Orders to embody informal proposals by Mr Alkaios, which are already reflected in the Court’s record.
I certify that the preceding one hundred and twenty-five (125) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Glass. Associate:
Dated: 20 May 2024
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