SIMMELL & REDGATE
[2020] FCCA 3345
•11 December 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SIMMELL & REDGATE | [2020] FCCA 3345 |
| Catchwords: FAMILY LAW – Parenting Orders – where there are two subject children – where communication between the parents is poor – hearing conducted by way of Microsoft Teams – where the two children have been diagnosed with an Autism Spectrum Disorder – whether the medical and therapeutic services would be adequate and sufficient to ensure that the children’s special needs are met – where best interests of the children are considered – an order for equal shared parental responsibility – the respondent mother have sole parental responsibility for all medical decisions of the children – orders made. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: Blinko v Blinko [2015] FamCAFC 146 D and SV (2003) FLC 93-137 Goode & Goode (2006) FLC 93-286 M & M (1988) 166 CLR 69 Mazorski v Albright (2007) 37 Fam LR 518 MRR & GR [2010] HCA 4 Oswald v Karrington (2016) FLC 93-726 Sampson and Hartnett (No 10) (2007) FLC 93-350 U & U [2002] HCA 36 |
| Applicant: | MS SIMMELL |
| Respondent: | MS REDGATE |
| File Number: | PAC 6215 of 2017 |
| Judgment of: | Judge Humphreys |
| Hearing dates: | 23-27 November 2020 |
| Date of Last Submission: | 27 November 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 11 December 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Reeve |
| Solicitors for the Applicant: | Marsdens Law Group |
| Counsel for the Respondent: | Mr Macpherson |
| Solicitors for the Respondent: | Shiels Legal |
| Counsel for the Independent Children's Lawyer: | Mr Schroder |
| Solicitors for the Independent Children's Lawyer: | Sydney West Family Lawyers |
ORDERS
All previous orders are vacated.
The orders are to take effect from the first day of school in the first term of 2021.
Parental Responsibility
That the parties shall have equal shared parental responsibility save for medical matters for the children, X and Y both born in 2015 (herein referred to as “the children”).
That the respondent mother, Ms Redgate, shall have sole parental responsibility for all medical decisions for the children, including allied health and the management of the children’s respective NDIS plans.
That in the respondent mother exercising her sole parental responsibility as per order 2, the respondent mother shall:
(a)notify the applicant mother Ms Simmell of any proposed decision relating to such issues and the reason for the proposal, with such notification to be given in writing within 7 days and inviting comment from the applicant mother;
(b)the applicant mother shall within 7 days provide any comment in reply;
(c)the respondent mother shall consider any views expressed by the applicant mother in relation of the proposed decision, then inform the applicant mother of the decision she has made.
Live with, spend time with and electronic communication arrangements
That the children shall live with the respondent mother in Town B.
That the children shall spend time with and communicate with the applicant mother as follows, in the event that the applicant mother does not reside in Town B:
School Term
(a)During the school term a regime of two weekends out of three, from the conclusion of school on Friday to 5:00pm on Sunday, extended to 5:00pm Monday if the Monday is a Public Holiday, as follows:
i.On weeks one, two, four, five, seven, eight, ten and eleven of each school term in even numbered years; and
ii.On weeks two, three, five, six, eight, nine, eleven and of each school term in odd numbered years.
School Holidays
(b)That during the school holidays as follows:
iii.For one half of the term 1, 2 and 3 school holiday periods, being the first half in years ending in an even number and the second half in years ending in an odd number;
iv.For the purposes of the term 4 school holiday period, for one half of the school holidays being for the first half in years ending in an even number and for the second half in years ending in an odd number;
(c)At such other times and variations of the above as agreed between the parties in writing.
That the children shall spend time with and communicate with the applicant mother as follows, in the event that the applicant mother resides in Town B:
School Term
(a)During the school term, from the conclusion of school on Thursday to the commencement of school on Tuesday each alternate week, with such time commencing on week one of each school the in even numbered years and in week two in odd numbered years.
School Holidays
(b)That during the school holidays as per order 5 (b)
(c)At such other times and variations of the above as agreed between the parties in writing.
By electronic means, being ‘face-time’, ‘skype’ or any other electronic communication which allows for video communication, each Tuesday and Thursday between 6:00pm and 6:15pm, with the applicant mother to initiate the communication and the respondent mother to facilitate such time by ensuring that the children are available, that her phone or electronic device is fully charged and available at the above specified days and times. The children shall be given privacy during such communications.
That for the purposes of facilitating these Orders, school holiday periods shall be deemed to:
(a)Commence at the conclusion of the last day of school attendance;
(b)Conclude the day prior to the commencement of school attendance (or pupil free day);
(c)The middle of school holidays shall be the Saturday closest to the midpoint of the holidays at 12:00pm;
Changeover arrangements
That for the purposes of changeover:
(a)That for the purposes of Order 5a and Order 6a the applicant mother shall collect the children from school [in which case the respondent mother shall not be present at the school]. The respondent mother shall collect the children from the residence of the applicant mother at the conclusion of the children’s time with the applicant mother, unless otherwise agreed;
(b)in Order 5b and Order 6b, that does not occur at the children’s school, the applicant mother shall collect the children from the residence of the respondent mother at the commencement of her time with the children, with the respondent mother to collect the children from the residence of the applicant mother at the conclusion of the children’s time with the applicant mother, unless otherwise agreed.
(c)That in the event that the applicant mother is unable to drive to collect or deliver the children, the applicant mother shall be able to use the services of an agent to drive such as a friend or relative, provided the applicant mother accompanies the agent.
Medical, schooling and information sharing
The parties shall keep each other informed of:
i.Any serious medical problems, emergencies or illnesses suffered by the children or either of them whilst in their care by telephone and text message as soon as practicable; and
ii.Any medication that has been prescribed for the children;
That the respondent mother shall, within 14 days of these Orders, do all acts and things to provide to the applicant mother:
(a)the children’s NDIS Reference Number; and
(b)a copy of the children’s respective current NDIS Plan; and
(c)access to the children’s online NDIS Portal including the current password and log-in details; and
(d)the name and contact details of the NDIS Agency Representative who oversees or reviews the children’s NDIS Plan’s.
Each parent shall keep the other parent advised of their contact telephone numbers, email address (including both landline and mobile phone number, if applicable) and advise the other parent of any changes to these details within seven days of such change occurring.
That the parents shall communicate in a polite and timely manner regarding any parenting matters that may arise in relation to the children.
Each parent is hereby authorised to obtain from the children’s school all letters, notices, school reports and invitations ordinarily provided to parents including access to any online information, with each parent being permitted to provide to the children’s school a copy of these Orders, should that be necessary.
The parties are both at liberty to attend all school functions and events to which parents are invited including but not limited to parent teacher nights, school carnivals, excursions, graduations, extra-curricular activities, school assemblies and awards events.
Each parent shall ensure that the other parent’s name, mobile telephone number and email address is provided to any school or extra-curricular activity at which children are enrolled and that both parents are listed as emergency contacts for the children.
Each parent shall ensure that:
(a)That the other parent’s name, mobile telephone number and email address is provided to any medical professional and allied health care provider associated with the children’s care at the time that such professional/provider is consulted in relation to the children;
(b)That any medical professional and allied health care provider associated with the children’s care has authority to confer with the other parent in relation to the children and to provide the other parent with all information in relation to the children.
Noted: That these Orders constitute and authority for the parties to each liaise with the children’s medical practitioners and allied health care providers and obtain information about any treatment and any other medical issues.
Restraints
That each parent be and is hereby restrained from:
(a)discussing these proceedings or any allegation made in the proceedings with the children;
(b)showing the children any document pertaining to these proceedings;
(c)denigrating the other parent or any member of their family to or within the presence or hearing of the children and they shall each use their best endeavours to ensure that no person does so;
(d)subjecting either of the children to any form of physical chastisement;
(e)relocating the residence of the children without provide 14 days’ advance notice to the other parent.
Name of the children
That within 90 days of the date of these Orders, both parties shall do all things and sign all documents necessary to have the children’s surname changed to Redgate with all medical providers, allied health providers, including NDIS and school/s, and thereafter, the parents shall ensure that the children’s surname on any official document shall be Redgate.
NOTATIONS
(a)The applicant mother has consented to the respondent mother managing the practical matters involving the NDIS plans’ for the children.
(b)That the applicant mother has agreed to meet one half of all out of pocket medical and allied health related expenses in relation to the children, irrespective of any Child Support assessment, within 28 days of receiving from the respondent mother invoices evidencing that such out of pocket expenses have been incurred. Out of pocket expenses means those medical and allied health related expenses that are not covered by NDIS, Medicare or any other benefits that the children are entitled to receive.
IT IS NOTED that publication of this judgment under the pseudonym Simmell & Redgate is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 6215 of 2017
| MS SIMMELL |
Applicant
And
| MS REDGATE |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter involves parenting proceedings commenced by Ms Simmell (“the applicant mother”), against Ms Redgate (“the respondent mother”) (“the parties”), concerning their two twin children, X (“X”), and Y Redgate (“Y”), currently aged approximately five years 9 months (“the children”). Both children have been diagnosed with Autism Spectrum Disorder.
Additionally, the Court was asked to make property Orders between the parties and the respondent’s brother Mr C (“the second respondent”).
The matter was heard at the Federal Circuit Court in Parramatta over five days, commencing on 23 November 2020. The hearing was conducted via Microsoft Teams due to COVID-19 health restrictions.
At the commencement of the hearing, the Court was advised that the property aspect of the matter had been settled between the parties. The Court made consent Orders which disposed of this aspect of the proceedings.
Background
The following are the undisputed facts in the matter;
·The applicant mother was born in 1967 and is currently 53 years of age. The applicant mother is the birth mother of the children, having received fertilised eggs via IVF from the respondent mother and an anonymous sperm donor from the United States. The applicant mother is employed as a health care worker with Employer D. The applicant mother has a sight disability that restricts her driving of motor vehicles to daylight hours.
·The applicant mother has 2 adult children from a previous relationship, Mr E (“Mr E”) born in 1990 and Ms F (“Ms F”), born in 1993. Mr E has two children, G aged 4 and H aged 2. Ms F has 3 children, J aged 6, K aged 2 and L aged 9 months.
·The applicant mother resides in Suburb M in her own home. Ms F and her husband, along with their children, normally reside with the applicant mother at her home. Ms F, her husband and their children were overseas, unable to return due to COVID-19 issues. However, Ms F, her husband and their children were able to return just prior to the hearing commencing.
·The respondent mother was born in 1981. The respondent mother has a hearing disability. The respondent mother is the biological mother of the children. The respondent mother has a daughter from a previous relationship, N, aged approximately 15 years. N has been diagnosed with an Autism Spectrum Disorder.
·Following separation, the respondent mother moved to Town O, a small town approximately 44 km north of Town B NSW. The respondent mother resided in rented premises along with N, the children and her brother Mr C. The respondent mother has now moved to Town B, living in a house that is owned by her parents.
·The parties met in 2002 and commenced an initial relationship in 2006. The parties commenced co-habitation in 2007 but separated in December 2008.
·In about late 2011, the parties reconciled and recommenced living together at the applicant mother’s premises in Suburb N. The parties later bought a house in Town P along with the respondent’s brother as tenants-in-common.
·In 2013, the parties had a ceremony confirming their commitment.
·The children were born by caesarean section in 2015.
·The second respondent moved into the applicant mother’s premises in early 2015.
·The parties separated in October 2016.
·On 24 October 2016, an altercation occurred in which the respondent mother alleges that the applicant mother assaulted her by pushing her into a pond. An interim Apprehended Domestic Violence Order (“ADVO”) was issued against the applicant mother. A Final ADVO, naming the respondent mother as a person in need of protection, was made in March 2017, and remained in force until 5 August 2018. That Order has now expired.
·The respondent mother advised the applicant mother that she was relocating with the children to the Town B area in November 2017.
·An Initiating Application was filed by the applicant mother with this Court on 12 December 2017. Interim Orders were made on 11 April 2018 that the children live with the respondent mother and spend time with the applicant mother from Thursday through to Sunday.
·In September 2018, X suffered burns while in the applicant mother’s care following an incident where she removed hot food from a microwave oven. Following this incident, time with the applicant mother was unilaterally ceased.
·Following a Contravention Application, time with the applicant mother recommenced. The respondent mother was found guilty of six counts of breaching the Orders of 11 April 2018. The Court placed the respondent mother on a bond. The children recommenced spending time with the applicant mother.
The Applicant Mother’s Application
The applicant mother, in an Amended Application filed 6 November 2020, seeks Orders, inter-alia, that the parties have equal shared parental responsibility for the children and that the children live with her, and that, in the event that the respondent mother relocates to the Region D area, the children spend time on an alternate week basis with the applicant mother and the respondent mother.
If the children remain in the Town B area, the children spend each alternative Friday from the conclusion of school or day care until
5.00 pm on Sunday, with the respondent mother to collect the children at the commencement of her time from school or day care and the respondent mother is to return the children to the applicant mother at her home at the conclusion of her time. There are various ancillary Orders proposed in relation to holiday periods and special occasions, contact regarding medical issues and facilitating all treatment and therapies required now and in the future for the children.
The applicant mother proposes that the children be enrolled in Suburb N Public School (presumably on the basis that the respondent mother and children relocate to the Region D area).
The Respondent Mother’s Application
The respondent mother proposes, inter-alia, the following Final Orders. First, that the parties have equal shared parental responsibility for the children. The respondent mother seeks Orders that the children live with her, and spend each alternate weekend from 3.00pm Friday to 9.00am Monday with the applicant mother.
The respondent mother proposes that the applicant mother collect the children from School on Fridays and return them to school at 9.00 am on Monday. On non-school days, changeover to be at Town Q railway station. Various ancillary Orders are sought as to school holidays and special occasions. An additional Order is sought by way of injunction that the Applicant mother not convey the children in a motor vehicle driven by herself at any time between dusk and dawn.
Parenting Matters - The Law
The relevant statutory provisions applicable to proceedings, in relation to children, are set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Section 60B of the Act sets out the objects and principles of Part VII of the Act as follows:
(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.
Section 60B(2) of the Act, relevantly provides as follows:
(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 both 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).
Section 61DA of the Act, relevantly provides:
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Section 60CA of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
This is also confirmed by s 65DAA(2)(d) of the Act:
Consider whether the child spending substantial and significant time with each of the parents is reasonably practicable.
Section 60CC of the Act sets out a list of matters that the Court must consider in determining what is in the child’s best interests. Whilst the Act requires the Court to consider all the matters in s 60CC, the central issue in those proceedings is balancing the primary considerations set out in s 60CC(2) of the Act, against one another. Those considerations are as follows:
(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.
In balancing these considerations, s 60CC(2)(a) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence (s 60CC(2)(b) of the Act).
Section 60CC(3) of the Act, sets out additional considerations in determining what is in the child’s best interest. Broadly, these considerations deal with the following matters:
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;
The task of applying the additional considerations of s 60CC(3) of the Act, is an evaluative exercise that necessarily involves the trial Judge determining what weight should be given to each relevant consideration. Each of the considerations found in s 60CC of the Act, must be taken into account and needs to be considered, as regards to each of the two children, who are the subject of these proceedings.
Relevant Case Law
The relevant principles in relation to parenting proceedings are well settled (see Goode & Goode (2006) FLC 93-286). In Mazorski v Albright (2007) 37 Fam LR 518, Brown J considered the ordinary definitions of the term “meaningful” and observed at [26]:
… A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.
The High Court in the matter of M v M (1988) 166 CLR 69 set out the relevant test, in relation to unacceptable risk. The assessment of unacceptable risk is to be derived from the accumulation of factors proven at a civil standard. In the matter of Blinko v Blinko [2015] FamCAFC 146, the Full Court provides that an unacceptable risk of harm, that is said to be present, needs to be evaluated against the prospect of it actually occurring, as against the protective measures that might be put in place to ameliorate or minimise that risk, to an acceptable level.
A consideration of the relevant case law and the statute law, makes it clear that the paramount consideration when making parenting orders is the best interests of the children (see s 60CA of the Act). There is a presumption that it is in the best interests of the children, for the children’s parents to have equal shared parental responsibility (see
s 61DA of the Act). However, that presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (see s 61DA(2) of the Act).
Counsel for the Independent Children’s Lawyer submitted that two further cases were of relevance to this matter, the first being MRR & GR [2010] HCA 4, that requires a Court to consider whether it is reasonably practicable and feasible in all the circumstances, including the circumstances of the parents to make particular parenting orders. The second, U & U [2002] HCA 36 requires the Court, in relocation cases, to have regard to all options, considered separately, in determination of the best interests of the children.
Evidence of the Applicant Mother
The applicant mother’s evidence is set out in an Affidavit sworn 1 October 2020, together with a Notice of Risk filed 12 December 2017.
The applicant mother states that after the birth of the children she took 12 months maternity leave. In 2015, it was agreed that the applicant mother would return to work early and that the respondent mother would take 3 months long service leave.
After both the parties returned to work, the children were looked after during the day by the respondent mother’s mother. This continued after the parties separated.
The applicant mother denies assaulting the respondent mother and pushing her into a pond in October of 2016. The applicant mother alleges that the respondent mother was intoxicated and lost her balance, falling into a pond. Following this incident, the applicant mother saw the children sporadically.
The applicant mother asserts that she did not consent to her children moving to Town O and that it was not discussed prior to the move taking place. The applicant mother states that the scalding incident with X was an accident and not as a result of negligence or a lack of supervision on her part. Following this incident, the respondent mother withheld the children from time with the applicant mother. A Contravention Application was filed with this Court. Following a hearing, the respondent mother was found to have breached Orders of the Court and was placed on a bond by the Court. Orders were also made that time with the applicant mother recommence.
The applicant mother alleges that she has difficulty with communicating and making joint decisions with the respondent mother in relation to the children. This included an incident involving a “Spiderman” haircut which he asked for at the barbers.
The applicant mother alleges that X has repeated derogatory comments that have been made in respect of her by the respondent mother and members of her family. The applicant mother alleges that the respondent mother is a binge drinker.
The applicant mother states that she has strong ties to the Region D area, including her son Mr E, his partner and children living in the area. The applicant mother’s daughter Ms F, her husband and 2 children now reside with the applicant mother at her home. The applicant mother believes that the respondent mother does not work full time but may work part time as a labourer.
If the children were to move back to the Region D area, they would attend Suburb N Public School. The applicant mother states that there are quality disability services within the Region D area.
In cross examination on behalf the respondent mother, the applicant mother confirmed that she sought equal shared time with the children if they were living somewhere within the Region D area. The applicant mother felt that she could be a better co-parent if this were to occur. The applicant mother felt that the children being two hours away from her was not good for them. The applicant mother stated that it would be best, if the she were to pick up the children and the respondent mother were to drop them off, with the changeover to occur somewhere near Town Q.
The applicant mother confirmed that, while she had made enquiries about enrolling the children at Suburb N Public School, she had no documentation to support her in relation to that. The applicant mother had not made any application for the children to go to any other school. The applicant mother was unable to articulate what specific health providers and therapies were available to the children if they were to reside in the Region D area. The applicant mother simply assumed there would be a changeover with National Disability Insurance Scheme (“NDIS”) providers, notwithstanding the fact that she was not involved in the provision of the NDIS plan.
The applicant mother confirmed that she had been in arrears in respect of child support, although she had paid off some monies, and the balance of $3516 was paid on 11 November 2020 shortly prior to the hearing commencing. The applicant mother also confirmed that she had received other requests for payment for out-of-pocket expenses relating to the children which she had not responded to.
The applicant mother agreed that the respondent mother had travelled from Town B to Suburb N in order to facilitate the applicant mother spending time with the children, and had continued to do so following the Contravention Application being heard in 2018.
The applicant mother agreed that she had not taken adequate precautions in relation to the children being bitten by mosquitoes and that this had resulted in the bites becoming infected. The applicant mother agreed that the respondent mother was solely responsible for organising speech therapy for the children, and their NDIS plans. The applicant mother also agreed that she had not completed a course with “Parent Works” in relation to children who have an Autism Spectrum Disorder. The applicant mother agreed that she had no objection to the respondent mother managing the children’s NDIS plans.
During cross examination by Counsel for the Independent Children’s Lawyer, the applicant mother was asked if she was prepared to move to Town B. The applicant mother replied that she did not consider that viable, due to the fact that she owned her home in Suburb N and was still working with Employer D. The applicant mother’s preferred option, was that the respondent mother should move back from Town B to the Region D area to enable the children to spend alternative weeks with each of the parents.
Although a Notice of Risk had been filed, the applicant mother conceded that she had been happy for the respondent mother to spend overnight time and unsupervised time with the children, including them living with the respondent mother’s elder daughter N.
The applicant mother confirmed that, because she worked Monday to Thursday, she would be reliant upon her daughter Ms F to drop the children off at school and pick them up on days other than on a Friday. The applicant mother was asked if she had a detailed plan to meet the challenges of the children having an Autism Spectrum Disorder. On this point, the applicant mother conceded that there wasn’t one. The applicant mother had not made enquiries as to medical providers in the area and that the proposed psychologist had closed her books for the time being.
The applicant mother conceded that the requisite trust needed for equal shared parental responsibility in relation to medical matters was simply not present. Neither party trusted the other. This is not beneficial to the children. The applicant mother agreed that in this regard, parallel parenting was in fact happening.
Evidence of the Respondent mother
The respondent mother’s evidence is set out in Affidavits dated 9 October 2020 together with a Notice of Risk filed 6 February 2018. The respondent mother alleges that the applicant mother took little interest in the care of the children following their birth. It was necessary for members of the respondent mother’s family to assist with the care of the children, including the respondent’s mother, who looked after the children during the day. The respondent mother alleges that the applicant mother stated that she wanted “a childless couple” life.
It is alleged that the respondent mother and the applicant mother clashed in relation to the parenting of the respondent mother’s daughter, N. It is alleged that the applicant mother never assisted with the care of N and took no responsibility for her. The respondent mother denies that N is a safety risk to the children in that she has not displayed the same challenging behaviour since the parties separated. Following the parties’ separating, the respondent mother agrees that she lived with family friends, Ms R and Mr S. The respondent mother denies she has been, or ever was, in a relationship with either of those two people.
In June 2017, the respondent mother states that she obtained a rental property in the Suburb T area and, at that time, she had full-time care of the children and her daughter, N. The respondent mother states that she relocated initially to Town O in January 2018 after she was advised that her rental property in Suburb T had been approved to be demolished. The respondent mother states that she made the decision to move in with her brother at Town O, as the rent was substantially cheaper than the Region D area.
The respondent mother states that she continues to follow the agreed parenting arrangement and has travelled to and from Suburb N to facilitate the applicant mother’s time with the children, being six nights each fortnight.
The respondent mother alleges that she has ongoing concerns for the safety of the children while in the care of the applicant mother. The respondent mother alleges that there has been repeated disregard for the children’s well-being and denial regarding the children’s disability and mental health. It is alleged that the applicant mother refuses to implement supports relating to the children’s disabilities’. The respondent mother alleges that the applicant mother has not attempted to do anything to reduce the risk to the children to continue to present with injuries, such as sunburn, and skin infections due to untreated mosquito bites to which Y is especially allergic.
The respondent mother agrees that she withheld the children from the applicant mother following X receiving first and second degree burns to her face and shoulder following her removing hot water from a microwave. The respondent mother admits contravening Court Orders imposed, but denies that she ever stopped the applicant mother from seeing the children.
The respondent mother alleges that the applicant mother has failed to engage with her in relation to the medical treatment and interventions required by both children. The respondent mother alleges that Y displays behaviours at home prior to leaving for the applicant mother’s home including a refusal to get ready, a refusal to get into the car, throwing items at her and telling her he wants to stay at home. The respondent mother alleges that the applicant mother has failed to provide any financial help in respect of the children and their need for medical and other interventions.
The respondent mother asserts that Y is seeing a psychologist, a speech therapist and occupational therapist in Town B. Y attends private swimming lessons in Town B every week and also attends sports in Town B. Y will be attending U School in 2021, should he remain living with the respondent mother.
In relation to X, the respondent mother asserts that she struggles with change and sleeping. X needs to have a routine in her daily life. X struggles with crowded places and her anxiety requires support, including noise cancelling headphones, a weighted blanket, the family dog and her feeling like she is in a safe place. X also suffers from asthma. The respondent mother raised concerns that the applicant mother will not adequately provide X with preventative medication to ensure she does not suffer severe asthma attacks. The respondent mother denies that she has failed to provide information to the applicant mother regarding the health issues of the children and various appointments they have attended and the outcomes.
The respondent mother alleges that X really struggles with attending the applicant mother’s house each weekend.
The respondent mother denies that she binge drinks to the point where she is not capable of caring for the children. The respondent mother asserts that the children are now well settled in Town B with her family close by, including her brother and her sister and her three children, together with the children’s grandparents now living in Town B. The respondent mother states that she is now living at a house that was purchased by her parents in Town B. The respondent mother pays rent in respect of the home and it is a five minute walk from both the local high school and the primary school. Each of the children have their own bedrooms and the home has sufficient room for the children to have play areas that they can use by themselves.
The respondent mother alleges that the applicant mother has refused to assist in regards to medical issues and facilitating treatment by refusing to granting permission in relation to having Y’s tonsils removed.
The respondent mother alleges that the applicant mother has refused request for help in transporting the children to and from Town B.
It is alleged that the applicant mother has failed to pay regular child support and at the date of the Affidavit, was $4000 in arrears. The respondent mother asserts that she receives little financial support from the applicant mother, aside from the child support which is continually in arrears.
During cross examination by Counsel for the applicant, the respondent mother reiterated that the parties did not appear to be able to co-operate in relation to the children. The respondent mother stated that the applicant mother was invited to, but did not attend, a number of appointments that were arranged with various medical providers even when appointments were made on a day that she could attend.
The respondent mother confirmed that she had undertaken four courses with regard to Autism Spectrum Disorder in order to understand the impact of the disorder on the children. The respondent mother denied that she had told the children not to refer to the Applicant mother as “Mum” but rather as “Ms Simmell”. The respondent mother denied that she had a hostile attitude to the applicant mother. The respondent mother agreed that she had asked for an inspection report to be prepared in relation to the applicant mother’s home at Suburb N, notwithstanding the fact that she had lived there previously. The respondent mother stated that she was unaware of the asbestos risk at that time. The respondent mother also stated that she no longer has any safety concerns in relation to the pool at the applicant mother’s home.
The respondent mother confirmed that she was always comfortable with the applicant mother’s daughter Ms F and did not have a problem with Ms F’s children.
The respondent mother agreed that she had been critical of the children’s care when they were with the applicant mother. The respondent mother conceded that the applicant mother had taken the children to the doctors on occasions and she had given X an oat bath to relieve the effects of mosquito bites. The respondent mother agreed that she had threatened the applicant mother with reporting her for fraud.
In relation to Y’s tonsillitis, the respondent mother agreed that she had not seen a specialist since receiving an initial referral and that the infections appear to have subsided in Y.
The respondent mother agreed that the Family Expert Report indicated that she, the respondent mother, had a high level of anxiety but she did not accept that assessment.
The respondent mother agreed that she had made a decision to relocate with the children to Town O and this had impacted upon them. The respondent mother agreed that she had taken them away from their community and friends. The respondent mother denied that the relocation was designed to remove the children from Ms F and her daughter J. The respondent mother agreed that, at the time of her relocation, her parents did not reside in Town B. The respondent mother agreed that the relocation of the children had made it difficult to co-parent them with the applicant mother.
At the time of relocation to Town O, the respondent mother agreed that she had not been given a termination notice in respect of the home that she was occupying and that, contrary to what she had claimed, the house has not been the demolished. The respondent mother stated that she genuinely believed it was to be demolished at the time.
The respondent mother agreed that a letter that had been sent on her behalf by her solicitors represented that the relocation to Town O was temporary and that this representation was only somewhat true. The respondent mother agreed that she had reported the applicant mother to what was then known as Family and Community Services (“FACS”) in relation to ill-fitting clothing that the children had been wearing when they were returned to her.
The respondent mother stated that she agreed now that the scalding incident in relation to X was an accident. The respondent mother denied making a further report to FACS in April 2019 regarding skin lesions on X.
In cross examination by Counsel for the Independent Children’s Lawyer, the respondent mother agreed that if she were to remain in Town B, it was not practicable for the children to remain with the applicant mother until 9 am on Monday in a school week. This would need to be altered to until 5 pm Sunday to allow the children to be returned to her and be ready for school without difficulties the following morning.
The respondent mother confirmed that if the Court were to make an Order that the children relocate and reside with the applicant mother, she would not relocate to the Region D area. By the same token, if the applicant mother were to relocate to Town B, the respondent mother would still like the children to reside with her and spend time with the applicant mother. The respondent mother confirmed that she would have no difficulty in ensuring that the children’s surname in all documentation in the future would be ‘Redgate’.
The respondent mother confirmed that, in her view, the applicant mother lacks the capacity to source appropriate medical providers for the children.
In relation to her relationship with the applicant mother, the respondent mother confirmed that she had always been of the view that she would be the person undertaking parental responsibility in relation to the children. The respondent mother stated that she took the children with her when she relocated because the applicant mother would not have been able to look after them as she was working.
The respondent mother denied that she had placed obstacles in the way of the children resuming their relationship with the applicant mother following the respondent mother’s withholding of them following the scalding incident with X. The respondent mother agreed that she had not apologised for withholding the children. The respondent mother could not provide an answer when asked whether she agreed that her criticism, at paragraph 67 of her Affidavit of 9 October 2020, regarding her concerns as to the safety of the children whilst in the care of the applicant mother, was savage. The respondent mother confirmed that she still held views as set out in that paragraph.
Evidence of the Family Consultant
The Expert Family Report was completed on 15 December 2018 and is thus 2 years out of date. This is regrettable and required the Consultant to provide considerable additional material orally rather than in her written report.
It is noted at paragraph 7 of the Report that the respondent mother decided to relocate to Town O without informing the applicant mother on the basis that she was homeless and needed security for herself and the children. The applicant mother views the decision to relocate, in part, to put distance between herself and the children and reduce her capacity to take an active part in their lives.
Both parties have made allegations of family violence. The applicant mother alleges that the respondent mother lashes out and is emotionally dysregulated. The applicant mother alleges that the respondent mother would suffer meltdowns and withdraw. The respondent mother alleges that the applicant mother was physically aggressive which included an assault in 2016 that resulted in an ADVO being put in place. The respondent mother admits, however, to retaliating physically on occasions.
Both parties have filed a Notice of Risk. The respondent mother alleges that the applicant mother uses physical discipline on the children and they have returned from her care with unexplained bruises. Further, the respondent mother alleges that they are neglected in the applicant mother’s care, especially in relation to mosquito bites and sunburns. The respondent mother has issues with the applicant mother driving with the children due to vision issues on her part.
The applicant mother has concerns as to the respondent mother’s need for control and willingness to facilitate a relationship with her. The applicant mother also has fears that the respondent mother will not take care of the children, especially if she is drinking alcohol. It is alleged that the respondent mother binge drinks when under stress. The applicant mother stated that she does not use alcohol.
The respondent mother admits having been diagnosed with depression in 2006 but denies further episodes. In turn, the respondent mother alleges that the applicant mother has issues with hoarding.
Each party seeks an Order for joint parental responsibility. The issue remains as to where and with whom the children should reside.
The applicant mother seeks Orders that the children reside, on an alternate week basis, with her and the respondent mother. This would entail the respondent mother and the children relocating to the Region D area given the children are commencing school in 2021.
The respondent mother believes that the children should reside primarily with her and spend time with the applicant mother.
The Family Consultant interviewed Ms F, the applicant mother’s daughter by telephone. Ms F claimed that the respondent mother had undermined Ms F’s relationship with her partner and exercised inappropriate control over her. That control is now being used to keep the children away from her and her own three young children.
In her evaluation, the Family Consultant noted that in relation to children with special needs, there needed to be an assurance that there is as much consistency as possible in the way their needs are met. The Court places significant weight on this comment.
The Family Consultant identified a number of grave concerns. The first is the allegations as to the extent of risk to the children at both households. There are allegations on both sides which is distracting them from being able to focus on the children’s needs of having a reliable and consistent presence of both parents in their lives. Whilst friends, extended family members or new partners are important, they are not a substitute for parents.
The Family Consultant notes the disparate proposals for the living arrangements for the children. Most importantly is the geographical distance between the parties. The applicant mother stated that it was untenable for her to move from the Region D area where she owns her own home and is in stable employment. The distance would make it impossible for her to attend the children’s special events and school activities. The same applies from the view of the respondent mother if the children were to live with the applicant mother. If the parties were closer together, the children could spend substantial and meaningful time with each parent. The current lack of co-operation between both parties is described by the Family Consultant as ‘appalling’.
Further, the issues of parenting special needs children are considerable. In the Family Consultants view, it is difficult to see how optimal care for the children can occur if the parties are effectively separated by considerable distance.
The Family Consultant emphasised the need for the parties not to undermine the other parent’s capacity. They were, at the time of the Report, only communicating through their respective legal representatives, which is unsustainable in the long term. This results in the children’s needs being unmet.
The Family Consultant noted that while Notices of Risk were filed, at the time of writing the Report, there had been no reports to NSW FACS or Police, notwithstanding the scalding incident with X. The Family Consultant finds the attitude of the parents towards the children and their responsibilities of parenthood perplexing, given their backgrounds. Each appears to be in an entrenched power struggle, seeking to gain control of the children from the other, rather than working co-operatively.
There appears to be a palpable degree of animosity by both parents towards the other. This behaviour provides a poor role model for the children on how to manage conflict and difference.
A most important consideration is the special needs of both children. They will require intensive interventions, ongoing support and therapy from different speciality providers. This, in the Court’s view, is a matter that significant weight must be attached to.
The Family Consultant concludes in her Report that the determinative factor is the level of risk associated with living with each of the parents, as well as geographic location which will determine available options once the children start school.
In providing an updated opinion, the Family Consultant told the Court that a particular requirement for these children was that they have security, stability and predictability in their lives. Having read the parties’ most recent Affidavits, there was nothing to indicate that the parties were communicating in a better fashion since their initial interviews or were adopting a more child-focussed approach. Notwithstanding this, it remained important that the children spend time with each of their parents as they were still young. As the children grow older, they would be able to tolerate greater separation times than at present and be able to maintain a meaningful relationship with the parent they were not living with.
A particular concern was that the respondent mother appeared to have unilaterally changed the children’s names in records held by various medical providers from ‘Redgate’ to just ‘Redgate’. The Family Consultant was of the view that the respondent mother had undertaken significant planning and actions to link the children into various medical and allied health providers in Town B. This would assist them in the transition to school in 2021. The Family Consultant agreed a move that resulted in a change of providers would be very disruptive to the children at this critical stage of commencing school.
If the parties remained separated by geography, the Family Consultant was of the view that regardless of who the children lived with, they should have significant time with the other parent. This, however, was made hard by the distance between the parties.
In cross examination by Counsel for the applicant mother, the Family Consultant was taken to the reports that have been made to the Department then known as FACS. The Family Consultant was of the view that the reports were not a good use of Departmental resources and were perhaps indicative of the high level of anxiety on the part of the reporting party. This heightened anxiety was also evidenced by the repeated photographing of the children’s mosquito bites by the respondent mother. The Family Consultant felt concerns that this anxiety could be transferred to the children.
It was noted that the Family Consultant had interviewed Ms F but not N. The Family Consultant agreed that if N was exhibiting extreme behaviour, then this would impact upon the children the subject of this litigation.
In cross examination by Counsel for the respondent mother, the Family Consultant agreed that in many respects, her Report was now ancient history. The Family Consultant agreed that all the interventions by way of allied health providers currently took place in Town B and that it was preferable that these should continue with the same providers.
The Family Consultant agreed that in relation to medical decisions, ideally in the current circumstances of the children, decisions in relation to medical matters should default to the parent who the children were currently living with. Given that the respondent mother had undertaken the lion’s share, it was suggested to the Family Consultant that this might mean that the respondent mother should continue making medical decisions, consulting with the applicant mother, but failing agreement the respondent mother should make the decision. The Family Consultant agreed that this might be a preferable alternative.
The Applicant Mother’s Submissions
On behalf of the applicant mother, it was submitted that she was a cooperative witness, made appropriate concessions and would be accepted as a witness of credit. This, Counsel for the applicant mother, compared to the respondent mother who was reluctant to make any concessions against her own interest, gave her evidence with rigidity and refused to accept alternative hypotheses.
It was submitted, by Counsel for the applicant mother, that the Court would have considerable concerns as to the respondent mother’s parenting capacity, given that the respondent mother’s older daughter, N had a school attendance of only 19% as at April 2019 and had been suspended from school twice. It was submitted by Counsel for the applicant mother that the respondent mother had sought to alienate the children from the applicant mother by not allowing her to have any input into various reports and medical interventions. There was concern that the respondent mother evidenced hypervigilance in respect of the children and this impacted negatively upon their capacity to maintain a meaningful relationship with the applicant mother.
It was acknowledged by Counsel for the applicant mother, that there would be difficulties in the short term with relocating the children to the Region D area to with the applicant mother, but if these difficulties could be overcome in the medium to long-term than this would ensure that the children are able to maintain a relationship with the applicant mother, which they may not be able to do otherwise.
The Respondent Mother’s Submissions
On behalf the respondent mother, it was submitted that she has been the primary facilitator of the children’s health, schooling and formal supports in relation to their disabilities. Notwithstanding the withholding of the children from the applicant mother, the respondent mother has been committed to facilitating the children spending time with the applicant mother following the adverse Contravention findings against her.
It was submitted by Counsel for the respondent mother that the applicant mother’s financial commitment to the children has been minimal, requiring the child support agency to garnishee her wages as she fell into significant arrears. It was also submitted by Counsel for the respondent mother that the applicant mother has also, to date, declined to assist in additional expenses associated with children’s healthcare.
As noted, the applicant mother works Monday through to Thursday and this, Counsel for the respondent mother submits, will necessitate the children being cared for extensively by the applicant mother’s daughter, Ms F. No evidence has been called from Ms F as to her willingness to undertake this task. It was submitted on behalf of the respondent mother that the children’s living arrangements are settled and they have established access to medical practitioners and allied health professionals to support their special needs. It was further submitted on behalf of the respondent mother that they also have a settled living arrangement in a house provided by the respondent mother’s parents who are making a significant contribution financially and otherwise to the children. The respondent mother does not have the capacity to relocate to the Region D area. Counsel for the respondent mother submit that the current arrangements that are in place are comprehensive, as compared to the applicant mother’s proposed arrangements, which are not practicable, lacking in detail and appear to be only thought of at the last minute.
The Independent Children’s Lawyer’s Submissions
The Independent Children’s Lawyer provided comprehensive submissions to the Court and circulated proposed Orders at the conclusion of the proceedings and prior to submissions being made. It was submitted that the children are not at risk with either of the parents, but there are practical difficulties caused by the geographic separation of the parties which involved a 90 minute drive door-to-door.
Given that the children start school next year, any proposal for week about living arrangements is simply impracticable. Further, any arrangement which might involve the children living with one parent but spending time from Friday after school to Monday before school and possibly an additional weeknight in between are, again, not practicable.
Submissions were made that the Court should be rightly critical of the respondent mother for unilaterally relocating the children away from the applicant mother. The Court should also be critical of the respondent mother for her withholding of the children following the scalding incident with X, together with the unilateral changing of the surnames of the children by the respondent mother after the move to Town B.
Notwithstanding this, the children are settled in Town B and there are comprehensive arrangements in place for their schooling, medical and other therapeutic needs given their Autism Spectrum Disorder diagnosis. This is compared to the applicant’s proposals which are, at best, vague.
Accordingly, the Independent Children’s Lawyer recommended that the Court make Orders that there be joint parental responsibility with the exception of medical matters which should be vested solely in the respondent mother. The children should live with the respondent mother but spend two weekends out of three from the end of school Friday until 5 pm Sunday with the applicant mother. Various other ancillary Orders were recommended to facilitate an ongoing relationship between the applicant mother and the children, including block time during school holidays and other Orders.
Consideration
Firstly, it is important to note that the paramount consideration is the best interests of the children (see s 60CA of the Act). In so doing, the Court must primarily consider the best interests of the children of having a meaningful relationship with both of the children’s parents and, at the same time, protecting them from physical or psychological harm or from being subjected to, or exposed to, abuse, neglect or family violence (see s 60CC(2) of the Act).
It is not about rewarding one parent or the other. It is about coming up with a practical and workable plan as to how the children the subject of this litigation, who have special and particular needs, can be allowed to develop and flourish to their full potential.
This requires the Court to evaluate and consider the proposed alternatives put forward by the applicant mother and the respondent mother as against the paramount and primary considerations set out above, along with the additional considerations set out below (see
s 60CC(3) of the Act). The situation is made even more complex due to the geographical separation of the parents which requires the Court to consider the practicality of each of the proposals put forward by the parties.
Are the Children at Risk from either of the Parents?
Notwithstanding that Notices of Risk were filed by each of the parties, the Court is not satisfied, based on the totality of the evidence that the children are at serious risk from either of the parents.
Whilst the applicant mother came across as being disorganised, the Court is satisfied that she is not neglectful such as to pose a risk to the children being with her. The Court is satisfied that the scalding incident involving X was an accident. There is no evidence before the Court that the applicant mother poses a risk to the children in driving them in a motor vehicle. The Court notes that the applicant mother has been complying with the restrictions that are placed upon her licence. There is thus no need for an injunction as proposed by the respondent mother.
In relation to the respondent mother, there was no evidence before the Court to indicate that any of the allegations in relation to either binge drinking or that she had mental health problems were made out.
Assessment of the Parents and Matters of Credibility
The Court was satisfied that the applicant mother was, at all times, truthful in her evidence and made admissions where necessary against her case. The Court was satisfied that the applicant mother has a genuine love for the children and wishes to be involved in their lives in as many aspects as possible. The applicant mother felt aggrieved that the respondent mother had unilaterally move the children to first Town O and then Town B and so had created a substantial physical distance between her and the children.
It was readily apparent, however, that the applicant mother had not taken concrete and positive steps to create a plan for how to provide the necessary supports and therapies to be in place if the children were to relocate to the Region D area. The inquiries that the applicant mother had made were cursory in nature and did not demonstrate a detailed understanding of the needs of the children and an appreciation that they required far more security, stability and predictability in their lives than children who did not have their disabilities.
The applicant mother came across as being somewhat disorganised in relation to her own life in relation to filing tax returns and other matters. The Court was satisfied that this disorganisation has impacted significantly on her capacity to deal with the ongoing and complex requirements of the children in relation to their NDIS plan and the children’s needs in relation to both medical and allied health service providers such as psychologists and speech therapists.
In considering the whole of the respondent mother’s evidence, the Court was left with the impression that the respondent mother was dismissive of the involvement of the applicant mother in the lives of the children. The respondent mother was argumentative at times and appeared unwilling to concede what was clearly obvious.
The unilateral relocation of the children to initially Town O and thence Town B, is strongly indicative of a planned permanent relocation, rather than a temporary relocation in order for the respondent mother to find cheaper accommodation. The respondent mother’s evidence in many areas lacked credibility, in particular in relation to her denial to making certain reports to FACS, as well as her suggestion that the parties did not use the full surname of ‘Redgate’ as compared to ‘Redgate’. The Court is satisfied that the respondent mother has actively sought to put in place barriers to the children having a substantial and meaningful relationship with the applicant mother and that she has been indifferent to the impact that this has had upon the children.
The Primary Considerations
The Court is first required to consider the primary considerations of ensuring the children have a meaningful relationship with each parent and their protection from harm as required by s 60B, s 60CA and
s 60CC(2) of the Act. The Court is not satisfied that the children are at risk of harm from either parent. The issue in this case is how to maintain a meaningful relationship with each parent.
Equal Shared Parental Responsibility
It is not disputed by the parties that the Court should make an Order for equal shared parental responsibility, applying s 61DA(1) of the Act. The Court is not satisfied that it has material before it sufficient to rebut the presumption pursuant to s 61DA(2),(3) or (4) of the Act. The Court is satisfied that such an Order is appropriate, subject to a consideration in relation to the issue of medical decisions.
The clear evidence before the Court is that the respondent mother has made the vast majority of decisions in relation to the medical treatment of the children. This has included making an application for and receiving an NDIS plan for each of the children as well as consulting various medical practitioners and allied health providers within the Town B area. The applicant mother has conceded that she is content for the respondent mother to manage the children’s NDIS plan. The Court is satisfied that the children’s special medical and therapeutic needs are being well provided for by the respondent mother.
The Court is of the view that the Applicant mother has not sought to actively involve herself in the provision of medical treatment for the children. This is evidenced by her lack of response in relation to Y’s tonsillitis, her failure to attend appointments when they were made on days suitable to her and her unwillingness to provide half the cost of out-of-pocket expenses in relation to various treatments and therapies. Given the special needs of these children, and the antipathy that exists between the parties and their incapacity to effectively co-parent in a child-focused manner, the Court adopts the submission of the Independent Children’s Lawyer that decisions in relation to the children’s medical needs should rest solely with the respondent mother. This is, in the Court’s view, in the best interests of the children.
Section 65DAA of the Act provides that where there is an Order for equal shared responsibility, the Court must then consider if it is in the children’s best interests to spend equal time with each parent and whether equal shared time is practicable. If this is not practicable, then the Court must consider the children spending substantial and significant time with both parents. In so doing, the Court must consider the matters outlined in s 65DAA(5) of the Act as to what is reasonably practicable. This includes the distance the parties live from each other, their capacity to implement equal shared or substantial and significant time, the parent’s capacity to communicate with each other and resolve difficulties as well as the impact the arrangement would have on the children.
The Issue of Relocation
The respondent mother unilaterally relocated the children from the Region D area to initially Town O and most recently to premises in Town B. While this latter move has reduced the travel time between the parents by approximately 30 minutes, it is still a 90 minute drive from Suburb N to Town B. Each of the parties has indicated that they do not propose to relocate so as to be closer to the other in order to facilitate equal shared time with the children by each of the parents.
If the respondent mother stays in Town B, this makes equal shared time between the parents impracticable. The Court is therefore faced with the prospect of two alternate parenting plans. The first would, of necessity, limit the time of one parent to weekend time only. The other would be to Order the children to relocate back to the Region D area. This would allow the children to spend equal shared time with each parent while attending the same school.
In Oswald v Karrington (2016) FLC 93-726, the Full Court of the Family Court referring, to D and SV (2003) FLC 93-137 and Sampson and Hartnett (No 10) (2007) FLC 93-350, noted that first it is well established that the proper exercise of the power to make a coercive Order is at the extreme end of the discretionary range. Second, there needs to be rare or extreme factors to warrant the exercise of the Court’s discretion to make a coercive Order requiring a parent to relocate, so as to continue to undertake the role of primary carer. Third, the Court must explore and consider alternatives to restricting freedom of movement, particularly where the coercive Order would require a party to relocate contrary to that party’s proposal, and involve a primary carer undertaking the role of primary carer in a place which was not of the primary carer’s choice.
The Court is satisfied that the children are now well settled in Town B and that the respondent mother has a clear plan for their educational, medical and special needs should the children live with her. This compares to the almost complete lack of any real plan by the applicant mother. The Court has real concerns as to the effect any relocation of the children to live with the applicant mother would have on the current arrangements in place for the children including proposed schools.
The Court is mindful that the commencement of school is a significant milestone for children and will involve additional issues and stressors given the special needs of the children. The Court is very mindful of the need of these children to have security, stability and predictability in their lives. Weighing up all the considerations, the Court is of the view that the best interests of the children are served by them continuing to live with the respondent mother in Town B and spending time with the applicant mother.
Additional Considerations
In making the Orders that the Court has, regard has been made to the ‘Additional Considerations’ set out in s 60CC(3) of the Act, as follows:
Section 60CC(3)(a) of the Act: Any views expressed by the children.
The children are too young to express any views that the Court should take account of. The Court has concerns as to the weight placed by the respondent mother on what she says the children state that they do not wish to spend time with the applicant mother.
Section 60CC(3)(b) of the Act: The nature of the relationship of the children with each of the parents and other parents including grandparents or other relatives.
The Court is satisfied that the children have a close and bonded relationship with each parent. The Court does not accept that the children have any anxiety or fear of spending time with the applicant mother. The Court notes that each of the parties has an extended family that includes cousins, nieces and nephews of a similar age to Y and X. The Court is satisfied that the children will be able to develop a relationship with their extended families on both sides which will be positive in the long-term and contribute to their development.
Section 60CC(3)(c) of the Act: The extent to which each of the children’s parents has taken, or failed to take the opportunity to participate in making decisions about long-term issues, in relation to the children and spending time with the children and communicating with the children.
The Court has considerable concerns as to the demonstrated attitude of the respondent mother towards the applicant mother as evidenced by the children’s relocation to the Town B area and the withholding of them from the applicant mother following the scalding incident with X. The Court is of the view that the Orders that have been settled upon will, to the greatest extent possible, ensure that both parents are able to participate in decision-making in relation to the children and will enable them to spend substantial and meaningful time with the children.
The Court is satisfied that there is evidence that the respondent mother has sought to engage the applicant mother in major health issues decisions but that the applicant mother has disengaged from communicating. It is for this reason that sole parental responsibility in relation to medical issues has been vested with the respondent mother.
Section 60CC(3)(ca) of the Act : The extent to which each of the children’s parents has fulfilled, or failed to fulfil, the parents obligations to maintain the children.
The Court notes, with concern, the failure of the applicant mother to comply with child support arrangements and that arrears that were outstanding were only rectified just prior to the commencement of the hearing. The Court is also concerned at the refusal by the applicant mother to assist with out-of-pocket expenses in relation to the children’s medical needs and therapies. The Court, however, notes the agreement of the applicant mother to contribute on a half share basis in the future
Section 60CC(3)(d) of the Act: The likely effect of any changes in the child circumstances, including the likely effect on the child of any separation from either of his parents or any other child or other person, with whom they have been living.
As submitted by the Independent Children’s Lawyer, regardless of how it has come about, these children are now well settled in Town B with established relationships with medical and allied health providers and have a plan to enter school in Town B in 2021. The Court considers the need for stability and consistency in these children’s lives to be a paramount consideration. The lack of a clear plan by the applicant mother is of considerable concern and the Court is not satisfied that to grant the Orders sought by the applicant mother would be in the children’s best interests. In fact, the Court is satisfied it would be detrimental to the children both in the short and medium term.
Section 60CC(3)(e) of the Act: the practical difficulty and expense of a child spending time with, in communicating with the parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
There are practical difficulties in the living arrangements of the parties. To date, the children have been spending equal time with each of their parents. It is simply impracticable that upon commencing school, the children can spend equal time with each of their parents. Accordingly, the Court has looked to what practical arrangements can be put in place to maximise the amount of time that can be spent by the applicant mother with the children, given they will not be living with her. The Court has been mindful of the sight disability suffered by the applicant mother which restricts her capacity to drive between dusk and dawn. The Court is also mindful that the applicant mother will be heavily reliant on her daughter Ms F to assist with driving the children to and from changeovers.
Section 60CC(3)(f) of the Act: The capacity of each of the children’s parents and any other person to provide for the needs of the child including emotional and intellectual needs.
The Court has some concerns as to the capacity of the applicant mother to adequately supervise the children.
As noted by the Independent Children’s Lawyer, there are significant concerns that Ms F has not been called to give evidence. No adequate explanation has been given as to why she was not called to give evidence. Given that she is currently residing with the applicant mother, her husband and three children, it has not been possible to test the extent to which Ms F will be available to provide support to the applicant mother in regards to supervising and providing for the children.
While the Court notes the concerns raised by the respondent mother in relation to mosquito bites and rashes, as well as allegations of ill-fitting clothing provided to the children by the applicant mother, the Court is not satisfied that the applicant mother has been neglectful in the care of the children and is incapable of providing proper care to them.
Section 60CC(3)(g) of the Act: The maturity, sex, lifestyle and background of each of the children’s parents and any other characteristics of the child that the court thinks are relevant.
While noting the parents are of the same sex, this has no impact in the Courts view on their capacity as a parent or otherwise. Each parent has a disability as noted above, however, again, this does not impact on their capacity as a parent.
Section 60CC(3)(h) of the Act: Aboriginal or Torres Strait Background Considerations.
The Court notes that the children are not from an Aboriginal or Torres Strait Islander background.
Section 60CC(3)(i) of the Act: The attitude to the child and the responsibilities of parenthood, demonstrated by each of the child’s parents.
The Court has some concerns as to the attitude of the respondent mother in relation to the concept of co-parenting.
There is a reasonable inference that the move to the Town B area was planned and not simply a temporary move as was initially represented. The respondent mother’s move has then been followed by her parent’s moved to the Town B area, followed by the purchase of a house in Town B by her parents for the respondent mother and the children to live in.
The unilateral cessation of time with the applicant mother, following the scalding incident involving X was simply not reasonable. This resulted in unnecessary litigation and a Contravention Application being proven with the respondent mother being placed on bond.
The Court also has considerable concerns of the birth surname of the children of ‘Redgate’ being shortened to ‘Redgate’ by the respondent mother. The Court does not accept the explanations proffered by the respondent mother in relation to how this occurred. This action has the potential to cause confusion to the children and alienate them from the applicant mother.
The Court notes the submission of the Independent Children’s Lawyer that, had these been the only additional considerations to take account of, the Independent Children’s Lawyer would have submitted that the children should live with the applicant mother and only spend time with the respondent mother. That Order is not being sought due to the lack of an established alternative plan by the applicant mother to meet the needs of the children.
Section 60CC(3)(j) and (k) of the Act: Any family violence involving a child or members of the child’s family.
The Court notes various competing allegations of family violence between the parties and the fact that an ADVO was granted in favour of the respondent mother as a protected person as against the applicant mother. Whilst the Court has considered these matters, the Court is of the view that they do not sufficiently outweigh any of the other considerations. The Court is also conscious of the distance that now exists between the parties which reduces considerably the possibility of further family violence.
Section 60CC(3)(l) of the Act: 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 children.
The Court has carefully considered the various options open to it and the Orders proposed by both the Independent Children’s Lawyer and the parties. The Orders arrived at are, in the Court’s view, the best option of ensuring that the best interests of the children are maintained and that they are able to spend significant and meaningful time with the applicant mother. It is to be hoped that these Orders will provide a basis for going forward and reduce, to the greatest extent possible, the likelihood of further litigation.
Having considered all of the matters listed above, and in particular noting the practical difficulties imposed by the geographical distance between the parties and the impact of travel on the children, the Court has determined to adopt the submissions of the Independent Children’s Lawyer that, during the school term, the children should spend time with the applicant mother for two weekends out of three, from the conclusion of school on Friday to 5 pm on Sunday, or 5 pm Monday, if Monday is a public holiday.
In the event that the applicant mother were to relocate to Town B, alternative Orders are proposed such that the children would spend each alternate week with the applicant mother. Various ancillary Orders will be made in relation to school holidays and special occasions.
The Court is of the view that it is important and in the best interests of the children that their surname be maintained in all official documentation as ‘Redgate’.
The Court is satisfied that it is appropriate to note that the applicant mother consent’s to the respondent mother continuing to manage the practical matters involving the NDIS plans for the children. The Court also notes that the applicant mother has agreed to meet one half of all out-of-pocket medical and allied health related expenses in relation to the children, that is, in addition to any child support assessment.
Conclusion
At the commencement of the hearing, the Court advised the parties that if they were unable to reach agreement in relation to the parenting arrangements for the children, this would, of necessity, require the Court to impose a decision on the parties. In so doing, it was unlikely that either of the parties would be happy with the Courts imposed decision.
Court proceedings are a very expensive and in many ways unsatisfactory way to resolve parenting issues. A much more preferable way is for the parties to be able to reach agreement between themselves, and, if required, through the assistance of a trained Mediator.
Now that the Court has imposed the Orders it has, it is to be hoped that the parties will be able to go forward and concentrate on the challenges of allowing these two special needs children to receive all the attention and assistance they require to allow them to achieve the most they can out of life. Should the parties continue to engage in bickering and dispute, not only will they be the poorer for it, but most importantly, their children will be the poorer. The parties will need to engage in
child-focused behaviour to achieve this.
I certify that the preceding one-hundred and fifty-six (156) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Associate:
Date: 11 December 2020
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Consent
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Remedies
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