Spini & Spini
[2025] FedCFamC1F 63
•12 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE
Spini & Spini [2025] FedCFamC1F 63
File number: BRC 10194 of 2022 Judgment of: CAREW J Date of judgment: 12 February 2025 Catchwords: FAMILY LAW – CHILDREN – Parenting orders – Where mother wished to relocate to United Kingdom – Where the legitimate interests of an adult conflict with the best interests of children – Where the advantages and disadvantages to the children of living in Australia or relocating overseas are considered – What orders/injunctions are necessary to minimise the children’s exposure to conflict between the parents – Whether the mother poses an unacceptable risk of harm to the children by reason of ongoing denigration of the father and family violence Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4, 4AB, 43, 60B, 60CA, 60CC, 60CG, 61C, 61D, 61DAA, 61DAB, 62B, 64B, 65D, 65DA(2)
Hague Convention on the Civil Aspects of International Child Abduction
United Nations Convention on the Rights of the Child
Cases cited: AMS v AIF (1999) 199 CLR 160
Babcock & Waddell [2019] FamCAFC 129
Baghti & Baghti [2015] FamCAFC 71
Banks & Banks (2015) FLC 93–637
Eastley & Eastley (2022) FLC 94-094
Isles and Nelissen (2022) FLC 94-092
Johnson & Page (2007) FLC 93–344
M v M (1988) 166 CLR 69
N and S and the Separate Representative (1996) FLC 92–655
Zahawi & Rayne [2016] FamCAFC 90
Number of paragraphs: 104 Date of hearing: 3 – 5 December 2024 Place: Brisbane Counsel for the Applicant: Mr Mould Solicitor for the Applicant: Queensland Legal Practice Counsel for the Respondent: Ms Vockler Solicitor for the Respondent: Aegis Law Group Counsel for the Independent Children's Lawyer: Mr Woods Solicitor for the Independent Children's Lawyer: Berck Solicitors ORDER
BRC 10194 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SPINI
Applicant
AND: MR SPINI
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CAREW J
DATE OF ORDER:
12 FEBRUARY 2025
THE COURT ORDERS THAT:
1.Ms Spini (“the mother”) have sole parental responsibility for decisions about major long-term issues (as defined by s 4 of the Family Law Act 1975 (Cth) (“the Act”)) in relation to X born 2020 and Y born 2021 (“the children”) other than in relation to changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with Mr Spini (“the father”) with such decisions to be made jointly.
2.In the exercise of the mother’s sole parental responsibility, the mother provide the father with at least 14 days’ notice of the long-term decision to be made, and consider any views expressed by him prior to making the decision, and upon making the decision inform the father of the decision made and the reasons for same.
3.Notwithstanding paragraph 1 of this Order, the mother do all things necessary to ensure that the father is listed as an emergency contact with the children’s school, day care, and any medical practitioners, allied health care providers, extracurricular activity providers, the children may attend upon from time to time.
4.Notwithstanding, paragraph 1 of this Order, the father is hereby authorised to receive any educational or medical or other welfare information and/or reports and/or school photographs relating to the children from time to time.
5.The children live with the mother.
6.The children spend time and communicate with the father at all such times as may be agreed in writing between the parents and failing agreement as follows:
(a)During school term, and save as otherwise provided herein, as follows:
(i)Each Wednesday from after school or day care (or 3.00 pm if the children are not at school or day care) until before school or day care the following day (or 9.00 am if the children are not at school or day care); and
(ii)Each alternate weekend from after school or day care on Friday (or 3.00 pm if the children are not at school or day care) until before school or day care on the following Monday, or Tuesday if Monday is a public holiday or pupil free day (or 9.00 am if the children are not at school or day care);
(b)By FaceTime each Tuesday between 6.00 pm and 6.30 pm;
(c)For the second half of all school holidays commencing in the June/July 2025 school holidays and in alternate years thereafter and the first half of school holidays in 2026 and in alternate years thereafter;
(d)On the weekend that Father’s Day falls, from after school or day care on Friday (or 3.00 pm if the children are not at school or day care) until before school or day care on the following Monday (or 9.00 am if the children are not at school or day care); and
(e)For three hours on the children’s respective birthdays if the birthday falls on a weekend when the children are not otherwise spending time with the father at times agreed, and failing agreement from 3.00 pm to 6.00 pm, and if the birthday falls on a weekday when the children are not otherwise spending time with the father, then by FaceTime between 6.00 pm and 6.30 pm.
7.Notwithstanding paragraph 6 of this Order:
(a)The children spend the weekend on which Mother’s Day falls with the mother; and
(b)If the children’s birthdays fall on a weekend they are spending time with the father, then the children spend time with the mother at times agreed and failing agreement from 3.00 pm to 6.00 pm, and if the birthday falls on a weekday when the children are spending time with the father, then by FaceTime between 6.00 pm and 6.30 pm.
8.Unless the parents otherwise agree in writing, the father (or an adult known to the children other than the paternal grandmother unless she is not driving) collect the children from school or day care at the commencement of his time with them and return them to school or day care at the conclusion of his time with them save that in the event a child is not at school or day care the father (or an adult known to the children other than the paternal grandmother unless she is not driving) collect the child or children from the mother (or an adult known to the children) at Suburb B McDonald’s and return the child or children to the mother (or an adult known to the children) at the same location.
9.Notwithstanding any other provision in this Order, the mother be at liberty to travel with the children to the United Kingdom for the duration of the school holidays commencing at the end of Term 1, 2025 and if travelling, the mother notify the father of the flight details as soon as possible and provide a full travel itinerary and a copy of prepaid return airfares at least 48 hours prior to departure and ensure that the children communicate with the father on a video call at least once each week during their absence, and in the event the mother does not travel to the United Kingdom, the children spend the first half of the school holidays with the father.
10.If the children do not currently have passports, or other necessary travel documents to enable their travel to the United Kingdom, the father forthwith sign all necessary documents presented to him by the mother and pay one half of any costs associated with the provision of any necessary travel documents (including passports) to facilitate the children’s travel in April 2025.
11.Either parent be otherwise at liberty to travel overseas with the children during any school holiday period the children are in their respective care pursuant to this Order on the following conditions:
(a)The travelling parent provide the other parent with the flight details at least 60 days prior to the proposed travel;
(b)The travelling parent provide a copy of the full travel itinerary and a copy of prepaid return airfares at least 48 hours prior to departure;
(c)The travel occur only to a country that is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”);
(d)The non-travelling parent promptly do all things and sign all documents necessary for the children to travel internationally;
(e)If the father is travelling, the mother provide the children’s passports to the father no less than 7 days prior to departure;
(f)Upon return from overseas travel, the father forthwith return the children’s passports to the mother; and
(g)During such overseas travel the travelling parent ensure that the children speak to the non-travelling parent on a video call at least once each week and, in addition, if the travel occurs incorporating Christmas Day or Easter Sunday the travelling parent ensure that the children speak to the non-travelling parent on each of those days.
12.Paragraph 11 of this Order does not prevent a travelling parent merely transiting through a country that is not a signatory to the Hague Convention on their way to their destination.
13.The father be restrained from bringing the children into physical contact with his brother, Mr C.
14.The father immediately remove the children from any place where Mr C may be at any time and immediately inform the mother as to any inadvertent contact that the children may have had with Mr C.
15.The father immediately remove the children from the presence of any person whom he suspects may be under the influence of illicit drugs or consuming illicit drugs.
16.Each parent keep the other parent informed of:
(a)Their residential address, email address, landline contact telephone number (if any) and mobile contact telephone number, and advise of any changes thereto within 24 hours of the change;
(b)The names and addresses of any treating medical or other health practitioners who treat the children;
(c)Any medical condition, significant health issue or illness suffered by the children; and
(d)Any emergency or serious medical condition involving the children as soon as reasonably practicable but no later than 2 hours after the event.
17.Each parent be restrained from:
(a)Exposing the children to family violence as defined in s 4AB of the Act;
(b)Denigrating the other parent, the other parent’s family or partner, to or in the presence or hearing of the children;
(c)Exposing the children to any person denigrating the other parent or the other parent’s family or partner; and
(d)Save as otherwise provided in this Order, communicating with the other parent other than by email and only in relation to matters that relate to the care, welfare, and development of the children, except in the case of emergency and then by telephone.
18.Notwithstanding any other provision of this Order, if both parents unavoidably attend a changeover, then the parents are permitted to communicate but any communication with the other is to be polite and child focussed.
19.Within 6 months of the date of this Order, the mother complete an anger management program with a mental health practitioner to address her history of violent reactions, and to support her in protecting the children from her negative attitudes towards the father and forthwith upon completion provide the father with a certificate of completion.
20.The mother provide a copy of the Family Report dated 23 October 2024, a copy of Dr D’s report dated 15 May 2023, and a copy of the Reasons for Judgment dated 12 February 2025, to her treating mental health practitioner.
21.Both parents complete a recognised parenting course such as a Circle of Security Program or a Parenting Orders Program (whether or not they have already done so) within 12 months of the date of this Order and upon completion forthwith provide the other parent with a certificate of completion.
22.Pursuant to s 65DA(2) and s 62B of the Act , the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in this Order.
NOTATIONS:
A.There is no Court by the name “Federal Circuit and Family Court of Australia”. This Court was formerly known as the Family Court of Australia and is now known as the Federal Circuit and Family Court of Australia (Division 1).
B.The design of the seal affixed to this Order issued by the Federal Circuit and Family Court of Australia (Division 1) was determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.
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 Spini & Spini has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAREW J:
This is a parenting case involving two children, X aged four, and Y aged three. Ms Spini (“the mother”) and Ms Spini (“the father”) are their parents. The mother wishes to relocate to the United Kingdom (“UK”) with the children.
For reasons that will be explained, the children will continue to live with the mother in Australia, and she will have sole responsibility for decisions concerning major long-term parenting issues other than changes to their living arrangements that make it significantly more difficult for the children to spend time with the father. The father will spend time with the children each Wednesday overnight and each alternate weekend, and for one half of school holidays. The mother will be at liberty to travel with the children to the UK during the April 2025 school holidays, and both parents will be at liberty to travel overseas with the children during other school holidays when the children are in their respective care. In order to promote the safety of the children, the mother will be required to complete an anger management program, and both parents will be required to complete a recognised parenting program.
ISSUES
The parties identified the following issues for the Court’s determination:
(1)The advantages and disadvantages to the children of living primarily with the mother in Australia or in the United Kingdom;
(2)The advantages and disadvantages to the children of living primarily with the father in Australia if the mother relocates without the children;
(3)What orders/injunctions are required to minimise the children’s exposure to conflict between the parents; and
(4)Whether the mother poses an unacceptable risk of harm to the children by reason of ongoing denigration of the father and family violence, and the actual turmoil the children are in by reason of parental conflict.
The mother had, up until the commencement of the trial, indicated an intention to relocate with or without the children. On the first day of trial, the mother resiled from that position, and contended that if the children were unable to relocate, she will reluctantly remain in Australia. Given that change there is no need to consider issue 2 as expressed. The last issue was included at the request of the Independent Children’s Lawyer (“ICL”) at the commencement of submissions. Neither party contended they were caught by surprise by the late addition of this issue.
At the commencement of the trial, the mother confirmed that the notation made to the order dated 30 August 2024 remained her position, namely:
The mother’s previous allegations of physical and sexual abuse by the father towards the children are not pressed, and she concedes that the father does not pose an unacceptable risk of harm to the children.
PROPOSALS OF EACH PARENT
The mother’s proposal, like the father’s, changed several times during the trial. As I understand it, the mother’s proposal is that she should have sole decision-making responsibility in respect of all major long-term issues, and that the children live with her in the UK. If she is living in the UK with the children, the mother proposes the children spend no more than two nights at a time with the father over a fortnight (a maximum of eight nights) in the UK until Y turns five in 2027, and thereafter for a week at a time (over four weeks) interrupted by one night each week with the mother. The mother also proposes returning to Australia twice each year for four weeks each visit, for the father to spend a week at a time with the children. The mother contended that return air fares for herself and the children would be between $3,000 and $6,000 per visit. It was my understanding that the mother proposed a continuation of the current order pending her departure, but her final proposal as set out in Exhibit 14 makes no provision for time pending her relocation. Exhibit 14 also includes the mother’s fallback proposal if she is unable to relocate with the children.
Throughout the trial, the father’s counsel was unable to articulate what parenting order the father sought but ultimately, at the commencement of submissions, adopted one of the alternative orders set out in the ICL’s case outline filed 28 November 2024 at “C” commencing on page 23 of the case outline. This proposal provides for the father to have sole parental responsibility, the children live with the father, a moratorium of four weeks where the children do not see the mother, thereafter alternate weekends increasing to four nights per fortnight after three months and at an unspecified time increasing to alternate weeks and half school holidays.
The ICL recommends a change of the primary care from the mother to the father, and for the children to spend alternate weekends but no holidays with the mother. The details of the order recommended by the ICL are set out in Exhibit 28.
BACKGROUND
Before turning to the issues, it will be helpful to set out some background to the parents’ dispute.
The parents commenced cohabitation in 2015 and married in 2019. They separated on 6 December 2021, although they continued to live under the same roof until 31 July 2022. The parents divorced in early 2023.
The mother is 33 years of age and employed as public servant. The mother was born in the UK and relocated to Australia in 2013. She is currently employed on a part-time basis earning an income of approximately $797 per week. The mother’s hours of work are 9.00 am to 3.30 pm four days per week. In addition to her salary, the mother also receives a family tax benefit, parenting payment, and child support totalling an additional $909 per week. The mother is in good health and lives in a suburb of Brisbane.
The father is 35 years of age and employed as a technician with E Company on a full-time basis. The father’s work involves installing and repairing equipment at commercial premises. The father’s usual work hours are 8.30 am to 5.00 pm with about an hour commute each way. The father is on call every fourth week for seven days, 24 hours a day. The father’s work can involve him travelling for days, or up to a week at a time within the State, and interstate on occasion. The father earns an income of approximately $1,817 per week. At the time of trial, he was living alone in a three-bedroom rental house in a suburb in Brisbane nearby the mother’s residence. He is in good health.
The father commenced a relationship with Ms F, aged 32 years, in early 2024. Ms F and the father do not cohabit, although they expressed an intention to move into a rental property together and they had signed a lease on a three-bedroom house in a suburb nearby the mother’s residence. Ms F has met the children on eight occasions.
There are two children of the marriage, namely X born 2020 and Y born 2021. At the time of the trial, both children attended a day care centre from Monday to Thursday each week. The parents have agreed that X will commence at a local Catholic primary school in 2025.
Y has “[medical conditions], slow growth […] for his age and delayed expressive and receptive language skills”. He regularly attends upon a specialist and speech pathologist in relation to the respective diagnoses. The father has at times disagreed with Y’s treatment plan including speech therapy which has been a source of significant conflict between the parents. Y is now assisted by a National Disability Insurance Scheme plan. I am unsure what additional financial assistance that provides the mother.
In mid-2022, the mother travelled with the children to the UK without the father’s consent. The father had agreed to the mother travelling with the children but on dates later than the mother travelled on. In any event, the mother returned to Australia in mid-2022 and commenced proceedings on 18 August 2022 in the Federal Circuit and Family Court of Australia (Division 2) seeking, among other things, to relocate with the children to the UK.
Rather provocatively, only days before the mother’s return to Australia with the children, the father withdrew $20,000 from the joint account leaving the mother without funds as she was on maternity leave. During the trial, the father sought to justify his conduct on the basis that the funds were contributed by him at the commencement of the relationship.
The father met the mother and children at the airport upon their return from the UK but unfortunately considered it a productive exercise to video record the mother even after she asked him not to.
Times were very tense in the household upon the mother’s return. The mother had made the father aware of her wish to relocate with the children to the UK and the father had made the mother aware of his opposition to that course. The parents fought about the issue and no doubt the children were exposed to that conflict.
After the parents’ physical separation in July 2022, the father spent time with the children supervised by the mother.
Following an altercation at the mother’s residence in late 2022, both parents applied for a protection order against the other. A Temporary Protection Order was made in late 2022 listing the mother as the aggrieved, father as the respondent, and children as named persons. The order expired in early 2023.
On 25 July 2023, the parents each gave an undertaking to be of good behaviour towards each other and not to commit an act of domestic violence (Exhibit 11).
On 14 September 2023, an interim parenting order was made by consent. The order provided for the father to spend time with the children unsupervised from 10.00 am to 4.00 pm each Saturday and each third Sunday. The order also provided for the father’s time with the children to increase once Y turned three, to each alternate weekend from 9.00 am Saturday to 4.00 pm Sunday and each alternate Sunday from 10.00 am to 4.00 pm. The father’s overnight time with the children had only just commenced prior to the trial. The order also provided for the father to communicate with the children by FaceTime once per week and this appears to have proceeded without issue.
The matter was transferred to this Court on 14 September 2023, and it was noted on an order made on 10 November 2023 that the mother did not intend to relocate until 2025. I must say I did not have that impression during the trial. In any event, the notation may explain the delay in listing the matter for final hearing. International relocation matters are generally listed for final hearing with priority.
The father’s family does not seem to have had a lot to do with the children while the parents were still together. After separation, the mother objected to the father’s brother, Mr C, and his mother, Ms G, having anything to do with the children. Mr C has a criminal record for various offences. The paternal grandmother has a prescription for medicinal cannabis. The father grew up in a household marred by family violence, which the father attributes to his father’s excessive alcohol use.
On 8 November 2023, the father gave an undertaking to the Court not to bring the children into direct contact with any person whom he reasonably believed to be under the influence of cannabis or in the possession of cannabis and/or not to bring the children to or leave the children at any premises where he reasonably believes cannabis to be present. The mother alleges the father breached this undertaking on 25 December 2023 and 20 July 2024 when the paternal grandmother (who has a prescription for cannabis) was at the father’s residence or the father and children were at her residence. Given the history, the father’s actions in having his mother present with the children were at least unwise without proper disclosure to the mother and transparency about her medicinal use of cannabis.
In early 2024, an incident occurred between the parents at changeover. The police applied for and obtained a five-year Protection Order listing the father as the aggrieved, the mother as the respondent, and the children as named persons.
The mother withheld the children from spending time with the father from April to June 2024 after allegedly observing finger marks on Y. The weekly video calls continued as ordered. The father denies causing any injury to Y and contends the mother withheld the children in retaliation for him obtaining a protection order against her.
In June 2024, the children’s time with the father resumed pursuant to the order dated 14 September 2023, save for a further interruption of one week after the mother alleged the father had again breached his undertaking not to bring the children into contact with a person under the influence of cannabis.
APPLICABLE LEGAL PRINCIPLES
A parenting case involving relocation is just another parenting case.[1] There are no special tests that apply. Neither parent must establish a compelling reason for wishing to live where they want to live.[2] Nor is the enquiry one that is directed to whether a parent should be ‘permitted’ to relocate.[3] The best interests of the children remain the paramount, though not the sole consideration.[4] Where the legitimate interests of an adult conflict with the best interests of children, the former must give way.[5]
[1] Zahawi & Rayne [2016] FamCAFC 90 at [48].
[2] AMS v AIF (1999) 199 CLR 160 (“AMS v AIF”).
[3] Babcock & Waddell [2019] FamCAFC 129 at [141]–[142] (Aldridge J), quoting AMS v AIF (1999) 199 CLR 160 at 223, [188] (Kirby J) and at 231–232, [217]–[218] (Hayne J).
[4] AMS v AIF (fn 2) at 225, [193].
[5] Ibid.
Parenting proceedings are regulated by Part VII of the Family Law Act 1975 (Cth) (“the Act”) as amended. In addition, s 43 of the Act requires the Court to have regard to several matters including:
(a)The need to protect the rights of children and to promote their welfare; and
(b)The need to ensure protection from family violence.
Every parenting decision requires the application of the relevant parts of Part VII of the Act which sets out the objects and matters that must be considered when determining what parenting order is proper.[6]
[6] Family Law Act 1975 (Cth) s 65D.
A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:
(a)The person or persons with whom a child is to live;
(b)The time a child is to spend with another person or other persons;
(c)The allocation of parental responsibility; and
(d)The communication a child is to have with another person or persons.
The objects of Part VII of the Act are set out in s 60B and are to ensure that the best interests of children are met, including by ensuring their safety, and to give effect to the United Nations Convention on the Rights of the Child.
In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA of the Act).
The best interests of the child are determined by reference to the matters set out in s 60CC of the Act and generally include: arrangements that promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect or other harm) of the child and each person who has care of the child; any views expressed by the child; the developmental, psychological, emotional and cultural needs of the child; the capacity of each person who has or will have parental responsibility to provide for the child’s needs; the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so; and in considering those matters, the Court must consider any history of family violence, abuse or neglect involving the child or a person caring for the child, and any family violence order that applies or has applied to the child or a member of the child’s family.
Section 60CG of the Act imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
Family violence is defined in s 4AB of the Act and means violent, threatening, or other behaviour by a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful. Examples of such behaviour include assault, sexually abusive behaviour, stalking, repeated derogatory taunts, intentional damage or destruction of property, unreasonably withholding financial support needed to meet reasonable living expenses of the family member or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support, preventing the family member from making or keeping connection with his or her family or friends, or unlawfully depriving the family member from his or her liberty, etc.
Abuse in relation to a child is defined in s 4 of the Act and includes subjecting or exposing a child to family violence.
In cases involving allegations of abuse or family violence, a positive finding should not be made unless the Court is satisfied on the balance of probabilities,[7] having regard to the “inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding”[8] and proof to the reasonable satisfaction of the Court, “should not be produced by inexact proofs, indefinite testimony, or indirect inferences”.[9] Where a positive finding is not made but it is nevertheless not possible to reject an allegation as groundless, the Court is required to assess and evaluate the magnitude of any risk to the child and to determine whether the risk of harm is unacceptable.[10]
[7] Evidence Act 1995 (Cth) s 140.
[8] M v M (1988) 166 CLR 69 (“M v M”).
[9] Ibid.
[10] Ibid; N and S and the Separate Representative (1996) FLC 92–655.
The High Court in M v M explained at [25] the nature of the risk in the following terms:
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. … courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
(Citations omitted)
When assessing the nature and magnitude of a risk posed by a parent or other person, all relevant evidence must be considered as part of the “matrix of evidence”[11] to determine whether or not the risk of possible future harm is unacceptable and, in making that determination, it is not necessary to make findings of fact on the balance of probabilities on each piece of relevant evidence (or even any), although caution is required if concluding that a risk is unacceptable where no such findings are made.[12] When assessing whether a risk is unacceptable, the Court is concerned with possibilities and not probabilities.[13] Whether a risk is found to be unacceptable is not determined according to the civil standard of proof i.e. on the balance of probabilities.[14]
[11] Eastley & Eastley (2022) FLC 94-094 at [31] (“Eastley”).
[12] Johnson & Page (2007) FLC 93–344 at 81,890–81,891, [68]–[71] (adopting the extra curial commentary by the Hon. John Fogarty AM) NB. Johnson & Page was overturned by Isles and Nelissen (2022) FLC 94-092 (“Isles”) but not on this point which was subsequently confirmed by Eastley).
[13] Isles (fn 12) at [7].
[14] Ibid at [81].
When considering the parenting dispute more broadly, it is not necessary to make findings of fact on every factual dispute raised by the parties.[15] The paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case, and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive conclusion”[16] on each and every factual dispute.
[15] Baghti & Baghti [2015] FamCAFC 71.
[16] M v M (fn 8) at 76.
Each parent has parental responsibility (i.e. all the powers, responsibilities, and authority which, by law, parents have in relation to a child) for a child subject to any order made by the Court (s 61C of the Act).
Section 61D of the Act provides that a parenting order can deal with the allocation of responsibility for decision making about major long-term issues, being joint or sole decision making in relation to all or specified major long-term issues. Major long-term issues mean issues about the care, welfare, and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, and changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).
Where an order is made for joint decision making about major long-term issues, parents are required to consult each other in relation to each such decision and make a genuine effort to come to a joint decision (s 61DAA of the Act). Where a decision is not a major long-term one, there is no such requirement to consult with the other parent (s 61DAB).
Although I may not specifically discuss in these reasons each subparagraph of each relevant section of the Act, I have considered all sections as required when making my determination.[17]
THE ADVANTAGES AND DISADVANTAGES TO THE CHILDREN OF LIVING PRIMARILY WITH THE MOTHER IN AUSTRALIA OR IN THE UNITED KINGDOM
[17] Banks & Banks (2015) FLC 93–637.
If the mother relocates to the UK with the children, the relationship between the father and the children will be diminished almost entirely given their very young ages. Even with the best will in the world, the children will lose their close relationship with the father. The mother candidly acknowledged that she hates the father, and her mother made it clear she dislikes him and does not trust him. The children would not be in a household that fostered the father/children relationship and without regular time that relationship would wither.
The parents cannot afford four visits each year which is what the mother suggested as the way to maintain the father/children relationship (two in the UK and two in Australia). The mother’s proposal for twice yearly travel by her and the children to Australia also depends upon any future employer of the mother’s agreeing to her taking eight weeks holiday or leave without pay each year. The proposal is unrealistic and unlikely to occur.
Even if the father were prepared to relocate to the UK, which he was when the parents were still in a relationship, there is no evidence he could do so. The mother’s evidence was that the father applied for a job in the UK with the same company he currently works for in Australia but did not get the job because he did not have a work visa.
The mother would no doubt receive greater family support if she lived in the UK where her family live, and one can certainly understand and sympathise with her wish to relocate. The mother’s family would initially provide accommodation in the UK for the mother and children and the mother contends that her employment prospects would improve if she lived in the UK where she would propose to work full time rather than part time.
In the Family Report dated 23 October 2024, it was the Family Report writer’s opinion, that the mother’s relocation with the children “may lead to reduced conflict between the parents” as the mother would have family support which “could contribute to a more positive developmental experience for the children”. On the other hand, the Family Report writer opined that “there are significant risks if [the mother] relocates that she will not encourage the children’s relationship with [the father]”.
The mother currently has regular contact with her family in the UK, by telephone and video calls which I acknowledge is inferior to face to face contact. The maternal grandmother made it clear that if the mother continued to live in Australia, she would provide financial support if required and would visit every year at least once. Members of the mother’s family generally visit once or twice per year.
While the mother sought to play down her friendships in Australia, she conceded that she did have friendships and even proposed she could stay with friends in Australia twice a year if she were living with the children in the UK. The mother has lived in Australia for over ten years and moved here before she met the father. While it is her preference to relocate, it cannot be seriously argued that continuing to live in Australia with the children would cause her to be isolated.
The Family Report writer emphasised that developmentally, the children require “regular, frequent, and broad-ranging time” with both parents including across the various aspects of their lives such as school, extra-curricular activities, and special occasions.
Ultimately, the decision I make must give the children’s interests the paramount focus and to the extent the children’s interest conflict with a parent’s legitimate interests, the latter must give way.[18]
[18] AMS v AIF (fn 2) at 225, [193].
As the Family Report writer opined, “children tend to have better outcomes when … [they] have a meaningful relationship with both of their parents”.
WHAT ORDERS/INJUNCTIONS ARE REQUIRED TO MINIMISE THE CHILDREN’S EXPOSURE TO CONFLICT BETWEEN THE PARENTS
Notwithstanding some apparent improvement in their interactions, the parents should not undertake changeovers personally given the level of hostility. If the mother is unable to relocate with the children, she is likely to be disappointed, and if the parents continue to personally undertake changeovers, the risk of the children being exposed to their conflict will be heightened.
As the children attend either school or day care, changeovers in the future should occur at school and day care. If the children are not at school or day care, then changeovers should occur at a public place and preferably between persons other than the parents. I propose to adopt the mother’s suggestion of changeovers at Suburb B McDonald’s.
WHETHER THE MOTHER POSES AN UNACCEPTABLE RISK OF HARM TO THE CHILDREN BY REASON OF ONGOING DENIGRATION OF THE FATHER AND FAMILY VIOLENCE AND THE ACTUAL TURMOIL THE CHILDREN ARE IN BY REASON OF PARENTAL CONFLICT
The father did not run a case alleging that the mother posed an unacceptable risk of harm to the children. Indeed, his final position is that there should be an equal time arrangement gradually introduced over an unspecified period.
The ICL submitted that the mother poses an unacceptable risk of harm to the children justifying a change in primary care but nevertheless recommended the mother spend alternate weekends with the children unsupervised. Doing the best I can to understand the ICL’s submissions, it seems the risks identified relate to the mother’s history of violence towards the father, her exposure of the children to the conflict, and the risk of her ultimately ruining the father’s relationship with the children if they remain in her primary care.
There can be no doubt that the mother has acted impulsively at times and lashed out at the father and others quite inappropriately. For example, the mother admits to the following assaults on the father:
(a)When X was six weeks old the mother and the father were both awake for her night feed and had an argument about baby formula with the father complaining about the time it would take to feed the child. The mother reacted by hitting the father in the head with a closed fist while the father was holding X. The father provides some additional context to this incident, namely, that they were both tired and sleep deprived. While not diminishing the seriousness of the mother’s behaviour in striking the father, I note that there is no suggestion the father suffered any injury;
(b)When Y was six weeks old the mother pushed the father and hit him when he complained about the state of the house and about X eating left-overs. The police attended and spoke to both parents. Again, while not diminishing the seriousness of the incident there is no suggestion the father suffered an injury;
(c)After separation, in late 2022, the father arrived at the mother’s home (although the father’s name was still on the lease) and refused to leave when requested. The mother pushed him. The father alleges that the mother also grabbed him by the throat. The police attended and spoke to both parents. No injury was noted on the father, and the mother denied grabbing him by the throat. The mother admitted that she had pushed the father. The police did not consider the father needed protection but warned the parents to respect each other in future. The mother contends that a temporary protection order was taken out by police for her protection, but the records indicate the application was made by the mother;
(d)In early 2024, the mother spat at the father twice at a changeover because he would not agree to stop doing changeovers personally and go to a contact centre. Her conduct was appalling. The father’s reaction included him stating, “did you just fucking spit on me, that’s fucking disgusting”. The children were present during this incident.
In early 2024, police applied for a protection order for the benefit of the father and the children. Police records include the following information:
(a)There had been seven reported incidents of domestic violence between the parents over the previous three years prior to the incident in early 2024;
(b)The police reviewed numerous text messages sent by the mother to the father over a 24-hour period in early 2024 and described them to be of a “horrible nature”;
(c)The father complained to police that on the pickup of the children, he felt a hit to the back of his head and turned to see the mother holding her phone to his face which he believed she had used to hit him;
(d)The father further complained that when returning the children to the mother later that day, after he stood from crouching down to say goodbye to X, the mother spat in his face and when he handed Y to the mother, she again spat in his face;
(e)When the police spoke to the mother, she refused to accept responsibility for sending the abusive texts, saying that she does it to “vent, as she is so annoyed with him”. The mother complained about the father parking next to her at changeovers, smirking at her, and refusing to move the changeovers to a contact centre;
(f)The mother did not acknowledge that her messages were a clear example of domestic violence and felt her actions would not affect the father as he was a narcissist. The mother said she would continue to message him if he did not agree to meet her needs with changing the pickup arrangements; and
(g)The mother has shown by her actions towards the father, that whatever he does, it is not good enough and she wants it done a different way. In one of the messages read by police, the mother made a comment about how poor her life is going while the father gets to work full time, go fishing and gets to see the children on the weekend. “Police believe until [the mother] focuses on her life and not the [the father] she will continue to be of bad behaviour towards him”.
The mother consented to the protection order without admission. It remains in place for the protection of the father and the children until late 2027.
The mother admitted during cross-examination that she did send the father abusive text messages but denied they were all sent in a 24-hour period but rather over several months. In some ways that admission makes her behaviour even worse as it cannot be seen in the context of a once off loss of control. The mother admitted to spitting at the father twice at the changeover while she was holding Y. The mother could not recall hitting the father in the head. Given the mother’s heightened state, it is likely she did.
The mother’s behaviour falls within the definition of family violence and there is certainly a risk of the mother committing an act of family violence against the father and of exposing the children to an act of family violence in the future.
However, notwithstanding the mother’s appalling behaviour, I was not taken to any evidence that she has breached the protection order. In the Family Report, the father suggested the mother may have breached the protection order by coming to his home when the children were in his care. This may have been the occasion in July 2024, when the paternal grandmother was at the father’s home and the mother alleged the father was thereby in breach of his undertaking. The father contends he reported the alleged breaches. There is no evidence that police took any action to charge the mother with breaching the protection order.
It is important to note that the father told the Family Report writer on 25 September 2024, that the mother’s behaviours had “alleviated over the past couple of months”.
It seems to me that if the parents do not come into contact the risk of family violence and of the children being exposed to family violence is ameliorated.
There is of course another risk posed by the mother, namely, of her undermining the children’s relationship with the father given her admitted hatred of him.
The children have certainly been exposed to the mother’s hostility towards the father. During the Family Report interviews on 25 September 2024, the mother presented as “aggrieved and rigid” with “limited insight” and an “entrenchment in her narrative and preoccupation with her strong emotional aggrievement from the parents’ relationship”. The Family Report writer opined that the mother was, “highly critical of [the father’s] involvement with the children, often attributing any difficulties with the children or less favourable actions of her own to his actions or negligence, ‘He’s bringing the worst out of me’”. The mother was noted to repeat “expressions of resentment and mistrust” and “was unable to balance her grievances against [the father] with consideration for what might best meet the children’s needs, ‘I’ll never forgive him for what he’s done to us’”.
Since the protection order, all changeovers have occurred outside a police station and notwithstanding the location, the mother continues to record the changeovers seemingly to protect herself from allegations in the future and to keep a record of the father’s conduct. While recording the changeovers is certainly not child focussed, there is no suggestion that the children are inhibited in any way by the behaviour because the father describes the children running to greet him at the commencement of his time with them. The mother does not dispute this.
Both the Family Report writer and Dr D, who psychiatrically assessed the parents, raised concerns about the level of the mother’s inability to separate her own experience of the father from the children’s relationship with the father. Dr D opined that the mother appeared to hold an overvalued “paranoid stance” towards the father and experiences ongoing challenges controlling her emotions. The Family Report writer and Dr D also raised concerns about the mother’s lack of insight into the impact on the children of her behaviours towards the father.
The Family Report writer opined that the mother’s violence towards the father during the relationship and post-separation is “highly concerning” and further opined that the mother, “justifies violence and deflects responsibility for her aggrievement with [the father], indicating a significant lack of insight into the implications of her reactions and an inability to regulate her affective states”. Further, the Family Report writer noted that continued exposure to such violence “could hinder the children’s emotional development and their ability to form secure attachments”. I accept that the mother needs to develop greater awareness and control over her emotional responses, and she should complete an anger management program with a mental health practitioner to address her propensity for violence and conflict, and to support her in protecting the children from her negative attitudes towards the father.
The mother’s abusive behaviour in more recent times has been directed to the ICL accusing her of various deficiencies. The mother has not helped her own cause, and the content of her emails certainly raise the concern that she lacks insight into the impact of her own behaviour including that it is self-sabotaging. No ICL should be subjected to abusive communications and the mother’s inability to control her emotions is certainly something I take into account.
The mother presented as a woman deeply affected by frustration and anger at being “trapped”, as she sees it, in Australia, away from family support. The mother candidly admitted her conduct and did not seek to excuse it, unlike during her interview with the Family Report writer. It seems the mother may have gained a level of insight.
Changeovers do appear to have improved as they would need to, and the mother has agitated for changeovers not to occur face to face for a long time. Why the father opposed that course is unclear. Changeovers continued to occur face to face even after the Family Report writer recommended that changeovers occur at day care or at a contact centre. It is unclear why that recommendation was not acted upon.
It is imperative that the children are not exposed to conflict between their parents. As the Family Report writer opined, and I accept, “[y]oung children’s ongoing experience of conflict can affect their sense of safety and have lifelong consequences for their emotional-behavioural development and their learning and intellectual development. If unaddressed, the situation may escalate, and the child[ren] will feel torn in loyalty” and may result in “behavioural difficulties”.
Notwithstanding the mother’s behaviour, the father contends that he has a great relationship with the children. The mother agrees that the father and X have a close bond but in her view his relationship with Y was still developing. The father agreed the children had provided him with a Father’s Day gift, clearly purchased by the mother and that the mother has provided him with samples of the children’s day care craft. The Family Report writer also noted “the children’s ability to transition easily between their parents during observations [which] reflects positively on both parents”. These are positive signs.
The ICL was unable to articulate what evidence would support a finding of unacceptable risk justifying the children’s removal from the mother’s care particularly in circumstances where there is great uncertainty about the father’s circumstances.
While noting various shortcomings in the mother’s presentation during the Family Report interviews, the Family Report writer opined that the mother’s apparent inability to demonstrate any perspective, may improve once final orders are made. On the other hand, the report writer raised the mother’s “potential reactivity if the Court were to issue orders contrary to her wishes”.
The risk of exposure to the mother’s violence towards the father can be ameliorated by removing the prospect of the parents coming into contact. The mother nevertheless poses an ongoing risk of exposing the children to her negative views about the father, which she has already done, and this in turn may undermine the children’s relationship with the father and place them in the middle of the conflict.
On the other hand, despite this exposure, the weekly video calls have occurred without incident and both parents acknowledge (to differing degrees) the positive relationship the children have with the father.
While the matters raised do involve possible risks of harm to the children, I am not satisfied that the risks are unacceptable in the M v M sense as identified at [41] above. If I am wrong in that conclusion, I would nevertheless find that the risk can be ameliorated by ensuring the changeovers occur as far as possible without the parents coming into contact and by the mother undertaking an anger management program.
WHAT PARENTING ORDER BEST MEETS THE CHILDREN’S INTERESTS?
While the father appears to have a close relationship with the children, it is not in dispute that he has spent limited time with the children both before and after separation. That is not a criticism of the father but a fact. During the relationship he worked full time, often for nine or 10 hours a day. After separation, the mother insisted on the father’s time with the children being supervised because of her concerns about his lack of supervision of the children. While accidents can happen, it is not in dispute that X either did or came close to burning herself on a hot frying pan while under the father’s supervision. The incident damaged the mother’s trust in the father’s ability to properly supervise the children. On another occasion, the father admits he was negligent in leaving a knife within X’s reach. The child was found playing with the knife and although the child was not injured, his oversight did not assist the already fragile parenting relationship. It was not until September 2023, that the father’s time with the children progressed to unsupervised day time each week before commencing one overnight per fortnight the month before the trial.
The mother has always been the parent who largely attended to the day-to-day needs of the children, taking them to medical appointments and the like.
The Family Report writer noted that the children’s relationship with the mother was “characterised by comfort and familiarity”.
Notwithstanding the limitations on the time spent with the children, the Family Report writer observed that the father “displayed a detailed understanding of the children’s needs” and “demonstrated the capacity to remain child-focussed and acknowledge the importance of the children’s relationship with the mother”. The Family Report writer noted that the children displayed “a close and affectionate bond with [the father] … demonstrating their comfort and familiarity with [the] father”. X expressed a desire to go home with the father after the Family Report interviews and became upset when she was not able to. The father was noted to offer the child appropriate reassurance that he would call her later that day. Both children transitioned to the mother and gave the father “big hugs” in the mother’s presence.
Notwithstanding the Family Report writer’s opinion that “there appear to be no substantive concerns regarding [the father’s] capacity to meet the children’s needs as a primary carer”, the father is now about to embark on significant change in his personal life. He and Ms F are about to commence a live-in relationship. That relationship is untested. They have been in a relationship only since early 2024. If the children were living with the father, he would also be heavily reliant on Ms F and his mother, Ms G, to assist him in the care of the children.
Ms F works full time in the service industry. Ms F has only met the children on eight occasions and has never been present when they have spent overnight at the father’s home.
The father’s mother suffers from a chronic medical condition and severe anxiety for which she has been prescribed medicinal cannabis with “THC” (apparently the ingredient that produces a psychoactive effect). Ms G’s prescription is for twice daily consumption although she said she does not always take it twice daily. Her evidence was surprising having regard to her affidavit in which she stated that she “rigidly follow[s] the treatment plan”. Ms G conceded that if she does not take the medicinal cannabis, she becomes very anxious. Ms G rejected the suggestion that her use of cannabis affects her capacity to care for the children or to drive although she conceded she would not drive but only because it would be illegal. The medical evidence relating to her cannabis use is over two years old (Exhibit 32).
While Ms G would no doubt be a loving addition to family life for the children, she did not present as someone with a robust constitution and I was left with the impression that she would struggle to care for the children on her own, other than for very short periods of an hour or two. Ms G also conceded that she has had very little to do with the children since their birth.
The father’s position up until the parents were informed of the ICL’s recommendation for the children to be removed from the mother, was for a gradual increase in his time with the children until it became week about with changeovers on Fridays.
Even if the parents are living in the same country, the Family Report writer did not support equal time but rather recommended the children live with a primary carer while spending regular, quality time with the other parent suggesting four nights per fortnight.
An obvious advantage for the children continuing to live primarily with the mother is that it provides continuity in care, emotional familiarity, and stability. It would also avoid the inevitable adjustment challenges for the children living with the father and Ms F. According to the Family Report writer, such challenges “could lead to feelings of insecurity or anxiety”.
It seems to me that it is in the best interests of the children to continue to live with the mother and to spend Wednesdays overnight and alternate weekends from Friday to Monday with the father and half school holidays. While the mother’s proposed order (if she is unable to relocate with the children to the UK) included a provision for the children to spend some time with the father each weekend, it seems to me that it would be in the children’s best interests to spend each alternate weekend with the mother uninterrupted.
The mother will be required to complete an anger management program with a mental health practitioner to address her propensity for violence and conflict and to support her in protecting the children from her negative attitudes towards the father. The mother will have six months to complete the course so she will need to engage a practitioner immediately.
Both parents will be required to complete a recognised parenting program (whether or not they have previously done so). As there are often waiting lists for such programs, the parents will have 12 months to complete the program, but they should register immediately.
Given the history of conflict between the parents, it is understandable that no party advocated for the parents to have joint responsibility for making decisions about major long term parenting issues. As the children will continue to live primarily with the mother, she will have sole parental responsibility for making decisions about major long-term issues other than in relation to a change in the children’s living arrangements that would make it significantly more difficult for the children to spent time with the father. Any such decision would need to be made jointly.
Although the mother did not press for restrictions on the paternal grandmother coming into contact with the children, the paternal grandmother should not drive with the children given her ailments and consumption of medicinal cannabis and her care of the children should be limited to short periods of no more than an hour or two. Given the difficulty with enforcing such a restriction, I do not intend to include it in an order but will rely upon the father to ensure that his mother is not put in that position.
The mother presses for restrictions on the father’s brother, Mr C, having any contact with the children. In my view, the injunction against Mr C as proposed by the mother exceeds what is necessary to address the risk identified. Nevertheless, there will be an injunction restraining the father from bringing the children into physical contact with Mr C.
I propose to restrain the father from bringing the children into physical contact with Mr C for the following reasons:
(a)His criminal history;
(b)The father’s limited knowledge of his brother’s offending behaviour;
(c)The father’s concession that when he and the mother and children shared a house with Mr C in late 2021, his brother was a daily user of cannabis;
(d)The mother’s unchallenged evidence of threatening behaviour from Mr C towards herself;
(e)The mother’s unchallenged evidence that Mr C blew cannabis smoke in the faces of the children;
(f)The father’s concession that he did not “believe [Mr C’s] maturity levels are at a high enough level to care for the children on his own”; and
(g)The fact that Mr C has no established relationship with the children.
At the end of the trial, the mother expressed a wish to be able to visit family in the UK in early 2025 with the children. The mother has not visited the UK since mid-2022. It seems to be entirely reasonable for her to enjoy a holiday in the UK with the children and her family during the children’s end of Term 1 school holidays.
Each party had the opportunity to make submissions about the order sought by the other and ultimately the order I propose to make is one that in my view best meets the interests of the children.
I certify that the preceding one hundred and four (104) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 12 February 2025
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