Stuckey and Ferrier
[2019] FCCA 1844
•8 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| STUCKEY & FERRIER | [2019] FCCA 1844 |
| Catchwords: FAMILY LAW – Parenting – where and with whom a nine-year-old child should live – if with her mother, whether the mother should be forced to return from Town A to Melbourne – if with her father, how she should spend time with her mother. |
| Legislation: Family Law Act 1975, ss.60B, 60CA. 60CC, 64B |
| Cases cited: Mazorski v Albright (2008) 37 FLR 518 Tait & Dinsmore [2007] FamCA 1383 |
| Applicant: | MR STUCKEY |
| Respondent: | MS FERRIER |
| File Number: | DGC 2227 of 2015 |
| Judgment of: | Judge Small |
| Hearing dates: | 12 & 13 July 2018 and 26 October 2018 |
| Date of Last Submission: | 26 October 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 8 July 2019 |
REPRESENTATION
| Counsel for the Applicant: | Self-represented |
| Solicitors for the Applicant: | Self-represented |
| Counsel for the Respondent: | Mr Lovering |
| Solicitors for the Respondent: | Victoria Legal Aid |
| Counsel for the Independent Children’s Lawyer | Ms Burt (12 & 13 July 2019) Ms Hamilton-Green (26 October 2019) |
| Solicitors for the Independent Children's Lawyer: | Creative Family Law Solutions |
ORDERS
The parties shall have equal shared parental responsibility for the child [X] born … 2010 (“the child”), and, if after discussing the matter they cannot agree on any major issue to be decided, they shall attend Family Dispute Resolution and make a genuine effort to come to agreement.
In the event that the parties cannot agree on a major issue involving the child’s long term care, welfare and development after attending Family Dispute Resolution, then the mother shall have final responsibility for making the decision about that issue at that time.
The child shall live with the mother and the mother shall be at liberty to remain living in Town A.
Should the mother choose to relocate the child’s place of residence from Town A she shall relocate the child only to the Melbourne Metropolitan Area, and only to a suburb not further than 30 kilometres from the father’s home at that time, save that if the father should then move further than 30 kilometres away from the mother, the mother shall be permitted to remain where she is then residing.
The child shall spend time and communicate with the father as follows:
A.While the child remains living in Town A:
(a) During school terms:
(i)For three weekends in each school term by agreement between the parties and failing agreement:
1. on the Labor Day long weekend in March and the Queen’s Birthday long weekend in June each year, and on the second and seventh weekends of Terms 1 and 2 each year; and
2. on the second, sixth and ninth weekends of terms 3 and 4;
such time to commence at the conclusion of school or 5:00 p.m. on Friday and to conclude at 5:00 p.m. on Sunday (or 5:00 p.m. on Monday if not a school day), with the father to advise the mother no later than three days prior to the commencement of time whether he will be collecting the child from school at the conclusion of school, or from the McDonalds restaurant in Town U at 5:00 p.m. on the Friday;
(ii)By telephone, Skype, FaceTime or other electronic means at any time at the instigation of the child, and on Mondays and Thursdays, the child’s birthday and the father’s birthday between 6:30 p.m. and 7:00 p.m. at the instigation of the father, with the father to place the call to a device nominated by the mother, and the mother shall ensure that the child has access to a fully charged and working telephone, computer or tablet, that she is available to make or take the call, and that she is afforded privacy during the call;
(b) For ten days in each of the first and third term school holidays by agreement, and failing agreement, from 5:00 p.m. on the first Saturday to 5:00 p.m. on the second Tuesday in even numbered years and from 5:00 p.m. on the first Wednesday to 5:00 p.m. on the last Saturday in odd numbered years;
(c) In the second term school holidays from 5:00 p.m. on the first Saturday to 5:00 p.m. on the second Saturday in even numbered years, and from 5:00 p.m. on the second Saturday to 5:00 p.m. on the last Saturday in odd numbered years;
(d) For half the long summer holidays each year by agreement and failing agreement the first half in even numbered years and the second half in odd numbered years, and the holidays shall be deemed to commence at noon on the first Saturday and to conclude at noon on the last Saturday;
(e) From 5:00 p.m. on 26 December 2019 to 5:00 p.m. on 28 December 2019 and in each alternate year thereafter;
(f) From 5:00 p.m. on 24 December 2020 to 5:00 p.m. on 26 December 2020 and in each alternate year thereafter;
(g) At other times by agreement between the parties in writing.
B.Should the child be living in the Melbourne Metropolitan Area pursuant to the provisions of paragraph 4 hereof:
(a) During school terms:
(i)Each alternate weekend from the conclusion of school on Thursday to the commencement of school on Monday commencing on the second weekend after the mother relocates the child to the Melbourne Metropolitan Area;
(ii)Each alternate week from the conclusion of school to 7:00p.m. on Thursdays commencing on the first week after the mother relocates the child to the Melbourne Metropolitan Area ;
(iii)By telephone, Skype, FaceTime or other electronic means at any time at the instigation of the child, and on Mondays, Thursdays, between 6:30 p.m. and 7:00 p.m. at the instigation of the father, with the father to place the call to a device nominated by the mother, the mother to ensure that the child has access to a fully charged and working telephone, computer or tablet, that she is available to make or take the call, and that she is afforded privacy during the call;
(b) For half of all school term holidays by agreement between the parties and failing agreement from the conclusion of school on the last day of term to 5:00 p.m. on the second Saturday in even numbered years, and from 5:00 p.m. on the second Saturday to the commencement of the next school term in odd numbered years;
(c) For half the long summer holidays each year by agreement and failing agreement the first half in even numbered years and the second half in odd numbered years and the holidays shall be deemed to commence at noon on the first Saturday and to conclude at noon on the last Saturday;
(d) From 5:00 p.m. on Christmas Eve to noon on Christmas Day in even numbered years and from noon on Christmas Day to 5:00p.m. on Boxing Day in odd numbered years;
(e) From noon on the day before the child’s birthday to noon on the child’s birthday in even numbered years and from noon on the child’s birthday to noon on the day after the child’s birthday in odd numbered years;
(f) From the conclusion of school on the father’s birthday (or 3:30p.m. if not a school day,) to the commencement of school on the day after the father’s birthday (or 10:00 a.m. if not a school day) should the birthday fall on a school day, and from 2:00 p.m. to 8:00 p.m. should the birthday fall on a non-school day;
(g) At other times by agreement between the parties in writing.
Changeovers shall take place:
(a) while the child lives in Town A either at the child’s school should the father choose to collect her from school at the commencement of time, or at the McDonalds restaurant in Town U;
(b) should the child live in the Melbourne Metropolitan Area, changeovers which do not take place at the child’s school shall take place at the McDonalds restaurant closest to the midway point between the parties’ residences.
All time the father spends with the child pursuant to paragraphs 4.A.(a) and 4.B.(a) hereof shall suspend during school holidays and recommence after the holidays as if the holidays had not intervened.
The mother shall ensure that the child’s school makes available to the father, at the father’s expense if any, all school reports, photographs, information about parent-teacher interviews, sporting or cultural events, and information about all prizes or awards won by the child, and the parents shall both be at liberty to attend parent-teacher interviews, at different times should they so choose, and all sporting or cultural events usually attended by parents.
The mother shall ensure that the child attends school on time on every school day, and if the child is absent for more than one school day because of illness or injury, she shall provide a medical certificate to the father within 48 hours setting out the specific nature of the child’s illness or injury and why it has prevented her from attending school.
The mother shall keep the father informed of [X]’s school, usual treating general practitioner, any specialist medical practitioner and any counsellor or therapist upon whom she attends, and shall authorise all such medical and allied health practitioners to consult with the father about any treatment to be administered to the child.
The parties shall each inform the other of any serious illness or injury suffered by the child which requires hospitalisation or specialist treatment while she is in their respective care, and they shall authorise any treating medical or allied practitioners who are treating the child to speak to the other parent about the child’s treatment.
The parties shall each ensure that [X] takes any medication prescribed for her in compliance with its prescription while in their respective care.
The parties and their servants and agents be and are hereby restrained by injunction from:
A.abusing, insulting, belittling, criticising, rebuking or otherwise denigrating the other or any member of the other’s family or household in the presence or hearing of the child and from permitting any other person to do so;
B.discussing these proceedings with or in the presence or hearing of the child (save to explain any changes in her living circumstances to her) and from permitting any other person to do so; and
C.allowing the child to access, read, or have read to her, any portion of the Court’s Reasons for Judgment in this matter.
The mother shall attend upon her general medical practitioner no less frequently than once every two months for the specific purpose of discussing the state of her mental health, and she shall comply with all treatment directions and referrals made by that practitioner.
If so referred by her general medical practitioner, the mother shall consult and engage with a consultant psychiatrist for assessment and treatment until the psychiatrist deems such treatment is no longer necessary.
The mother shall be at liberty to provide a copy of these Orders to any school attended by the child, to her general medical practitioner, and to any psychiatrist to whom she is referred.
The Order of Judge Small, dated 13 December 2016 appointing the Independent Children’s Lawyer is hereby discharged.
IT IS NOTED that publication of this judgment under the pseudonym Stuckey & Ferrier is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
DGC 2227 of 2015
| MR STUCKEY |
Applicant
And
| MS FERRIER |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a parenting dispute between Mr Stuckey (“Mr Stuckey or “the father”) and Ms Ferrier (“Ms Ferrier” or “the mother”) in relation to the care arrangements for their daughter [X] born … 2010 (“[X]” or “the child”).
[X] lives with her mother in Town A, and spent fairly frequent but irregular time with her father from the parties’ separation in April 2010 until Interim Orders were first made in this Court on 13 December 2016. She has since spent regular, though not frequent time with Mr Stuckey, who lives in Suburb D in the outer suburbs of Melbourne. The distance between the parents’ homes is significant, being some 300 or so kilometres and three-and-a-half to four hours’ drive.
The mother seeks orders for the parties to have equal shared parental responsibility for [X], for the child to live with her, and for the child to spend time and communicate with the father for two weekends in each school term from 5:00pm Friday (or 3:30pm Friday when the father collects the child from Town A) until 3:00pm Sunday (or 3:00pm Monday if a non-school day) with the father to elect such weekends, and for periods of school holiday time.
The father seeks orders for the child to live with him, and spend time and communicate with the mother for two weekends in each school term from 5:00pm Friday until 3:00pm Sunday (or 3:00pm Monday if a non-school day) and periods of school holiday time if the mother remains in Town A. If the mother returns to the Melbourne metropolitan area, he seeks that the child live with the mother and spend time with him each alternate weekend.
The Independent Children’s Lawyer seeks orders for the child to live with the mother, for the child to spend time with and communicate with the father for three weekends in each school term from 3:00pm Friday until 3:00pm Sunday (or 3:00pm Monday if a non-school day), and for a period of 10 days in each school holiday period and during the summer holidays.
The issues to be decided in this case are:
A.Where and with whom [X] should live; and
B.How much time should [X] spend with her non-resident parent?
Background
Mr Stuckey was born on … 1971 and is therefore now 48 years old. He was born in the Country V and immigrated to Australia in … 1999. He works in labouring. He lives in Suburb D. Mr Stuckey is in good health. He does not have any other children.
Mr Stuckey has repartnered with Ms E (“Ms E”). Mr Stuckey and Ms E have been in a de-facto relationship since December 2016. Ms E has two adult children who live independently from her.
Ms Ferrier was born on … 1977 and is therefore 41 years old. She is currently engaged in home duties. Ms Ferrier lives in Town A. She has two other children, namely Ms F aged 22 years (“Ms F”) and [C] born … 2016 (“[C]”).
The parties met in approximately 2009. Their relationship was brief, lasting for approximately six months on the mother’s evidence and four weeks on the father’s evidence. The mother alleges the parties separated as a result of a family violence incident.
Approximately two to three months after separation, the mother informed the father that she was pregnant. The parties reconciled for a few months, however they did not formally live together in a de facto relationship. They separated on a final basis in about April 2010 when [X] was three or four months old. [X] is the only child of their relationship.
Following separation, there were no formal parenting arrangements in place for [X] although she lived with her mother and spent time with her father. By the time [X] was two years old, Mr Stuckey was spending time with her each alternate weekend from Friday afternoon to Sunday evening.
In July 2014, the mother decided to leave her rented home in Suburb W following what she claims was an incident of family violence perpetrated by the father.
Ms Ferrier left her Suburb W home without securing new accommodation. She intended to stay with friends and in short-term accommodation until she found a new place to live. However, Ms Ferrier and [X]’s living arrangements then became unstable for approximately a year and her mental health went into decline. During this period, they stayed in hotels, emergency accommodation and occasionally with friends.
In early 2015, the parties agreed to a temporary reversal of the parenting arrangements that were then in place, so that [X] lived with her father and his then partner in Suburb Y, and spent time with her mother every second weekend. This arrangement lasted from about February to May 2015 on the mother’s evidence and 28 February to 19 June 2015 on the father’s evidence. It is the father’s evidence that the mother simply did not return [X] after a weekend in June 2015 and told him that [X] would be living with her from then on.
Ms Ferrier secured accommodation in Suburb G in about September 2015. However, this arrangement was transitional until permanent housing became available. [X] went to school in Suburb G and spent time with her father each alternate weekend during this time.
Mr Stuckey cared for [X] while Ms Ferrier was in hospital giving birth to her son [C] in … 2016.
In August 2016, Ms Ferrier moved to Town A with [X] and [C] without informing Mr Stuckey of the move. Ms Ferrier’s evidence is that she did not seek housing specifically in Town A, but that the Department of Housing told her that if she selected particular locations in her application, there would be a greater chance of securing permanent accommodation sooner.
Ms Ferrier was offered a house in Town A and she accepted it readily as, she says, she was eager for her and [X] to be settled. She, [X], and [C] have lived in Town A since this time.
Since moving to Town A, [X] has spent time with her father for three weekends in each school term from 3:00pm Friday until 3:00pm Sunday (or 3:00pm Monday if a non-school day), for a period of 10 days in each school holiday and during the summer holidays. That time is spent pursuant to Court Orders.
Procedural History
This matter commenced in the Federal Circuit Court of Australia with Mr Stuckey filing an Initiating Application, Affidavit in Support and Notice of Risk on 14 July 2015.
The matter first came before me in the Duty List on 3 August 2015, when I made a location order to ascertain the whereabouts of the mother and child. The matter was then adjourned for Mention on 26 November 2015.
On 26 November 2015, Final Orders were made by consent providing for the parties to have equal shared parental responsibility for [X], for [X] to live with the mother and spend time and communicate with the father each alternate weekend, half of school holidays and at other times as agreed between the parties in writing.
On 29 August 2016, Mr Stuckey filed an Initiating Application, Affidavit in Support, Notice of Risk and Contravention Application. He sought a further location order as he did not know at that time where [X] was living.
The matter came before me in the Duty List on 14 September 2016 and I made a location order to ascertain the whereabouts of the mother and child. I otherwise adjourned the matter for Mention on 13 December 2016.
On 9 December 2016, the Mother filed a Response, Affidavit in Support and a Notice of Risk.
On 13 December 2016, Interim Orders were made by consent for the child to live with the mother and spend time with the father for three weekends in each school term from 3:00pm on Friday to 3:00pm on Sunday, and for ten days in each school term holidays and the long summer school holidays. I ordered the appointment of an Independent Children’s Lawyer and the preparation of a Family Report. I otherwise adjourned the matter for an Interim Defended Hearing on 1 June 2017.
On 1 June 2017, further Interim Orders were made by consent for parenting arrangements over the long summer school holidays. I made orders for the mother to file an Amended Notice of Risk within 14 days, a s69ZW order, orders for changeover arrangements, and for the preparation of a second Family Report. I otherwise adjourned the matter for Final Hearing on 26 April 2018.
The mother filed an Amended Notice of Risk on 26 July 2017.
On 26 April 2018, the matter was not reached and was adjourned for Final Hearing with priority on 12 July 2018.
Final Hearing commenced on 12 July 2018. The mother and father’s evidence was heard on 12 and 13 July 2018. I adjourned the matter part-heard for Final Hearing on 26 October 2018 to receive the family report writer’s evidence.
The father appeared in person. The mother and the Independent Children’s Lawyer were represented by counsel.
Witnesses at trial included the father, the mother and the family report writer, Dr B (“Dr B”).
Following the conclusion of evidence and after hearing submissions from counsel on 26 October 2018, I reserved my decision.
Issues and Evidence
It is not possible to refer to every fact and/or matter raised in the trial of these proceedings and nor is it necessary to do so. The parties should understand that I have had regard to the whole of the evidence, including my notes, the trial transcript and the demeanour of the parties at trial, and if I have not referred to a particular fact or matter it does not mean that I have not considered it.
Issue A: Where and with whom should [X] live?
[X] has lived with her mother for almost all her life. She and her mother have lived in Town A since August 2016. Ms Ferrier wishes to remain living in Town A with [X].
Mr Stuckey lives in Suburb D and has done so for some time. He wants either for [X] to live with him in Suburb D and visit her mother in Town A, or for Ms Ferrier to move back to Melbourne with [X] so that [X] can spend regular and more frequent time with him than is currently practicable given the distance between the parties’ residences.
The current situation is that Mr Stuckey spends time with [X] pursuant to Interim Orders made by the Court on 26 October 2018, those Orders simply declaring that the Orders made by consent on 1 June 2017 remain in full force and effect.
The Orders of 1 June 2017 provide for [X]’s parents to share responsibility for her care and welfare, for her to live with Ms Ferrier and to spend time with Mr Stuckey for three weekends in each school term, for ten days in each of the school term holidays, and for two periods of 10 days in the long summer holidays in 2017-18.
The father’s evidence
The father’s evidence is found in his Affidavits sworn 26 August 2016 (“the father’s first Affidavit”), 3 April 2017 (“the father’s second Affidavit”), 18 April 2018 (“the father’s Trial Affidavit”) and in his oral evidence given at trial. He also filed an Affidavit sworn by his partner, Ms E, on 18 June 2018, but he did not rely on that Affidavit at trial and I have not considered it.
In his first Affidavit, Mr Stuckey sets out the history of the relationship, deposing that while the parties had already separated when [X] was born, they had remained amicable and he was present at [X]’s birth.
Ms Ferrier was living in Suburb W with her father and Ms F at that time.
He describes a graduated regime of time with [X] beginning from her return from hospital, and which extended to alternate weekends from Friday to Sunday when [X] turned two in 2012. That regime then continued until 2014, when [X] turned four.
In 2014, Mr Stuckey deposes that Ms Ferrier’s “behaviour changed dramatically”. It is his evidence that she lost a lot of weight, that she became difficult to contact, and that she appeared erratic at changeovers.
He says that his time with [X] became less regular and predictable, and that the mother began making statements that caused him to be concerned about her mental health. For instance, it is Mr Stuckey’s evidence that the mother would claim that the house she and [X] were living in was infecting them, and that she had been pulling worms out of her and [X]’s hands.
He says further that the mother’s care of [X] became less consistent and that when he commented on one occasion about [X]’s dishevelled appearance, Ms Ferrier “went into a rage” and asked him to leave, refusing him contact with [X] for the subsequent two weeks.
It was at this time, in early 2014, that [X] was diagnosed with recurrent urinary tract infections, which still plague her today, although not as acutely as they have in the past.
The father deposes that he was concerned that the mother did not give [X] the antibiotics prescribed for her after he took her to the doctor, and he became seriously concerned about the mother’s care of [X]’s hygiene, as the infection returned.
It is the father’s evidence that despite his time with [X] being “erratic” during the first 8 months of 2014, he was able to keep in contact with Ms Ferrier, and they were able to reach an agreement “that allowed me frequent if inconsistent time with [X]”.
In September 2014, says Mr Stuckey, the mother told him she wanted to take [X] on a “road trip” to Queensland, but he told her that he would not consent to such a trip because he was concerned about her and [X]’s safety. Ms Ferrier did not take that trip.
He deposes that by the end of 2014 “it was clear that the Mother was not coping with caring for [X]”. He says that she had no fixed address at that time and that she was “couch-surfing” with friends or staying in motels or caravan parks, and at one stage, he believes, they were sleeping in the mother’s car.
[X] was diagnosed with an iron deficiency in early 2015, and after a discussion between her parents, she went to live with her father in Suburb Y with her mother’s consent.
He deposes that [X] settled into her room at his house, that she was enrolled in kindergarten with her mother’s consent, and that she “began to establish roots in the local community”.
Mr Stuckey says that [X] lived with him from late February to late June 2015, and that she spent irregular time with her mother by agreement between the parties. It is his evidence that Ms Ferrier often changed or cancelled arrangements “at the last moment”.
[X] was to begin her first day at kindergarten on 22 June 2015. She was to spend the weekend of 20-21 June with her mother, but Mr Stuckey deposes that on the afternoon of 21 June, the mother called him to say that “[X]’s fine now” and that she would not be returning her to his care. It is his belief that that decision was based on a change in Centrelink entitlements whereby his entitlements as [X]’s primary carer had increased and Ms Ferrier’s had decreased.
Mr Stuckey deposes that he did not know where [X] and the mother were living and that he was very concerned for [X]’s welfare. He then consulted a lawyer and commenced proceedings in this Court on 14 July 2015.
Between that date and the first hearing date of 26 November 2015, the father was able to contact the mother through the maternal grandmother, and he spent time with [X] in that period, albeit that he says the arrangements were inconsistent and somewhat difficult.
The parties entered into Final Orders by consent on 26 November 2015.
It is the father’s evidence that as a result of those Orders, and for the following seven months or so, he “was able to enjoy time with [X] without concern that her time with me would be denied by her mother”. Ms Ferrier and [X] were living in emergency accommodation in Suburb G at that time.
Apart from [X] being diagnosed for a misalignment in her skeleton feared to be scoliosis, Mr Stuckey deposes to that period being a stable one for [X].
However, in late June 2016, it is his evidence that Ms Ferrier ceased to answer his calls and messages, and that on 9 July 2016, he received a telephone call from the mother informing him that she and [X] were now living in public housing in Town A, some 300 kilometres and three-and-a-half hours’ drive away from his home. He deposes that when he asked the mother how the parties were to operate the Orders made by consent some eight months earlier, she replied “good luck trying to enforce them”.
Mr Stuckey insisted on the Orders being followed and, after arranging for his first contact period after the mother’s move, he describes [X]’s time with him being cut short so that she spent 5:00 p.m. on Friday to 2:00 p.m. on Sunday with him on the weekend of 22-24 July 2016. On that occasion, the mother had taken [X] out of school at 1:00 p.m. so as to arrive at the designated changeover point at Suburb H Station at 5:00p.m. on the Friday.
Mr Stuckey deposes to his concerns about [X]’s presentation on that occasion, stating that when he arrived at the changeover point, [X] and her brother [C] were sitting in the mother’s locked car which was “full of clothing and food”. Upon the mother’s return to the car, the father says that he was informed that the mother had gone to buy underpants for [X] as she was not wearing any. He deposes further that [X] was not dressed appropriately for the weather and that she had told him that she liked being in his car as it was warm and she “was always cold”.
The father reports that [X] told him on that weekend that her mother had “moved far away to get away from people calling her and to be far from you”.
At that time, Mr Stuckey says he did not know [X]’s address or the name of the school she was attending and he expresses serious concerns about the mother’s capacity to care for [X] properly.
He deposes that [X] told him she ate mostly boiled eggs and mashed potatoes while in her mother’s care, and he was very concerned about [X]’s hygiene, as she was not used to bathing regularly and was often provided to him dressed in inappropriate and soiled clothing. He describes feeling “embarrassed” for [X] when he picked her up from school[1] due to her dishevelled appearance.
[1] I note that this evidence is contrary to the father’s evidence elsewhere in his first Affidavit where he complains that the mother refuses to tell him where [X] is enrolled for school.
Mr Stuckey deposes that after Interim Orders were made on 26 November 2015, there was a consistent regime in place to govern the time he spent with [X], although it is his evidence that Ms Ferrier has breached those Orders on multiple occasions.
He says that if the mother is unwilling to return to the Melbourne Metropolitan Area, the Court should make Orders for [X] to live with him. He says he has a five-bedroomed house, and that at the time of swearing his first Affidavit, his sister and brother-in-law and their two children were living with him. He says that [X] would “have her own room and be surrounded by a close and loving family”.
The father deposes that he would be able to provide a stable life for [X] and would ensure that she attended all her medical appointments.
In his second Affidavit, under the heading “Family Violence”, Mr Stuckey concedes that “I have made some bad choices in the past for which I am sincerely remorseful”. He does not elaborate on what those choices were, but he denies ever being violent towards the mother.
He says that the parties sometimes argued after their relationship broke down about what he perceived as the mother’s neglect of [X]’s hygiene and her not having [X] ready when the father arrived to collect her. Mr Stuckey deposes: “I could not understand why the Mother just could not have [X] ready to leave the moment I arrived”.
On another occasion, one where the mother had deposed that he had kicked one of her cats on his way out of the house after an argument involving him, the mother and a friend of the mother who was in the house at the time, he says “…the situation was getting way out of control, I believe both the mother and her friend were under the influence of alcohol so I left the Mothers residence as quickly as I could and on the way out I walked into one of the cats which I did not see”.
He rejected the mother’s Affidavit evidence that she was afraid of him, saying that she was more than happy for him to collect [X] from the various places she and [X] were staying during the year that they were essentially homeless. He denies that the mother was forced to leave her accommodation in Suburb W because of his abusive behaviour.
Mr Stuckey then sets out in some detail his concerns about the mother’s neglect of [X], saying that she had come to him unbathed, with her hair matted, and that she had had scabies and head lice at various times.
He refers to the mother’s Affidavit sworn on 9 December 2016, which sets out the mother’s concerns about what she perceives as [X]’s sexualised behaviour when she was three to four years old, and her actions in having [X] seen by a paediatrician. Mr Stuckey denies any inference that might be taken in relation to him having perpetrated sexual abuse upon his daughter.
I note that my reading of Ms Ferrier's Affidavit in this regard did not imply that Mr Stuckey was responsible for any sexual abuse. It simply says that she became concerned about [X]’s behaviour and persistent urinary tract infections, and sought the advice of the paediatrician who made a notification to the Department of Health and Human Services (Child Protection) (“DHHS”). DHHS told Ms Ferrier that [X] had made no disclosures when interviewed by the SOCIT team, and their file was closed soon thereafter.
Mr Stuckey clearly takes offence at Ms Ferrier’s recounting of this process, and says that [X] was made available to him for contact throughout that period, which, he says, would not have happened if Ms Ferrier had genuinely thought he was responsible for abusing [X].
Mr Stuckey then sets out again his concerns about Ms Ferrier’s care of [X], referring specifically to the mother not following the advice of paediatrician Dr J, at the Royal Children’s Hospital in late 2016 in relation to treatment for [X]’s infections, incontinence and soiling.
He complains that he loses income every time he takes [X] to see a doctor, only to have the mother fail to follow up with prescribed treatment.
Mr Stuckey deposes that [X] spends time with her paternal grandparents and her aunt’s family during the time he spends time with her, and that her cousins especially look forward to seeing her. He says his time with [X] “is certainly not enough, but we try to make most of it (sic)”.
It is Mr Stuckey’s evidence that, as he had no part in Ms Ferrier’s decision to move to Town A, she should not use the fact that [C] is affected by [X]’s need to travel to spend time with him as an excuse to curtail his time with [X]. He says that, as Ms Ferrier’s father also lives with her, [X] and [C], he should take care of [C] while the mother drives [X] to the changeover point.
He says that his application to have Ms Ferrier return to Melbourne with [X] “is the only way I can have more involvement with the child, her school and social life, this is the only way I can be more observant of [X]’s wellbeing while she is in the Mother’s care […]”.
In his Trial Affidavit Mr Stuckey describes [X] as having matured over the previous twelve months, and says that he and she now have enjoyable conversations “on various science and history topics”.
However, he is still concerned about her welfare in Ms Ferrier’s care, saying that [X] is often absent from or late to school.
Mr Stuckey says his concerns about Ms Ferrier’s capacity to care for [X], and to follow the advice of professionals, have not abated, and that [X] is still suffering from urinary tract infections, although he says that her incontinence issues had improved in the previous six months.
He also repeats concerns for Ms Ferrier’s mental health and her ability to be consistent in taking medication and seeing counsellors.
It is the father’s opinion that [X] would settle easily into his household if the Court were to accede to his application for her to live with him, and also into the school he proposes for her, which is the school attended by her paternal cousins.
He says that [X] has a “very good” relationship with his partner, although it is his clear evidence that it would be he who takes the lead in caring for [X]. He also says he would arrange dance classes for [X] and that her returning to Melbourne would “permit me to be more involved in [X]’s upbringing”. He complains that it is “almost impossible” for him to attend any of [X]’s school activities in Town A, saying that it would require him to take a full day off work which would mean he did not get paid as he works as a casual employee.
Mr Stuckey deposes that “(it) breaks my heart that I can’t be there for [X] to attend her important moments. Discussing her achievements on the phone is not the same as being there in person for neither one of us (sic)”.
At trial, Mr Stuckey confirmed that he was relying on his filed Affidavit material, on [X]’s school reports for the first semester of 2018, a report from the Royal Children’s Hospital, and the Victorian Housing Register Priority Transfer Guideline.
Under cross-examination by counsel for Ms Ferrier, the father confirmed that his position was that he sought orders for [X] to live with him in Suburb D if the mother remained living in Town A, but that if she relocated to the Melbourne Metropolitan Area he would agree to [X] remaining in her mother’s care because he would be able to “have more input in [X]’s wellbeing and I would be more in touch with [X]. We would be able to get her to school and see [X] more often.” He stated that he would not be so agreeable if the mother were to relocate to Melbourne’s far western suburbs.
When asked why he was proposing that [X] spend two weekends per term with her mother if she were to be living with him, Mr Stuckey replied: “Not particular reason. I thought that would be appropriate”.
After being pressed on that issue, Mr Stuckey said: “No particular reason. That’s – I thought it was – two is enough – enough”.
He was reminded that he was currently spending three weekends per term with, [X] and that that regime appeared to be working for both him and [X]. Mr Stuckey agreed that the regime was working but “it’s not what I want”. He accepted that it was very difficult for [X] to spend more time with him while she lives in Town A in that the travel is tiring.
He then agreed with counsel that if [X] were to live with him in Suburb D, she should spend three weekends per term with her mother in Town A.
Mr Stuckey conceded that Ms Ferrier has been [X]’s primary carer for almost all her life. However, it was his evidence that he saw [X] every two or three days from her birth until she was one year old, and that she had been spending overnight with him on some weekends from when she was seven or eight months old. He agreed that he had been living with his parents at that time and that he had found his own accommodation in 2012 when [X] was about two years old.
He confirmed his affidavit evidence that he had been solely responsible for [X]’s care during her time with him from her second birthday, when she began to spend each alternate weekend from Friday to Sunday with him.
Mr Stuckey was taken to the mother’s evidence about his behaviour at changeovers while she was living in her rental property in Suburb W, and while he denied that he had been aggressive on those occasions, he conceded that he had criticised the mother about [X]’s general presentation and the way she was dressed.
He described one incident when he had arrived at the mother’s home to collect [X] in 2014, saying [X] had opened the door dressed in inappropriate clothing for the weather, with her top being wet and her hair unkempt. He said it was not the first time [X] had not been ready for him to collect when he had arrived and he had been forced to wait for up to 20 minutes before taking her for the weekend. Indeed, it was his evidence that “those sorts of problems” started when [X] was about three.
He denied screaming at Ms Ferrier on those occasions, although he conceded that he had “just questioned why [X] wasn’t ready”.
It was his evidence that it was up to [X]’s parents to ensure that she was properly dressed for particular weather conditions and occasions, and that [X] had been much too young to make those decisions herself. The following exchange then took place:
Counsel: Okay. Did the mother try and reason with you and say, “Listen, it’s just – they’re just clothes. Don’t worry about it. She is fine. Just take and go and have – enjoy your time”?
The father: Yes, she said something between those lines, and she said to me, I remember, that [X] was getting ready, herself, for me.
Counsel: Yes?
The father: And I said, “Look, I understand that. That’s fine. I do respect that for my daughter. I love her. But she is too young to know what – what to wear and how to dress. So you should know better to – – –”
Counsel: This is what you said to the mother?
The father: That’s right.
Counsel: Okay?
The father: And I said “You should know better and put the right clothes on, you know, clean clothes, because I’ve been looking forward – collecting my daughter, having my daughter and – – –”
Counsel: Did you tell the mother that she was – at any of these times, that the mother was stupid, crazy?
The father: I did mention, yes.
Counsel: You did. Okay?
The father: Yes, I did.
Counsel: And did you say that in a nice, calm tone, or did you raise your voice, or how was that?
The father: Well, that was during the argument between us, yes.
Counsel: Okay. You called her stupid and crazy?
The father: Yes, I called her a crazy.
It was the father’s evidence that there was only one occasion on which such an altercation took place, that being the occasion when he had entered Ms Ferrier’s home while her friend Ms L had been there.
He denied that he had flown into a rage on that occasion, or that he had screamed at or stood over the mother, although he admitted that [X] had been crying “because the two of us were arguing”.
He conceded that he had been surprised when Ms L entered the room from the back of the house, and that he had told her not to become involved in the disagreement between him and Ms Ferrier.
Mr Stuckey admitted that when Ms Ferrier asked him to leave, he had kicked the cat on his way out of the house as it had walked in front of him as he was leaving, but he denied doing so deliberately.
The father agreed with Counsel that he always insisted that [X] have a shower when she arrived at his home for weekend time with him. He conceded that the mother had told him there was no necessity for that, and denied that he had simply dismissed her concerns. He then went on:
Well, the first – to answer your questions – is why was I giving [X] showers every time, is because she was not clean. Her hygiene was not up to the level that it should be. She did not smell nice. Her hair looked terrible, it looked oily. Her clothes were clean. So the first thing I do when she gets home, I give her a good bath, put the clean clothes on. And to mention that she has been coming to my place, I think, three times with the lice…
Mr Stuckey then clarified that this situation had occurred in 2014 and that it was no longer the case.
When it was put to him that Ms Ferrier’s evidence was that she had left her rental property in August 2014 because he had often been aggressive and she had been afraid of him, Mr Stuckey simply replied: “That’s what she said”. It was his evidence a few minutes later that he believed that Ms Ferrier had left her rental property in Suburb W “because she wasn’t paying the rent and the way she was treating the property”.
Mr Stuckey then stated:
It was at that stage she was away – at one point she was away for three days. I couldn’t get in touch with her. [X] was with her grand – grandfather at home, and when I come to pick up [X], I did ask Ms Ferrier’s father where is Ms Ferrier, and she goes, (sic) “I have no idea, but if she continues with this, you come and – you come and get [X].” At that – that – in that period I believe Ms Ferrier was going through some very, very strong mental issues, because she has been telling me that [X] has got worms and then she has been pulling the worms out of her skin… So I was really shocked with those – those things, and I said, “Well, come on. You’re joking. What worms?” “No, no, no, no, can’t you see? Can’t you see?”
Mr Stuckey said that it was in this context that he had told Ms Ferrier that she was “a crazy”.
When asked by counsel, the father conceded that he blamed the mother for her homelessness between about August 2014 and September 2015. He said that until that time, “everything was perfect. It was functioning.” The mother had had a job, [X] had been well looked after, the house she was living in was relatively new, and “I was happy with it”.
However, Mr Stuckey’s evidence was that at that time “suddenly, things started to go down… And crumbled.”
When asked, he conceded that he had not been paying child support to [X]’s mother at that time because, he said, he had not been working.
It was his evidence that when [X] was living with him for the few months from February 2015, he was still living with his previous partner and that he was unemployed at that time.
He said that in early 2015 he had not known where [X] was living and had noticed at changeovers that she did not look well. In fact he said that “both of them were – they looked terrible”. He had suggested that [X] come to live with him until the mother found appropriate accommodation for herself and [X], and the mother had agreed to that arrangement. It was his evidence that that arrangement was not time-limited but depended on when Ms Ferrier found appropriate accommodation. He conceded that the mother had reminded him on several occasions during the time [X] was living with him that the arrangement was temporary.
He agreed that he had attended Centrelink soon after [X] came into his care in order to make enquiries about the childcare rebate he might be entitled to when she began childcare, stating he had then been informed that he was entitled to Parenting Benefits as [X]’s full-time carer. He agreed further that once he began receiving those benefits, he was in receipt of about $500 per week from Centrelink.
Mr Stuckey’s evidence was that he believed that Ms Ferrier took [X] back into her care in mid-2015 solely because her own Parenting Benefits had been stopped.
Under further cross-examination, when it was put to him that he “didn’t really care where she (Ms Ferrier) was living” while [X] was in his care, Mr Stuckey replied: “No. To be honest, no, I didn’t. […] [X] was with me and only thing I care about is my daughter.”
It was his evidence that after [X] returned to her mother’s care he was not aware of where Ms Ferrier was living until she moved to Suburb G in September 2015, although [X] had returned to her care by June 2015. He said he was unaware that the Suburb G accommodation was transitional housing until he read that information in Ms Ferrier’s affidavit material filed in these proceedings. He said he was also unaware that Ms Ferrier was pregnant when she moved to Suburb G.
He confirmed that he had looked after [X] while Ms Ferrier was in hospital for [C]’s birth in … 2016, but could not remember the date of [C]’s birth. The following exchange then took place:
Counsel: You don’t know when [C] was born?
The father: Well, I’m not the father, why would I remember that?
Counsel: Well, it’s [X]’s brother?
The father: Half-brother.
Counsel: Half-brother?
The father: Half-brother.
Counsel: Okay. So not really a brother?
The father: It is a brother. Half-brother.
Counsel: Half-brother?
The father: They have the same mother. That’s all.
While Ms Ferrier and [X] were living in Suburb G, a period of about 11 months, Mr Stuckey agreed that his time with [X] was relatively stable.
In the context of exchanges about the lack of stability in [X]’s accommodation while her mother was homeless, and again after some fairly robust cross-examination, Mr Stuckey was forced to concede that even if [X] had stayed in his care, she would have had to move towards the end of 2015 because his relationship with his former partner had broken down and they had been living in his former partner’s home. He himself had gone to live with his sister upon the breakdown of this relationship, and his own accommodation, while reasonably secure at that time, was therefore neither permanent nor ultimately satisfactory for him, even in circumstances where [X] was not living with him.
Nevertheless, he could not understand why the mother had accepted permanent accommodation in Town A, saying:
Because the reason why is … mother had plenty of time to look for the property somewhere closer. […] So there was – there was no rush – there was no rush.
After some further cross-examination, Mr Stuckey was forced to concede that he did not know how long Department of Housing waiting lists were, and that he could not dispute Ms Ferrier’s evidence about obtaining secure accommodation earlier if she were prepared to live anywhere in Victoria.
He reluctantly conceded that [X] was now settled in Town A and that she had friends at school, but it was his view that [X] had been coached by the mother when she told the Independent Children’s Lawyer about a month before trial that she was happy at school. This was the father’s view despite the fact that it was he who had taken [X] to see the Independent Children’s Lawyer after taking her to a hospital appointment.
He further conceded that [X] had “moved on” from where she had been when she was relocated from Suburb G to Town A in 2016, although he would not concede that [X] was “doing all right” in Town A, saying: “I don’t – I wouldn’t know”.
Nevertheless, he confirmed his affidavit evidence that he was pleased with [X]’s progress school in Town A, although he was concerned about the number of times she had been absent or late.
In relation to [X]’s health, Mr Stuckey stated than he blamed Ms Ferrier for [X]’s ongoing urinary tract infections, saying that he believes that she “neglects [X]”, and that she “doesn’t encourage [X] to go to the toilet, or doesn’t change her clothes when [X] has an accident”.
He was asked about an occasion when he had picked [X] up from school when her clothes had been wet, and conceded that he blamed the mother for that situation, even though [X] had been at school all day. He did not blame the school for [X]’s wet clothes. It was his evidence that [X]’s condition was the mother’s fault, even though she had not been there on that occasion.
He was also critical of the mother because [X] had not been wearing underwear when he picked her up from a hospital appointment and took her to meet the Independent Children’s Lawyer about a month before trial. Indeed, throughout his evidence, he was critical of the mother about [X]’s care in general, and about her hygiene in particular.
He was loath to concede that the referral from [X]’s general practitioner to the Royal Children’s Hospital did not say that Ms Ferrier had been negligent in treating [X]’s urinary tract infections, and when asked whether Ms Ferrier had, in fact, been treating [X]’s infections, he said “well, not very well”.
He was adamant that [X]’s recurrent infections had been caused by bacteria in her faeces, and that the mother had been negligent in ensuring that she wiped herself properly and that she changed her clothes after having “any incident or accident in the underwear”.
Nevertheless, it was his evidence that he had spoken to [X]’s doctors at the Royal Children’s Hospital on only three occasions since 2016, and he could not recall the last occasion when he had spoken to them, although “it wasn’t this year”.
When asked why the occasion when [X] was not wearing underwear was not mentioned in his Trial Affidavit, Mr Stuckey said: “You can ask my daughter. Well, you can always ask my daughter.”
The following exchange then took place:
Counsel: So we going to accept what your daughter says is what should happen and that’s what happens correct? Should we do that? Okay?
Mr Stuckey: Regards – regards….
Counsel: She says she wants to stay living with her mother.
Mr Stuckey: Regards to underwear, she – regards to underwear, she will give you the right answer.
Counsel: So we are going to listen to her on that point, but not the point about where she wants to live?
Mr Stuckey: I didn’t say that.
Counsel: Should we listen to her, where she wants to live?
Mr Stuckey: Of course.
Counsel: We should listen to her?
Mr Stuckey: Take – take that into – into – into concern, of course.
Counsel: Okay. She says – she has told – on 31 May she told the Independent Children’s Lawyer, “I want to stay living with mum”.
Mr Stuckey: For six years.
Counsel: So let’s have her living there for six years[2]?
Mr Stuckey: That’s – that’s – that’s the thing I have issue with: six years with mum, and then six years with dad. I would say that’s – she really doesn’t understand the timeframe things. If she has said, “yes, I want to live with mum”.
[2] Counsel for the Independent Children's Lawyer had informed the court that [X] had told her instructor that she wished to live with her mother for the next six years and then with her father for the six years after that.
When counsel pointed out that Mr Stuckey had deposed that he was very happy with [X]’s progress at school, Mr Stuckey said that nevertheless, he did not think [X] understood what it would mean to live with her mother for six years and then with her father for six years. I note, in this context, that at the time [X] met with the Independent Children’s Lawyer, she was eight years old.
Counsel then turned to the relationship between [X] and [C].
After criticising the mother for becoming pregnant while she was homeless, Mr Stuckey said that while he understood that it was important that [X] had a half-brother, “that’s irrelevant because when I started this court case she did not have a brother – half a brother”.
He did acknowledge that [X]’s relationships with [C], and with her sister Ms F, were important, although it was his explicit evidence that he thought her relationship with her paternal cousins was equally important.
When it was pointed out to him that his proposal would see [X] spending time with [C] on only two or three occasions per school term, he responded that that was how often she currently sees her paternal cousins, before again saying that he thought [X]’s relationship with her cousins was of equal importance to her relationship with [C] and Ms F.
When asked whether he thought that a situation where [X] lived with him and [C] lived with the mother was appropriate, Mr Stuckey said: “I do think – because, like I said before, when I started these proceedings [X] did not have a half-brother”. He said that [C]’s existence “interferes” with these proceedings, and makes it “harder” for him, but otherwise “that doesn’t – that doesn’t change a – change a thing. This – this doesn’t change the reason why I’m here”.
He understood that the court would consider [X]’s relationship with [C] in coming to a decision in these proceedings, but only under further probing cross-examination did he concede that that relationship was significant for [X], although he stated again that he did not think it was more significant than the relationship [X] has with her paternal cousins.
Counsel then turned to concerns the father had expressed in affidavit material about [X]’s school absences since she had been living in Town A and attending [O] Primary School.
Mr Stuckey acknowledged, albeit somewhat reluctantly, that some of those absences were the result of [X] having to leave school early on several Fridays so that she could attend the changeover point on time to spend time with him pursuant to court orders.
He was further forced to concede that [X] had had to attend appointments at the Royal Children’s Hospital on several occasions, and that she had had dental appointments and other general practitioner appointments on others. He also agreed that a child was marked as late if he/she arrived five minutes late.
Nevertheless, it was Mr Stuckey’s evidence that “the mother should know better” and “get the child ready for school, for example, 10 minutes earlier so she can be there on time as – same as the other children”. He said that while it was a positive thing that [X]’s lateness record had improved over the time she had been at [O] Primary School, that record was “still not good enough”.
Despite the fact that he sometimes picked [X] up from school to drive to Melbourne to spend time with him, it was Mr Stuckey’s evidence that he had not yet arranged to meet with the school principal or [X]’s teacher to discuss her progress, although he had been in touch with the school by email on four occasions in the two years [X] had been at [O] Primary School.
It was his evidence that he had been to [M] Primary School in Suburb D on four or five occasions to speak with the principal and teachers about [X] attending that school. He said that he had chosen that school for [X], should she be living with him, because it was only five minutes from his home.
The father was taken to the report of Dr P, forensic psychiatrist (“Dr P”), dated 31 May 2017 in relation to the mother.
It was Mr Stuckey’s evidence that his concern about the mother’s mental health was that it “is going from good to bad to worse, then to better, then to worse. It’s up and down and that’s what concerns me. What’s going to happen next time when her situation or her mental state goes downhill?” He said if he could be certain that Ms Ferrier would take her medication, act on the advice of her support team, and that she would be “from now on to the level of the mother that’s going to take good care of my daughter, her daughter, I would be satisfied, but this (Dr P’s report) does not give me any guarantees”.
He acknowledged that Ms Ferrier’s mental health appeared to be currently stable, but could not see that if his proposal were accepted, and Ms Ferrier were forced to relocate to Melbourne with [X], that change may destabilise her mental health and cause it to deteriorate. When it was put to him that he was “forcing her into instability again” he replied: “I’m not forcing her to do anything because she was in stability in Suburb W”.
When it was pointed out to him that it was while she was living in Suburb W without any mental health supports that her mental health deteriorated so seriously, he said: “That’s right. Exactly the same thing can happen in Town A”.
The following exchange then took place:
Counsel: So up until 2014 when you say she was fine, no mental health problems at all, right, Mum, this is…
Mr Stuckey: Up to what year?
Counsel: 2013, you said?
Mr Stuckey: 2014 – 2013, I would say. Yes.
Counsel: Okay. Until that point, Mum is – you’ve never seen any indication of the mental health problem all. Correct?
Mr Stuckey: Correct.
Counsel: Okay.
Mr Stuckey: I mean, I did not spend much time with her mother, but the times of the changeover, everything seemed fine.
Counsel: Yes. Okay. And then there was the period between 2013 and 2015 or ’16, I should say – early 2016 when you say – or 2015 when she deteriorated mentally, so a two-year period?
Mr Stuckey: Yes.
Counsel: Which coincided with the time when she was – I will call – homeless. Do you understand?
Mr Stuckey: Yes, I do understand but what I want to say – she put herself in that position.
Counsel: Well that’s right. You’re blaming – you blame her for that?
Stuckey: Yes. Yes. Definitely.
Counsel: Okay.
Mr Stuckey: From being in stable position, owning the house, going homeless. Yes. I do blame her. There is no one else to blame.
Counsel: And then when she goes to Town A, strangely enough – and she’s stable. Strangely enough, all the mental health issues subside and she is a capable parent again, according to Dr P.
When taken to Dr P’s opinion that if Ms Ferrier continued to accept the advice of her medical and allied practitioners she was likely to maintain good mental health, Mr Stuckey replied as follows:
That’s what doctor says, but how many times the doctor saw Ms Ferrier and how many times does he need to see someone to write on the statement. I think he saw Ms Ferrier once. And that time, he stated here at page 5 top section:
There is no documented history of Ms Ferrier having been cautioned, arrested or charged with any offence. I have not been provided with any documented history of bonds, convictions or fines –
which contradicts with the fact that Ms Ferrier had interlock installed in her car for drink-driving which tells me that that appointment, Ms Ferrier didn’t tell all the things she supposed to tell the doctor so he can do his assessment properly.
When questioned further about Ms Ferrier’s current stability in Town A, Mr Stuckey stated:
I will tell you what. If she is doing any effort to – to do that, I do respect if she is doing any and I think that that’s good. That’s what needs to be done for – for the sake of our child.
Counsel then returned to the mother’s allegations that the father perpetrated family violence against her during and after their relationship.
When her allegation that he had grabbed her by the throat on one occasion was put to him, he responded: “Never happened. Haven’t touched her”. It was his evidence that the parties had only had one argument when “the voices raised and we were, sort of, like, yelling at each other. That’s probably why [X] was crying”. I took him to be describing the incident when Ms L was at Ms Ferrier’s home when Mr Stuckey arrived to collect [X].
However, Mr Q went on to describe another occasion as follows:
And there was one time when I came to pick up [X], Ms Ferrier was at home with a couple of her friends and, of course, [X] wasn’t ready and I did ask question why [X] is not ready and I had the reply, “Who are you to tell me that?” At that time, Ms Ferrier was wearing sunglasses in the house - inside the house. And I did ask – I said, “Why do you have sunglasses? Can you please take your glasses off. I want to see your eyes”. She said to me, “Who are you to tell me what to do?” And I believe she was under influence of alcohol or some other drugs because she was hiding her eyes. I mean, who wears sunglasses inside a house?
In terms of the practical arrangements that had pertained in the previous school holidays, Mr Stuckey said that although he had 10 days pursuant to Interim Orders, he had only had [X] in his care for six of those days, with [X] going to stay with her paternal aunt and her cousins for the other four days. He said he could not have [X] for the full 10 days because he had to go back to work. He denied that he had prioritised his work over [X] at that time, saying that he worked as a casual, and therefore did not get paid if he did not work. It was his evidence that if he took too much time off work there was a “big chance I’m going to lose my job and I cannot afford it”.
Mr Stuckey stated, when asked, that he had not told Ms Ferrier about that arrangement, but that he was aware that [X] might have told her. He did not seem to appreciate that it might be inappropriate for that information to have been conveyed via [X].
Under cross-examination by counsel for the Independent Children’s Lawyer, Mr Stuckey was asked several times to place himself in [X]’s shoes when considering such issues as him being critical of the clothing she wore, or of her not being ready when he arrived, or of the mother’s care of her in general.
When he answered questions in relation to those issues, counsel pointed out several times that he was answering from his perspective and asked him to respond from what he thought [X]’s perspective might be, or more precisely what message he thought he was sending to [X] when he made negative comments about her clothing.
Mr Stuckey responded as follows:
The thing is when I saw [X] the other day I told her she looks beautiful. I did not tell [X] directly that she needs to change the clothes. I said to her mother, so [X] did not give any message from me. The only message I send is the message to her mum, because I was talking to her mum; I was not talking to [X] and I did not ask [X] to change. I just told her mother that she should have had her ready.
In answering a question from the bench, the father conceded that [X] had been present, and had probably “overheard it” when he had criticised the clothing she was wearing and the fact that she was not ready when he arrived. He did not seem to think there was anything untoward about that behaviour.
Counsel asked him when he had begun showering [X] when she came into his care, and when he had ceased. Mr Stuckey responded that [X] had been about two years old, that the practice had begun when Ms Ferrier sold her home and moved to a rental property, and that he still showered [X] if she came into his care with her clothes smelling bad and/or her hair was “messy, knotted or not clean”.
Again he was asked to think about that practice from [X]’s perspective and the message he might be sending to her. The following exchange then took place:
Mr Stuckey: The message I was sending her she is not clean.
Counsel: How would you think she would have understood the message that she was not clean?
Mr Stuckey: I wasn’t thinking – I wasn’t thinking how she is going to understand. For me, more – most important thing is that - her hygiene and that she is clean, and how she’s going to understand that, it’s – I wasn’t even thinking how she’s going to understand that.
[…]
Counsel: Okay. I understand you didn’t think about the time, but I’m asking you to think about it now. From [X]’s perspective, what message were you sending her? What was she supposed to understand from your insistence that she had a shower as soon as she got to your house?
Mr Stuckey: The only way I can think of what message she would understand that – then Daddy wants me to be clean, he wants to shower me. You know. […] I changed her clothes – give her clean clothes after her shower. Put the clothes in the washing.
Counsel: So if Daddy wants her to be clean and puts her in clean clothes, what does that say to her?
Mr Stuckey: Daddy wants me to be clean and in clean clothes.
Counsel: What does that say about Mummy?
Mr Stuckey: I don’t know. My mum doesn’t give me – my mum doesn’t keep me clean enough? My mum doesn’t give me clean clothes. Because that’s – that’s the fact. That – that – I’m the one – why would I be doing it?
Mr Stuckey accepted that parents might have different standards of cleanliness for their children, and that his and Ms Ferrier’s standards might be different, but he then said that one of the reasons for his showering [X] was that she had recurrent urinary tract infections and that he was trying to keep her clean “because of that infection”.
It was pointed out to him that a few minutes earlier he had given evidence that he showered [X] if her hair smelled, or if there were stains on her clothing, and counsel asked: “I’m going to suggest to you that wasn’t simply a question of health, UTI prevention which made you want to shower her. It’s also about her appearance and how she looked to you. That’s right, isn’t it?” The following exchange then took place:
Mr Stuckey: No, not really. Not really. If – if she smelled fine – if she smelled fine, her hair was clean and, you know, washed, I would not shower her, because that shows me that she is clean. She does not need to be showered. But when you have a kid you love like anything in the world, comes to you and you know you can take better care of her, so why wouldn’t I shower my daughter?
Counsel: Do you not think that it might have been upsetting for [X] to know that you thought she was dirty, that you thought that her mother didn’t keep her clean enough?
Mr Stuckey: No, it was not upsetting to me at all.
Counsel: No, not for you, Mr Stuckey. For [X]?
Mr Stuckey: For – for [X]? It might have been. It might have been. But what I thought it was more important for [X] to get into a habit of being clean and looking after herself. That’s what – that’s my goal, every time she comes to me. But she doesn’t spend enough time – the time she comes, it’s not long enough for me to – to do anything with her, apart from the school holidays when she comes, every time she puts the weight on, she looks healthy, and then she goes home. Then when – yes.
Counsel: It’s really your view, isn’t it, that Ms Ferrier is a neglectful parent and is still a neglectful parent. That’s what you’re saying, isn’t it?
Mr Stuckey: Yes. I think she cares more about the younger brother [C] than [X]. […] I think that Ms Ferrier takes – puts herself more towards him and she has been neglecting [X]. Because I know before [X] was born that she told me she wanted to – baby to be a boy. She was hoping it to be a boy. If she - if it’s a girl, she said I will give it to her. I will give it to her. I want a boy.
Mr Stuckey then said that [X] had told him that she gets up each morning and gets her own breakfast while her mother is sleeping, and that her mother gets little sleep because [C] cries. He was, nevertheless, willing to entertain the possibility that it is common “for children of [X]’s age with much younger siblings to feel slightly left out or perhaps in favour of a much younger sibling”. He confirmed that none of that evidence is in any of his affidavit material.
Counsel then asked him how he thought it might affect [X] if she were separated from her younger brother. His response, first that “she won’t be separated from him. She will be seeing her brother on the weekends when she visits her mum”, and later stating: “I mean, how would that – how does it affect her now spending less time with the father?”
When the question was pressed and he was asked what impact it might have on [X] if she were no longer living with her younger brother on a day-to-day basis, Mr Stuckey replied: “I don’t think it’s going to have any impact, because when [X] is in my care and when she is on holiday, she doesn’t talk about [C]. She is having fun. […] So I don’t think she’s going to miss him that much, and, like I said, she’s not going to be separated from him forever. It’s not like she’s not going to see him ever again. She will see her brother, maybe in the future when he grows up a little bit when they can have a conversation and understand each other, maybe a little bit stronger bond”.
The following exchange then took place:
Counsel: What I’m suggesting you, Mr Stuckey, is that [X] may have picked up on the fact that you don’t see [C] as an important person in her life, and that may be why she doesn’t talk to you about him.
Mr Stuckey: Well, I did tell her – I did tell [X] that [C] is her half- brother. She said, no, he’s my brother. I said no, he’s half-brother. She did not understand that. I said, look, he would be your brother if you had the mother – same mother and same father. But [C] and you only have the same mother, and you have different fathers, so that’s why it’s called half a brother.
Counsel: Were those the words you used to her, that he’s half a brother?
Mr Stuckey: Yes, I did.
Counsel: How do you think that would have affected [X]?
Mr Stuckey: I don’t think it affected her all.
Counsel: Why did you need to tell her that?
Mr Stuckey: Because she needs to understand.
Counsel: Why does she need to understand that?
Mr Stuckey: Because that’s the way the – the world is. You don’t call someone brother and – if you’ve got different father and a mother.
Counsel: Well, maybe you don’t, Mr Stuckey?
Mr Stuckey: I don’t. I don’t.
On being questioned further, Mr Stuckey said that he had explained to [X] that her cousins were brothers because they had the same mother and father, but that she and Ms F, and she and [C] were half siblings because “you guys have the same mother but different fathers”. Mr Stuckey said that he could not see anything wrong in saying that to [X] because it was “correct and is true”. He denied that what he had told [X] implied that “her relationships with [C] and Ms F were less than the relationship between her cousins who are siblings”. He was adamant that [X] had not understood the conversation in those terms, because he had never said that her cousins were more important than her half siblings.
Counsel pressed the issue further, and asked what [X] might have understood as a result of that conversation. The father said “I really can’t give you the answer for that because I don’t know what’s [X] thinking regards to that matter”.
Counsel then turned to the question of how [X] might be impacted if she were to leave her mother’s care (“with whom she has lived for most of her life, apart from those few months in 2015”) and live with him. Mr Stuckey was that “it’s not just a few months. She has been with me every second weekend since she was eight months old”. I note that that evidence contradicts Mr Stuckey’s affidavit evidence that [X] had spent time with him every second weekend only after she had turned two.
Counsel put the question again, and the father replied: “She would probably show some improvements. I think she will be much happier and I think in the long-term, she actually, she – that would be a big plus for her”. He stated further that: “It’s not going to be a huge change because [X] is so comfortable every time she comes to my care. She feels like she’s at home”.
Counsel then put to him that there was a big difference between coming to stay with him and living with him permanently. Mr Stuckey agreed with that statement, saying that there would be “a lot more responsibilities”.
Counsel pointed out to him that he had again given an answer from his own perspective rather than from [X]’s, but Mr Stuckey said that he was simply answering her questions.
On that issue, I found Mr Stuckey to be almost entirely lacking in insight in relation to [X]’s feelings and her emotional needs, and to his part in any anxiety she might be feeling.
Counsel then turned to practical arrangements in relation to Mr Stuckey’s work if [X] were to live with him.
Mr Stuckey agreed that he had told Dr B that he worked on rosters which could not be changed, but stated that that was in relation to him taking time off to attend changeover. It was his evidence that if [X] were to be living with him his employers would understand that he would need flexible work arrangements, stating: “They have children of their own”. He acknowledged that he had not provided any evidence to the court that his employers would allow him to work flexible hours in those circumstances, and then said: “but I also don’t have evidence that says we cannot accommodate him”. He conceded that he had not spoken to his employers about the possibility of such flexibility if [X] came into his care, saying that there was no point in doing so because it might not happen. He was very confident that once he knew when [X] would be coming into his care, there would not be a problem and “it can be done in one day.”
When asked what would happen if such flexibility did not emerge, Mr Stuckey simply said that he would change his job and find employers who would allow him such flexibility. He did not think it would have a problem finding such employers, saying “why will they say no, because it’s just a commonsense, normal thing to do”.
I found his evidence on that issue naïve and unconvincing.
Counsel then referred Mr Stuckey to his Affidavit affirmed on 2 April 2017, in which he had not mentioned his new partner, Ms E. When asked why he had not done so when his evidence was that they had lived together for two years at the time of trial in mid-2018, Mr Stuckey replied that he could not give an exact date because he had not written it down as he “didn’t know it was going to be relevant”. He said that he and Ms E had been living together for more than a year and a half, and that they had been in a relationship for three years. It was his evidence that he had not referred to their relationship in his affidavit of 2 April 2017 because “at that stage, I did not consider that relationship serious. I was still – how can I put it – waiting to see how that’s going to …. (sic in transcript) and once we got serious, yes, that’s when we started living together”.
I note that if Mr Stuckey had been living with Ms E for more than a year and a half at the time of trial in July 2018, they must have been living together when he affirmed his affidavit on 2 April 2017. It appeared to me that he was simply making up his evidence on that particular issue as he went along.
In relation to his own mental health, after describing its current state as “very well”, Mr Stuckey conceded that he had told Dr B just a few months before trial that he had been suffering from anxiety, which he had said “was killing him”.
He conceded that he had had a panic attack after changing the company he worked for, and had called an ambulance because he thought he was having a heart attack. He minimised the significance of his panic attacks, saying that while they had been a problem, they had not been a big problem, and that his anxiety was related to the illness and subsequent death of his father. Other than the one occasion on which he called the ambulance, Mr Stuckey said he had not received any treatment for what his doctor had called “stress”, and that “over a period of time, I just learn to manage it”.
He denied that his anxiety level might rise if [X] came to live with him, saying that “the only thing that causes me anxiety is not knowing how my daughter is and where she is, and that’s the times when I was having anxiety. I didn’t know where my daughter is, I couldn’t get in touch with her and I knew the way her mother was. That’s the reason why was getting anxieties.”
I did not find his evidence on that issue either cogent or convincing.
On the issue of schooling, Mr Stuckey was aware that [X] had told the Independent Children’s Lawyer that she did not wish to change schools, as she had had to do so a number of times in the past. Nevertheless, when asked what he thought the impact of having to change schools again might be for [X], he said the following:
Kids are very adaptive to the new arrangements – much better than adults. So it would affect her, of course, changing and getting new friends, leaving old behind. But I don’t think it would be a big issue – her adjusting and making new friends. So over some period of time, she would adjust and she would be fine.
When counsel pointed out that [X] had some special needs in terms of her health problems, which might make a change in school more difficult for her than for most children, Mr Stuckey said:
No, I don’t think it’s going to be difficult for her. Like I said, she does not have anxiety anymore. I don’t see that on her. Incontinence – yes, she still struggles with, but it will stop once that UTI is gone. For sure. And yes, I don’t think it’s going to be a problem.
The following exchange then took place:
Counsel: So really what you’re saying is once she’s in your permanent care, everything is going to be fine, if I can paraphrase to that extent.
Mr Stuckey: I believe so, yes.
Counsel: Because really, what you’re saying, you, Mr Stuckey, is that the problems that [X] has – they are problems for which her mother is responsible.
Mr Stuckey: That’s – that’s correct.
Counsel: And once she is placed permanently with you, those problems will cease to exist.
Mr Stuckey: I’m – I’m a big believer, and I believe it will.
Despite having stated at the beginning of his evidence that he would be content for [X] to live with her mother should her mother relocated to Melbourne, Mr Stuckey confirmed that his current proposal meant that the task for the Court was to decide whether [X] lives with her mother in Town A or with her father in Suburb D.
Counsel then referred Mr Stuckey to his affidavit of 2 April 2017, where he had stated: “I’m not a violent person, but I have made some bad choices in the past for which I am sincerely remorseful”, and asked him what he had meant by “bad choices”. I note that this question had been asked earlier in Mr Stuckey’s evidence and that he had not answered it in any way satisfactorily.
In response to Counsel for the Independent Children’s Lawyer, Mr Stuckey was again evasive in his answer, saying that everybody has made some bad choices in life, and that he had not been referring to anything specific in his affidavit. He said he had simply deposed to “bad choices” because “nobody is perfect”.
However, upon being referred to the sentence “I’ve learnt my lesson and for the past 13 years I’ve never had any issues with the law”, it emerged that he had been charged with assault after a confrontation with “a couple of guys” although he was not convicted of any offence.
Under questioning from the bench, Mr Stuckey admitted that he had proposed that [X] spend only two weekends per term with her mother should she be living with him, simply because the mother had proposed that [X] spent two weekends per term with him should she be living with her. He agreed that proposal was a kind of “tit for tat” proposal.
At the end of his cross-examination, which finished at about 4:10 p.m. on the first day of trial, Mr Stuckey said that in place of a kind of re-examination of himself, he would like to read a statement to the Court. After some discussion between bar table and bench, it was agreed that he would provide a copy of his statement to each of Counsel for the mother and the Independent Children’s Lawyer, so that they could read it overnight and decide whether any of its contents might be objectionable.
Dr B accepted that had she known that Mr Stuckey intended that he and his partner would live together, it would have been important for there to be some evidence about the arrangements for that cohabitation. However, she had not known about that situation, and had therefore not addressed it in her report.
She agreed with Counsel that if [X] were to move back to Melbourne to live with her father, the issue of her being away from her mother, with whom she had lived for all but about four months of her life, would be a significant issue for [X] to deal with.
Dr B repeated her previous evidence that there is no win-win solution in this case, and that the best outcome possible would be the “least worst scenario”. She said there were several possibilities for a regime of time to be spent between [X] and her non-resident parent, including what she referred to as an “adapted shared care model”, under which [X] would spend the whole of each school term with the resident parent and the whole of the school holidays with the non-resident parent. Dr B said that over a year, such an arrangement would probably result in the same or similar amounts of time with each parent as an arrangement where [X] lived with one parent and spent time on two or three weekends per term and half school holiday time with the other. It was Dr B’s opinion that the current situation, that is, where [X] lives with her mother and spends two or three weekends per term plus school holiday time with her father, is “the least worst proposed option”, while an adapted shared care model would be “the least worst option” if [X] were to remain living with her mother, because it would reduce the travel considerably for her. She did not suggest that the adapted shared care model was “the ideal arrangement”.
At the end of Dr B’s cross-examination by counsel for the mother, I again asked Mr Stuckey if he wished to ask her any questions and he again declined the opportunity.
I then asked Dr B whether, if I made orders for Ms Ferrier to attend upon her general practitioner, or even consultant psychiatrist, every couple of months to monitor her mental health, that might ameliorate her risk of relapse.
Dr B responded that while such regular attendance would not necessarily prevent a relapse, it would be likely to identify the indicative signs of any relapse, and therefore ameliorate the risk. She said that if I were to make such an order, it would “certainly give more confidence in terms of long term stability”.
Dr B is a highly respected and experienced Family Consultant who has written many family reports and given evidence in many trials to support those supports.
I found her a witness of considerable force and she answered questions in a forthright and open manner.
However, the limitations of her second family report, acknowledged in some detail by her at trial, lead me to believe that she has placed more emphasis on the mother’s psychiatric history than on her current supports and parenting of [X].
While Ms Ferrier is engaged with medical and social supports, as acknowledged by Dr B, it is less likely that any relapse will be permitted to develop without treatment, and I will make orders which provide for her psychiatric/psychological issues to be monitored in a regular and appropriate manner.
The Law
An order about where a child should live is a parenting order under s.64B of the Family Law Act 1975 (Cth) (“the Act”).
The law about parenting orders is found in Part VII of the Act.
The objects and principles underlying Part VII are set out in s.60B and I set those objects and principles out here for the benefit of the parties:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA makes clear that when a court is making a parenting order, its “paramount consideration” must be the child’s best interests.
Section 60CC then sets out 16 separate factors that the court must consider when it is considering what orders to make in the child’s best interests, and I will address each of these factors in turn.
There are two “primary considerations” set out in s60CC(2) and they are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The question of what constitutes a “meaningful relationship” has been discussed in many cases before this court and the Family Court of Australia.
In Mazorski v Albright (2008) 37 FLR 518 Brown J said, at paragraph 26:
[…] a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one.
In other words, it is not the amount of time that a parent spends with a child that makes it “meaningful” – it is the quality of that time.
In Tait & Dinsmore [2007] FamCA 1383, Cronin J said, at paragraph 170:
To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child… Those adjectives mean that children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate with others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship.
There is ample evidence, in affidavits sworn by the parties, in the family report, and in oral evidence given at trial, that [X] has a meaningful relationship with both her mother and her father in most of the terms set out by Brown J and Cronin J.
It might be said that the meaningfulness of those relationships has been somewhat affected by both the mother’s mental health issues, and by the father’s behaviour and somewhat rigid thinking, but it is clear from the evidence that [X]’s relationships with both her parents are strong and positive.
In relation to the second of the primary considerations in s60CC(2), I must make orders which protect [X] as far as is possible from the conflict between her parents. More particularly, final orders will need to protect her from any neglect she might suffer at the hands of her mother, and from any family violence which might be perpetrated upon her mother by her father.
I note that in crafting those orders, I need to give more weight to the need to protect [X] from harm than to the benefit to her of her meaningful relationships with her parents.[8]
[8] See S60CC(2A)
S60CC then sets out the remaining 14 considerations in subsection (3) under the heading “Additional Considerations”.
(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
[X] was not interviewed by Dr B, but she did speak to the Independent Children’s Lawyer, who reports that [X] told her she would like to stay living her mother in Town A “for six years and then six years with Dad”.
As that regime would take her well past her 18th birthday, it is safe to assume that [X] might not have a sophisticated view of time in terms of future years. Her comments may also be indicative of a child wishing for the arrangements to be “fair” – a common view of children at her age and stage of development.
Nevertheless, what is clear from [X]’s views, as expressed to the Independent Children’s Lawyer, is that she wishes to remain in Town A with her mother for the foreseeable future, but that she also wants to spend significant time with her father.
(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)
Again, it is clear from the evidence before the Court that [X] has a strong and loving relationship with each of her parents, although it is fair to say that, as she has lived with her mother for all but about four months of her life, her relationship with her mother is her primary attachment relationship.
On the basis of the mother’s evidence, unchallenged by the father, I find that [X] also has a very close relationship with [C]. The mother says that they spend most of their time together, and that [C] is excited each day as the time approaches for [X] to come home from school. [X] also lives with her maternal grandfather apparently, although there appears to be no specific evidence about her relationship with him.
Similarly, Mr Stuckey’s evidence, unchallenged by Ms Ferrier, is that [X] has a close relationship with her paternal family in Melbourne, and particularly with her paternal cousins, with whom she spends time on most weekends when she is in her father’s care.
(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
Both parents have taken every opportunity afforded to them to participate in decisions about [X]’s long-term issues.
However, Mr Stuckey has been denied that opportunity on several occasions – most notably when Ms Ferrier did not tell him where she was living after she left her Suburb W home, or when she moved to Town A.
[X]’s health issues have been dealt with primarily by the mother but the father has had some involvement with her treatment, although both say the other does not treat [X]’s condition appropriately at times.
(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;
Mr Stuckey pays child support as assessed by the Department of Human Services (Child Support), and he supports [X] when she is in his care.
Ms Ferrier supports [X]’s day-to-day expenses when she is in her care.
(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
The change in circumstances proposed by both the father and Dr B, that [X] move to Melbourne with her mother, or that she move to Melbourne and live with her father, could hardly be more significant for [X].
Mr Stuckey said, in effect, that he did not think [X] would suffer any great distress if she were to move to Suburb D to live with him, because she would have him, his partner, his parents, his sister and [X]’s cousins to provide a family life for her.
In addition, he did not seem to consider that being forced to move back to Melbourne with her mother might also have an impact on her.
It must be said that he showed an extraordinary lack of insight into the impact it might have on [X]’s emotional health to be taken from her mother, with whom she has lived for all but four months of her life, from her brother, to whom she is very close, from her school, in which she is well settled and achieving well, and from the friends she has made in Town A.
Dr B was more realistic in her view of that proposed change. It was her view that the transition would be likely to cause significant stress and distress to [X]. She also said, when asked by the Independent Children’s Lawyer, that it was never appropriate to take a child from a school where she is well settled and achieving academic success. Nevertheless, it was her opinion that [X] has shown that she can adapt to new situations and environments, and as there is “no win-win” in this situation, it would be “the least worst option” for [X] to live in Melbourne, whether with her mother or her father.
[X] was eight years old at the time of trial. She lives in secure accommodation with a mother who loves her and cares for her to the best of her ability, and who understands that there have been times when her best was not good enough. The mother has taken major steps in terms of obtaining and engaging with supports in Town A, and the evidence is that her mental health is currently stable.
In those circumstances, [X] leaving her mother’s full time care, being effectively removed from her brother and her maternal grandfather, moving back to Melbourne at the age of nine, and changing schools, could not help but have a very great impact on [X]’s sense of belonging and indeed her sense of self, and I consider this issue to be very significant in these proceedings.
Nevertheless, it is only one of 16 considerations the Court must have in mind when making orders that are in [X]’s best interests.
(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.
Again, the practical difficulty and expense of [X] spending time and communicating with her non-resident parent is particularly significant in these proceedings.
The parties live some 300 kilometres and three-and-a-half to four hours’ drive apart.
If that situation continues, there will be no chance for the non-resident parent to be involved in [X]’s day-to-day life except by Skype or telephone or other electronic means, and, rarely, in person.
Neither of the parties is flush with funds, and the petrol costs of [X]’s travel between Town A and Melbourne alone must be burdensome on both parents.
Clearly, if the parents were to live closer to each other, that situation, in terms of both distance and expense, would markedly improve.
However, as was made clear at trial, this is not a case where “the best of all possible worlds” is an option for this child unless the mother is prepared to move at least much closer to Melbourne.
(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
The father complains that the mother does not even take care of [X]’s physical needs properly, although much of his evidence on that issue was historical.
What is very clear is that these parents, both of whom love their daughter dearly, have very different views of what appropriate care of a child means.
The father is concerned with neatness, cleanliness, hygiene and punctuality, whereas perhaps the mother has less strict view about those things.
That kind of difference is often the cause of conflict between separated parents, and perhaps both parties would do well to reflect on their own standards for [X]’s sake. The optimum standard of physical care for her is perhaps somewhere in the middle.
[X]’s intellectual needs appear to be addressed by both parents, although the Court does have some concerns about the mother’s inability to get [X] to school on time in a consistent fashion.
Nevertheless, [X] is doing well at school, and Mr Stuckey’s evidence was that he and [X] are having more interesting conversations as [X] matures.
It is in the area of [X]’s emotional needs that the Court has greater concerns.
Again, the evidence of the father in relation to the impact it might have on [X] to be removed from her mother, brother, grandfather, and friends gives the Court little satisfaction that he has the capacity to meet her emotional needs.
His evidence about her paternal cousins having the same kind of priority in her life as her brother, shows an inability to genuinely engage with the child’s emotional reality or to fundamentally understand her emotional needs.
The mother, for all her faults, has genuinely engaged with [X]’s emotional needs and has sought assistance for her in that regard. Her evidence indicates that she has a deep understanding of her daughter, and that she is sensitive to the nuances of [X]’s emotional 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
[X] is now nine years old. She is, by all accounts, a delightful child who is meeting most of her developmental milestones.
The father has Country V heritage. It is important that [X] has the opportunity, through her relationships with him and his family, to experience and learn about that part of her cultural make-up.
Ms Ferrier has struggled, in the past, to behave in a particularly mature manner as a result of her mental health issues. Nevertheless, she impressed at trial as a woman prepared to make statements against her interest, which indicates a certain maturity, and one who had a clear and nuanced view of her daughter’s needs.
I also take into account that [X] will enter adolescence in the next few years and that her relationship with her parents will be affected by the many vicissitudes of puberty and its aftermath. I consider that her gender is a significant factor in the consideration of which parent might best meet her needs as she passes through that challenging period in every child’s life.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right
This is a not a relevant factor in this case.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
As I have said before, both of these parents have demonstrated a caring and devoted sense of responsibility to [X].
When Ms Ferrier was at her lowest ebb in early 2014, she was able to see past her own issues and agree for [X] to live with Mr Stuckey until she could again look after her.
And Mr Stuckey, to his great credit, stepped up to the not-inconsiderable task of looking after his then five-year-old daughter for a period of several months.
Since that very significant period in the family’s lives, both parents have demonstrated a dedicated commitment to [X]’s care and welfare, and have done all they can to ensure that she is safe, protected and loved.
No more can be asked of any parent.
(j) any family violence involving the child or a member of the child’s family
Ms Ferrier alleges that she has suffered some physical and much verbal and emotional abuse at the hands of Mr Stuckey.
Mr Stuckey denies all allegations of such abuse.
The evidence before the Court shows a woman genuinely in some fear of her former partner, to the extent that she does not want him to know her address lest he begin to torment her again, and I note that throughout her cross-examination by Mr Stuckey, she looked steadfastly at me and not at him.
I found the mother’s evidence in relation to the way Mr Stuckey spoke to her both during and after the relationship to be convincing and cogent. For instance, I found her evidence about the incident when Mr Stuckey verbally abused her and then kicked the cat on the way out of her house to be forceful and uncontrived.
I note that Mr Stuckey himself conceded that he has, at times, spoken to Ms Ferrier in an abusive manner, such as calling her “crazy”, raising his voice during arguments, and criticising her parenting over minor matters such as whether [X] was ready when he arrived to collect her.
I therefore find that, on the balance of probabilities, family violence has been perpetrated on the mother by the father.
I understand Mr Stuckey’s implicit submission that he is simply a passionate man who lets his emotions show, but there is a line between “passionate” and “abusive”, and I find that he has crossed it on several occasions in his dealings with the mother of his child.
That is not to say that he is by nature a violent man, but simply that he does not always show respect to Ms Ferrier, and he has little insight into the impact of that behaviour either on her or on [X].
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter
It would appear from the evidence before the Court that there has never been a Family Violence Intervention Order against either of these parties on the Application of the other.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
[X] has been the subject of these proceedings since August 2016. She has been interviewed by DHHS and SOCIT officers, and she has been observed with both parents for the family reports. She needs this process to end so that she and her mother and father can relax in the knowledge that there are clear orders that regulate her relationship with both parents.
The orders I make are intended to be final orders, and I will include in them the possibility that Ms Ferrier might choose to move from Town A at some time in the future before [X] turns 18. In that instance, I will make an order that she move to the Melbourne Metropolitan Area so that [X]’s relationship with her father and her paternal family can be enjoyed more frequently.
(m) any other fact or circumstance that the court thinks is relevant.
There is no other fact or circumstance that the Court thinks is relevant in this case.
Decision: Issue A
When I consider all the above matters, and despite the recommendations of Dr B, I find that it is not in [X]’s best interests for her to be taken from her mother’s care and placed with her father.
She has been in her mother’s care for almost all her life, and while some of that time has been difficult and distressing for her because of her mother’s mental health issues, the evidence is that those issues appear to have stabilised, and I will include in the final orders a requirement for the mother to consult her general practitioner and, if so referred, a psychiatrist, every two months for the purpose of monitoring the progress of her mental health.
What is clear from the evidence is that Ms Ferrier has found in Town A a sense of belonging to a community that she was unable to find in the city, and she has been able to access appropriate medical and social supports to assist her and [X] so that that sense of belonging is reinforced on a daily basis.
The other reason I do not propose to make orders for [X] to live with her father full-time is that I have considerable concerns about his rigidity of thinking and his lack of understanding of [X]’s emotional needs. There is no doubt that he loves his daughter dearly, and that both he and [X] value their relationship greatly, but his lack of insight into his behaviour towards [X]’s mother, and the impact of that behaviour on [X], is contrasted with the mother’s ability to recognise and identify her daughter’s emotional needs.
I note further that it is Mr Stuckey’s own case that if [X] were to live in Melbourne she should live with her mother. That is, he concedes that if the distance between him and [X] were not so great, [X] should live with her mother despite the mother’s vulnerabilities and his concerns about her care of [X].
I will therefore make orders that [X] remain living with her mother and that her mother be permitted to remain in Town A.
However, I will make a further order restraining the mother from changing her place of residence to anywhere outside the Melbourne Metropolitan Area. If [X] is not to live in Town A, where she and her family are now well settled, then she should live closer to her father so that their relationship can develop and solidify even further.
Issue B: How much time should [X] spend with her non-resident parent?
On the basis of all the evidence, particularly that about the relationship between the father and [X], and after considering all the matters set out above, while [X] is living in Town A, she will spend time with her father on three weekends each term, including on some long weekends, for ten days in each of the first and third term holidays, for one week in the Term 2 holidays and for half of the long summer holidays.
In addition, [X] will be able to telephone, Skype, FaceTime or otherwise communicate electronically with Mr Stuckey whenever she chooses to do so and Mr Stuckey will be able to call/Skype/FaceTime her twice a week at specific times.
That will allow Mr Stuckey to stay in regular and frequent touch with [X] while she is in her mother’s care, and should provide some comfort to him in relation to his ability to monitor her progress.
If Ms Ferrier decides to return to Melbourne, [X] will spend more regular and frequent term time with her father, similar to the regime that existed before the mother moved to Town A.
I will also make provision for further times to be agreed between the parents, which will allow for some flexibility in the arrangements, although that should not be seen as an opportunity for either parent to badger the other to change the arrangements for no sound reason.
Conclusion
This matter has been in the Court system since August 2016 and as Dr B said during her evidence, there is no “win-win” solution to the position in which the parties and [X] find themselves.
The mother’s psychiatric crisis in 2014 led to a huge disruption in [X]’s life, one that has had considerable fallout both for [X] and her mother, and, by extension, her father.
She now has a mother who is much more stable and able to care for her, albeit not to Mr Stuckey’s high standards, and a father who is devoted and dedicated to her welfare and to maintaining his close relationship with her.
In that sense, [X] is a very lucky young girl, and it is to be hoped that, over time and without Court proceedings in the background, Ms Ferrier and Mr Stuckey will be able to develop a more trusting and communicative parental relationship for their daughter’s sake.
I certify that the preceding five hundred and fourteen (514) paragraphs are a true copy of the reasons for judgment of Judge Small
Date: 8 July 2019
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Injunction
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Procedural Fairness
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Remedies
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