FAMILY COURT OF AUSTRALIA
| SUTTON & ANDERSON | [2014] FamCA 215 |
FAMILY LAW – CHILDREN – With whom a child spends time and communicates – best interests of a child – allegations of family violence – consideration of the term ‘meaningful’ in the context of s 60CC(2)(a)
FAMILY LAW – CHILDREN – Relocation – mother the subject of intense and long term violence permitted to relocate to enable some relief from emotional consequences of the father’s abuse of her notwithstanding the detrimental impact on the relationship between the child and her father and sibling.
Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CC (1),(2),(3),(4),(4A)
MRR v GR [2010] HCA 4, (2010) 42 Fam LR 531, (2010) FLC 93-424
| APPLICANT: | Mr Sutton |
| RESPONDENT: | Ms Anderson |
| INDEPENDENT CHILDREN’S LAWYER: | Butler McIntyre & Butler |
| FILE NUMBER: | HBC | 68 | of | 2011 |
| DATE DELIVERED: | 3 April 2014 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Hobart |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 11, 12, 13 & 14 February 2014 |
REPRESENTATION:-
| COUNSEL FOR THE APPLICANT: | John Munro |
| SOLICITOR FOR THE APPLICANT: | John Munro & Associates |
| COUNSEL FOR THE RESPONDENT: | In person |
| SOLICITOR FOR THE RESPONDENT: |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mrs Mooney |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Butler McIntyre & Butler |
Orders
BY CONSENT, and subject to order 2, all previous parenting orders in relation to L born … 2009 (“the child”) be and are discharged.
BY DETERMINATION the interim order made 14 February 2014 insofar as it relates to the time that the child spends with the father shall continue until 10 May 2014, as and from which date that interim order is discharged.
BY CONSENT, subject to these orders, Ms Anderson (“the mother”) shall have exclusive parental responsibility for the child in relation to all major long term issues, including:
(a)the child’s education (both current and future);
(b)the child’s health (both physical and emotional), on the condition that:-
i.the mother will contact Mr Sutton (“the father”) in writing and provide him with her views of any such issue seven (7) days before making the final decision about any such issue;
ii.the mother will take into account any response received from the father in making her decision about any such issue;
iii.the mother will advise the father in writing within seven (7) days of any decision made by her about any such issue;
iv.the mother shall have the final decision about any such issue;
(c)the time limitations imposed in orders 3(b) shall not apply if there is an emergency.
The mother shall ensure that all records relevant to the child’s care, welfare and development, including but not limited to school, medical and dental records identify the father as the parent of the child and a person to whom information may be disclosed.
This order for sole parental responsibility does not give the mother sole responsibility as to questions of major long term issues about the child’s name and/or changes to the child’s living arrangements to outside the Commonwealth of Australia, without the consent of both parents or an order of a court exercising jurisdiction under the Family Law Act 1975 (Cth).
BY CONSENT the child shall live with the mother.
BY CONSENT the mother and the father be and are restrained from using physical force to discipline the child or allowing any agent in their presence to use physical force to discipline the child.
BY CONSENT neither party shall demean, abuse or belittle the other party, their respective partners or members of their family or denigrate the other parent’s relationship with the child or the co-parenting relationship in the presence or hearing of the child.
BY CONSENT each party be and is restrained from using obscene language in the presence or hearing of the child nor cause or permit the child to be exposed to obscene language.
BY DETERMINATION the mother be and is permitted to relocate the primary residence of the child to Cairns on or after 13 January 2015.
BY DETERMINATION the father shall spend time with the child during the 2014 year as follows:-
(a)in accordance with the February 2014 interim orders until 10 May 2014;
(b)commencing Saturday 17 May 2014 and concluding 26 July 2014 ; including that weekend and each alternate weekend thereafter from 9:00am Saturday until 3:00pm Saturday and from 9.00am Sunday to 3.00pm Sunday; or such alternate start and end times as directed by B Contact Centre;
(c)commencing Saturday 9 August 2014 and concluding Sunday 14 December 2014; including that August 2014 weekend and each alternate weekend thereafter from 9:00am Saturday until 12:00 noon Sunday;
(d)the child’s birthday, in 2014 from 3:30pm until 6:30pm;
(e)from 3:00pm Christmas Day (25 December 2014) until 3:00pm Boxing Day (26 December 2014);
(f)from 9.00am Saturday 27 December 2014 until 3.00pm Monday 30 December 2014;
(g)from 9.00am Saturday 10 January 2015 until 9.00am Monday 12 January 2015 at 9:00am;
(h)such other, alternate and further time as is agreed between the parties in writing.
BY DETERMINATION following the mother’s relocation of the child’s primary residence to Cairns, the child spend time and communicate with the father as follows:-
(a)Skype and telephone communication to be initiated by the mother once a week between 6.00pm and 6:30pm (Cairns time) and on special occasions such as the father’s birthday, the child’s birthday, C’s birthday, Easter Sunday, Christmas Day and Father’s Day;
(b)in 2015 and each alternate year thereafter, the mother shall facilitate the child spending time with the father in Tasmania (at the mother’s expense as to travel costs) for two weeks during the end of year school holidays (such period to include the Christmas period);
(c)in 2015 and each alternate year thereafter the child shall spend time with the father from 3:00pm Christmas Eve until 3:00pm Christmas Day and with the mother from 3:00pm Christmas Day until 3:00pm Boxing Day;
(d)in 2016 and each alternate year thereafter, the mother shall facilitate the child spending time with the father in Tasmania (at the mother’s expense as to travel expenses) for two weeks in the September/October school holidays (to coincide with the Queensland school holidays);
(e)in 2015 and each year afterwards the mother shall facilitate the child spending time with the Father in Cairns (at the father’s expense) for up to one week at times to be nominated in writing by the father at least eight weeks in advance;
(f)in the years 2015 and 2016; the time the child spends with the father be interrupted with the return to the mother’s care for one night (from 4:00pm until 10:00am the following day) after each third night.
BY DETERMINATION, from the 15 January 2015, while the child is in the father’s care, he shall assist the child initiating telephone communication with the mother each alternate day between 6:00pm and 6:30pm.
BY DETERMINATION the father shall be at liberty to obtain school reports, school letters and to communicate with the child’s school.
BY DETERMINATION while the father is in Cairns spending time with the child, the father be permitted to attend school assemblies and sporting events upon giving the mother prior written notice and that it not be unreasonable for that notice to be given twenty (24) hours prior to the event.
BY DETERMINATION; the changeovers in 2014 in Hobart shall be at B Contact Centre; and if it is not available, the parties will agree in writing to a mutually convenient place for changeover with the mother not being required to attend and being at liberty to nominate a third party to attend on her behalf.
BY DETERMINATION from 15 January 2015 changeover in Cairns shall occur at a public location nominated by the mother in or near the central business district of Cairns (or as otherwise agreed in writing) and that the mother is at liberty to nominate a third party to attend on her behalf or with her.
BY DETERMINATION from 15 January 2015 changeover in Hobart shall occur at a public location nominated by the mother in the central business district of Suburb A (or as otherwise agreed in writing) and the mother is at liberty to nominate a third party to attend on her behalf or with her.
BY DETERMINATION the parties shall communicate by email or communication book with respect to parenting issues or changeover issues arising in respect of these orders and to that end each party should keep the other informed of their email address, residential address and telephone numbers.
BY DETERMINATION the mother shall be permitted to travel with the child to Cairns:-
(a)for one period of no more than three (3) weeks during the 2014 calendar year subject to the following:-
i.the mother will provide the father with four (4) weeks prior notice of the date of intended travel, or itinerary of flights, including the return flight.
ii.advise the father of the residential address and contact number for the child in case of emergencies.
iii.the father’s time with the child during this period shall be suspended without provision for catch-up time.
iv.such time shall not occur after 1 November 2014.
(b)any other period of time that does not interfere with the father’s time as provided in these orders, subject to the mother providing the father with two weeks’ notice and advising the residential address and contact numbers for the child case of an emergency.
BY DETERMINATION the order that the mother have parental responsibility does not enable the mother to relocate the primary residence of the child from either Hobart, Tasmania or Cairns in Far North Queensland (except as provided in these orders), without the written consent of the father or an order of a court exercising jurisdiction under the Family Law Act 1975 (Cth).
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
NOTATIONS
The father will use his best and reasonable endeavours to ensure that either the Paternal Grandmother and/or his daughter, C, be present during overnight periods with the child.
That upon relocation the Mother will engage with a therapeutic counsellor.
All other extant applications for orders (except costs applications) be otherwise dismissed and removed from the list of cases awaiting finalisation. Any costs application may be dealt with in accordance with the Family Law Rules 2004.
Following the expiration of the appeal period, all subpoenaed documents (except for the parties’ case summaries, minutes of orders and expert reports) shall be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sutton & Anderson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT HOBART |
FILE NUMBER: HBC 68 of 2011
| Mr Sutton |
Applicant
And
| Ms Anderson |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
For those in the community who believe that only physical violence is real and that verbal violence is somewhere between a nonsense and benign behaviour (to be ignored and from which the victim should ‘harden up’) the facts of this proceeding should disabuse such notions and beliefs.
Ms Anderson (“the mother”) was in what she regarded as an idyllic relationship with Mr Sutton (“the father”). They planned for a pregnancy and succeeded in that endeavour. When the father was informed by the mother of the happy news of her pregnancy, the father turned on her. He commenced a savage and relentless campaign of verbal abuse and threat which continued over more than a year. The abuse escalated in intensity up to the birth of the child and following that birthday. Unsurprisingly, the parties’ relationship faltered and then failed; but the abuse did not abate until a family violence order was made.
Paradoxically, at times the father showed the mother the warmth and support (such as that which gave rise to her initial loving assessment of him) and yet at other times she was emotionally devastated by his verbal abuse. The mother was shocked, terrified and confused. She had difficulty in reconciling the abuse, fear and isolation as against the occasional expressions of warmth and support.
The father’s abuse of the mother led to:-
(a)the failure of their relationship;
(b)the mother having a genuine and ongoing fear of the father;
(c)the collapse of trust between them with the likelihood that it will never be restored;
(d)the parties inability to effectively and directly communicate about their child;
(e)the mother’s fear for the wellbeing of their child, whilst he is ever in the father’s care; and
(f)serious and ongoing psychological and emotional harm to the mother.
The mother’s evidence of the verbal abuse was chilling and detailed. The abuse contained threats to her and was couched in crude, obscene and demeaning language which could only have been applied to undermine the mother’s self -esteem and her sense of herself as a person, partner and parent. The full horror of that abuse does not bear repeating in these reasons; it was set out in detail by the mother in her affidavits and aspects of it were supported by the evidence of other witnesses.
Initially, the father dismissed, deflected or diminished the allegations of abuse, made against him. On this topic he prevaricated in affidavits and in discussions with experts. At the commencement of the hearing the father acknowledged virtually all of that abusive behaviour, although he continued to deflect some blame or fault to the mother.
The mother is unlikely to recover from the psychological and emotional damage visited upon her. She now seeks to relocate with the child from Tasmania to Far North Queensland in her quest for emotional peace. She wants to be close to her mother and to create distance from the father; such is her fear and anxiety about him. The mother’s ability to parent has been adversely compromised as a consequence of the abuse.
The impact of this violence will resonate through this family for decades and perhaps generations to come. That consequence will flow through the child’s relationship with his father, sister, his paternal grandparents and broader paternal family.
THE PROCEEDINGS
These proceedings were commenced by the father against the mother relating to the parenting arrangements for their son L, born in 2009, (“the child”) who was aged four at the date of hearing.
The parenting proceedings were commenced in the Federal Circuit Court and were later transferred to the Family Court. An Independent Children’s Lawyer had been appointed and participated in the proceedings.
The mother has been and remains the primary carer of the child. That arrangement was not in issue and consent orders were made to that effect. Similarly, there was no issue that the mother have sole parental responsibly for the child, subject to some limitations. Consent orders were made in that respect.
There was also agreement between the parties and the Independent Children’s Lawyer that there be consent orders that neither party physically discipline the child, swear in the child’s presence or hearing and that the parities not denigrate the other party or members of that party’s family.
At the commencement of the hearing there was an issue as to parental responsibility however, it was resolved by the conclusion of evidence as set out in the case outline of the Independent Children’s Lawyer.[1] The father and mother consented to an order that the mother have sole parental responsibility in terms set out by the Independent Children’s Lawyer in her case outline.
[1] ICL8
THE ISSUES
The issues were:-
(a)the extent of time the child spends with the father, (the father sought orders that the child’s time with him be increased on an escalating basis as set out in his outline of final submissions. The mother sought orders substantially similar to that of the Independent Children’s Lawyer, that is, an increase in a period of time between the child and the father over 2014 followed by relocation to Cairns in 2015).
(b)whether the mother ought to be permitted to relocate the child’s primary residence to Cairns in Far North Queensland. The Independent Children’s Lawyer supported the mother’s application to relocate to Cairns but wanted that relocation to take place at the end of 2014 to enable the father and the child to form a better bond. The mother agreed to that delayed departure by adopting the submissions of the Independent Children’s Lawyer. There was a subsidiary issue in respect of the father’s concerns that the mother would further relocate (within Australia) to places other than Hobart or Cairns, if that Cairns relocation was permitted. The mother sought no further relocation order to that effect.
(c)whether the time spent between the child and father needed to be supervised. The mother contended that the father had subjected her, the child and a child of a previous relationship to family violence and that the time that the father spent with the child would need to be monitored and supervised. The father had been spending unsupervised time with the child, over relatively short periods of time for over one year.
(d)the extent of travel and who should meet such travel costs from Cairns to Hobart, if relocation was permitted. The mother sought one trip she would take to Tasmania each year and proposed that the father come to Cairns each year.
Underlying the conflict between the parties, and part of the reason the mother had wished to relocate to Cairns, was the serious violence that the mother had been subjected to by the father from mid-2009 until June 2010. There was no issue that the mother was subjected to family violence over that period of time, it was the scope and intensity of the violence that was in dispute plus the impact of it upon the mother.
BACKGROUND
The Independent Children’s Lawyer prepared a case outline[2] which had set out a chronology. The parties accepted that the chronology contains a list of agreed facts.
[2] Exhibit ICL8.
The father is aged 40. The father suffers from poor health arising from injuries he sustained whilst serving in the military.
There are serious issues about the father’s physical, psychological and emotional health.
The mother is aged 33. She enjoys good physical health but suffers significant emotional trauma as a result of events which occurred during her relationship with the father.
The father had been involved in a number of relationships. He was involved in two consecutive violent relationships prior to his cohabitation with the mother and one relationship after that time (albeit the nature of that subsequent association was not in evidence).
The second of the prior violent relationships was between the father and Ms D. There is a child of that relationship, C, who was born in 2006 and who was aged about seven at the time of the hearing. That relationship ended before the father’s relationship commenced with the mother.
C spent overnight time with the father and the mother during the course of their relationship (being on most Wednesday evenings and on alternate weekends). The father’s time with C has increased since separation and the parenting time she spends with the father is now equal time or more.
The father and mother commenced a romantic association in December 2007 and in March 2009 they began living together. At about the same time the mother fell pregnant with the child who was born later that year, in early December 2009.
Within a few days of the child’s birth, and in circumstances where the child had been born prematurely, the father travelled to Adelaide to attend a concert. There was an issue of fact as to the circumstances surrounding this trip, in particular whether this trip was with the support of the mother or was contrary to the express wishes of the mother.
The mother and child were discharged from hospital in early December 2009. On 1 January 2010 the mother sought counselling at the E Community Health Centre. On 25 January 2010 the mother says the parties separated physically and that the separation was final on 1 February 2010.
The child’s maternal grandmother visited the mother in Hobart from Cairns from 6 February to 22 February 2010.
In March 2010 the parties commenced mediation at a Family Relationships Centre and a parenting plan was entered into in May 2010.
On 9 May 2010 the mother and child travelled to Cairns to spend time with her mother. That visit was for a month and the mother and child returned to Hobart on 9 June 2010.
On 10 June 2010 the mother applied for and obtained a Tasmanian Police Family Violence Order.[3] This administrative order was served on the father on 14 June 2010. At that time the child’s time with the father ceased.
[3] The Family Violence Act 2004 (Tas) enables Tasmania Police to issue family violence orders against a person, if satisfied that a person has committed, or is likely to commit, a family violence offence. A Police Family Violence Order operates for 12 months from the date the order is served on the respondent. Such an order may be varied by Police if the affected person and the respondent consent and the variation will not adversely affect the safety and interests of the affected person or child. A court may also vary such order. A police family violence order is revoked if a court makes a final or interim family violence order in respect of the same parties. A court may revoke a police family violence order.
The father said he attempted to negotiate time with the child between June 2010 and March 2011. The father alleges the mother refused time between him and the child on the child’s first birthday and on 8 December 2010 the father alleges the mother refused to use the Contact Centre for the purposes of facilitating time with the child.
In January 2011 parenting proceedings were instituted in the then Federal Magistrates Court by the father, who sought parenting orders in relation to the child. A response was filed by the mother in February 2011 and she alleged that she had been subjected to abuse and family violence by the father.
Orders under the Act were made on 7 March 2011 providing for the father to spend supervised time with the child at B Contact Centre. A family consultant memorandum was issued on 25 March 2011. Subsequent to that a Contact Centre’s report was obtained by the Independent Children’s Lawyer.
In November 2011 an expert report was obtained by Dr F. In early 2012 the mother sought a mental health plan from Ms G, a psychologist.
In February 2012 the mother commenced a de facto relationship with Mr H.
In March 2012 the father commenced spending unsupervised time with the child, although the collection and return of the child occurred at the Contact Centre. The times were limited.
The father commenced a relationship with Ms I in October 2012. That relationship ended about nine months later.
A family report was released in October 2012 and the father provided a report from Dr J in November 2012.
After the release of the family report there was the filing of affidavits. At that time there were some issues in relation to the time the father spent with the child. The parties entered into some negotiations and reached an agreement for the child to spend further time with the father. The father declined to consent to that order, as he wanted considerably longer time.
In late 2012 these proceedings were transferred to the Family Court and were listed for final hearing.
Any statement of fact in these proceedings is to be regarded as a finding of fact unless the contrary is clear from the context of the statement.
On the final day of evidence the parties and the Independent Children’s Lawyer submitted that I should make final consent orders in relation to:-
(i)parental responsibility;
(ii)the child living with the mother;
(iii)restraint on the parents using physical force or discipline;
(iv)restraint on the parties demeaning, abusing or belittling the other parties; and
(v)restraint on the parties from using obscene language in the presence of the child.[4]
[4] Exhibit ICL11.
Having heard the evidence I was satisfied that those final orders ought to be made. In addition the parties asked me to make an order to change the parenting arrangements for the child from two three hour periods per week to one six hour period, on a Sunday, each alternate weekend and some other times.
Having regard to the evidence I made those orders and the parties were handed sealed copies of the orders that day.
THE LAW
These are proceedings under Part VII of the Family Law Act 1975 (Cth) (“the Act”). A court may make the parenting order it considers proper. This is a proceeding to which the 2012 amendments to the Act do not apply, as these proceedings were commenced in January 2011.
When determining orders the approach is governed by Part VII of the Act. The objects of Part VII of the Act and the principles underlying them are set out in s 60B.
Subject to the presumption of equal parenting under s 61DA and any parenting plans (there are none in this case) a court exercising jurisdiction under that Act may make such parenting order as it considered appropriate.
The child’s best interests are the paramount consideration in deciding what parenting orders should be made, and in determining those interests the Court must consider the factors set out in s 60CC of the Act.
If a court makes an order for equal shared parental responsibility, it must first consider the children spending equal time with each parent, and if such an order is not to be made, then the Court must then consider the children spending substantial and significant time with each parent. In addition the Court must consider whether such an arrangement would be in the children's best interests and then consider whether such an arrangement is reasonably practicable. If the Court is satisfied on those matters, the Court must consider making such an order (s 65DAA(1)(c) and (2)(e), and see MRR v GR [2010] HCA 4, (2010) 42 Fam LR 531, (2010) FLC 93-424).
These proceedings were commenced before 7 June 2012, and as a consequence the amendments to the definition of “family violence” in s 4(1) of the Act, and to ss 60B and 60CC that took effect on that date do not apply to these proceedings, and the provisions in force immediately before that date continue to apply.
WITNESSES
Ms Sutton
Ms Sutton is the child’s paternal grandmother and gave evidence in accordance with her affidavit filed 28 January 2011. The paternal grandmother’s affidavit was read into evidence and she was cross-examined by the mother and counsel for the Independent Children’s Lawyer. She provided a description as to the living arrangements at her home, where the father primarily resides.
The paternal grandmother and her husband continue to provide a house for their three adult sons. This home provides accommodation for their sons’ children, from time to time.
C has her own bedroom in this home, and it is anticipated that she would share this room with the child, should he spend overnight time with the father. There was no criticism in respect of these living arrangements in either cross-examination by the Independent Children’s Lawyer or the mother.
Unsurprisingly, the paternal grandmother expressed a benign view of the father and his temper. She said she had never heard him swear in the presence of the children at the mother but had heard arguments once or twice. She conceded that the father had difficulty accepting the mother’s pregnancy.
The paternal grandmother did not have a high regard for the mother. Although, interestingly, the mother said that the paternal grandmother was protective of the child and that she, the mother trusted the paternal grandmother.
The paternal grandmother’s evidence is strongly aligned to that of the father and she excuses, dismisses or is unseeing in relation to his violence and abuse of the mother. As a consequence, I treat her evidence with great care as I am not satisfied that it is entirely reliable.
Dr J
Dr J is a psychiatrist who practices in Hobart. He provided a report on the father, which was attached to Dr J’s affidavit filed 29 January 2014. The report was dated 21 November 2012 and was read into evidence without controversy.
Dr J reported that he had seen the father on five occasions between July 2012 and November 2012. Dr J was provided with a report of Dr F and he noted her assessment that the father suffers from Cluster B Personality Traits affecting his interpersonal functioning.
Dr J opined that the father does not have a psychiatric condition. Dr J said the father had seen him on a therapeutic basis to discuss his separation from the mother and his relationship with the child. The Doctor reported that the father was endeavouring to have a relationship with the child and wanted to be part of the child’s life.
The report had a forensic element to it. In terms of the forensic element I noted that there is no clear evidence of the material which the father placed before Dr J nor was the detailed history provided by the father set out. Up to shortly before the hearing or at the hearing the father had been at the worst denying violence to the mother and at best prevaricating as to the extent of any such violence.
Dr J says of the father’s past history that:-[5]
[The father] had a past history of Adjustment B Disorder after his medical discharge from the [military]. He had a period of treatment and his condition has resolved. He may well have some Cluster B Personality Traits but these would fall well short of being able to diagnose a personality disorder. Likewise there are no other medical disorders such as ongoing depression. [The father] requires no specific counselling.
[5] At page 2 of the Report of Dr J dated 21 November 2012.
It is not clear what background material the psychiatrist had in coming to this conclusion.
At paragraph 7 of his report Dr J recommends that:-[6]
…[The father] can therefore assist [the mother] by remaining consistent with care giving to his son. Their interaction should focus on their son’s wellbeing rather than on the past relationship
[6] Ibid.
He goes on to make other suggestions however, this cannot be given great weight considering the following:-
(i)Until the commencement of the trial the father had not conceded the full extent of his violent, degrading and abusive behaviour in terms of the mother.
(ii)Dr J has not seen the mother nor has he had the opportunity to assess her.
(iii)Dr J has not seen the child and has not had the opportunity of assessing the child.
As a consequence I give his recommendations and implications contained in paragraph 7 and 8 of his report no weight.
The mother
The mother gave evidence in accordance with her affidavits filed 8 April 2013, 10 January 2014, her financial statement[7] and she said that her statements of fact in her case outline[8] were accurate.
[7] Contained as part of Exhibit ICL1.
[8] Exhibit M1.
The mother read into evidence electronic communications between herself and the father over the period between April 2010 and June 2010. Those messages were not in any meaningful way challenged and are consistent with the mother’s complaints about the father’s behaviour over that period and from the time she fell pregnant until June 2010.
The mother gave oral evidence of the child’s anger towards her when he returned from spending time with the father in early February 2014 including the use of demeaning language to the mother, assertions that he did not love her and verbal abuse. That behaviour was consistent with the type of language that the father agreed he had used with the mother during the course of and immediately after their relationship.
The mother was careful and thoughtful in giving evidence. She listened to the questions and answered them frankly.
She was clearly anxious and worried about the process and her demeanour reflected that observed by Dr F in her report.
The mother said she was concerned about a message from the father in the communication diary that the father would not hurt the child. The mother has no such confidence in the father and she was not comforted by his assertions. The mother said she did not feel safe as too much had happened during the relationship and after the relationship.
It was put to the mother in cross-examination by counsel for the father that there was no physical violence towards her. The mother agreed that she had not been the subject of physical violence although she had seen the father being physically violent to his daughter C and that the father had a history of physical violence to his previous intimate partners.
It was put to the mother that not much had happened after the Police Family Violence Order was put in place in June 2010. The mother disputed that assertion. She said that there had been proceedings for breach of the Police Family Violence Orders. She said that an order had been put in place in the Family Court restraining the father from communicating, other than by a communication diary, as set out in the minute of order attached to the order made 5 March 2012.
The mother said that she had received emails in November 2010, an email in August/September 2011 and a Christmas card in December 2012. She was cross-examined about the father’s affection for her and the child in the emails. The mother said that that was consistent with the father’s behaviour, where sometimes during the relationship he would be kind and warming to her and other times he would be threatening and violent to her. The mother said that she had been taught that this was the part of the abusive relationship that she had sought to escape.
In her evidence the mother said the child did not see the father between June 2010 and April 2011, there were supervised visits between the child and father from April 2011 to March 2012 and that there were unsupervised visits from March 2012, which had an adverse emotional impact upon her.
The evidence of the mother was that she was worried and anxious about the time the child spent with the father and was concerned about the well-being of the child in that circumstance. That fear continued, as the mother asserted that the child came back from such visits using inappropriate terms as set out in her primary trial affidavit of April 2013 and in paragraphs 63, 65 to 84 of her January 2014 affidavit.
I am satisfied that the mother has accurately reported the statements of the child, given the background and the mother’s general reliability and my concerns about the frankness of the father. I am satisfied that the abusive language, demeaning of the mother and her partner and threatening of the mother and her partner arise when the child is in the unsupervised care of the father.
The mother has endeavoured to have her anxiety treated over the years since before separation and after separation. She still fears for the safety of the child in the father’s care and still fears for her own safety in seeing or confronting the father. In terms of this the mother gave evidence of an inadvertent meeting with the father at the Contact Centre which upset her. The mother avoids areas where the father is likely to frequent and does not visit a friend in the same suburb in which the father lives.
The mother says, and I accept, that she endeavours, as best she can, to shield the child from her distress.
The mother was cross-examined in relation to her observations of the father’s relationship with C. The mother had not seen that interaction for many years, but said from her observations at that time the father had a loving relationship with his daughter. The mother was concerned about her observation of the violent physical attack by the father on C and the child’s exposure to the abusive and violent outbursts by the father to the mother in the presence of C.
The mother said that if she remained in Hobart it would detrimentally impact on her mental health. She said words to the effect “I am not able to cope with life here – it is too much – I can’t cope anymore”.
That view is consistent with the assessment of Dr F. The mother says, and I accept, that she feels trapped in Tasmania.
The mother was cross-examined by the father’s counsel that she had managed to stand up for herself. She conceded she did particularly when the welfare of the child was in place.
The mother is open to the father spending six hours in one day rather than two three hours periods per week, developing to overnight time provided the paternal grandmother is present. The mother trusts the paternal grandmother and believes she would be protective of the child.
The mother acknowledges that the child has a warm relationship with the paternal grandmother and the mother acknowledges that the child has a good relationship with C.
At the commencement of cross-examination of the mother by the Independent Children’s Lawyer the mother was asked about her expression ‘my son’. In answer to these questions from the Independent Children’s Lawyer and questions as to what the father brings to the child’s life the mother gave answers which could only be seen as admissions against her interests.
The mother’s answers during cross-examination, whilst given through her own perspective, tended to be frank and reliable. I accept her evidence as frank and reliable.
The mother conceded that her affidavit evidence included the poor behaviour by the father but did not include the good behaviour. The mother acknowledged that the father was at times the loving and caring person she knew before she fell pregnant and then became difficult often at times when C was present. The mother did not blame C but was concerned about the father’s appalling conduct to her and their unborn child.
The mother conceded that at times she was jealous of the affection that the father showed to C which was not shown, from the mother’s perspective, to the child before and after his birth.
The mother said, and I accept, that she continues to suffer panic attacks and suffered one on the Monday before the trial commenced (a public holiday in Tasmania) and in the witness box during the trial on Wednesday 12 February 2014. The mother had become distressed and lost significant focus at one stage during her evidence on that day.
The mother conceded that the father could physically care for the child although she said she felt she provided a better home environment for the child.
In relation to her move to Cairns, the mother was cross-examined as to what had brought about that change. This arose she said, and I accept, from the death of her maternal grandmother in mid-2013. The mother’s had been very close to her maternal grandmother who had provided somewhat of a sanctuary for the mother during her teen years and afterwards. They were very close and the mother deeply misses her grandmother.
It was after the death of her maternal grandmother and the circumstance of her father travelling more, that the mother decided to move to Cairns. The mother’s evidence was that the stressors on her are the current court proceedings, the communication with the father, the sense he is trying to control and victimise her and her concern that the child will end up with similar behavioural attributes as the father which still shock and distress the mother.
The mother was cross-examined as to whether she accepted that the father loved the child. The mother said she can see that there is love there now but said she is still deeply disturbed about what happened before. She said the child will never be told ‘the bad stuff’ and she wants the child to have a relationship with the father provided he is safe and does not follow the course adopted by the father.
The mother was concerned that the violence and abuse commenced against her continued for a significant period of time despite the father having previously completed a Changing Abusive Behaviour Program. Having regard to the father undertaking that program and then engaging in the violent behaviour to the mother, that fear is not unreasonable.
The mother was questioned about the relationship between the child, C and the paternal grandmother. The mother acknowledged that if the child moved to Cairns he will not have the same relationship with his sister C and his paternal grandmother as he would if he remained in Tasmania. The mother said this has to be weighed against the detriment to her state of mind.
I accept the evidence of the mother generally (although it is coloured by her own perceptions). However, I treat her evidence as being frank and generally reliable. All in all, the mother was an impressive witness.
Ms K
Ms K provided an affidavit filed 8 April 2013. This provided some support in relation to the allegations of abuse and violence by the father to the mother. This affidavit would have been necessary if the father had continued to prevaricate in relation to his violent behaviour.
Ms K’s affidavit was read into evidence but in some areas contained conclusions and character type comments which are of little assistance in these proceedings.
Ms K was a highly partisan witness. This affidavit being of a cheer-squad variety and of supposition (such as paragraphs 34 and 35) it was given no significant weight.
Ms M
Ms M relied upon her affidavit filed and sworn 1 March 2011. Ms M is a friend of the mother and provided evidence of the violence exhibited by the father to the mother.
Her evidence was reliable but coloured and was at some level of a character nature. As the issue of the violence was not contested the evidence of Ms M was not in any way significant in terms of the outcome of these proceedings.
Ms N
Ms N is a friend of the mother. Ms N provided an affidavit filed and sworn 2 March 2011.
Ms N’s evidence was originally provided in support of the allegations of violence which were no longer in issue. She is a friend of the mother and is aligned to the mother. Her evidence is not significant in terms of the primary issues in these proceedings.
In relation to Ms K, Ms M and Ms N I am satisfied that they are evidence of the support available for the mother in Tasmania should she decide to remain in Tasmania or had this Court not have determined that the mother could move to Cairns.
Mr H
Mr H confirmed his affidavit filed 8 April 2013. The affidavit was read into evidence.
Mr H is in an intimate relationship with the mother and spends a few nights a week at her home. The mother rarely spends time at Mr H’s home.
The mother and Mr H are planning to commence living together when he and the mother move to Cairns. Mr H has skills in a specific section of a retail store. He has made enquiries and believes that he can transfer his work to Cairns without any difficulty and retain his paid employment.
Mr H observed the behaviour of the child on his return from the father particularly in 2013. I accept his observations are accurate.
Mr H is aligned to the mother but endeavoured to give evidence frankly and in a straight-forward way. He has confirmed the mother tries to shield the child from her concerns about the father.
He is supportive of the mother and has known her for many years. Mr H has a property in Tasmania which he would like to retain but is content to sell that property to acquire a property in which the parties can reside together in the Cairns area.
Mr H’s evidence is generally reliable and I accept his evidence.
Ms O
Ms O was the mother’s treating Clinical Psychologist and she provided evidence as is contained in her affidavit filed 29 August 2013. Attached to the affidavit are details of Ms O’s professional qualifications and her report dated 20 June 2013. This report was in response to a letter from the mother’s then solicitor, Patrick Fitzgerald, dated 3 February 2013.
That affidavit was read into evidence and Ms O was cross-examined in relation to that material. There was no challenge to her qualifications and I accept that she is a qualified clinical psychologist.
The mother had initially seen another psychologist Ms G, who moved on. The mother was then referred to Ms O in February 2013. At the time the report was prepared Ms O had seen the mother on four occasions. She had seen the mother on nine occasions since August 2013. As Ms O has also moved on the mother has been transferred to another psychologist.
The evidence of Ms O, which I accept, was that the mother should seek treatment from a psychologist in Cairns (presumably if the mother is permitted to relocate with the child). Ms O concluded that the mother was suffering from an Adjustment Disorder with mixed anxiety and depressed mood. Ms O said, and I accept, that by definition such a disorder will last no longer than six months after the stressor or its consequences have ceased. If the stressor persists the disorder may also persist.
The stressors which were significantly impacting upon the mother were the court proceedings (which are likely to conclude with these reasons and consequent orders) the mother’s concerns about the father spending unsupervised time with the child and the proximity of the father to the mother (notwithstanding that the father had barely seen or communicated with the mother over the last four years).
Ms O believed that she had been informed by someone that the mother had been subjected to physical violence. It is not in issue that the mother was not subjected to physical violence. I accept the evidence of Ms O that there can be a difference in terms of physical violence and emotional and verbal violence. However, I accept that the mother exhibited a range of symptomology as set out in Ms O’s report.
These included a depressed mood, Amotiviation, Anhedonia, a sense of hopelessness and social withdrawal. I am satisfied that the expert opinion provided about the mother by Ms O was reliable. Ms O had Dr F’s first report and gave it significant weight.
The mother had been taught coping mechanisms in relation to being able to cope with the unsupervised time including relaxation techniques, worry containment and mindfulness techniques. Ms O said that this sometimes alleviated problems and sometimes did not. Ms O gave evidence, and I accept that the mother understands the techniques and is well equipped to continue with them.
Ms O also said the mother was concerned about the child’s physical and emotional care. She did not think the mother was fragile, she was quite high functioning but at present she is functioning under high levels of stress.
Ms O was cross-examined as to the support systems in Tasmania (which I find were as good if not better than those available in Cairns) and said, and I accept, that the support network had not had sufficient impact to mitigate the mother’s symptoms.
I generally accept the evidence of Ms O and I am satisfied that the concerns identified by her in terms of the mother’s psychological health are real and not fabricated.
Mr Anderson
Mr Anderson is the child’s maternal grandfather and he provided evidence contained in his affidavit filed 7 February 2014. The maternal grandfather lives in Tasmania and he and his wife provide significant support to the mother. The maternal grandfather sees the child at least twice per week and has seen some of the difficulties arising after the child has returned from the father’s care. I am satisfied as to the accuracy of that evidence.
The maternal grandfather generally spends up to two or three months per year outside Tasmania when he travels to Cairns to visit his family.
The maternal grandfather’s present wife spends more time in Tasmania and provides support for the mother. The maternal grandfather says, and I accept, that he and his present wife are considering moving to Town P (south of Cairns). No final determination has been made in relation to that consideration.
The maternal grandfather is supportive of the mother, his evidence was frank and clear.
Ms R Anderson
Ms R Anderson is the child’s maternal grandmother who lives in Cairns. She and her former husband separated when the mother was in her early teens or thereabouts. She has retired from paid employment and lives with her present husband in a large home south of Cairns.
The maternal grandmother is supportive of the mother and her affidavit filed 24 September 2013 was read into evidence. She is able to provide Skype communication between the child and the father if called upon to do so. The maternal grandmother said, and I accept, that she will support a relationship between the child and the father. I also accept that she will provide significant support to the mother.
The maternal grandmother generally travels to Tasmania about once a year (normally in about March or April) and spends about four weeks in Tasmania.
The maternal grandmother was not seriously challenged in relation to her evidence and I accept that her evidence is reliable, although somewhat coloured by her support of the mother.
Dr F
Dr F was appointed as the single expert for these proceedings, and she prepared a report dated 31 October 2011 (“the first report”) which was annexed to her affidavit filed 1 November 2011 and was read into evidence. Part of the material relied upon by Dr F (“the Single Expert”) was a report prepared on the father from Ms Q dated 1 August 2011.[9]
[9] Exhibit ICL10.
In addition to the first report, the Single Expert prepared a second report dated 23 July 2013 which was attached to her affidavit filed 24 July 2013 and read into evidence (“the second report”).
There was no issue taken as to the qualification of the Single Expert and I am satisfied that she is highly qualified forensic and clinical psychologist and is able to provide her expert evidence.
In her first report the Single Expert expressed the opinion that the mother’s psychological conditions did not affect her parenting capacity to provide for the child and his needs. However, she said in her report that the violence inflicted upon her by the father distressed her and that such distress was continuing.
In her second report the Single Expert observed that the mother still described fear and anxiety in relation to the child’s visits with the father. She opined that the mother presented as psychologically worn down by the situation of facilitating access visits between the child and his father and the anxiety it caused her particularly in terms of her ongoing desire to move to Cairns to be with her extended family.
The Single Expert went on to opine that the mother’s psychological health is clearly affected by the ongoing conflict and the mother saw no end in sight. Having regard to all of the circumstances the Single Expert recommended that for the sake of the mother’s psychological health she ought to be permitted to relocate with the child to Cairns.
In evidence Dr F said as to the psychological effects, that for the mother it was something that may not be able to be fixed. That the long term effects of the family violence on the mother were severe but that her relocation to Cairns and being remote from the father (together with the end of these proceedings) would assist the mother in coping with the consequences of that violence.
In assessing the mother and the father the Single Expert did not observe the father interacting with the child, nor did she see the child interacting with his sister C. The Single Expert said that the child was relatively young at that time (aged about three and a half) and was in an early verbal stage. The observation of the child with the mother was sufficient in the circumstances. The Single Expert said she had formed a view that the child had a close and loving relationship with his sister and that relationship was a nurturing relationship. She gave weight to the good relationship between the child, the paternal grandparents and the child and the father.
I do not accept or adopt the criticism made by counsel for the father of the Single Expert of not observing the child with the father. Having regard to her experience and explanations I am satisfied with the approach that she adopted.
In recommending a relocation enabling the mother and child to move to Cairns (and in having regard that the ultimate decision was the Court’s decision and not the psychologist) the Single Expert was alert to the impact on the relationship between the child and the father, the child and his sister and the child and his broader family.
In giving her evidence the Single Expert was aware that the Court proceedings could soon be at an end and that the father had consented to an order that the mother have sole parental responsibility of the child. However, her evidence was that this ought to be seen in the context of the mother co-existing with the father in the same Tasmanian community which is very hard on the mother.
The Single Expert said the delay in the mother moving to Far North Queensland to enable a continuation of relationship between the father and the child in all of the circumstances, is a sound approach.
The Single Expert opined that in her view the emotional well-being of the mother (given the history of family violence and its impact upon her) that the emotional wellbeing of the mother as primary carer, outweighed the impact of a diminution of the relationship between the father and C. She was aware C and the child had one sibling, that is, each other. This determination was not one for Dr F but for me.
The Single Expert was concerned about the aggressive behaviour exhibited by the child and referred to in paragraph 22 of her second report. She was asked what the causation of that behaviour was and she said she cannot say how that arose.
It was put to her in cross-examination that the behaviour exhibited by the child may have arisen as a result of the mother and her family’s approach to the father in their household. Similar to the evidence of the Family Consultant, the Single Expert said that the smooth changeover from supervised to unsupervised time and the smooth transfer of the child from the mother to the father almost inevitably arose from the encouragement and support of that process by the mother. I accept that the mother has encouraged and supported the times that the child spends with the father, notwithstanding her distress at such contact occurring.
In terms of the father’s admissions of family violence, the Single Expert said initially there was no admission and later there was some slight movement. She could make no comment as to the reason the father made the disclosures during the course of the hearing but said that it would be to some advantage to the mother.
I accept the assessment of the mother by the Single Expert and the profound impact that the family violence has had upon her.
Ms S –Family Consultant
In October 2012 (approximately 16 months before the hearing) a family report was prepared by Ms S, the family consultant. She had the opportunity of observing both parties individually and with the child. Her report was read into evidence.[10]
[10] Exhibit ICL9.
There was no issue in relation to the qualifications of Ms S, (“the Family Consultant”). The Family Consultant had read the report of the Single Expert and the Contact Centre reports before preparing her report. The Family Consultant saw each of the parents with the child over a period of about 45 minutes. Those interviews appear to have taken place on or about 23 October 2012.
As to Dr J’s report the Family Consultant said, and I accept that:-
A self-reporting questionnaire is as reliable as the information provided in the questionnaire and that the absence of other objective material can reduce the reliability of that report.
In dealing with the father, the Family Consultant said he was not keen to report on the abuse and seemed to minimise the violence. I accept that evidence.
The Family Consultant reported:-[11]
…If [the mother’s] allegations of [the father’s] abusive behaviour are valid, then her concerns about [the child’s] safety in his father’s care are reality based.
[11] Exhibit ICL9, paragraph 46.
The father has now generally acknowledged the whole of the allegations of violence and I accept the mother’s fears for her safety are reality based.
The Family Consultant gave evidence that sibling relationships are important and perhaps the longest lasting relationship. It teaches children sharing, playing and recovering from disagreements.
The Family Consultant was cross-examined in relation to the Single Expert not having observed the child with the father. She said that seeing the child with the father had value although on her evidence the failure to do so did not necessarily impeach the report provided by the Single Expert.
In relation to the child’s language, the Family Consultant was shown the assertions made by the mother in her January 2014 affidavit. The Family Consultant said that this type of behaviour was likely to have arisen because of something that the child had observed in the father’s home. She said it was unlikely to have arisen in the context of a licenced child care facility.
The Family Consultant said, and I accept, that the arrangements at the Contact Centre, both supervised time and unsupervised time have run, in all of the circumstances, relatively smoothly. She said this has arisen by virtue of the mother and Mr H supporting the Court orders and encouraging the child to go willingly to the Contact Centre. Her evidence was that the mother is likely to facilitate the relationship between the child and his sister and facilitate the time between the father and the child.
The Family Consultant was cross-examined as to whether that smooth transition could simply be a reflection of the father’s good time with the child. The Family Consultant said that is unlikely even if he was the best of parents and went onto say that it is the support of the mother that appeared to be crucial.
I am satisfied that there is no evidence that the mother has endeavoured to undermine the relationship between the father and the child since about March 2011. It is far more likely that she has encouraged and supported their relationship having regard to the evidence of the Family Consultant.
The Family Consultant was cross-examined in relation to the mother’s mental state on the parenting of the child. The Family Consultant said the mother could quite properly parent the child but if the mother had a more positive mental health, was happy, and safe then she could be a better parent. I accept that view and I accept if the mother is permitted to move to Cairns she would be better able to parent the child and better able to manage her anxiety and other psychological issues observed by the mother, the Single Expert and Ms O.
The Family Consultant gave evidence that the telephone calls between the father and the child would not be constructive as they would be stressful for the mother given the history of the relationship; the age of the child and the need for the mother to supervise or manage those calls.
I accept the evidence of the Family Consultant and the assessment she made, albeit somewhat dated. She was not in any way impeached as to the quality of her evidence and her observations of the relationship between the child and both parents were of value.
Having regard to the evidence of the Family Consultant, the mother and Mr H I am satisfied that the assertions of what the child has said after coming back from spending time with the father are generally accurate (there may be some level of exaggeration or seeing the evidence via the mother’s jaded perspective of the father).
However, it is likely that antipathy to the mother and Mr H has continued in the father’s house. I am troubled by the father’s denial and that of the paternal grandmother.
Evidence of experts
The expert evidence was useful in assisting me coming to the conclusions that I have come to. However, such conclusions have been reached by an assessment of the evidence and all of the relevant factors pursuant to s 60CC of the Act.
I am conscious that the experts do not have the breadth of evidence as it was before me and the same opportunity to weigh that evidence against the evidence of other witnesses’ objective statements and the determination as to the reliability of that evidence.
VIOLENCE
There is no issue that the father engaged in family violence. The mother maintained a diary and recorded a change from the father’s behaviour after April 2009. In her affidavit filed 8 April 2013 she sets out the father’s violent behaviour in great detail.[12]
[12] At paragraphs 12 to 160 of the mother’s affidavit filed 8 April 2013.
It is not in issue that the father engaged in ongoing family violence against the mother from early to mid-2009. The father did not significantly dispute the facts asserted by the mother as to the extent, persuasiveness and consistency of the violence.
This included irregular use of foul and demeaning language and intimidatory expressions. The father initially threatened the mother but in a way which was conditional such as:-[13]
… You are lucky you are a female, or I would kick your teeth in …
[13] Ibid at paragraph 15.
The father used demeaning language and controlling language. He demeaned not only the mother but members of her family. It serves no constructive purpose to repeat that material in these reasons. His physical threats became more intense as the pregnancy continued.
It is not in issue that about on 5 September 2009 when the father saw that his elder child C, then aged about three years, had made a mess with sunscreen during the evening, the father yelled and verbally abused that small child and kicked her in the buttocks twice. He then took her to the bathroom, later grabbing a wooden spoon. The mother does not know whether the father hit the child with the wooden spoon. The father’s evidence was that he smacked the spoon on a solid surface (not C) heavily to intimidate the child. He used obscene and abusive language to the child and when the mother endeavoured to intervene to protect this child the father said to her:-[14]
… F… off c… or you will get it.
[14] Ibid at paragraph 23
The mother was scared of the father.
The level of abusive violence and threats by the father to the mother increased as the months passed.
In July 2009 the mother went out with the father to a night club in Hobart. The father became drunk and became physically abusive on the dance floor. He threatened, abused and pushed other people in the area and was anxious to have a fight with staff at the night club. The father did not dispute those events.
Many of the allegations made by the mother were supported by her diary and evidenced by friends such as Ms N and Ms K.
The abuse continued after the birth of the child and the threats became more direct and intensified. Separation occurred in late January 2010 or 1 February 2010.
Following separation the father continued to use abusive and obscene language and engage in abusive and controlling behaviour of the mother. The abuse towards the mother often occurred in the presence and or hearing of C. As such she was regularly exposed to violent and abusive conduct by the father.
The father’s anger was recorded back to as early as his time serving in the military. During that time in service the father suffered a knee injury with consequent pain and he exhibited episodes of explosive anger.
Prior to 2004/2005 the father was in an intimate relationship with Ms T. During that relationship the father was physically, emotionally and verbally violent to Ms T. Ms T sought and obtained a family violence order. The father pleaded guilty to six breaches of that order. On the evidence, I am satisfied that the father was significantly violent to Ms T during that relationship.
The father then formed a relationship with Ms D. C was a child of that relationship between the father and Ms D. There were proceedings between the father and Ms D in relation to family violence orders and various family violence orders were made. Eventually a final family violence order was made in about 2007.
The father pleaded guilty to five breaches of family violence orders. In addition, he pleaded guilty and was convicted in relation to a common assault of Ms D’s father.
The father presently lives with his parents. He is in receipt of a pension arising from his military service and works part time as a tradesman. His financial circumstances are set out in his financial statement.[15] The father said that the material contained in his financial statement was correct.
[15] Exhibit ICL1.
He continues to see his daughter C on a regular basis.
The father received treatment in relation to his anger whilst in the military and after he left the military. He undertook a course conducted on Moderating Abusive Behaviour prior to entering into a relationship with the mother.
After the relationship with the mother came to an end the father saw someone from that organisation on a number of occasions to assist him with the management of his anger.
The father had seen Dr J, a psychiatrist, on a number of occasions, however from the material provided by Dr J and from concessions made by the father; this seemed to be more by way of assessment rather than treatment. The father sees his General Practitioner, Dr U, about once per month but this mainly relates to physical injuries.
The father had a mental health treatment plan with Ms Q. He also saw Dr V in relation to treatment.
The father’s evidence is that he believes he has changed since the failure of his relationship with the mother. He says he has received some assistance such as that from Dr J, the counsellors at W Organisation and his own emotional growth. The father says he is no longer abusive and violent. I am not confident that this is accurate evidence having regard to his history and his previous approach in minimising his violence (as referred to by the Single Expert).
The father has not spoken to the mother since 2010 and his anger is still, at some levels apparent.
In late April 2013 the mother recorded in her diary that she sought the consent of the father to sign a form to enrol the child in X School. The father’s response was that the child should go to the same school that his sister C went to and said “any further discussions on [the child’s] schooling is to go through the courts”. [16]
[16] Exhibit ICL7 – extract from Communication Diary.
This was an aggressive approach in circumstances where the father, on his own evidence, conceded he could not meet the cost of the child attending at that school.
It was necessary for the mother to commence proceedings for that purpose, although, it was likely that a consent order was subsequently made. The father conceded he did not respond to letters sent by the mother’s then legal advisor. He waited for the matter to come to court. He obstructed and delayed the process.
The father was treated by Dr Y, Dr V and Dr Z.[17]
[17] Exhibits ICL2, ICL3, ICL4, ICL5 and ICL6.
Dr Z, in his report, observed that the father conceded he was violent towards his intimate partner and others.[18] He made similar concessions to Dr Y.[19] The father conceded to Dr V that he had been verbally abusive to the mother.
[18] Exhibits ICL6.
[19] Exhibits ICL2, ICL3 and ICL4.
The father was asked whether he physically hurt his first partner. It was asserted that he broke her nose. The father said he could not recall ever punching her. I am not satisfied that this answer was frank.
At the time the dispute arose which resulted in Ms D’s father being assaulted the father asserted that he was ‘baited’. The father said he has not been in breach of the Police Family Violence Order made against the mother whereas in the past there was evidence that he had breached those orders. The father said he avoids this by using deep breathing and he is much older.
In some of his evidence the father said that the mother had used foul language to him. In cross-examination he conceded this normally occurred later into an argument where he would have commenced using appalling language and that the mother, on some limited occasions, used words of a similar colour back to him in response.
The father said that the completion of his ‘Changing Abusive Behaviour’ course was successful. He said he undertook this course before he met or formed a relationship with the mother. The father’s measure of success was that he was only verbally abusive not physically abusive.
The father was asked why he abused the mother in her home. He said she did not do anything to make things awkward in the home: he just did not want to be at that house.
The father conceded that he said he was friends with a ‘well-known local politician’ and that he threatened the mother that if she tried to leave the State of Tasmania she would be prevented from doing so and he would get shared care.
There is no issue that he said that and I am satisfied that this was a threat made to the mother. It is clear that some of the abuse occurred in the presence of his child C, in front of whom the father was, at that time, uncontained.
The father was cross-examined as to why the child has recently started using poor language. The father denied it was because of him and said if it occurred in the mother’s house it may have come from his mother.
The father’s finances are such that he would struggle to afford to pay for more than one or two trips to Cairns a year. I accept his evidence that there is a good relationship between the child and his sister, C.
The father has clearly discussed this matter with his daughter C. He gave evidence that when she was informed that the child may be going to Cairns she cried.
The father acknowledged that the mother had a good relationship with C although he said that he believed she was jealous of her.
During the course of re-examination the father said that he would be prepared to consent to an order that there be no corporal punishment in relation to the child. Having regard to the father’s admission of the assault upon his daughter C in 2009 and with the consent of the mother, I am satisfied that such a consent order ought to be put in place.
CONSIDERATION OF THE SECTION 60CC FACTORS
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents;
Irrespective of these proceedings, the child will continue to have a meaningful relationship with his mother. The substantive issue is the meaningful relationship with his father.
It is unlikely that the father will be able to travel to Cairns more than once or twice per year. The mother has agreed to fund one trip per year. To require her to fund a second trip would set her up to fail. I am satisfied that the father would be able to fund at least one possibly two trips per year.
The father has a relationship with the child, and having regard to the evidence of the Family Consultant (albeit some years ago) I am satisfied that it is a meaningful relationship.
The mother asserts in her affidavit that she is committed to ensuring the child has a meaningful relationship with the father. To that end the mother has followed the orders to date and, on at least one occasion, had agreed to additional time although this was not implemented as the father did not pursue that change. The mother has emotionally and practically facilitated the child’s time with the father.
Meaningful is not defined by the Act and has been considered to be ‘significant’, ‘important’ and ‘inconsequence’. It is a prospective consideration.
I am satisfied, in this case, that a relationship can be maintained via Skype communication between the child and his father, sister and broader family. The father will have a period of just less than one year to further secure that relationship to ensure that it continues into the future, if the relocation is permitted.
Notwithstanding the difficulties I am satisfied that the child’s relationship with the father will continue in a meaningful way, whether or not the child lives in Hobart or Cairns.
There is no issue that there is a benefit to the child of spending time with both parents and having a meaningful relationship with the father. I accept the child is young and, up to the date of hearing, has had limited time with the father bearing in mind the history of the parties and the circumstances.
The father expresses love for the child and the child has a close and nurturing relationship with his sister C (aged seven).
I accept that the time the father spends with the child in Tasmania on a weekly or fortnightly basis will enable a better relationship to develop than the limited time that the child would see the father in Cairns.
Section 60CC(2)(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 Independent Children’s Lawyer submitted, and I accept, that given the father’s background involving family violence, there is a reasonable likelihood of there being some form of family violence into the future.
This is not likely to be physical violence but is likely to be some form of verbal abuse when things do not go well for the father.
The father suffered an injury whilst in the military but then exhibited aggressive behaviour at that time. He was physically and emotionally violent to Ms T and was emotionally violent (at least) with his subsequent partner Ms D. For each of those relationships family violence orders were made and the father admitted to breaching those orders.
The Independent Children’s Lawyer outlined the extent of the family violence to which the father subjected the mother. The language and the nature of the language, abuse, and the threats, were profound and continued for a period of over one year. In coming to these conclusions I am conscious that the father has endeavoured to seek treatment for his explosive, violent behaviour.
At times, in the past, the father has not been able to contain himself. He was convicted of an assault on his previous girlfriend’s father. He acted in a violent and aggressive way at a social outing with the mother and her friends in mid-2009.
On 11 April 2010 the mother rang Ms K and this evidence was admitted without controversy:-[20]
25 … That day [the mother], while sobbing and sounding extremely scared, said she thought she would end up dead. She also said to me that if anything should happen to her, take her diaries to the police. …
[20] At paragraph 25 of Ms K affidavit filed 8 April 2013.
The mother said:-[21]
116.On 11 April 2010 I received a text message from [the father] demanding to know who had [the child] the previous night when I went to a mutual friends party. I replied that ‘dad’ and ‘my step mother’ had him. I then received a tirade of abusive text messages from [the father]. …
[21] At paragraph 116 of the mother’s affidavit filed 8 April 2013.
The detail of that text message was read into evidence.[22]
[22] Exhibit M2.
After those threats the father came to the mother’s home and made other threats that were set out in paragraph 118 and 119 of the mother’s affidavit.[23]
[23] Filed 8 April 2013.
There is no issue that this is what the father said and that these were serious and terrifying threats to the mother.
In his submissions counsel for the father suggested and implied that little weight be given to the violence the father inflicted upon the mother. The father challenges the impact of his violence upon the mother. He said that she maximises the issue of family violence. I reject those submissions.
The father asserted that he has not breached the Police Family Violence Order and has had limited contact with the mother. I accept that that is the case, however, I do not accept his minimisation of the violence and the impact of the violence on the mother.
The father claimed that the mother used language similar to his and I have dealt with that elsewhere. The mother’s language was responsive. The mother says that she did use inappropriate language in response to his strong use of language to her. She said she did so and she admitted to the use of that language but it was far away distant to the threats and violence that were inflicted upon her by the father.
The mother is genuinely fearful of the father and I accept the evidence of
Dr F that that damage to the mother may, in her circumstances, be unable to be repaired.
Section 60CC(3)(a) any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
The child’s wishes do not give effect to this section.
Section 60CC(3)(b) the nature of the relationship of the children with:
i.each of the child’s parents; and
ii.other persons (including any grandparent or other relative of the child);
The mother is the child’s primary carer and has been since birth. There is no issue that he has a very close relationship with his mother, her father and her father’s present partner.
The child has a good relationship with the father, albeit that such relationship has been limited over the years since separation. The child has a good relationship with his paternal grandparents, his paternal uncles and his paternal cousins.
The child has a particularly close relationship with his sister.
Section 60CC(3)(c) the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent;
The father asserts the mother has not supported the relationship between the child and him. I reject that assertion. On the evidence of the mother, Dr F and the Family Consultant, despite her fears and the impact of the family violence, the mother has encouraged and facilitated time between the child and the father.
To that end I accept the evidence of the mother, Mr H, the Family Consultant and the Single Expert. The arrangements through the Contact Centre would not have occurred as effectively and as smoothly as it has without the real support of the mother, and to a lesser extent Mr H.
The father raised concerns about the problems in March 2013 which he asserted arose out of him seeking overnight time with the child. There were certainly some difficulties that month however, I do not accept that they arose out of his application to spend overnight time with the child.
The child exhibited some reluctance to go to the father and the mother engaged in the process with the Contact Centre which facilitated time which then proceeded normally. As such I reject counsel for the father’s submission that the mother does not support the relationship between the child and the father. The mother is not happy about it but she certainly does not undermine it and ensures that it goes ahead and I am satisfied that if the mother is permitted to move to Cairns she would continue to facilitate this.
The mother acknowledges and supports the relationship between the child and his sister C. The mother accepts the relationship between the child and the paternal grandmother and is unlikely to undermine that relationship.
The mother has conceded that some overnight time should occur but is clearly troubled by it and looks to the paternal grandmother to assist in that process.
Section 60CC(3)(d) the likely effect of any change in the child’s circumstances, including the likely effect on the child of any separation from:
i.either of his or her parents; or
iiany other child, or other person (including any grandparent or other relative of the child) with whom he or she has been living;
If the child remains in Tasmania he will be supported in his relationships with the father, his sister, the father’s family, his cousins and other members of the father’s extended family.
The child has lived in Tasmania all of his life. This is the same for the mother and her partner, who have resided primarily in Tasmania all of their lives.
I accept the effect of any change would be profound, and I have given that fact significant weight in terms of the determination to be made by me. The child would be separated from his sister C, the father and the father’s family for much of the time. The contact and communication the child has with the paternal side of his family would be very much circumscribed.
On the other hand the mother would be better able to cope with the consequences of the family violence and would be able to better manage the psychological impacts of those events and the time the child spends with the father.
Section 60CC(3)(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;
I accept that the financial circumstances of both parents are limited. I do not accept that the father’s financial circumstances are as limited as he asserted. The father does manage to pay school fees for C of about $5,000 per year. I am satisfied that whilst his financial circumstances are limited, that he would be able to raise sufficient monies to travel at least once a year to Cairns.
I likewise accept that the mother’s financial circumstances are limited and I accept that an order requiring her to travel from Cairns to Hobart more than once a year would impose a significant financial burden and would set her up to fail.
The practical difficulties, distance and cost of travel and accommodation with the child and mother living in Cairns and the father living in Hobart are significant. No such difficulties arise if the mother remains in Hobart.
There is a practical difficulty in the mother continuing not to cope if she is refused permission to relocate to Cairns having regard to her psychological health.
Section 60CC(3)(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 mother submitted that she has been, and continues to be, the child’s primary carer since his birth. She says she has provided for his emotional and financial needs. The mother asserted, and I accept, that the father has failed to meet the needs of the child financially as he has only paid minimal child support for the child. The mother asserts the father is in arrears of child support and says that payments are sporadic. She says that when the father does pay it is $50 or $100 rather than $78 in accordance with his assessment.
In submissions the mother asserted that the father is unable to meet the emotional needs of the child as the child returns from spending time with the father either upset or exhibiting aggressive behaviour. The mother says she is concerned that any increase in time between the father and the child will result in the child becoming unsettled and distressed.
In submissions counsel for the father asserted that the mother’s views of the father’s capacity to care for the child were based on undue suspicions. He asserted that these suspicions arise from the family violence the mother experienced during 2009 and to June 2010. He asserts the mother says it’s ongoing through the child and the school enrolment disagreement.
It is clear that the father loves the child and works hard on the relationship. He lacks insight into the impact of his violence upon the mother, and having regard to the expert evidence he is at times self focused rather than child focused.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents; and any other characteristics of the child that the court thinks are relevant;
The father made no submissions on this factor.
Counsel for the mother submitted that the child is a very likeable and friendly person who makes friends easily. It was submitted and given the evidence of the mother, the Family Consultant and the Single Expert and the age of the child, I am satisfied that if he is permitted to relocate he would easily adjust to that change. Added to this is that the child commences full time school in 2015 and that would assist in adjustment.
I am satisfied and find that the mother will continue to support the child in attending extra-curricular activities including sport.
Section 60CC(3)(h) if the children 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);
iithe likely impact any proposed parenting order under this Part will have on that right;
Neither the father nor mother addressed this as a factor and as such it is not a relevant consideration in these proceedings.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
The father is well able to meet the physical needs of the child. He has at least equal shared time in relation to the parenting of C.
I am not convinced as to the father’s capacity to meet the emotional needs of the child. In that regard I repeat the issues of family violence which I have referred to elsewhere.
I am concerned about the reaction of the child returning from time with the father together with the child’s use of obscene language, aggression and the like after spending time with the father and at his parent’s home. I am not convinced that the child is protected from anger and poor language at the father’s household. I am concerned that this behaviour of the father is likely to continue in some form into the future.
To some extent this may be ameliorated by the consent orders restraining the parties from abusing, demeaning or belittling the others and preventing physical discipline. Although, without reflecting on these parties, such orders are more often met in breach rather than compliance and such orders sometimes lead to further litigation between parties.
The father says he provides child support for the child. He does, but it is a very modest sum particularly having regard to the father’s ability to pay child support for C at apparently a higher rate, plus her school fees.
I accept that the father has engaged in counselling. What is worrying is that the father undertook the training in a course with regard to his violence after his relationship with Ms D and before his relationship with the mother, and yet the mother was exposed to significant violence.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family;
and
Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family;
ithe order is a final order; or
iithe making of the order was contested by a person;
I have dealt with this elsewhere in these reasons. I am aware of the serious family violence perpetrated by the father on the mother, his history of family violence, the history of the Family Violence Order and breaches of the Family Violence Order. I am conscious of the assault by the father on C, which I accept took place and the father exposing C to the emotional abuse which he perpetrated on the mother, as set out in the mother’s primary trial affidavit.[24]
Section 60CC(3)(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;
[24] Filed 8 April 2013.
Preventing the mother from relocation is likely to leave her in a place where she does not want to be and in difficult emotional circumstances. That may lead to further proceedings. Either result will end in ongoing proceedings.
Irrespective of the outcome and having regard to the age of the child, it is likely that the parties will need to negotiate some change as the years progress and as the child becomes older.
If the parties’ inadequate communication continues there will inevitably be further court proceedings. To that end I have put in place some arrangements in the form of a communication book and allowed emails (despite the views of the Single Expert).
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant;
I have considered all of the relevant evidence before me.
Section 60CC(4) the extent to which each of the children’s parents have fulfilled or failed to fulfil their responsibility as a parent and the particular extent to which the child’s parents:
(a)has taken or failed to take the opportunity
i.to participate in making decisions about the major long term issues in relation to the child; and
ii.to spend time with the child; and
iiito communicate with the child.
(b)has facilitated or failed to facilitate, the other parent:
i.participating in making decisions about major long-term issues in relation to the child; and
ii.spending time with the child; and
iiicommunicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
Section 60CC(4A) if the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to the events that have happened, and the circumstances that have existed since the separation occurred.
I have had regard to the events that have happened and the circumstances that have existed since separation finally occurred on 1 February 2010.
In coming to the conclusions in these proceedings I have reflected on all of the evidence to consider the extent to which the child’s parents have fulfilled or have failed to fulfil their responsibilities as parents as set out in s 60CC(4). In having regard to all of the material before me and all of the findings of fact I determine that in my view the best interest of the child are served by the orders set out at the commencement of these reasons.
Nothing new arises out of the considerations of the matters in s 60CC(4) and (4)(A) which have not already been discussed in detail in these reasons. I have dealt with almost all of those issues in these reasons so far.
DISCUSSION
The mother had a difficult time in her teenage years. Her parent’s marriage failed and her teenage years were unsettled.
When she met and formed a relationship with the father she regarded it as idyllic and from her perception, there were no problems in that relationship.
It was planned that the mother would fall pregnant although, this occurred much earlier than was anticipated by the father. From the time shortly after the mother announced her pregnancy, in or about April/May 2009 until June 2010, the mother was subjected to extraordinary emotional and verbal abuse and threats of violence.
The Family Consultant, described the father’s violent behaviour, to which the mother was exposed by the father, as more extreme than she had ever heard of in the context of her work. This related to the rejection of the child and the emotional abuse on the mother. This expression needed to be seen in the context that the Family Consultant has been employed by the Family Court as a family consultant since 1998, therefore the comparisons in relation to the Family Consultant’s experience is over 15 to 16 years.
The mother was diagnosed by Ms O as suffering from an adjustment disorder with mixed anxiety and depressed mood.
The proceedings, the mother’s ongoing interaction with the father and her sense of fear that the child will be exposed to this form of behaviour and that the child may adopt this form of behaviour is persistent and consistent and has had a significant impact on the mother.
The mother is still tearful and highly anxious. She has the support of her father (who lives for a considerable amount of the year in Tasmania), her new partner Mr H (who is supporting of her) and friends.
The mother’s maternal grandmother died in 2013 and this event has had a profound impact on the mother, as her grandmother provided a stable and supportive base when the mother was in her teens.
The mother does not trust the father given the pervasive, intimidatory and abusive behaviour to which she was exposed, over a significant period of time and during the time when she was emotionally vulnerable, that lack of trust is not unreasonable.
I accept the mother’s evidence that her continued primary residence being in Tasmania will continue to profoundly and detrimentally impact upon her and her ability to parent the child.
The mother has so far managed parenting adequately and I accept the evidence of the Family Consultant that the times between the child and the father could not have occurred as smoothly as they did without the mother’s support of the court orders.
I am satisfied that the mother and Mr H are likely to support the orders into the future. Given all of the circumstances I am satisfied that the mother ought to be allowed to relocate to Cairns, and in the overall circumstances of this case, it is in the best interests of the child.
In coming to this conclusion, I have carefully weighed the relationship between the child and his paternal grandmother and the child and his sister C.
I have also considered the impact of this relocation upon the child’s relationship with his father. However it is, in my view, on balance in the best interests of the child to allow the relocation of the mother and the child from Hobart to Cairns.
I do not intend that this should occur immediately and I accept the submissions of the Independent Children’s Lawyer that it ought to occur in January 2015 and that steps ought to be put in place to further secure the relationship between the child, his father, his paternal grandparents and his sister.
To that end I will be putting in place orders which will enable the child to spend more time with the father building up to alternate weekends by late 2014.
The mother’s fears about the father’s care of the child can be significantly alleviated by the paternal grandmother being present on overnight occasions. I will not make an order to that end as it may at times preclude the child spending time with his father and sister. I will note the importance of it in the orders.
I do not intend to make orders for telephone communication between the child and the father for the remainder of this year given the evidence of the Family Consultant that this would impose a further burden on the mother this year and that it is unlikely to work bearing in mind the age and maturity of the child and the mother’s need to oversee the telephone calls.
The mother did give evidence that her mother (the child’s maternal grandmother) has Skype facilities in Cairns. With the assistance of the maternal grandmother it would be possible, in those circumstances, for the child to have regular Skype communication with his sister, paternal grandmother and the father and I will make orders to that effect.
RESIDENCE
It is in the best interests of the child that he live with the mother. The parties and the Independent Children’s Lawyer submitted an order ought to be made by consent to this effect. Given the evidence and findings I have made that final order.
SPEND TIME WITH
The Independent Children’s Lawyer recommended that the mother be permitted to relocate to Cairns with the child. She recommended this occur in mid January 2015 to enable a build up of the relationship between the child and the father and a continuation of the relationship between the child and his sister C for the remainder of 2014 and the first two weeks of 2015. Given the impact of the father’s past violent behaviour on the mother and the age of the child, I have not fully adopted the recommendation by the Independent Children's Lawyer, but I have instead made orders for time which increases over that period but at a slower rate and it generally concludes at 12 noon on Sundays. The times in the late 2014 year, prior to relocation, have been set as from Saturday to Monday.
Apart from a reduction of one trip to Tasmania per year rather than two (which the mother said she could not afford and to make such an order would have set her up to fail) the mother supported the orders sought by the Independent Children’s Lawyer.
RELOCATION
The mother’s case was that she wanted to move to Cairns as soon as possible but her approach changed and the mother later supported the submission of the Independent Children’s Lawyer that relocation occur in January 2015. The father’s case was that the mother should not be permitted to move to Cairns with the child.
The complexities of cases involving the relocation of a child’s residence interstate or overseas are difficult matters for courts to determine. They have important consequences for both children and parents. As a consequence Courts have given careful consideration to the approach to be adopted in such cases.
I have treated the question of relocation in the same legislative pathway as I would other parenting cases. In doing this I have considered s 60B of the Act which contains the objects and principals underlying it and, of course, the best interests of the child, being the paramount consideration.
I have considered the s 60CC factors to which I have eluded earlier in these reasons. There is a benefit in a meaningful relationship between the child and the father. The child has a close relationship with his sister and with members of his paternal family.
The impact of the relocation of the child and the mother to the Cairns area will significantly and profoundly affect the relationship between the child and the paternal family and in particular the father and the child’s sister.
There are serious practical difficulties in the child spending time with the father and whilst Skype and other electronic means are available, they are no substitute for face to face time.
I have been extremely critical of the father in relation to his behaviour in 2009 and 2010 but I acknowledge that he has worked hard to develop a relationship with the child and has pursued that relationship over a number of years.
He has a close relationship with C and cares for her, at least equally and likely more than equal time.
The mother has suffered enormous psychological damage as a consequence of the violence inflicted upon her by the father. Given the evidence of Dr F and the mother’s psychologist, I am satisfied that that damage is genuine and that it is likely to be significantly ameliorated by the mother residing some distance from the father. The mother is the primary carer of the child.
It is not practicable for the father to consider moving from Tasmania to Cairns. He has the care of C with C’s mother. The father has the support of his family in Tasmania.
The mother was born in Tasmania, as was her partner, and has lived all of her life in that State.
To insist that the mother continue living with her anxiety and fear and with its consequent impact upon her own psychological and emotional health is a weighty factor. The mother is the primary carer for the child.
As I have said earlier, I have weighed all of the factors in relation to permitting the relocation or not permitting the relocation. I have considered all of the relevant factors set out in s 60CC both in permitting and not permitting the relocation, including but not limited to the relationship of the child with the parents or other persons, the extent to which each parent has taken or failed to take to participate in the decision making, spend time and communication, the likely effect of changes in the child’s circumstances including the separation from the father and the child’s sister.
I have considered the practical difficulties and expense. The capacity of each parent has been considered within the context of the relocation.
Section 61DA of the Act does not apply given that the mother has sole parental responsibility.
If the mother is permitted to relocate, the evidence is that it will enable a significant improvement to the mother’s mental health and improve her ability to continue as the primary care for the child. The mother has complied with the orders so far and is likely to comply with orders into the future.
I am satisfied that she will not undermine the relationship between the father and the child although she will continue to have fears for the child in the care of the father.
It is not in issue that the child commences full time school at the beginning of 2015. Therefore any move, if it is to take place, would be better put in place at the commencement of 2015.
The mother acknowledges the child’s relationship with his sister, C. That relationship has been promoted by the father in one form or another since the birth of the child. The father gave evidence, and I accept, that C would be upset if the child were moved out of the Hobart area and away from regular visits.
The mother proposes, and I accept, that she will encourage the relationship between the child and C.
The mother did not anticipate being subjected to the high level of emotional and verbal abuse by the father which has continued although at a significantly diminished level. The father still adopts controlling behaviour. An example of that was when the mother sought to enrol the child in X School in 2013.[25]
[25] Exhibit ICL7. – Communication Diary.
The father insisted that the child went to the school which his [the child’s] sister C attended. The problem with that course was that the father was not open to any negotiation and conceded that he did not have the funds to pay for the child to attend that school. That was an example of the father’s controlling behaviour.
I am concerned, in the light of the evidence, that the father has not moderated his behaviour to the extent that he asserts. This can be supported by having regard to the comments of the Single Expert in her report dated 1 November 2011 where at paragraph 46 – 51 she says:-
46.As previously described, the PSI was also administered to [the father].
47.[The father’s] PSI Test Results: [the father was unable to complete some of the items in this assessment because he has not had recent opportunity to be involved in the everyday parenting of [the child]. His profile was reflective of clinically significant defensive responding (score =20; where scores of 24 or less are indicative of defensive responding). This is a problematic result. Clinically indicative defensive responding on this measure has been defined as reflective of the caregiver having a narcissistic over confidence in their parenting abilities, a lack of insight into their own behaviour, and a tendency to be easily angered when confronted (footnotes omitted).
48.[The father’s] responses indicate that he views [the child] as a somewhat moody child, but that he does not really know how demanding [the child] can be due to lack of opportunity in recent times to parent him unsupervised for extended periods. [The father] reported in his responses to the PSI that he is experiencing a high level of stress due to not being able to spend time with [the child] as often or under the circumstances he would like. [The father] rates his abilities as a parent very highly, reflecting no concerns about his competence as a parent.
Anger Expression Profile
49.Given the allegations of [the father] perpetrating domestic violence, the State-Trait Anger Expression Inventory – 2 [STAXI-2] (footnote omitted) was administered to assess his anger expression profile.
50.Description of the Assessment Tool: The STAXI-2 is a 57 item self-report inventory designed to assess an individual’s anger profile in terms of the state and trait anger, expression of anger, and control of anger. When assessing an individual who has allegedly perpetrated violence, this measure can be useful to investigate how the individual manages their anger, and whether deficits can be identified for potential treatment intervention and future violence risk reduction.
51.[The father’s] STAXI-2 results: [the father’s] responses reflected that he considers himself to have a moderately angry temperament, and that when he expresses his anger he is more likely to express it outwardly than internalise it. His responses reflected that he is more able to control anger towards himself than the anger he expresses towards others. His profile is consistent with an individual who tends to react to anger-provoking situations with outwardly hostile and aggressive signs of anger.
In August 2011 a psychological report was prepared by the father’s psychologist, Ms Q[26]where she assessed that the father’s personality and emotional functioning:-[27]
…indicate that he has poor emotion regulation, rather low self-esteem and that he is somewhat insecure. …
[26] Exhibit ICL 10.
[27] Ibid.
She went on to say that the father reported:-[28]
…feeling frustrated, irritable and angry at others and he is unable to handle stress well.
[28] Ibid.
Given the father’s history that is an unsurprising assessment. She recommenced future treatment including psychotherapy and continuation of emotional regulation skills and the like. The father has not undertaken any such treatment since at least May of 2013.
The mother substantially agreed with the orders sought by the Independent Children’s Lawyer at the conclusion of the hearing.[29] The Independent Children’s Lawyer made some submissions and changes to those orders, namely that the requirement the mother take the child from Cairns to Tasmania twice a year be reduced to once a year.
[29] Exhibit ICL12.
The basis of this was the mother’s economic circumstances in that she may not be able to afford two trips per year for the child to spend time with the father. In addition it would extinguish most of her annual leave.
Having regard to the mother’s financial circumstances and the limited child support she will be receiving from the father.[30]
[30] Exhibit ICL1 – Father’s financial statement shows child support of $90 per week (page 88) – Mother’s financial statement showing child support received of $34.00 per week for the child.
I accept that the mother would find it financially difficult to travel more than once per year to Tasmania and I accept her submissions regarding one trip per year.
The orders that I have made are substantially in accordance with those recommended by the Independent Children’s Lawyer.[31] I have made some changes to those orders.
[31] Exhibit ICL1.
The first change is to put in place final orders, as per the consent interim orders that the child spend each alternate weekend with the father until the weekend before Saturday 17 May 2014. That order reflects the agreement between the parties.
In addition I have made provision for the child to see the father on the father’s birthday as was envisaged in those interim consent orders.
The interim consent orders made provision for the mother to travel to Cairns for a period of no more than three weeks during the current calendar year. Having regard to that agreement I have included that in the final orders although, I have excluded the time after November 2014 as that will be the time when the father and the child’s sister C spend significant time with the child.
I have made provision for communication between the parties by email and by a communications book. I am aware that there was concern by at least one of the expert witnesses as to email communication. However, with the child so far away from the father email communication will be the easiest and most effective way for the parents to communicate about the needs of the child.
If the father engages in any abusive communication it will become easily apparent, and will presumably be easy to stop.
Given the circumstances of these parties and of this child I have determined on balance, that the child and mother ought to be permitted to relocate to Far North Queensland and I will so order. In addition I will make orders to enable the child to spend time and communicate with the father in Far North Queensland including travel between those two parts of Australia.
I certify that the preceding three hundred and thirty (330) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 3 April 2014 .
Associate:
Date: 3 April 2014
- AGLC
- SUTTON & ANDERSON [2014] FamCA 215
- Case
- [2014] FamCA 215
- Decision Date
CaseChat Overview and Summary
The court was required to determine the extent of the mother's parental responsibility, specifically regarding major long-term issues concerning the child's education and health. It also needed to establish the father's time with the child, both before and after the mother's proposed relocation to Cairns, and to address communication protocols between the parents and between the child and the father. Further issues included the terms of any relocation, the use of physical force for discipline, and restrictions on parental conduct in the child's presence.
Benjamin J made orders by consent and by determination. By consent, previous parenting orders were discharged, and the mother was granted exclusive parental responsibility for major long-term issues, subject to specific consultation requirements with the father. The child was ordered to live with the mother, and both parents were restrained from using physical force for discipline and from demeaning or abusing each other in the child's presence. The mother was permitted to relocate the child's primary residence to Cairns from January 2015.
The orders detailed specific arrangements for the father's time with the child throughout 2014 and, following relocation, included provisions for communication, extended stays in Tasmania and Cairns, and holiday arrangements. The father was granted liberty to obtain school reports and communicate with the child's school, and permitted to attend school events when in Cairns. Changeover arrangements in Hobart and Cairns were also specified, along with communication protocols between the parents. The court also made orders regarding the mother's travel with the child and clarified that the mother's parental responsibility did not permit relocation outside of Tasmania or Cairns without the father's consent or a court order. All other extant applications were dismissed.
Orders
Orders of the court
1.
BY CONSENT, and subject to order 2, all previous parenting orders in relation to L born … 2009 (“the child”) be and are discharged.
2.
BY DETERMINATION the interim order made 14 February 2014 insofar as it relates to the time that the child spends with the father shall continue until 10 May 2014, as and from which date that interim order is discharged.
3.
BY CONSENT, subject to these orders, Ms Anderson (“the mother”) shall have exclusive parental responsibility for the child in relation to all major long term issues, including:
(a) the child’s education (both current and future);
(b) the child’s health (both physical and emotional), on the condition that:-
i. the mother will contact Mr Sutton (“the father”) in writing and provide him with her views of any such issue seven (7) days before making the final decision about any such issue;
ii. the mother will take into account any response received from the father in making her decision about any such issue;
iii. the mother will advise the father in writing within seven (7) days of any decision made by her about any such issue;
iv. the mother shall have the final decision about any such issue;
(c) the time limitations imposed in orders 3(b) shall not apply if there is an emergency.
4.
The mother shall ensure that all records relevant to the child’s care, welfare and development, including but not limited to school, medical and dental records identify the father as the parent of the child and a person to whom information may be disclosed.
5.
This order for sole parental responsibility does not give the mother sole responsibility as to questions of major long term issues about the child’s name and/or changes to the child’s living arrangements to outside the Commonwealth of Australia, without the consent of both parents or an order of a court exercising jurisdiction under the Family Law Act 1975 (Cth).
6.
BY CONSENT the child shall live with the mother.
7.
BY CONSENT the mother and the father be and are restrained from using physical force to discipline the child or allowing any agent in their presence to use physical force to discipline the child.
8.
BY CONSENT neither party shall demean, abuse or belittle the other party, their respective partners or members of their family or denigrate the other parent’s relationship with the child or the co-parenting relationship in the presence or hearing of the child.
9.
BY CONSENT each party be and is restrained from using obscene language in the presence or hearing of the child nor cause or permit the child to be exposed to obscene language.
10.
BY DETERMINATION the mother be and is permitted to relocate the primary residence of the child to Cairns on or after 13 January 2015.
11.
BY DETERMINATION the father shall spend time with the child during the 2014 year as follows:-
(a) in accordance with the February 2014 interim orders until 10 May 2014;
(b) commencing Saturday 17 May 2014 and concluding 26 July 2014 ; including that weekend and each alternate weekend thereafter from 9:00am Saturday until 3:00pm Saturday and from 9.00am Sunday to 3.00pm Sunday; or such alternate start and end times as directed by B Contact Centre;
(c) commencing Saturday 9 August 2014 and concluding Sunday 14 December 2014; including that August 2014 weekend and each alternate weekend thereafter from 9:00am Saturday until 12:00 noon Sunday;
(d) the child’s birthday, in 2014 from 3:30pm until 6:30pm;
(e) from 3:00pm Christmas Day (25 December 2014) until 3:00pm Boxing Day (26 December 2014);
(f) from 9.00am Saturday 27 December 2014 until 3.00pm Monday 30 December 2014;
(g) from 9.00am Saturday 10 January 2015 until 9.00am Monday 12 January 2015 at 9:00am;
(h) such other, alternate and further time as is agreed between the parties in writing.
12.
BY DETERMINATION following the mother’s relocation of the child’s primary residence to Cairns, the child spend time and communicate with the father as follows:-
(a) Skype and telephone communication to be initiated by the mother once a week between 6.00pm and 6:30pm (Cairns time) and on special occasions such as the father’s birthday, the child’s birthday, C’s birthday, Easter Sunday, Christmas Day and Father’s Day;
(b) in 2015 and each alternate year thereafter, the mother shall facilitate the child spending time with the father in Tasmania (at the mother’s expense as to travel costs) for two weeks during the end of year school holidays (such period to include the Christmas period);
(c) in 2015 and each alternate year thereafter the child shall spend time with the father from 3:00pm Christmas Eve until 3:00pm Christmas Day and with the mother from 3:00pm Christmas Day until 3:00pm Boxing Day;
(d) in 2016 and each alternate year thereafter, the mother shall facilitate the child spending time with the father in Tasmania (at the mother’s expense as to travel expenses) for two weeks in the September/October school holidays (to coincide with the Queensland school holidays);
(e) in 2015 and each year afterwards the mother shall facilitate the child spending time with the Father in Cairns (at the father’s expense) for up to one week at times to be nominated in writing by the father at least eight weeks in advance;
(f) in the years 2015 and 2016; the time the child spends with the father be interrupted with the return to the mother’s care for one night (from 4:00pm until 10:00am the following day) after each third night.
13.
BY DETERMINATION, from the 15 January 2015, while the child is in the father’s care, he shall assist the child initiating telephone communication with the mother each alternate day between 6:00pm and 6:30pm.
14.
BY DETERMINATION the father shall be at liberty to obtain school reports, school letters and to communicate with the child’s school.
15.
BY DETERMINATION while the father is in Cairns spending time with the child, the father be permitted to attend school assemblies and sporting events upon giving the mother prior written notice and that it not be unreasonable for that notice to be given twenty (24) hours prior to the event.
16.
BY DETERMINATION; the changeovers in 2014 in Hobart shall be at B Contact Centre; and if it is not available, the parties will agree in writing to a mutually convenient place for changeover with the mother not being required to attend and being at liberty to nominate a third party to attend on her behalf.
17.
BY DETERMINATION from 15 January 2015 changeover in Cairns shall occur at a public location nominated by the mother in or near the central business district of Cairns (or as otherwise agreed in writing) and that the mother is at liberty to nominate a third party to attend on her behalf or with her.
18.
BY DETERMINATION from 15 January 2015 changeover in Hobart shall occur at a public location nominated by the mother in the central business district of Suburb A (or as otherwise agreed in writing) and the mother is at liberty to nominate a third party to attend on her behalf or with her.
19.
BY DETERMINATION the parties shall communicate by email or communication book with respect to parenting issues or changeover issues arising in respect of these orders and to that end each party should keep the other informed of their email address, residential address and telephone numbers.
20.
BY DETERMINATION the mother shall be permitted to travel with the child to Cairns:-
(a) for one period of no more than three (3) weeks during the 2014 calendar year subject to the following:-
i. the mother will provide the father with four (4) weeks prior notice of the date of intended travel, or itinerary of flights, including the return flight.
ii. advise the father of the residential address and contact number for the child in case of emergencies.
iii. the father’s time with the child during this period shall be suspended without provision for catch-up time.
iv. such time shall not occur after 1 November 2014.
(b) any other period of time that does not interfere with the father’s time as provided in these orders, subject to the mother providing the father with two weeks’ notice and advising the residential address and contact numbers for the child case of an emergency.
21.
BY DETERMINATION the order that the mother have parental responsibility does not enable the mother to relocate the primary residence of the child from either Hobart, Tasmania or Cairns in Far North Queensland (except as provided in these orders), without the written consent of the father or an order of a court exercising jurisdiction under the Family Law Act 1975 (Cth).
22.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
NOTATIONS
23.
The father will use his best and reasonable endeavours to ensure that either the Paternal Grandmother and/or his daughter, C, be present during overnight periods with the child.
24.
That upon relocation the Mother will engage with a therapeutic counsellor.
25.
All other extant applications for orders (except costs applications) be otherwise dismissed and removed from the list of cases awaiting finalisation. Any costs application may be dealt with in accordance with the Family Law Rules 2004.
26.
Following the expiration of the appeal period, all subpoenaed documents (except for the parties’ case summaries, minutes of orders and expert reports) shall be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
IT IS CERTIFIED
27.
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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