FEDERAL CIRCUIT COURT OF AUSTRALIA
| TESTA & FIELDS | [2019] FCCA 2569 |
| Catchwords: FAMILY LAW – Parenting – who the child is to live with – relocation – no communication for 3 months conditional upon the father completing courses – supervised time following no time order – whether video/audio recordings taken on a mobile telephone (and a transcript thereof) can be admitted into evidence. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 60CA, 60CC, 61DA, 65DAA, 65DAB, 69ZT Evidence Act 1995 (Cth), s.138 |
| Cases cited: MRR v GR [2010] HCA 4 Hall & Hall (1979) FLC 90-713 Sigley v Evor (2011) Fam LR 239 R & R: Children’s Wishes (2000) FLC 93-000 |
| Applicant: | MS TESTA |
| Respondent: | MR FIELDS |
| File Number: | SYC 2042 of 2018 |
| Judgment of: | Judge Kemp |
| Hearing dates: | 13, 14, 15 & 24 May 2019 |
| Date of Last Submission: | 3 June 2019 |
| Delivered at: | Sydney |
| Delivered on: | 13 September 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Wearne, Advocate |
| Solicitors for the Applicant: | Reid Family Lawyers |
| Counsel for the Respondent: | Mr Blackah |
| Solicitors for the Respondent: | Atkinson Vinden |
| Counsel for the Independent Children’s Lawyer: | Ms McGee |
| Solicitors for the Independent Children’s Lawyer: | Claremont Legal |
THE COURT ORDERS THAT:
The child, X, born in 2007 (“the child”) live with the mother.
The father do all things reasonably necessary to forthwith effect a transition of the care of the child from his care to that of the mother.
The mother have sole parental responsibility for the child.
The mother be permitted to relocate with the child to Town B not before the day after the last day of the school term 4, 2019.
Save as provided for in these orders, the child shall spend no time and have no communication with the father for a period of at least 3 months (subject to any extension of that time as referred to in order 9, below) from the date of these orders.
Upon the expiration of the period referred in order 5 above and conditional upon the father’s commencement of:
(a)the “Tuning into Teens” course, a post-separation parenting course and anger management counselling within 3 months of the date of these orders and providing evidence of enrolment and/or completion of those courses and counselling to the mother and the Independent Children’s Lawyer; and
(b)No less than 7 sessions of counselling with Mr C (“Mr C”) at the Suburb DD Centre; and
(c)Provision of a report by Mr C confirming the father’s attendance at and engagement in the therapeutic objectives of the that counselling;
the child shall spend supervised time with the father for 3 hours every second Sunday supervised by Contact Centre D or any other private supervision agency (or Contact Centre) as agreed between the parties for a period of 6 months, with such time to be reportable with written reports to be provided to the mother and the Independent Children’s Lawyer by the supervisor after each occasion of supervised time, with the father to pay the costs of such supervision and for any reports issued in respect of it.
After the expiration of the period referred to in order 6 above and conditional on the father’s completion of:
(a)No less than a further 12 sessions of counselling with Mr C or such other therapist agreed upon by the parties; and
(b)Provision of a report by Mr C or other agreed therapist confirming the father’s attendance at and engagement in the therapeutic objectives of that counselling;
The child shall communicate with the father by telephone or Skype for no more than 20 minutes one (1) day per week and spend unsupervised time with the father in Town B:
A. From 5.00pm on Friday (if the father elects) and, otherwise, from 10.00am on Saturday until 5.00pm on Sunday (or Monday if Monday is a public holiday) every second weekend with such time to take place in Town B or Town E;
B. The mother shall be entitled to suspend the father’s time in A above for a two week period in the long school holidays (December - January) by providing 14 days’ written notice to the father of her intention to so suspend such time to enable her to take the child away on holidays and, otherwise, the father’s time shall continue through all school holiday periods; and
C. At other times as agreed between the parties in writing.
For the purpose of changeover, unless otherwise agreed in writing:
(a)the father, together with the supervisor, if applicable, is to collect the child from the mother at Suburb F McDonalds at Street EE, Suburb F (or after the mother has relocated to Town B at Town B Shopping Centre carpark at Street G, Town B) at the beginning of the child’s time with him; and
(b)the father, together with the supervisor if applicable, is to return the child to the mother at Suburb F McDonalds at Street EE, Suburb F (or after the mother has relocated to Town B at Town B Shopping Centre carpark at Street G, Town B) at the conclusion of the time.
Until the child commences spending time and communicating with the father, the father be restrained by injunction from;
(a)approaching the child, if attending at the child’s school for work;
(b)attending the child’s school if he does not have work commitments there; and
(c)subject to order 11 below, contacting the child by any means whatsoever including social media, email, text messages and telephone calls.
The father be responsible for forthwith returning the child to the mother’s care should the child attempt to return to the father’s care in the period contemplated in order 5 above. If the father fails to do so within a period of 3 hours (or within such further time period as is agreed to by the mother in writing), then the no time/communication period referred to in order 5 above shall continue for a further period of 3 months from the date of that failure.
The father be permitted to send the child by mail, cards, gifts and photographs for birthday, Christmas, Religion J Easter and special occasions provided that:
(a)the words written in such communications are written in the English language; and
(b)the mother first has the opportunity to open and inspect the contents of the letters, cards and gifts provided by the father to the child to ensure their compliance with orders 20 and 21, below.
The child continue to attend upon Ms K (“Ms K”) for individual therapy and, thereafter, upon a psychologist or psychiatrist as recommended by Ms K or as agreed to by the parties in writing.
Ms K be permitted to explain to and discuss with the child the Court’s orders with respect to parenting and a copy of the Court’s reasons may be provided to her to assist, in that regard.
The child and the mother engage in family therapy with Ms K or the child’s treating psychologist or psychiatrist pursuant to order 12, as recommended by Ms K or by the said psychologist or psychiatrist.
The child and the father engage in family therapy with the child’s treating psychologist or psychiatrist as recommended by that psychologist or psychiatrist, commencing not before the commencement of the child’s unsupervised time with the father.
By consent, the mother engage with a treating mental health practitioner until such time as that mental health practitioner recommends otherwise.
By consent, the mother is to follow all reasonable treatment recommendations made by her treating mental health practitioner, including any recommendations for engagement with any psychologist, psychiatrist, counsellor or other such therapy.
By consent, the father continue to engage with Mr C psychologist until such time as Mr C recommends otherwise.
By consent, the father is to follow all reasonable treatment recommendations made by Mr C, including any recommendations for engagement with another psychologist, psychiatrist, counsellor or other such therapy.
By consent, the mother and the father be restrained from discussing any aspect of the proceedings with the child and from permitting others to do so.
By consent, the mother and the father be restrained from denigrating each other in front of or in the presence of the child and from permitting others to do so.
By consent, the parties pay in equal shares, the costs of the Independent Children’s Lawyer in the sum of $15,068.00 with the father to pay his share to the Legal Aid Commission within 6 months of the date of these orders and the mother’s share being deferred until the conclusion of the parties’ property proceedings.
By consent, the parties pay in equal shares the costs of Ms L, the joint expert, for her attendance at Court in the sum of $2,425.50 to be paid to her within 30 days of the date of these orders.
By consent, the Independent Children’s Lawyer remain appointed until 30 May 2020.
The parties have leave to provide a copy of these orders to each of their counsellors, the child’s counsellor/psychiatrist/psychologist and to the child’s school principal(s).
Leave be given to the mother and the Independent Children’s Lawyer to relist the matter on 48 hours written notice to seek any further or other directions as to the implementation of these orders including, in particular, order 2 above.
The matter be listed for mention on 4 December 2019 at 9.30am in respect of property matters.
IT IS NOTED that publication of this judgment under the pseudonym Testa & Fields is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 2042 of 2018
| MS TESTA |
Applicant
And
| MR FIELDS |
Respondent
REASONS FOR JUDGMENT
Introduction
By Initiating Application filed on 3 April 2018 and as amended by a minute of proposed order, being Exhibit “D”, the applicant mother (“the mother”) sought final parenting orders in respect of the child of the parties’ relationship, X born in 2007, currently, aged 11years (“the child”), as follows:
(1)The mother shall have sole parental responsibility for major long-term decisions affecting the child.
Living arrangements
(2)The child shall live with the mother.
(3)The mother be permitted to relocate the child’s place of residence to Town B, NSW.
Time with arrangements
(4)Save as provided in order 9, the child shall spend no time and have no communication with the respondent father (“the father”) for a period of 6 months following the making of these orders.
(5)Save as provided in order 9, and pursuant to section 68B of the Family Law Act 1975 (“the Act”) the father is restrained by injunction from contacting the child by any means whatsoever during the period prescribed in order 4 herein and / or procuring any other person to do so on his behalf.
(6)Conditional upon the father’s completion of:
(a)a “Tuning into Teens” parenting course within 6 months of the date of these orders and providing evidence of completion of that course to the mother and the Independent Childrens Lawyer (“the Independent Children’s Lawyer”); and.
(b)No less than 12 sessions of counselling with Mr C (“Mr C”) at Suburb DD Centre, or such other therapist agreed upon by the parties and the Independent Children’s Lawyer; and
(c)Provision of a report by Mr C (or other agreed therapist) confirming the father’s attendance at, and engagement in the therapeutic objectives in the counselling pursuant to order 6(b),
The child shall spend supervised time with the father in Town B for 3 hours every second Sunday for a period of 6 months, to be facilitated as follows:
(d)such time to be supervised by FF supervision services and take place in Town B (or such other place agreed between the parties); and
(e)the supervision shall be reportable and written reports shall be provided by the supervisor after each occasion of supervised time; and.
(f)the father shall pay the costs for the supervision and reports that issue in respect of it.
(7)Thereafter, conditional upon the father’s completion of:
(a)No less than a further 12 sessions of counselling with Mr C or such other therapist agreed upon by the parties and the Independent Children’s Lawyer;
(b)Provision of a report by Mr C (or other agreed therapist) confirming the father’s attendance at, and engagement in the therapeutic objectives of the counselling pursuant to order 7(a),
The child shall spend unsupervised time with the father:
(c)from 10.00am on Saturday until 5.00pm on Sunday every second weekend with such time to take place in Town B or Town E; and
(d)Other times as agreed between the parties in writing.
(8)That for the purpose of changeover, unless otherwise agreed:
(a)the father, together with the supervisor if applicable, is to collect the child from the mother at Town B Shopping Centre carpark at Street G, Town B at the beginning of the child’s time with him; and
(b)the father, together with the supervisor if applicable, is to return the child to the mother at Town B Shopping Centre carpark at Street G, Town B at the conclusion of the time.
(9)The father may communicate with the child by sending to him cards and gifts for special occasions such as Religion J Easter, Christmas and the child’s birthday provided that:
(a)the words written in such communications are written in the English language; and
(b)the mother first has the opportunity to open and inspect the contents of the letters, cards and gifts provided by the father to the child to ensure their compliance with order 11(a) herein.
(10)The mother shall facilitate the child’s attendance upon any Town B or Town E based psychologist or psychiatrist as may be recommended by Ms K (“Ms K”) and / or the Court expert, Ms L (“Ms L”).
(11)That the parties be restrained and injunctions granted against them:
(a)from denigrating the other party or member of their family, or permitting any third party to do so;
(b)from using physical punishment to discipline the child, or permitting any third party to do so.
(12)The appointment of the Independent Children’s Lawyer continue for a further period of 18 months from the date of these orders.
That should the Court not allow the mother to relocate the child’s place of residence to Town B:
Time with arrangements:
(13)Save as provided in order 18, the child shall spend no time and have no communication with the father for a period of 6 months following the making of these orders.
(14)Save as provided in order 18, and pursuant to section 68B of the Act the father is restrained by injunction from contacting the child by any means whatsoever during the period prescribed in order 4 herein and / or procuring any other person to do so on his behalf.
(15)Conditional upon the father’s completion of:
(a)a “Tuning into Teens” parenting course within 6 months of the date of these orders and providing evidence of completion of that course to the mother and the Independent Children’s Lawyer; and.
(b)No less than 12 sessions of counselling with Mr C at Suburb DD Centre, or such other therapist agreed upon by the parties and the Independent Children’s Lawyer; and
(c)Provision of a report by Mr C (or other agreed therapist) confirming the father’s attendance at, and engagement in the therapeutic objectives in the counselling pursuant to order 15(b),
The child shall spend supervised time with the father for 3 hours every second Sunday for a period of 6 months, to be facilitated as follows:
(d)such time to be supervised by Contact Centre D supervision services; and
(e)the supervision shall be reportable and written reports shall be provided by the supervisor after each occasion of supervised time; and.
(f)the father shall pay the costs for the supervision and reports that issue in respect of it.
(16)Thereafter, conditional upon the father’s completion of:
(a)No less than a further 12 sessions of counselling with Mr C or such other therapist agreed upon by the parties and the Independent Children’s Lawyer;
(b)Provision of a report by Mr C (or other agreed therapist) confirming the father’s attendance at, and engagement in the therapeutic objectives of the counselling pursuant to order 16(a),
The child shall spend unsupervised time with the father:
(c)from 10.00am on Saturday until 5.00pm on Sunday every second weekend; and
(d)Other times as agreed between the parties in writing.
(17)That for the purpose of changeover, unless otherwise agreed:
(a)the father, together with the supervisor if applicable, is to collect the child from the mother at Suburb F McDonalds at Street EE, Suburb F at the beginning of the child’s time with him; and
(b)the father, together with the supervisor if applicable, is to return the child to the mother at Suburb F at Street EE, Suburb F at the conclusion of the time.
(18)The father may communicate with the child by sending to him cards and gifts for special occasions such as Religion J Easter, Christmas and the child’s birthday provided that:
(a)the words written in such communications are written in the English language; and
(b)the mother first has the opportunity to open and inspect the contents of the letters, cards and gifts provided by the father to the child to ensure their compliance with order 18(a) herein.
(19)The mother shall facilitate the child’s attendance upon psychologist or psychiatrist as may be recommended by Ms K and / or the Court expert, Ms L.
(20)That the parties be restrained and injunctions [be] granted against them:
(a)from denigrating the other party or member of their family, or permitting any third party to do so;
(b)from using physical punishment to discipline the child, or permitting any third party to do so.
(21)The appointment of the Independent Children’s Lawyer continue for a further period of 18 months from the date of these orders.
The father in his Response filed 31 May 2018, sought his own final parenting orders, as follows:
(1)That the father have sole parental responsibility for the child.
(2)The child live with the father and spend time with the mother.
(3)The child spend time with the mother as follows:
If the mother lives in Sydney
a)Every alternate weekend from Friday after school to Monday before school.
If the mother lives in Town B
b)From 3.00pm Friday to 3.00pm Sunday once every 3 weeks commencing 3 weeks from the making of these orders.
Otherwise
c)The first half of each school holidays in odd numbered years, commencing 2019 and each alternate year thereafter; and
d)With the father for the second half of the school holidays in even numbered years commencing 2020 and each alternate year thereafter.
e)Religion J Easter shall be spent with the father but in the event that Religion J Easter coincides with the Australian Easter then as follows:
(i) With the mother from 3.00pm on Thursday prior to Good Friday until 3.00pm Easter Saturday, in even numbered years commencing 2020 and each alternating year thereafter; and
(ii) With the father form 3.00pm Easter Saturday until 9.00am on the Tuesday following Easter Monday in odd numbered years commencing 2019 and each alternating year thereafter.
f)With the mother for the first half of the Christmas Holidays in odd numbered years commencing 2019 and each alternating year thereafter; and
g)With the father for the second half of the Christmas Holidays in even numbered years commencing 2020 and each alternating year thereafter.
(4) That the mother be restrained from removing the child from his present school and enrolling him in any other school without the father’s written consent or order of the Court.
The father then, subsequently, sought, in terms of Exhibit “6”, different final parenting orders which did not contemplate the mother being permitted to relocate the child to Town B. Those orders provided for the parties to have equal shared parental responsibility for the child, for the child to live with the father and spend defined time with the mother, being from every second weekend from 3.00pm or after school Friday to 9.00am or before school Monday and in the alternate week from 3.00pm or after school Wednesday to 9.00am or before school Thursday. That is, the father was promoting 5 nights per fortnight with the mother. The father also promoted time between the parties on school holidays, Christmas and Easter, Mother’s Day and Father’s Day. The father also sought consequential orders with respect to the child attending family therapy and for the father to continue his own therapy with Mr C. Other consequential orders were sought in terms of the parties’ consultation with relevant persons in relation to the child and the provision of information concerning the child. Restraints were sought in respect of non-denigration and the non-discussion of these proceedings.
The Independent Children’s Lawyer sought, initially, as set out in Exhibit “ICL2” but, subsequently, as amended in terms of Exhibit “ICL2A”, orders which were to the, following, effect:
(1)That the child live with the mother.
(2)That the mother have sole parental responsibility for the child.
(3)That the mother be permitted to relocate with the child to Town B not before the day after the last day of the school term 4, 2019.
(4)Save as provided for in these orders, the child shall spend no time and have no communication with the father for a period of at least 3 months from the date of these orders.
(5)Conditional upon the father’s commencement of:
(a)the “Tuning into Teens” course, a post-separation parenting course, and anger management counselling within 3 months of the date of these orders and providing evidence of enrolment and/or completion of those courses and counselling to the mother and the Independent Children’s Lawyer; and
(b)No less than 7 sessions of counselling with Mr C at the Suburb DD Centre; and
(c)Provision of a report by Mr C confirming the father’s attendance at and engagement in the therapeutic objectives of the that counselling,
The child shall spend supervised time with the father for 3 hours every second Sunday supervised by Contact Centre D or any other private supervision agency as agreed between the parties for a period of 6 months, with such time to be reportable with written reports to be provided to the mother and the Independent Children’s Lawyer by the supervisor after each occasion of supervised time.
(6)After the period in Order 5, conditional on the father’s completion of:
(a)No less than a further 12 sessions of counselling with Mr C or such other therapist agreed upon by the parties;
(b)Provision of a report by Mr C or other agreed therapist confirming the father’s attendance at, and engagement in the therapeutic objectives of that counselling,
The child shall communicate with the father by telephone or Skype for no more than 20 minutes one day per week and spend unsupervised time with the father in Town B:
a.From 5pm on Friday if the father elects, and otherwise from 10am on Saturday until 5pm on Sunday every second weekend with such time to take place in Town B or Town E, and
b.Other times as agreed between the parties in writing.
(7)That until the child commences spending time and communicating with the father, the father be restrained from;
(a)attending the child’s school;
(b)contacting the child by any means whatsoever including social media, email, text messages and telephone calls.
(8)That the father be responsible for returning the child to the mother’s care should the child attempt to return to the father’s care.
(9)That the father be permitted to send the child by mail cards and photographs for birthday, Christmas and special occasions.
(10)That the child continue to attend upon Ms K for individual therapy and thereafter upon a psychologist or psychiatrist as recommended by Ms K or agreed by the parties.
(11)That Ms K be permitted to explain to and discuss with the child the Court’s orders with respect to parenting.
(12)That the child and the mother engage in family therapy with Ms K or the child’s treating psychologist or psychiatrist pursuant to order 10, as recommended by Ms K or the psychologist or psychiatrist.
(13)That the child and the father engage in family therapy with the child’s treating psychologist or psychiatrist as recommended by that psychologist or psychiatrist, commencing not before the commencement of the child’s unsupervised time with the father.
(14)That the mother engage with her treating psychologist until such time as that psychologist recommends otherwise.
(15)That the father continue to engage with Mr C psychologist until such time as Mr C recommends otherwise.
(16)The father is to follow all reasonable treatment recommendations made by Mr C, including any recommendations for engagement with another psychologist, psychiatrist, counsellor or other such therapy.
(17)The mother and the father be restrained from discussing any aspect of the proceedings with the child and from permitting others to do so.
(18)The mother and the father be restrained from denigrating each other in front of or in the presence of the child and from permitting others to do so.
(19)The parties pay the costs of the Independent Children’s Lawyer in the sum of $15,068.00.
(20)The parties pay the costs of the joint expert’s attendance at Court in the sum of $2,425.50.
(21)The Independent Children’s Lawyer remain appointed until 31 December 2019.
On 4 June 2018, the Court appointed an Independent Children’s Lawyer to represent the interests of the child.
On 21 September 2018, the Court ordered that a Part 15 report be prepared. This was, ultimately, prepared by Ms L on 23 January 2019. Her report was released to the parties on 6 February 2019 and has become Exhibit “Court 1” in the proceedings.
On the hearing, Mr Blackah of Counsel appeared for the father and Ms Wearne, Advocate, appeared for the mother. Ms McGee of Counsel appeared for the Independent Children’s Lawyer.
On the last day of the hearing, being 24 May 2019, the parties reached some agreement (see Exhibit “Court 3”) in terms of orders which, substantially, replaced orders (14-21) of the Independent Children’s Lawyer’s proposal, as set out in paragraph 4, above. Those orders, being orders 16-24, as set out at the commencement of these reasons, will be made by consent. Further, under s.60CC(5) of the Act, the Court is not required to have regard to any or all of the matters set out in sub-section (2) or (3), when the Court is considering whether to make an order with the consent of all of the parties to the proceedings.
The consent orders referred to in paragraph 8 above also replace orders 11(a), 12, 20(a) and 21 of the mother’s proposed orders, as referred to in paragraph 1, above.
On 24 May 2019, following the hearing, the Court ordered a written submission timetable with the Independent Children’s Lawyer to provide submissions by 28 May 2019 and the father and the mother to provide their submissions by 3 June 2019. The Independent Children’s Lawyer and the parties complied with that timetable. The mother, substantially, adopted the submissions made by the Independent Children’s Lawyer.
Principles to be applied and procedure to be followed
Section 65D(1) of the Act provides that this Court may make such parenting orders as it thinks proper, subject to the provisions of s.61DA and s.65DAB of the Act.
Section 61DA of the Act requires the Court to apply a presumption before it makes any parenting order in respect of a child (and this is the case whether or not a party has sought a specific order for equal shared parental responsibility), that it is in the best interests of a child for a child’s parents to have “equal shared parental responsibility” for the child.
Section 65DAB of the Act requires the Court to have regard to any parenting plans entered into between the parties. This is not relevant on the facts of this case.
The presumption, however, does not apply if there are reasonable grounds for the Court to believe that the child concerned has been subject to abuse or family violence (s.61DA(2) of the Act) or in the case of an interim hearing the Court considers it inappropriate (s.61DA(3) of the Act) or the presumption may be rebutted by evidence which satisfies the Court that it would not be in the best interests of the child for his parents to have such equal, shared parental responsibility (s.61DA(4) of the Act).
The making of an order for equal shared parental responsibility is, however, not, of itself, determinative of the amount of time that a child is to spend with his parents, but goes to the parent’s decision making responsibilities. It does, however, trigger the operation of s.65DAA(1) & (2) of the Act.
By virtue of s.65DAA(1) & (2) of the Act, the Court must, positively, consider whether orders should be made which result in the child concerned spending either “equal time” or “substantial and significant time” with both of his parents.
“Substantial and significant” time is defined in s.65DAA(3) of the Act as:
a)the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(iii) occasions and events that are of particular significance to the child; and
c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
To determine what time orders should be made under s.65DAA(1) & (2) of the Act, the Court must look to determine whether the actual spending of “equal time” or “substantial and significant time” is in the best interests of the child and, as a separate and distinct matter, whether the actual spending of such time is, reasonably, practicable. The Court must affirmatively answer both of these questions for it to have the power to make a time order of that nature. See the High Court of Australia’s decision in MRR v GR [2010] HCA 4. If it cannot do so, the Court must consider making such “other” time order as is, otherwise, in the best interests of the child.
Section 65DAA(5) of the Act provides that the Court must have regard to certain specific matters, to determine whether the actual spending of either “equal time” or “substantial and significant” time is reasonably practicable.
The best interests of a child remain the paramount consideration: s.60CA of the Act.
The best interests of a child are to be determined by an examination of the factors as set out in s.60CC of the Act. These factors are to be examined, weighed and applied against the facts of each case within the ambit of the objects and their underlying principles as set out in s.60B of the Act, as follows:
“(1) The “objects”…are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The “principles” … are … :
(a) Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never been married or have never lived together; and
(b) Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) Parents should agree about the future parenting of their children; and
(e) Children have a right to enjoy their culture (including a right to enjoy the culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
(4) An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
Note: The text of the Convention is set out in Australian Treaty Series 1991 No.4 ([1991] ATS 4). In 2011, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the website (>
The Full Court of the Family Court of Australia in Goode & Goode [2006] FamCA 1346 set out a number of procedural steps to be followed on an interim application, but which may also be, usefully, examined here, namely:
“(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s.60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s.61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s.65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.”
Evidence
The mother relied on:
a)Her affidavit sworn and filed on 16 April 2019;
b)The affidavit of Ms M (“the maternal grandmother”), the mother’s mother, sworn and filed on 18 April 2019; and
c)The affidavit of Ms K, referred to in paragraph 25 below.
The father relied on:
a)His affidavit sworn and filed on 15 April 2019;
b)The affidavit of Ms A Fields (“Ms A Fields”), the father’s mother (also known as “GG” to the child), sworn and filed on 15 April 2019; and
c)The affidavit of Mr C sworn on 18 April 2019 and filed on 29 April 2019.
The Independent Children’s Lawyer relied on:
a)The affidavit of Ms K sworn on 10 April 2019 and filed on 15 April 2019.
The following documents were placed into evidence, as follows:
Exhibit No
Document
Tendered by
A
Bundle of documents (12 pages) consisting of photographs and text messages to replace Exhibit “B” of the mother’s affidavit
Mother
B
Certificate of Completion of “Tuning into Kids” parenting programme by the mother
Mother
C
Photograph of the child in a metal cage
Mother
D
Mother’s proposed minute of order
Mother
1
Three (3) Videos/Audio recording “burned” onto a compact disc (“CD”)
Father
2
Transcript of Exhibit “1”
Father
3
Documents produced under subpoena by the NSW Police marked with a yellow sticker (F1)
Father
4
Original Risk of Significant Harm Report of Ms K dated 24 April 2018
Father
5
Document from HH Psychology dated 21 December 2018
Father
6
Father’s proposed minute of order
Father
7
Notes from Mr C (19 pages)
Father
ICL1
Tender Bundle of documents including documents produced on subpoena
ICL
ICL2
Minute of order sought by the Independent Children’s Lawyer on the first day of hearing
ICL
ICL2A
Minute of order sought by the Independent Children’s Lawyer on the last day of hearing
ICL
Court 1
Report of Ms L dated 23 January 2019 and released to the parties on 6 February 2019
Court
Court 2
Document setting out the agreed and the disputed facts
Court
Court 3
Document setting out the agreed orders at the end of the hearing
Court
Admissibility of Video and Transcript Evidence being Exhibits 1 and 2 referred to above
In the course of the proceedings, the father sought to rely upon 3 videos and audio recordings of parts of conversations taken on his mobile telephone on 3 February 2018, being the date the parties separated. These recordings were then transferred (or “burned”) onto a CD which in its “documentary” form, became Exhibit “1”. The recordings are of physical and verbal exchanges between the parties, the child, the maternal grandmother and the maternal grandmother’s partner, Mr N (“Mr N”). The father also sought to rely on a transcript document produced by Auscript taken from these recordings which has become Exhibit “2”. The admissibility of these recordings and transcript was considered on a “voir dire”. Ms Wearne opposed their admissibility. Ms McGee, initially, opposed their admissibility but then submitted that it was a matter for the Court.
The father conceded that the videos (and audio) produced did not represent a full suite of the recordings made by him on 3 February 2018 and that no complete version was produced, notwithstanding a call made to that effect by Ms Wearne. As Mr Blackah indicated these recordings were “just little snippets of some things that took place that day”. Mr Blackah, further, conceded that the transcript, itself, was not a complete record of all of the conversations as there were gaps in the transcription, given difficulties in hearing exactly what was said. The mother submitted that the video had been edited, however, no evidence was provided to support this assertion save that of the maternal grandmother who said that one part of the video did not show the father hitting her on her nose with his mobile telephone.
The Court notes that there was no direct evidence as to how the video was obtained nor how it was transferred or “burned” on to the CD, produced.
Both documents were admitted into evidence, subject to weight. The Court indicated that its reasons for doing so would be provided in this decision.
Section 69ZT of the Act excludes parts of Chapter 3 of the Evidence Act1995 (Cth) (“the Evidence Act”) in child related proceedings. However Part 3.11 of Chapter 3, which deals with discretionary and mandatory exclusions, is not excluded by the operation of section 69ZT of the Act.
The question of admissibility is determined by the relevant provisions in the Evidence Act and, in particular, s.138 of that Act. Section 138 provides:
(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law,
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
The Surveillance Devices Act2007 (NSW) (“Surveillance Devices Act”) governs the use of devices to record private conversations.
Section 7 of the Surveillance Devices Act states:
(1) A person must not knowingly install, use or cause to be used or maintain a listening device:
(a) to overhear, record, monitor or listen to a private conversation to which the person is not a party, or
(b) to record a private conversation to which the person is a party.
(2) …. Omitted as not relevant here.
(3) Subsection (1)(b) does not apply to the use of a listening device by a party to a private conversation if:
(a) all of the principal parties to the conversation consent, expressly or impliedly, to the listening device being so used, or
(b) a principal party to the conversation consents to the listening device being so used and the recording of the conversation:
(i) is reasonably necessary for the protection of the lawful interests of that principal party, or
(ii) is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation
The Court notes that the recordings of the visual images, themselves, would not be in contravention of s.7 of the Surveillance Devices Act, in any event.
It was submitted on behalf of the mother that the 3 videos constituted evidence that was obtained in contravention of s.7 of the Surveillance Devices Act, in that they contained recordings made of private conversations.
It was submitted by the father, noting he conceded that the Surveillance Devices Act was the applicable statute that the recordings in question were not rendered unlawful by section 7 as the conversations recorded by the father were not “a private conversation” or consent had been given to the recording.
Section 4 of the Surveillance Devices Act provides:
“Private conversation” means any words spoken by one person to another person or to other persons in circumstances that may reasonably be taken to indicate that any of those persons desires the words to be listened to only:
(a) by themselves, or
(b) by themselves and by some other person who has the consent, express or implied, of all of those persons to do so,
but does not include a conversation made in any circumstances in which the parties to it ought reasonably to expect that it might be overheard by someone else.
Two (2) of the videos were recorded on the street in front of the parties’ home. The parties to the conversations in those videos, being the father, the mother, the maternal grandmother and Mr N, were, as such, in a public place and, accordingly, the conversations could not be said to be private.
Further, the Court accepts that the videos evidenced that the parties’ voices were raised in that they were standing some distance apart and speaking so that their voices would carry across that distance. In those circumstances, it is the Court’s view that the parties to the said conversations ought reasonably to have contemplated that their conversations would be overheard by other members of the public in close proximity. Having regard to the foregoing, the Court is satisfied that that evidence was not obtained in contravention of s.7 of the Surveillance Devices Act.
Regarding the third video, which contained footage that was recorded both inside the parties’ home and outside in the front yard, it is the Court’s view that those parts of the recording made outside the parties’ home are, similarly, admissible as not being the recording of a private conversation.
The parts of the conversation in the third video which occurred inside the parties’ home could be considered the subject of a private conversation. However, the Court is of the view that the father’s conduct falls within the exception under s.7(3) of the Surveillance Devices Act as all of the principal parties had, impliedly, consented to the recoding of their conversations. That is so because none of the parties removed themselves from the situation or asked the father to stop recording when it was clearly obvious that he was so recording and he had stated to them that he was. While the mother stated that she had asked not to be recorded, the Court notes that the transcript of the conversation did not indicate words to that effect. To the contrary, the maternal grandmother made statements such as: “keep recording me, I don’t care”. Accordingly, the Court is satisfied that the recording which took place inside the home is, similarly, admissible.
Further, it was submitted, on behalf of the father, that as he was a principal party to the conversation he had consented to it being recorded and the recording was, reasonably, necessary for the protection of his lawful interests of defending himself against false accusations of an offence. During the course of the events that day, it was said that the father had, allegedly, assaulted either the mother or her mother during his recording while using his mobile telephone. It appears that the mobile telephone had not been activated to record that alleged event until after the event was said to have occurred. It cannot follow, therefore, that the father had sought to protect himself by recording matters if the event of concern had already taken place.
The Court further accepts that, were it to find that the evidence was obtained in contravention of s.7 of the Surveillance Devices Act, it is still of the view that such evidence is admissible under s.138 of the Evidence Act, given that it is of the view that the desirability of admitting that evidence in order to determine the best interests of the child, substantially, outweighs the undesirability of admitting that evidence as produced by the father in the circumstances of this matter.
Proposals
The parties and the Independent Children’s Lawyer seek the various competing orders, as set out above.
Issues
The essential issues in dispute the subject of determination are:
a)Parental responsibility;
b)Who the child is to live with;
c)Whether the child will be permitted to relocate with the mother to Town B;
d)Time to be spent with the child and the practicability of such time;
e)Whether time spent should be supervised; and
f)Other consequential parenting orders in dispute.
Factual Matters
The parties agreed in terms of Exhibit “Court 2”, to the following facts:
a)The mother was born in 1971 and is, currently, 48 years of age.
b)The father was born in 1974 and is, currently, 45 years of age.
c)In 2002, the parties commenced cohabitation.
d)In 2007, the child was born.
e)On 14 February 2010, there was an incident of family violence between the parties and the Police attended.
f)On 18 February 2010, the father was sentenced for Common Assault (Domestic Violence) and was dealt with under s.10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) with the imposition of a bond for a period of 12 months and without conviction.
g)In March 2016, the child changed school from School O Town P to School Q at Suburb R.
h)In February 2017, the parties started seeing Ms K for relationship counselling.
i)In February 2017, the child started seeing a counsellor, Ms S (“Ms S”), as arranged by the mother to deal with him being, increasingly, defiant and disrespectful.
j)On 21 February 2017, the father changed the passwords to all the parties’ bank accounts leaving the mother without access to moneys.
k)In Easter 2017, the mother spent Easter with the child in Town B.
l)On 28 April 2017, the mother wrote the father a letter (which the father confirmed receiving) and took the child and travelled to Town B for a short visit. The mother removed $12,000.00 from the parties’ home at Suburb JJ which the father said had been “rent” collected from the rental of the granny flat at that home.
m)On 30 April 2017, the father wrote a letter to the mother asking when she was going to return with the child.
n)In May 2017, the mother and the child returned to Sydney and the mother returned to the parties’ home.
o)On 31 January 2018, the mother left the parties’ home to stay with friends.
p)On 2 February 2018, the mother returned to the parties’ home and moved some of her belongings in to the “granny flat”, thereon. The father said that she could not move into the granny flat because there was no occupation certificate available to permit that use. The Court notes that this appeared somewhat inconsistent with its previous rental out, as referred to in paragraph (l) above. The father locked the granny flat and refused to let the mother back in to get her things. The mother called the Police and her parents. The father asserted that he had asked for the keys to the front house and that the mother had said to him that she was bringing her parents to the house and that he had said that this was not to happen. The mother said that the Police had informed her that there was little they could do as the matter was a “property” matter.
q)On 3 February 2018 (which the parties regarded as their separation date), the father threatened to cut off the electricity and gas to the granny flat and removed the keys to it. The father said that he had made this threat and removed the keys as he did not want the mother’s parents to come in there. The mother, again, called the Police who attended twice that day. The father told the mother to wait outside for her parents. It was raining at the time. The Police told the father to let the mother into the house. The mother then waited in the garage. The mother and her parents then attended at the home to collect the child to take the child to lunch. The child did not go with them. The father was at a park playing with the child when contacted by the Police. Six (6) police officers attended the parties’ home. The father stated that he had filmed the Police because he did not know why they were there. The mother left with her parents for Town B, leaving the child with the father.
r)Between 14 and 25 February 2018, the mother returned to Sydney to spend time with the child.
s)In February 2018, the mother attended the parties’ home to collect the child, who did not want to go with her and jumped the fence and locked himself in the father’s mother’s house.
t)On 23 February 2018, the mother spent time with the child at the home of her friend, Ms T (“Ms T”). The child was aggressive towards the mother, Ms T and her son, KK. The child walked home and the mother followed him.
u)On 27 February 2018, the child saw his school counsellor, Ms U (“Ms U”) and indicated that he had video recordings that he wanted to show the counsellor. The counsellor’s note records that he played those recordings on his phone.
v)On 4 March 2018, the mother attended upon Ms V (“Ms V”), counsellor.
w)On 7 March 2018, the child saw Ms U and showed her more recordings on his phone.
x)On 7 March 2018, the child started counselling with Ms K.
y)Between 10 and 28 March 2018, the mother returned to Sydney to spend time with the child, removing the child on 23 March 2019 early from school to travel to Town B.
z)Over the Christian Easter weekend in 2018, the child spent Easter in Town B with the mother. The mother asked the father to allow her to spend longer holiday time with the child. After this request was made, the father telephoned the mother, members of the mother’s family and the child. The Police were called to the mother’s parent’s home in Town B.
aa)On 5 April 2018, the mother’s Court documents were served on the father’s lawyers.
bb)On 13 April 2018, the father’s lawyers advised in writing that the father would only allow supervised time with the child.
cc)Between 21 and 28 April 2018, the mother returned to Sydney to spend time with the child.
dd)Between 22 and 24 April 2018, the father agreed for the child to spend the second week of the school holidays with the mother in a rental unit he had paid for in Suburb LL. The mother telephoned the father and asked him to collect the child. The father collected the child from the mother.
ee)On 25 April 2018, the child contacted the mother and asked her to collect him. The mother travelled to the father’s home to collect the child. The father said that he would not permit the child to go with the mother “until there [were] Court Orders in place”.
ff)Between 10 May and 12 June 2018, the mother returned to Sydney to spend time with the child.
gg)On 13 May 2018 (being Mother’s Day), the child spent time with the mother on Mother’s Day at Ms T’s home. After telephoning the father, the child left that home without the mother’s knowledge and was collected by the father in his car. When the mother approached the child, the child tried to kick her.
hh)On 4 June 2018, being the first return date of the mother’s application before this Court, the parties agreed to interim orders. Those orders were, to the effect, that the child was to spend every third weekend with the mother and block time during school holidays, which the mother then spent with the child in July 2018 in Town B. Orders were also made for the child to attend upon Ms S (psychologist) but these were, later, amended for the child to attend upon Ms K, again. The father had refused for the child to keep seeing Ms K. This only continued for a few sessions before the father decided not to continue with Ms S and then the child returned to Ms K. The child had expressed some concern about seeing Ms S and wanted, instead, to return to seeing Ms K. The parties were restrained from physically disciplining the child and discussing the proceedings in the child’s presence.
ii)In July 2018, the father released to the mother the sum of approximately $50,000.00 which allowed her to organise accommodation in Sydney.
jj)On 18 July 2018, the mother called Emergency Services to assist in the management of the child’s behaviour.
kk)On 28 July 2018, the child resumed seeing Ms K.
ll)On 3 September 2018, the mother moved to a townhouse in Suburb R, close to the child’s school.
mm)On 11 September 2018, the child spent additional time (one night) with the mother, by agreement between the parties. The child left his rabbit at the mother’s home.
nn)On 16 September 2018, the mother attended at the child’s school fair.
oo)On 20 September 2018, the mother filed an Application in a Case seeking to spend more time with the child.
pp)On 21 September 2018, the matter was listed before this Court. The parties were unable to reach agreement about the child spending, further, time with the mother. Agreement was reached regarding the appointment of Ms L as a Court expert with Ms K to provide counselling to the child, in lieu of Ms S. The child spent time with the mother later that day.
qq)On 25 September 2018, the child had an appointment with Ms K. The child was upset at this appointment.
rr)On 18 October and 15 November 2018, the mother attended the “Keeping Kids in Mind” programme through CatholicCare at Suburb R.
ss)On 25 February 2019, the report of Ms L was released to parties.
tt)Between 10 and 12 March 2019, the child spent additional time with the mother.
uu)On 13 March 2019, the father sent an SMS message to the mother proposing that the child spend more time with her.
vv)On 19 March 2019, the child spent an additional night with the mother.
ww)On 25 and 26 March 2019, the child spent additional time with the mother.
xx)Between 20 March 2019 and April 2019, the mother completed the “Tuning into Kids” course (Exhibit “B”).
yy)On 9 April 2019, the father and the child had appointments with Ms K. The father informed Ms K that: “[the child] has said multiple times, again and again, if [he] pushes [the child] to go with [the mother], he will kill himself”. In the session with Ms K the child admitted that he had said those words and Ms K stated that she needed to do an assessment with him. The child was very distressed in his session with Ms K and the mother was called into the session to try and calm him down. Ms K recommended that the child be assessed by Dr W (“Dr W”) for a possible diagnosis of Oppositional Defiant Disorder (“ODD”), together with an assessment of the risks of self-harm.
zz)The child is, currently, in 2019, in year 6 at School Q, Suburb R and is likely to progress to high school in 2020.
aaa)The father is, currently, self-employed as a tradesman. The mother asserted that he does trades work.
The parties agreed, in terms of Exhibit “Court 2”, to the following disputed facts:
a)In early 2007, the father allegedly threatened to “spill blood”, if the mother’s parents came to help her.
b)In 2015, the father hit the child with force across his face.
c)In March 2017, following an argument, the father did the following things in the child’s presence:
i)hit the child across his head with a flat palm;
ii)picked up a remote control “petrol car” and smashed it on the concrete; and
iii)picked up a piece of wood and started swinging it, saying: “I’ll smash you in the head.”
d)In June/July 2017, the father ripped off the door to the en-suite to the child’s bedroom.
e)On 20 December 2017, the mother came home intoxicated and the father found her asleep on the front verandah.
f)On 13 January 2018, the mother came home intoxicated at about 4.00am and had trouble entering through the front door of the parties’ home. The mother pushed and shoved the father.
g)In January 2018, the father drank a bottle of whisky over 6 hours and abused and denigrated the mother as he became more inebriated. The next day, the child started throwing things around the home, including a remote control aimed at the mother’s head. The mother smacked the child with an open hand on his thigh, leaving a red mark.
h)On 30 January 2018, the child grabbed the mother’s face. The mother said to the child “…you are hurting me” and the child replied: “You deserve it”.
i)On 2 February 2018, the mother stated that she wished to bring her parents to live in the granny flat, as well.
j)On 3 February 2018, being the date of the parties’ separation, the maternal grandmother called the father a “scum”, in the child’s presence.
k)On 9 February 2018, the mother informed the father that she was collecting the child.
l)On 18 July 2018, when the mother spoke to Emergency Services (as referred to in paragraph 47(jj) above) she asked for the child to be “scheduled”.
m)On 16 September 2018, the child and the father left after the child’s dancing performance (at the event referred to in paragraph 47(nn), above).
n)On 5 April 2019, the mother telephoned the father to speak to the child and said that he had spoken to her in a slurred voice and that she had said to him: “you’re pissed”. The father had replied: “Yes I’m plastered”, in a sarcastic tone.
o)In May 2019, the father commenced the “Tuning into Teens” course.
Many of the above disputed facts were a part of the parties’ continuing disputation and the basis for their, negatively, held feelings towards each other. However, unless the resolution of such disputed facts is important for the determination of the competing parenting orders sought, the Court will simply note that those matters were disputed and will make no other findings, in that regard.
Expert evidence
Ms L, prepared a single joint expert report (Exhibit “Court 1”) based, as she described, on the material provided by the parties, the interviews held and the psychometric testing conducted. She recorded that the strengths of her assessment flowed from the interviews and observations made of the parties with the child, and together with her enquiries made of others, including the child’s treating psychologist and school teacher.
There was no challenge to Ms L’s expertise and the Court accepts her expertise as such.
Ms L referred to the Child Dispute Conference Memorandum produced by Ms Y (“Ms Y”) to the Court dated 15 August 2018 which identified the issues in dispute, risk factors and allegations. Ms L noted that the parties’ accounts to Ms Y were, broadly, consistent with their accounts in the interviews with her. Both parties made mutual allegations of family violence, alcohol abuse and mental health problems. Both parties were said to have a very poor co-parenting relationship with each saying that the other was dismissive and denigrating towards their family and cultural background. The father expressed concerns about the mother’s care of the child and said that he was “behind his peers”, academically. Ms Y recommended that the child attend ongoing therapy; that the parents consider attending post separation parenting programmes and that a family report may be required.
Ms L considered the parties’ affidavits then filed, the records produced from the child’s school, being School Q, documents produced from the Sydney Dyslexia Centre, records from Ms K, records from Ms S, documents produced by Family and Community Services (“FACS”), and documents produced by the NSW Police.
Ms L records that the mother:
a)presented as a tall, slim woman who was, neatly, dressed in casual attire. She appeared somewhat anxious and hypervigilant to her surroundings. This was exacerbated when she heard the father’s voice in the reception area, as he had come, significantly, earlier than the scheduled time. The mother was, frequently, tearful and distressed when speaking about her experiences with the father and the child. Her concentration fluctuated and she struggled to stay on point. Consequently, another interview was scheduled for the mother to a different day to enable her to complete her interview. She was observed to be better able to concentrate on that occasion. There were no obvious problems observed with her cognitive skills. She was both oriented and alert. She did not demonstrate any overt evidence of psychopathology, noting that there were some signs of post traumatic stress.
b)completed the Personality Assessment Inventory (PAI), which is a self-administered and objective measure of both personality and psychopathological variables. It is a comprehensive test of 344 items, which have been theoretically developed to assess a range of personality and psychological variables.
c)consistently responded to the test items and there was no indication of distortion. Rather, she answered the questions in a forthright and non-defensive manner.
d)had a clinical profile which revealed moderate elevations that were consistent with mild depressive symptomatology and stress, as well as marked elevations in traumatic stress symptoms. These suggested the possibility of the mother having an adjustment disorder after experiencing some kind of trauma. Her self-concept was rather negative and she may be self-critical and troubled by self-doubt. Interpersonally, she was likely to be submissive and conforming, possibly driven by anxiety about potential rejection or abandonment by others. The mother was, highly, motivated to engage in therapy and reported a positive attitude towards the possibility of personal change and the value of therapy. The Court places some weight on this assessment in favour of the mother’s proposal as it accorded with the Court’s views of the mother, given the need for the parties and the child to engage in some therapy.
e)completed the Personality Inventory (NEO) which was designed to assess personality disorder presentations using a 240 item multidimensional personality instrument based on the Big 5 Personality theory, which suggested that personality could be understood as an intersection of 5 super ordinate factors comprised of Neuroticism, Openness, Extroversion, Agreeableness and Conscientiousness, which then, further, subdivided into 30 Clinical and personality facets. While the NEO did not have any validity scales, the mother’s openness on the PAI suggested that she would have been, similarly, forthright when answering the NEO.
f)had responses on the NEO which suggested that her most distinctive feature of personality was her high degree of “Agreeableness”. As such, she was likely concerned with others and treated people with courtesy and kindness. She was low in “Conscientiousness”, suggesting that she has a low need for achievement and may not organise her time well. She was high in “Neuroticism”, suggesting that she experienced negative emotions and psychological distress and she was likely to be somewhat insecure. She was also high in “Openness”, suggesting that she was sensitive to her own feelings and enjoys novelty and variety. Finally, she was within the average range of “Extraversion”, suggesting that she enjoys others’ company but also has periods when she likes to be alone. In terms of coping, the mother is likely to respond to stress with ineffective responses, such as hostility, self-blame or escapist fantasies. Her scores on the NEO indicated that the mother had features of borderline and dependent personality disorder.
g)produced pychometric testing which indicated that she was non-defensive and open. Her profile seemed consistent with her presentation and the history provided. Her personality profile suggested the presence of post traumatic stress, possibly as a result of her experiences within a toxic relationship and the distress of being separated from the child. While she had features of borderline and dependent personality disorder, this may be a function of her high level of current distress and does not equate to a diagnosis. Her insecurity, fear of rejection and excessive concern with others would likely affect her parenting style and, specifically, her ability to set firm boundaries with the child. As such, these would need to be addressed in therapy to improve her parenting capacity.
h)completed the Behaviour Assessment System for Children (3rd edition) Parenting Rating Scales (“BASC-3 PRS”), which invloved a Parenting Relationship Questionnaire (“BASC-3 PRQ”) in relation to the child. This questionnaire contains 175 items relevant to the development of strong and healthy parent-child relationships, such as attachment, communication, discipline practices, involvement, parenting confidence, satisfaction with school and relational frustrations. Profiles are generated to indicate the clinical scales (Externalising problems, Internalising problems and Adaptive skills). The BASC-3 PRQ contains 2 validity indexes to flag careless or exaggerated responding. The BASC-3 PRQ has reasonable reliability and validity and is suitable in forensic contexts.
Ms L records that the father:
a)presented as a, relatively, tall man with a thin physique. He was casually but neatly dressed. His mood was quite erratic. Specifically, he seemed quite elevated at times but he became very upset and had difficulty composing himself when speaking about his experience at school and his educational goals for the child and also became quite agitated, at times, when speaking about the mother. At other times, he exhibited some annoyance towards Ms L and the Court process. By way of example, the father came into the assessments earlier than required with the child and when he was asked to return at 11:30am, looked somewhat annoyed. Nevertheless, he complied with that request. At the beginning of the interview, he opined that Ms L had thrown him out earlier. Ms L explained that she had asked him to return at the scheduled time with the child because children get bored sitting in the office. Although there were no obvious problems with cognitive functioning, the father repeated every question put to him before answering it, making the interview very long. Further, he seemed to struggle with self-reflection, appeared rather defensive in his response style and often deflected questions about himself. He also seemed to find it difficult to consider others’ opinions or experiences. However, he was both oriented and alert and he did not demonstrate any overt signs of serious psychopathology.
b)completed the PAI (and one BASC as referred to in paragraph 54(h), above) which Ms L noted took him nearly 1.5 hours to do which suggested to her the possibility of reading problems or excessive scrutiny of items given that it took him some 30 minutes longer than it typically took to complete.
c)had a tendency to present himself in a favourable light, as being relatively free of common shortcomings and problems that many individuals will admit to. He appeared reluctant to acknowledge personal limitations and he may repress or deny distress. Although his level of defensiveness was not so high as to invalidate the test, the following interpretive hypotheses should be viewed with caution as it may under-represent the extent of any problems.
d)had a clinical profile which did not reveal any clinical psychopathology. He denied symptoms of anxiety or depression, or any other issues. He also denied problems managing his anger and denied any aggressive tendencies. In fact, he described himself as a very meek and unassertive individual. He acknowledged that he had made plans about how to kill himself. His scores also suggested a mild degree of grandiosity/egocentricity. He described a stable and positive self-evaluation. Unsurprisingly, the father is, therefore, satisfied with himself and is not interested in therapy as he sees little need for change. The Court places some weight on this assessment contrary to the father’s proposal as it accorded with the Court’s views of the father, noting the father’s very recent engagement with Mr C and the need for the parties and the child to engage in some therapy.
e)completed the NEO Personality Inventory. Given the father’s defensive style of responding to the PAI, the following interpretation should also be viewed with caution. Bearing that in mind, the most distinctive feature of the father’s profile on the NEO was his high degree of “Agreeableness”, suggesting that he is trusting of others, assumes the best and would find it difficult to manipulate or deceive others. Next, he was also high in “Openness”, indicating that his experiential style is open and that his feelings and emotional reactions are important to him. His response suggests that he is low in “Neuroticism”, suggesting that he seldom feels frustrated, irritable or angry at others and that he is good at controlling his impulses. He has a high degree of “Conscientiousness”, reflecting a strong need for achievement. He is also high in “Extraversion”, reflecting a high level of social energy and optimism. The father is likely to use humour, positive thinking and direct action to deal with problems. His profile suggests that he is, unlikely, to have a personality disorder.
f)produced pychometric testing which indicated that he was quite defensive and likely under-represented any problems. Additionally, his profile did not appear consistent with his presentation or history. Specifically, he portrayed himself as being meek, unassertive and agreeable and denied problems with frustration, anger or impulse-control. His history, however, suggested poor impulse control and a propensity to react to stressors with anger. As such, his responses in (e) and (f) above did not seem to reflect reality and in those circumstances little weight should be placed on those results.
Ms L records that the child:
a)presented as a boy of average height and build who was neatly dressed. His mood was euthymic and he showed little variation in his emotions. He appeared quite stoic and avoidant of discussions about his feelings or topics that would be emotional. There were no obvious signs of anxiety, depression or problems with concentration. His language and views about the mother strongly echoed those of the father and he appeared overly cautious not to say anything negative about the father. To that end, Ms L was of the view that he had been clearly influenced by the father. Weight is attached to that observation.
b)had a profile from the father’s responses which did not place the child in the Clinically Significant Range for any scales but placed him in the “At Risk” Range for aggression and also attention problems. The father reported that the child sometimes displayed aggressive behaviour, such as being argumentative, defiant and threatening others. He also reported that the child has difficulty maintaining the necessary levels of attention at school, which may disrupt his academic performance. Considering the father’s response, the validity indexes raised no concerns. The father reported a level of attachment with the child that is typical for a father and child of similar age. He felt the child kept him informed of daily events; that he participated in many common activities with the child; that he had a typical amount of confidence in his ability to make good parenting decisions and that he was pleased with the services the child’s school provides. However, his scores on the Discipline practices were in the Lower Extreme Classification, suggesting that the father is inconsistent when responding to a variety of common types of misbehaviour, including breaking family rules, being disrespectful, and destroying others’ things. In fact, the father reported that he “never” punishes the child so that he learns respect for others, “never” punishes the child when he misbehaves and “never” feels that that it is his responsibility as a parent to punish his child’s misbehaviour. Such responses strongly indicate an overly permissive parenting style. Additionally, the father reported Relational Frustration in the Significantly Below Average Classification, suggesting that the father has no difficulty caring for the child. A review of the critical items on this measure indicated that the father claimed to “never” lose his temper with the child, to “never” over react when the child misbehaves, and to “never” lose patience with the child. This does not appear to be consistent with the recent incident in which the father broke the child’s phone as a reaction to the child not doing his homework.
c)had a profile from the mother’s responses which, in contrast, placed the child in the Clinically Significant Range for all scales with the exception of “Withdrawn”. Such a profile was very unusual and suggested that she was either exaggerating the extent of the problems for some gain or may, actually, be experiencing severe frustration with the child. The mother rated severe problems (top 5% of the population for his age) with Hyperactivity, Aggression, Conduct Problems (such as cheating and stealing), Anxiety, Depression, Somatizaton (Health-related concerns), Atypicality (odd or strange behaviour) and Attention Problems. Additionally, her scores placed the child in the Clinically Significant range for Adaptability, Social Skills, Daily Living Skills and Functional Communication, as well as the At-Risk range for Leadership. Her scores suggested that the child has extreme problems with executive functioning (problem solving, behavioural control and emotional control). Overall, her scores suggested that immediate intervention is warranted and that the child may be experiencing any number of clinical disorders, including Attention Deficit Hyperactivity Disorder (“ADHD”), Generalised Anxiety Disorder, Major Depressive Disorder, Disruptive Mood Deregulation Disorder, Autism Spectrum Disorder (“ASD”), Persistent Depressive Disorder, Oppositional Defiant Disorder and Conduct Disorder. The marked difference in the parties’ profiles for the child reflected the parties’ different experiences with the child and the child’s intermittent behavioural problems when in the mother’s care. Considering the mother’s response, a review suggested extreme caution. The extremity of her scores suggested that she was either “faking bad” or was struggling to parent the child. Ms L’s view was the latter. The Court was of a similar view. The mother’s scores placed her in the Lower Extreme Range for Communication (the child does not tell her about daily activates), Discipline Practices (she is inconsistent when he misbehaves), Parenting Confidence (the mother is unsure about her ability to make good parenting decisions and control the household), and Satisfaction with School (namely she had some dissatisfaction that the school was meeting the child’s needs). Her scores were in the Upper Extreme for Relational Frustration (she is losing patience when dealing with the child and finds it difficult to parent him). The only scale within the Average Range was Involvement (activities she does with the child).
d)had not been diagnosed with any disorder and that the child was likely to mainly be just distressed as a result of the parental conflict. The Court places weight on that view.
e)liked school and considered himself to be above average. He reported that he had friends and was able to list at least 4 children’s names. He reported doing a “lot” of homework being every day except Thursday. He liked to play “Fortnite” being a video game online with his friends. With regard to sport and his weekly routine, the child said that he has sports training on Mondays and Wednesdays, dancing on Wednesdays, sports training (for agility and strength) on Friday and sports on Monday and Thursday. He said that he does not like hobbies because he has to do more work but he likes dancing. He advised that he used to do hobbies but that he gave up hobbies because it “got boring” and does not want to do hobbies anymore. The mother expressed concerns that the child had given up hobbies that he was, otherwise, interested in and good at and that he had no social life outside sport and hobbies.
f)reported that after the parties’ separation, he had stayed with the father because he had the view that, if he stayed with the mother, he did not “trust her” to return him to the father’s care and thought that she would “keep” him. He reported that he spends every third weekend with the mother, which was an arrangement he was “now used to”. He claimed that he looked forward to seeing the mother and that he mostly goes but sometimes does not, which he attributed to her not doing much with him. He said that he, mainly, watches television with her and plays with his rabbit which is at her house. He stated that he would like to go dirt bike riding but said that she “never will” because, she said, she cannot tow the bikes. He described the mother as “nice” and loving. Weight is attached to the child’s view of the mother.
Ms L noted that the mother denied that she had ever been given a psychiatric diagnosis. She said that the doctor’s certificate for Centrelink refers to anxiety due to separation but she has not had any formal diagnosis. She recalled experiencing significant grief in relation to her miscarriages. She also described sadness at the end of her relationship with the father.
The mother believed that the father made the child angry after telephoning him. The mother said that the father “winds [the child] up” on the phone to treat her badly. The mother said that this further evidenced the father’s conduct in undermining her as a parent. She, further, asserted that the father “plants seeds” in the child’s head and manipulates and controls him.
Ms L reported that the mother’s account was suggestive of the father exerting controlling and coercive family violence, which included verbal denigration and physical violence in the child’s presence.
The father asserted that the child had been exposed to watching “YouTube” videos about firearms which, he believed, came from Mr N talking about firearms that he possessed.
The father reported to Ms L that he believed there was family violence “both ways”. He said that there was mutual verbal abuse. He conceded that he pulled the mother’s hair when the Police were called. The father denied that he had ever kicked, hit, pushed, slapped or punched the mother. He also denied ever threatening to harm her.
The father claimed that the mother had threatened him with a knife more than once and that he used to put knives away because he feared her. He also claimed that she had scratched him, kicked doors and hit him with a pillow.
The father claimed that it was the mother who had a history of smacking the child from his infancy. However, the father acknowledged to Ms L that he had never made a child protection notification with respect to this even when he had said that the mother had given the child a welt at Christmas time in 2017. This appears to relate to the incident where the child received a smack for throwing a remote control referred to in paragraph 117 above. The Court, specifically, notes that when Ms L enquired of the child as to the mother’s discpline of him he responded that she, typically, disciplined him by threatening to take away his phone.
The father denied any financial abuse of the mother but acknowledged cutting off the bank account, but claimed that he did so when there was limited money in the account and he did not want the mother to take the last of that money because, he said, he had to pay tax and other outgoings therefrom. The Court accepts that, for whatever reason, the mother would have felt controlled by the father. Further, the father’s behaviour in cutting off the electrical connection to the granny flat thereby preventing the mother’s occupation of it would also have been perceived by her as controlling conduct.
The Court notes Ms L’s observation that the father spoke about the mother, negatively, throughout the interview with her and this weighs against his proposal.
(k) if a family violence order applies, or has applied, (be it final, interim, contested or consented to) to the child or a member of the child’s family-any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
The Court finds that there are no current AVO’s in place.
(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
The Independent Children’s Lawyer submits that given the child’s fragile mental state, there is a risk from any of the parties’ proposed orders of further proceedings being instituted. However the Independent Children’s Lawyer submits that this is a case which calls for a gradation of changes in respect of the child’s time with his parents and orders which impose obligations on both parents and, particularly, on the father for his time with the child to re-commence unsupervised. Such orders are in the best interests of the child having regard to the primary considerations, noting this is a secondary consideration. The Court accepts that position.
(m) any other fact or circumstance that the court thinks is relevant
Ms L was of the view that given the child’s age it may be difficult to enforce rules that he cannot see or contact the father, during the non-contact period. She was of the view that there was a risk that he would abscond from the mother’s care and return to the father, although her view was that he would likely settle quickly with the mother. Ms L was of the view that the Court should consider an order that made the father responsible for returning the child to the mother. The Court accepts that view and will so order.
The Court is of the view that it would be more difficult for the child to “vote with his feet” if the relocation proposal was granted given the geographic distances between the mother’s and the father’s households. Further, if that relocation proposal was granted, the period of separation from the father, potentially, could be reduced from the 6 months, initially, promoted by Ms L to 3 months with a period of supervised time of 6 months, thereafter, and to become unsupervised upon the father’s compliance with further therapy. The Court is of the view that if the father fails to return the child to the mother’s care should the child attempt to return to his care, within a period of 3 hours (or within such further time period as is agreed to by the mother in writing), then the no time/communication order should continue for a further period of 3 months from the date of that failure. This would provide a real incentive on the father to ensure that the no time/communication period is complied with.
The Independent Children’s Lawyer submits it would additionally be appropriate, in the event the Court orders for the child to be placed into the mother’s care per the Independent Children’s Lawyer’s and mother’s proposed orders, for the Court to, additionally, order that the changeover take place at the Court’s dispute services, and that Ms K be permitted (but not required) to attend the changeover. The Court is of the view that an order to this effect will not be made at this time but if the father does not comply with orders the mother and the Independent Children’s Lawyer will be given leave to apply to implement any of the orders made including the issuance of a recovery order where the services of that facility may be provided.
The Court finds that there are no other facts or circumstances considered relevant under this factor.
Reasonably practicability of ‘spending time’
Given the Court’s finding as to parental responsibility, the Court notes that it need not determine the reasonable practicability of the child spending time with the parents pursuant to s.65DAA(1) of the Act in terms of its consideration of the matters set out in s.65DAA(5) of the Act.
Parental Responsibility
The Court is of the view that sole parental responsibility should vest in the mother and adopts the recommendation (paragraph 68(c), above) and the opinion of Ms L in support of that position, as set out above.
Live with
The father did not support an equal care regime such as week about as, he believed that, there would be too much instability for the child. He was of the view that the mother only spending every third weekend with the child would be viewed by the child as an “abandonment”. His view was that if the child spent the majority of his time with the mother he would be, negatively, exposed to the “drinking culture” in the mother’s household or that of the extended maternal family. The father said that the child should live with him and spend substantial and significant time with the mother. The father maintained that he was, successfully, addressing the issues identified by Ms L and demonstrated a commitment to do better in the future.
The Court is of the view that the child should live with the mother and adopts the recommendation (paragraph 68(a) above) and the opinion of Ms L in support of that position, as set out above. In order to implement that position, the Court will make an order that the child live with the mother and that the father do all things reasonably necessary to implement that position forthwith. The Court is not minded to implement a change of residence with the assistance of the child minding facility of the Court or the Family Consultants, at this stage (see paragraph 238, above). Notwithstanding Ms L’s view, there are problems in implementing that position from the Court’s perspective. Given that the mother’s relocation proposal will implement a change in schooling in 2020, the Court is of the view that the mother should be able to pick up the child from the school and that a copy of the Court’s orders can be provided to the school principal to assist in that regard. The injunction against the father from attending the school (as referred to below), should also assist in the child’s transition.
Time
The Court has had, in addition to consideration of the above factors, particular regard to the matters set out in paragraph 90 above.
The Court is of the view that the time arrangements proposed by the Independent Children’s Lawyer should be adopted in the best interests of the child, as supported by the recommendations and the opinion of Ms L, as set out above.
As to changeovers, the Court will adopt the mother’s proposal as set out in paragraph 1 above and in particular her proposed orders 8 and 17. The father was not heard to argue to the contrary if the mother’s proposal, in this regard, was, otherwise, ordered.
As to school holidays, the Court gives significant weight to Ms L’s assessment as referred to in paragraph 68(q) above and will provide for an order to implement that position, namely that the father’s time should continue in the school holiday period save for the long school holiday period where the mother should be permitted to take the child away for a period of 2 weeks upon giving notice to the father.
Orders as sought by the father inconsistent with those of the mother’s and the Independent Children’s Lawyer’s proposals will not be made.
Relocation
Justice Boland in Morgan & Miles (2007) FamCA 1230 in reviewing the relevant legislation held, on considering an appeal from an interim parenting order made on a relocation case, that the following earlier “core principles” remain valid. These principles were as stated by Her Honour:
“1. that the child’s best interests remain the paramount but not sole consideration;
2. that a parent wishing to move does not need to demonstrate “compelling” reasons;
3. that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
4. the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement.”
Her Honour stated that the Act requires a careful exercise of a structured discretion (there being no applicable presumption), to determine the appropriate order. Further, the Court must, when evaluating the competing proposals of the parties in relation to any relocation, noting that neither party bears an onus, have regard to the whole of the evidence relevant to the best interests of the child (see B & O & M [2008] FMCAfam 379 (Brown FM)).
Her Honour made it clear, that if a parenting order for equal shared parental responsibility had already been made prior to any application to relocate, the parties have a primary duty under s.65DAC of the Act to determine jointly (through a process of consultation and genuine effort to reach agreement) if the proposed living arrangements for the child would make it, significantly, more difficult for that child to then spend time with the parent not relocating. The operation of this section, her Honour finds, “would preclude a unilateral move by one parent without notice and consultation with the other parent”. This is particularly so, as her Honour finds:
“Section 60I requires parents, if no exclusionary factors such as abuse, family violence, or urgency apply, whether there is an order under s.61C, or s.61B is operative, to make a genuine effort to resolve the dispute with a family dispute resolution practitioner.”
The Court in determining a parenting case involving a proposal to relocate a child’s residence, must, carefully, evaluate each of the proposals advanced by the parties, without dissection of the case into discrete issues. For example, who the child should live with and spend time with and then based on that, whether the relocation should be permitted. The evaluation process requires a weighing up of the evidence and submissions as to how each proposal is advantageous or disadvantageous when considering the best interests of the child. The Court must follow the legislative directions in s.60CA and s.60CC of the Act and apply this exercise to each of the factors set out therein. The Court will, in its consideration, apply necessarily greater significance to some factors over others and it is in this process that the Court must indicate how such matters are balanced out and the weighting the Court has given to determine that process.
The mother said that her relocation proposal was thoughtful and detailed. It enumerated all the necessary arrangements for the child’s care, including the identification of an appropriate therapist/counsellor for him. The Court accepts that position.
The mother conceded that the only matter not addressed in her proposal related to the child’s connection with his Country J language and culture. This, the mother said, was not from a lack of thought about it on her part as much as it was about a lack of local Country J cultural resources in Town B, itself. The mother submitted that this should not be a barrier to the relocation, given the benefits which that relocation would bring to the mother and to the child. Further, unless the father decided not to maintain his connection with the child, the mother’s proposal would see the child having an ongoing relationship with the father, after the suspension of time suggested to let him settle into the mother’s care, which would, itself, foster his connection with the Country J language and culture. The Court accepts this and the mother’s evidence that she was also willing to facilitate future communication and contact between the child and the paternal grandmother.
The Court, further, accepts that despite Ms L’s, initial, opposition to the mother’s proposal to relocate with the child to Town B in her report, by the time she gave her oral evidence, she indicated that she “was really in 2 minds”, particularly in light of Ms K’s evidence that she was no longer going to be available to provide counselling to the child, except as might be required to transition him into another practitioners care. Ms L confirmed that this removed a “big factor in favour of the child remaining in Sydney”.
Ms L confirmed that the remaining barriers to relocation identified in her report were the child’s settlement in school, his friends and activities in Sydney. The Court accepts that the exact nature of the child’s friendships with other children are unclear and that he has, historically, had many difficulties at school in maintaining friendships due to his behaviour. The father acknowledged this position. Ms K confirmed that the child did not talk to her about a friendship network outside school.
Ms L also confirmed that while the child’s attendance at School Q was positive, there were some disadvantages associated with that school, given the father’s relationships with the Head of Primary School. Ms L confirmed that if her recommendations for a suspension in the child’s time with the father were made, the father’s attendances at School Q’s would be “very problematic” for the child and if the child was to transition to the mother’s care and still attend School Q’s, “restrictive mechanisms” would be needed.
The mother’s evidence was that she had experienced difficulties in obtaining information from School Q’s about the child’s progress and care. Her concerns related, in particular, to the failure by Ms U as the school counsellor to raise with her the child’s expression of suicidal thoughts on 13 February 2018 although it would appear the father was notified of those matters.
The mother maintained that a number of benefits to relocation were identified during the course of the oral evidence of Ms L and Ms K and those benefits included the following:
a)Ms K told the Court that she “absolutely believe[d]” that the child would leave the mother’s house if she remained in Sydney. She was, further, of the view that the mother would be able to manage the child’s distress, if a change of residence order was made, a lot better in Town B than in Sydney as she had appropriate supports in Town B. The Court accepts that position.
b)Ms L also noted that the mother would be supported by her family in Town B, given the difficulties in the child’s behaviour she will need to manage. The Court gives this specific weight and refers to paragraph 69(aa), above, in that regard.
c)Ms L also noted that the child would be surrounded by cousins in Town B which would ease his adjustment into the mother’s care. Further, a complete change of scene may assist him.
d)Ms L also said that any risk of the child running away from the mother’s care could be managed better in Town B.
The mother maintained that there are also a significant financial benefit to her arising from her proposed relocation, because the cost of living in Town B was less expensive than it was in Sydney. The Court accepts that this is an important consideration given that the mother is tasked with arranging for the child’s and her own counselling, as well as the child’s psychiatric follow up with either Dr W in Sydney or another psychiatrist in closer proximity to Town B. At this stage, Dr W’s role was foreseen to be limited to conducting an assessment of the child rather than providing for ongoing therapy as it was unknown if further appointments would be required with him.
The father reported to Ms L that he opposed the mother’s relocation proposal to Town B because of her parents culture of drinking in the maternal family including that the mother’s brother had asked the child to get beer from the fridge, that they had gone out shooting the following morning after drinking heavily the night before, because the maternal family have, allegedly, locked the child in a cage and put him in cold showers as a form of discipline and that the child had no prospects in Town B. The Court does not accept that any of those matters have bene established on the evidence.
The father also expressed concerns that if the mother was unable to obtain employment in Sydney she would be, similarly, unemployable in Town B. There is no evidence to support that assertion.
Ms L was, initially, in her report, of the view that it would not be in the child’s best interests for the child to relocate to Town B. She stated that the child was settled in school, had friends and activities and any move would mean uprooting him from that. More importantly, he had, at that time, a well established therapeutic relationship with Ms K and, given the risk matters, such therapy would need to continue for some time. Additionally, a change of location would mean that the relationship with the father will be difficult to maintain and it would be in the child’s best interests to have some positive contact with him. Her view was that, if the child was permitted to relocate, he should not spend long periods of time with the father during the school holidays as there was a real risk that the child would be influenced by the father and/or that the father would not return the child to the mother’s care.
Ms L, however, changed her view given the fact that Ms K had indicated that she would no longer be available to assist the child, save to “transition” him to another therapist. Ms L’s evidence about Ms K’s non-continuation had the effect of taking away a major concern for her in terms of favouring the child remaining in Sydney and her view was then that the child’s deteriorated state and the better supports available to the mother in Town B (noting her recommendation for very limited time between the child and the father which could reasonably take place in Town B or Town E) favoured the mother being permitted to relocate the child to Town B. The Court accepts this view and gives it significant weight.
The Court accepts the Independent Children’s Lawyer’s submission that the mother’s relocation to Town B should not be obfuscated by the father’s current apparent unwillingness or unpreparedness to travel to Town B. Having regard to the father’s apparent love for the child and the apparent genuineness of his engagement with Mr C, the Court would have some confidence that the father would comply with orders providing for him to have a direct relationship with the child, notwithstanding his oral evidence, to the contrary.
The Court accepts the views of Ms L about the significance to the child of what remains for him in terms of the balance of his schooling year in 2019 and Ms K’s preparedness to continue her relationship with the child for the purposes of transitioning to another practitioner. In light of those views, the Court accepts the Independent Children’s Lawyer’s submission that it is in the child’s best interests that the mother not be permitted to relocate the child to Town B, until the conclusion of the 2019 school year.
The Court accepts that this period of, further, time in Sydney during the significant change of residence and no contact is not without difficulties, but in the event that the child, initially, seeks to self-place back with the father, the physical risks to him in doing so are less than if he sought to abscond from the mother’s care in Town B. While the Court notes that the consequences for the child in attempting to abscond to the father whilst he was living in Town B may be much greater, the chances of him doing so may be reduced given the greater geographic distance involved and by the time he relocates there he would have had a period of time with the mother without contact from the father and had the assistance of Ms K, during that period of time, as well. The Court will implement an order that requires the father to forthwith return the child to the mother’s care should the child attempt to return to his care in the period where the father is to have no contact with the child.
The father maintained that a relocation to Town B would cause a significant harm to his relationship with the child and to the paternal grandmother’s relationship with the child.
The father maintained that a relocation to Town B would disrupt the child’s current schooling where he was thriving and that his current school provided him with a safe place. In those circumstances, there would be a disruption to the routine and structure put in place by the father. The Court accepts that position but is of the view that the child’s overall best interests are advanced by an order which provides for him to live with the mother and to relocate to Town B. The child will need to change schools to a High School in 2020, in any event, which will bring about its own set of changes to routine and structure and this, to an extent, counters the father’s concerns, as referred to.
The father maintained that a relocation to Town B had the potential to cause the child a number of consequences that are not known but may include an attempt to return to the father’s care, self-harm, threats of harm to the mother, actual harm to the mother, deterioration in his mental health and the negative impact on his schooling.
The father, further, submitted that the mother should be careful in what she wished for, because the added responsibility of the full time care of a defiant, oppositional child who was distressed by his removal from the father and who she was unable to control, manage and discipline may have negative consequences for her own physical and mental health. These matters, substantially, support the mother’s relocation proposal because in Town B she will have the support from her mother and Mr N to, potentially, deal with any adverse consequences.
The father submitted that the disadvantages of the mother’s proposal outweighed its advantages.
The Court is of the view that none of the identified advantages of the father’s proposal so outweigh the disadvantages of the mother’s relocation proposal that it should be refused.
The Court is of the view that none of the identified disadvantages of the mother’s proposal so outweigh the advantages of the mother’s relocation proposal that it should be refused.
Accordingly, the mother’s relocation proposal is allowed.
Other parenting matters
Parenting orders should be accompanied by as little ambiguity as practicable (see Chappell & Chappell [2008] Fam CAFC 143; Newlands & Newlands (2007) 37 Fam LR 103).
Ms L was of the view that therapy was warranted for the child as she considered that it would be devastating to him if the father could not improve his parenting style, his capacity to co-parent and/or if he rejects the child.
The Court notes that the child reported to Ms L that he got on well with Ms K who he described as calm, nice and listens to him.
Ms L recommended that the child continues to attend upon Ms K, regardless of the parenting arrangement. She stated that that was imperative given her view that he had developed a trusting relationship with her and that he would need long-term and intense psychological treatment to reduce the risk of psychological problems and suicide.
Ms L was also of the view that therapy would assist the mother to improve her confidence in parenting, to help her set boundaries with the child and to develop a plan to extinguish the oppositional behaviour the child has displayed in her care.
Both parties have consented to orders which would provide them to have their own psychological assistance and both parties have agreed to follow recommendations in that regard. These were matters that were also the subject of Ms L’s recommendations.
The Court accepts that the father has expressed remorse given his acceptance that the child’s relationship with the mother has diminished, partially, as a result of his conduct and has engaged in counselling with Mr C who has given evidence that the father has the capacity to change for the benefit of the child.
The Court accepts, however, that the father’s proposal for family therapy should not be placed ahead of the need, as Ms L opined, for there to be a change of residence. It should also be noted that Ms K’s recommendation for family therapy related to the need for the mother and the child to attend intensive family therapy to repair their relationship.
Further, Ms L agreed that a number of preconditions needed to be met before family therapy would be a safe or productive intervention to assist the child. These preconditions were that the child needed to stabilise in the care of the mother as a first priority before family therapy begins, as the father would have no motivation to change his behaviour unless that were to occur and the child needed to be in a place to reality test the mother. Further, before family therapy begins, it was important to be sure that the father was, genuinely, working towards the therapeutic goals set by Mr C and was undertaking or had undertaken the parenting education courses which have been recommended to him. In particular, the father needed to demonstrate change, not just say that he was committed to change. Given Mr C’s evidence and that of the father the Court is of the view that more needs to be done by the father for family therapy to have the best prospects of success. In that regard, the Court accepts and adopts the Independent Children’s Lawyer’s proposal for the number of counselling sessions with Mr C.
Further, the Court gives credit to the father’s view that the mother impressed as a good person who would be likely to engage, appropriately, in family therapy.
Restraints & injunctions
The Court would not impose a restraint without clear evidence as to why the restraint should be imposed. The injunctive power is a discretionary one, “not to be exercised lightly” see the Full Court of the Family Court of Australia in Sieling & Sieling (1979) FLC 90-627.
The Court is not satisfied that there is sufficient evidence to ground final injunctive orders in terms of paragraphs 11(b) and 20(b) of the mother’s proposed orders, as against the father, as referred to in paragraph 1 above.
The Court does not have the power to make an order for a parent to undertake therapy, unless it is a condition to a parenting order. See the Full Court of the Family Court’s decision in L & T (1999) FLC 92-875. orders 5, 6 & 7 go no further than is reasonably necessary in the circumstances of this matter to ensure that the father’s time with the child can progress in a safe and appropriate way transitioning from initially no time to supervised time and then to unsupervised time.
In the circumstances, the Court is of the view that there is sufficient evidence before it to ground an injunction requiring the father not to attend upon the child’s current school unless engaged to work there and then, if so engaged, not to approach the child. Further, the father should be restrained until the child commences spending time and communicating with him in accordance with the orders from contacting the child by any means including social media, email, text messages and telephone calls during the period of no contact. The Court is of the view that such a restraint is in the best interests of the child to ensure that the child’s relationship with the mother is given the best opportunity for restoration and to reduce the level of conflict and anxiety for the child given the level of enmeshment identified between the child and the father. The Court is also of the view that there is sufficient evidence to ground the mother’s requirement that any communication by the father with the child, by sending to him cards and gifts should be in the English language and that the mother have the first opportunity to open and inspect the contents of any letters, cards and gifts provided by the father to the child, noting that the father has sought to communicate with the child, at times, exclusively in the Country J language.
Conclusion
Having considered the matters referred to above, and having given such matters the weight referred to and for the reasons set out herein, the Court is of the view that the orders the subject of the Independent Children’s Lawyer and the mother’s proposal (as modified by the orders proposed by the Court) are, otherwise, in the best interests of the child and, accordingly, the Court will, so order.
I certify that the preceding two hundred and eighty-nine (289) paragraphs are a true copy of the reasons for judgment of Judge Kemp
Date: 13 September 2019
- AGLC
- Testa and Fields [2019] FCCA 2569
- Case
- [2019] FCCA 2569
- Decision Date
CaseChat Overview and Summary
The court was required to determine the parenting orders for X, specifically who X should live with, whether the mother should be permitted to relocate with X, and the nature and extent of time and communication X would have with the father. A key legal issue was whether video and audio recordings, along with a transcript thereof, taken by the father on a mobile telephone were admissible as evidence, given potential contravention of the *Surveillance Devices Act 2007* (NSW).
The court applied section 138 of the *Evidence Act 1995* (Cth) to the admissibility question, which requires balancing the desirability of admitting evidence obtained improperly or in contravention of an Australian law against the undesirability of admitting such evidence. The court considered section 7 of the *Surveillance Devices Act 2007* (NSW), which prohibits the recording of private conversations without consent, unless specific exceptions apply. The court found that the visual recordings themselves would not contravene section 7. The father argued that the recorded conversations were not "private" or that consent had been given. The court noted the definition of "private conversation" in section 4 of the *Surveillance Devices Act 2007* (NSW), which excludes conversations where parties ought reasonably expect to be overheard.
The court ordered that X live with the mother, with the mother having sole parental responsibility and being permitted to relocate with X to Town B. The father was to have no time or communication with X for at least three months, conditional upon his commencement of specified courses and counselling. Following this period, supervised time was to commence, progressing to unsupervised time and limited telephone/Skype communication, subject to the father's continued engagement in therapy and counselling. The orders also included provisions regarding therapy for X and the parents, and mutual restraints on discussing proceedings or denigrating each other in front of X. By consent, the parties were to share the costs of the Independent Children's Lawyer and a joint expert.
Orders
Orders of the court
1.
The child, X, born in 2007 (“the child”) live with the mother.
2.
The father do all things reasonably necessary to forthwith effect a transition of the care of the child from his care to that of the mother.
3.
The mother have sole parental responsibility for the child.
4.
The mother be permitted to relocate with the child to Town B not before the day after the last day of the school term 4, 2019.
5.
Save as provided for in these orders, the child shall spend no time and have no communication with the father for a period of at least 3 months (subject to any extension of that time as referred to in order 9, below) from the date of these orders.
6.
Upon the expiration of the period referred in order 5 above and conditional upon the father’s commencement of:
(a) the “Tuning into Teens” course, a post-separation parenting course and anger management counselling within 3 months of the date of these orders and providing evidence of enrolment and/or completion of those courses and counselling to the mother and the Independent Children’s Lawyer; and
(b) No less than 7 sessions of counselling with Mr C (“Mr C”) at the Suburb DD Centre; and
(c) Provision of a report by Mr C confirming the father’s attendance at and engagement in the therapeutic objectives of the that counselling;
the child shall spend supervised time with the father for 3 hours every second Sunday supervised by Contact Centre D or any other private supervision agency (or Contact Centre) as agreed between the parties for a period of 6 months, with such time to be reportable with written reports to be provided to the mother and the Independent Children’s Lawyer by the supervisor after each occasion of supervised time, with the father to pay the costs of such supervision and for any reports issued in respect of it.
7.
After the expiration of the period referred to in order 6 above and conditional on the father’s completion of:
(a) No less than a further 12 sessions of counselling with Mr C or such other therapist agreed upon by the parties; and
(b) Provision of a report by Mr C or other agreed therapist confirming the father’s attendance at and engagement in the therapeutic objectives of that counselling;
The child shall communicate with the father by telephone or Skype for no more than 20 minutes one (1) day per week and spend unsupervised time with the father in Town B:
A. From 5.00pm on Friday (if the father elects) and, otherwise, from 10.00am on Saturday until 5.00pm on Sunday (or Monday if Monday is a public holiday) every second weekend with such time to take place in Town B or Town E;
B. The mother shall be entitled to suspend the father’s time in A above for a two week period in the long school holidays (December - January) by providing 14 days’ written notice to the father of her intention to so suspend such time to enable her to take the child away on holidays and, otherwise, the father’s time shall continue through all school holiday periods; and
C. At other times as agreed between the parties in writing.
8.
For the purpose of changeover, unless otherwise agreed in writing:
(a) the father, together with the supervisor, if applicable, is to collect the child from the mother at Suburb F McDonalds at Street EE, Suburb F (or after the mother has relocated to Town B at Town B Shopping Centre carpark at Street G, Town B) at the beginning of the child’s time with him; and
(b) the father, together with the supervisor if applicable, is to return the child to the mother at Suburb F McDonalds at Street EE, Suburb F (or after the mother has relocated to Town B at Town B Shopping Centre carpark at Street G, Town B) at the conclusion of the time.
9.
Until the child commences spending time and communicating with the father, the father be restrained by injunction from;
(a) approaching the child, if attending at the child’s school for work;
(b) attending the child’s school if he does not have work commitments there; and
(c) subject to order 11 below, contacting the child by any means whatsoever including social media, email, text messages and telephone calls.
10.
The father be responsible for forthwith returning the child to the mother’s care should the child attempt to return to the father’s care in the period contemplated in order 5 above. If the father fails to do so within a period of 3 hours (or within such further time period as is agreed to by the mother in writing), then the no time/communication period referred to in order 5 above shall continue for a further period of 3 months from the date of that failure.
11.
The father be permitted to send the child by mail, cards, gifts and photographs for birthday, Christmas, Religion J Easter and special occasions provided that:
(a) the words written in such communications are written in the English language; and
(b) the mother first has the opportunity to open and inspect the contents of the letters, cards and gifts provided by the father to the child to ensure their compliance with orders 20 and 21, below.
12.
The child continue to attend upon Ms K (“Ms K”) for individual therapy and, thereafter, upon a psychologist or psychiatrist as recommended by Ms K or as agreed to by the parties in writing.
13.
Ms K be permitted to explain to and discuss with the child the Court’s orders with respect to parenting and a copy of the Court’s reasons may be provided to her to assist, in that regard.
14.
The child and the mother engage in family therapy with Ms K or the child’s treating psychologist or psychiatrist pursuant to order 12, as recommended by Ms K or by the said psychologist or psychiatrist.
15.
The child and the father engage in family therapy with the child’s treating psychologist or psychiatrist as recommended by that psychologist or psychiatrist, commencing not before the commencement of the child’s unsupervised time with the father.
16.
By consent, the mother engage with a treating mental health practitioner until such time as that mental health practitioner recommends otherwise.
17.
By consent, the mother is to follow all reasonable treatment recommendations made by her treating mental health practitioner, including any recommendations for engagement with any psychologist, psychiatrist, counsellor or other such therapy.
18.
By consent, the father continue to engage with Mr C psychologist until such time as Mr C recommends otherwise.
19.
By consent, the father is to follow all reasonable treatment recommendations made by Mr C, including any recommendations for engagement with another psychologist, psychiatrist, counsellor or other such therapy.
20.
By consent, the mother and the father be restrained from discussing any aspect of the proceedings with the child and from permitting others to do so.
21.
By consent, the mother and the father be restrained from denigrating each other in front of or in the presence of the child and from permitting others to do so.
22.
By consent, the parties pay in equal shares, the costs of the Independent Children’s Lawyer in the sum of $15,068.00 with the father to pay his share to the Legal Aid Commission within 6 months of the date of these orders and the mother’s share being deferred until the conclusion of the parties’ property proceedings.
23.
By consent, the parties pay in equal shares the costs of Ms L, the joint expert, for her attendance at Court in the sum of $2,425.50 to be paid to her within 30 days of the date of these orders.
24.
By consent, the Independent Children’s Lawyer remain appointed until 30 May 2020.
25.
The parties have leave to provide a copy of these orders to each of their counsellors, the child’s counsellor/psychiatrist/psychologist and to the child’s school principal(s).
26.
Leave be given to the mother and the Independent Children’s Lawyer to relist the matter on 48 hours written notice to seek any further or other directions as to the implementation of these orders including, in particular, order 2 above.
27.
The matter be listed for mention on 4 December 2019 at 9.30am in respect of property matters.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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