TORBECK & STABLES

[2020] FamCA 339

FAMILY COURT OF AUSTRALIA

TORBECK & STABLES [2020] FamCA 339

FAMILY LAW – CHILDREN – Interim parenting – pending final hearing in August 2020 – where the father seeks to increase his time with the child pending final hearing – relocation – where the mother seeks relocation of the child on an interim basis.

Family Law Act 1975 (Cth)

Banks & Banks (2015) FLC 93-637
Goode & Goode (2006) FLC 93-286

APPLICANT: Mr Torbeck

RESPONDENT: Ms Stables

INDEPENDENT CHILDREN’S LAWYER: Everett's Family Law

FILE NUMBER: BRC 13584 of 2017

DATE DELIVERED: 8 May 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Mackay

JUDGMENT OF: Hogan J

HEARING DATE: 11 March 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms McMillan QC

SOLICITOR FOR THE APPLICANT: Wallace & Wallace Lawyers

THE RESPONDENT: In person on her own behalf

THE INDEPENDENT CHILDREN’S LAWYER: Ms Everett, Solicitor from
Everett's Family Law

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. The parents have leave to provide a copy of the Order made on 13 August 2019 to any medical practitioner upon whom the child X, born … 2017, attends.

2. Save as provided above, the Application in a Case filed 18 February 2020 and the Response to Application in a Case filed 3 March 2020 are each dismissed.

3. The parties have liberty to apply on the giving of 24 hours’ notice in writing in relation only to the issue of immunisation.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Torbeck & Stables has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MACKAY

FILE NUMBER: BRC 13584 of 2017

Mr Torbeck

Applicant

And

Ms Stables

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. By Application in a Case filed 18 February 2020, the father seeks that the Court vary the existing interim parenting orders relating to just three year old X (born on … 2017) in the manner there particularized. He does so in circumstances where the final hearing of the matter is currently listed to occur on 17 to 19 August 2020.

2. The mother opposes the making of orders in terms sought by the father; she also seeks that the Court vary the existing parenting orders, to permit her to relocate X’s residence to the B Town area.

3. The parents’ respective proposals to vary the existing interim parenting orders need to be seen in the context of earlier parenting orders made by consent in December 2017, which then prescribed X’s parenting arrangements.

4. Further, since orders were made on 13 August 2019, X has spent time with each parent as provided for by the same. The August 2019 order provides that X live in C Town in a home occupied by her maternal grandparents and mother (when she is not working at a place outside of B Town) when she is not otherwise living with her father; the order also prescribes that she spend time with her father:

   a)until 22 November 2019:

   i)from 6:00 pm Friday until 6:00 pm Sunday (two consecutive nights and two changeovers) each alternate weekend; and

   ii)from 6:00 pm Tuesday to 6:00 pm Wednesday in the alternate week (one night and two changeovers).

   b)from 22 November 2019 onwards:

   i)from 6:00 pm on Friday to 6:30 am Monday (three consecutive nights and two changeovers) each alternate week; and

   ii)from 6:00 pm Tuesday to 6:30 am on Thursday (two consecutive nights and two changeovers) in the alternate week.          

5. The August 2019 order also provided that X spend from 9:00 am on 26 December 2019 until 8:30 am on 9 January 2020 (fifteen consecutive nights) with her father. It also noted that she attends day-care on Tuesday and Wednesday each week.

6. At present the father and the maternal grandparents both live in C Town. Having signed a contract of employment on 13 March 2019, the mother started to work in the B Town area on about 29 April 2019: her evidence includes that she leaves C Town to travel to B Town for work on Monday mornings, but I am somewhat unclear from her evidence about precisely when she returns to C Town. Consequently, it appears that, at most, X spends about three or four nights with her mother each fortnight, depending on her mother’s work-related travel arrangements, and is otherwise in the care of her maternal grandparents when not in her father’s care.

7. Given that the mother’s evidence includes that her employer has provided her with a five bedroom house ‘free of charge’ in the B Town region,[1] and that her employer will cover a portion of her accommodation costs if her relocation application is granted, I am a little unclear about the actual financial/practical support her employer has or will provide her in the future. No doubt this slight ambiguity will be better able to be explained at the final hearing of the matter.

   [1] Affidavit of the mother filed 3 March 2020 at [307].

8. The manner in which the Court is to approach, consider and determine applications for interim parenting orders such as the present is well-known and requires little or no further elucidation.[2]

The competing proposals

[2]Goode & Goode (2006) FLC 93-286; Banks & Banks (2015) FLC 93-637.

The father

1. The father initially sought[3] that X spend time with him:

   [3] By his Application in a Case filed 18 February 2020.

   a)from 30 March 2020 to 1 June 2020:

   i)each alternate weekend from 6:00 pm Friday to 6:30 am Monday (three consecutive nights and two changeovers );  and

   ii)from 6:00 pm Tuesday until 6:30 am Thursday each week (two consecutive nights and two changeovers); and

   b)from 1 June 2020 onwards, in a two week rotating arrangement:

   i)in week 1: from 6:00 pm Monday until 6:30 am Thursday (three consecutive nights and two changeovers) and from 6:00 pm Friday until 6:30 am Monday (three consecutive nights and two changeovers); and

   ii)in week 2: from 6:00 Tuesday to 6:30 am Thursday (two consecutive nights and two changeovers).

2. Whilst his proposal was amended during the oral submissions made on his behalf, his overall proposal remained that orders should now be made for X to spend more time in his care and that any consideration of her moving to live in B Town occur only at a final hearing.

The mother

1. The mother sought that she now be allowed to relocate X to live with her in the B Town area.[4] The mother proposed that if X’s time with her father was ordered to occur on a supervised basis, as she sought, such time occur each alternate weekend at the E Contact Centre at times the Centre was able to facilitate. In the alternative, she sought that, if X’s time with her father continue to occur on an unsupervised basis, such time occur from 4.30 pm Wednesday until 4.30 pm Sunday (four consecutive nights) each alternate week. She outlined during her oral submissions, in essence, that this latter proposal was advanced on the basis that the father was able to change his work hours.

   [4] See her Response to an Application in a Case, filed 3 March 2020.

The Independent Children’s Lawyer

1. The Independent Children’s Lawyer proposed that the orders be varied to increase X’s time with her father, but in a manner which kept the number of changeovers the same. She proposed that X spend time with her father:

   a)from 30 March 2020 until 1 June 2020:

   i)from 6:00 pm Friday until 6:30 am Monday (three consecutive nights and two changeovers) each alternate weekend; and

   ii)from 6:00 pm Tuesday until 6:30 am Thursday each week (two consecutive nights and two changeovers);

   b)from 1 June 2020:

   i)in week one: from 6:00 pm Tuesday until 6:30 am Monday (six consecutive nights and two changeovers); and

   ii)in week two: from 6:00 pm Tuesday until 6:30 am Thursday (two consecutive nights and two changeovers).

Broad summary of the matters advanced by each party in support of their respective contentions that the orders sought are in X’s best interests and should be made

The father

1. It seemed to me that the father’s main contentions in advocating for an increase in the time X spends with him can be summarised as being: the inability of the mother and maternal grandparents to foster X’s relationship with him (which was said to be demonstrated by the allegations of sexual abuse and domestic violence and the re-agitation by the mother of her proposal to relocate X); and that his proposed orders, if made, would not impede X’s relationship with her mother as her time with her would not be reduced. It was submitted that, at present, the mother’s work schedule is such that she spends three or four nights at most with X each fortnight, depending on when she leaves C Town for work.

2. It was submitted that, as the maternal grandparents have what was described as a “poisonous” attitude toward the father,[5] it is in X’s best interests that her time with them is decreased and her time with her father is correspondingly increased. It was also submitted that, should orders be made in the terms sought by the mother, X’s relationship with her father was unlikely to continue because of the attitude toward him held by the mother and the maternal grandparents: particular reference was made to the maternal grandfather’s hostile attitude toward the father and his actions in asking the maternal grandmother to take pictures of the father during his FaceTime communications with X, not encouraging her to interact with him and glaring at him[6] such that the engagement was a negative experience for the father and X. The father was also particularly concerned that neither the mother nor the maternal grandfather appeared to discourage x from referring to the maternal grandfather as ‘daddy’[7] – which he felt was both inappropriate and an attempt to dismiss him as her father.

   [5] Written submissions of the father at [23].

   [6] Affidavit of father filed 18 February 2020 at [46].

   [7] Affidavit of father filed 18 February 2020 at [48].

3. It was also submitted on behalf of the father that, whilst his proposal for X’s time with him from 1 June onwards involved two additional changeovers between himself and the maternal grandparents, changeovers between them had been managed uneventfully since January 2019.[8] It was submitted that the sought increase in X’s time with her father was an appropriate progression in the same, commensurate with her age and development and would allow her relationship with him to continue to build.

   [8] Affidavit of father filed 18 February 2020 at [42].

4. Given that X’s attendance at day-care would have to increase if orders were made in the terms sought by the father, his evidence included that his inquiries of the same revealed that the Centre could accommodate such an increase.

5. Whilst it was the father’s case that there had been no indication that X was not coping with the current arrangements (including block time with him),[9] the mother’s evidence included that, after changeovers, X was angry, smashed things, scratched her face and hid in corners while saying “don’t look at me or phone me” (which the mother thought to be a reference to her being filmed)[10] and would refuse to allow her mother or grandparents to change her clothes at bedtime. She described X sleeping late for two to three days after returning from her father’s care; that she refused to sleep on her own and asked that someone hold her hand and that she would wake up asking where her mother was and whether she loved her.

   [9] Affidavit of father filed 18 February 2020 at [33].

   [10] Affidavit of mother filed 3 March 2020 at [106].

6. The mother also said that, after spending time with her father, X had told her and her maternal grandparents that they did not love her and that they were not her friends; she also said that X had started to make what she regarded as negative comments about her, such as that she (the mother) “lives at work”. The mother said that X had attempted to teach her and the maternal grandparents a new method to kiss – with open mouths – and that, after returning from the father’s care, the child would sit in a corner and try to punch herself in the face and would try to punch her mother and grandparents when they attempted to stop her; she said X had normally lost weight after spending time with her father; on occasions she appeared to be so hungry on her return that she ate with her hands rather than using utensils. She described X referring to her as “Momma” rather than “Mummy” and outlined that she believed this was indicative of the father “coaching” X.

7. The father’s evidence was, in essence, that he had not seen X demonstrate the behaviours the mother asserted she had seen their daughter demonstrate after spending time with him. He said that the only ‘new method to kiss’ that X had learned was that of ‘eskimo kiss’ and ‘butterfly kiss’, which her paternal grandmother taught her during their time together in December 2019. He maintained that X is not neglected in his care, and that he is able to care for her appropriately.

8. It was submitted that the Court should, in essence, conclude that the mother’s re-agitation of her previous unsuccessful application to relocate X to live in B Town on an interim basis would cause the Court to be concerned about her ability to facilitate a relationship between X and her father. Given that the current competing applications occurred in the context of the adjournment of the final hearing that had been listed to proceed in the week the interim applications were heard, I am not persuaded that this is the case. The mother’s position has consistently been that she seeks to be able to relocate X to live in B Town and I simply regard each parent’s application for further interim orders as having been made in the context of the adjourned final hearing.

9. The father particularly relied on the assertion in the Family Report to the effect that, if the mother’s “behaviour does not cease immediately, I am inclined to strongly recommend to the Court that residence be reversed.”[11] However, the mother’s conduct (if accepted to have been as asserted) is only one of the considerations to which regard must be had in making those parenting orders which are in X’s best interests; further, the limitations inherent in interim proceedings such as the present are such that I do not consider myself able to find, at this stage, that the mother’s behaviour now is such as to provide the necessary factual precondition on which this recommendation rests.

   [11] Written submissions of the father at [35].

10. In opposing the mother’s application for an order permitting her to relocate X to live in B Town, it was submitted on behalf of the father that, whilst the maternal grandparents had indicated they might like to move to B Town if X relocated to live there, they remained living in C Town and, consequently, there was nothing in the evidence before the Court to suggest that an interim order for relocation should be made prior to the final hearing of the matter. Given the mother’s previous position that, because of the asserted effects on X of the travel associated with her previous time with her father at the E Contact Centre, her time with her father should have been reduced, it was submitted that the father was concerned that, if the mother was permitted to relocate X to live in B Town on an interim basis (with the consequence that she would have to travel for about 3½ hours to spend time with her father in C Town), the mother might use the fact of distance to reduce X’s opportunities to spend time with him.

The mother

1. In essence, the mother submitted that the Court would be persuaded that it is in X’s best interests to be permitted to relocate to live in B Town because: this would enable her to spend more time with her mother; to have a structured routine of spending time with each parent prior to the final hearing; and appropriately manage the risk she contended the father posed to her and X. She also raised concerns about the impact of the existing parenting regime on X and the relationship between them.

2. She submitted that, at present, she only spends time with X three days per fortnight because of her work commitments; she said that, when she was away for work and rang home to speak with X, the child would become upset, and demand that she (the mother) ‘come home now’. The mother also submitted that, in contrast to this, a relocation to live in B Town would enable X to spend time with her in the mornings and evenings outside her work hours and therefore increase their time together and remove the impost of caring for X at these times from the maternal grandparents.

3. The mother’s evidence included that her employer had provided her the use of a house in the B Town area ‘free of charge.’ She submitted that, whilst her parents (X’s maternal grandparents) currently live in C Town, they would probably move to live in B Town with her if she was permitted to relocate X to live there with her.

4. Whilst the mother acknowledged the father’s inability to relocate from C Town due to visa constraints, she submitted that this restriction should not negatively impact on her ability to spend time with X.[12] By way of broad overview, an aspect of the father’s case, as I understand it, includes that the mother’s decision to take up employment based around B Town (rather than to continue in the employment that had seen her living in C Town) included     a desire to create a situation where distance meant that X’s opportunity to spend time with him was adversely affected.

   [12] Affidavit of the mother filed 3 March 2020 at [156].

5. The mother opposed orders that would increase X’s time with her father on the basis that any such increase in time would see X spending more time in day-care than she presently does; she also noted the father had previously asked the maternal grandparents to care for X when she was in his care pursuant to the orders; her submissions included that her proposal would not reduce X’s time with her father, although it is clear that it would reduce the frequency with which she is able to spend time with him, vis-à-vis that provided for by the existing parenting orders.

6. By way of broad summary of the mother’s contention that the father poses a risk to her and X, she submitted that his history of violence against her, the allegations of sexual abuse against X, her concerns about the father’s care of X and her health, X’s changed behaviours after visits with her father (including kissing behaviour), issues with changeovers, the father changing X’s clothing and his behaviour during FaceTime calls with X, were all indicative of this risk. She also asserted that the operative orders enabled the father to exert a level of control over her life, something she alleged is a continuation of an asserted pattern of behaviour she alleged had started when they lived in New Zealand. She particularised the control she alleged the father was able to exert over her life as including his insistence that she make a Will and obtain life insurance; the restrictions placed on her location; the requirement to provide phone numbers; her inability to travel with X; and X’s attendance at day care.[13]

   [13] Affidavit of the mother filed 3 March 2020 at [227].

7. The father either denies the alleged behaviour or asserts that those aspects of it which occurred were not controlling of the mother. He denies acting abusively toward X; he confirmed having been concerned about each parent having a Will and appropriate life insurance and explained that this was because of X’s age and that he was then working underground. He denied forcing the mother to sign anything.

1. During her oral submissions, the mother outlined that she did not agree with the proposals advanced by either the father or the Independent Children’s Lawyer because of the increased numbers of changeovers;  she submitted, in essence, that, even if orders were made in the terms they sought, X would not actually spend more quality time with her father as he would be at work and she would spend more time in day-care; she also noted that she believed the father was not able to care for X because of his fulltime employment. She submitted, in essence, that any increase in the number of changeovers X was required to participate in would result in too much ‘chopping and changing’ to the child’s routine and would likely be confusing for her.

2. In seeking to persuade of the increased block-time she proposed in association with her proposal that she now be permitted to relocate X to live with her in B Town, the mother submitted that the 6.30 am changeover time created an irregular sleeping pattern for X and that it was more appropriate and therefore in X’s best interests that she have a routine of more nights in her care, such that she is better able to develop better sleeping patterns. She also submitted that her proposal only required X to participate in two changeovers per fortnight and would enable her to spend quality block- time with both of her parents.

3. However, the mother’s affidavit does not contain any evidence about whether she stays on site at the mine or returns to B Town each evening after work. I am therefore unable to determine whether, if X relocated to live in B Town, the reality for her would be that she simply spends more time being cared for by her maternal grandparents, less frequent time with her father and about the same time with her mother – as, for example, would be the case if her mother has to stay on-site at a camp located outside B Town during her working time and is only able to return to B Town at the end of that time.  Such issues can, obviously, be considered at the final hearing of this matter.

4. It is, I think, also relevant to record that, whilst the mother’s primary position was that X is at risk of suffering harm in the unsupervised care of her father, her alternative position was to advance that X spend four consecutive nights per fortnight in his care – an increase to the three consecutive nights the current regime imposes as the longest (non-holiday) period she spends with her father.

The Independent Children’s Lawyer

1. During her oral submissions, the Independent Children’s Lawyer noted that the Family Report does not support X’s relocation; she also noted that the author of the report voiced concerns about the mother’s ability (and that of the maternal grandparents) to foster a relationship between X and her father and expressed the opinion that they presented as “very reluctant participants in the facilitation and progression of spending time arrangements”.[14] The Independent Children’s Lawyer advanced that she was generally supportive of orders which would see an increase in the time X could spend with her father until the final hearing of this matter and that such time should, in essence, be accorded priority to the time X currently spends in the care of her maternal grandparents.

   [14] Family Report of Ms F filed 13 August 2019 at [11.8].

2. The Independent Children’s Lawyer submitted that she was concerned that the mother appeared to be seeking a return to X spending only supervised time with her father given that: the parents had previously negotiated unsupervised time; X’s time with her father has proceeded on an unsupervised basis; and that the Family Report Writer had recommended the same. She also submitted that it would not impede on X’s time with her mother for the child to spend mid-week time with her father as the mother was away for work at that time; she also took issue with the amount of “quality time” X would be able to spend with her mother if the relocation to B Town was permitted on an interim basis, on the basis of the child’s age and the mother’s likely shift duration and the possible travel time between the site and B Town. She also noted that the mother had not provided the Court with evidence (as opposed to submission) about her shift hours or work routine.

Further discussion

1. As noted in Banks,[15] it is unnecessary for each statutory consideration to be the subject of any particular discussion, particularly where the evidence relevant to it leads inexorably to a particular conclusion. Any failure to mention a consideration specifically does not mean it has been overlooked in my deliberations about those orders which are in X’s best interests pending the final hearing of this matter later this year.

   [15](2015) FLC 93-637.

2. I have considered all of the relevant considerations in arriving at my conclusion that, at present, those parenting orders which are in X’s best interests are those which currently prescribe the time she is to spend in the care of each of her parents or their respective households.

3. I am not persuaded on an interim basis that it is in X’s best interests to permit her mother to relocate her to live in B Town. I arrive at this conclusion because the state of the evidence is such that I am unable to be clear about the practicalities of X’s day-to-day care in such a scenario and that the matter is the subject of final contest between X’s parents; I have also placed significant weight on my assessment of the highly likely impact that such a move, and its consequent limitation on the frequency of X’s current opportunity to spend time with her father, may have on the ongoing development of their relationship. I consider that, at her age, it is more likely to be more beneficial for X to be able to spend relatively frequent time with each of her parents, even if such time is also attended by her participation in day-care or by being cared for by members of her extended family, than for there to be relatively long hiatus in such opportunity to spend time with each of them.

4. I am not persuaded that it is in X’s best interests at present that she be required to transition more frequently between her parents’ households than she does at present; similarly, I am not persuaded on the evidence currently before me that her best interests will now be met by increasing the duration of the time she spends with her father, especially given that such increase may very well only marginally increase the time she actually spends with him, as opposed to increasing the time she is engaged in day-care.

5. Given that it appeared that the parents were not really in dispute about the issue of ensuring that X receives the appropriate and necessary vaccinations, I have not made any specific order about this issue. In the event that the parents’ ostensible agreement was short-lived, there will be liberty to apply on short notice in relation to this issue only.

6. Whether the orders sought by either parent, or some variation of the same, are ultimately found, on the evidence presented at a final hearing and tested via cross-examination, to be in X’s best interests is the very matter which will occupy the Court at the final hearing listed to occur in mid-August 2020.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 8 May 2020.

Associate:     

Date:              8 May 2020