Vaughton and Randle
[2014] FamCA 147
FAMILY COURT OF AUSTRALIA
| VAUGHTON & RANDLE | [2014] FamCA 147 |
| FAMILY LAW – CHILDREN – with whom a child lives – with whom a child spends time – mother relocated to Tasmania without notice – child lived with mother in Tasmania and travelled back to Adelaide on alternate weekends to spend time with father – history of contraventions – allegations of family violence not substantiated – mother reluctant to foster meaningful relationship between father and child – best interests of the child – recommendations of family consultant – mother and child to return to Adelaide – child live with mother and spend time with father. |
Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA, 69ZN, 69ZT, 70NFB
Evidence Act 1995 (Cth)
| Briginshaw v Briginshaw (1938) 60 CLR 336 M & M (1988) 166 CLR 69 Maluka & Maluka (2011) FLC 93-464 Maluka & Maluka [2012] FamCA 373 Mazorski v Albright (2007) 37 Fam LR 518 McCall & Clark (2009) FLC 93-405 McShane & Tanner (No 2) [2011] FMCAfam 508 |
| APPLICANT: | Ms Randle |
| RESPONDENT: | Mr Vaughton |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission |
| FILE NUMBER: | ADC | 3046 | of | 2010 |
| DATE DELIVERED: | 13 March 2014 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 14 & 15 November 2013, 6 & 20 December 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Dillon |
| SOLICITOR FOR THE APPLICANT: | Adelaide Legal Solutions |
| COUNSEL FOR THE RESPONDENT: | Ms Dickson |
| SOLICITOR FOR THE RESPONDENT: | Adey Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Fuda |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of SA |
Orders
That all previous parenting orders be discharged.
That the mother and the father do have equal shared parental responsibility in respect of the child R born … 2008.
That the mother do all things as shall be necessary to cause the return of the said child to reside permanently in the metropolitan area of Adelaide in the State of South Australia on or before 4 July 2014.
That the child shall live with the mother.
That the child shall spend time with the father as follows:-
(a) From 10am Saturday 12 April 2014 to 5pm on Saturday 19 April 2014;
(b) From 10am Saturday 17 May 2014 to 5pm on Sunday 18 May 2014;
(c) From 10am Saturday 5 July 2014 to 6pm Saturday 12 July 2014;
(d)During school term, each alternate weekend from the conclusion of school on Friday to the commencement of school on the following Tuesday;
(e)As and from the end of Term 3 2014 school holidays, for the first half of each of the short end of term holidays, with the last day of the term to be the first day of the holidays and the Sunday immediately prior to the commencement of the next term shall be the last day of the school holidays.
(f)For the 2013/2014, 2014/2015 and 2015/2016 Christmas holiday periods on a week about basis with the father to have the first week in 2014/2015 and each alternate years thereafter and the mother to have the first week in in 2015/2016 and each alternate year thereafter.
(g)That as from the 2016/2017 Christmas holiday period the father shall have the first half of the said holiday period and each alternate year thereafter, and in 2016/2017 the father shall have the second half in the said holiday period and each alternate year thereafter PROVIDED that the last day of the school term shall be the first day of the holiday period and the last Sunday immediately prior to the commencement of the school term shall be the last day of the school holiday period.
(h)With the father on Father’s Day from 9am until 5pm;
(i)With the mother on Mother’s Day from 9am until 5pm, with the father’s time suspended during this period;
(j)During each Christmas period as follows:-
(i)In 2014 and for the same period in each alternate year thereafter as follows:-
a.With the father from 5pm on Christmas Eve until 5pm on Christmas Day;
b.With the mother from 5pm on Christmas Day until 5pm on Boxing Day.
(ii)In 2015 and for the same period in each alternate year thereafter as follows:-
a.With the mother from 5pm on Christmas Eve until 5pm on Christmas Day;
b.With the father from 5pm on Christmas Day until 5pm on Boxing Day.
(k)On the occasion of the child’s birthday, with the parent with whom he is not living on that day for a period commencing at 4.30pm and concluding at 7pm.
(l) During each Easter period:-
(i) With the father in 2015 and for the same period during each alternate year thereafter from 4.30pm on Easter Thursday until 5pm on Easter Monday;
(ii) With the mother in 2016 and for the same period during each alternate year thereafter from 4.30pm on Easter Thursday until 5pm on Easter Monday.
(m)That the time that the child shall spend with the father during term time is suspended during all school holiday periods.
That the parties be restrained and an injunction granted restraining each of them from permitting the said child to consult with any counsellor, social worker or psychologist without the prior written consent of the other.
That the father and the mother do provide to the other parent and do keep the other parent informed as to their contact mobile telephone number, email address and residential address.
That each of the parties do facilitate the child contacting the other party by telephone or skype.
That each of the parties do authorise the said child’s school to release to the other parent copies of all notices, school reports and any other information usually provided to parents by such school or other educational institution which the said child may from time to time be enrolled with and attend.
That the parties do ensure that the other parent is registered with the said child’s school or other educational institution as the said child’s parent and as an emergency contact with respect of the said child.
That each of the parties be entitled to attend at all of the said child’s school functions, school sports and other extra-curricular activities and events to which parents are usually invited to attend and including, but not limited to school sports days, sporting events and school concerts and the like PROVIDED that on each occasion of attendance the parties shall be restrained from unilaterally approaching the other party unless invited to do so.
That in the event of any serious accident, illness or medical emergency involving or relating to the said child, the relevant party shall forthwith inform the other party as soon as reasonably practicable of the particulars in relation to same and do in such circumstances be at liberty to communicate with and obtain any information concerning the said child from any treating medical practitioner and/or specialist.
That each of the parties will at all times advise the other parent of the names, addresses and contact details of all medical practitioners and health professionals involved with the care of the said child, and each of them shall hereby authorise such medical practitioners and health professionals to release to the other parent all information as may be requested in relation to the child’s welfare and development.
That the parties and each of them be restrained and an injunction be granted restraining each of them from:-
(a)Altering the residential address of the said child without providing the other parent with not less than 7 days written notice, with such notice to include details of the said child’s new residential address;
(b)Denigrating or ridiculing the other parent or the other parent’s partner or family members to the said child or in the presence of the said child or from permitting any other person to do so.
That all handovers that do not occur at the said child’s school shall occur in the foyer of the Suburb B Police Station or at such other venue as the parties may agree from time to time.
Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Vaughton & Randle has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 3046 of 2010
| Ms Randle |
Applicant
And
| Mr Vaughton |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
By Initiating Application filed in the Federal Magistrates Court of Australia on 11 August 2010, Mr Vaughton, (“the father”) sought parenting orders in respect of the child of the relationship R born in 2008, (“the child”). By Response filed 1 October 2010, Ms Randle, (“the mother”) sought orders that she have the sole parental responsibility for the child, that he live with her and that the father could spend time with the child on a supervised basis only to occur in Tasmania. Throughout the course of the proceedings each of the parties variously amended their competing applications.
The mother filed an Amended Initiating Application on 12 August 2013. The orders sought by her were significantly different to the thrust of previous orders sought namely, that the father’s time with the child would be limited in scope and frequency, the subject of supervision and to take place in Tasmania.
Evidence and submissions concluded on 20 December 2013 with judgment being reserved. At that point the mother’s proposal incorporated a graduated approach as follows:-
4.That from 3 February 2014 until the child attains the age of 6 on … 2014, the said child spends time with the father as follows:-
4.1For a period of 4 days during term 1 – term 2 Tasmanian school holidays with such time to occur in Adelaide;
4.2For a period of 4 days during the term 2 – term 3 Tasmanian school holidays with such time to occur in Adelaide;
4.3For a period of 3 days in each term of the school year to occur in Tasmania;
4.4The father’s time spent with the child as set out in paragraph 4.1 and 4.2 above to occur over a 4 consecutive day period at a time agreed between the parties by email as follows:-
4.4.1Day 1 from 2pm overnight to day 4 at 1pm;
4.4.2 The child communicates by webcam with the mother on day 3 at 6.30pm (EST);
4.5The father’s time spent with the child as set out in paragraph 4.3 to occur as follows:-
4.5.1From Friday at 5pm to Sunday 5pm with handovers to occur as per paragraph 14.
5.That once the child has attained the age of 6 on … 2014 the said child spends time with the father as follows:-
5.1For a period of 6 days during the term 3 – term 4 Tasmanian school holidays with such time to occur in Adelaide;
5.2For a period of 6 days during the month of January 2015 with such time to take place in Adelaide;
5.3School holiday time pursuant to the father spending time with the child as set out in paragraph 5.1 and 5.2 above to occur over a 6 day period over a time agreed between the parties as follows:-
5.3.1Day 1 from 2pm overnight to day 6 at 1pm;
5.3.2The child communicates by webcam with the mother on day 3 at 6.30pm (EST).
6.…
7.…
8.That from 2016 onwards, the said child spends time with the father in Adelaide as follows:-
8.1For a period of 7 consecutive days to occur in Adelaide from 2pm on day 1 to 1pm on day 7 in each short Tasmanian school holiday period at a time to be agreed between the parties;
8.2From 2pm on 23 December 2017 to 29 December 2017 at 1pm in Adelaide and each alternate year thereafter.
The mother sought a range of other orders principally directed to the method and manner by which the child would travel from the State of Tasmania to the State of South Australia to give effect to the orders, electronic communication between the father and the child on an ongoing basis, the provision of information in respect of the child’s health and school and injunctive orders restraining the father from consuming alcohol for at least 24 hours prior to and during any period when the child is in his care.
Significantly, the orders sought by the mother at trial clearly concede that there is a significant and meaningful relationship between the father and the child, but of critical importance to the mother is that she seeks orders that would enable the child (and by necessary implication the mother) to remain living in Tasmania.
The orders sought by the father in his Amended Initiating Application filed 30 August 2013 are in stark contrast to the orders as sought by the mother. He seeks orders in the alternative dependent upon whether the mother would accompany the child to Adelaide (if the father is successful) or whether she would remain in Tasmania.
Whilst distressed at the concept, the mother’s position is that she would return to South Australia with the child if orders were made that could only be given effect to if the child resided in Adelaide. The essential orders sought are as follows:-
(1)That the mother and father do have the equal shared parental responsibility in relation to the major long term care issues of the child of the relationship [R] born … 2008;
(2)…
(3)…
(4)…
(5)That the said child live with the father;
(6)…
(7)…
(8)That the mother do all such acts and things as shall be necessary to relocate the said child to permanently reside in the metropolitan area of Adelaide in South Australia;
(9)That the mother do forthwith deliver up to the father the said child and the clothing, toys and other personal effects of the child;
(10)…
(11)…
(12)That the said child do live with the father pending the mother’s permanent relocation to the metropolitan area of Adelaide in the State of South Australia;
(13)That upon the mother’s permanent relocation to the metropolitan area of Adelaide in the State of South Australia the said child do:-
(a)Live with the father and mother on an alternating weekly basis with handovers to take place at the cessation of school each Friday;
(b)That notwithstanding the alternating weekly care arrangements of the said child, the said child do spend time with each of the mother and the father on special occasions as follows:-
(i)With the father on Father’s Day from 9am to 5pm;
(ii)With the mother on Mother’s Day from 9am to 5pm;
(iii)During each Christmas period as follows:-
1.In 2013-2014 for the same period in each alternate year thereafter as follows:-
a.With the father from 5pm on Christmas Eve until 5pm on Christmas Day;
b.With the mother from 5pm on Christmas Day until 5pm on Boxing Day;
2.In 2014-2015 and for the same period in each alternate year thereafter as follows:-
a.With the mother from 5pm on Christmas Eve until 5pm on Christmas Day;
b.With the father from 5pm on Christmas Day until 5pm on Boxing Day;
(iv)On the occasion of [the child’s] birthday with the parent with whom he is not living at that day for a period commencing at 4.30pm and concluding at 7pm;
(v)During each Easter period as follows:-
(i)With the father in 2014 and for the same period during each alternate year thereafter from 4.30pm on Easter Thursday until 5pm on Easter Monday;
(ii)With the mother in 2015 and for the same period during each alternate year thereafter from 4.30pm on Easter Thursday until 5pm on Easter Monday.
The father sought additional orders (but more expansive than the mother) as to the following general matters:-
·Contact details, residential address and phone information;
·The ability of each of the parties to communicate electronically with the child on a regular basis;
·Appropriate access to school reports, notices and other educational information;
·The attendance by each of the parties at school functions and extra- curricular activities;
·Dissemination of appropriate health related information in respect of the child;
·Notice to be given before any intention to travel interstate is undertaken;
·The use of a communication book;
·Various orders of restraint requiring the parties to desist from denigrating or ridiculing the other party in the presence of the child;
·Handover either at the child’s school or at Suburb B Police Station.
At trial each of the parties relied upon their respective applications as to the orders that each of them sought.
The orders sought by each of the parties are to be seen against the backdrop of orders made by Lindsay FM on 28 March 2011 which, subject to relatively minor amendment on 18 April 2012, provide for the current parenting arrangements in respect of the child. The orders provide for the child to live with his mother and in addition:-
4.Pending trial the mother do all such things as may be reasonably required to facilitate the child spending the following time with the father, namely:-
(a)On alternate weekends from 9am to 5pm on Saturday and Sunday 2 April 2011;
(b) From 9am Saturday to 5pm Sunday on alternate weekends commencing 11 June 2011.
5.All time spent, including the overnight component, is to be supervised by either the paternal grandmother or a paternal aunt.
6.The parties forthwith enrol for acceptance into C Children’s Contact Service and following acceptance all handovers of the child occur at that service or if the service is unavailable then inside the Suburb B Police Station with the father to be absent from the Police Station for such handovers.
7.The mother book all airfares associated with the child’s travel to Adelaide to facilitate time in accordance with paragraphs 4 (a) and (b) of this order with the father to forthwith reimburse the mother for half of such costs upon presentation of an account to him.
Taking into account the travel arrangements, the order was predicated upon the mother remaining with the child in Tasmania.
The trial commenced before me on 14 November 2013. Each of the parties was represented by counsel as was the Independent Children’s Lawyer (“ICL”). Evidence was taken thereafter on 14 and 15 November 2013 and then on 6 and 20 December 2013 with judgment reserved.
Notwithstanding each of the parties filed and relied upon an Amended Initiating Application, I determined that for the purposes of the proceedings the mother would be the applicant and therefore dux litis taking into account her application was filed prior in time to that of the father.
The mother relied upon the following documents:-
1.Amended Initiating Application filed 12 August 2013
2.Trial Affidavit of mother filed 18 October 2013
3.Trial Affidavit of mother filed 9 August 2013
4.Trial Affidavit of mother filed 10 March 2011
5.Affidavit of Ms W filed 9 August 2009
The father relied upon the following documents:-
1.Amended Initiating Application filed 30 August 2013
2.Trial Affidavit of father filed 30 August 2013
3.Affidavit of the paternal grandmother filed 30 August 2013
4.Affidavit of Ms S filed 30 August 2013
5.Affidavit of Ms F filed 30 August 2013
On 20 September 2013 the father made an application for leave to release to the parties and the ICL an anonymised copy of the judgment of Judge Cole in the matter of McShane & Tanner ADC4912/2009. I was satisfied that the involvement of the mother in the proceedings before Judge Cole had a direct relevance to the parenting issues under consideration in these proceedings. Leave was given for the release of the said judgment. The inter-relationship between the two matters was ultimately critical to a consideration of the circumstance of the mother’s move from South Australia to Tasmania.
At the commencement of the proceedings I had indicated to counsel that I had regard to the provisions of Section 69ZN of the Family Law Act1975 (Cth) (“the Act”) namely:-
69ZN (1)
A Court must give effect to the principles in this Section:-
(a)In performing duties and exercising powers (whether under this Division or otherwise) in relation to child-related proceedings; and
(b)In making other decisions about the conduct of child-related proceedings. Failure to do so does not invalidate the proceedings or any order made in them.
69ZN (2)
Regard is to be had to the principles in interpreting this Division.
69ZN (3)
The first principle is that the Court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
69ZN (4)
The second principle is that the Court is to actively direct, control and manage the conduct of the proceedings.
69ZN (5)
The third principle is that the proceedings are to be conducted in a way that will safeguard:-
(a)The child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and
(b) The parties to the proceedings against family violence.
69ZN (6)
The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote co-operative and child focussed parenting by the parties.
69ZN (7)
The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form as possible.
Consideration then turned to the application of the provisions of the Evidence Act1995 (Cth) and if some or all of the provisions of the Evidence Act should apply then in relation to what evidence.
In determining whether the provisions of the Evidence Act should apply I have considered the provisions of Section 69ZT (3) namely that I must be satisfied that the circumstances are exceptional and that I have had regard to the following matters:-
i)The importance of the evidence in the proceedings; and
ii)The nature of the subject matter of the proceedings; and
iii)The probative value of the evidence; and
iv)The power of the Court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.
Each of the parties and the ICL tendered an Outline of Case document. The document prepared on behalf of the mother alleges the following:-
The legislation required the Court to consider two criteria primarily – protective concerns relating to the exposure of a child to abuse, neglect and family violence – and the benefits of a child having a meaningful relationship with both of his or her parents.
In this case there are allegations by the mother that the father was violent towards her during the relationship and has problems with anger and impulse control.
The allegations in this case go further than instances of violence during the relationship with elements of violence continuing after the parties separated in June 2009.
Given the failure by the father to acknowledge and seek help for those problems, it is alleged that there is a risk that the child would be exposed to further violence in the father’s household.
The trial affidavit evidence of the mother refers to particular allegations of family violence as set out in paragraphs 13 – 20, 26 – 29 and 42.
The Full Court of this Court in Maluka & Maluka (2011) FLC 93-464 gave consideration to the circumstances of the application of Section 69ZT in a case that involved allegations of family violence and sexual abuse. At paragraph 121 the Full Court considered the extent of judicial discretion in the application of the Section and held:-
[121]Before us, it was submitted that where the subject matter of the hearing involved consideration of the determination of a child’s relationship with a parent, a trial judge must apply Section 69ZT (3) of the Act to the entire hearing. While it was acknowledged the Sub-Section is not expressed in mandatory terms, any other outcome was said to be erroneous.
[122]The Full Court decision in Johnston v Page (2007) FLC 93-344 and Amador v Amador (2009) 43 Fam LR 268 adopt a common approach to Section 69ZT namely, that the decision to apply Sub-Section (3) is discretionary which discretion is to be exercised in accordance with the factors contained therein…
[123]We do not accept the father’s argument that the effect of Section 69ZT is to establish a rule of general application but in cases where a Court is asked to terminate a child’s relationship with a parent, a judge would err if he or she failed to apply the Rules of Evidence excluded by Section 69ZT (1) of the Act to an issue or to the entire hearing. It must be remembered that it is not uncommon for such cases to involve, in effect, a risk assessment exercise which may not include consideration of whether to make positive findings of sexual abuse or consider conduct which would constitute criminal offences in the upper range of seriousness. There are sound reasons associated with the protection of children and victim partners why, notwithstanding an order is sought terminating a child’s relationship with a parent, a judge might determine the risk issue by reference to Section 69ZT (1) and (2) of the Act.
In the re-hearing of Maluka by Coleman J in Maluka & Maluka [2012] Fam CA 373 his Honour said:-
[28]As is not surprising, the High Court has made clear that serious findings such as sexual abuse and, by extension, domestic or family violence are not matters which can or should be likely made. To proceed in reliance upon evidence which would not be admissible but for Section 69ZT (1) is, in the Court’s view, likely to be mischievous, and not just for one party.
…
[32]It is a matter of significance within Section 69ZT (3) (a) (i) that the evidence in relation to domestic or family violence will impact very significantly upon the Court’s determination of these proceedings. It may even be, as the High Court discussed in M & M (supra), that the findings will be decisive or almost decisive, but whatever their ultimate significance the findings will have a major impact on the determination of the parenting proceedings.
…
[37]Perhaps for present purposes the short and simple answer is that particularly in the context of determining disputed issues of fact or belief in respect of domestic or family violence or apprehension thereof it would appear unsafe to afford inadmissible evidence any significant weight in the exercise of the Court’s fact-finding functions.
Whilst in the present case the mother seeks to rely upon and presents evidence of specific incidents of family violence, the position adopted by her has a flavour of contradiction in the sense that she does not seek orders at trial that would see the relationship between the father and the child terminated but rather, family violence would seem to be used to justify the mother’s position that whilst she supports a relationship between the father and the child his continued residence should be in Tasmania and not in South Australia as sought by the father.
CHRONOLOGY
1983 Date of birth of mother (31 years)
1983 Date of birth of father (30 years)
1999Date of birth of Z and N (children of the mother)
June 2007 to March 2008 - Commencement of cohabitation
2008 Date of birth of the child (5 years)
March/April 2009 The father charged with assaulting the mother
October 2009 Charges are withdrawn
March-November 2009 Following separation the father spends time with the child on alternate weekends from Friday to Sunday and other times as the parties agree.
September 2009 – November 2009 Mr McShane moves from Tasmania to Adelaide with partner and child. Ms Tanner returns with child to Tasmania in November 2009
Mid 2009 Father resumes a friendly relationship with Ms S (now the father’s wife)
November 2009 Parties argue in street. The father is assaulted by two unknown bystanders who in the presence of the mother later steal the father’s car.
December 2009 The father commences a romantic relationship with Ms S
14.12.2009 Mr McShane brings proceedings in the Federal Magistrates Court (FMC) to have Ms Tanner return to South Australia
January 2010 - Mother and Mr McShane commence relationship
May 2010 Without notice, mother moves to Tasmania
25.6.2010 McShane trial commences before Cole FM
11.8.2010 Initiating Application filed by father
31.8.2010 Mother purchases tickets to travel with child to Tasmania
1.9.2010The father’s solicitors telephoned the mother directly to ascertain whether she intends to leave South Australia on 2.9.2010
6.9.2010Mother admits that she, Z and R have moved to live in Tasmania
4.11.2010Mother and Mr McShane purchase property in Tasmania
4.11.2010Orders made that child spend time with father on each alternate weekend supervised, but child be permitted to remain with mother in Tasmania
11.2011Father and Ms S marry
7.2.2013The child commences kindergarten
CONTRAVENTION PROCEEDINGS
The mother filed an Application for Contravention on 11 July 2011 alleging that the father was in breach of paragraph 7 of the orders made by Lindsay FM on 28 March 2011 namely, that in respect of 11 June, 25 June and 25 July 2011 the father did not reimburse the mother travel costs (forthwith) for half of the travel costs upon presentation of an account by the mother to him. On 20 September 2011 Lindsay FM found the father guilty of contravening the order made on 28 March 2011 in respect of one representative count in the application and further, found that he did so without reasonable excuse. Ultimately, an order was made on 4 October 2012 that in respect of the said Contravention the father be fined 10 penalty units (or $1,100).
The father filed an Application for Contravention on 23 November 2011alleging that on 12 November 2011 the mother failed to present the child at the C Children’s Contact Service in accordance with paragraph 4 (b) of the orders made 28 March 2011. In addition, the father filed a further Application for Contravention on 15 February 2012 alleging a breach of paragraph 4 (b) of the order made 28 March 2011 in that on 10 December 2011 the mother failed to present the child at C Children’s Contact Service in accordance with the order.
Consequent upon the matters being heard, on 21 September 2012 Lindsay FM found that the mother had contravened the orders as alleged and moreover considered that the contraventions constituted “a serious disregard” of the mother’s obligations under the order. Penalty was imposed namely:-
(1)Pursuant to Section 70NFG of the Family Law Act the mother is sentenced to a period of imprisonment for one calendar month.
(2)Pursuant to Section 70NFG (5) of the Act the sentence of imprisonment is suspended for so long as the mother shall not have been convicted of contravening without a reasonable excuse any parenting order in existence from time to time in respect of the child [R] born … 2008.
(3)The mother’s liability to serve such term of imprisonment shall be in any event be discharged upon the expiration of 12 months from today’s date.
(4)The mother pay the father’s costs of and incidental to the contravention proceedings fixed in the sum of $7,500.
On 26 September 2012 the father filed a further Application for Contravention alleging that the mother was in breach of paragraph 4 (b) of the order of 28 March 2011 as amended by paragraph 6 of the order of 1 November 2011 in that without reasonable excuse she failed to present the child pursuant to the said order on 11, 25 August and 8 and 22 September 2012.
On 30 May 2012 Dawe J delivered reasons in respect of the two contravention applications heard and determined together. Her Honour found the contraventions proven and placed the mother on a bond for a period of two years without surety but with $1,000 as security upon the following conditions:-
(a)Be of good behaviour during the period of the bond;
(b)Comply with all current and future parenting orders.
In addition, the child was to spend compensatory time with the father pursuant to Section 70NFB (2) (c) of the Act from 9am Saturday 6 July 2013 until 5pm Wednesday 17 July 2013.
An order was made that the mother pay the father’s costs as agreed and in default of agreement as may be determined by a Registrar of the Court together with the costs of the Independent Children’s Lawyer fixed in the amount of $2,530.
Importantly, Dawe J varied paragraph 5 of the order of 28 March 2011 such that the time for the commencement of the alternate weekend period was 6pm on Friday and also expanded the range of supervisors to include the following:-
(a)The paternal grandmother;
(b)A paternal aunt;
(c)Ms S;
(d)Mr G.
There were no further applications for contravention pending the final hearing. Unfortunately it is a feature of the wife’s presentation that but for the father insisting upon compliance with the orders and his preparedness to rely upon what was ultimately an effective, albeit an inefficient and distressing process of litigation requiring compliance by the mother, it is likely that she would have given the orders scant regard.
BACKGROUND
The parties have had a short but volatile relationship.
The mother presents her early history as being one of four siblings all of whom suffer from intellectual disability. As she asserts in her evidence she has “a fractured relationship with her mother”.
The mother has a significant skill set and following her successful completion of secondary education undertook university studies in a Bachelor’s degree. She then completed a diploma and in 2009 undertook employment in the education field. The father has had various occupations but significantly he has previously been a tradesman and more recently is employed as a heavy equipment operator.
Whilst there is some difference between the parties as to the commencement of cohabitation in terms of significant complaint of the mother as to the allegations of family violence, the starting point appears to be the date of birth of the child namely … July 2008.
The mother alleges that from birth she had been the child’s primary carer and that the father “did not contribute in any way towards the day to day care of the child”. She further complains that she received no physical or emotional support from the father and that he would spend at least two nights and up to four nights per week involved with the football club and in the consumption of alcohol to excess. The mother alleges that family violence and assault by the father upon her was a regular feature of their short relationship. In March 2009 the father was arrested following an argument between the parties in circumstances where the mother alleges she did not consider it was safe for her to remain in the home and asked the father for the keys to the car. The father allegedly refused and the mother left the home. She returned at 2am and an altercation ensued wherein it is alleged that the father grabbed the mother by the throat and then threw her aside. Unfortunately it is alleged that the mother’s child Z witnessed the incident. The police were called and the father was arrested.
For his part the father denies that he was ever violent or physically aggressive to the mother or her daughter Z. He does admit that there were arguments from time to time and I am likely to find that there was a high level of volatility in the relationship between the parties. The father alleges that whilst he would “rarely get drunk” there were occasions when the mother would drink to excess.
Notwithstanding the decision of the mother to end the relationship there were attempts to reconcile their differences from July 2009.
Whatever the basis of the relationship was, it would seem that the parties took some steps to reconcile. Initially the bail conditions imposed on the father were relaxed and ultimately the charges against him were withdrawn.
The dysfunction in the relationship reached its zenith in November 2009. It is common ground that the parties had consumed a significant quantity of alcohol at a local hotel. The father alleges that the mother was drunk. The mother, whilst acknowledging that she had consumed a significant quantity of alcohol, alleges that the father was also intoxicated and as they were walking home the parties argued as to the relationship that the father was having with Ms S. The mother alleges that the father assaulted her causing her to fall over in the gutter. The father says that as a result of her intoxication she tripped on the gutter and fell.
Clearly the parties were sufficiently vocal and the scene created by them so dramatic that two men unrelated to the parties observed the altercation and approached. It appears that they formed the view that the father was the aggressor and they then assaulted him causing serious injury. The father ran away and the men remained with the mother.
In what now appears to be a curious turn of events, the mother invited the men back to her home and ultimately she and the men took the father’s car from the home to the local McDonald’s restaurant to purchase food. The men returned home with the mother and in the morning the mother found that the men had stolen the father’s car by removing the mother’s key from her key ring. The car was later found destroyed and burnt out. The incident has some relevance in that it delineated the conclusion of any hoped for reconciliation between the parties, but also when considering the mother’s evidence in respect of this issue results in a finding that whatever the mother might allege about the father I have no doubt that she was grossly affected by alcohol, behaved both inappropriately and unwisely and demonstrated little insight into the consequences of her actions. It also showed a serious disregard for the father and may well have been a precursor to her subsequent behaviour and her ongoing attempts to minimise, restrict and disrupt the relationship between the father and the child.
Following the November incident, the father commenced an intimate relationship with Ms S (now his wife) and I am satisfied on the evidence that upon the mother understanding that there was now little chance of a reconciliation, the mother reacted by attempting to restrict and disrupt the time that the child had previously been spending with the father.
There were delays in the mother registering with I Contact Centre notwithstanding an earlier informal parenting plan agreement that the father would resume time with the father but supervised and then the subject of a further review.
The parenting plan agreement provided for the following:-
(1)[The child] shall live with [the mother].
(2)[The child] shall receive appropriate pictures, postcards and letters from the father every fortnight commencing immediately. [The father] will post these items via registered mail and will not hand deliver them.
(3)That skype is an appropriate way for [the father] to have communication with [the child] prior to the Children’s Contact Centre time with [the child].
(4)That the parties will undertake further communication in and around 2 September 2010 to discuss an extension of skype communication and importantly that the mother shall register with [I Contact Centre] within 7 days to resume time between the father and [the child] in circumstances where the parties considered that “it is important for [the child] to have a relationship with [the father] and that due to the time since they have last spent time together this will need to be rebuilt”.
The mother’s unilateral termination of the arrangements led to the father commencing proceedings on 20 August 2010.
The first hearing of the father’s application was on 16 September 2010. On that date the mother had unilaterally relocated to Tasmania with the child and Mr McShane.
For the reasons that follow I consider that the mother’s behaviour in respect of her relocation was deceptive and was without any regard whatsoever to the benefit that might inure to the child from a relationship with his father.
RELOCATION TO TASMANIA
At paragraph 60 the mother says as follows:-
In the week commencing 6 September 2010 I moved to [Town M] in Tasmania with [Z] and [the child]. My partner, [Mr McShane] joined us a few weeks later, after he completed his work commitments in Adelaide. However [Mr McShane] and I had been considering relocation since around May 2010, when we started looking at various options regarding rental properties and my future employment. [Mr McShane] and I took time preparing for the move as I wanted to make the transition, if it were to occur, as smooth as possible for [Z] and [the child]. My reasons for leaving Adelaide were motivated primarily by family concerns, which included my desire to facilitate [Mr McShane’s] ongoing relationship with his daughter who is now residing in Tasmania with her mother.
[61] On 1 September 2010 I received an unexpected call from the father’s solicitor who wanted to know whether I had an intention to relocate to Tasmania. I was shaken to receive such a call directly from the father’s solicitor. In my answers I tried to disclose as little information as possible as to my future plans, as I was genuinely scared of the father, given his violent behaviour towards me in the past. At the time of the call, in my mind I thought of the relocation to Tasmania as a “done thing”.
[62] I did not realise, nor was I advised, in September 2010 that in order to relocate to Tasmania the appropriate course of action was to bring an application to the Court for orders permitting me to relocate with the child.
[63] I acknowledge that in my affidavit sworn 30 September 2010 I state in paragraph 6 that [Mr McShane] and I moved to Tasmania in May 2010. This statement was inaccurate as our physical relocation occurred later, in the first week of September 2010. The said affidavit was prepared and sworn in a rushed manner because of the stress I was experiencing at the start of the proceedings when I had to relive the trauma I had experienced in the course of my relationship with the father. In preparing my affidavit, I was focusing on answering the father’s affidavit in relation to the issues of his violence and the care of [the child] and I did not pay due attention to the dates provided.
The mother gave evidence in the proceedings involving Mr McShane and she was the subject of comment in the reasons of Cole FM (as he then was) in McShane & Tanner (No 2) [2011] FMCAfam 508.
The evidence given by the mother was summarised by the learned Federal Magistrate in the following paragraphs of the judgment:-
[58] She confirmed she did not move to Tasmania in May as deposed in that affidavit. She suggested she was muddled up and quite emotional when doing the initial affidavit. She confirmed that Mr McShane was now working for a company on the West Coast. She was not sure of the exact details and could not confirm it was (workplace omitted). She agreed that her evidence to the Court had been previously that relocation was not an option. She advised that since May 2010 she had looked into options. She said however that she had not made solid decisions at that time.
[59] She could not recall what notice she had given to her employer being in South Australia. She had not produced a copy of the written notice. She indicated she had made the decision to move fairly soon after she had given evidence in this Court. The decision had been made prior to September and had been made after the father had conceded that the child should remain in Tasmania.
[60] She confirmed they had commenced renting the premises in Tasmania on 16 August 2010. She confirmed that when she gave the evidence she had received and signed the agreement. The landlord was a friend of the fathers and she did not think he would enforce the agreement. She went on to say that the father was going to use the property for a place to stay when he came over to Tasmania from South Australia.
A certificate of immunity was granted in respect to evidence given by [the mother] pursuant to Section 128 of the Evidence Act 1995. There was no objection from counsel. [The mother] then advised she was silent about the application for the tenancy because the father’s position was that he was trying to get the child to move back to Adelaide. She also said that she did not think the application to lease the property had been signed by [the father] and the landlord when she signed. She confirmed she was served with proceedings by [the child’s] father after she gave evidence in this Court and after she signed the agreement.
[62] She agreed she had lied to the solicitor for [the child’s] father. She had already relocated. She also agreed she had misled the Court when her proceedings came on in October. Her excuse was that in her mind she was living in Tasmania as of May 2010. She did not choose to correct her first affidavit. She confirmed she had received a copy of the affidavit from her lawyer. The evidence of [the mother] in respect of documents that she had sworn before this Court and before the Court of Federal Magistrate Lindsay was highly unsatisfactory.
I find that at the relevant opportunities that the mother had to make full and frank disclosure of her circumstances and in particular both her intention to relocate and move to Tasmania, that she did not make appropriate disclosure in an attempt to be deceptive and mislead the father and the Court.
The consequences of the unilateral actions by the mother were far reaching and whilst distressing for the father, ultimately had a significantly more damaging effect on the child the subject of comment by Ms L (Family Consultant) in the family assessment report.
I consider that the conduct of the mother in relation to the relocation to Tasmania are adverse to her credit.
On 4 November 2010 interim orders were made that whilst the father’s application seeking the child return to Adelaide pending trial was refused, orders were put in place that enabled the child to spend time with the father in Adelaide on each alternate weekend, with such times to be supervised and the costs of travel to be shared.
Perhaps with the wisdom of hindsight, the issue of the child’s relocation to Tasmania should have been given more robust consideration. I have no doubt that the trenchant allegations of the mother as to family violence and her alleged fear of the father were persuasive on the Federal Magistrate. Ultimately, the travel arrangements have had a significant impact on the wellbeing of the child.
Following orders made 28 March 2011, there were a number of periods when the child did not attend in Adelaide pursuant to the orders.
The first occasion that the child did not attend was the weekend of 8 July 2011. The child underwent surgery on 6 July 2011 but the mother did not inform the father that the surgery was occurring and that therefore the child would not be in attendance on the weekend of 8 July 2011. Whilst there is no dispute that the child underwent the required surgery, it is clear from the evidence that the operation had been confirmed and booked on 17 June 2011. There appears to be no good reason why the mother would not have been able to advise the father of the surgery and by necessary implication that the child would not be able to attend Adelaide on the allocated weekend. The issue of the mother’s preparedness to keep the father advised as to matters affecting the medical health of the child was raised by direct communication between the solicitors and the mother. The mother refused to give any such authority.
Throughout the balance of 2011 and 2012 there were numerous occasions when the mother failed to comply with the order and the father’s response was to file various contravention applications which were dealt with by Lindsay FM (as he then was) and Justice Dawe.
The impact of the mother’s refusal to comply with orders made has meant that the child did not spend time with the father as follows:-
·The weekend of 9 July 2011
·From 13 November 2011 to 8 March 2012 inclusive
·The weekend of 28 July 2012
·From 11 August 2012 until March 2013 inclusive
In addition to the non-compliance with orders specifying the time that the child would spend with his father, the father also complains that the skype communication has not operated smoothly.
For significant periods of time there would be no visual contact but only audio contact. On occasion the child would tell the father that he hated him and that he was not his father.
The father gave significant evidence as to the difficulties that he experienced in attempting to communicate with the child via skype. The father does say however that from August 2013 the skype communication resumed on a normal basis.
I have formed an adverse view of the mother’s belated attempts to comply with the orders involving the facilitation of skype communication. I consider that the mother has actively embarked upon a course of conduct designed to disrupt the communication between the child and his father, or at the very least to make it both difficult and unsatisfactory.
Whilst it may be that from time to time the father expressed his frustration at the mother’s conduct in terms of her deliberate non-compliance with orders of the Court, nonetheless the mother’s behaviour was petty and spiteful. Of more significant concern however is that she was wilfully blind to the serious impact on the child’s emotional wellbeing.
THE CHILD’S BEHAVIOUR AND EDUCATION
At paragraph 110 the mother makes the following observations:-
I have noticed that my son exhibits behaviours that have become worse over time. For example:-
(i)[The child] displays excessive separation anxiety when he has to leave me.
(ii)[The child] has regressed with respect to his toilet training and I am very concerned about the fact that he is still not properly toilet trained despite being five years of age.
(iii)Staff at [the child’s] pre-school inform me that he often displays inappropriate behaviour towards other children. On these occasions he has been known to kick, hit and bite carers as well as other children.
(iv)I have also been informed by staff at [the child’s] pre-school that he would sleep excessively during the day on Monday which caused him to miss out on social interaction with his peers and other developmental experiences at pre-school in 2012.
(v)[The child] chews things around our home and has episodes of being destructive by ripping and breaking things as well. Last year [the child] chewed on extension cords and batteries when I was not in the room and I had to make some changes to ensure he couldn’t access any cords or batteries.
As a result of the mother’s observations of the child’s behaviour and her perception as to the underlying cause, the child has been seen by a local general practitioner and a referral to a paediatrician namely, Dr O whose report forms Annexure AMJR 19 of the mother’s trial affidavit. Dr O was not called but there is some resonance with the opinion and report of the Family Consultant that give weight to the remarks of Dr O and relevance to the proceedings. The following extract from the report is informative:-
With regard to his current behaviour [the child] is described as being “full on”, unable to sit still at the dinner table. He exhibits defiant and aggressive behaviour at times both at day care and at school. He has destroyed many objects at home and at day care.
[The child] is also said to suffer from nightmares at night and needs to sleep with his mother. He has stated that he does not want to visit his father and appears afraid of this. [The child] has been attending [P] Day Care and I have requested a report from them regarding his behaviour there.
On physical examination [the child’s] height and weight is on the 50th percentile. He appears to be a well-nourished and healthy infant. He was not clinically anaemic. Cardio-vascular system, chest and abdomen were normal. His behaviour during our interview was fairly normal, although he did appear a little insecure and seek his mother’s attention and approval more than I would expect for his age.
I think that [the child] has had disturbed early years with domestic violence and possible physical abuse. The frequent travel to Adelaide has been disruptive for the family. [The child] is exhibiting oppositional, defiant and aggressive behaviour and he is exhibiting considerable insecurities. He has no features of attention deficit hyperactivity disorder.
[The child] clear needs a secure, stable environment and a consistent behavioural management approach both at home and at school.
[The child] commenced attending [Q] School in [Town M] in Tasmania on 7 February 2013.
The school has apparently found his behaviours difficult and his behaviour has been disruptive. The mother asserts that at school [the child] has attempted to strangle another child in class, destroy the classroom environment by breaking ripping and throwing classroom property. He has hit and kicked his teacher and has been placed under the principals’ supervision.
A reasonable summary of the difficulties experienced by the child at school can be determined from a school report dated 8 August 2013 being Annexure AMJR 20 to the mother’s trial affidavit.
My summary of the report is that the school has invested significant time and energy with the child to assist him to implement a range of coping mechanisms and behavioural strategies.
The assistant principal Ms T says:-
When settled and happy [the child] is well liked by his peers, making some good friends, and he generally participates in all class activities, enjoying the play based curriculum that is offered at [Q School]…
When [the child] is unsettled he exhibits behaviours that are difficult to manage and concern us greatly. He finds it hard to contain his emotions, and strategies, that have been put into place, become non effective. His current behaviour has ranged from climbing the fence to get out of the kinder yard to more aggressive and violent behaviour.
He shouts at staff members who make reasonable requests, trashes the classroom or any office he is removed to, knocking everything he can reach on to the floor, including chairs and other furniture. He will lash out and throw things at children and adults; hit, kick, bite and spit on teachers and members of school leadership team. While being held he urinated on the principal, after telling her that he was going to. When [the child] is at a point of crisis, he benefits from being held firmly and rocked from side to side to set up a calming rhythm and stop any further harm being inflicted upon himself or upon other children and adults around him. This strategy often takes quite a while to achieve the desired effect of calming him down.
Clearly, the child is a troubled child.
MOTHER’S PROPOSAL
The mother seeks to remain living in Tasmania. At the time of her trial affidavit filed 9 August 2013, she spoke positively of the relationship with Mr McShane. He had fulltime employment in an engineering role, his prospects were very good and he and the mother had a strong relationship.
Z was also doing well at school and had successfully transitioned to high school.
The mother had casual employment in the education field.
The mother asserts that the child has a stable and loving family (involving Mr McShane) and believed that the child’s behaviour would ameliorate if the impact on him of the frequency of travel to Adelaide to spend time with the father was substantially reduced.
In effect, the mother seeks to link at least some of the behavioural issues that affect the child to the disruption of seeing the father at the current level of frequency as dictated by the orders, but also the physical rigor of the travel involved.
In evidence the mother, with some reluctance, told the Court that Mr McShane (who did not give evidence) was no longer in a relationship with her. The assertion was that the parties remain on a friendly basis but importantly, they are no longer together. The evidence of the mother in respect of the state of the relationship with Mr McShane and whether there existed any future prospect of reconciliation between them was at best uncertain.
The father proposes that the child returns to South Australia and that he and the mother effectively share the care of the child. He says that the child could attend a school in close proximity to the father’s home that he now shares with his wife Ms S. The father’s position is that if the mother remains in Tasmania then the child should reside with him. He expresses with some confidence that he is able to facilitate an ongoing relationship between the child and the mother, unlike his perception of the mother’s behaviour and her seeming inability to promote the relationship between the father and the child under the current orders.
The father recognises that there will be a significant change in the child’s life were he to move from Tasmania to Adelaide, but considers that the impact is able to be managed and his ability to care for the child is further enhanced by the assistance of Ms S and the stability of their current living environment.
In short, the father asserts that by the mother’s decision to live in Tasmania, she deliberately sought to isolate the child from the father, that the child has reacted adversely to the disruption in his relationship with his father and that in any event her circumstances are chaotic and by contrast to his own, lack any element of stability that he perceives would be of benefit to the child.
FAMILY VIOLENCE
The mother alleges that the father was violent towards the mother during the relationship. It is further alleged that the domestic violence continued after the parties had separated. The mother alleges significant abuse by the father, controlling behaviour and on her case, clear examples of violence and difficulty with anger and impulse control.
It is difficult to place the mother’s allegations in the context of the proceedings.
The orders first sought by the mother at the commencement of the proceedings would have seen the father’s time with the child significantly restricted and subject to supervision. Against the backdrop of orders sought at that time, there is some focus for the allegations of family violence made by the mother.
As time has passed however, the orders that the mother now seeks would see the child spending extended periods of time with the father during school holidays and on other occasions. There is no concession by the mother that she accepts the father’s behaviour has in some way ameliorated or that it is any better under control now than it was when the parties were together.
The restriction on the extent of time that the child would spend with his father on the mother’s case is not determined by her allegations of family violence and therefore an adverse reflection on the father’s ability to properly parent the child, but rather, it is the mother’s application that she seeks the child remain living in Tasmania with her with the resultant difficulty in travel that dictates the orders she seeks.
I do not consider that there is significant opportunity to bring to account in a material way the mother’s allegations of family violence perpetrated upon her by the father.
Nonetheless, significant energy was expended by the mother in her allegations of family violence and their refutation by the father.
To assist in the application and consideration of family violence, the decision of M & M (1988) 166 CLR 69 is frequently cited. The relevant principles to be applied where there is an assertion of unacceptable risk of any kind are as follows:-
The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of an order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court’s findings on the disputed allegations of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a Court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter-parties in the ordinary sense of that expression; Reynolds v Reynolds; McKee v McKee. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child. In deciding what order it should make the Court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child’s interest to maintain the filial relationship with both parents cf.J v Lieschke.
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the Court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
Accordingly, and by reference to Section 60CC (2) but also Section 60CC (2A), a primary consideration must devolve to a consideration of abuse, neglect or family violence and the need to protect the child from same.
In that regard and taking into account the earlier discussion in respect of the inter-relationship between the provisions of Section 69ZT of the Act and the Evidence Act 1995 (Cth), an overview at this stage is that notwithstanding what was a volatile relationship between the parties, the allegations of the mother in respect to family violence if accepted by me would likely result in a finding that the father would pose an unacceptable risk to the child. It may be the case that the mother does not assert that proposition in any event. To the extent then that the alleged family violence must be considered, I do not consider that in respect of each and every allegation of the mother it is possible for me to make a positive finding that the allegation is true. The test is according to the civil standard of proof with regard to the factors in Briginshaw v Briginshaw (1938) 60 CLR 336 at page 362 where Dixon J said:-
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony or indirect inferences.
The mother has made allegations and they are the subject of detailed and precise denial by the father. It may be the case that their respective behaviour when engaged in volatile altercation with each other was not edifying, but I am not able to find on the mother’s case that the father was a perpetrator of family violence in general or even in particular. This impacts on whether it is reasonable for the mother to fear him.
RESPECTIVE PROPOSALS OF THE PARTIES
As stated, the mother would wish the child to remain with her in Tasmania and that he would spend extended periods during holidays with the father in Adelaide. Travel arrangements and costs would be shared, whereas the father would seek the child return to South Australia.
If I fall in with the orders sought by the mother, that would represent a situation little different from the effect of the current orders save for a lessening of the frequency of which the child would spend time with the father.
The father’s application would however see the mother presumably returning to South Australia on the basis of her evidence that she would not have the child return to South Australia unaccompanied by her. Whilst this would inevitably lead to a level of disruption to the mother’s current circumstances, it would not represent an insurmountable difficulty.
The mother is no longer in a relationship with Mr McShane which was the principal purpose for her relocation to Tasmania. Generally I do not accept the mother’s evidence on issues relating to the relocation and the factors that allegedly motivated her deceptive conduct.
The mother has a property in Adelaide which is currently the subject of an order of restraint. The mother seeks that property be sold. The initial position of the father in seeking an order of injunction was that it would provide the mother with potential accommodation should she ultimately be required to return. Of course that is a matter for the mother, but she has family in South Australia including the paternal family of her daughter Z. The mother has a skill base that is transferable and whilst there is no evidence of employment opportunities, I do not consider that the mother would compromise her employment if ultimately orders made by me resulted in her returning to live in Adelaide.
At present each of the parties find the current arrangements financially difficult and if the history of non-compliance by the mother is a reflection of the current orders and the financial impost that they impose upon her, then any initial difficulty experienced might well soon dissipate.
FAMILY CONSULTANT
The ICL relied upon two reports of Ms L (Family Consultant) dated 1 September 2011 and 22 October 2013. The Family Consultant is a highly regarded and well-credentialed practitioner. She has produced numerous family assessment reports and has given evidence in both this and other courts on many occasions over the years.
The reason for the original referral was to conduct an assessment as to the future care arrangements for the child in respect of the mother’s continued residence in Tasmania over the objection of the father.
In the first report, the child’s behavioural difficulties and physical aggression was remarked upon.
It is also noted that the mother reported that the child had returned from time with the father singing a song about sex and stated “[The father’s given name] says me sexy”. He then took off his clothes and whilst dancing it was reported that he said “[The father’s given name] takes his clothes off while dancing”. The mother further reported that on 22 July 2011 the child asked the maternal aunt to play with his “doodle”.
The mother reported that following initial visits with the father the child returned home distressed and exhibited significant behavioural difficulties. The mother reported that the child was exhausted by the travel demands and that she was finding it difficult to manage her own employment obligations taking into account the travel arrangements and the geography of the airport to her home. The mother reported extensively to the Family Consultant on her allegations of the violent and abusive behaviour displayed by the father.
The Family Consultant made observations that the child appeared to interact well with the mother, the mother’s daughter and Mr McShane.
Initially, the interaction between the child and his father was difficult. The child had no difficulty in interacting with the paternal grandmother Ms D. The father was observed to persist in his interaction with the child and eventually the child appeared to settle well and to interact positively with his father, Ms S and the paternal grandmother.
In her conclusions, the Family Consultant was impressed as to the secure attachment that the child had with his mother as evidenced by his frequent references to her. The child was also relaxed with Mr McShane and Z. He was less relaxed with his father and the Family Consultant comments that “there is a need for [the father] to develop his parenting skills and his understanding of [the child’s] emotional needs prior to consideration being given to unsupervised visits”.
The Family Consultant was concerned as to the reports of the mother that the child “exhibited regressed development with respect to sleep, toileting skills, behavioural difficulties and security issues (clinginess)”. The mother attributed these changes to the obligation that the child spend time with his father over an entire weekend.
The Family Consultant was of the opinion that :-
The allegations in relation to domestic violence are central to this dispute and remain a matter for evidence. [The paternal grandmother] alleges that [the mother’s] allegations were exaggerated, that the parties both used alcohol to excess and were equally involved in the conflict. She acknowledged that [the father] had engaged in some aggressive behaviours at her home and behaved in a verbally abusive manner towards both her and his sisters.
Ultimately, the recommendations of the Family Consultant fell into two categories, the first if relocation was not supported, the second if the child were to remain in Tasmania. If that were to be the outcome then the mother should have sole parental responsibility and the travel arrangements should be reduced to a monthly frequency until the child reaches an age where he is more developmentally robust.
The second report dated 22 October 2013 is in stark contrast to the observations of the Family Consultant in the first report. When the chiold saw his father he was observed to move easily into his care and was rewarded by a show of affection from the child. It is noted that “[the child] was responsive to his father’s requests and quickly settled to talk with the writer”.
The child referred to good and bad dreams and in particular a dream “about [the father’s given name]; he’s mean and nasty to Mummy”. On this occasion he readily included the father as a significant person in his life. When asked to express his wish, it was that he hoped his family was happy with him in both Adelaide and Tasmania. He reported “Mum and Dad in Adelaide used to be friends when I was a baby, but they broke up because apparently Daddy started hitting and kicking, Mummy told me that”.
The Family Consultant spoke to Mr McShane by telephone. It is obvious that Mr McShane has taken no part in the current proceedings. When asked about this, he reported:-
Regarding his relationship with [the mother], Mr [McShane] described this as strained. He was not participating in the current Court proceedings, given his own past experience in the Family Court and because he was too busy with work to travel to Adelaide. Regarding his future relationship with [the mother], they would see where things were between them following [the mother’s] court proceedings. They had not been living together in recent times, as he was midway through renovating a house. He had suggested [the mother] rent a residence with her two children until the renovations were complete which remained dependent upon finances.
The Family Consultant concluded that if the child continued to remain in Tasmania this would adversely affect any ability he would have to share a meaningful relationship with his father. There was an urgent need to minimise the travel demands and accordingly, if the child was to remain in Tasmania then the frequency with which he should spend time with his father should be severely limited to school holidays only.
Concern was expressed as to the negative views held by the mother towards the father and his family and it is clear that the child’s psychological health has suffered from having been exposed to the conflict, in particular at handover between the mother and members of the paternal family.
The Family Consultant specifically directed her attention to the child’s maturity and concluded that he was not able to “provide a well-considered view regarding his future living arrangements”.
Of significant interest is the opinion expressed that whilst the child is energetic he is nonetheless happy and engaging and the view of the school principal Ms U is that the child was:-
Active but also a bright child whom she considered may require more stimulation. She also noted a perception he was “subliminally aware”. His advanced cognitive and language skills would have heightened the impact of inappropriate adult conversation/behaviour resulting in confusion if this was not consistent with his own experience.
In short, whilst the mother asserted that the child was hyper-active this was not the view expressed by the school principal or indeed the paediatrician. It was considered by the Family Consultant that the parties may have exaggerated their own concerns and perceptions of how the child related to and was affected by the behaviours of the other party.
Significant emphasis was placed on whether the allegations of the mother in respect of domestic violence were able to be upheld. If they were, then the child should continue his residence with the mother in Tasmania. If not, and the mother determined that she would return to Adelaide (to remain with the child) then ultimately the child should spend five nights a fortnight with his father together with half school holidays on a week about basis. The almost complete lack of communication between the parties would speak against there being a shared-care outcome.
When giving her evidence, the Family Consultant appeared more strongly aligned with the father. She was of the view that the child’s behaviour was a product of the proceedings and that the child remaining in Tasmania had not worked. For it to work there would need to be a significant reduction in the time that the child spent with his father and that would be counter-intuitive and not in the interests of the child. She was of the view that the relationship between the father and the child may not withstand a significant reduction of time in circumstances where the relationship was clearly not supported by the mother. Ultimately, and notwithstanding the persistent cross examination by counsel for the mother, Ms L was of the view that the child should return to South Australia, the mother should accompany the child and he should be permitted to enjoy both of his parents.
The Family Consultant opined that if what was being sought to achieve was the development and fostering of a “meaningful relationship”, then this would not easily equate to the mother’s proposal for the time that the child would spend with the father during school holidays only. She was of the view that if nothing changed in the child’s life, it was likely that his behaviour would get worse and that the mother is supportive of a relationship between the father and the child only when it suits her namely, when under court scrutiny and observation. The concern of the Family Consultant was that once the proceedings were concluded and should that result in the child remaining in Tasmania it is likely that the cycle of orders being contravened would resume (my summary).
EVIDENCE AND FINDINGS
The mother gave evidence and was cross examined by counsel for the father and the ICL. Her evidence did not impress me. The mother was evasive and sought to minimise her own poor behaviour and conduct by alleging and relying upon the poor conduct of the father.
She was particularly unimpressive in regards to the circumstances of her departure from South Australia to Tasmania and as already has been the subject of remark, I disbelieve her entirely in terms of her explanation and excuse for her behaviour.
She was equally unimpressive in regards to the history of Skype and other communication. The father was properly persistent in pursuing the orders as to non-personal communication and I find that the mother was irritated by the father’s attempts and took all necessary steps to make the process as difficult and unsatisfying as possible.
The history of contraventions speak for themselves in respect of the mother’s preparedness to comply with orders.
I did not gain any significant confidence that the mother had recognised that her poor behaviour impacted not just upon the father but also had its greatest impact upon the child as he sought to enjoy a relationship with his father in circumstances where the mother appeared to be prepared to disrupt the process.
It was alleged by the mother that the father did not genuinely wish to spend time with the child but rather it was for the benefit of his family. That the mother would still hold that view against the backdrop of the proceedings is deeply worrying. To the extent that it needs to be stated, I had no doubt from listening to the father and seeing him give his evidence that his involvement in the proceedings was squarely focused upon his relationship with his son.
The mother reluctantly admitted that she did not inform the father of any medical procedure that the child was to undergo and in particular, did not inform the father that the child was to see Dr O, the paediatrician.
The mother’s case was not well served by the disclosure to Dr O of allegations that the father had engaged in sexual abuse of the child and was grooming him. The justifications given by the mother for her concerns in this regard were ridiculous. No evidence was called and there was no investigation by the mother. Given the hyper-vigilance of the mother, if she genuinely believed that the father was grooming the child it is surprising that the matter would not have been taken further, at least to some form of investigation. I am satisfied that none was necessary and that the allegations of the mother were ill-conceived and malicious in nature. As was the focus of the dicta of Dixon J in Briganshaw (supra), it demonstrates that an allegation that a parent has sexually abused a child is often easy to make but almost impossible to refute.
In this case I have no difficulty in rejecting the mother’s contention in this regard. Unfortunately, the allegation made by the mother adds to a consistent theme in her presentation and evidence namely, that of actively opposing the relationship between the father and the child with no hint or suggestion that she is prepared to support and/or promote it. That concern as highlighted and expressed by the Family Consultant resonates through the evidence of the mother.
Whilst I have no doubt that the father attempted to minimise his use of alcohol while the parties were together and that his relationship with the mother was volatile and at times marred by verbal aggression, nonetheless, his evidence was more measured, tempered and reasonable.
There is no doubt that the father has steadfastly remained committed to regaining his relationship with the child and then to its ongoing maintenance. This was in the face of significant opposition from the mother.
The majority of the father’s time with the child has been the subject of supervision by members of the paternal family. Whilst I do not propose to comment directly on the evidence of the paternal grandmother, I am satisfied as to her diligence in the supervision of the time between the father and the child and in respect of her evidence as to the volatile exchanges between the mother and the paternal family at handover, I prefer the evidence of the paternal grandmother in this regard.
To the extent that the relationship between the father and the child is supported by the recommendations and views of the Family Consultant, my focus is to determine whether, unlike the mother, the father is more likely to support an ongoing relationship between the child and his mother.
The father’s evidence impressed me as to his current circumstances, stability and future purpose. I have no doubt that whilst animosity exists between the mother and the father’s current wife Ms S, nonetheless, she is also supportive of the child and of the very special position that each of the parties hold in the child’s life. I remain uncertain as to the current circumstances of the mother in Tasmania and in particular her current domestic arrangements generally and insofar as they involve Mr McShane.
Ultimately, the principal concern arises from the opinion of the Family Consultant that if the focus of the proceedings is to establish and maintain a meaningful relationship between the child and his parents, then this is unlikely to occur if the child remains in Tasmania.
I am not able to find on the balance of probabilities that the allegations made by the mother in terms of the family violence are made out. Nor am I persuaded that family violence allegedly perpetrated by the father towards the mother was a feature of their short relationship.
THE LAW
Issues and Considerations
The mother seeks sole parental responsibility, whereas the father seeks that the parties have equal shared parental responsibility for the child.
As highlighted by the Family Consultant, if orders are made that would see the child remaining in Tasmania then given the fractious relationship between the parties and by sheer dint of geography, the mother’s position should be preferred.
I consider that the evidence of the mother’s unilateral decision making in respect of significant issues affecting the child has been counter-productive and not in the child’s interests. Even were it to be the case that the child should remain in Tasmania, I would give strong consideration that any order for sole responsibility be the subject of condition and restriction. I do not consider that the mother should in any event have the unilateral ability to determine issues of the child’s education and notwithstanding that there is evidence of behavioural difficulties, there is no good reason why both parties should not be involved in any strategic plan to assist, promote and aid the proper development of the child.
In any event I consider that the evidence is compelling that the child should return to Adelaide and resume a normal relationship with his father supported by his mother.
Accordingly, I do not find favour with the orders sought by the mother in respect of sole parental responsibility.
The father’s position at trial is that if the mother does not accompany the child then the child should reside with him and spend each third and sixth weekend of the school term with the mother in Tasmania, together with one half of school holiday periods. If the mother does, as is her evidence, accompany the child back to South Australia, then the father seeks orders that the child live with each of the parties on an alternating weekly basis.
The mother seeks orders on a graduated basis that would see the child spending extended periods with the father.
Section 65DAA (1) provides subject to Sub Section (6):-
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child the Court must:-
(a)Consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)Consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)If it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Sub Section 65DAA (2) provides:-
Subject to Sub Section (6), if:-
(a)A parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)The Court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and the Court must;
(c)Consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)Consider whether the child spending substantial and significant time with each of the parents is reasonably practical; and
(e)If it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Section 65DAA (3) provides:-
For the purpose of Sub Section (2), a child will be taken to spend substantial and significant time with a parent only if:-
(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
(ii)Occasions and events that are of particular significance to the child; and
(c)The time that the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
In the circumstances of this case if I determine that an order should be made that the parties are to have equal shared parental responsibility for the child, then arising from Section 65DAA (2) (c) I am obliged to consider whether the orders sought by each of the parties (acknowledging that either case involves the child spending substantial and significant time with the husband) are reasonably practicable.
The Act provides assistance in the determination of “reasonably practical” in terms of the provisions of Section 65DAA (5) namely that the Court must have regard to:-
(a)How far apart the children live from each other; and
(b)The parents current and future capacity to implement an arrangement for the child spending equal time, or spending substantial and significant time, with each of the parents; and
(c)The parents current and future capacity to communicate with each other and resolve the difficulties that may arise in implementing an arrangement of that kind; and
(d)The impact that an arrangement of that kind would have on the child; and
(e)Such other matters as the Court considers is relevant.
Accordingly, and having regard to the statutory obligations are required in a parenting case I propose to adopt the following approach namely:-
(1)Give consideration to the proposals put forward by each of the parties as they were identified and presented to the Court;
(2)Have regard to the objects expressed in Section 60B (1) and the underlying principles in Section 60B (2) having regard to the provisions of Section 60CC in order to determine what is in a child’s best interests;
(3)Have regard to the primary considerations under Section 60CC (2) and (2A) namely the benefits to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm.
The additional considerations as set out in Section 60CC (3):-
(4)The evidence adduced by each of the parties in respect of the particular consideration pursuant to Section 60CC (2) and (3) are to be considered and if more weight is to be given to one or more of the matters then this must be the subject of delineation and comment.
(5)Section 61DA requires the Court to consider whether to apply the presumption of equal shared parental responsibility by having appropriate regard to the matters as set out in Section 61DA which would rebut the presumption if a person or a person living with the child has engaged in:-
(a)Abuse of the child or another child, who at the time was a member of the parent’s family (or that other person’s family) or;
(b)Family Violence.
If the presumption is rebutted then the Court can proceed to make parenting orders having regard to the provisions of the Act but based on findings pursuant to Section 60CC.
If as in this case the presumption applies and is not rebutted then Section 65DAA requires the Court to consider whether there should be an order for equal time if not, then substantial or significant time. The test is whether the orders would be in the best interests of the child and is reasonably practicable.
Section 60CC is to be utilised in order to determine the question about best interests and the issue of whether an order for substantial and significant time would be reasonably practicable is to be determined by reference to the provisions of Section 65DA (5). There will of necessity be some overlap and in terms of assessing whether a proposed order is reasonably practicable the decision of MRR v GR (2010) 240 CLR 461at 467 is of assistance:-
Section 65DAA (1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in Section 61DA (1) is not determinative of the questions arising under Section 65DAA (1). Section 65DAA (1) (b) requires a practical assessment of whether equal time parenting is feasible.
CONSIDERATIONS PURSUANT TO SECTION 60CC
Section 60CC (2) (a)
I consider that it is important for the child to maintain a meaningful relationship with his parents. There remains significant and perhaps even dramatic inter-parental conflict and whilst I find that at least as far as the mother is concerned, her view of the father and her commitment to his ongoing relationship with the child is unlikely to be energetically promoted by her, it is the clear opinion of the Family Consultant that the child has benefited and will increasingly do so if a relationship with his father is maintained.
In Mazorski v Albright (2007) 37 Fam LR 518 Brown J commented on the definition of “meaningful” and said:-
[26]What these definitions convey is that meaningful when used in the context of meaningful relationship is synonymous with “significant” which in turn is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is qualitative adjective, not a strictly quantitative one. Quantitative concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark (2009) FLC 93-405 the Full Court said at paragraph 119:-
We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in Section 60CC (2) (a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that Section 60CC (3) (b) requires a Court to explore existing relationships between a child and his or her parents and other persons, including grandparents. If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a Court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial.
Accordingly, I am obliged to consider orders that are in the best interests of the child and in doing so must have regard to the opportunity that may exist for a meaningful relationship to be developed and/or fostered between the parties.
The relationship between the father and the child has suffered and sustained significant insult and injury between the time of separation and about mid-2013 when the cumulative consequences of the mother’s continued breach of Court Orders put her at significant risk. Whilst I have found that generally speaking the mother has complied with the orders from that time on, I accept the view expressed by the Family Consultant that the mother’s compliance is not based upon a recognition of the benefits to the child of having a relationship with the father but simply because of her understanding that to do otherwise may have a serious consequence for her.
It is the opinion of the Family Consultant that if the child remains in Tasmania the relationship between the father and the child is unlikely to be fostered by the mother and that such an outcome would be counter-productive to the child’s best interests. I give significant weight to that consideration.
Section 60CC (2) (b)
I have already commented extensively on the mother’s allegations of family violence. Whilst I have found that the relationship was in all probability marred by volatility, I am not able to find either a specific incident of family violence or that the general tenor of the father’s behaviour in the relationship was such that family violence was a factor that needs to be brought to account. In any event, the orders sought by the mother are counter-intuitive to a finding of family violence and are motivated by her preferred position namely, that the child and she remain in Tasmania.
To that extent the assertion by the mother that she is fearful of returning with the child to live in Adelaide because of the violent disposition of the father and her exposure to it during the course of the relationship is not supported by the evidence.
Section 60CC (3) (a)
The Family Consultant has had an opportunity to both interview and observe the child in 2011 and 2013. Whilst the child is likely functioning at a high intellectual level, he lacks maturity and the Family Consultant cautions against placing any significant or substantial weight on matters as expressed by the child.
Section 60CC (3) (b) and (c)
Despite a difficult period, the father has persisted in his application to maintain a relationship with the child notwithstanding the obstacles generated by the mother. The child has a strong and beneficial relationship with the father and importantly with the father’s extended family, in particular the paternal grandmother who supervised time in 2010, 2011 and then in early 2013 and the evidence of the father’s sister Ms F who supervised time in February and March 2013. I accept their evidence as both accurate and truthful. The child demonstrably has a beneficial relationship with the father’s extended family.
The mother seeks however to disrupt the relationship between the father and the child and is resistive to the father being involved in decisions about major long-term issues. The relationship between the parties is fractured but that in and of itself does not speak against the proper obligation of the parties to consult with each other in terms of major issues affecting the child. Given my finding that the mother is not supportive of the relationship between the child and his father, if I accede to the orders sought by the mother namely, that she be solely responsible for decision making in respect of long-term major issues, it is likely that the father will be excluded almost entirely.
The father has been steadfast in his approach in taking all necessary steps to maintain the relationship.
Section 60CC (3) (ca)
Generally speaking, the mother has properly fulfilled her obligation to maintain the child. His behaviour at Q School has been difficult and has required significant attention by her. It is to her credit that notwithstanding this adversity, the child is developing and subject to his distress and anxiety caused by the travel arrangements, there is significant hope and prospect that the child may well have turned a corner in terms of his adverse behaviour. Whilst clearly the father has had input, nonetheless the mother needs to be given credit for the not inconsiderable effort and involvement that the child’s difficult behaviour has required.
That effort and involvement will continue whether the child remains in Tasmania or in South Australia with the added benefit of the child living close to the father that he can assist the mother in respect of the adverse consequences of the child’s continued disruptive behaviour if it be the case.
Section 60CC (3) (d) and (e)
The most significant issue that affects the child would be his relocation from Tasmania to South Australia. That is sought by the father and strenuously opposed by the mother. She asserts that the move will significantly and financially disadvantage her, that she will lose her employment and to the extent that there remains any relationship with Mr McShane, that would not survive and endure.
The father submits that the mother has a skill and a career pathway which would enable her to find work within the education system in South Australia, that she is the registered proprietor of a property and that the Court should be sceptical of her evidence as to the state of the relationship with Mr McShane in circumstances where he was not called to give evidence. Given that he was the catalyst for the mother moving to Tasmania and the subsequent relationship between them, it is difficult to understand how the wife’s case could be promoted in the absence of Mr McShane.
There will be disruption to the child and it is likely that in the short term the mother may well be distressed and anxious as to her prospects arising out of the relocation.
The Family Consultant however was clear that following her observations and assessment of the parties and their relationship with the child, if the child remained in Tasmania his relationship with his father would not be supported and over-archingly, that would not be in the child’s best interests.
Whilst I accept that a relocation will be difficult for the mother, I do not consider that it is insurmountable and may even have the unexpected benefit of relieving the mother of the financial and physical obligation that arises in respect of the child travelling to and from South Australia from Tasmania to spend time with his father.
Section 60CC (3) (f)
I consider that each of the parties have the ability to provide for the needs of the child as demonstrated by the mother’s ongoing care and the significant albeit disjointed involvement of the father with the child. Both parties are highly motivated in respect of the provision of the child’s needs and whilst left to her own devices I have found that the mother is not dedicated to promoting the relationship between the father and the child and therefore is impacting on the child’s emotional needs, the orders that I propose to make will ensure that the relationship is maintained. It will be a matter for the mother to use her best endeavours to shield the child from her adverse view of the father. At this stage whilst I am prepared to accept that the father is more likely to foster the relationship between the child and his mother, the immature behaviour of the father in terms of use of alcohol and likely verbal aggression will need to be tempered by him. I am satisfied that the father has a level of insight into his past behaviour and how that would not be in the interests of the child were it to be an ongoing feature.
I do not propose to comment further in respect of Section 60CC (3) (g) (h) (i) (j) and (k) noting that significant comment has been made as to the allegations of family violence and its impact on the parties and the child.
Section 60CC (3) (l)
If I accede to the orders sought by the mother I apprehend taking into account the significant history of contravention of orders and the disruption to electronic communication between the child and the father that it is likely to lead to further litigation.
The Family Consultant considers that the mother is likely to be resistive to the promotion of the relationship between the child and the father and it is clear that the father is dogged in his desire to maintain the relationship.
If however the child resides in South Australia (and assuming that the mother accompanies him), once the mother has resettled the dispute and conflict between the parties should abate as the parties properly become more child focussed in their behaviour towards each other.
CONCLUSION
Having proper regard to the considerations in Part VII of the Act, I am satisfied that it is in the best interests of the child that the parties have equal shared parental responsibility.
I am further satisfied that the child’s best interests would only be served by the child being returned to reside in South Australia. Notwithstanding my remarks as to the benefit that would inure to the child of each of the parties having an equal and proper involvement in major long term issues affecting the child, I do not ignore that the animosity between the parties is high and unfortunately is a river that runs deep. Co-parenting is unlikely to work and in any event, taking into account the behavioural issues in respect of the child, I consider that he will benefit from a level of stability that can only occur if he is in the primary care of one of the parties. The child has remained with his mother since separation. Notwithstanding my findings as to the mother’s motivation and clear dislike for the father, nonetheless her care of the child has been at a high level and she is a person possessing significant skill and parenting ability tempered only by the negative attitude that she holds towards the father. I therefore consider it appropriate that should the mother accompany the child back to South Australia that he should live primarily in her care but spend four nights a fortnight with the father, half school holidays and other special occasions.
Although not indicated during the course of the proceedings, if the mother does not return with the child then the orders sought by the father in those circumstances should be made.
I can see no reason why usual orders as to the provision of information to both parties in respect of the child’s education, health and extra-curricular activities should not be made.
Unfortunately whilst undesirable, any handover that does not take place at school shall occur at Suburb B Police Station or at such other place as the parties may agree.
I am aware of the significant impact that these orders will have on the mother and it is reasonable that she be given enough time to resolve her affairs in Tasmania and effect the relocation to South Australia. It would seem sensible that the child should commence his residence in South Australia at a time to coincide with his entry into a school commencing third term 2014.
I note also that an order was made on 4 November 2010 restraining the mother by way of injunction from disposing of or encumbering any real property owned by her in the State of South Australia. I do not consider that there is any focus in the proceedings in respect of this order and I propose to discharge it.
Until the mother effects the relocation of the child to South Australia I propose to maintain the effect of the current orders. Each of the parties shall have parental responsibility for the day to day care and parenting of the child and it is assumed they will act in the child’s best interests in relation to decisions to be made.
I make orders as set out at the beginning of these reasons.
I certify that the preceding one hundred and eighty nine (189) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 13 March 2014.
Associate:
Date: 13 March 2014
Key Legal Topics
Areas of Law
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Family Law
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Statutory Interpretation
Legal Concepts
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Injunction
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Procedural Fairness
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Remedies
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Jurisdiction
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