Watson and Butler

FAMILY COURT OF AUSTRALIA

WATSON & BUTLER

[2013] FamCA 776

FAMILY LAW – CHILDREN – Best interests – Family violence – Where both parties have engaged in family violence –With whom the child lives – Where the mother has been the child’s primary care provider – Where the mother seeks to relocate to Country E with the child – Where the mother is ambivalent about relocating – Where the child is to remain in Australia – Where the child is below school age – Equal shared parental responsibility – Where it is in the best interests of the child for the parents to have equal shared parental responsibility –Where it is in the child’s best interest for the parents to engage in a shared parenting arrangement.

Family Law Act 1975 (Cth) s 60CC, s 65DAA, s 65DAC

Heath & Hemming [2011] FamCA 749
M & M (1988) 166 CLR 69

APPLICANT:

Mr Watson

RESPONDENT:

Ms Butler

INDEPENDENT CHILDREN’S LAWYER:

Forest Glen Lawyers

FILE NUMBER:

BRC

911

2011

DATE DELIVERED:

11 October 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

19, 20, 23 March & 24 April 2012

REPRESENTATION

FOR THE APPLICANT:

Mr Watson in Person

COUNSEL FOR THE RESPONDENT:

Ms Frizelle

SOLICITOR FOR THE RESPONDENT:

South Queensland Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Lyons

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Forest Glen Lawyers

Orders

That all previous parenting Orders, save for any Orders that the child B born … 2010 be put on the Watch List maintained by the Australian Federal Police at points of departure from Australia, be discharged.
That the mother and the father have equal shared parental responsibility for the child B born … 2010 (“the child”).
That where the exercise of parental responsibility involves making decisions about major long-term issues (as that term “major long term issues” is defined in s 4 of the Family Law Act 1975) for the child the parents shall:
(i)Consult the other person in relation to the decision to be made about that issue; and
(ii)Make a genuine effort to come to a joint decision about that issue; and

(iii)Make the decision jointly.

That in the event the parents are unable to jointly make a decision about a major long-term issue in respect of the child, the parents shall engage with a family dispute resolution practitioner as defined in s 10G of the Family Law Act 1975 to assist them in reaching a joint decision about the issue.
That each of the parents shall have the sole responsibility for the day to day care of the child whilst the child is in his or her care pursuant to these Orders.
The child shall live with the father as may be agreed between the parents but failing agreement then as follows:
(a)For a period of eight weeks from the date hereof, in two week sequences,
(i)From 9:00 am on Friday in the first week to 5:00 pm on Sunday; and
(ii)From 9:00 am on Thursday to 5:00 pm on Friday in the next week; and thereafter
(b) Then for a period of a further twelve weeks, in two week sequences,
(i)From 9:00 am on Thursday to 5:00 pm on Sunday in the first week; and
(ii)From 9:00 am on Wednesday to 5:00 pm on Friday in the second week; and thereafter
(c) Then until the child starts school, in two week sequences,
(i)From 9:00 am on Thursday to 5:00 pm on Monday in the first week, and
(ii)From 5:00 pm on Wednesday to 5:00 pm on Friday in the second week.
That from when the child starts his preparatory year in school (currently expected to be in 2015), conditional upon the father living by that time in residential premises in C Town, the child shall live with the father as follows:
(a) In two week sequences during school term:
(i)From after school on Wednesday to before school on the following Monday in the first week; and
(ii)From after school on Wednesday to before school on Friday in the second week; and
(b)For half of all of the child’s school holidays, being the first half of each of those holidays in 2015 and each alternate year thereafter and the second half of each of those holidays in 2016 and each alternate year thereafter.
That from when the child starts his preparatory year in school, if the father is not by that time living in residential premises in C Town, the child shall live with the father as follows:
(a)From after school on Friday until 6:00 pm on Sunday each alternate weekend during school term, commencing on the first weekend of each school term; and
(b)For half of all of the child’s school holidays, being the first half of each of those holidays in 2015 and each alternate year thereafter and the second half of each of those holidays in 2016 and each alternate year thereafter.
That for the purposes of determining half of the school holidays, the school holidays shall be considered as commencing at the close of school on the last day of school term and as ending at the commencement of school on the day the child returns to school, with the number of nights in each holiday period to be used to calculate one half of the holidays and if there is an uneven number of nights then the child shall stay the extra night with the parent with whom he is to spend the second half of the school holidays pursuant to these Orders, with the child to transition between the care of the parents at 5:00 pm on the day calculated to be the halfway day of the holidays.
That save as otherwise provided in these Orders the child shall live with the mother.
That notwithstanding what is otherwise provided for in these Orders:
(a) The child shall spend each Father’s Day weekend with the father;
(b) The child shall spend each Mother’s Day weekend with the mother;
(c)The child shall spend time with the father on the father’s birthday (three hours if he is not living with him on the day);
(d)The child shall spend time with the mother on the mother’s birthday (three hours if he is not living with her on the day);
(e)The child shall spend three hours with the parent with whom he is not otherwise living on his own birthday.
That the mother is not to change the child’s place of residence to a place outside of C Town without the written consent of the father or further Order of a Court of appropriate jurisdiction.
That the transitions of the child from one parent’s care to the other parent’s care shall take place up until such time as the child commences his Preparatory year at school at the C Town Children’s Contact Centre if it is able to accommodate the family at those times and, if not, then at the McDonalds Family Restaurant at D Street, C Town, and after the child starts school, transitions will take place simply by delivery or collection of the child to or from his school or at the McDonalds Family Restaurant at D Street, C Town if the transition is during school holidays, on a non-school day or outside school hours.
That the child shall communicate with the parent with whom he is not living by telephone:
(a)every second evening that he is away from that other parent between the hours of 6:00 pm and 7:00 pm; and
(b) at 8:00 am on Christmas Day and on Easter Sunday;
with the parent who wishes to speak with the child to make the call to the other parent’s landline or mobile telephone number and for the parent who takes the call to ensure the child speaks to the calling parent.
That should the mother leave Australia to live in Country E, the child shall live with the father and shall spend such time with the mother as the mother and the father agree in writing and the child shall communicate with the mother by Skype (or similar) internet connection on Sunday and Wednesday evenings between the hours of 6:00 pm and 7:00 pm Queensland time, the father to do all things he can to ensure such communication happens.
That within four weeks of the date of these Orders the mother shall, if she has not already done so pursuant to previous Orders, attend upon a psychologist agreed upon between her and the Independent Children’s Lawyer or, in default of agreement, as directed by the ICL, and the mother shall commence a course of therapeutic counselling with that psychologist dealing with her mental health, anger management and any issues of grief arising as a result of this judgment and she shall continue with that therapy as recommended by that psychologist.
That within four weeks of the date of these Orders the father shall, if he has not already done so pursuant to previous Orders, attend upon a psychologist agreed upon between him and the Independent Children’s Lawyer or, in default of agreement, as directed by the ICL, and the father shall commence a course of therapeutic counselling with that psychologist dealing with his mental health and any issues that might cause risk of relapse into abuse of illicit drugs and he shall continue with that therapy as recommended by that psychologist.
That within six months of the date of these Orders the mother shall complete a Parenting Orders Program offered by a Family Relationships Centre if she has not already done so and provide the father with written evidence of having completed such a program.
That within twelve months of the date of these Orders each of the mother and the father shall complete a Triple P Parenting course offered by an appropriate provider if he or she has not already done so and provide the other parent with written evidence of having completed such a program.
That except in the case of an emergency, all communications between the parents concerning the child, including in respect of the exercise of their shared parental responsibility for the child, shall by a communication book that passes between the parents at changeovers, email or text message and any such communication shall be respectful, without abuse and only contain information and content that relates directly to the parenting of the child and/or compliance with these Orders.
That neither parent shall drink alcohol to excess or use any illicit drug whilst the child is in his or her care or just prior to the time when the child comes into his or her care.
That each of the parents shall keep the other informed as to his and her current residential address, landline and mobile telephone numbers and email address and any change in the details of any of these shall be communicated to the other parent within 24 hours of any such change.
That each of the parents shall notify the other as soon as practicable after the child has suffered any serious injury or illness and each shall keep the other informed as to any developments in respect of his or her own health that might have any bearing on his or her parenting capacities.
That each of the parents shall notify the other of the names and contact details of any medical practitioner or allied health practitioner or hospital the child attends upon and shall authorise that service provider to provide to the other parent at the other parent’s request and expense (if necessary) any information, written or oral, that the other parent may request about the child’s condition, treatment and prognosis.
That when the child starts pre-school or school, each of the parents shall authorise the pre-school or school to provide to the other parent at the other parent’s request and expense (if necessary) any information, written or oral, that the other parent may request about the child’s education.
That during any time the child is with a parent, that parent shall respect the privacy of the other parent and not question the child about the personal life of the other parent and that parent shall not denigrate the other parent in the presence or hearing of the child and shall use his or her best endeavours to ensure third parties do not denigrate the other parent to or in the hearing of the child.
That each of the parents is restrained from taking the child from the Commonwealth of Australia without the written consent of the other parent or further Order of a Court of competent jurisdiction.
That the Independent Children’s Lawyer is discharged on the day that is six weeks from the date of these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Watson & Butler 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 BRISBANE

FILE NUMBER: BRC911 of 2011

Mr Watson

Applicant

And

Ms Butler

Respondent

REASONS FOR JUDGMENT

The parents of three year old B were before this Court over four days in late March and late April of 2012 for the trial of their competing applications for parenting orders in respect of their son.
The mother is a thirty-six year old Country E citizen who has been living in Australia since 2003. The father is a thirty-eight year old Australian.
The parties met in Adelaide in 2008 and began living together in 2009. Soon after that, the mother learned she was pregnant and the couple moved to live with the father’s mother in F Town, a very small rural community which is about two to three hours driving time west of C Town. Later in that year, the couple separated and the mother returned to Country E and stayed with her parents there.
Prior to the birth of the child, the couple agreed that they would reconcile to give their relationship a chance and to give their baby a family life. The mother returned to Australia and went back to live in F Town with the father and his mother. She was about thirty weeks pregnant when she returned and baby B was born in 2010.
In January 2011, the parties separated again, this time on a final basis. The mother and baby moved out of the home in F Town and into a women’s refuge in G Town, a larger town on the western H Region. She moved again several times up until the time of the trial last year but was, at that time, living in the large regional city of C Town in shared rental accommodation with another young woman and her young child. The father remained, at the time of trial, living in F Town in the same home rented by his mother.
The father asked the Court to make parenting orders that the child lives with him and spends a number of days each week in his mother’s care. He went into the trial seeking that shared parental responsibility be conferred equally upon him and the mother. He changed his position by the end of the trial, at which point he submitted that he should have sole parental responsibility for the child.
The mother asked the Court to make orders that give her sole parental responsibility for their child and permit her to take the child with her to return to live in Country E. I will not be ordering that. I am quite satisfied that is not in the little boy’s best interests to be taken at this point in his life to live in Country E. My decision in that respect accords with the clearly expressed opinion of the family consultant who prepared two reports in the case and the submissions made on behalf of the Independent Children’s Lawyer who appeared in the case.
At the end of the first few days of the trial, when the matter was adjourned part-heard to the further hearing date in April, I made interim Orders for the child to begin spending unsupervised time with his father and for it to steadily increase over a few months to include overnight visits commencing in late July of 2012.
My judgment in this matter has been reserved for almost eighteen months now. The demands of hearing and determining so many other parenting orders disputes and property adjustment cases during that period have prevented me from determining this matter and delivering judgment sooner than now. That is extremely regrettable and I acknowledge the additional distress this lengthy delay would have caused the parties over and above that which they would already be experiencing through the breakdown of their relationship, the difficulties in their co-parenting and their involvement in litigation in this Court.
I am also now aware, having been informed by the legal representative of the mother and the father himself, that the parents themselves agreed to a further increase in the time the child spends with his father about six months ago and that he now spends two nights and two days every second weekend and two days and one night every other weekend with his father.
I have now determined that the child is to continue living with the mother whilst increasing even further the time that he spends in his father’s care, father ultimately moving to equal shared care part way through next year whilst he is not yet at school, but to stay at equal shared care when he starts school, provided his father is, by then, also living in C Town. Having regard to what each parent wanted from this Court, I do not expect either of them will be entirely happy with this outcome. However, it is hoped that each of them will now be able to move ahead with their lives and their co-parenting of their little boy, accepting that the orders of this Court have been framed to meet his best interests as the Court has determined them to be. These are my reasons for that determination.

What are the Principles by which competing parenting orders applications are to be decided?

The Court has the discretion to make such parenting orders as it thinks proper. That discretion is to be exercised subject to the application of a presumption that it is in the best interests of the relevant child for that child’s parents to have equal shared parental responsibility for that child. When deciding what are the proper parenting orders to make the Court must regard the best interests of the child as the paramount consideration.
In determining what is in a particular child’s best interests the Court must consider the matters that are set out in s 60CC of the Family Law Act. It should also be mindful of the Objects and the Principles underlying those Objects. Those are expressly set out at the commencement of Part VII of the Family Law Act, the Part within which the power to make parenting orders is conferred on the Court.
The list of considerations in s 60CC is extensive. It commences with two that are described as “primary considerations” before listing many that are described as “additional considerations”. The “primary” ones the Court must consider are the benefit 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 from being subjected to, or exposed to, abuse, neglect or family violence. However, the very broad nature of the actual inquiry is evidenced by the inclusion in the list of “additional considerations” of one that simply says “any other fact or circumstance that the court thinks is relevant”.
Parents, as well as this Court, must remain alert to the fact that the process of determining proper parenting orders is not one of enforcing parental rights but rather is one of determining orders that best promote and protect the interests of the child. Whilst the actual weight to be attached to the various components of all the applicable statutory provisions will vary from case to case, in this process “very great weight” is generally given to the importance of maintaining parental ties as it is well accepted that is in a child’s interests to do that in the short and long term.[1]
[1] See for example what the Judges of the High Court said in M & M (1988) 166 CLR 69 at page 76.
It is also important to remember that a parenting orders dispute where one party seeks the Court’s fiat to relocate a child to a new home across the world is to be determined no differently to any other parenting orders dispute. However, just as Kent J observed[2], the Court’s task in cases involving applications to relocate a child overseas is to determine parenting orders “which are legitimate by reference to both “best interests” considerations and the rights of parents, including a right to choose where the parent lives.” I respectfully agree with Kent J. In this balancing process in such cases, it is almost inevitable that the “best interests” determination will result in one parent’s choice being outweighed in the balance. In this particular case, I have determined that it is the mother’s desire to take the child to Country E to live, far away from his father, that must yield to that which I have determined is in his best interests.
[2] Heath & Hemming [2011] FamCA 749 at [87].

WHAT ARE THE RELEVANT FACTUAL MATTERS AS THEY EMERGED FROM THE EVIDENCE?

The mother left her family home in Country E as a young woman and went away to University to study biology and psychology. She only returned home to spend time with her parents during university holidays a few times a year.
She married her first husband in Country I in 2001 after travelling to that country with him from Country E. In 2002, whilst working in Country I, she consulted a Country I doctor experiencing, apparently for the first time, symptoms of depression and anxiety. That doctor treated her with medication for those symptoms.
In early 2004, the mother and her husband travelled to Australia for the mother to study at J University. She came to Australia on a student visa and her husband came with her as her dependent.
In April 2005, the mother came to the attention of the South Australian police when she was reported for yelling and screaming at, and physically assaulting staff at a supermarket who asked her for proof of age when she was purchasing cigarettes.
The mother travelled alone to Country E for Christmas in 2006, presumably experiencing some difficulties in her marriage at that time. She demonstrated agitated and disturbed behaviour on the flight to Country E and was taken by police on arrival to the mental health ward of a local hospital. She remained there as an inpatient for around three weeks. She was diagnosed with Bipolar Affective Disorder. She was treated by a local doctor on discharge whilst spending a little time with her family. She then returned to Australia, despite her parents asking her to stay in Country E.
The mother was then granted a twelve months leave of absence from her studies in Adelaide on medical grounds. During 2006, the mother was again involuntarily admitted to hospital in Adelaide for mental health reasons. She had serious depression and was experiencing suicidal thoughts. She was prescribed medication which she continued to take for a couple of years. In November of that year, she appeared in the Adelaide Magistrates Court charged with common assault arising from the incident that happened in April 2005 at the supermarket. She was found to have committed the offence and required to enter a bond to be of good behaviour for six months.
The mother’s marriage broke down. She separated from her husband sometime between late 2007 and mid-2009. She had been granted a second student visa in October 2007.
In July 2008, the mother was convicted of offences of disorderly behaviour and assault arising out of an incident that took place in January that year. She and her husband had been fighting at an Adelaide hotel they ended up both assaulting a bystander who tried to protect an elderly lady who got caught up in the dispute. The mother was required to enter another bond to be of good behaviour for twelve months with surety of $1,000 and other conditions, including supervision.
Later in 2008, the mother met the father who was living next to her residence in South Australia. In 2009 the mother and the father commenced a relationship and later began living together. Their relationship was volatile from the start. Police were called out on a number of occasions over a relatively short space of time to attend at their residence and in their neighbourhood to deal with disturbances. I am satisfied that the mother’s volatile behaviour was the principal cause of those disputes.
The mother was again seen in the emergency department of an Adelaide mental health hospital for a short period on one day in May 2009. She had, with reported suicidal intent, taken an overdose of prescription medication whilst intoxicated with alcohol, after arguing with a neighbour.
The father has his own turbulent history. Although born in Adelaide, he had been living in Sydney in the late 1990’s. He had 5-6 years of heavy alcohol, cannabis and heroine abuse and had succumbed to heroin addiction. During that time he had committed a series of armed robberies using a knife as a weapon in small retail stores, apparently to fund his heroin addiction. He had been caught, convicted and served around four years of imprisonment in a New South Wales prison. Upon release, he had moved back to Adelaide and was studying. He had dropped out of the course in 2007 after struggling with his mental health as well. He had obtained clerical work in 2008 but had not been able to remain in employment.
In October, 2008, at the age of 32, he was admitted to a South Australian mental health facility reporting he was hearing voices and that he had done so at earlier stages in his life. He reported suicidal ideation and paranoid persecutory delusions. He remained in hospital for around two weeks before being discharged back into the community with a diagnosis of schizophrenia.
Not long after the mother and father started living together in Adelaide in 2009, the mother learned that she was pregnant. The couple decided that they would move to F Town to take up residence with the father’s mother. The father’s mother rented a home in F Town and worked, as I understand it, on a fly in/fly out basis in remote outback mining camps, being away from her home on a regular basis for three weeks at a time and home on leave for three weeks at a time.
When the mother agreed to move to live in F Town with the father, I am satisfied she had no real appreciation of the remote and rural nature of living in F Town and just how small the town is. It has a population of around 350 people. The couple’s relationship continued to be troublesome and I have already referred to the mother’s return to Country E in October 2009. She came back to F Town in January 2010 before the baby was born in that year.
Apparently concerned about the effect of her medication on her unborn baby, during her pregnancy the mother had stopped medicating in respect of her own mental health. That had an adverse effect on her condition and she presented to hospital in G Town seeking assistance. Things did not get much better for the mother and the father after the child was born and the tumult in their relationship resulted in a final separation after some serious disagreements and confrontations between them in early 2011. It is not unreasonable to describe those incidents as involving family violence. I am quite satisfied that each of the mother and the father did something towards the other at some point in the period leading up to their separation that constitutes family violence as that term is defined in the Family Law Act.
Just after final separation, the mother left the F Town home taking the child with her and moved to a refuge in G Town. As I have already observed, between then and the time of the trial in 2102 the mother and the baby moved residence on several occasions. I am satisfied that the mother’s mental health and the personality difficulties that she struggles with are largely responsible for the volatility and relative instability that she and the child experienced in their lives over that period of time. There is a consistent history of relationship difficulties between the mother and others she shared accommodation with during that period. The mother’s inability to control her anger clearly contributes to these problems.
The history of the co-parenting relationship between the mother and the father since their separation is also marked with distrust, lack of meaningful communication, anger, unilateral decision making, litigation for the entirety of the time and, I am satisfied, an apparent lack of commitment on the mother’s part to the importance of the child having a meaningful relationship with his father and the proper facilitation of it.
The father commenced proceedings in the Federal Magistrates Court (as it then was) in February 2011, soon after the mother left F Town with the child. The mother did not permit him to see the child at all after that time until ordered to do so by the Court in April 2011. From that time on, the father’s time has been limited to short supervised weekly visits, mostly occurring at the C Town Contact Centre. The child was only a one year old baby at the time and the mother had made allegations that the father was violent towards her and, consequently, an unacceptable risk to the child. Those factors undoubtedly influenced the Federal Magistrate (as the Judge then was) to make such orders.
The evidence I have seen satisfies me that at times even the provision of time for the child with the father at the Contact Centre has been difficult. Both of the parents have cancelled visits, some at relatively short notice. The mother, particularly though, has done so on more occasions than the father, and I am satisfied that she has done it at times, without very good excuse at all.
The father’s regular attendances, travelling 180 kilometres by car each time, have, overall, demonstrated commitment and determination to develop and maintain a meaningful parent-child relationship with his son. On many of the visits, the father has been accompanied by his mother with whom he has still been living at F Town. That commitment and determination, along with the way he has interacted with the child in the confines of those short but regular visits, has led to him developing a very good relationship with the child despite the circumstances. That is the opinion of the Family Consultant who interviewed the couple and assessed the family in the course of preparing two family reports in these proceedings. I accept that opinion.
The Family Consultant, Ms K, in her first report assessed the father as presenting well and articulating a considered, child focused position and a willingness to compromise. She also assessed the mother in that first reporting process as demonstrating a willingness and commitment to negotiate an appropriate set of parenting arrangements for their child.
Ms K’s reported observations of the child in his father’s presence during interviews for the first family report were extremely positive, reflecting attachment of the child to the father and appropriate parenting responses from the father. She opined that the child would benefit from the opportunity to maintain meaningful relationships with each of his parents, in the short and long term and that an optimal parenting arrangement, having regard to his tender age, would be for him to spend frequent and regular time with the parent who he does not principally live with.
Ms K recommended at the conclusion of her first report that the child continue to live with his mother. She had been his principal carer since his birth and she was still breastfeeding him. Ms K did though recommend that the child start spending increased time with his father, progressing quickly to unsupervised time but not to overnight visits until both parents determined that the child was ready for those.
In her second report, prepared about six months after the first, Ms K noted that the child was still spending time with his father for two hours each week on a supervised basis at the C Town Children’s Contact Centre. Clearly, there had been no agreement reached between the parties (or any Orders made by the Court) for the time the child was spending with the father to increase or progress to unsupervised time as Ms K had recommended in her first report. Ms K did not comment upon that fact in her second report.
In that second report, Ms K noted that the father was now seeking orders that the child live with him principally and spend three days and nights with his mother each week if she chooses to continue living in Australia. She noted that the mother was now expressly wanting to return with the child to live in Country E as well as wanting sole parental responsibility. Ms K noted that the mother was proposing that the child travel to Australia to spend time with his father on two occasions per year. Notwithstanding this fact, Ms K notes that the mother told her she was ambivalent about the idea of going back to Country E because she has been in Australia for such a long time.
The mother’s proposal to take the child to Country E is, I am satisfied, principally motivated by having an extended family network back there that she believes she will get support from. However, the mother is recorded by Ms K as telling her that she would be alright in Australia and able to create a happy life for the child if she was not permitted to take him to Country E. She is also recorded as being sure that the father would promote their son’s relationship with her even if she returned to Country E and was not permitted to take the child with her.
Ms K did not give her support to the mother’s proposal to move the child to Country E. She considered that without frequent and regular time with his father the child’s age, limited language skills and simple cognitive functioning would result in it being unlikely that he would form a close connection with his father. Instead, Ms K recommended that the child’s best interests would be served by spending frequent and regular time with his father through a graduated parenting plan, not too dissimilar to that which she proposed in the conclusion of her first report.
I am quite satisfied that if the mother is permitted to take the child with her to live in Country E, that the child would most definitely not get frequent and regular time with his father. There are a number of matters that cause me to conclude that.
It is highly probable, as I understand the evidence, that the father’s criminal record will prevent him from obtaining a visa to travel to Country E for holidays on which he could spend time with his son. I am not satisfied that the mother and the father, even if they were to combine their very limited earning capacities, assets and financial resources, could afford to pay for regular and frequent air travel from the eastern seaboard of Country E to Australia for their little boy and an accompanying adult at this point in their lives. The mother is reported to have admitted that to Ms K. The maternal grandmother has made an offer to pay for some travel in the first year of the mother’s return to Country E if she is allowed to take the child to live there, but she cannot be made to do that, nor is there any expressed capacity or commitment to do that for any longer period.
I am also not persuaded, as I have already pointed out, that the mother has demonstrated any genuine commitment to the encouragement and facilitation of an ongoing relationship between the father and the child as would be absolutely essential to support and ensure regular and frequent travel between Country E and Australia at this point in the child’s life and for the maintenance of regular communication between the child and the father between those visits to Australia.
If an order was made allowing the mother to take the child to live with her in Country E, I have little doubt that it would put an end to the child’s growing relationship with his father. I consider it most unlikely that he would ever then develop a meaningful relationship with his father. I am certainly not persuaded that would be a good outcome for the child or that it would be a better outcome for him than the likely outcome of not permitting him to be taken to Country E.
The mother says she wants to return to Country E where she will have family support and where she has been offered a job in an aunt’s jewellery store. For a young mother with a baby, loving family support and a steady income are certainly positive matters. For a young mother with a baby who has Bipolar Affective Disorder that is in remission with active medical treatment, (as the mother has been diagnosed by Dr L, psychiatrist of C Town who was engaged by the ICL) such loving family support would probably be even more of a positive.
The maternal grandmother gave evidence in support of the mother’s case to move with the child back to Country E. She did not attend the trial in person. She was cross-examined via telephone from Country E. All of her evidence points towards an admirable commitment to support the mother as best she can. However, a number of matters of evidence cause me to be concerned about the level at which such support could be delivered by the maternal grandmother and the rest of the mother’s extended family, despite what are the maternal grandmother’s stated best intentions.
The maternal grandfather suffers from a back injury that causes him disability. It has prevented him from travelling long distance by aircraft. It causes him difficulty in getting out of bed or dressing himself on occasion. The maternal grandmother, who works as a registered Nurse on three days each week, is required to provide a good deal of care for him in their home. Her commitments therefore would necessarily restrict just how much assistance she could give the mother if she were living back in that area of Country E.
Further, the evidence is that in the ten years before the trial the mother had only spent time with her parents on three separate occasions. The first was when she returned to Country E for a few weeks and was involuntarily hospitalised before returning, against her parents’ wishes, to Australia. The second was when she returned to Country E during her pregnancy and then returned to Australia, again against her parents’ wishes. The last was since these proceedings were commenced when the maternal grandparents visited Australia for two weeks staying in a hotel whilst the mother continued to stay in a women’s refuge.
It must be the case that the mother has seen her siblings even less than that in the last ten years as there is no evidence that they have visited her in Australia as their parents did. As such, I am not satisfied that the nature of the mother’s relationship with her parents and her siblings is such that the Court could safely expect that the mother could necessarily rely on loving family support if she returned to Country E.
What also troubles me in this respect is the history of volatility in the mother’s personal relationships caused by her health and associated anger management issues. I consider it very likely that she would experience similar volatility in Country E. If her relationships with her extended family, as untested and unknown as they currently are, were to break down in Country E on a flair up of her Bipolar Disorder, the child would not even have the benefit of the loving care of his father to help him cope. This does give me cause for concern as I do accept that the mother is much less able to focus upon the child’s needs when she is unwell. I am satisfied that it would be very important for the child to have a meaningful and close relationship with his father, so that the father could be able to provide the child with the care he needed at any such times.
The mother’s family live in the Country E province of Province M, on the far eastern seaboard of Country E. That is a very long way and over a day’s flying time from Queensland.
On the other hand, the mother reported to Ms K that she was linked into a C Town Base Hospital Assessment and Treatment team, has a mental health case worker and has six weekly appointments with a psychiatrist to monitor her medication. She reported that she considered herself as developing “positive social and mental health networks” including parenting support services and support from a church group of which she is a member.
Ms K reports that the mother told her that she had been informed by Australian Immigration Departmental staff that she would most likely be granted a visa allowing her to remain in Australia if she is not permitted to relocate the child to Country E. The mother confirmed that belief to the Court during the trial as well. The evidence that she was granted permission to remain in Australia with entitlements to work and to receive Centrelink and Medicare benefits pending the determination of the parenting proceedings reasonably supports a finding, in my view, that it is likely that if the child is not permitted to be taken to live in Country E the mother will be given the right to stay in Australia if she wishes to exercise that right. It would certainly be in the child’s best interests, in my determination, for that to occur if she decides that she wants to remain living in Australia.

In so far as the father is concerned, the psychiatrist, Dr L also saw him and assessed all the evidence that had been provided to him by the ICL about the father’s own mental health history. The doctor considered that the father does not suffer from Schizophrenia despite what the Adelaide mental health hospital records noted. The doctor considered that the father’s hospitalisation in Adelaide in 2008 had been due to a psychotic episode lasting a few months but that the father seems to have made a good recovery from it and remained symptom free from it even without treatment.
At the time of the trial, the father continued to study. He was enrolled full-time at the N University in C Town and was very positive in his expressed commitment to continue those studies to completion whilst also looking around to try to found some casual employment to assist him support himself and contribute towards the child’s support. He also expressed what I accepted was a real intention to move into C Town to reside if he could find suitable accommodation that he could afford at some point in the future. I consider that would certainly be in the child’s best interests, reducing travel time between the homes of each of his parents and making it so much more practicable for them to share the care of the child more readily, particularly when the child starts school in a few years’ time.
Dr L was aware of the recent and past evidence suggesting that when the mother becomes agitated that she does become physically violent. As I have said already, there is evidence that satisfies me that the mother has become violent with persons with whom she has been sharing accommodation since separating from the father. The doctor said that it is a combination of the mother’s personality make-up and her Bi-polar Affective Disorder that causes these problems, but he observed that with treatment her behaviour generally settles. He remarked that it is a positive sign that there is no evidence that the mother’s anger has been directed at her child at all and that she is still capable of appropriate parenting. I accept that. He also expressed the view that as long as she continues her treatment and maintains stability in her personal life in such things as housing, support networks and access to mental health services that she should continue that way.
The father led some evidence at the trial from Ms O, a woman who had been a flatmate of the mother in C Town for about six to seven months from mid-2011 to February 2012. The two women had been friends, having met in a women’s refuge in G Town. Their friendship had clearly fractured by the time Ms O swore the affidavit that the father filed and relied upon and I had regard to that fact when considering Ms O’s evidence.
Ms O deposed to matters of concern about the mother’s care of the child. Amongst other things, she reported observing the mother being neglectful in her care of the child when she was under the influence of alcohol. She also observed the mother being angry and violent towards others in the presence of the child. I was satisfied that whilst Ms O may have exaggerated some of her evidence a little, she was generally being truthful in her evidence. Without repeating all of her evidence in full detail, I consider it sufficient to describe it as evidence that satisfied me that it is in the child’s best interests for the child’s time in his mother’s care to be regularly and intermittently punctuated with substantial periods of time in his father’s care. I do not consider it to be evidence that justifies completely removing the child from the mother’s care. In all the circumstances of this case, I am satisfied that the most appropriate parenting arrangements for this little boy will involve his parents ultimately sharing his care on an equal basis. I am satisfied that the father has the commitment and the capacity to be involved in that level of care for his son.
Shared care arrangements would, importantly, give the mother regular respite time without the constant need to provide care for an active and demanding little boy. It also provides a means of the father regularly monitoring the care being provided to the child by his mother. It would allow the mother time during which she might be able to obtain employment or undertake more study as well as continuing to build her networks in C Town. Exactly the same advantages apply in reverse also.

WHAT PARENTING ORDERS SHOULD BE MADE?

The child has now been spending unsupervised visits with his father on a weekly basis since the trial finished. The child is now three and a half years of age and will have further developed his attachment and his relationship with his father from that identified by the Family Consultant. I am satisfied that it is in the child’s best interests to introduce him to even more time with his father straight away, building up over a few months to blocks of multiple days in duration
The Orders will provide for an initial increase of the time that the child spends with his father during an eight week period in which he will spend three days and two overnights with his father in one week and two days and one overnight in the other week. The next increase in time will stay in place for a further twelve weeks, with the child spending four days and three nights with the father in one week and three days and two nights in the other week.
From the end of that twelve week period until the child starts school, which I expect will be his Preparatory year in 2015 the child will be spending five days and four nights with the father in one week and two days and two nights in the second week.
Clearly, when the child starts his formal schooling in 2015 there will need to be a change to the parenting arrangements that are in place if the father has not moved into C Town by that time. In such circumstances, the time the child spends with the father will change to alternate weekends if his father continues to live out at F Town which is a few hours’ drive from C Town. However, as I have already noted, the father gave evidence that he is intending to move into C Town at some point in the future, to more easily facilitate shared parenting arrangements. I consider that would most certainly be in the child’s best interests for the father to do that. I accept that he is likely to move into C Town.
I am satisfied that the most appropriate arrangements to put in place for the child’s care when he is going to school, if the father is living in C Town by that point in time, will be an equal shared parenting regime. My Orders will provide for that. Conditioned on the father living in residential premises in C Town by that time, the child will live with the father from after school on Wednesday until before school on the following Monday in the first week of term and alternate weeks thereafter and from after school on Wednesday in the second week of term to before school on the following Friday and as such in alternate weeks thereafter. That way he will spend two unequal blocks of two nights and five nights with each of his parents within a fourteen day period, having the whole of every second weekend in each parent’s care.
Whilst I appreciate that this will require more transitions for the child than if he was in an equal shared parenting regime that provided for whole week about care, I am currently of the view, as I have alluded to already, that the regular, frequent punctuation of the time the child spends in the mother’s care is in his best interests. Of course, should the parents reach an agreement between themselves that week about care is more appropriate once the child starts school they can vary the arrangements by their own agreement. My Orders though, should give the father added confidence that he will be able to continue to monitor the child’s care and the mother’s own wellbeing as well as also giving the mother confidence that she will be able to cope with caring for the child and managing her own health and well-being at the same time.
Furthermore, my Orders will provide for the child to spend half of all of his school holidays with each of his parents once he starts school. Alternating this between the first and second halves of the holidays from year to year also ensures that he spends each second Christmas and Easter holiday periods with his mother and the other with his father, so he enjoys those special family celebrations equally with both parents. My Orders will also provide for ease of calculation of half of the holidays and for the eventuality that there are uneven days in those holidays.
Of course, other special days during the year, such as Mother’s Day, Father’s Day and family birthdays will also be provided for. The child is to enjoy the relevant special days with the relevant parent.
I am also satisfied that it is in the child’s best interests for the mother to be restrained from moving with the child to a residence outside of C Town unless she has the father’s written consent or further Order of a Court of competent jurisdiction. She has now established some important social networks for herself and, no doubt, the child in C Town. She has also established important networks with the mental health service providers in C Town as well as having come to the attention of Department of Communities, Child Safety and Disability Services officers and local police. It is, I am satisfied, in the child’s best interests that the mother stays in the city where all these networks and links have been established, for ease of access to those links if needed in the future. The child’s time with his father is also more readily facilitated from C Town whilst he continues to live a couple of hours to the west of that city and will be far more easily facilitated when he moves into a residence in that city in the future.
Transitions of care between the parents will, by the Orders, be required to take place at the C Town Children’s Contact Centre if that can be facilitated at the relevant times. That will make it easier for the parents to not have to come into contact with each other at changeovers, at least until matters settle between them after the outcome of this judgment is known to them. If the Centre is not able to be accessed at relevant times, then the McDonalds Family Restaurant in D Street, C Town will be a suitable place for transitions. Of course, when the child starts school, most transitions will occur just around normal school start and finish arrangements, again minimising any risks caused by the parents coming into direct contact with each other.
I am relatively optimistic for the future of communication and co-operative parenting between these two parents once they have absorbed the outcome of these proceedings. I expect that the mother will readily accept the decision not to let her relocate the child to the east coast of Country E and will remain in C Town focused on staying well and providing optimal care for her little boy. However, if she determines not to stay in Australia, or for some reason is unable to, then I am satisfied that it is in the child’s best interests to remain living here with his father. I consider that there is a far greater prospect of the child having a meaningful relationship with his mother and her family in the future if he is living here in Australia with his father than there is of him having a relationship with his father and his family if he is living with his mother in Country E. In such circumstances, I am also satisfied that if he is to live principally with one of his parents and to have very little, if any, contact with the other parent, that it would be in his best interests for the parent with which he is to principally live to be his father. There is, I am satisfied, much less risk of the child’s care being compromised to his prejudice in such circumstances.
My Orders will provide for communication by telephone between the child and the parent he is not living with at the time and also for communication with the mother in what I consider is the unlikely event that she determines to move back to Country E without the child at any point following this judgment.
The Orders will also provide for the mother to complete the Parenting Orders Program that she was previously ordered to complete within a further six months if she has not yet completed it. The Orders will provide for both parents to commence therapeutic counselling with a psychologist within four weeks if that has not already commenced and the mechanism by which that psychologist is to be chosen. Each parent will be required to undertake and complete a Triple P parenting course within twelve months as well if they have not already done that. That is all in the child’s best interests as each parent has demonstrated some parenting and communication deficiencies that I consider those courses and counselling should address to help make each of them better parents and to help ensure that their co-parenting of their son works to his benefit. Indeed, they have been ordered to do these courses already.
There will also be the usual miscellany of Orders in respect of communicating with each other, keeping each other informed of contact details, injury or illness to the child, any medical treatment received by the child, and also requiring each parent to make appropriate authorisations to school and health care providers to communicate with each of the parents where appropriate.
The Orders will also restrain each parent from drinking alcohol to excess or from using illicit drugs during time the child is in his or her care or just prior to the child coming into his or her care. Such an Order takes account of the evidence that both parties put before the Court that each was concerned with the level of alcohol consumption of the other and its impact upon the child. It also takes into account evidence of past drug use of the father and past and recent drug use of the mother.

WHAT ORDERS SHOULD BE MADE FOR PARENTAL RESPONSBILITY?

Parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. Each of the parents of a child who is not 18 has parental responsibility of the child subject to that being displaced by a parenting order of the Court. When a parenting order is being made in relation to a child there is a statutory presumption that it is in the child’s best interests for the child’s parents to have “equal shared parental responsibility” for the child. When the presumption applies and is not rebutted as it can be by evidence, then the parenting order must include provision conferring “equal shared parental responsibility” on each of the parents.
If the parenting order confers “shared parental responsibility” and the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child, at law, the order is taken to require each parent to consult the other in relation to the decision to be made about that issue and to make a genuine effort to come to a joint decision about that issue, as well as requiring the decision actually to be made jointly. “Major long-term issues in relation to a child” means issues about the care, welfare and development of the child of a long-term nature, including (but not limited to) issues of that nature about the child’s education, the child’s religious and cultural upbringing, the child’s health, the child’s name and changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
The statutory presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or another child or family violence. The Court can though, in circumstances where the presumption does not apply, still determine that it is in a child’s best interests for its parents to nevertheless share parental responsibility for it. Further, even if the Court is not satisfied that there has been abuse of a child or family violence, the presumption may still be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for his or her parents to have equal shared parental responsibility for the child.
In this particular case, the presumption has been rebutted by the evidence, I have accepted, that both parents have been involved in perpetrating family violence against the other. However, rebuttal of the statutory presumption does not mean that a shared parental responsibility order cannot be made. As I have already said, it still can be if it is considered to be in the child’s best interests.
For the ICL, as well as it being submitted that an international relocation of the child should not be permitted, it was submitted that the child’s best interests would be served by making an Order that shared parental responsibility be conferred equally upon each of the parents in this case. In contrast, each of the parents argued for Orders conferring sole parental responsibility on them.
In past judgments, I have expressed the view that an essential element of viable shared parental responsibility is a capacity to communicate co-operatively and respectfully with each other, so that it is probable that decisions about major long-term issues in respect of the child are able to be jointly made without the need for further litigation. I do not resile from that previously expressed view. In this case, as I have already observed, despite the difficulties the parents have experienced in communicating in the past, I am quite optimistic that the parties will, upon delivery of my judgment, eventually settle into the necessary co-operative and respectful parenting of their little boy. I am confident that they will be able to consult and make genuine effort to reach agreement on matters pertaining to the welfare of the child. Accordingly, I will make Orders conferring equal shared parental responsibility on each of the parents. I will include in the Orders, the obligations that s 65DAC of the Family Law Act already statutorily impose upon the parents where shared parental responsibility Orders are made. That is so they can be in no doubt as to what is required of each of them. The Orders will also provide for them to attend family dispute resolution if they cannot make the decisions about major long term issues for their child jointly.
Having determined that I will make parenting orders that confer equal shared parental responsibility for their child on each of the parents, s 65DAA of the Family Law Act requires me to consider whether the child spending equal time with each of the parents would be in his best interests and whether that is reasonably practicable. I have already determined that should both of the parents be living in C Town by the time the child starts school, which is likely to be in 2015, that the child spending equal time with each of his parents would be in his best interests and that it would be, in those circumstances, reasonably practicable. I have determined to make orders that provide for that in those circumstances.
Of course, if the mother decides to move back to Country E it would not be reasonably practicable and neither would it be if the father chooses to continue to live in F Town. The Orders I make will provide parenting arrangements that I consider appropriate in each of those eventualities.
I have also determined that it is not in the child’s best interests to make Orders that provide for the child to immediately begin spending equal time with each parent. In the circumstances, it is important, having regard to the child’s age and the fact that he has been having short, supervised visits with his father for quite some time now, that the child’s unsupervised time with his father be introduced in a manner that increases it to equal time over an appropriate period. I consider the sixteen month period between now and when the child starts school to be a suitable period over which to gradually increase the child’s time in his father’s care from the short, supervised time that he currently has to the equal shared time that he will have if his father moves into C Town.

Although the father sought Orders that the child live principally with him, I consider that the child’s attachment to his mother and the fact that he has lived with her solely since separation nearly three years ago, only seeing his father in short, supervised visits, requires continuity of that care and their important relationship on an ongoing basis. Whilst having some concerns about the capacity of the mother to provide optimal care for the child all of the time, I am not so concerned about her care of him, having regard to all of the evidence, including the psychiatrist’s and the family consultant’s evidence, that I consider it in the child’s best interests to remove him from his mother’s principal care altogether and to place him in his father’s principal care instead. As I have observed, I consider this a case where providing for the child to ultimately spend equal time with each of his parents will ensure that his care his prioritised by each of his parents during that time he spends with each of them and each will have ample respite from parenting on a regular basis to optimise their own wellbeing for the ongoing parenting task.

SHOULD THE MOTHER BE PERMITTED TO TAKE THE CHILD OUT OF THE COUNTRY AT ALL?

Whilst I appreciate that the mother’s desire to move back to Country E with the child would, in the face of my refusal to permit that, likely translate into a desire to take him for holidays to Country E from time to time, I am not satisfied that the Court should permit that just yet.
I have already observed that the mother is likely to be unhappy about this decision. I consider it appropriate to let the parties come to terms with the outcome of these proceedings and to adjust to life and co-parenting as provided for in the parenting Orders that the Court makes before the mother is permitted to take the child out of the country, even for a holiday.
Over time, as the trust grows between the two parents, as I am confident it will, it is likely that the father will feel comfortable with the idea of permitting the mother to take the child for a holiday visit to Country E to spend some time with and introduce him to her extended family. Each of them will be able to take more advice about that issue, to discuss it with each other and to negotiate a mutually acceptable outcome, particularly having regard to the fact that Country E, like Australia, is a signatory to the Hague Conventions dealing with the civil aspects of international child abduction and mutual recognition and enforcement of parenting orders. If the mother is able to provide suitable assurance to the father of her intentions to quickly return the child to Australia and to facilitate communication between the child and the father whilst they are away in Country E, I would expect the father to agree to the mother being able to take him for such a visit. I just do not consider the parties ready yet for that and, accordingly, will not make provision for it in the Orders I will make at this point in time. Of course, unreasonableness of position determined to exist on either party’s side in any future dispute about this could well tell in costs orders against the parent adjudged to be acting unreasonably.
In the meantime, however, I consider it in the child’s best interests for his name to remain on the watch list maintained by the Australian Federal Police at points of departure from the country throughout Australia.
It is hoped that on making the Orders that are set out at the outset of these reasons for judgment, as I do, that the parents of the child will be able to get on with their lives and their co-parenting of their little boy resolute in their child focus and determined to improve their parenting relationship for the sake of their little boy.

I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 11 October 2013.

Associate:

Date: 11 October 2013

[2013] FamCA 776

11 October 2013

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Remedies