Weber & Trung
[2024] FedCFamC2F 1467
•23 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Weber & Trung [2024] FedCFamC2F 1467
File number(s): PAC 564 of 2023 Judgment of: JUDGE OBRADOVIC Date of judgment: 23 October 2024 Catchwords: FAMILY LAW – PARENTING – Circumstances where mother was overseas for prolonged period and had little contact with child – Significant change of circumstance – History of non-compliance with Court Orders by the mother – History of unilateral decision-making by the mother – Change of residence – Child’s best interests Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC, 61C, 61D, 65DAAA Cases cited: Cuinn & Freund [2024] FedCFamC1F 591
Heintze & Marinov [2024] FedCFamC1F 548
King & Finneran [2001] FamCA 344; (2001) FLC 93-079
Poisat & Poisat [2014] FamCAFC 128
Rasheem & Rasheem [2024] FedCFamC1F 595
Rice and Asplund [1978] FamCA 84; (1979) FLC 90-725
Whitehill & Talaska [2024] FedCFamC2F 768
Division: Division 2 Family Law Number of paragraphs: 155 Date of hearing: 29-30 August 2024 Place: Parramatta Solicitor for the Applicant: Ms Torrisi of Family Law Practice Australia Pty Ltd Counsel for the Respondent: Mr G Jauncey Solicitor for the Respondent: Kenneth Harrison Solicitor & Attorney ORDERS
PAC 564 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR WEBER
Applicant
AND: MS TRUNG
Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
23 OCTOBER 2024
THE COURT ORDERS THAT:
1.The applicant father, Mr Weber (‘father’), have sole decision-making in respect of all major long-term issues affecting the child, X born in 2016 (‘child’).
2.The child live with the father.
3.The child spend time with the respondent mother, Ms Trung (‘mother’), as follows:
(a)During school term on a fortnightly basis:
(i)In week 1 and each alternate week thereafter, on Friday from after school (or 3pm if not a school day) to Monday before school (or 9am if not a school day); and
(ii)In week 2 and each alternate week thereafter, on Wednesday from after school (or 3pm if not a school day) to Thursday before school (or 9am if not a school day);
With the mother to collect the child from school at the commencement of time and to deliver the child to school at the conclusion of time;
(b)During the school holidays:
(i)In even numbered years for the first half, commencing at 6pm on the last day of school term and concluding at 6pm on the middle Saturday of the school holidays;
(ii)In odd numbered years for the second half, commencing at 6pm on the middle Saturday and concluding at 6pm on the last Saturday of school holidays;
With the mother to collect the child from the father’s residence at the commencement of time, and the father to collect the child from the mother’s residence at the conclusion of time; and
(c)At other such times as agreed between the parents in writing.
4.Notwithstanding any other order:
(a)The child shall spend time with the father from 4pm on Christmas Eve to 4pm on Christmas Day in even numbered years;
(b)The child shall spend time with the mother from 4pm on Christmas Eve to 4pm on Christmas Day in odd numbered years;
(c)If the child is not already spending time with the mother, the child shall spend time with the mother from 10am to 5pm on Mother’s Day;
(d)If the child is not already spending time with the father, the child shall spend time with the father from 10am to 5pm on Father’s Day;
(e)When Easter does not fall during school holidays:
(i)The child shall spend time with the father from 11am on Good Friday to 4pm on Easter Sunday in even numbered years;
(ii)The child shall spend time with the mother from 11am on Good Friday to 4pm on Easter Sunday in odd numbered years;
(f)The child shall spend time with either parent on any of the family special occasions such as family reunions, engagements, weddings, wedding anniversaries and birthday milestones provided always that the parent concerned shall give written notice of at least one month to the other parent, of such special occasion; and
(g)If a parent wishes to travel with the child within Australia:
(i)That parent shall nominate and notify the other parent in writing at least one month prior to the proposed travel time;
(ii)The other parent is to respond in writing in respect of the travel time within seven days of the notification as to whether they agree or not; and
(iii)When the other parent agrees to the nominated extra time, the other parent shall be entitled to have equal make-up time in an alternate school holiday.
5.Each parent shall be entitled to communicate with the child by telephone during school holidays when the child is not otherwise in their care, between 6pm and 6:30pm each Monday, Wednesday, and Friday.
6.The mother is hereby retrained from making an application for the issue of any Passport for the child save and except an Australian Passport, without the written consent of the father.
7.The parents shall do all things necessary to ensure both parents are listed on the child’s school enrolment forms and shall both have authority to receive copies of school reports, newsletters, notices, and school photograph order forms.
8.The parents are both entitled to attend all school events to which parents are invited to attend.
9.The parents shall inform the other by telephone or SMS message as soon as practicable and no later than 48 hours of any specialist medical appointment arranged for the child and shall provide authority to any such specialist to provide the other parent a copy of any report.
10.In the case of any medical emergency involving the child while he is in their care, each parent shall inform the other parent forthwith.
11.The parents shall keep each other informed of their residential addresses, phone numbers, e-mail addresses, and notify each other within 24 hours of any change.
12.The parents are each restrained from denigrating the other parent or their family in the presence or hearing of the child and both parents shall do all things necessary to ensure that no third party makes critical or derogatory remarks about a parent or their family in the child’s presence.
THE COURT NOTES THAT:
A.The child remains on the Airport Watchlist, and the parents remain restrained from removing the child from the Commonwealth of Australia pursuant to Order 8 and 9 of the Orders made by Justice Hannam on 25 January 2017.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC:
Eight-year-old X’s parents lived together as a married couple, when he was but a baby, for less than a year and a half. There have been two sets of final parenting orders which govern his parenting arrangements, the first orders were made in 2017 when X was less than 2 years old, and the second orders were made in 2020, when X had just turned 4.
In both iterations of final orders, the parents (the applicant father herein and the respondent mother herein) were to have equal shared parental responsibility, X was to live with the mother and spend time with the father, essentially on an alternate weekend basis, half school holidays, and special occasions.
Notwithstanding such final orders, X has had to face much turmoil and uncertainty in his young life, including not having any face-to-face time with his mother for a period of twenty-one months while she was overseas in 2021 and 2022, and the mother making unilateral decisions about medical issues and X’s education; in the face of orders for equal shared parental responsibility and with the knowledge that the father did not agree to such decisions.
In February 2023, the father commenced these proceedings moving the Court for orders that X live with him and spend time with the mother.
EVIDENCE IN THE PROCEEDINGS
The father sought orders to vary the final parenting orders such that he have sole parental responsibility for X, that X live with the father, and that X spend time with the mother from after school on Friday to prior school on Monday each alternate week, half school holidays, and special occasions.
The father relied on the following documents in support of his orders sought:
(a)Case Outline filed on 26 August 2024;
(b)Amended Initiating Application filed 28 July 2023;
(c)Affidavit of the father filed 12 July 2024; and
(d)Family Report prepared by Ms B dated 19 February 2023.
The mother sought orders in line with the final parenting orders, essentially for the parties to have equal shared parental responsibility, that X live with the mother, and for X to spend time with the father from after school on Friday to prior school on Monday each alternate week, half school holidays, and special occasions.
The mother relied upon the following documents in support of the orders she sought:
(a)Outline of Case Document filed 26 August 2024;
(b)Amended Response to Initiating Application filed 29 May 2024;
(c)Affidavit of the mother filed 12 July 2024; and
(d)Family Report prepared by Ms B dated 19 February 2023.
The exhibits, as tendered in this matter and relied upon by the parties, were as follows:
·Exhibit 1 being a letter dated 23 August 2022 from C Medical Centre addressed to Dr D at E Street, Suburb F together with G Family Medical Centre letter dated 16 January 2024 to Dr H.
·Exhibit 2 being text messages sent by the father to the mother following the meeting by the parents with J School on 24 August.
·Exhibit 3 being an application to enrol the child signed by the mother bearing the mother’s signature dated late 2022.
·Exhibit 4 being two emails from Mr L, Principal of J School.
·Exhibit 5 being School Counsellor Reports of J School dated 23 August 2022 and report dated 16 August 2022.
·Exhibit 6 being K Medical Centre referral to Dr M dated 29 February 2024; N Clinic letter from Dr M dated 21 March 2024 from to School Counsellor of J School; N Clinic letter from Dr M dated 21 March 2024 to Dr O being four pages; and N Clinic letter from Dr M dated 20 March 2024 to School Counsellor of J School.
·Exhibit 7 being a chain of text exchanges between the parents commencing 10 June 2019 and concluding 27 July 2019.
·Exhibit 8 being a letter dated 9 May 2024 from P Centre addressed to ‘Whom it may concern’ regarding the mother, being three pages.
·Exhibit 9 being residential tenancy agreement pages 1 to 4 of 17.
·Exhibit 10 being an email from Ms Q at R Authority dated 8 May 2024 to Ms S.
·Exhibit 11 being a Letter of Offer from T Company to the mother dated early 2024.
·Exhibit 12 being the first two pages of contract from U Organisation dated mid-2024.
·Exhibit 13 being a Centrelink Statement dated mid-2024.
·Exhibit 14 being various emails concerning payment for reports.
·Exhibit 15 being school records of school reports and communication history from J School in relation to the child.
·Exhibit 16 being two reports from K Medical Centre dated 13 June 2019 and 27 November 2019.
The father was the sole witness in his case. Similarly, the mother was the sole witness in her case. Each of the parties were cross-examined, as was the family report writer.
LEGAL PRINCIPLES
These proceedings were heard and determined after the commencement of the Family Law Amendment Act 2023 (Cth). The child’s best interest remains the paramount consideration in respect of any parenting orders the Court makes, including orders for parental responsibility.
The objects of Part VII of the Family Law Act 1975 (Cth) (‘Act’) inform how the Court must exercise its discretion.[1] Those objects are to ensure that the best interests of children are met, including by ensuring their safety and to give effect to the Convention on the Rights of the Child.[2]
[1] Heintze & Marinov [2024] FedCFamC1F 548 at [9].
[2] Family Law Act 1975 (Cth) s 60B (‘Act’).
In respect of matters where final parenting orders are already in force, regard must be had to s 65DAAA, which provides that:
(1)If a final parenting order is in force in relation to a child, a court must not reconsider the final parenting order unless:
(a)the court has considered whether there has been a significant change of circumstances since the final parenting order was made; and
(b)the court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered.
(2)For the purposes of determining whether the court is satisfied as mentioned in paragraph (1)(b), and without limiting section 60CC, the court may have regard to any matters that the court considers relevant, including the following:
(a)the reasons for the final parenting order and the material on which it was based;
(b)whether there is any material available that was not available to the court that made the final parenting order;
(c)the likelihood that, if the final parenting order is reconsidered, the court will make a new parenting order that affects the operation of the final parenting order in a significant way (whether by varying, discharging or suspending the final parenting order, in whole or in part, or in some other way);
(d)any potential benefit, or detriment, to the child that might result from reconsidering the final parenting order.
Section 65DAAA is said to codify the rule in Rice & Asplund.[3]
[3] [1978] FamCA 84; (1979) FLC 90-725 at 78,905. This much is apparent from the Explanatory Memoranda which states that the amendments to the Act, that is, in particular s.65DAAA ‘[C]odifies the common law rule established by Rice v Asplund (1979) FLC 90-725 and elaborated on in subsequent cases, that is, where final parenting orders are in place, the applicant must establish that there has been a significant change of circumstance since the making of the orders before those orders can be reconsidered. The rule is founded on the notion that continuous litigation over a child or children is generally not in their best interest’.
In Rice & Asplund the Full Court of the then Family Court of Australia held:
The principles which, in my view should apply in such cases are that the court should have regard to any earlier order and to the reasons for the material on which the order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore the court would need to be satisfied that…there is some changed circumstance which will justify such a serious step, some new factor which was not disclosed at the previous hearing which would have been material…It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing…
The rule in Rice and Asplund is of long-standing, has been consistently recognised and applied both by the Full Court of the Family Court, the Family Court, and this Court, and is intended to apply universally in the sense of applying to every case in which final parenting orders are sought to be discharged or varied subsequently.[4] The purpose of the rule is to protect children from exposure and involvement in further unnecessary litigation.[5]
[4] Poisat & Poisat [2014] FamCAFC 128 at [8] and [13].
[5] King & Finneran [2001] FamCA 344; (2001) FLC 93-079 at [44] and [64].
Two recent decisions take the view that the rule in Rice & Asplund is not codified by s 65DAAA.[6] Neither of those decisions is binding on this Court, although both are persuasive and consistency in decision making is desirable. It is, however, unnecessary to consider that particular point here for reasons which are later explained.
[6] Rasheem & Rasheem [2024] FedCFamC1F 595; Whitehill & Talaska [2024] FedCFamC2F 768.
Division 2 of Part VII of the Act deals with parental responsibility. Section 61C provides that each of the parents of a child has parental responsibility, subject to orders. Section 61D provides that a parenting order that deals with the allocation of parental responsibility may provide for joint or sole decision-making in relation to all or specified major long-term issues.
Parental responsibility orders may be made in favour of a parent or some other person.[7] Even if an order provides for joint decision-making, thus requiring the parties who hold parental responsibility to consult and make a genuine effort to come to a joint decision, there is no requirement for a person, before acting on a decision, to establish that the decision has been made jointly.[8]
[7] Act s 64C.
[8] Act s 61DAA.
In determining what is in the child’s best interest, the Court must consider the matters set out in s 60CC(2) of the Act.
If the child is an Aboriginal or Torres Strait Islander child, the matters set out in s 60CC(3) of the Act, that is the child's right to enjoy the child's Aboriginal or Torres Strait Islander culture and the likely impact any proposed parenting order will have on that right.[9]
[9] See s 60CC(3).
Section 60CC(2) of the Act specifies the non-hierarchical criteria which must be considered in all cases when arriving at a conclusion as to what is in the child’s best interests:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b)any views expressed by the child;
(c) the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f) anything else that is relevant to the particular circumstances of the child.
In considering what arrangements would promote the safety of the child and of each person who has the care of the child, the Court must consider any history of family violence, abuse or neglect involving the child or a person caring for the child together with any family violence order that is current or has previously applied to a child, or a member of the child’s family.[10]
[10] Act s 60CC(2A).
In a recent judgment, Altobelli J commented obiter that:[11]
“Safety” is not defined in the Act. It is often said that words in a statutory context are to be given their ordinary or natural meaning (Momcilovic v The Queen (2011) 245 CLR 1 at [56]). This Court is drawn to a view that “safety” is a state in which hazards or conditions leading to physical, psychological or material harm are controlled in order to preserve the health and wellbeing of an individual. It is not the complete elimination of risk of harm, but rather making such order as affords the child the most optimal protection from harm.
[11] Cuinn & Freund [2024] FedCFamC1F 59 at [30].
Section 60CG of the Act further requires the Court to ensure that any parenting order it makes is consistent with any family violence order and that it does not expose a person to an unacceptable risk of family violence, but only to the extent that it is possible to do so consistently with the child’s best interest being the paramount consideration.
FINDINGS
The father was born in 1984. He is 40 years old.
The mother was born in 1988. She is 36 years old.
The mother, who is from Country W, emigrated to Australia in 2014. She is now an Australian citizen.
The parties were married in 2015.
X was born in 2016, and the parties separated in December 2016, when he was an infant. The parties were divorced in early 2019.
On 25 January 2017, the then Federal Circuit Court of Australia made orders by consent for X to be placed on the Airport Watchlist.
Final parenting orders were made by consent on 10 July 2017 (‘2017 Orders’) for X to live with the mother, for the parties to have equal shared parental responsibility, and for X to spend time with the father on alternate weekends and special occasions. For the most part until March 2018, the parties complied with the 2017 Orders.
Between March 2018 and July 2018, and despite the 2017 Orders, X spent most weekends with the father as the mother was working.
On or around 12 October 2018, the father collected X to spend the weekend with him and when X was to return to the mother, the father could not get a hold of her. Consequently, X stayed with the father for two weeks, during which the father took time off work to care for X. On 29 October 2018, the father enrolled X into day care three days per week.
In or around November 2018, the father received a call from the mother about her wanting to ‘reverse the custody’ of X. Thereafter, from late 2018, X lived with him and spent alternate weekends with the mother.
Between 23 December 2018 and 15 January 2019, the father travelled overseas with family. X could not travel with the father as his name was on the Airport Watchlist, and the mother agreed to having X for the time the father was travelling.
While the father was overseas, on or around 31 December 2018, the mother by text message suggested an equal time arrangement for X, which the father disagreed with, as X had been living with him since early October 2018. However, after returning from his trip the father contacted the mother on or around 18 January 2019, to discuss the possibility of an equal care arrangement.
The mother then travelled to Country W. She returned to Australia on 28 February 2019. X stayed with the father while the mother was overseas.
On 2 March 2019, the mother advised the father that she had decided to continue with the arrangement as contained in the 2017 Orders, and the parties reverted to X living with the mother and spending alternate weekends with the father.
During May 2019, the mother wanted to enrol X in sports lessons in Suburb V, to which the father agreed. The father transferred $150 to the mother so she could enrol X in the lessons. On or around 15 June 2019, the father asked the mother to provide receipt of X’s lessons and asked when they would start, to which the mother replied ‘Sorry I don’t think you say that. If you want to take [X] to go [sports] class at your area, it's fine. Next time you could book for [X] class around where you lived.’ It is not clear on the evidence whether, at this time, X was ultimately enrolled in sports lessons or not.
Late on 10 June 2019, the mother texted the father telling him that she wanted X to have a medical procedure, and that she was planning on booking him into a clinic ‘for more information’. The father texted the mother back the following morning to enquire why, and the mother responded that it for X’s benefit, and ‘I feel anxious about it.’ The mother then made the unilateral decision for X to have his medical procedure. She booked an appointment for mid-2019 despite the father’s strong objections. The father had made it clear to the mother that he did not consent to X undergoing the medical procedure.[12] The mother’s oral evidence about not knowing that the father did not consent, as her phone was broken, is not accepted in light of the text exchanges between the parties at the time, which were tendered in these proceedings in the mother’s case.
[12] Exhibit 7.
The father filed an urgent application on 30 July 2019, seeking to restrain the mother from proceeding with X’s surgery. The application was heard, and an order made on 31 July 2019 restraining the mother from X having the procedure. Despite such injunction, the mother proceeded with the surgery in mid-2019.
On 12 November 2019, the father filed an application for final parenting orders, seeking orders different to the 2017 Orders.
After his relationship with the mother ended, the father re-partnered to Ms Y in or about 2018, to whom he is now married. The father and Ms Y have a child together, 4-year-old Z who was born in 2019. The father also has an older child AA, who is 13 years old. AA spends time with the father, but lives with his mother. The father also has a stepdaughter, who is now an adult, who lived in the father’s household.
On 27 November 2020, the parties reached an agreement and final parenting orders were made by consent (‘2020 Orders’). These orders provided for X to live with the mother, for the parents to have equal shared parental responsibility, and for X to spend time with the father each alternate weekend, half school holidays, and on special occasions.
The 2020 Orders also contained an order for the father to have care of X whilst the mother travelled to Country W from late 2020. The maternal grandmother was very ill, and the mother wanted to visit her. The father did not agree to X travelling with the mother, and the parties agreed that X would live with the father while the mother was overseas. The mother had planned to stay in Country W for approximately three to four weeks.
In late 2020, the mother left for Country W. The father assisted the mother by paying for a flight to Melbourne, as the mother had difficulty obtaining a flight out of Sydney. The Court understands that the difficulty arose due to COVID-19 travel restrictions in place at the time.
The mother remained in Country W until mid-2022.
The maternal grandmother died shortly after the mother’s arrival in Country W, and while the mother was still in quarantine. The mother thereafter helped to organise the funeral, and stayed to support her father and other extended family members. Her evidence is that she could not leave the town in Country W where she was staying due to safety measures put in place by local authorities during COVID. The mother claimed she only had a one-way ticket to Country W and return flights were not allowed, and that while she was in Country W she often did not have access to internet, that the time difference to Sydney is four hours, and that her family’s health problems prevented her from contacting X when she wanted to.
X lived with the father for the duration of the time the mother was in Country W. There was only intermittent telephone and/or video communication with the mother while she was away.
In early 2021, X commenced attending J School, and he was enrolled, by the father, in after school care on Mondays and Thursdays.
In early 2021, the mother rang the father and asked him to collect her important documents from her apartment in Suburb BB, which the father did. The father later communicated with the mother and expressed his surprise about the mess and small size of the apartment. The mother says that she had planned to move out of the place in Suburb BB, that she asked the father to help her get documents from the unit in Suburb BB, that she was under a lot of pressure when she was leaving Australia for Country W, and did not have time to clean the unit. The mother also stated that she was planning to move out of the unit after returning from Country W and had planned to clean it after she returned. The lease on the Suburb BB property expired in early 2021, and the mother had left her keys with the father prior to leaving for Country W.
In mid-2022, the father was told by Ms CC, a provisional psychologist at J School, that there was a possibility that X has attention deficit hyperactivity disorder (‘ADHD’), and that the school counsellor recommended X remain at J School so that they could support X’s learning needs.
It appears that in mid-2022, the school provided the father with a referral letter for X’s GP/paediatrician, advising of X having been referred to the school counsellor for assessment following concerns raised by his classroom teacher about his ability to focus and complete his schoolwork.
The mother returned to Australia from Country W in mid-2022. It was upon her return that she contacted the father to tell him that she was back, and to tell him that she wanted to pick X up that very evening.
She sent him a text message [mid] 2022, where she said:
Hi [Mr Weber], how are you? May I pick up [X] tonight?
The father responded with ‘Pick up [X]? We’re at the [property]?’.
At this point, X had not seen his mother for over one year, and the father did not know that the mother was coming back.
The following day, the parties exchanged text messages:
Father: Are you back in Australia [Ms Trung]? Is [sic] you are back and need a place to stay you can share [X]’s room there is two beds in it.
Mother:Yes, I’m back in Sydney. When will you be back to Sydney…
There were further text messages exchanged between the parties in mid-2022, about the mother wanting to pick X up from school. She advised the father that she only wanted to see him after school as she still had to organise a place to live. The father agreed. It was on Sunday and/or Monday that the father told X that the mother was back, and that he would see her after school.
X was picked up from school by Ms Y who took him to Suburb DD train station to meet up with the mother at 3:20pm. The mother arrived at 5pm. There was then agreement reached between the parties that X would stay overnight with the mother.
The mother then took X to see a relative who lives in Suburb EE. While there, the mother was invited by the relative to stay in a spare bedroom, an offer she took up immediately. The mother’s evidence is that X was ‘sad and upset’ and that he asked her if she was his real mum, and whether he could stay with her. The mother decided, it appears there and then, that she was going to live with X at her relative’s home in Suburb EE, without discussing this with the father, although it seems that she did tell the father later that night about her decision. The father did not agree to X moving from his home to live with the mother.
At around 8:30pm or 9pm on the Monday night, the mother went to the father’s home with X to pick up things that X would need for school the following day. X then stayed overnight with the mother at the home of the mother’s relative in Suburb EE.
In mid-2022, X had been booked in to see a doctor. It was an appointment the father had made, and was to follow up with the school’s concerns. X was picked up from school early by Ms Y that afternoon to be taken to the appointment. A referral was obtained for X to see Dr D, and he was referred for ‘opinion and management’ as the school had raised concerns ‘about his behaviour and poor learning suspecting ADHD’.[13]
[13] Exhibit 1.
It seems that there was no communication between the parents about X going to see the GP that day.
On Tuesday afternoon, the mother attended X’s school to pick him up, but Ms Y had already picked him up to take him to the previously arranged medical appointment. The mother then went to the father’s home to take X. When she arrived, Ms Y objected to X being taken by the mother. Ms Y telephoned the father, and the parties spoke. On the mother’s own evidence the father said to the mother in a phone call ‘I am at work and you are not allowed to take [X]’. Despite the father’s clear objection, the mother removed X from the father’s home, saying that she would drop him off on the weekend. The next time X got to spend time with the father was a fortnight later.
In mid-2022, a school counsellor report concerning X was written by Ms CC, a provisional psychologist, and Ms FF, the registered psychologist from X’s school. It raised the same issues as the referral provided earlier in mid-2022.
In mid-2022, the mother, the father, and Ms Y attended a meeting at X’s school, with the principal and deputy principal. The father sent the mother a text confirming that the parties had agreed as follows:
(a)That X would not be removed from J School, and that he would complete his schooling to year 6 at the school;
(b)That the mother would find accommodation and work locally so that X would continue with his schooling uninterrupted, and so he was not travelling so far each day;
(c)That X would continue his after school routine at after school care on Monday and Thursday, as he benefited greatly from the social interaction; and
(d)That the mother would provide her identification documents, and her residential address to the school so she could pick X up from school of an afternoon.
The father further said in the text message:
In the best interests for [X] please do not remove him from [J School] nor change his days at after school care.
The mother replied with:
Im not really understand what you are writing, I need translater because its too long [smiling emoji][14]
[14] Errors in original.
A later email from the school to the father confirmed the outcome of the meeting.[15]
[15] Email dated early 2023, part of Exhibit 4.
From mid-2022, the mother stayed with X at a relative’s place for a few days possibly weeks, then stayed with some friends in Suburb GG. It is not entirely clear on her evidence exactly where she and X lived between mid-2022 and late 2022.
In late 2022, the mother completed an enrolment form for X to attend HH School. In cross-examination she said that this was a mistake as she did not have rental accommodation at the time. The Court does not accept that it was a mistake. The mother had intended to change the child’s school at that time, and indeed did do so. She did not speak to the father prior to enrolling X in HH School. The mother was well aware that the father did not agree to X changing schools, given the discussions the parties had at the meeting at X’s school in mid-2022. She conceded as much in her oral evidence.
The mother in her evidence says that, after she returned from Country W, she spoke to a teacher at J School who knew about X’s learning difficulties and that X will have to redo year 1. The mother said that she thought X would be upset, uncomfortable, and possibly ashamed having to repeat a year and she therefore decided to move X to a school close to where she lived. The mother said that when she enrolled X in HH School she gave them documents including the Court Orders, and that she had told the father about the move when the principal at J School was looking at X’s report. The Court does not accept the mother’s evidence about these matters and refers to its findings elsewhere in these reasons.
X spent time with the father from late 2022 until early 2023, after the mother requested this due to her work commitments. In early 2023, the mother rang the father asking for money for her to get to work and top up her phone, which the father the organised to be sent.
In early 2023, the mother moved into rental accommodation in Suburb JJ. This was a unit. It was privately obtained accommodation and not through an agency. The mother did not tell the father where she had moved to, nor where X was to be living.
The father contacted the mother in early 2023, to query about X’s first day of school. This was when the father learnt that the mother had changed X’s school. The mother advised the father:
[X] is not going to [J School] anymore. I moved him to a better school closer to where we moved.
In early 2023, Ms Y visited J School and had a meeting with the principal to find out which school the mother had enrolled X in. Ms Y was told that HH School had requested X’s records, and that same day Ms Y contacted HH School and informed them of the Court Orders. The father says that HH School were not aware that there were orders when the mother enrolled X.
In early 2023, the father received an email from the principal of J School confirming that X is attending HH School as he had been ‘moved over the holiday break’.
Despite X completing year 1 at J School in 2023, and despite there being no recommendation by J School that X repeat year 1, the mother enrolled X to start in year 1 in 2023 at HH School.
Shortly after, the father decided to contact ‘child protection’. Ms Y contacted them as he was at work, and the officer she spoke to recommended contacting the Police. Ms Y then called the Police to check on the child’s welfare, and the Police attended the father’s residence and spoke to Ms Y who provided details since the mother’s return to Australia. The Police advised Ms Y that they will organise a check on X.
On 7 February 2023, the father filed his Initiating Application in which he also sought interim orders for X to go back to J School.
In early 2023, the J School principal emailed the father, confirming that the school had not considered repeating X, and that had he remained at the school he would have gone into year 2 in 2023.
On 22 March 2023, the Court made interim orders for X to be re-enrolled and attend J School from early 2023 and, to facilitate X’s attendance at school, the father was to attend to X each morning and afternoon in taking him to and from school and the mother’s home. The changeover with the mother was arranged by the parties on an ad-hoc basis, as requested by the mother.
In early 2023, the mother messaged the father that X had been re-enrolled in J School and that the teacher from HH School recommended he redo year 1. The father replied that the principal at J School had arranged a meeting to discuss this on the following Monday.
The father attended the school meeting in early 2023 with the principal of J School to discuss whether X was to redo year 1. The mother did not attend, did not reply when the father attempted to contact her, and the meeting was subsequently postponed to the next day. It is unclear on the evidence whether such a meeting then took place, and how and when it was decided that X remain in year 1 rather than go into year 2.
In early 2023, when the father was collecting X for school, the mother asked for the drop-off and pick-up location to be at HH School, to which the father agreed. In early 2023, while he was driving to collect X from the mother, she changed the pick-up and drop-off location to her house as it was raining.
In or about late 2023, the mother was given notice that her landlord wanted to do some renovations on the Suburb JJ property, and she then decided to move out, despite not having secured other accommodation for herself and X.
In late 2023, the mother moved into a women’s refuge in Suburb KK and she told the father that same day that she had moved into the refuge.
In late 2023, the mother changed the pick-up and drop-off times and locations to be at Suburb KK Station for the purposes of X being taken to and from school by the father.
In late 2023, the mother received her single parent pension.
In early 2024, the father had an appointment with X’s doctor to obtain some medical tests and an open referral for X to be assessed by a paediatrician. The father emailed the medical tests and referral to the mother the following day. It appears the mother did not follow up.
The father says that in early 2024, following the release of the Family Report, X told him that he was smiling because the mother had said to him that he will be living with the father.
In early 2024 the mother was referred into a program at P Centre in Suburb LL, and according to her, P Centre assisted her in many ways including finding accommodation. P Centre is a non-for-profit organisation that delivers a range of services for women and children who are experiencing or at risk of homelessness and/or domestic and family violence.[16]
[16] Exhibit 8.
In early 2024, the mother moved into a two-bedroom apartment with X in Suburb MM, being social housing.
In early 2024, the mother messaged the father around 4:38pm about X taking sports lessons Monday afternoons, that she will collect X from aftercare, and for the father to pick-up X on Tuesday. The father replied and indicated that the mother should not have booked something for X without talking to him first, and confirming that X would spend half school holidays with him. In her oral evidence the mother said that she had asked X to tell his father that he has sports lessons and to ask him to take him. The mother explained that because X had previously been enrolled in sports lessons, she did not think this would be a problem, and that X had really wanted to go.
In early 2024, the mother notified the father that she and X were moving to Suburb MM. She asked the father to collect X from NN Train Station for school pick-up and drop-off. The father agreed, but the mother then changed the location to her place later that day.
In mid-2024, the mother completed a course called ‘Turning Into Kids’, and at the time of the swearing of her affidavit she was ‘also doing a further course called “Parenting After Separation”’.
In mid-2024, as the father was sick, he arranged with the mother for Ms Y to pick-up and drop-off the child the next day. The next day the father said that he messaged the mother that Ms Y was late, that the mother asked for Ms Y’s number which the father provided, and that the mother asked for Ms Y’s driver’s license saying she did not know anything about Ms Y. The mother was reluctant to let Ms Y pick-up the child. X was late for school that day. In her oral evidence the mother explained that the reason she asked for the driver’s licence was to ensure that Ms Y did have one!
Following the release of the Family Report, on 29 February 2024, the mother obtained a referral for X to see a paediatrician. She did not tell the father about the referral. X was seen by the paediatrician in early 2024, together with the mother. The father was not invited to attend. The paediatrician recorded X’s moves between households and his changes in schools.
A report dated 21 March 2024 was sent by the paediatrician, Dr M, to the referring GP.[17] According that report:
(a)The mother had a difficult antenatal period with a lot of stress related to domestic violence from X’s biological father; and
(b)X said during the review that he feels sad when his father says, ‘My biggest enemy is your mum’.
Neither of these two matters were explored with the parents nor the family report writer in cross-examination. The mother does not make any allegations of family violence in her affidavit.
[17] Exhibit 6.
The report also noted that:
(a)X easily gets angry and annoyed at times, that when he is angry he hits the mother, and sometimes he does not follow her instructions and argues with her; and
(b)X has meltdowns almost daily.
These matters were not explored with the mother in cross-examination.
Dr M concluded that:
[X] has… experienced several potentially traumatic Adverse Childhood Experiences (ACEs). ACEs are also linked to problems, including mental health issues, behavioural dysregulation and substance misuse in adulthood. However, these complications can be prevented by minimising Adverse Childhood Experiences. Therefore it is crucial to prevent further traumatic experiences to improve [X]’s behavioural difficulties. He will benefit from stable, safe, nurturing relationships and environments to live, learn and play.
A short report, dated 20 March 2024, by Dr M was prepared for X’s school. It appears, however, that the mother did not know about it at the time, as in early 2024 she emailed the paediatrician asking for a referral letter for X’s school.
The father is currently not in paid employment due to an injury. He continues to live with Ms Y and Z in the same home he has lived in for years, and where X lived with him.
The mother presently lives with X in social housing in Suburb MM. The mother works two jobs on a shift basis. The mother asserts that she has a long-term lease for the property of ten years or more, however, this is not supported by documents she relies upon, which show only a six-month lease and that after six months, the agreement becomes ‘an ongoing period agreement’.[18]
[18] Exhibit 10.
In 2024, X has been late to school on a number of occasions, all of which are unexplained. He has also had some absences. His school achievements at the end of semester 1 in 2024 in literacy and numeracy remain at basic, limited, and sound levels, as they have been throughout his schooling years. He is receiving additional one-on-one support for reading and participates in a small group for mathematics. He is said to be a friendly and happy member of class.
EXPERT EVIDENCE: FAMILY REPORT DATED 19 FEBRUARY 2024
The Family Report dated 19 February 2024 was prepared by Ms B. In the report, Ms B set out the parties’ proposals and identified the issues in dispute as being where X would live and each parent’s capacity to support X’s relationship with the other parent. Ms B also identified two further issues during her assessment: how X may have been affected by the changes in care arrangements, moves, changes of school, and his parents’ ongoing conflict; and each parent’s capacity to support X’s learning, health, and emotional, and X’s need for stability and routine.
In her observations of the father, Ms B described his presentation as ‘calm, friendly, and family focused.’ She stated that the father spoke of the mother in mainly neutral language, but that he expressed concern regarding her mental health and the effect the mother’s transience may on X, and that the father expressed disappointment over his difficulties in communicating with the mother.
In her observation of the mother, Ms B stated that the mother spoke good conversational English and presented as polite and softly spoken. Ms B also noted that, during the conversation, the mother became emotional and teary on several occasions and then started speaking rapidly in a high-pitch voice. While the mother spoke very positively of X, Ms B noted that the mother spoke about the father in a negative manner and took the view that the father ‘wasn’t a good guy at all’. When Ms B asked the mother to clarify, the mother stated that she had experienced family and domestic violence in the relationship. Further to this, when Ms B asked how this related to the mother leaving X in the care of the father for twenty-one months, the mother stated that X was on the Watchlist, that she was not able to bring X to Country W, and had thus decided to leave X in the care of the father.
Having set out and considered the perspectives of the parents and her observations, Ms B explained her evaluation. In respect of the father, she found that the father and Ms Y are supportive of X’s emotional needs, and that they could provide a stable home base for him. In relation to the mother, Ms B said that although the mother presented as protective of X and clearly wishing the best or him, it was likely that the mother struggled to separate her own feelings from those of X. Ms B stated that the mother did not demonstrate an understanding of X’s attachment needs and that from the mother’s responses it appeared she downplayed X’s relationship with the father, Ms Y, and Z. Ms B also saw a risk being that, if X lived with the mother, that X would continue to be exposed to the ‘instability of insecure housing situations.’
Ms B commented that sole parental responsibility to the parent of X’s main residence may be necessary to ameliorate parental conflict, unless orders can specify the main issues in dispute so that the parents can consult on any further issues in the future.
Ms B recommended the following:
(a)That the Court determine parental responsibility;
(b)That X live with the father;
(c)That X spend time with the mother three nights per fortnight during school terms and half school holidays. Ms B explained that she saw this as consisting of weekends where the mother would collect X from school on a Friday and drop him back to school on the Monday morning, and that X’s time with the mother may be increased if she moves closer to Suburb DD;
(d)That the parents could benefit from completing the course ‘Tuning into kids’ and ‘Parenting After Separation – Focus on Kids’;
(e)That the mother obtains a mental health plan and a referral to individual counselling;
(f)That X sees a paediatrician in the area of his main residence with a view to undertake an ADHD assessment; and
(g)That the parents seek a mental health plan for X and a referral to a counsellor in the area of his main residence.
Ms B explained in her oral evidence that in coming to the conclusion that X should live with the father, her main concern was the mother’s lack of understanding as to X’s emotional and developmental needs, borne out by the changes to his living arrangements and schooling. The expert was concerned that history is often an indicator of future behaviours, and given the mother’s lack of insight into the effects on X to date on the changes to his living and schooling arrangements, Ms B was of the opinion that there was nothing to suggest that the mother would change or that there was any insight into those issues.
Ms B was also concerned that the mother had very strong plans of not considering living in the same area as the father, and the school which X has been attending. The expert indicated that the mother was unable to prioritise X’s needs, that it was about understanding his needs and that he is really set in one area, and that the mother did not even consider at least trying to accommodate that.
Ms B was concerned that, when the mother returned from Country W, X went to live with her more or less instantly. She explained that at the time that X reportedly said to his mother that he wanted to stay with her, that he did not have the capacity to understand the concept of ‘staying’. The expert opined that if this conversation took place, that X was really saying ‘yes I want to stay with you for the night and yes I want to spend more time with you’ but nothing more. X was 6 years old at the time, in the expert’s view he could not possibly have the comprehension or the implications in the future of days, or weeks, or a year. The expert was concerned that the mother did not understand this.
It was put to Ms B by the mother’s counsel, that the mother had stable accommodation when she was living in the refuge in Suburb KK in 2023, which the expert disagreed with. She said that living in a refuge does not constitute stable housing.
Ms B confirmed that for X, travelling to and from school each day, as is presently occurring, was tiring.
It was put to Ms B that another change to X’s living arrangements would be traumatic, given the changes to date, which Ms B disagreed with. She said it would be less traumatic because he would be living in the same house with the same people he has lived with, that he would be going to the same school and staying in the same room he has lived in, and that there is consistency to that.
Ms B was not moved from her recommendations following cross-examination.
DETERMINATION
Best Interest Considerations
Section 60CC(2)(a): What arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of the child and each person who has care of the child
Neither party raises the issue of risk to the child of family violence, although to the Family Report writer both parties alleged family and domestic violence.
The father raises concerns about the mother’s capacity to care for X, and has raised some concerns about her capacity to ensure his safety, for example by not wearing an appropriate seat belt or being too close to a road unsupervised, and also about the mother being able to properly feed and clothe X. Such concerns while raised in the father’s evidence, do not rise to a level of findings by this Court in respect of X being physically unsafe in the mother’s care.
X is however at risk of not having his emotional needs met by the mother, as explained elsewhere in these reasons.
Section 60CC(2)(b): Any views expressed by the child
X spoke positively about both of his parents to the Family Report writer. X indicated that he wishes to ‘keep both of them’ and that he wishes to spend time with his parents on a ‘half half’ basis, adding that he preferred ‘long halfs’ with each parent.
Ms B was of the view that it was important to balance X’s wishes with his needs of stability, along with the capacity of each parent to provide this. The expert said that X values both his parents, and his views demonstrate an age-appropriate understanding of fairness. Ms B also opined that X may feel a sense of responsibility towards the feelings of others as he is aware that especially his mother and Z are missing him when he is with the other parent.
Section 60CC(2)(c): Developmental, psychological, emotional and cultural needs of the child
The mother is of Country W heritage.
The father’s heritage is unknown. Ms Y is of Country OO background.
Except for a brief period at the start of 2023, X has been attending J School. Language W is taught at X’s school.
Due to the 2020 Orders, X travels from Region PP, Sydney where he lives with the mother, to Region QQ, Sydney to attend school each day, and then back again of an afternoon. The father will pick him up in the morning from an agreed place close to the mother’s home as nominated by her, take him to school, then in the afternoon pick him up from school and deliver him back to the mother.
At the time of the family report interviews, X found his daily commute ‘boring’ and it appears, tedious.
Section 60CC(2)(d): Capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs
X has a close emotional bond with the father, Ms Y, and Z. Ms B is of the opinion that the father appears to understand X’s emotional needs and need for stability, a conclusion that the Court also makes, after hearing from both parties.
Prior to travelling to Country W, the mother and X lived in a rental unit in Suburb BB. X then lived with the father while the mother was overseas for a month. Within two days of her return, and without any proper or adequate discussions with the father, or thought about how this might impact X, the mother took X to live with her in temporary accommodation with a relative in Suburb EE, for some days or weeks. She then stayed with some friends in Suburb GG, and then moved with X to rental accommodation in Suburb JJ, where they lived from early 2023 until she was given notice in late 2023. X and the mother then lived in a refuge in Suburb KK until early 2024, when the mother secured social housing in Suburb MM. She says she now has a ten-year lease, although the documents tendered in her case do not support this. At best, she has been told that she will have a ten-year lease.
X has had a great deal of upheaval in his short life. The mother takes the view that he has and will easily cope and adapt to change which her living circumstances have brought about in the past, and which she seeks to bring about for X in the future by proposing a change of school. She has displayed little insight into X’s needs, and what such changes have meant for him.
While the mother might have been doing as best as she could upon her return from Country W to Australia, and it took her some time to find stable accommodation, the fact that she did not consider it better for X to remain living with his father in a stable environment and where he had lived for almost two years previously is very concerning. It shows a significant lack of insight into the child’s needs. The mother’s unilateral decision, in the face of the father’s specific disagreement, to change X’s school in 2023 is further evidence of such lack of insight.
To put it bluntly, the mother decided to remove X from the father’s home without warning and after the child had been securely living there for twenty-one months (after what must have been a difficult period for him with her remaining in Country W). She then moved to three different homes and caused X to have a change of school, all within less than five months, and all because of the mother’s transiency. X then had another change of school and two more changes of residence. This was all done despite X having the opportunity of a stable home and school environment with the father. Extraordinary.
The Court echoes the expert’s conclusion that the mother has not demonstrated an understanding of X’s attachment needs. The mother struggles to separate her own feelings from those of X. This poses risks for X as identified in the Family Report.
Furthermore, the mother appears to be an impulsive decision maker, which may put X at future risk of significant change in terms of his living arrangements and what school he attends.
While X is a child who generally has a happy disposition, he is struggling with his behaviour at school, his learning, and has been assessed for ADHD.
As indicated by Dr M, X will benefit from stable, safe, nurturing relationships and environments to live, learn and play. It is the father who, in the Court’s assessment, is the more likely of the two parents who will be able to provide such stability for X.
Section 60CC(2)(e): Benefit to the child of being able to have a relationship with child’s parents, and other persons who are significant to the child, where it is safe to do so
X has close and loving relationships with both of his parents, with Ms Y and his half-brothers AA and Z. He enjoys playing with his half-brothers and the family dog at the father’s home. He calls the mother ‘mummy’ and Ms Y ‘mama’.
When X is spending time with the father, he enjoys spending time with his half-brothers, the extended paternal family including at the paternal grandmother’s property, Ms Y’s extended family, and outings with the father and his family.
X enjoys spending time with the mother, and he no doubt adores her.
Section 60CC(2)(f): Anything else that is relevant to the particular circumstances of the child
Each of the parents has something different to offer X, in the mother’s home it is likely more one-to-one time, and in the father’s home, it is the benefit of a busy household with half-siblings.
Changed Circumstances
Since the making of the 2020 Orders, X has had a significant number of changes to his circumstances. He lived with his father for a period of twenty-one months while the mother was in Country W, and thereafter upon her return he has lived in five different households with the mother. He has changed schools twice, and the mother wants him to change schools again. He has had to travel significant distances to school each day. He has been assessed for ADHD and requires ongoing assistance at school.
Even if s 65DAAA of the Act falls short of the requirement in Rice & Asplund, that the Court must first make a finding that there has been a changed circumstances before it engages in revisiting final parenting orders, in this instance the Court is satisfied that there are significantly changed circumstances and that the best interests considerations warrant the reconsideration of the 2020 Orders.
CONCLUSION
Living and Spend Time with Arrangements for the Child
It is in X’s best interest that he live with the father. This will provide X with stability and consistency. He has spent considerable time in the father’s home, he is very closely bonded with the father and other members of the father’s household. The father has gone to great lengths to ensure that X has consistency in his schooling.
X will have the benefit of spending alternate weekends with the mother, and half school holidays, ensuring an ongoing relationship with her. This is in line with the recommendations in the Family Report.
However, X at present sees his mother every day, except for each alternate weekend. He has a close and loving relationship with her, and will no doubt miss her if he does not have the opportunity of spending more time with her. It is, therefore, in his best interest that he spend more than three nights per fortnight with her during school term.
However, this has to be balanced against the requirement for him to travel to and from school each day, noting the distance between the parties’ homes, and the tediousness which X has experienced in having to travel such distances each day to and from school. In these circumstances, X will benefit from spending an additional overnight with the mother in the ‘off week’, such that the need for travel is reduced but the time with his mother is increased.
The parties will have the opportunity to agree to X spending additional time with the mother. The Court is not concerned that if the mother moves closer to where the father and X live, that the father would not facilitate additional time between X and the mother.
The balance of the orders the Court makes are self-explanatory noting the issues raised in these proceedings.
Parental Responsibility
Notwithstanding the 2020 Orders for the parents to have equal shared parental responsibility, the mother has on a number of occasions made unilateral decisions, and in the face of express disagreement by the father.
The conflict between the parties manifests itself in a lack of joint decision-making, and continued indecision in respect of follow-ups with obtaining support for X in light of the concerns that he has ADHD.
In all of the circumstances, it is in X’s best interest that the father has the benefit of an order for sole decision-making in respect of long-term issues for X. This will ensure consistency and ensure that X’s needs are met in the long term.
The Court so orders.
I certify that the preceding one hundred and fifty-five (155) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 23 October 2024
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