Weiss & Haddon
[2022] FedCFamC2F 1678
Federal Circuit and Family Court of Australia
(DIVISION 2)
Weiss & Haddon [2022] FedCFamC2F 1678
File number(s): DUC 29 of 2020 Judgment of: JUDGE OBRADOVIC Date of judgment: 7 December 2022 Catchwords: FAMILY LAW – Final Parenting –– assessment of risk – best interest of children – parental responsibility – father’s lack of insight – allegations of family violence – relocation – mother to have sole parental responsibility – mother permitted to relocate children’s residences – children to spend time with father supervised initially – progression to unsupervised time – issue of passport without father’s consent – international travel – injunction against father as to non-denigration. Legislation: Family Law Act 1975 (Cth), ss. 60B, 60CA, 60CC, 61DA, 65DAA, 68B, 102NA. Cases cited: A & A: Relocation Approach [2000] FamCA 751
Banks & Banks [2015] FamCAFC 36
Bonnor & Loverdos [2021] FamCAFC 93
CDJ v VAJ [1998] HCA 67
Dieter & Dieter [2011] FamCAFC 82
Franklyn & Franklyn [2021] FamCAFC 112
Hakimi & Nasser (No.2) [2021] FamCAFC 88
Heaton v Heaton [2012] FamCAFC 139
Isles v Nelissen [2022] FedCFamC1A 97
Malcolm & Munro [2011] FamCAFC 16
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR v GR [2010] HCA 4
Sayer & Radcliffe and Anor [2012] FamCAFC 209
Slater & Light [2011] FamCAFC 1
U v U [2002] HCA 36; KB & TC [2005] FamCA 458Division: Division 2 Family Law Number of paragraphs: 98 Date of hearing: 21 and 22 November 2022 Place: Dubbo Appearing for the Applicant: In person Appearing for the Respondent: In person Appearing for the Independent Children’s Lawyer: Ms Webb of Counsel Solicitor for the Independent Children’s Lawyer: Osborne Legal ORDERS
DUC 29 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS WEISS
Applicant
AND: MR HADDON
Respondent
AND: INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE OBRADOVIC
DATE OF ORDER:
7 December 2022
THE COURT ORDERS THAT:
1.All prior parenting Orders are discharged.
2.The mother, Ms Weiss, shall have sole parental responsibility for the children X born in 2014 and Y born in 2016 (“the children”).
3.The children shall live with the mother.
4.The mother is permitted to relocate the residence of the children to City B, New South Wales.
5.Until the mother relocates the children’s residence to City B, the children shall spend time with the father:
(a)Supervised at an agreed and appropriately suitable contact service in City C, but failing agreement, D Contact Centre City C, for a period of two (2) hours each alternate weekend at times that can be facilitated by the contact service, with the father to bear the cost of such supervision;
(b)By telephone/video call each Wednesday between 5pm and 6pm with the father to initiate the call to the children’s iPad and the mother to ensure that the children have access to their iPad during this period; and
(c)For the purpose of Order 5(a) and within seven (7) days from the date of these Orders, the parties shall do all acts and things to contact an appropriately suitable contact service in City C or D Contact Centre City C to commence the intake process.
6.Until Y turns 7 years of age and once the mother relocates the children’s residence to City B, the children shall spend time with the father:
(a)Supervised by D Contact Centre City B or other contact service nominated by the mother for a period of two (2) hours each alternate weekend at times that can be facilitated by D Contact Centre City B or other contact service, with the father to bear the cost of such supervision;
(b)By telephone/video call each Wednesday between 5pm and 6pm with the father to initiate the call to the children’s iPad and the mother is to ensure that the children have access to their iPad during this period; and
(c)For the purpose of Order 6(a) and within three (3) months from the date of these Orders, the parties shall do all acts and things to contact D Contact Centre City B or other contact service to commence the intake process.
7.Commencing after Y turns 7 years of age, the children shall spend time and communicate with the father as follows:
(a)During school terms:
(i)On the 3rd and 7th weekend of the school term from 10am Saturday to 6pm Sunday with such time to occur within the City B region, or otherwise within 50km of the children’s residence.
(b)During the term one, two and three school holidays:
(i)On the middle weekend of the school holiday period from 10am Friday to 2pm Monday.
(c)During the term four school holidays:
(i)At Christmas:
A.In odd years (commencing 2023) and each alternate year thereafter from 12pm on Christmas Eve to 12pm on Boxing Day.
B.In even years (commencing 2024) and each alternate year thereafter from 12pm on Boxing Day to 12pm 27 December.
(ii)On the 2nd weekend of January each year from 10am Friday to 2pm Monday.
(d)By telephone/video call each Wednesday between 5pm and 6pm with the father to initiate the call to the children’s iPad and the mother is to ensure that the children have access to their iPad during this period;
8.Unless otherwise agreed, changeover shall occur as follows:
(a)During such times that the children spend in accordance with Order 7(a), at the McDonald’s closest to the residence of the mother at the commencement and conclusion of the children’s time with the father; and
(b)During such times that the children spend in accordance with Order 7(b) and (c), at the McDonald’s on E Street, City F with the parties (or their nominated agents) to meet at the commencement and conclusion of the children’s time with the father.
9.Within fourteen (14) days of the children’s relocation to City B with the mother, the mother shall advise the father in writing of the address of the McDonald’s referred to in Order 8(a).
10.Notwithstanding any other order, the children shall not spend time with the father on the weekend that includes Mother’s Day, but in substitution the children will spend time with the father on the following weekend.
11.Within fourteen (14) days of the children’s subsequent enrolment at any school, the mother shall do all acts and things, and give all irrevocable authorities necessary to ensure that the school forward directly to the father copies of each child’s school reports and any written material pertaining to each child's academic and extra-curricular activities.
12.Pursuant to s.68B of the Family Law Act 1975 (Cth), the father, his servants and agents are hereby restrained by injunction from:
(a)Abusing, insulting, belittling, rebuking, or otherwise denigrating the mother;
(b)Denigrating the mother or a member of her household in the presence or hearing of the children, and from permitting any other person from doing so;
(c)Discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of the children, and from permitting any other person from doing so; and
(d)Exposing the children to domestic or family violence.
13.All communication between the parents shall be strictly in respect to the parenting and welfare of the children and shall be by text message, save for in an emergency, where they shall communicate via telephone call.
14.Each party is to notify the other in writing of any changes to contact and residential details within twenty-four (24) hours of such change occurring.
15.Each party is to notify the other if the children are seriously injured or require hospitalisation.
16.Within twenty-eight (28) days of the date of these Orders, the father shall enrol in the G Program and H Programs operated by D Contact Centre City C and shall do all things necessary to complete the courses within 12 months of the date of these Orders and on completion will provide a copy of his completion Certificates to the mother.
17.X born in 2014 and Y born in 2016 are permitted to travel internationally, without the need for the consent of the father to be provided to the issue of a passport to X born in 2014 and Y born in 2016. The mother shall be the only person with ‘parental responsibility’ of the children X born in 2014 and Y born in 2016 for the purposes of applying for, and being issued with, an Australian passport for X born in 2014 and Y born in 2016.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Weiss & Haddon has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Obradovic:
These are final parenting proceedings in respect of the parties’ two children, X who was born in 2014 and Y who was born in 2016.
The children have been living with the mother since the parties’ separation in 2018. There are very serious allegations of violence made by the mother against the father. The mother wishes to relocate with the children from City C to City B.
The father opposes the relocation of the children’s residence. Instead, he seeks an order that the children live with him and spend time with the mother, and alleges that the children are at risk in the mother’s home due to the presence and involvement in the children’s lives of the mother’s oldest son. Alternatively, he moves the Court for orders that the children live with each of the parents on a week about basis.
The parties each appeared unrepresented at the final hearing. Given the application of s.102NA of the Family Law Act 1975 (Cth) (“the Act”) neither party cross-examined the other, however they were each cross-examined by the Independent Children’s Lawyer (“ICL”). The mother’s current husband, Mr J (“Mr J”) was cross-examined by the father and the ICL, and Ms K, the author of the Family Report dated 16 April 2021, also gave evidence and was cross-examined.
The mother was an impressive and insightful witness. The father not so.
For reasons which follow, the Court has determined that it is in the children’s best interest that the mother have sole parental responsibility, that the mother be permitted to relocate the children’s residence to City B and that there be relatively short and limited periods of time the children spend with the father.
Legal Principles
The central enquiry is for the Court to determine the outcome that will be best for the children the subject of these proceedings.
Parenting proceedings are governed by the provisions of Part VII of the Act. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
In determining what is in a child’s best interests, the Court must consider the matters set out in s.60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the child. The Act does not mandate the discussion of considerations under s.60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[1]
[1] Slater & Light [2011] FamCAFC 1 at [45]
In applying the primary considerations, the Court is to give greater weight to the need to protect children from harm than to the benefit to the child of having a meaningful relationship with both of their parents.
A meaningful relationship “is one which is important, significant and valuable to the child”[2] The focus is not on the relationship as such, but on the benefit the relationship might have for the child.[3]
[2] Mazorski & Albright [2007] FamCA 520 at [26] cited with approval by the Full Court in McCall & Clark [2009] FamCAFC 92 (“McCall”)
[3] McCall at [122]
The assessment of risk is an evidence-based conclusion. The finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not. It is only the overall judgment, expressed in the form of orders made in the children’s best interests, which entails an exercise of discretion. That discretionary judgment is influenced by the various material considerations enumerated within s 60CC of the Act, of which the evidence-based finding made about the existence of any unacceptable risk of harm is but one.[4]
[4] Isles v Nelissen [2022] FedCFamC1A 97 at [85]
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of s.65DAA which provide for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[5]
[5] MRR v GR [2010] HCA 4 at [15]
While all relevant primary and secondary considerations have been considered, not each of the considerations has been discussed in the reasons. The reason for this is that consideration does not mean discussion.[6]
[6] Banks & Banks [2015] FamCAFC 36
Decisions in respect of children’s best interests and decisions in parenting proceedings are discretionary, with such discretion to be exercised within the legislative framework. It is apposite to be reminded of what the High Court has said in respect of the Court’s discretion in this regard, that is parenting cases “necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof”.[7]
[7] CDJ v VAJ [1998] HCA 67 (“CDJ”) at [151] per McHugh, Gummow and Callinan JJ
The application of the statutory provisions in the context of relocation cases has been discussed by many authorities.[8]
[8] see for example A & A: Relocation Approach [2000] FamCA 751; U v U [2002] HCA 36; KB & TC [2005] FamCA 458; Malcolm & Munro [2011] FamCAFC 16; Dieter & Dieter [2011] FamCAFC 82; Bonnor & Loverdos [2021] FamCAFC 93
In Sayer & Radcliffe and Anor[9] the Full Court discussed the approach to be taken when a parent is seeking to relocate as follows:
It is now well established principle that whilst some special requirements may apply, relocation cases are guided and judicial officers are bound by the same legislative pathways as other parenting cases under the Act. In other words relocation is not to be treated as a discrete issue in the making of parenting orders ... A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider the competing proposals of both parents … It is not simply a matter of comparing the relocating party’s proposal against the status quo and allowing or denying relocation. Rather the Court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway.
(references omitted)
[9] [2012] FamCAFC 209 at [47]
In Heaton v Heaton[10], the Court held that what is required in relocation cases is for the Court to determine the children’s best interests by reference to the well-known “primary” and “additional” factors referred to in s.60CC in light of the competing proposals of the parents.[11]
[10] [2012] FamCAFC 139 at [32]
[11] cited with approval in Boyle & Zahur and Anor (No.2) [2017] FamCAFC 263 at [34]
As the Full Court recently held in Hakimi & Nasser (No.2)[12]:
20. …It is well established that the proposed relocation of children to a geographically distant place should be considered as just one of the proposals for the children’s future living arrangements, rather than as a discrete issue (Taylor and Barker [2007] FamCA 1236; (2007) FLC 93-345 at 81,912).
21. The mother’s desire to relocate overseas with the children was but one factor which would influence the primary judge’s determination about proper parenting orders for the children. While the mother did not lose her right to enjoy a high measure of freedom of movement merely because of her parental responsibility for the children (AMS v AIF (1999) 199 CLR 160 at 196, 206–208 and 210), her desire to relocate potentially conflicted with the children’s interest to know and have regular contact with the father. The mother’s position at trial was that she would not leave Australia without the children (at [197]), so her right to the freedom of mobility had to yield if their interests, being the paramount consideration, would be harmed by the international relocation (U v U [2002] HCA 36; (2002) 211 CLR 238 at 262). It is well recognised that, other than in instances of abusive relationships, children benefit from the development of good relationships with both parents (U v U at 285–286; M v M(1988) 166 CLR 69 at 76 and 78).
22. Section 60CC of the Act prescribes the mandatory considerations which must be factored into the overall decision as to how the children’s best interests will be served. More specifically for present purposes, s 60CC(3)(j) of the Act required the primary judge to consider the occurrence of any family violence involving the children or any family member as a pertinent factor in formulating the orders which would promote the children’s best interests.
[12] [2021] FamCAFC 88 (“Hakimi”) at [20] – [22]
In Franklyn & Franklyn[13], Austin J, sitting as a single judge of the Full Court of the then Family Court of Australia, noted after referring to Hakimi, that “[w]hile this was not a case in which the children’s international relocation was at stake, the situation of the parties wanting to live a long way apart is still analogous” – and so it is in the present circumstances.
[13] [2021] FamCAFC 112
Factual Findings
The father was born in 1976. He is presently 46 years old.
The mother was born in 1976. She is presently 46 years old.
The mother’s husband, Mr J was born in 1980. He is presently 41 years old.
The mother has a child from a previous relationship, Mr L (“Mr L”), who was born in 1994.
The parties met in about 2013, and commenced their relationship. At the time, the parties were living in City B. The parties commenced cohabitation in about May 2013, and there was a short separation in about June 2013.
In about August/September 2014 following an argument between the parties, the mother called the police but later withdrew her complaint. Shortly after, in about September 2014, the mother left the relationship and spent a night at a motel secured through the Department of Housing. Following a further argument between the parties that same month, the maternal grandmother and aunt telephoned the police to assist the mother.
The parties’ first child, X was born in 2014.
In December 2014, the parties again separated for a short period of time.
The father alleges that in or about Christmas/New Year’s Eve in 2014, Mr L drove erratically, slammed on the brakes and yelled and swore at the father. The father says that Mr L tried to punch him, so he tackled him to the ground. On 1 January 2015, the father called City F police to report that the mother was driving erratically with X in the car.
On 9 January 2015, the father was charged with common assault regarding an incident involving Mr L.
In about July 2015, the mother planned a trip to the United Kingdom with X. The father applied for the child’s name to be placed on the Airport Watch List, and consequently the mother had to apply to the Court for permission to travel with the child. Such order was made.
In about early October 2015, there was a further incident between Mr L and the father. The mother says that the father during an argument regarding this incident said words to the effect of “I want to kill him and chop him [Mr L] up in little pieces”. When cross-examined about whether he said such a statement, the father said “No…that would be a chore”. In any event, the police were called and an ADVO was made for the protection of the mother. The father then left the parties’ home and stayed with a family member. At some point, the father returned to the parties’ home.
After an argument with the mother in or about early January 2016, the father moved out of the parties’ home. The father borrowed the mother’s vehicle to move some belongings and instead of returning the vehicle as agreed, the father not only kept the vehicle but also removed all funds from the parties’ bank account. As a result, the mother sought financial assistance from the M Centre in order to provide for their child.
On or about 2 January 2016, the father was involved in another altercation with Mr L. The father is named as a victim in the police material, however no charges were laid in respect of this incident.
On about 20 March 2016, the father left a number of voicemails for the mother berating her for not completing a task he had asked her to do. One of the voicemails[14] he left was as follows:
What is the go with you [Ms Weiss]? You can bloody do anything for [[Mr L]] but you can’t do nothing for us. We need that money for rent. We need the add done for money. Stop fucking playing on your phone wasting time, saying I can’t do nothing cause you don’t have time. You have all the time in the world but you choose to doodle on your phone and help your retarded fat son. He’s an oxygen thieving bastard. That’s all he is.
[14] According to the COPS entry tendered in the ICL’s tender bundle marked as Exhibit 7.
The father was subsequently charged with use carriage service to menace/harass/offend. The father received a fine and received a section 10 bond for 12 months.
The parties’ second child Y was born in 2016.
In about October 2017, the parties resumed their relationship and relocated to Town N NSW. The father was initially employed as a retail worker and was the main income earner for the family. The father, during this brief time up until final separation, was engaged in a number of different roles, however he was unemployed by at least December 2017, when the mother began to look for employment.
On 28 July 2018, the parties separated on a final basis when the father told the mother to leave their family home. The mother contacted police and was advised that because there were no parenting orders in place, there was nothing they could do. In the end, the mother retained the children the following day after the father allowed her to return home to visit the children. Sometime after this occurred, the mother obtained a rental property with Mr L and the children in City C.
After separation, the father spent time with the children as agreed between the parties. The father continued to verbally abuse the mother both in person and by phone. For example, in September 2018, the mother purchased a dog for the children. The mother says that the father was irate about this and verbally abused her.
In April 2018, the parties agreed to attend the Sydney Easter Show. The parties had an argument about the father paying for his own ferry ride, and the father became aggressive and fled with one of the children and left the mother with the other child in Sydney.
In October 2018, the father broke into the mother’s house after she refused to facilitate time between the children and him.
On Christmas Eve 2018, the parties again had an argument resulting in the father leaving with the children. This occurred in circumstances where the father went through the mother’s phone and found a text message from Mr L’s father asking the mother how they were going. The mother shortly thereafter attempted to commit suicide by driving her car into a pole. The mother says:
I thought the only way my children would stop seeing and experiencing the abuse was if I no longer existed. I was not well at the time and suffering from the effects of [Mr Haddon’s] ongoing abuse.
The mother was hospitalised and later discharged. Accordingly, to the mother she was diagnosed with stress due to domestic abuse.
On Christmas Day 2018, a physical altercation occurred between the father and Mr L. The mother had asked Mr L to collect her belongings and the children’s Christmas presents from the damaged car. The father was also at the location and refused to leave despite Mr L asking him to do so. An Interim ADVO was issued for the protection of Mr L.
At final hearing, the father tendered an 11 minute and 22 second audio recording of this incident.[15] The father was charged and convicted with 2 counts of common assault, however his conviction and sentence was ultimately quashed on appeal.[16] Having said that, the audio recording is truly telling, at the very least, of the father’s lack of insight into his own behaviours. During the audio recording, the father can be heard saying the following to Mr L:
…You are dead set fucking hopeless.
…All you’ve done is been lazy your whole life...
I asked you to get a job and you chucked a psycho (sic) you tried to hang yourself…
[15] Exhibit 4
[16] Exhibit 3 is the District Court Judgment of Judge O dated 19 February 2021. Exhibit 2 is the relating Advice of Court Result.
In about May 2019, the father attempted to commit suicide by consuming an amount of prescribed medication. This occurred after the father was arrested and charged with domestic related offences.
In about September 2019, the parties attempted to mediate, however no agreement was reached.
In 2022, the mother married her current husband, Mr J.
Why the mother wants to move to City B
The mother seeks an order permitting her to relocate the children’s residence to City B. The father opposes this application.
The mother says that she currently has no support systems in City C and that in City B she has a strong emotional support network of not only her own friends, her current husband’s family, but also Mr L’s father’s family (who she remains close with).
The mother further says that she is able to have her current employment transferred to the City B branch and that the business that her and Mr J own, Company P, will also be relocated to City B if the children are permitted to move.
It is noted that Mr J’s children of a previous relationship (aged 19, 18 and 15) also reside in City B. Under cross examination, Mr J indicated that as of recently he had minimal contact with them.
Violence perpetrated by the Father
The mother has detailed a significant history of abuse by the father towards her. The father in both his written and oral evidence provides some explanation and/or complete denials regarding these matters.
Not every allegation of family violence which has been made is the subject of particular findings, nor is it referred to in these Reasons for Judgment[17]. Indeed there are only a few findings which are relevant to determining the ultimate issue.
[17] And some having already been discussed above.
The father has had a significant amount of police interactions throughout the parties’ relationship arising from incidents involving himself, the mother and Mr L. In some instances, these occurred in the presence of the children.
Tendered in the father’s case is a video recording titled “Ms Weiss dictating when I am to return Y and when told she continues to be arguenot (sic) letting me have X”. The video shows the mother standing at the open driver’s car door with her arms crossed in what appears to be a defensive stance. The mother is asking and later insisting that father tell her what time he would be dropping off Y or whether he would be dropping her off at day-care. The father does not answer until about 1 minute and 13 seconds into the video recording. In fact, whilst Y is in the back seat of the car, he says the following to the mother:
Ring …[inaudible] and find out your fucking self.
Stop being a dopey.
Oh just fuck off and get…
Yes [Ms Weiss], just fuck off!
“Yes Ms Weiss, just fuck off” is the response the father asserts in cross-examination was him responding to the mother’s question appropriately, as to whether he would return the child the following day.
When asked by Counsel for the ICL why the mother felt unsafe from the father, the mother said:
[Mr Haddon] would become very abusive verbally if I didn’t do exactly what he was asking me to do. [Mr Haddon] shows very high emotions, I – and he would continue to then harass me on – by the telephone, and I could receive 80 calls within an hour, or text messages; they would be constant. He has broken into (sic) my home, as I refused him to come around one evening; he broke in through the back door.
On the evidence, the Court finds that the father was emotionally and verbally abusive of the mother, sometimes in the presence of one or more of the children, that he was emotionally and verbally abusive to Mr L, and that he exercised coercion and control over the mother during their relationship.
Family Report
In evidence before the Court is a Family Report (“the Report”) prepared by Ms K dated 16 April 2021.[18]
[18] Ms K in her Report noted under the heading ‘Limitations of the assessment process” that the father did not attend on the day arranged for the interviews. Therefore, the Report dated 16 April 2021 did not include any observations of the children with the father.
On 25 June 2021, an addendum to the Report was ordered to include observations of the children with the father. The addendum was never completed and the reason for this was the subject of some cross-examination of Ms K by the father. In relation to this, the Family Report writer said the following :
I contacted – I made a phone call to [Mr Haddon] and didn’t get a reply. He was in here doing – and I usually contact people by phone before I make arrangement – made arrangements for time before the current system came in, because people in this area have to travel a long way and I have to accommodate that. [Mr Haddon] was here one day, and I came in and I asked him about making a time. He said he didn’t want anything to do with me because I was corrupt, and women were controlling the courts. I didn’t do anything further about it.
The Family Report writer described X as a well presented child and as having said that he liked living “with Mum better because she looks after us but I do not like the mice”. Y was described as an outgoing young girl who appeared to be meeting all her developmental milestones.
The Family Report writer made a number of recommendations, namely:
92. [Mr Haddon] have this report read to him by a support person as he is not legally represented and stated that he has some difficulty with literacy.
93. [X] and [Y] live with [Ms Weiss] and significant consideration be given to her proposal that she relocate given the dynamics of this matter.
94. The parents have equal shared parental responsibility.
95. If [Ms Weiss] relocates [X] and [Y] spend one weekend a month with their father and he adhere to Court direction about changeover times. If this time appears to be in the children’s best interest school holidays be considered once [Y] starts school in 2022. [Mr Haddon] is to provide the Court with written details of how he might manage his work commitments and spending time with the children.
96. If [Ms Weiss] does not relocate [X] and [Y] spend overnight time with their father on alternate weekends, [Mr Haddon] is to adhere to changeover arrangements and provide [Ms Weiss] with details of his plans for the children. The changeovers are to be in a public place.
97. [Mr Haddon] is to contact [D Contact Centre] in [City C] and arrange to attend a parenting after separation course and a parenting course.
98. [Ms Weiss] to attend family violence counselling at the [City C] Neighbourhood Centre or the [Q Family Violence Centre] at [City B].
99. [X] and [Y] to have educational, allied health and health services as deemed necessary.
It was put to the Family Report writer by Counsel for the ICL that the father’s current application before the Court was for the children to live with him and spend time with the mother, an application which was different from what was before the Court at the time the Report was completed.
In summary, in her oral evidence the Family Report writer remained of the opinion that significant consideration be given to granting the mother permission to relocate the children’s residence to City B and, in doing so, that time between the children and the father occur one weekend per month with changeover to occur at the half-way point of the parties residences, being around City F, NSW. However, if there was any potential risk to the children in the father’s care, that such time should be supervised; particularly if the Court was not satisfied that the father had made sufficient changes to his anger issues.
In respect of the father’s live with application, the Family Report writer’s opinion remained that the children should live with the mother noting that they appeared to have a strong attachment to her, and that the mother also related well to them. Furthermore, the Family Report writer did concede under cross-examination, despite recommending equal shared parental responsibility and despite also being of the opinion that the parties’ co-parenting and communication relationship was poor, that the Court may be concerned that equal shared parental responsibility would inflame the parties’ situation, and if the mother’s allegations of family violence was substantiated that would go against such an order.
Determination
Risk
The evidence suggests that the father abuses prescription pain medication and potentially that he has an addiction to such medication.
The Court has already made findings that the father has engaged in violent behaviour towards the mother, including coercive and controlling behaviour.
The father’s presentation in the witness box and throughout the proceedings was also very concerning. The father appeared to be dysregulated for most, if not all, of the two days the hearing ran. At times his behaviour was erratic. Also concerning was his apparent inability, or perhaps outright refusal, to listen to Court directions. If he was unable and/or unwilling to temper his behaviour in Court it is highly unlikely that he would do so in front of the children.
The Court finds that there are significant risks for the children in the father’s care. These are discussed in detail later in these Reasons for Judgment.
The Court is not satisfied that the children are at risk from the mother’s adult son, Mr L. Not only does Mr L not live in the same household as the mother and the children, but the episodes of troubling behaviour by him are understood in the context of his mental health problems and the abuse perpetrated by the father towards the mother, which Mr L was a witness of. Indeed, the evidence relied upon by the father[19] shows the father acting unreasonably towards Mr L and provoking him at a time where Mr L was clearly upset, having just learnt that his mother had tried to run her car into a pole.
[19] Exhibit 4
The mother has some vulnerabilities in terms of her mental health, however, she had taken steps to address those vulnerabilities previously. The Court observed the mother listening intently when the Family Report writer suggested that she should continue to engage in counselling. The Court is satisfied that the mother has insight into her own vulnerabilities and that she will act appropriately to ensure that her self-care needs are met so that she may be in the best position possible to parent the children.
Other Relevant Consideration
The mother has been the children’s primary carer throughout their lives, she is likely their primary attachment figure.
The children appear to have a meaningful relationship with the father, although the children were not observed with the father for the purposes of the preparation of the Family Report.
X expressed his wishes, in a limited way, to the Family Report writer. He described his time with the father as “generally okay but would rather live with Mum”.
Both children provided views which are of limited weight given their ages and maturity levels, where they appear to be in favour of the idea of moving with their mother as they would spend time with their cousins and family. The Court accepts that it is the mother who primarily facilitates the children’s relationships with their extended families.
The mother proposes to relocate the children’s residence to City B. The Court accepts that the mother has a support network in that town, including friends and extended family. The mother’s husband’s family is also in and around City B. The mother works for a large employer and there is a position available in the City B office for her to be transferred to. The children have previously lived in City B and they know their extended family members. It is an area that is familiar to the children. The Family Report writer is generally of the opinion that there is merit to the mother’s proposal to relocate given the dynamics of the parties.
The children have been spending limited time with the father. The change to their residence as proposed by the mother will impact upon their ability to continue to spend time with the father in the manner and frequency which has been occurring to date. This will likely have some negative impact on their capacity to maintain a meaningful relationship with the father, particularly if the time is less frequent.
The distance between Town N where the father lives and City B where the mother proposes to relocate to is significant, it is approximately 645km and a driving time of around 8 hours. The practical difficulties of the children spending time with the father if they were to live in City B and he remained living in and around Town N are significant. However, both parents have access to a motor vehicle and a driver’s licence. The father is a transport worker by occupation. The distance in question is not an insurmountable obstacle.
The father’s proposal, for the children to live with him, is anything but child focused. It appears to be a position borne out of frustration and malice. The Court does not consider that the father is bona fide in his application for the children to live with him. Even if the Court is wrong about this, the impact on the children being removed from their primary care giver would be significantly detrimental to them and not at all in their best interest. They would be placed in the care of their father, whom they do not know very well, having spent limited time with him. It is astounding that the father considers that the children’s attachment to him is as strong as the children’s attachment to their mother, or that the impact of separation from their mother would be the same as the impact of separation from him (four years ago) had been.
The father’s alternative proposal for the children to live week about with each of their parents is again, not child focused. In the dynamics of these parents it is not an order that would be in their best interest. The parents have little to no effective communication, the mother remains frightened of the father and the father continues to have little to no insight into his behaviours. He has taken no responsibility for his violent behaviour and he continues to seek to minimise his actions to the present. The children would not be safe living with the father, whether on a primary basis or on a shared care basis. The risk to them in this proposed living arrangement is simply unacceptable.
As noted earlier, since the parties’ separation, the children have been living with the mother and they have spent limited time with the father. The time with the father since November 2020 has been supervised by virtue of the interim orders in place, and since June 2021, that time has been extended to include overnight time. It is clear from the evidence that the father has not complied with the order requiring his time with the children to be supervised.
The father in essence lays the blame for this at the feet of the mother, and says that she did not insist on his time being supervised on a few occasions when she asked him to look after the children. The mother was not cross-examined about this issue, but it appears from her limited evidence that she was aware, or at least suspected, that at times the father’s time with the children was not being supervised in accordance with the orders.
It is the obligation of each of the parties to comply with Court orders, and this is particularly so where orders are put in place to ensure that any risks to the children are guarded against. It is the responsibility of the father, who is the subject of an order for supervision, to ensure that his time is so supervised. It is not the role of the other party to the litigation (i.e. the mother) to ensure the father’s compliance with orders, or to police the father’s compliance with orders.
Furthermore, noting the dynamics of the parties and the long standing coercion and control exercised by the father over the mother, it is not a surprise that the mother did not bring any contravention proceedings or seek to otherwise agitate the issue with the father.
The Court has significant concerns that the father will not heed Court orders if they do not suit him, and will proceed in a manner that is in his self-interest. For that reason, it is important to put in safety guards and to ensure that while the children are spending time with the father, that they are as protected as they can be against any manipulation and/or coercion, and/or other types of family violence. Given the father’s lack of compliance with orders for supervision of his time with the children, it is unlikely that an order for the children’s time to be supervised by the paternal grandmother will be complied with.
The children are still very young. The father clearly engages in inappropriate discussions with them, indeed he tendered in his own case a recording of him questioning the children about Mr L (Exhibit 6). They are too young to be able to deflect such conversations or to act in a manner which is self-protective.
As such, it is appropriate that the children’s time with the father be supervised in a formal setting for a period of time, that is, until the youngest child reaches an age where she will be able to act more self-protectively. In the Court’s view, 7 years old is such an age.
After the youngest child turns 7, the children’s time with the father will no longer need to be supervised, but such time will remain limited. The Court accepts the submissions of the ICL in respect of the appropriate time the children are to spend with the father.
Parental responsibility
In all of the circumstances of this case, the presumption of equal shared parental responsibility has been rebutted on the evidence.
The mother has for all intents and purposes, made all of the decisions relating to the children since separation, and the father has had very little input into their lives. This is not because the mother has deliberately shut the father out of the children’s lives.
The Court is satisfied that an order for the mother to have sole parental responsibility is in the children’s best interest. This is because the parents do not have the capacity to make joint decisions for the children in the manner required by the legislation. It will not be safe for the mother to be put in a position where she has to consult with the father about these matters. Her safety is important as she is the children’s primary carer.
Passports
The mother has previously had to seek Court orders to allow her to travel with the children to visit her extended family in the United Kingdom. Her family remains living there. There is no reason as to why the mother should not be permitted to travel internationally with the children for holidays, whether to the United Kingdom or some other destination.
It is therefore in the children’s best interest that the mother have the authority to apply for and obtain passports for the children without the father’s consent and that she be permitted to travel internationally with them, without having to obtain a Court order prior to such travel.
Conclusion
For all of those reasons, orders as set out at the forefront of these Reasons for Judgment will be made.
99 I certify that the preceding ninety-eight (98) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic.
Associate:
Dated: 7 December 2022
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