Whiteoaks & Marton - [2021] FedCFamC2F 471

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Whiteoaks & Marton [2021] FedCFamC2F 471

File number(s): MLC 3501 of 2018

Judgment of: JUDGE BENDER

Date of judgment: 30 November 2021

Catchwords: FAMILY LAW – parenting – relocation – mother’s Application to relocate from City B to Town C with the parties’ three year old son – where the Mother unilaterally relocated the child’s residence to Town C pending the final hearing – where the Father proposes that it is in the child’s best interests for the Mother to remain living in City B – where the Father proposes that the parties have shared care of the child upon his turning five years of age – where the Mother has suffered from family violence at the hands of the Father which has been witnessed by the child –where the Mother seeks sole parental responsibility for the child given the family violence between the parties.
HELD – the Mother be permitted to relocate the child’s residence from City B to Town C – the child live with the Mother and spend time with the Father increasing to each alternate weekend and half of school holidays once the child turns five years of age – the Mother have sole parental responsibility.

Legislation: Family Law Act1975 (Cth) ss 60B, 60CA, 60CC(2), 60CC(3), 61DA, 65DAA, 102NA

Cases cited:
Taylor v Barker [2007] 37 Fam FLR 461

Fawkner & Kado [2020] FCCA 1535

AMS v AIF (1999) 199 CLR 160

U & U (2002) 211 CLR 238

Heath v Hemming(No.2) [2011] FamCA 749

Goode & Goode [2006] FamCA 1346

Division: Division 2 Family Law

Number of paragraphs: 285

Date of last submission/s: 7 September 2021

Date of hearing: 6-7 September 2021

Place: Melbourne

Counsel for the Applicant:

Solicitor for the Applicant: Van Beveren Lawyers

Counsel for the Respondent: Ms Agresta

Solicitor for the Respondent: MMH Lawyers
ORDERS

MLC 3501 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR WHITEOAKS
Applicant

AND:
MS MARTON
Respondent

ORDER MADE BY:

JUDGE BENDER

DATE OF ORDER:

30 NOVEMBER 2021

THE COURT ORDERS THAT:
1.The Mother have sole responsibility for the child X born in 2017 (“X”), save that prior to making the sole ultimate decision about any issue she:
(a)advise the Father in writing of the decision intended to be made;
(b)seek the Father’s written response and input in relation thereto;
(c)consider by reference to the best interests of X any response received from the Father prior to make any such decision; and
(d)advise the Father in writing as soon as reasonably practicable of the ultimate decision made.

2.X live with the Mother
3.The Mother be permitted to live with X in Town C, Victoria.
4.X spend time and communicate with the Father as follows:
(a)each alternate weekend from 5:30pm Friday to 5:00pm Sunday;
(b)during school term holiday periods:
(i)in the Term 1 2022 school holidays time pursuant to order 4(a) herein continue;
(ii)in the Term 2 2022 school holidays time pursuant to order 4(a) herein be suspended and X spend time with the Father for a block of 4 nights as agreed by the parties and failing agreement from 5:00pm Sunday 3 July 2022 to 5:30pm Thursday 7 July 2022, such time to coincide with National Aboriginal and Islander Day Observance Committee (NAIDOC) week;
(iii)in the Term 3 2022 school holidays time pursuant to order 4(a) herein be suspended and X spend time with the Father for a block of 5 nights as agreed by the parties and failing agreement from 5:30pm on the first Friday of the school holidays to 5:00pm the following Wednesday.
(iv)commencing in 2023 and each alternate year thereafter for the first half of each of the Term 1 and Term 3 holidays at times to be agreed by the parties and failing agreement from 5:30pm Friday to 5:00pm the following Saturday;
(v)commencing in 2023 and each year thereafter, noting that NAIDOC week typically falls in the second half of the Term 2 school holidays, X spend time with the Father from 5:30pm on the middle Friday to 5:00pm the following Saturday and the parties are to ensure such time coincides with NAIDOC week;
(vi)commencing in 2024 and each alternate year thereafter for the second half of the Term 1 and Term 3 holidays at times to be agreed by the parties and failing agreement from 5:30pm on the middle Friday to 5:00pm the following Saturday;
(vii)at any other times agreed to by the parties in writing.

(c)during the long summer holiday period:
(i)in the 2021/2022 holidays X’s time with the Father pursuant to order 4(a) herein continue;
(ii)in the 2022/2023 holidays for two block periods of five days as agreed between the parties and failing agreement such time commence the weekends X would otherwise be spending with the Father pursuant to Order 4(a) herein;
(iii)commencing in the 2023/2024 holidays time pursuant to Order 4(a) herein be suspended during the long summer holidays;
(iv)in the 2023/2024 holidays for one half of the holidays on a week about basis commencing the first week with the Father and if X is with the Father in the week school resumes he is to be returned to the Mother two clear days before school resumes;
(v)in the 2024/2025 holidays and each alternate holidays thereafter for the first half of the holidays; and
(vi)in the 2025/2026 holidays and each alternate holidays thereafter for the second half of the holidays and X is to be returned to the Mother two clear days before school resumes

(d)for Christmas:
(i)in 2021 and each alternate year thereafter from 12:00pm on 26 December to 12:00pm on 28 December; and
(ii)in 2022 and each alternate year thereafter from 5:00pm on 24 December to 12:00pm on 26 December.

(e)for Easter:
(i)if X is not already spending time with the Father pursuant to these orders on Easter Sunday for a 30 minute phone/video call at a time to be agreed by the parties and failing agreement at 10:00am with the Father to initiate the call to the Mother’s mobile and the Mother to facilitate such communication.

(f)on Father’s Day;
(i)if Father’s Day does not already fall on the weekend X would ordinarily be spending with the Father pursuant to order 4(a) herein, X spend time with the Father from 5:00pm on the Saturday before Father’s Day to 5:00pm on Father’s Day.

(g)on the Father’s birthday:
(i)noting that the Father’s birthday is during the long summer vacation period, if the Father’s birthday does not fall at a time X would ordinarily be spending with the Father pursuant to order 4(c)(iii), X spend time with the Father from 10:00am to 5:00pm.

(h)on X’s birthday:
(i)if X’s birthday does not already fall at a time X would ordinarily be spending with the Father pursuant to these orders, for a 30 minute phone/video call at times to be agreed by the parties and failing agreement at 10:00am if X’s birthday falls on a weekend or 5:30pm if X’s birthday falls on a weekday, with the Father to initiate the call to the Mother’s mobile and the Mother to facilitate such communication.

(i)on Y’s birthday:
(i)if Y’s birthday does not already fall at a time X would ordinarily be spending with the Father pursuant to these orders, for a 30 minute phone/video call at times to be agreed by the parties and failing agreement at 10:00am if Y’s birthday falls on a weekend or 5:30pm if Y’s birthday falls on a weekday, with the Father to initiate the call to the Mother’s mobile and the Mother to facilitate such communication.

(j)during kindergarten/school terms each Wednesday and the Sunday X is not spending time with the Father by phone/video for 30 minutes at times to be agreed between the parties and failing agreement at 5:30pm with the Father to initiate the call to the Mother’s mobile and the Mother to facilitate such communication; and
(k)when X commences spending time with the Father during school holidays for a period of one week or more, the Father have one 30 minute phone/video call with X when he is with the Mother each week at times agreed between the parties and failing agreement at 5:30pm with the Father to initiate the call to the Mother’s mobile and the Mother to facilitate such communication.

5.X’s time with the Father pursuant to Order 4 herein be suspended and X spend time with the Mother as follows:
(a)for Christmas:
(i)in 2021 and each alternate year thereafter from 5:00pm on 24 December to 12:00pm on 26 December;
(ii)in 2022 and each alternate year thereafter from 12:00pm on 26 December to 12:00pm on 28 December;

(b)for Easter:
(i)if X is not already spending time with the Mother pursuant to these orders on Easter Sunday for a 30 minute phone/video call at a time to be agreed by the parties and failing agreement at 10:00am with the Mother to initiate the call to the Father’s mobile and the Father to facilitate such communication.

(c)on Mother’s Day:
(ii)if Mother’s Day does not already fall on the weekend X would ordinarily be spending with the Mother, X’s time with the Father pursuant to order 4(a) herein conclude at 5:00pm on the Saturday before Mother’s Day.

(d)on the Mother’s birthday:
(i)if the Mother’s birthday does not fall at a time X would ordinarily be in her care, the Mother have one 30 minute phone/video call with X at 10:00am with the Mother to initiate the call to the Father’s mobile and the Father shall facilitate such communication.

(e)X’s birthday:
(i)if X’s birthday does not fall at a time X would ordinarily be spending with the Mother pursuant to these orders, for a 30 minute phone/video call at times to be agreed by the parties and failing agreement at 10:00am if X’s birthday falls on a weekend or 5:30pm if X’s birthday falls on a weekday, with the Mother to initiate the call to the Father’s mobile and the Father to facilitate such communication.

(f)when X commences spending time with the Father during school holidays for one week or more, the Mother have one 30 minute phone/video call with X when he is with the Father each Wednesday at times to be agreed between the parties and failing agreement at 5:30pm with the Mother to initiate the call to the Father’s mobile and the Father shall facilitate such communication.

6.Each parent shall facilitate X communicating with the parent he is not with by phone/video on X’s reasonable request to do so.
7.For the purposes of all time spent pursuant to Order 4 herein, changeover is to occur:
(a)from the date of these orders for a period of 12 months the Father or his agent collect X from the Mother’s residence or other agreed location in Town C at the commencement of time and the Mother or her agent collect X from the Father’s residence or other agreed location in City B at the conclusion of time unless otherwise agreed between the parties in writing; and
(b)commencing on 1 December 2022 at an agreed midpoint between the parties’ residences and failing agreement as per Order 7(a) herein.

8.The Father not permit the Paternal Grandmother Ms D to be his agent to attend any changeovers as provided for in Order 7 herein.
9.The parties give each other a minimum of 2 hours’ notice if they will not personally be effecting changeover and advise the name of the person who will be attending changeover.
10.Should the Father not notify the Mother of a late arrival at the commencement of his time with X and not be present 30 minutes after changeover time pursuant to these Orders X’s time with the Father for that visit be forfeited.
11.The parties communicate about issues concerning X through the parenting application “AppClose” and such communication is to relate to issues concerning X only and be polite and respectful in nature.
12.The parties and their servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other or any members of the other’s family to or in the presence or hearing of X and from permitting any other person from doing so.
13.Each party shall advise the other of any serious illness or injury suffered by X as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the other parent to obtain information directly from any treating medical practitioners.
14.The Mother is to authorise X’s school and any relevant extra-curricular activities to provide the Father with copies of school notices, information, newsletters, school reports, school photos and any other necessary information about X’s progress and any costs associated with same be met solely by the Father.
15.Each party be at liberty to attend at X’s school, sporting events or extra-curricular activities for the purpose of any function or activity normally attended by parents.
16.The Mother is authorised to provide a copy of these orders to any day-care, kindergarten or school attended by X.
17.The Mother be authorised to provide a copy of the Family Report to all medical professionals working with X.

AND THE COURT NOTES THAT:
A.Pursuant to s.62B and s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Annexure and these particulars are included in these Orders.

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 Whiteoaks & Marton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BENDER
Introduction

This matter relates to the parenting arrangements for the parties’ young three year old son X born in 2017 (“X”).
The orders sought by the Father include:-
·the parties have equal shared parental responsibility for X;
·the parties be restrained from relocating X’s residence from within a 50km radius of the City of Greater City B;
·until X turns five he live with the Mother and spend time with the Father:-
oduring school terms:-
§in week one from 5.00pm Wednesday to 5.00pm Thursday;
§in week two:
·from 9.00am Monday to 9.00am Tuesday; and
·from 5.00pm Friday to 9.00am Monday
oduring school term holidays from the last day of terms to 5.00pm the following Tuesday; and
oduring school summer holidays from 1 January to 7 January
·upon X turning five he live equally with both parties, living with the Father:-
oin week one from 3.30pm on Wednesday to 9.00am on Friday;
oin week two:
§from 9.00am on Monday to 9.00am on Wednesday; and
§from 9.00am on Friday to 9.00am on Monday
ofor half of school term holidays; and
oduring school summery holidays from 1 January to 16 January
and otherwise with the Mother
·X spend special occasions with both parties;
·X spend nominated cultural Aboriginal days with the paternal family;
·each parent not spending time with X be permitted to contact X between 8.00am and 8.00pm;
·the parties communicate by way of the parenting app “AppClose”;
·each party may request with two weeks’ written notice that X attend their family member’s birthday and/or special occasion; and
·changeover occur at kindergarten/school or otherwise at McDonald’s on E Street, City B and collections/drop off be by the parents only unless otherwise agreed by the parties.
The Mother is seeking orders that include:-
·the Mother have sole parental responsibility for X;
·X live with the Mother;
·the Mother be permitted to remain living in Town C with X;
·X spend time with the Father as follows:
ofor the remainder of 2021 each alternate weekend from 10.00am Saturday to 5.00pm Sunday;
ofrom 1 January 2022 to 30 June 2022 each alternate weekend from 5.30pm Friday to 5.00pm Sunday;
ofrom 1 July 2022 to 31 December 2022:
§each alternate weekend from 5.30pm Friday to 5.00pm Sunday; and
§each Wednesday for 15 minutes by video between 5.00pm and 5.30pm
ofrom 2023:
§each alternate weekend from 5.30pm Friday to 5.00pm Sunday;
§each Wednesday for 20 to 30 minutes by video between 5.00pm and 5.30pm; and
§for half of the school term and long summer holidays
·there be a sharing of special occasions; and
·changeover be at a mid-point between Town C and City B being McDonald’s on F Street, Suburb G, collections/drop off be by the parents only unless otherwise agreed by the parties and only one person attend changeover.
Background
The Father was born in 1994 and is aged 27 years. He is an apprentice tradesman with two years remaining on his apprenticeship. The Father has re-partnered with Ms H and they have a baby daughter Y born in 2021. The Father lives with his new family in a three-bedroom rental property in City B.
The Mother was born in 1993 and is aged 28 years. The Mother is employed on a casual basis as a health care worker with Employer J. The Mother has not re-partnered. The Mother is currently living with X in Town C in her parents’ five-bedroom property.
The parties commenced a relationship in 2015 and commenced cohabitation in 2016 in City B.
The parties separated for the first time in early February 2018 when X was only two months old. It is the Mother’s evidence this separation was to “escape from an aggressive environment.”[1] The Mother and X returned to her parents’ home in Town C.
[1] Paragraph 10, Mother’s affidavit sworn 21 July 2021.
The Father immediately commenced proceedings in the City B Magistrates’ Court seeking parenting orders. On 15 March 2018 Magistrate K made interim orders for X to live with the Mother and spend time with the Father from 5.00pm Friday to 5.00pm Monday with changeover outside L Railway Station. When this time did not take place, the Father sought an urgent recovery order. On 22 March 2018 the Father’s application for a recovery order came before Magistrate M who refused the Father’s application for the recovery order, transferred all extant applications to the Federal Circuit Court of Australia (as it then was) at Melbourne and made interim orders for X to live with the Mother and spend time with the Father in Town C each alternate Saturday between 2.00pm and 5.00pm with a member of the Father’s family to be in substantial attendance.
On 14 May 2018 the matter came before the Federal Circuit Court of Australia (as it then was). Orders were made for a s.11F Child Dispute Conference to take place on 1 June 2018. An interim order was made for X to spend time with the Father each Saturday in Town C for three hours with a member of the Father’s family to be in substantial attendance.

In the Child Dispute Conference Memorandum to Court dated 5 June 2018 Family Consultant N reports under the heading “Co-Parenting Relationship”:-
·Ms Marton described Mr Whiteoaks’ behaviour as controlling which contributed to the breakdown. Mr Whiteoaks appeared to have only limited insight into this behaviour which presented to be more about Mr Whiteoaks’ maturity and communication style.
·When challenged about withholding X from Mr Whiteoaks she provided two explanations being Mr Whiteoaks did not ask to see X and that she offered for Mr Whiteoaks to visit him in Town C and ‘it was not my fault that he didn’t come’ raising concerns in relation to Ms Marton’s ability to remain child focused and put X’s needs above her own.
·Both parties advised they want X to have a relationship with both parents and provided a solid understanding of the benefits to X to have this. The difficulties appear to be in navigating the pathway towards executing a co-parenting relationship. The communication between the parties has improved considerably and they both present as hopeful for the future to cooperatively co-parent, however, it is the writer’s assessment they require independent and unbiased assistance with this.
Under the headings “Issues for the Children” and “Future Directions”, Family Consultant N made the following comments and recommendations:-
·Since birth, X has experienced considerable change and an inconsistent parenting arrangement. Given his age and stage of development, X needs to have frequent and consistent time with his father to assist in developing and consolidating their relationship. However, he also requires a consistent and dependable primary parent which is with his mother.
·Given X’s age and stage of development, frequent time is more suitable for X to spend time with his father. Therefore, in a four week cycle:
oFor two weeks the father travel to Town C to spend four hours each Saturday and Sunday with X
oFor one week the mother travel to City B for the father to spend four hours ach Saturday and Sunday with X
oOne week of no time
This cycle to continue for a period of 6 months and then be reviewed.
·That the parties attend for an assessment for the Parenting Orders Program through O Family Centre, P Street, Suburb Q, and to include counselling to assist the parties with their co-parenting relationship.
On 20 June 2018 orders were made by consent for X to spend time with the Father for three weekends out of four on Saturday and Sunday for four hours, two of the weekends in the Town C/Town R/Town S region and one weekend in the City B region. The orders also provided for X to spend time with the Father on the Monday after the “no time” weekend in the Town C region. Up to 31 August 2018 a member of the Father’s family was to be in substantial attendance when X was spending time with the Father.
In October 2018 the parties reconciled and the Mother and X moved back to City B. The proceedings before the Court were adjourned to 10 December 2019.
The parties separated on a final basis in July 2019.
It is the Mother’s evidence that after her and the Father separated she was pressured by the Father and the paternal family to commit to an arrangement against her belief it was in X’s best interests that saw a substantial increase in the time X spent with the Father.
On 6 December 2019 interim orders were made by consent in Chambers which provided for the parties to have equal shared parental responsibility for X, for X to live with the Mother and spend time with the Father as follows:-
·in week one:
oon Monday from 3.30pm to 8.00pm;
oon Wednesday from 3.30pm to 8.00pm; and
ofrom 5.00pm Friday to 10.00am Saturday
·in week two:
oon Monday from 5.30pm to 8.00pm;
oon Wednesday from 5.30pm to 8.00pm;
ofrom 5.00pm Friday to 5.00pm Saturday; and
oon Sunday from 10.00am to 5.00pm
·the sharing of special occasions
On 20 February 2020 the parties came before Chief Justice Alstergren as part of the national call-over. They were referred that day to a Registrar for family dispute resolution. On 21 February 2020 interim orders were made by consent which provided for X to live with the Mother and spend time with the Father as follows:-
·in week one:
ofrom 5.00pm Wednesday to the commencement of day-care on Thursday;
·in week two:
oon Monday from 5.30pm to 7.30pm; and
ofrom 5.00pm Friday to 5.00pm Sunday
·on special occasions
In April 2020 the Mother and X stayed in Town C because of the initial Covid-19 lockdown.
On 21 April 2020 the Father filed a Contravention Application and Application in a Case seeking X return to the City B area and live with the Father for three weeks as make-up time.
On 14 May 2020 the Mother and X returned to City B when the Covid-19 restrictions eased. On 15 May 2020 Judge Riley made consent orders which provided, inter alia for “make-up” time between X and the Father, and otherwise for the orders made on 21 February 2020 to remain in full force and effect. All extant applications, including the Father’s Contravention Application, were adjourned to 22 June 2020.
When the matter came before the Court on 22 June 2020, the Father discontinued his Contravention Application. The parenting application was listed for final hearing on 28 July 2021. The spend time arrangements contained in the orders made on 21 February 2020 remained in full force and effect save that if the Father had a rostered day off on the Thursday in week two when X was to spend time with him from 5.00pm Wednesday to the commencement of day-care Thursday, then X was to spend time with the Father until 5.00pm Thursday rather than attend day-care that day.
On Monday 17 August 2020 there was an incident when X was being returned to the Mother after spending time with the Father.
The Father and the paternal grandmother both attended changeover. After taking X from the Father, the Mother was walking back to her car when, on the Mother’s evidence, the paternal grandmother aggressively tried to serve her with an application the paternal grandmother had filed in the Victorian Civil and Administrative Tribunal (“VCAT”) that related to, as I understand it, a dispute between the paternal grandmother and the Mother about a bond the paternal grandmother had paid for the Mother and furniture the Mother retained when the parties separated. The Mother refused to accept service of the application and asked the Father and paternal grandmother to contact her lawyers. The Father shoved the papers in the Mother’s hands whilst he and the paternal grandmother continued to yell at her.
It is the Mother’s evidence that because of the Father and paternal grandmother’s yelling and aggressive behaviour, X became upset and started to cry. The Father and paternal grandmother drove away and the Mother took X from the car to settle him whilst talking to a woman who had approached her to see if she and X were okay. The Father and paternal grandmother returned to the changeover location and parked directly behind the Mother’s car where, on the Mother’s evidence, both the Father and paternal grandmother again started abusing her before again leaving.
It is the Father’s and paternal grandmother’s evidence that it was the Mother who became aggressive and started yelling at them when they tried to serve the VCAT papers on her at changeover. They agree they did return to the changeover location after they first left but explain they did so because they were concerned about X as he was “hysterical” when they left.
On the day following this altercation the Mother attended the City B Police Station asking for assistance. The police made an application for an intervention order on the Mother’s behalf. The Mother’s application was finalised on 16 March 2021 when a 12-month intervention order was made for the protection of the Mother and X. The Father did not attend Court and consented to the order without admission.
After being served with the Mother’s application for an intervention order, the Father filed a cross-application for an intervention order against the Mother. The Father’s application went to a defended hearing at the City B Magistrates’ Court on 19 August 2021. After hearing evidence from the Father, the paternal grandmother and the Mother, the Father’s application was dismissed.
Because of the Mother and paternal grandmother’s highly conflicted relationship, the Mother asked the Father not to have the paternal grandmother attend changeover. On 27 November 2020 the Father was running late to changeover and asked the paternal grandmother to collect X. The Father did not advise the Mother that he was running late or that he had arranged for the paternal grandmother to collect X in his stead. As X had been with his maternal grandparents in Town C, the maternal grandfather was with the Mother for this changeover. When the Mother and the maternal grandfather attended changeover, they were met by the paternal grandmother.
When the Mother and the maternal grandfather saw that the Father was not there, the maternal grandfather, who was holding X, returned to his car with X. It is the paternal grandmother’s evidence the maternal grandfather said “do you wanna fight do ya” whilst pointing aggressively at her. It is the Mother’s evidence the paternal grandmother started yelling aggressively at her and the maternal grandfather shouting “I’m going to sue you” and following them to their car. The Mother and maternal grandfather returned to the Mother’s home with X.
The Mother texted the Father when she got home with X and changeover finally occurred at 6.00pm with only the Mother and Father present.
After this incident, the paternal grandmother sought an intervention order against the maternal grandfather. The application was listed on 21 May 2021 and was struck out when the paternal grandmother did not attend court on that day.
On 23 November 2020 the Father advised the Mother by text message that the paternal grandmother would be at changeover as he could not get there on time. The Mother sent an answering text to the Father advising she did not agree to the paternal grandmother attending changeover. After the Father texted the Mother to advise her he had arrived, the Mother walked into the changeover location. The paternal grandmother and not the Father was waiting. The Father and his partner were in the car park waiting in the car. When the Mother refused to hand X to the paternal grandmother, the Mother texted the Father asking him where he was. The Father then came up to the supermarket entrance where changeover was to occur and X left with the Father. It is the Mother’s evidence that when the paternal grandmother saw an elderly man comforting the Mother after this incident, she turned and shouted loudly whilst pointing a finger at the Mother, “she’s a liar”.
X attended the T Day-Care Centre in Town DD from 2018. Towards the end of 2020 the question of where and when X should commence a three year old kindergarten program in 2021 became an issue between the parties.
It is the Father’s evidence he sent multiple messages to the Mother on this issue suggesting kindergartens for X to attend to which the Mother did not respond. It is the Mother’s evidence that she had discussions with T Day-Care Centre towards the end of 2020 and they recommended X not start their kindergarten program until Term 2, 2021 as they believed he was not yet ready to start that program. It is the Mother’s evidence that when she told the Father this he did not agree and it was then he starting sending her the messages about other kindergartens for X to attend starting in Term 1 2021 and that he had enrolled X in one of these kindergartens.
The Mother’s evidence is she believed the Father told X he needed to attend the kindergarten the Father had chosen for him and because of this X started to refuse to attend T Day-Care Centre, screaming as they drove into the car park and vomiting at the doors of the centre.
Because of the level of X’s distress, the Mother decided to resign from her position at Employer U and assume full-time care of X so that X did not need to attend day-care. She did this on 15 February 2021.
Following her resignation from Employer U, the Mother retuned to live with her parents in Town C with X. After moving to Town C the Mother and X travelled to City B to ensure X spent time with the Father in compliance with the interim orders. The Mother did not tell the Father of her move to Town C until the family report interviews in May 2021.
On 4 June 2021 the Father filed an Application in a Case seeking, inter alia, that the Mother be ordered to return X to live in City B and that if the Mother chose to remain in Town C, X live with the Father in City B. This Application was listed on 28 July 2021, the date the matter was listed for final hearing.
The Mother was self-represented at the final hearing. Because of the final intervention order made in the Mother’s favour on 16 March 2021, s.102NA of the Family Law Act 1975 (Cth) (“the Act”) applied. The matter was therefore adjourned to enable the Mother to obtain representation under the Commonwealth Family Violence and Cross-Examination Scheme.
Orders were also made on that day for the parties to do all things necessary to enable X to attend counselling in Suburb G. The Mother’s evidence is that X has been displaying concerning behaviours for some months and she wanted to link him to counselling but the Father did not agree to this.
The Father’s application for orders for the Mother and X to return to City B were not acceded to. An order was made for the interim orders relating to X’s living arrangements to remain in full force and effect save that only the parties were to attend changeover.
A notation to those orders reads as follows:-
A.The current orders provide for X to have a meal with the Father on each alternate Monday from 5.30pm to 8.30pm. Given the current distance between the parties’ residences X is travelling five hours on each alternate Monday to enable such time to take place. The parties are encouraged to take a child focused approach to this arrangement and to see if an alternate agreement can be reached in relation to this time pending finalisation of this matter.
At the final hearing, the Court was advised that the parties had been unable to agree to an alternate arrangement for the time X spent with the Father each alternate Monday. The Court was also advised X was not returned to the Mother’s care until 5.00pm each Thursday in week two even when the Father did not have a rostered day off. On those dates X was cared for by the paternal grandmother or the Father’s partner.
At the conclusion of the final hearing, an order varying the interim orders was made such that X not spend alternate Monday evenings with the Father and spend time with the Father in week two until 5.00pm on Thursday without the requirement the Father have a rostered day off.
THE EVIDENCE
The Father
The Father relies on his trial affidavit sworn 29 June 2021. He also relies on the affidavit of the paternal grandmother Ms D sworn 29 June 2021. Both the Father and the paternal grandmother gave vive voce evidence at the final hearing.
It is the Father’s evidence that he believes X’s best interests are met if he remains living in City B so that he is able to have the full ongoing involvement of both of his parents, as well as the extended paternal family, in his life.
It is the Father’s evidence that if the Mother and X are permitted to live in Town C then the distance between where he lives in City B and where X lives in Town C will limit the time X can spend with him to alternate weekends and holidays. It is the Father’s evidence that such a reduction in regular time between him and his son will have a very negative impact on what is their current close and loving relationship.
It is the Father’s belief that the Mother does not support X’s relationship with him as she does not value his role in X’s life. He believes the Mother’s application to live in Town C is to remove him from X’s life.
Both parties annexed to their trial affidavits their messages on the AppClose app used by them to communicate in relation to X.
The Father was asked what he wanted the Court to glean from those messages. The Father indicated he wanted the Court to see the level of conflict that exists between the parties, that the Mother will not negotiate with him, the Mother’s failure to agree to make-up time or additional time for X with him and his family and the parties’ inability to reach agreement. The Father also wished to highlight the Mother’s failure to respond to suggestions or questions put by him which he submits supports his evidence that the Mother does not respect his role as X’s father or consider his views when making decisions in X’s best interests.
The Father states that the communication annexed to his Affidavit is an accurate picture of his and the Mother’s parenting relationship and shows how they cannot co-parent. It is his evidence that this is despite his efforts to co-parent and it is the Mother who prevents this happening “because she is so difficult”.
It was suggested to the Father that the communication annexed to the parties’ affidavits shows that both his and the Mother’s communication is very conflicted, disrespectful and hostile and that he and the Mother “just do not get on at all”. The Father agrees that that is a fair summary of their communication and their co-parenting relationship generally.
The Father agrees that the Mother’s relationship with his family is poor and that if she were in City B she would not be able to call upon them for help. It is the Father’s evidence that the Mother has always been spiteful towards his family. By way of example he gave evidence that when the paternal grandmother tried to help the Mother with financial advice, as the paternal grandmother works in accounting, the Mother would not listen to her.
The Father agrees that the Mother has asked on multiple occasions that the paternal grandmother not be present at changeover because of the tensions between them. He explained that he always has someone with him at changeover, either his now partner, the paternal grandmother or someone else to ensure that he is “protected against the lies that the Mother tells about him” and because he was advised by the police to always have someone with him.
It is the Mother’s evidence that her and the Father’s relationship consisted of a vicious cycle of family violence predominantly based on his controlling behaviour, extreme anger, a temper that would escalate quickly, his swearing, abuse and his propensity to throw objects including television remotes and mobile phones, flip over chairs and throw dishes into the sink when upset.
The Father denies he behaved in the matter described by the Mother. He agreed however that he and the Mother argued, particularly in the periods leading up to separation.
Played into evidence was a recording the Mother had made of the Father screaming and yelling at her in a very angry, loud voice and threatening suicide shortly prior to the parties’ final separation. Whilst the Father agrees that his behaviour on this occasion was family violence, he observed that because the Mother knew she was recording the interaction she was able to deliberately ensure that she remained calm and set him up to react as he did.
Both parties depose that X has started to exhibit concerning behaviours. These include him becoming angry and aggressive and making comments about things he says he observed or was told whilst in the other parent’s home. In relation to comments that the Mother reports X to have made in her home and behaviour X has exhibited including:
·“my daddy scream at me mummy”;
·“when asked about my day daddy says say nothing”;
·“my daddy yell at me very loudly to brush my teeth”;
·“my nanny says granny is not my family”; and
·that when X grabbed the maternal grandmother’s throat he explained it by saying “daddy very very mad at Ms H – do this”,
the Father was adamant that the comments do not reflect any comments or behaviours to which X was exposed in his house. He stated the Mother exaggerates and twists things to achieve her own end and inferred that she had inaccurately reported what X had said to her.

Whilst the Father refused to consent to X attending a counsellor when the Mother first raised X’s concerning behaviours with him in early 2021, the Father now agrees that X is in need of counselling as he is clearly a very distressed and unhappy little boy who is also showing some concerning behaviours when with the Father.
At the time of the final hearing the Father had not spoken to X’s counsellor although he has attempted to do so.
The Father is highly critical of the Mother for not facilitating make-up time between himself and X if X’s time with him has not been able to take place in accordance with the orders. He is very critical when the Mother does not accede to his requests for additional time with X outside of that which is allowed under the orders. He is also critical of the Mother in that when she was living and working in City B, she placed X in childcare rather than with the Father whilst she was working if the Father happened to have a day off work. However the Father also criticises the Mother in that she looked after X when she left work and did not send him to childcare.
The Father is a V man. It is the Father’s evidence that it is very important that X remains connected with his paternal family so that he is involved with his Aboriginal culture and traditions which he learns from the Father and his extended family. It is the Father’s evidence that his family is connected to the W play group and annexes to his trial affidavit a letter from Ms Z, the Playgroup and Early Years Facilitator of the AA Aboriginal Co-Op. In that letter, Ms Z indicates it is the paternal grandmother rather than the Father who brings X to the play group.
It is apparent from the Father’s evidence that he does not like the Mother and believes her to be controlling, manipulative and actively undermining his and his family’s relationship with X.
The Father was questioned whether he would move to the Town C area in the event that the Mother and X were permitted live there. It is the Father’s evidence that he could not make such a move as his secure employment is in City B and City B is where his current partner and baby daughter, his family, his partner’s family and his friends are based. Additionally, the Father’s partner is a student health care worker and will be resuming her studies in City B next year when she finishes maternity leave.
Whilst conceding that the Mother would not have the support of her family were she to return to live in City B with X, it is the Father’s evidence that he believes she has a strong friendship group in City B who would give her all the support and assistance that she needs.
Ms D
Ms D is the paternal grandmother. She swore an affidavit in support of the Father on 29 June 2021. Ms D also gave vive voce evidence at the final hearing.
Ms D was unremittingly negative about the Mother and the maternal family in both her affidavit and when giving her vive voce evidence.
In Ms D’s affidavit she deposes that X has a large extended paternal family of grandparents, aunts, uncles, cousins and friends within the City B district with whom he has an extraordinarily strong connection. She describes her family as being “close”, gathering “as often as [they] can” and as being “respectful law-abiding citizens”.[2]
[2] Paragraph 9, Ms D’ affidavit sworn 29 June 2021
Ms D describes the maternal family in paragraph 10 of her affidavit as a “small, close-knit family [who] keep to themselves”, that there are four children, the eldest son is “estranged” and their second eldest daughter has “mental disability”. She then states that “unfortunately they have different morals and values to our family and I am aware that they have no respect for, and are willing to break the law”.
When asked what she meant by “different morals and values” Ms D’s evidence is that the maternal family is “willing to breach the orders and steal property with no remorse or consideration for X”.
In her affidavit Ms D deposes that when the parties separated, the Mother did not have money to buy furniture and appliances and that the paternal family helped her out to ensure that she had everything she needed to care for X. She then deposes that when the Mother left City B she did not return “our things” and Ms D believes they were placed in storage. She states that she “did not consent to [the Mother] doing so or keeping these items” and considered that by her actions the Mother had “stolen from us”.[3] The dispute between Ms D and the Mother in relation to this matter is continuing either in VCAT or in the Magistrates’ Court.
[3] Paragraph 12, Ms D’ affidavit sworn 29 June 2021
Ms D finishes this section of her affidavit by stating at paragraph 13 “I hope that X grows to be a respectful law-abiding citizen. Something our family will be encouraging.”
It is Ms D’s evidence that she believes the Mother does not see the importance of “our X having rights to both families equally”. She describes the Mother as being “hostile” and “abusive” and that because of her behaviour in their home at changeover she and the paternal grandfather advised the parties that they would not allow changeover to continue to take place at their home.
It is Ms D’s evidence that she has never been abusive towards the Mother at changeover or otherwise and that it is the Mother who has yelled at and been abusive of Ms D.
Ms D was asked whether in retrospect it had not been a sensible thing to try and serve VCAT papers on the Mother at changeover. Ms D said that they had been trying for over 12 months to get their property back, that VCAT had told them they had to serve the papers and that they had not used the Mother’s solicitors as they were engaged to represent the Mother in relation to parenting matters and not the VCAT issue. Ms D said that the Mother’s reaction to her attempt to serve the documents was not warranted and that they had not expected her to “carry on like that”.
When asked why she and the Father returned to the scene of the changeover after they left, Ms D explained that they did so as they were concerned for X as he had been “hysterical” when they left. Ms D conceded that she and the Father returning at that time did not assist X.
Ms D was asked whether she believed that the Mother had been the victim of family violence at the hands of the Father. Ms D’s evidence is that both the Mother and the Father perpetrated family violence against each other as there are always two sides to arguments in relationships.
Ms D is “a proud V woman/mother/grandmother and elder”.[4] It is her evidence that it is important to her to pass on to her grandchildren their culture and that she takes X to the AA Aboriginal Cooperative and W playgroup. Ms D agrees that it is either her or a cousin who takes X to these activities and not the Father. When asked if she had taken the Father to similar activities when he was a child, Ms D explained that when the Father was born they were not living in City B and he was not involved in these activities as a child.
[4] Paragraph 7, Ms D’ affidavit sworn 29 June 2021.
In her vive voce evidence Ms D described the Mother as “manipulative” and as “a liar”.
In her affidavit Ms D deposes at paragraph 20 that X has come out with the words “fuck daddy” and has raised his hand with aggression saying “I’m not doing this with you right now ok so quit it”. She deposes “I believe these actions are a direct reflection of imitating his Mother as I have seen it with her before”.
Ms D agrees that the Mother made it very clear that she is not comfortable with her attending changeover. Ms D explained she continues to attend changeover despite the Mother’s request she not do so because of the false allegations the Mother is making against the Father. She believes the Mother’s objection to her attending changeover is without good reason and “she obviously has a problem with me”.
When asked whether she thought it would be difficult for the Mother to return to City B given the level of animosity between her and the paternal family, Ms D responded “we don’t have anything to do with Allison.”
The Mother
The Mother relies on her trial affidavit sworn on 21 July 2021. The Mother also gave vive voce evidence at the final hearing.
It is the Mother’s evidence that she believes that X’s best interests will be met if she and X are able to live in Town C with her parents in their comfortable five-bedroom home as that will provide X with stability and security and provide her with the emotional, practical and financial support that will enable her to parent X to the best of her ability.
It is the Mother’s evidence that she believes the parenting arrangements that have been in place for X since separation have not been in his best interests as they have been very disruptive, more than he could manage at his very young age and have exposed him to the parties’ conflict and to the inappropriate behaviour that she believes takes place in the Father’s home and via the paternal family.
As previously set out in this judgment, it is the Mother’s evidence that the parties’ relationship consisted of a vicious cycle, “predominantly based on controlling my social interaction, money, family relationships and work lives”.[5] She deposes that the Father has a short temper which would escalate quickly, that he would swear at and abuse her, that he threw objects around the house in fits of rage and that she was subjected to multiple incidents of family violence on an almost daily basis.
[5] Paragraph 10, Mother’s affidavit sworn 21 July 2021.
The Mother deposes to occasions during their relationship when the Father would angrily storm out of the house and speed away in his car leaving her without her phone or keys and isolating her in the house. She further deposes to the Father threatening to kill himself if she should leave him. The Mother describes an incident in July 2019 when during an argument the Father locked the doors of his car with X inside and drove off in a manic state. Shortly thereafter he returned X to the Mother and again drove off erratically. Sometime later he arrived back at the parties’ home and the Mother asked the Father to pack some clothes and stay at his parents’ home for a while. In front of X the Father yelled at the Mother “you know why dads fucking kill themselves? It’s because of fucking women like you.” It was a tape of this confrontation that was tendered into evidence before the Court.
It is the Mother’s evidence that whilst she initially had a good relationship with the paternal grandparents, their relationship gradually unravelled as the paternal grandmother attempted to control her life and the Father’s life.
It is the Mother’s evidence that the paternal grandmother and the Father are extremely close and the paternal grandmother exerts enormous control in relation to the Father’s life including managing his finances. It is the Mother’s evidence that this was a cause of great conflict between herself, the Father and the paternal family.
Post-separation, the altercations that have taken place when the paternal grandmother attends changeover have been well set out in this judgment. The Mother deposes that she is “constantly fearful of her intimidating behaviour and her motives behind accompanying [the Father] inside of the changeover location. Her constant attempts to yell at me and defame me in public causes me a great deal of stress”.[6]
[6] Paragraph 48, Mother’s affidavit sworn 21 July 2021
It is the Mother’s evidence that X’s behaviour has become increasing challenging in the last 12 months. In paragraph 116 of her trial affidavit the Mother gives examples of her concerns with X’s behaviour as follows:
·On 13 December 2020, following a weekend in the Father’s care, X was very quiet and said to the Mother “My Daddy scream at me Mummy” and when asked if there were a reason for his dad to be upset with him, he said “I put my combi van wheel in my mouth and my Daddy scream in my face”. X with tears in his eyes said “Daddy a bit scary Mum”;
·On 17 December 2020, following an overnight with the Father, the Mother asked X how his day was. In response X’s voice became angry and he said “Daddy says ‘say nothing’”;
·On 25 January 2021, X became very angry and agitated and started punching himself in the leg and hitting the Mother. He became hysterical and was screaming at the top of his lungs and when he settled down she asked him where that screaming came from. X replied “my Daddy yell at me very very loudly to brush my teeth. Ms H scream at my Daddy. Ms H wanted her keys back to drive away. I wanted to yell at my Daddy to stop” and said “I don't like it Mummy”;
·Throughout February 2021, X would yell “Don't touch me! Get off!” and when asked why he didn’t want any hugs from anyone he stated “Ms H yell ‘get off me’ and ‘don’t touch me’ to Daddy. Daddy trying to give Ms H a hug” and “Ms H give me a big hug but not my Daddy. Daddy mad”;
·On 25 February 2021, after spending time with the paternal family, X started to talk about family members, but missed out naming the maternal grandmother. When the maternal grandmother asked X “what about your Granny” X replied “my Nanny says Granny is not in my family”;
·On 28 February 2021 X grabbed the maternal grandmother by the throat, grunted at her and squeezed tightly. After talking to X about it, he said “Daddy very very mad at Ms H. Do this” and then pantomimed grabbing himself on the throat;
·After the Easter weekend in 2021 X was very aggressive. He was yelling, screaming and throwing toys and clothes around and punching family members. X said the Father and the paternal grandfather were pushing one another and yelling at each other; and
·On 26 April 2021 after time with the Father X spoke of how Ms H’s mother was “saying naughty words to my Nanny”, “Nanny was screaming”, “Daddy was yelling at Ms H” and “my Daddy put earmuffs on be because it was too loud. I was very brave Mummy”.
It is the Mother’s evidence the things X is disclosing as taking place in the Father’s home are very similar to the violence, anger and controlling behaviour that she experienced when she was in a relationship with the Father. For these reasons, she believes that X is being exposed to family violence when in the Father’s care and that this is having a significant impact on X’s emotional wellbeing.
The Mother believes that the family violence to which X is being exposed in the Father’s care is one of the major contributors to the very concerning behaviour that is being observed by her. This is why she had been wanting to engage X with a psychologist since the beginning of the year to assist him to work through and better manage his feelings, anger and aggression.
It is the Mother’s evidence that she believes her proposal that initially sees X spending alternate weekends with the Father for one night only and then building up over time to two nights each fortnight and holiday time is in X’s best interests. This will allow X to achieve a sense of security, safety and stability, will reduce some of the current travel that he is undertaking and will enable the ongoing counselling that he is receiving to have full efficacy and allow him to heal.
It is the Mother’s evidence that she believes her proposal will ensure that X is safe when with his Father and guarantee that he will continue to maintain the close and loving relationship that he has with the Father and with the extended paternal family.
It is the Mother’s evidence that she supports X understanding and embracing his Aboriginal heritage. In paragraph 121 of her trial affidavit she deposes that she has been referred to a family support worker through BB Aboriginal Service in Town J. She deposes this service provides positive education about Aboriginal culture and provides support for victims of family violence. She deposes that “our support worker has researched X’s clan and given us information to acknowledge its history”.
The Mother agrees with the Father that the parties’ communication is exceptionally poor and that they struggle to co-parent. As previously noted in this judgment, she also annexed to her trial affidavit copies of the communications between her and the Father via AppClose. As noted, those documents evidence very poor communication, the parties’ inability to compromise or listen to each other in relation to their views about X’s care and shows the Father using demeaning and aggressive language when the Mother does not agree to his request for extra or make-up time.
It is the Mother’s evidence that the parties cannot communicate because of the level of hostility between them, their lack of trust and their mutual perception that each is trying to control the other.
For these reasons the Mother argues that it will be impossible for them to share parental responsibility for X as they will not be able to make timely child-focused decisions for him. This is best evidenced by their inability to compromise on a three year old kindergarten for X in 2021 and by the Father failing to agree in a timely manner for counselling for X even though he too was observing X’s disturbing behaviours.
Ms CC
Ms CC is a Family Consultant with the Federal Circuit and Family Court of Australia. Ms CC prepared a family report in this matter dated 28 June 2021. Ms CC also gave vive voce evidence at the final hearing.
The Family Report
When discussing the parties’ competing proposals Ms CC notes the Father has a goal to achieve a 50/50 time arrangement, describing this as being “fair”. Ms CC also reports that the Father displayed an unwillingness to relocate or move closer to Town C reporting that X “belongs” in City B “with his family”.
In relation to the Mother’s proposal, Ms CC confirms the Mother seeks sole parental responsibility in response to the conflict between the parties and that she hopes to live permanently in Town C as she struggled to remain living in City B due to her family support being in Town C and due to the ongoing stress of the current dispute.
Ms CC confirms that both parties acknowledge that X has been exposed to the parental conflict, particularly during changeover.
Both parents also raised with Ms CC their concerns that there had been a change in X’s behaviour in the recent past. The Mother spoke of X returning from time with the Father saying “Daddy doesn’t want me to go to day-care” and that she observed X to be violent, screaming and throwing items and saying things such as “you make me sick Mum”.
The Father similarly reported X using an aggressive tone and saying things such as “I’m not talking to Ms H” as well as having what he described as “a lot of separation issues” at the end of his time spent with the Father.
The Father acknowledged to Ms CC that he refused to consent to X attending with a mental health professional for his behaviour but that he now agrees with the Mother that it would be of benefit to X in the future.
When discussing the parties, Ms CC described the Mother in paragraph 40 as follows:-
40.Ms Marton (28 years old) presented as calm, and was able to articulate her concerns clearly without hesitation and appeared to be a consistent historian. She reported being anxious about the current process and at times was tearful. She displayed intense negative emotions towards Mr Whiteoaks and presented as being hyper-vigilant to the conflict between the parties. Ms Marton highlighted that although she is supportive of a relationship between X and Mr Whiteoaks, the acrimony between the parties impacts her ability to support X to spend more time with Mr Whiteoaks, due to her fear of conflict.
The Mother reported a continued source of conflict between the parties was the level of involvement from the paternal grandparents and in particular the Father’s decision to not attend changeover but rather send the paternal grandmother to pick up X. The Mother reported having a poor relationship with the paternal grandmother due to her being verbally abusive towards and yelling at the Mother and interfering with her parenting of X.

The Mother explained to Ms CC that she had relocated to Town C due to the ongoing and continued difficulties with co-parenting, the change in X’s behaviour and the impact of Covid-19. The Mother described Town C as her home and that living in the City B region just for the Father had become unmanageable due to ongoing stress and the lack of physical and emotional support.
When discussing the Father, Ms CC describes him in the following terms:-
49.Mr Whiteoaks (27 years old) presented to interview with his current partner, newborn infant and the paternal grandparents, and reported being disappointed his parents were not being interviewed. Mr Whiteoaks was able to clearly articulate his concerns during interview and although he appeared to be a reliable historian, he struggled to remain child focused, instead tirelessly focusing on the dispute between the parties. Mr Whiteoaks highlighted that while he supports X to live with Ms Marton, X is part of a “big family”, and therefore he “needs to stay in City B”.
50.Throughout interview, Mr Whiteoaks repeatedly externalised blame to Ms Marton for the current dispute, for his limited time with X and for the recent change in X’s behaviour. At times Mr Whiteoaks displayed traits insofar as him being “a better parent” than Ms Marton, and that Ms Marton was “jealous” of him because he has “a new family”, referring to his current partner and newborn child.
In relation to the Father’s view of the Mother Ms CC sets out the following in paragraph 52:-
52.Although Mr Whiteoaks was unable to identify clear risks for X when in the care of Ms Marton and reported her to be a “loving mum”, he spoke critically of Ms Marton throughout interview and persistently redirected the narrative to focus on her perceived deficits in parenting. Perusal of the filed documents also highlights a pattern of Mr Whiteoaks being critical of Ms Marton as a parent to X; minimising her need to breastfeed him in the early stages of the dispute, minimising her ability to decide about childcare needs or medical issues; and criticising her parenting style over his.
Ms CC sets out the Father’s response to the Mother’s allegations that she had been the victim of family violence at the hands of the Father in paragraphs 53 and 54:-
53. Mr Whiteoaks denied being perpetrator of family violence, stating that it is “all lies” and appeared indignant about being perceived this way by others, offering his current partner and newborn daughter as evidence that he is “not a violent person”. Nonetheless, he acknowledged that at times his behaviour was “not okay” and that he engaged in verbal conflict with Ms Marton. He further acknowledged that on one occasion he tried to restrain Ms Marton from leaving the house, by taking her keys, justifying his behaviour as having “a right to stop her taking my child”. The writer reflected with Mr Whiteoaks on how his behaviour functioned to control Ms Marton physically and emotionally, minimising her ability to remove X from the conflict, however, Mr Whiteoaks appeared to lack insight about how controlling behaviour is a family violence indicator.
54. Mr Whiteoaks reported Ms Marton to be a perpetrator of family violence, with her being verbally abusive at changeovers. He explained that although he applied for an Interim FVIO “for protection” “from her allegations”, he is not fearful of being harmed by Ms Marton.
Ms CC discussed with the Father the altercation that occurred at changeover when the Father and the paternal grandmother attempted to serve the Mother with VCAT documents. She states in paragraph 55:-
55.… The writer reflected on Mr Whiteoaks’ behaviour during this incident and questioned how his actions impacted his parenting and Ms Marton’s ability to parent in that moment, with Mr Whiteoaks acknowledging that by choosing to serve documents at changeover he exposed X to the parental conflict. Mr Whiteoaks displayed limited insight into how his behaviour during this incident, could be viewed as controlling, not prioritising their son’s needs and may be seen as a form of family violence. Notably, in the past Mr Whiteoaks has engaged in consequential thinking and used a process server to avoid direct communication and conflict with Ms Marton.
In relation to the Father’s relationship with X Ms CC sets out the Father’s observations in that regard at paragraph 56:-
56.Mr Whiteoaks talked about his relationship with X and described the “limited” time with him as “difficult”, due to X “just wanting to be with [him]”. Mr Whiteoaks detailed to the writer his parenting routine when spending time for X, contrasting his parenting with Ms Marton’s, appearing to be engage in impression management for the benefit of the Family Report. Mr Whiteoaks reported that X’s recent decline in behaviour is a result of not having extra time with Mr Whiteoaks, rather than a consequence of being exposed to family violence or the parental conflict by the parties.
When discussing the Father’s Aboriginal heritage with the Father Ms CC sets out his comments in relation to same in paragraph 58:-
58.Mr Whiteoaks reported having paternal Aboriginal Heritage and a connection to Country “somewhere in the City B area”. He explained that although he has not participated in practising his cultural heritage during his childhood or adulthood, his Aboriginal heritage and identity is of importance to him and he wants X to have “better understanding”.
Ms CC’s observations of X with each of the parties are discussed in her report. She observed a very positive interaction between the Mother and X, noting that he greeted the Mother with an “enthusiastic embrace” and that she played with him “at his level”, allowing him to “explore the space safely”. Ms CC also observed that the Mother allowed X to independently play with other children.
Ms CC observed that when the Father entered the room he too was greeted “with hugs and kisses” and the Father encouraged X to play “using positive language and a calm tone”.
When it came time for the Father to leave Ms CC describes what then ensued at paragraph 68 as follows:-
68.Mr Whiteoaks advised X that he was leaving and asked for a hug. He explained to X, “it’s ok, I will see you again soon”. Mr Whiteoaks referred to X’s new baby sibling, stating “it’s okay you will see her soon too”. X appeared distressed and held Mr Whiteoaks tight. The writer and playroom staff were required to assist with the transition of Mr Whiteoaks leaving the room. Mr Whiteoaks explained to the writer during interview that X is frequently upset at the end of time spent.
Under the heading ‘Evaluations’ Ms CC observes the dispute presented to the Court to be complex in nature given the duration of the dispute and the very young age of X at the time of the original filing of the Father’s Application. She notes that the matter involves numerous allegations by the parties including allegations of family violence, of X being exposed to parental conflict and deficits in parenting capacity with the parties labelling each other as being “conflict focused, instead of child focused”.
In paragraph 72 Ms CC discusses the allegations of family violence that have been made in relation to the Father. She states:-
72.… Should the allegations be proven, it would appear that there is a consistent pattern of Mr Whiteoaks using violence to control Ms Marton; with it being alleged that he used physical, verbal, emotional and financial abuse. Notably, the pattern of violence use appears to increase at times when there is a perceived loss of control over Ms Marton. For example, increasing after the birth of X and Ms Marton’s need to be attentive to X’s needs over Mr Whiteoaks; increasing after separation due to Ms Marton choosing to be independent and parenting independently; and increasing after an attempt to reconcile failed. Although perpetration of family violence was reported by both of the parties, with them presently having competing FVIO’s against each other, Mr Whiteoaks reported his FVIO was to “protect him” from allegations, rather than being fearful of actual harm.
When discussing the Father Ms CC states at paragraphs 73 to 75:-
73.When considering the interaction between Mr Whiteoaks’ feelings, thoughts about being a parent to X and how that impacts his behaviour in making parenting decisions, it appears that he is driven to succeed as a parent and is frustrated by having a lack of control over the parenting due to Ms Marton being the other parent. As such, Mr Whiteoaks displayed limited insight into how his own behaviour overshadows his parenting function or how his behaviour impacts Ms Marton’s parenting function. This was evident when exploring the incident of serving Ms Marton with VCAT documents during changeover, with Mr Whiteoaks displaying limited insight about how his behaviour exposed X to the parental conflict and caused him to be distressed and fearful.
74. Although Mr Whiteoaks presented as a caring and genuinely loving parent to X, it is clear that he feels minimised in his role as a parent impacts his narrative with X, as observed during interview with Mr Whiteoaks reinforcing X’s distress about not spending time with him. In addition Mr Whiteoaks reinforced X’s understanding that he is missing out on time with his new sister and his toys when not at Mr Whiteoaks home. Should this narrative be maintained in the future, there is a propensity for X to form competing views about the two households and have difficulty adapting. It could be inferred that his recent decline in behaviour, is possibly a result of him already having difficulty with adapting, given the reported exposure to his parents conflict.
75.Mr Whiteoaks presented with a tendency to maintain cognitive distortions about his parenting of X: disqualifying the positives about the time he spends with him, because he views it as being limited; making ‘should’ statements, such as “it should be fair”. Mr Whiteoaks’ propensity to engage in a thinking pattern which includes cognitive distortions, appears to reinforce a belief that he cannot parent effectively or have a meaningful relationship with X, if he resides in Town C with Ms Marton.
When discussing the Mother Ms CC makes the following observations in paragraph 76 to 78:-
76. When considering the interaction between Ms Marton’s feelings, thoughts about being a parent to X and how that impacts her behaviour in making parenting decisions, it appears that due to the parenting conflict commencing when X was 11 weeks old, Ms Marton’s ability to parent without fear of conflict or criticism from Mr Whiteoaks has been limited. This is evidenced by Ms Marton’s reportedly lived experience of being a victim of family violence, and being controlled by Mr Whiteoaks, at a time when she was adapting to parenting. She explained that her ability to focus on X and his basic needs, such as breast feeding successfully, was minimised by Mr Whiteoaks, in his attempt to spend time with X. It appears that as a consequence of having to continually defend her parenting role, while navigating the conflict with Mr Whiteoaks, Ms Marton has been over protective of X and hyper-vigilant about Mr Whiteoaks’ and the paternal grandparent’s involvement in his life.
77. Ms Marton acknowledged that her decision to move to Town C without telling Mr Whiteoaks “was not okay” and that there is a likelihood it will impact X’s time with Mr Whiteoaks. It appears that Ms Marton’s relocation was opportunistic and driven by her desire to have reduced contact with Mr Whiteoaks and the City B region.
78. Ms Marton reported being frustrated by the involvement of the paternal grandparents in the conflict between the parties. This appears to be an issue attached to the breakdown of the relationship with Mr Whiteoaks, with the paternal grandparents involving themselves in the relationship conflict and supporting Mr Whiteoaks, even though it was behaviour experienced as family violence. As a result of not being supported by the paternal family when pregnant with X and her reported experience as a victim of family violence perpetrated by Mr Whiteoaks while living in their home, Ms Marton appears to have limited ability to support a relationship between the paternal family and X.
Ms CC’s conclusions in relation to the impact on X of his life experienced to date and his future requirements are set out in paragraphs 79 and 80:-
79. Both of the parties highlighted a change in X’s behaviour, as a consequence of being exposed to the parental conflict by the other party. Detailed as being aggressive, making statements which appears to mirror the other parties’ narrative and displaying distress when going to childcare, X appears to be struggling with the current parenting conflict. An inability for the parties to agree on X attending with a Mental Health Professional for assessment and treatment, has increased the risk of a decline in behaviour and or ongoing problems.
80. X is of a young and vulnerable age. He needs the adults around him to offer him stability and predictability and an environment free from conflict and family violence if he is to have any chance of meeting vitally important developmental milestones. It is in this context the following recommendations are made.
Vive Voce Evidence
Ms CC was asked whether she agreed with the Father’s belief that the Mother had moved to Town C in order to alienate X from him and minimise X’s involvement in his and his family’s life. Ms CC responded:-
That was not my impression at that time. My impression was that the mother was under quite significant… in terms of what was happening for X, and to be able to support herself, her own parenting role, she made that decision to move in the interim, whether or not that’s long term.
Ms CC had put to her the observations she made in paragraph 78 of her family report where she says about the Mother:-
As a result of not being supported by the paternal family when pregnant with X and her reported experience as a victim of family violence perpetrated by Mr Whiteoaks while living in their home, Ms Marton appears to have limited ability to support a relationship between the paternal family and X.
Ms CC was asked by the Mother’s Counsel:-
If my client is in fact a victim of family violence at the hands of the father, and if the paternal family have themselves not been supportive of her as a victim of family violence and have, indeed, perhaps aggravated that situation for her, would it be surprising that the mother would present as having that limited ability to support that relationship between the child and the paternal family?
Ms CC responded:-
It would be unsurprising if, certainly, that was proven that they had perpetuated her experience of family violence.
It was then put to Ms CC:-
It would be a very normal response for her to feel conflicted about the need to protect the child but also to encourage his relationship in a family that she had a lot of difficulty with; do you agree?
Ms CC responded:
I do agree.
Counsel for the Mother noted that both parties make allegations of violence against the other and asked Ms CC whether she got a sense from speaking to the Father that he perceives himself to be a victim of family violence. Ms CC responded:-
In speaking with Mr Whiteoaks and discussing the issues around family violence, I did not gain a sense that he was the victim of family violence in this matter. And that’s based on my extensive work in working with perpetrators and victims of family violence in the past.
Ms CC was then asked what the sense she got from the Mother was, whether the Mother believed herself to be the victim of family violence. Ms CC responded:-
Yes, definitely, I have a sense that her lived experiences were potentially something that did occur… when you look at the pattern of behaviour and some of the presentations
Ms CC was asked about the Father continuing to pursue his application for an intervention order against the Mother arising from the incident at changeover when he and the paternal grandmother attempted to serve the Mother with the VCAT documents and what impact that would have on the ability of the parties to co-operate going forward. Ms CC responded:-
In terms of seeking the conflict to continue through systems of authority, so through court processes, I think that perpetuates the conflict between the parties. So it does appear that they’re very conflict focused as opposed to parent focused in those moments when they’re making further applications such as that one.
It was put to Ms CC that she had assessed the Father as somebody who was “fairly lacking in insight in regard to his behaviour and its effect on the Mother”. Ms CC agreed.
Ms CC was asked whether she was of the view that the Father was somebody who, when she tried to explore some of the issues with him, “externalised the blame – put the blame on [the Mother] for what happened”. Ms CC responded:-
This is correct. Yes. And this is particularly in the context of discussing an incident that occurred at a changeover with regard to the… documents.
It was then put to Ms CC that:-
Any sensible person would – when asked about that incident, would really have to understand… that [it] really could have been very easily avoided by just not turning up and doing it.
Ms CC responded:
Very much so. And this was already put to Mr Whiteoaks during the interview and also why I discussed with him… using a process server in the past and why that didn’t occur in this instance.
Ms CC agreed with the Mother’s Counsel when she said that the Father had told Ms CC that the Mother’s allegations of family violence were all lies and that “I’m in another relationship and I have another baby. So… that proves I’m not a violent person.”
Ms CC had it explained to her by the Mother’s Counsel that when she was cross-examining the Father he repeated his evidence that he is now in another relationship and therefore he is not a violent person. The Mother’s Counsel had put to the Father that given his new relationship is “still in its infancy”, perhaps that is why it is “in a good state”. The Father responded that his current partner doesn’t try to “control him or manipulate him”. Ms CC was asked whether this comment by the Father caused her any concern. Ms CC responded that she couldn’t talk to the Father’s current relationship because she does not know the partner in that relationship. Ms CC then said:-
However, his experience of there not being any control or concern for him, that’s his understanding of her responses rather than his understanding of her experience.
Ms CC was then asked whether the Father’s evidence of why there was no violence in his current relationship was “another example of [the Father] externalising blame for his behaviour” or “a way of not taking responsibility for his behaviour by suggesting his reactions are as a result of how other people behave”. Ms CC responded that the Father “did present with a pattern of externalising blame”.
Ms CC was asked that if the Court finds that the Mother has been a victim of family violence in the way that she describes and the Father presented to the Court as lacking in insight, externalising blame and persistently being critical of the Mother and her behaviour, whether the Father was a candidate for a Men’s Behaviour Change Program. Ms CC responded:-
He certainly did present as needing to have some intervention with regard to his responses in intimate relationships or with regard to communicating in – in some of the ways that he has.
It was put to Ms CC that if the Father lives in an environment where his family do not challenge his behaviour or give him any reason to reflect on his behaviour, would that not enable him to continue to do so and not augur well for him to do things differently in the future.
Ms CC responded:
It perpetuates the behaviour.

Therefore an order will be made that the Mother, as X’s primary carer, is to have sole parental responsibility for him.
This does not mean that the Father is excluded from having input into the major decisions that need to be made for X. There will be orders made that the Mother is to consult the Father in relation to the decisions that need to be made. She will advise the Father in writing of the decision that needs to be made, put forward her proposals and seek the Father’s response for her consideration. If the parties are unable to agree then the Mother will make the final decision.
Where the parents have equal joint parental responsibility for a child, section 65DAA of the Act requires the Court to consider the child spending equal time, or substantial and significant time, with each parent.
The Full Court in the matter of Goode & Goode [2006] FamCA 1346 held that even where there is no order for equal shared parental responsibility, the Court can and should still consider whether an order for equal time or significant and substantial time is in the child’s best interests.
In this matter, in the event that relocation is allowed such that the Mother and X live in Town C, it is not practical that orders be made for equal time or significant and substantial time because of the geographical distance between Town C and City B.
In the event that relocation is not allowed, it is the very clear evidence of Ms CC that the parties’ highly conflicted relationship is a strong contra-indicator that an equal time arrangement would be in X’s best interests. She strongly recommends that there be orders made for X to live primarily with the Mother and spend substantial time with the Father.
It is also Ms CC’s evidence that if relocation is allowed, the proposal of the Mother in this matter that X’s time with his Father be initially reduced and built up over the next 12 months to enable him to settle, have a safe and secure environment and benefit from the ongoing counselling that he is currently receiving would be an appropriate arrangement for X.
CONCLUSION
Relocation cases can be amongst the most difficult matters to determine. They can result in a decision which sees a child living a considerable distance from one of their parents and therefore limiting the amount of time that child can spend with their non-resident parent and the level of involvement that the non-resident parent can have in their child’s day to day activities. A refusal to allow a parent to relocate can result in that parent being unhappy, distressed and living where they feel exposed to ongoing conflict and abuse and away from their family and support base.
At the centre of this case is the parties’ much-loved three year old son X.
These parties were fairly young when they commenced a relationship. It is clear from their evidence that they weren’t particularly compatible and they were in the process of breaking up when X was conceived. They made the decision to try and make their relationship work given they had created a child together. Sadly their attempts to continue their relationship were not successful and they separated for the first time very shortly after X was born, on the Mother’s evidence because of ongoing incidences of emotional and verbal abuse perpetrated by the Father. Upon separation the Mother returned to her family home in Town C as she was seeking the support and security of her family at this time.
The Father’s response to the parties’ separation was to immediately institute legal proceedings in an endeavour to force the Mother to return to City B because of his fear that in returning to her family in Town C, the Mother was attempting to remove X from his life.
In October 2018, some eight months after the parties’ first separation, the Mother and X moved back from Town C to City B as the parties attempted to reconcile. The parties’ attempt at reconciliation was short-lived and they separated on a final basis in July 2019 when X was less than two years of age.
The living arrangements for X that then ensued are well set out in this judgment. It is fair to say that he commenced spending significant and substantial time with his Father from a very young age including multiple overnights each fortnight.
The parties’ unhappy, highly conflicted and unsatisfactory relationship continued post-separation and they were and are unable to communicate with each other in any co-operative or child focused way.
The Mother’s evidence in relation to the family violence to which she was exposed during the relationship and the Court’s findings that it accepts the Mother’s evidence in relation to that violence is set out in this judgment.
The evidence in relation to the difficulties that the Mother has in her relationship with the extended paternal family, and the paternal grandmother in particular, are also well documented in this judgment.
In February 2021 the Mother unilaterally moved back to her family home in Town C with X. On her evidence she did so for her safety, security and the practical and financial support she received from her family. The Mother did not initially tell the Father that she had returned to Town C. She ensured she complied with the orders for X to spend time with the Father by travelling to City B three times a fortnight to ensure that time occurred.
The Father was formally advised that the Mother had moved to live in Town C with X during the interviews for the family report in May 2021. He immediately issued proceedings seeking an urgent recovery order in the event the Mother did not return to City B. When that application came before the Court, the Mother was not required to return to City B but the existing time spend arrangements were kept in place.
Both parties give evidence of a deterioration in X’s behaviour this year with him being argumentative, violent and unsettled.
In the Mother’s trial affidavit she deposes to very concerning comments being made by X after spending time with his Father. These include X being exposed to alleged arguments and physical altercations between the Father and his now partner Ms H, of the Father being scary, of the Father yelling at him and of the paternal grandmother making derogatory comments about the maternal family.
The Father gives evidence of X also behaving aggressively in his presence and of saying things like “fuck Daddy”.
The Mother attributes X’s concerning behaviours to his exposure to family violence in the Father’s home. The Father attributes X’s behaviours to him being distressed by not spending sufficient time with him and to negative comments to which X is exposed in the Mother’s home.
Both parties give evidence of the conflict to which X is exposed at changeover, each alleging it is the other who has behaved inappropriately, screaming and yelling at the other in front of X, causing him understandable and considerable distress.
The Father is seeking orders for the Mother and X to return to City B and that they be restrained from living anywhere except within 50km of the City of Greater City B.
The Father seeks orders for a graduated increase in the time X spends with him culminating in a shared care arrangement.
The Father expresses the very strong belief that X should have the equal involvement of both his Mother, his Father and the extended paternal family and that such an outcome is only “fair”.
It is the Father’s evidence that he believes that the Mother’s is motivated to relocate to Town C because she wants to exclude him from X’s life and that if she is permitted to relocate, his relationship with X will be effectively reduced to nothing.
The Father has re-partnered and he and Ms H have a baby daughter Y who is six months old. It is the Father’s evidence that a relocation to Town C would also have a very negative impact on X’s relationship with Y as it would be impossible for that relationship to properly develop if they were to live so far apart and X spend the limited time with the paternal family that is being proposed by the Mother.
It is the Father’s evidence that if the Mother is permitted to relocate to Town C, he and Ms H are not in a position to move closer to Town C. The Father is currently an apprentice carpenter whose employer is based in City B, Ms H is a student health care worker who is due to return to her studies in City B in 2022 when she completes her maternity leave. Both their extended families and their friends live in the City B area.
It is the Mother’s evidence that she wishes to relocate to Town C in order to have the support, financial security and stability that can be provided by her family in Town C.
It is the Mother’s evidence that if she were to remain in City B she would continue to be subjected to the control, intimidation and manipulation of the Father and the extended paternal family.
It is the Mother’s further evidence she believes that X is being adversely impacted by the family violence she believes he is being exposed to in the Father’s home. It is her evidence that the comments that X is making in relation to what is happening in the Father’s home is exactly the same kind of family violence to which she was exposed when she lived with the Father.
It is the Mother’s evidence that she believes that it is in X’s best interests that he be permitted to relocate with her to Town C where he will have the safety, security and stability of life with her. They will be able to live in her parents’ five bedroom home where they have their own bedrooms. X will be able to continue to engage with his therapist so that he can address the issues that are impacting on his current disturbed behaviours. He can be enrolled in childcare/kindergarten and enjoy extra-curricular activities and return to being a happy and joyous little boy.
The Mother is a qualified health care worker. She has obtained casual employment as a health care worker with Employer J. It is her evidence that if her application to relocate to Town C is successful she will be able to commit to settled work hours which will allow her to be available to care for X and at the same time become financially secure. Her plan is to save and purchase a home for herself and X in the long term.
The Mother is adamant that her wish to move to Town C is not to remove the Father from X’s life. It is the Mother’s evidence that she knows X loves his dad, who has a very important role to play in X’s life. It is her evidence she believes her proposed arrangements for X’s time with his Father will ensure that X maintains his loving and meaningful relationship with his Father but at the same time give him the safety and security of a set base with her and, more importantly, remove him from his constant exposure to the conflict between his parents which is all he has known all his life.
In her family report Ms CC expresses the view that X would benefit from living primarily with the Mother and spending significant time with the Father. She sets out two options for X’s living arrangements dependent upon where it is the Court determines it is in X’s best interests to reside.
When giving her vive voce evidence, Ms CC opined that if the Court makes a finding that the Mother is a victim of family violence and that the Father is someone who lacks insight and externalises blame in relation to the impact of his behaviour on others then it would be important for the Mother’s parenting functioning that she live in an environment where she is not exposed to continual fear and conflict. Ms CC stated that living in City B would expose the Mother to that continued fear and conflict.
That the Mother is a victim of family violence at the hands of the Father is a finding that the court has made. That the Father externalises the blame for his behaviours, for X’s behaviour and for people’s responses to him is also a finding that has been made in this judgment. That the Father lacks insight in relation to how his behaviours impact others, how those behaviours are in fact family violence and how, most importantly, his behaviours impact X is also a finding that has been made in this judgment.
Perhaps the best example of the Father’s capacity to externalise blame and the lack of insight he has to those behaviours is the incident that occurred when he attended changeover with the paternal grandmother knowing she was intending to serve VCAT documents on the Mother in front of X. He knew the Mother had asked him on multiple occasions to not have the paternal grandmother at changeover as she found that confronting and often caused conflict at changeover which was very distressing for X.
On the Mother’s evidence the Father and the paternal grandmother were yelling and screaming abuse at her when she initially refused to accept the documents. On the Father’s evidence the Mother started yelling when they tried to give her the documents. On either party’s evidence X was witness to the three most important adults in his life yelling and screaming at each other. Understandably, he got very upset. Rather than going straight home the Father and the paternal grandmother then returned to the changeover location where the Mother was trying to soothe X. They did so allegedly because they were concerned about how upset X was. The Father concedes his and the paternal grandmother’s return did not help X settle.
Neither the Father nor the paternal grandmother concede their decision to serve the Mother with court documents at changeover in front of X was inappropriate and not in X’s best interests. They both blame the Mother for over-reacting.
When discussing this incident in her family report, Ms CC makes the following observations:-
Mr Whiteoaks displayed limited insight into how his behaviour during this incident, could be viewed as controlling, not prioritising their son’s needs and may be seen as a form of family violence.
In her family report Ms CC notes the allegations of family violence and makes the statement that should the allegations be proven, there appears to be a consistent pattern of the Father using violence to control the Mother which increases at times when there is a perceived loss of control over the Mother.
Ms CC states that when considering the interaction between the Father’s feelings, his thoughts of being a parent to X and how that impacts his behaviour in making parenting decisions, it appears the Father is driven to succeed as a parent and is frustrated at having a lack of control over parenting due to the Mother being the other parent. She states that as such the Father displays limited insight into how his own behaviour overshadows his parenting function or how his behaviour impacts the Mother’s parenting function.
Ms CC notes that whilst the Father presents as a caring and genuinely loving parent, it is clear that he feels minimised in his role as a parent and that this impacts his narrative with X. She notes that during observations of the Father with X, the Father reinforced X’s distress about not spending time with him and reinforced X’s understanding that he is somehow missing out on time with his new sister and new toys because he is not at the Father’s home.
Ms CC says that should the Father’s narrative in this form be maintained in the future, there will be a propensity for X to form competing views about his two households and have difficulty adapting. She notes it can be inferred that X’s recent decline in behaviour is possibly the result of him already having this difficulty given his exposure to his parents’ conflict. Ms CC concludes both parties highlighted a change in X’s behaviour as a result of being exposed to the parental conflict by the other party. She states that X appears to be struggling with the current parenting conflict. She concluded that:-
X is of a young and vulnerable age. He needs the adults around him to offer him stability and predictability and an environment free from conflict and family violence if he is to have any chance of meeting vitally important developmental milestones.
It was in this context that Ms CC recommended that X live primarily in the Mother’s care.
It is a constant theme in the Father’s evidence that the importance of his role in X’s life is directly related to the amount of time that X spends with him and that if X were to spend less than equal time with the Father, then he would not be as equally important to X as the Mother.
The evidence before the Court does not support this belief of the Father. The Father is a vital and important figure in X’s life and he will remain so as long as X spends regular and consistent time with him.
It is very clear from the evidence before the Court that the Mother was and is a victim of family violence. It is not in her best interests to remain in City B where the ongoing conflict and interactions with the paternal family must and will continue with a level of frequency that will not see a diminution in that conflict. More relevantly, if the Mother and X were to remain in City B, X’s level of exposure to this conflict will not be reduced.
For these reasons X’s best interests are met if he and the Mother are permitted to reside in Town C and orders be made for him to spend regular time with his Father.
Whilst the Mother’s proposal is that initially X spend alternate weekends from Saturday to Sunday with his Father, I am not of the view that the time he spends with the Father each alternate weekend needs to be reduced to one night only. It is not in X’s best interests he travel two and a half hours on each of the days he spends with his Father. He should be able to have an entire day with the Father where he wakes up and goes to bed in the Father’s home. X has been spending alternate weekends with his Father from Friday to Sunday for a very long time now and it is something with which he is very familiar. I am satisfied that that arrangement should continue.
I am of the view that extended holiday time should not start immediately and X should be allowed to settle fully into life in Town C including being enrolled in kindergarten and participating in structured extra-curricular activities.
I am of the view that holiday time should start in the Term 2, 2022 holidays and build up over time in a structured and graduated manner so that X is spending half the school holidays as well as alternate weekends with his Father by 2023.
It will be important that X is afforded the opportunity to fully explore his Aboriginal heritage in City B with the paternal family. It is on his paternal side that he has Aboriginal heritage and City B is his country. It will be important that he spends time during the National Aborigines and Islanders Day Observance Committee (“NAIDOC”) week with the Father and paternal family.
X should also be afforded the opportunity to share special occasions with both his parents including Christmas, Father’s Day, Easter and where possible birthdays, both his own, his sister’s and his Father’s if that is practicable.
In relation to changeover it is probable that someone other than the Father will need to collect X on a Friday if the Father is unable to leave work at an hour early enough to collect X from the Mother’s home. That person should not be the paternal grandmother.
It makes sense that changeover be at a mid-point between the parties’ home but the necessity for punctuality rises its head. For this reason for the first 12 months the Father (or his agent) is to collect X from Town C at the commencement of time and the Mother (or her agent) is to collect X from the Father in City B at the conclusion of time. After 12 months changeover is to be at an agreed midpoint. If the parties cannot agree on that midpoint then changeovers should continue as per the changeover arrangements for the next 12 months.
As was previously set out in paragraph 225 of this judgment, orders will be made for the Mother to have sole parental responsibility for X with the requirement that she consult with the Father in relation to any decisions before they are made.

I am conscious that the Father will be very distressed by this decision and feel that he is being sidelined in the life of his son. Nothing could be further from the truth. The Father is and will always remain as equally important as the Mother in X’s life and he should not measure that importance in terms of the hours or days he spends with X but rather by the loving relationship he shares with him.
What X most needs from both his parents is for them to acknowledge that it is their own behaviours and not the behaviour of the other parent that is so adversely affecting X. Neither of them are currently shielding X from their conflicted and toxic relationship. If X is to develop into a happy, functioning, delightful young boy meeting all of his milestones then his parents’ conflict must stop. It is incumbent on the parties as X’s parents to recognise their own responsibility to address their behaviours so that X is allowed to love them both, can spend time in each of his parents’ homes without being made to feel that there is something wrong with the other parent and that he has their wholehearted support in the love he has for each of them.

I certify that the preceding two hundred and eighty-five (285) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bender.
Associate:
Dated: 30 November 2021

File number(s):	MLC 3501 of 2018
Judgment of:	JUDGE BENDER
Date of judgment:	30 November 2021
Catchwords:	FAMILY LAW – parenting – relocation – mother’s Application to relocate from City B to Town C with the parties’ three year old son – where the Mother unilaterally relocated the child’s residence to Town C pending the final hearing – where the Father proposes that it is in the child’s best interests for the Mother to remain living in City B – where the Father proposes that the parties have shared care of the child upon his turning five years of age – where the Mother has suffered from family violence at the hands of the Father which has been witnessed by the child –where the Mother seeks sole parental responsibility for the child given the family violence between the parties. HELD – the Mother be permitted to relocate the child’s residence from City B to Town C – the child live with the Mother and spend time with the Father increasing to each alternate weekend and half of school holidays once the child turns five years of age – the Mother have sole parental responsibility.
Legislation:	Family Law Act1975 (Cth) ss 60B, 60CA, 60CC(2), 60CC(3), 61DA, 65DAA, 102NA
Cases cited:	Taylor v Barker [2007] 37 Fam FLR 461 Fawkner & Kado [2020] FCCA 1535 AMS v AIF (1999) 199 CLR 160 U & U (2002) 211 CLR 238 Heath v Hemming(No.2) [2011] FamCA 749 Goode & Goode [2006] FamCA 1346
Division:	Division 2 Family Law
Number of paragraphs:	285
Date of last submission/s:	7 September 2021
Date of hearing:	6-7 September 2021
Place:	Melbourne
Counsel for the Applicant:
Solicitor for the Applicant:	Van Beveren Lawyers
Counsel for the Respondent:	Ms Agresta
Solicitor for the Respondent:	MMH Lawyers

MLC 3501 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR WHITEOAKS Applicant
AND:	MS MARTON Respondent

ORDER MADE BY:	JUDGE BENDER
DATE OF ORDER:	30 NOVEMBER 2021