Winfield & Girault
[2022] FedCFamC2F 1451
Federal Circuit and Family Court of Australia
(DIVISION 2)
Winfield & Girault [2022] FedCFamC2F 1451
File number(s): DNC 104 of 2020 Judgment of: JUDGE YOUNG Date of judgment: 28 October 2022 Catchwords: FAMILY LAW - parenting – concerning a child who is three years old - where the child lives with the mother and spends time with the father - where the mother wishes to relocate interstate with the child - where the mother seeks sole parental responsibility - where the father opposes - where there are allegations of coercive or controlling behaviour by the father - Court satisfied the father demonstrates coercive or controlling behaviour - where there is significant mistrust between the parents - Court satisfied the mother should be permitted to relocate with the child Legislation: Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 61DAA, 61DAB, 65D Cases cited: AMS v AIF (1999) 199 CLR 160
Morgan & Miles (2007) 312 FLR 114
Palmer & Hammer (No.2) [2011] FamCAFC 196
Sayer & Ratcliffe (2012) 48 FLR 298
Starr & Duggan [2009] FamCAFC 115
U v U (2002) 211 CLR 238
Division: Division 2 Family Law Number of paragraphs: 88 Date of hearing: 15, 16 and 17 August 2022 Place: Darwin Counsel for the Applicant: Mr Norrington Solicitor for the Applicant: TCF Lawyers Counsel for the Respondent: Ms Franz Solicitor for the Respondent: Central Australian Women’s Legal Service ORDERS
DNC 104 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR WINFIELD
Applicant
AND: MS GIRAULT
Respondent
order made by:
JUDGE YOUNG
DATE OF ORDER:
28 October 2022
THE COURT ORDERS THAT:
Parental Responsibility
1.All previous orders are discharged.
2.That the mother have sole parental responsibility for the child X (“the child”) born in 2019.
3.Notwithstanding Order 2, the mother is to inform the father of any major long-term decision she proposes to make in respect to the child, unless the decision must be made urgently, and give him a reasonable time to respond. She may take his response into account in making the decision.
Living Arrangements
4.The child is to live with the mother.
5.The mother be at liberty to relocate the residence of the child to Perth, Western Australia at any time from the beginning of November 2023.
6.Until the residence of the child is relocated to Perth or after relocation, if the father also relocates to Perth, the child is to spend time with the father:
6.1each alternate weekend from 5 pm on Friday until 9 am Monday;
6.2each Tuesday from 5 pm until 5 pm Wednesday;
6.3once the child commences primary school, in accordance with orders 7.4.2, 7.4.3 and 7.4.4; and
6.4the mother may place the child in childcare during any time she has care of the child pursuant to these orders.
7.Upon the child’s relocation to Perth, if the father has not relocated to Perth, she is to spend time with the father as follows:
7.1Until the child commences primary school:
7.1.1From 5:30 pm on Friday to 9.00am on Monday one (1) weekend per calendar month, such time to occur in Perth;
7.1.2For a one week holiday on two (2) occasions per year, such time to occur at the father’s choice of location; and
7.1.3At such further and other times as may be agreed by the mother and father in writing.
7.2In the event the father intends to spend time with the Child as provided for in paragraphs 7.1.1 and 7.1.2, the father provide no less than twenty-eight (28) days’ notice to the mother.
7.3For the purpose of Order 7.1.1, the mother and father are to equally share the cost of the father’s return flight to Perth.
7.4Once the child commences primary school:
7.4.1From the conclusion of the school day (or from 5.30pm if the child does not attend school that day) on Friday until the commencement of the school day (or until 9.00am if the child does not attend school that day) on Monday one (1) weekend per calendar month, such time to occur in Perth;
7.4.2One (1) week of each of the Western Australian short term holidays;
7.4.3In odd numbered years, for three (3) weeks during the long Western Australian summer holidays; and
7.4.4At such further and other times as may be agreed by the mother and father in writing.
7.5In the event the father intends to spend time with the child as provided for in paragraphs 7.4.1 and 7.4.2, the father is to provide no less than twenty-eight (28) days’ notice to the mother.
7.6For the purpose of paragraph 7.4.1, the mother and father equally share the cost of the father’s return flight to Perth until the child attains 12 years of age.
Mediation
8.Before, or within a reasonable time after, the child commences primary school the parties are to attend on a family dispute resolution practitioner in Perth, or elsewhere if agreed, to discuss arrangements for time spending when the child commences primary school, but if no new arrangements are agreed these orders are to continue to apply.
Christmas
9.Notwithstanding any other Order, unless otherwise agreed in writing between the parents, the child spend time with the parents over Christmas as follows:
9.1in all odd numbered years with the father for a seven (7) day period, inclusive of Christmas Day; and
9.2in all even numbered years with the mother.
Communication
10.The child communicates by telephone or video call with the father when the child is living with the mother as follows:
10.1On Tuesday at 5.00pm Australian Western Standard Time each week;
10.2On Thursday at 5.00pm Australian Western Standard Time each week; and
10.3On Saturday at 5:00pm Australian Western Standard Time each week.
11.The mother communicates with the child by telephone or video call when the child is spending time with the father outside of Perth as follows:
11.1On Tuesday at 5.00pm Australian Western Standard Time each week;
11.2On Thursday at 5.00pm Australian Western Standard Time each week; and
11.3On Saturday at 11.00am Australian Western Standard Time each week.
Travel
12.Until the child commences primary school, the mother be permitted to travel within Australia with the Child on two (2) occasions per year for a period of seven (7) days.
13.Once the child commences primary school, the mother be permitted to travel within Australia with the child for one (1) week of each Western Australian short term holidays and for three (3) weeks during the Western Australia summer holidays.
14.The mother be permitted to travel overseas with the child on one (1) occasion per year for no more than twenty-eight (28) days to a country that is a signatory to the Hague Convention provided that the mother ensures the child telephone or video call the father on at least three (3) occasions each week during the overseas holiday at days and times agreed upon prior to travel or, in the absence of agreement, at times nominated by the mother.
15.The mother is to retain the child’s Australian passport, save as it is necessary for the child to spend time with the father in accordance with Orders 7 and 8.
16.That within fourteen (14) days of being requested in writing each party, if required, will do all acts and things and sign all documents necessary to obtain and/or maintain valid Australian and Country D passports for the child.
Other Orders
17.Each parent will keep the other party informed of their current contact telephone number and address.
18.Each party is authorised to obtain from the child’s school, childcare centre, kindergarten, day-care and the like all notices, letters, school reports and invitations and to attend parent/teacher interviews or other activities to which parents are usually invited.
19.The parents are restrained by injunction and an injunction issue restraining each of the parents from denigrating the other party or the other parent’s family in the presence or hearing of the child and from allowing the child to remain in the hearing or presence of any other person who may be denigrating the other parent or the other parent’s family.
20.The parents are to each complete the “Circle of Security” program.
21.Unless he has already done so the father is to complete a parenting after separation program.
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 Winfield & Girault has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE YOUNG
This is a parenting case about a child, X, who is three and a half years old.
X lives with the mother and spends 5 nights a fortnight with the father.
The mother wishes to relocate with X from City B to Perth, sometime before the child reaches school-age, five years old, in 2024. She proposes that the current five nights a fortnight regime continue, with some slight alterations, should she relocate and the father relocates as well. She also seeks sole parental responsibility.
The father opposes the mother's relocation with the child but says, in the alternative, that if she is permitted to relocate it should be to Melbourne or Victoria where he has family, including his father, stepmother, mother and sister. The father seeks sole parental responsibility in relation to the education of the child.
The father said that if the mother relocates to Perth he will follow, albeit unwillingly, in order to maintain his relationship with his daughter. He said his current partner, Ms C, who is pregnant with their child, will also move, albeit with great reluctance, to Perth.
Background
The applicant father was born in Melbourne and members of his family live in Melbourne and regional Victoria. The father is 40 years old. He is a qualified educator holding bachelor degrees. He is currently working limited hours as an educator.
The mother was born in Country D. She is 37 years old and is employed by a Company E. She has no family in Australia apart from X.
The parties met in Town F, a small tourist enclave near Town G, in 2014 and began a relationship in 2015. The father's former partner died by suicide about that time and both parties suffered adverse mental health effects.
Also of relevance is that in 2015 the father was charged with an historical rape in Victoria. He was acquitted at trial in 2018 following a Prasad direction. That was not in dispute. According to the mother, and again this was not in dispute, following the father being charged with rape two women in Town F told the mother that the father had acted towards them in a way that constituted a serious sexual impropriety. The father denied in each case any impropriety but agreed that something had been said to the mother by these women. The mother said that these matters weighed on her mind when in 2021 she became concerned that the father may have acted improperly towards the child. Those concerns were investigated by Territory Families and the Northern Territory Police Child Abuse Taskforce and not substantiated. The mother says she accepts that her concerns were unfounded.
In February 2020 the parties separated. The mother left Town F with the child and went to live in City B. The father initiated proceedings in March 2020 seeking an airport watch list order and that the mother return to Town F with the child. An airport watch list order was made but no other orders were made. The father relocated to City B. For a time the child lived with the mother and spent time with the father as agreed with the mother.
In July 2020 the father filed a further application seeking orders for sole parental responsibility, that the child live with him and that he be permitted to relocate to Melbourne with the child and for orders for the child spend time with the mother. The mother's response sought equal shared parental responsibility, the child live with her in City B and orders for the child to spend time with the father.
On 11 August 2020 consent orders were made that the child live with the mother and spend time with the father each Sunday from 9 AM until the commencement of child care (or 9AM) on Monday morning, each Tuesday from 5 PM until Wednesday 5 PM and each Friday from 1 PM to 5 PM.
It appears that those orders led to almost immediate difficulties between the parties. The father interpreted the orders as not requiring him to deliver the child childcare at 9 AM on Monday but at the time he chose. The mother complained that this was often at about 3 PM, shortly before she called to collect child.
The other difficulty is that the father objected to the mother placing the child in childcare on Tuesday as, he asserted, he was available to look after the child. This is discussed below.
On 27 April 2021 consent orders were made clarifying, if clarification was required, that the child would spend alternate weekends from 5 PM Saturday to 5 PM Monday and alternative Mondays from 8 AM until 5 PM and each Tuesday from 5 PM until 5 PM on Wednesday, or four nights a fortnight, with the father. The parties subsequently agreed that the child should spend from Friday to Monday on alternate weekends with father, a total of five nights a fortnight.
As noted above, after the orders of 11 August 2020, the father objected, notwithstanding his consent to those orders, to the mother placing the child in childcare on Tuesday because, he said, he was available to care for the child. The mother was unwilling to agree. The father objected directly to the H childcare centre. The childcare centre management took the view, and still take the view, that they would not have the child on that day, or indeed at all, if the father objected.
On 6 May 2021 the childcare centre management suspended the child’s attendance due to the disagreement about whether the child would attend on Tuesdays. On 9 June 2021 the parties agreed that the child would not attend the H childcare centre on Tuesdays. The mother’s employment is dependent on her having suitable child care. She said, and I accept, that she felt pressured to agree that the child would attend childcare only on Monday, Thursday and Friday. She said she was unwilling to give in to the father’s demand that the child should spend Tuesday with him. She said that as a result she is unable to work Tuesday because she has no childcare on that day. She said that this causes her financial hardship and is unreasonable. She says this is an example of coercive or controlling conduct by the father. At trial the father agreed that he would drop his objection to the child attending childcare on Tuesday.
Allegations of the father’s coercive or controlling behaviour
The mother alleges that the father engaged in behaviour towards her that was, or was intended to be, coercive or controlling and was, in any event, unreasonable and oppressive. She says this is an important factor in her wish to relocate with the child from City B to Perth. As Perth is a far larger city, the mother says she will have greater autonomy, live in less proximity to the father, and there will be benefits for her mental health and outlook.
The mother pointed to a number of examples of the father’s behaviour.
According to police records, on 22 April 2020 the father telephoned the police and sought a welfare check on the mother and the child. He said the mother missed presenting the child for a previously arranged Zoom call with him that morning. He told the police that the mother had a history of self-harm and he had not heard from her since the previous court date on 20 April 2020. He said the mother had refused to provide evidence of the child’s welfare and that he was concerned for the welfare of the child. The police attended on the mother personally. She explained that she had spoken to the father the previous evening by Zoom and that there was no basis for the father’s expression of concern. She said the business of the day prevented the call that day. The police accepted the mother’s explanation. The police told the father that he was not to waste police time in future in connection with family law proceedings. In cross-examination the father agreed that he had spoken to the mother the night before and that the police record was substantially correct.
The father’s call to police was dishonest. I am satisfied he lied to the police about not having heard from the mother in order to manipulate them into visiting the mother. He did not explain his motivation in evidence. I am satisfied the father was not concerned about the child’s welfare and his likely motivation in involving the police was to send a message to the mother that there would be consequences if he did not get his way or his wishes were thwarted.
In August 2020, Ms J of the H childcare centre management, wrote to father and said, in summary, that she did not believe that the father’s continued presence at the childcare centre as a “volunteer” during times that the child was in the care of the mother was consistent with the court orders. She said that the centre no longer supported the father’s presence as a volunteer during those times although, he continued to be welcome at any curricular activities and special events within the childcare centre. The father replied and threatened a complaint to the NT Anti-Discrimination Commission. He said that unless he had a response within seven days stating that he was welcome to attend at the centre he would lodge a formal complaint of discrimination against the centre. Ms K for the H centre replied to the father that, on a reconsideration of the court order, it appeared that while the child was in the care of the father on Wednesdays he was welcome to attend the centre on that day. Otherwise the centre stood by its original position.
On 12 October 2020 the father sent the mother a series of 5 emails, each one hundreds of words long. In the first, at 12:17 pm, the father, after asserting particular expertise in the question of the child’s day-care because he held education qualifications, objected to the child attending day-care unless he agreed. He also proposed to be present at day care when the child was there, presumably as a “volunteer”. The father also insisted on being a joint signatory to any excursion permission slip for the child. In the second email, at 12:38 pm, the father referenced his bachelor of health care and superior knowledge of human nutrition and complained that on two occasions at drop off the mother had given the child a cup of apple juice. In the third email, at 12:48 pm, the father wrote to the H child care centre, copying in the mother, referencing his education and apparently insisting that he be the parent to sign excursion permission slips. In the fourth email, at 1:12 pm, the father complained that the mother had placed the child with a babysitter. In the fifth email, at 1:39 pm, the father asserted that the child should “ … have the benefit of 15 - 30 minute changeovers when being exchanged”. He proposed that they meet 15 minutes before the changeover and depart 15 minutes after the changeover. The father was aware that the mother was opposed to this.
The tone of the emails is assertive, superior and insistent. One might imagine the mother reacting anxiously to such a communication style.
In February or early March 2021 the father again came into dispute with the H childcare centre management. The dispute seems to have arisen from the disagreement between the parties about when the child would attend childcare. Because the parties were unable to agree the centre management “suspended” the child’s attendance. The father replied to the manager of the centre that, “this is an unnecessary act of aggression towards a two year old child”. He also claimed that one of the managers of the childcare centre, Ms K, had described the father as acting in an “aggressive and threatening” way towards another member of staff of the child care centre. The father asserted that this description constituted “gross misconduct”. He said he “expected an immediate, unreserved, full, written and formal apology for her behaviour”. He said that Ms K had acted “so irresponsibly” that he had “lodged a formal complaint with the NT anti-discrimination body”. The CEO of the H childcare centre, Mr L, replied that he had discussed the matter with the relevant staff and he stood by the claims and supported the staff.
A complaint by the father to the NT Anti-Discrimination Commission dated 1 March 2021 against the centre was admitted into evidence alleging discrimination on the basis of sex, marital status and parenthood. The complaint ranged over a variety of grievances, including the centre’s refusal to have the father of the centre a volunteer other than when the child was in the father’s care and various related issues. In evidence, the father was unable to say, in any clear way, what had become of the complaint. I consider it likely that it was dismissed by the Commission as not disclosing a prohibited ground of discrimination.
On 6 March 2021 the father attended at the City B police station. He asserted that he had been advised by “legal aid” to attend at the police station and make a complaint about “unfair treatment by H childcare”. According to the police record he was advised that it was a civil matter. He said that he wanted the police to speak to the childcare centre about the “real reason why they cancelled his daughter’s position”. He threatened to make a complaint against police unless police did so. The police refused to do so.
I do not believe that the father was given any such advice by “legal aid” or anyone else. The father’s conduct and complaint to police was, I am satisfied, intended to improperly apply pressure to the H childcare centre management. When thwarted, the father’s response was to threaten the police themselves with a complaint.
Following the consent orders of 27 April 2021, intended to clarify when the child would attend the childcare centre, a fresh dispute developed about the interpretation of those orders. On 6 May 2021 Mr L wrote to the father and the mother saying that unless the dispute between the parents was resolved the child would be “suspended” for two weeks and would only be accepted back once the parents had resolved the disagreement. On that day the mother wrote a highly conciliatory reply to Mr L, apologising for the situation, saying that she was embarrassed and she understood the position of the H Childcare Centre. It appears that the centre attempted to reach a mediated solution. On 21 May 2021 the father wrote to Ms K claiming that he was victimised by her.
Ms K replied to the father on that day asking for his agreement to the child attending the childcare centre on Tuesdays and for his agreement to various other matters including the mother being permitted to approve the child attending any excursion rather than by both parents, another person being permitted to drop the child off when she is on the mother’s care and, in the case of accident or emergency, seeking his agreement to contact the mother first and then him, rather than having to contact both parents.
The father replied with a lengthy email, rejecting each request. He asserted that the mother had, as appears to have been the case, dropped her request that the child attend childcare on Tuesdays. As noted, in evidence the mother said that she felt pressured to agree because her employment was at risk otherwise. In response to the request that the mother be permitted to sign permission for excursions the father replied that the order for shared parental responsibility meant that his permission was required as well.
In late April 2021 the mother booked the child in for a flu vaccination on 4 May 2021. The mother informed the father of the booking and the time. The father replied, “Ms Girault. You must stop advising me. I have equal shared parental responsibility and I am to be consulted. X will not be having further flu vaccinations. I do not consent to my daughter, X, receiving a flu vaccination”. The father referred to “further flu vaccinations” because the child had received a flu vaccination in the previous year, to which he had agreed.
Ms M, a child and family health nurse employed at the clinic in City B, gave evidence. She said the mother had telephoned her on 30 April 2021 and said that she was concerned the father would object to the child’s flu vaccination. Ms M telephoned the legal services office at the Department of Health and sought advice. She said she was told that one parent could approve a vaccination but if there were safety concerns a clinician was not obliged to give the vaccine. She said that on 4 May 2021 she received a telephone call from the father. She said the father told her he did not agree to the vaccination. Ms M replied that the clinic only required the consent of one parent for a vaccination. She said the father then said that he would attend the clinic and remove the child. Ms M said that she interpreted this as a threat and was concerned about the well-being of her staff should the vaccination go ahead. Ms M said she asked the father why he was opposed to the vaccination and whether the child had suffered any adverse effects from her previous vaccination. She said the father stated the question was “irrelevant” and did not offer any reason for refusing to agree to the vaccination. She said that in view of the father’s attitude she advised the mother that the clinic would not provide the vaccination. Ms M’s evidence was not challenged.
In cross-examination the father was asked why he refused to agree to the vaccination. Ultimately he said the reason was he did not like the manner in which the mother had advised him. I am satisfied that the father had no genuine or rational reason for refusing to agree to the child’s vaccination. I am satisfied that his primary motivation, and perhaps only motivation, was to assert his control over the mother and the child. I am satisfied his conduct was coercive.
As an example of the difficulty in communication between the parents, the mother annexed to her trial affidavit a series of text messages exchanged on 18 October 2021 in relation to the need to protect the child from too much exposure to the sun. The father told the mother that he wished to have a “discussion” with her about that subject. The mother replied that she took care to protect the child from sun exposure by always using sunscreen, putting a hat on the child and using clothing that covered the child’s shoulders and otherwise avoiding excessive sun exposure. The mother asked the father if he thought there was anything else she should do. The father repeated a number of times that he wished to “discuss” the subject, without saying what it was that required further discussion. The mother said that the issue was common sense and she did not think that it needed further discussion. Eventually the father, unfairly and inaccurately, framed the mother’s response as “… you do not believe it is in X’s best interest for her parents to discuss a cancer risk and the steps they can agree to take to mitigate that risk”.
In evidence, the mother, acknowledged that there had not been any further pointless, and arguably harassing, exchanges between her and the father since October 2021.
Credibility of the parties
The father appeared to have little insight into the effect of his behaviour on the mother and, indirectly, the child. He was unable or unwilling to acknowledge that his behaviour had, at times, been unreasonable and unnecessarily difficult. On the contrary, he gave the impression that he believed his behaviour was entirely justified. There were elements of grandiosity in the way he gave evidence. Generally, I do not accept his evidence unless it was not in dispute.
The mother was an impressive witness. She was frank and made appropriate concessions. I generally accept her evidence. However, the mother somewhat exaggerated some of the benefits of relocation to Perth. For example, I do not accept the mother’s claim that bilingual preschool English/Country D education is available in Perth. The mother advanced this as a factor in her preference to relocate to Perth. An examination of the material from the preschool involved appeared to indicate that Country D lessons of a couple of hours a week were available as part of the preschool curriculum but it was clear that the medium of instruction was generally English.
The family reports
Two family reports were prepared, dated 1 October 2021 and 6 July 2022. The first report was prepared in contemplation of the father’s proposal that the child live with him and that he be permitted relocate to Victoria or, if the mother relocated too, that the child live in a shared care arrangement. The second family report, by another child expert, was prepared in contemplation of the mother’s proposal that she have sole parental responsibility and be permitted to relocate with the child to Perth and the father’s then proposal that he have sole parental responsibility and the current shared care arrangement continue with the mother and child living in City B.
The first family report described the mother’s allegations of manipulative and controlling behaviour by the father and noted that the mother “feels highly anxious and worn down by behaviour towards her by Mr Winfield”. The report said the mother said she was “anxious about face to face interactions” with the father. The mother wished for less contact and communication with the father. The father, on the other hand, expressed a wish for more contact and communication. The child expert observed that there was a “significant imbalance of perceptions of power and control” between the parties.
The observations of the mother and father were unexceptional. The mother was observed to be nurturing and to provide emotional comfort and reassurance to the child. The child gravitated towards the mother for emotional support. The father was observed to be oriented to physical play and interactive learning with the child. The father was attentive and highly engaged.
The child expert concluded that the mother felt “psychologically intimidated and bullied” by the father and she perceived that he was attempting to “control and manipulate her and undermined her as a parent”. The father’s perceptions were, on the contrary, that while he felt frustrations in the parenting relationship he felt confident in his dealings with the mother and was not averse to developing a closer parenting relationship with her.
The child expert did not support any change in the primary care arrangements or the child’s relocation to Victoria.
By the time of the second family report the proposals of the parties had changed somewhat. The father proposed that he have sole parental responsibility. The father said he should have sole parental responsibility because the mother did not communicate with him and had withheld the child from him at the time she suspected him of sexual abuse of the child. He characterised this as coercive or controlling behaviour by the mother. He said the mother lacked the emotional capacity to civilly negotiate with him.
The mother proposed that she have sole parental responsibility and be permitted to relocate to Perth. In substance, the mother said that a constructive co-parenting relationship with the father was impossible because of his coercive or controlling behaviour and, for her own emotional and psychological well-being, she needed to relocate away from City B to a larger city where she believed she would be less subject to that behaviour.
The child expert noted that the mother perceived herself as less educated and articulate than the father. She also noted that the mother was distressed and initially hyper-vigilant when the father was in proximity to her in the interview process. The mother reiterated her claims that the father was coercive, controlling and manipulative and used the litigation process to further control her and undermine her parenting role. The child expert noted that the mother appeared fatigued when discussing continued disputation about court orders. She noted that the mother reported experiencing anxiety and fatigue in relation to her relationship with the father and the litigation. The mother said that the father had a difficult communication style and communicating with him was difficult because of his “interrogation” about such matters as the child sustaining a scratch or bruise or the child’s nutrition and sugar intake and her subsequent feelings of fatigue, anxiety and stress. The child expert said the mother “demonstrated anxiety, fatigue and a total lack of trust resultant of her experience of the co-parenting relationship with Mr Winfield”.
The child expert referred to the desirability of supporting the mother’s well-being as the primary carer of the child, regardless of the reasons why the mother wished to relocate. The child expert said the poor relationship between the parents may mean that promotion of the child’s relationship with her father may be difficult. The child expert said if the child were to immediately relocate with her mother to Perth her relationship with her father would be diminished but said the child would have a greater likelihood of adapting over time, particularly if her mother felt happy and secure in her new environment.
The child expert also referred to the child’s sibling, then about to be born; the child of the father and his present partner, and said the child’s relationship with her sibling was likely to be of greater significance as she grows and matures.
The child expert noted that the narratives of the parties were highly divergent and the truth of their contradictory claims were ultimately a matter for evidence. Consistently with that approach, she did not make a firm recommendation for or against relocation. She recommended that the child continue to live with the mother. If the mother were permitted to relocate with the child to Perth and the father lives in City B she recommended the child have at least three video calls a week with the father and spend time with him as frequently as possible, including a weekend each month and two periods of time in the first year of at least five nights.
If the mother were not to be permitted to relocate to Perth or the father relocated to Perth as well, she recommended that the child spend time with the father each alternate weekend from Friday to Monday and one additional day or evening each week until she turns five when the parties should attend family dispute resolution to review the arrangements.
I accept that the family report accurately identifies the issues to be resolved. Noting the highly divergent narratives of the parties, I accept that the mother honestly described her feelings about the father and the difficulty of co-parenting with him. I am satisfied that there is a proper basis for the mother’s concerns and her feelings of anxiety and fatigue when dealing with the father. Conversely, I am satisfied that the father has very little insight into the harmful nature of his behaviour. I am satisfied that he is determined to dominate the mother and his conduct is coercive or controlling.
Other witnesses
Mr N gave evidence on behalf of the mother. He is her supervisor or manager. He gave evidence that employment was readily available for the mother in the Company E in Perth. I accept that evidence.
Ms C, the father’s partner, gave evidence that she has a good relationship with the child. She was not required for cross-examination. I accept her evidence.
Post-hearing applications
After judgment was reserved the mother applied for an order permitting her to travel to Country D for 21 days with the child because her father was seriously ill with advanced cancer and was not expected to live long. She provided medical evidence to support her application. The father asked that the application be dismissed. In the alternative he sought orders including that the travel be no more than 14 days, that the travel be in lieu of current orders permitting the child to travel interstate with the mother, that the child spend time with him for 14 days on her return and that the mother provide a bond of $5,000 for her return. On 10 October 2022 I made orders permitting the mother to travel with the child to Country D for 21 days and for a bond to be deposited with the father’s solicitors and, on satisfaction of that and certain other conditions, the child’s passport was to be delivered to the mother that day.
On 13 October 2022 the mother made a further application seeking orders in support of an urgent application for a passport for the child. She said that she had made a mistake and the proposed flights did not fall within the 21 day time frame but instead that the proposed flights meant that she and the child would be away for 22 nights and 23 days. Consequently, the father refused to provide the child’s passport on 10 October 2022. On 11 October 2022 the mother rebooked flights to fall within the 21 day time frame. She advised the father at 11:55 am and sent an email to the father with evidence of the rebooked flights. The father’s lawyer sent an email to the mother’s lawyer at 3:42 pm confirming that the father would hand her the passport at changeover at 5:00 pm. According to the mother, the father requested that changeover take place at the City B police station, which was not normally the case. At the police station a police officer informed the mother that the father had reported that his car had been broken into during previous night and the child’s passport had been stolen. The mother later asked that the father report the theft to the Australian Passport Office which, ultimately, he did. It is clear she harboured suspicions that the father had lied about the theft of the passport.
The mother sought orders for the father to urgently complete the necessary formalities to obtain another passport, to pay the extra costs of rebooking flights and for legal costs. The father did not oppose orders to obtain a passport. He opposed the other orders.
The father’s affidavit said that the left the passport in his car overnight which was parked in the driveway of his home. He relevantly described his discovery of the theft as follows:
My heart sank as I could see the familiar setting of our cars being broken into greeted me. Unfortunately, this is a very common occurrence in [City B] and my home and our cars have been broken into before.
The father’s partner, Ms C, also put on an affidavit. She relevantly described the same event as follows:
I did not know [X]’s passport was in his car and I don’t believe that was on [Mr Winfield’s] mind either… [Mr Winfield] certainly did not deliberately neglect to lock his car; we are well aware of the night-time activity and our area and [Mr Winfield] is quite protective of his car. [Mr Winfield] slipped up because he was distracted and tired.
It is notable that the father described the car as “broken into” and Ms C said the car door was left unlocked.
It is, of course, inappropriate and impossible to make factual findings on the basis of this material, and without cross-examination, and I do not do so. However, I am satisfied the mother’s suspicion, whatever the truth, is not entirely without foundation. I am also satisfied that this incident is indicative of the mistrust between the parties and their inability to work cooperatively.
I am satisfied this inability of the parties to work cooperatively in the interests of the child is unlikely to change. I am satisfied this constitutes a significant threat to the well-being of the child over time.
The legislative pathway
In a case involving an issue of relocation the court is bound to follow the same legislative pathway as in other parenting cases. Relocation is not to be treated as a discrete issue in the making of parenting orders: Morgan & Miles (2007) 312 FLR 114, [72], [73], Palmer & Hammer (No.2) [2011] FamCAFC 196, [28].
The core principle to be applied is the “paramountcy principle”. The court must have regard to the best interests of the child as the paramount, but not sole, consideration: Starr & Duggan [2009] FamCAFC 115.
The objects of Part VII of the Family Law Act 1975 (“the Act”) are set out in section 60B (1). Subsection 60B(1)(a) provides that it is an object of the Act to ensure that the best interests of children are met by:
ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;…
Subsection 60B(2) provides that the principles underlying the objects of the Act (except when it is or would be contrary to the child’s best interests) include:
(a)children have the right to know and be cared for by both of their parents …; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development …; and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children …
Section 60CA requires that a court must regard the best interests of the child as the paramount consideration when deciding to make a particular parenting order in relation to a child. The considerations to be taken into account in determining what is in the child’s best interests are listed in section 60CC. Section 61DA requires the court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child unless there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or family violence.
Subsection 65D(1) provides that the court may make such a parenting order as it thinks proper, subject to the provisions of sections 61DA and 65DAB (concerning parenting plans).
Subsection 65 DAA(1), which is headed “Equal time”, provides:
… if a parenting order provides (or is to provide) the child’s parents are to have equal shared parental responsibility for the child, the court must:
a) consider whether the child spending equal time with each of the parents would be in the best interest of the child; and
b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
c) if it is, consider making an order to provide (including a provision in the order) the child spend equal time with each of the parents.
Subsection 65 DAA(2), which is headed “Substantial and significant time”, provides:
… if
a) a parenting order provides (or is to provide) the child’s parents are to have equal shared parental responsibility for the child, and
b) the court does not make an order (included provision in the order) for the child spend equal time with each of the parents;
the court must:
a) consider whether the child spending substantial and significant time with each of the parents would be in the best interest of the child; and
b) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
c) if it is, consider making an order to provide (including a provision in the order) the child spend substantial and significant time with each of the parents.
Subsection 65DAA(5) provides that in determining what is reasonably practical for the purposes of subsections (1) and (2) the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child: and
(e)such other matters as the court considers relevant.
Consideration
The mother seeks orders for sole parental responsibility, that the child live with her and that she be permitted to relocate to Perth. During the trial she said that an order permitting her to relocate before the child’s fifth birthday would be acceptable to her.
The father opposed relocation but said, if relocation away from City B were to be permitted, it should be to Melbourne or Victoria. He sought sole parental responsibility for educational decisions about the child.
Section 60CA of the Family Law Act (“the Act”) states:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interest of the child as the paramount consideration.
The best interests of the child are the paramount, but not the only consideration. The right of an adult to freedom of movement, as the mother seeks to exercise in this case, is an important consideration and ought not be curtailed unless the best interests of the child compel it. The parent seeking to relocate need not demonstrate “compelling reasons” for relocation: AMS v AIF (1999) 199 CLR 160.
Counsel for the father submitted that, similarly, the parent opposing relocation need not demonstrate compelling reasons for refusing to relocate. That submission must be qualified by the reminder by the High Court in U v U (2002) 211 CLR 238 that in evaluating the proposals of the parties it may be necessary to consider not only whether it is in the best interests of the child that one parent be permitted to relocate, but whether the other parent opposing relocation might practically relocate to avoid the claimed adverse effects of the relocation on the child’s relationship with that parent (see for example Hayne J at [175], [176]).
The competing proposals of the parties must be separately evaluated: Sayer & Ratcliffe (2012) 48 FLR 298, [80].
Subsection 60CC(1) of the Act provides that in determining what is in the child’s best interests the court must consider the matters in subsections 60CC(2) and (3). Subsection 60CC(2) provides that the primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Subsection 60CC(2A) provides that in applying the considerations in subsection 60CC(2) the court is to give greater weight to the considerations set out in paragraph 60CC(2)(b). There is no question of risk to the child from abuse or neglect in this case. However, I am satisfied that some of the behaviour of the father towards the mother which has been described above was calculated to coerce or control her and, on occasions, has coerced or controlled her. The child is likely to have experienced the effects of this in the past and is likely to experience them in future.
The mother is the primary carer of the child and the father does not seek to disturb that. The child has a close relationship with the father and she spends substantial and significant time with the father. This is a vitally important relationship for the child. The mother accepts as much and in the trial indicated her willingness to defer any relocation until the child is five years old in order to strengthen the child’s relationship with the father. It was not in question that the child will benefit from a meaningful relationship with her father.
I have some reservations about whether the mother’s relocation to Perth will, of itself, diminish the effects of the father’s tendency to coercive or controlling behaviour. However, I accept that the mother feels genuinely oppressed by this behaviour and it is necessary, in the best interests of the child, that some ameliorating response be found. I accept that the mother currently experiences a sense of stress and fatigue in her dealings with the father and life in a much larger city, such as Perth, may provide the mother with a sense of privacy or space or distance from the father. If the current situation continues indefinitely, I am satisfied it is likely to be harmful to the mother’s wellbeing and that in turn is likely to have an adverse effect on the best interests of the child.
The father opposes relocation but, in the alternative, he responds that if the primary reason for the mother seeking to relocate is the perceived advantages of life in a larger city then his proposal that she be “permitted” to move to Melbourne will answer her concerns. He says that the mother has no more substantial connection to Perth than to Melbourne. There is some logic to that response but Perth is the city the mother wishes to relocate to, not Melbourne, and such an order would be a serious curtailment of the mother’s freedom of movement. Further, the mother says that the father’s extended family live in Melbourne and they have, for the most part, been his allies against her and she does not want to live close to them. While I do not find it necessary to reach a conclusion about the role of the father’s extended family, I have little doubt she would perceive such an order as severely oppressive.
The court must also have regard to the additional considerations in subsection 60CC (3):
(a)In relation to any views expressed by the child, the child is too young to express a view.
(b)In relation to the nature of the relationship of the child with each of the child’s parents and any other persons, including a grandparent or other relative of the child, the child is in the primary care of the mother and spends time with the father. The child has a strong attachment to her mother and a close and developing relationship with the father. Ms C, the father’s partner, gave unchallenged evidence that she and the child have a good relationship.
(c)In relation to the extent to which each of the child’s parents has taken, or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the child is, to spend time and to communicate with the child, both parents seek to participate in making decisions about the child. However, the father and the mother are often unable to agree about important matters. I am satisfied that on occasions the father’s stated wish to be involved in decisions about major long-term issues in relation to the child has been a smoke-screen for coercive or controlling behaviour.
(ca) In relation to the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child, the mother is subject to a child support assessment requiring her to pay child support to the father. I cannot see that this issue was addressed in the trial affidavits of the parties. However, in cross-examination the mother said she paid child support to the father. In response to my query about the application of the child support formula, counsel for the father said that the father had care of the child 38% of the time according to the assessment and that the father earned about $28,000 a year and the mother earned about $43,000 a year. This was conceded by the mother. Counsel for the father said he would tender a copy of the relevant child support assessment but inadvertently failed to do so. However, the assessment does appear in the father’s tender bundle and, given the father’s counsel’s stated intention, I will receive that into evidence. The child support assessment provides for the mother to pay the father $29.48 a week. The father is registered educator and works as an educator. Counsel for the father explained that his low income was a result of him working only about one day a week. The father said that he wished to be available to spend time with the child pursuant to the court orders but the order of 27 April 2021 would appear to provide for the child to spend two weekdays, Monday and Wednesday, with the father. This matter was not pursued further in cross-examination. However, I am satisfied that the mother has fulfilled her obligation to maintain the child and, indeed, she would appear to be responsible for most of the financial cost of caring for the child. While the father may have complied with his legal obligations as far as the child support assessment is concerned, it is less clear that he has fully used his earning capacity.
(d)In relation to the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his parents, the mother proposes a significant change in the child circumstances, the effect of which has been discussed elsewhere in these reasons.
(e)In relation to the practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis, as discussed above, the mother’s proposal will substantially affect the child’s right to maintain personal relations and direct contact with his father on a regular basis unless the father is able to relocate as well. The father says he will, albeit unwillingly, relocate to Perth if the mother is permitted to do so.
(f)In relation to the capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs, the mother is able to provide for the child’s needs, including emotional and intellectual needs. The father’s repeated display of coercive or controlling behaviour demonstrates a lack of insight into the needs of the child and, consequently, the limits of his capacity to provide for those needs.
(g)In relation to the maturity, sex, lifestyle and background of the child and of either of the child’s parents, there are no relevant matters.
(h)In relation to if the child is an Aboriginal or Torres Strait Islander child, the child is not an Aboriginal or Torres Strait Islander child.
(i)In relation to the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents, see (b), (c), (ca) and (f) above.
(j)In relation to any family violence involving the child or a member of the child’s family, the father has alleged that the mother’s conduct in withholding the child after she became suspicious that the father may have sexually abused the child was coercive or controlling. I do not accept that allegation. I am satisfied that the mother’s response was genuine although, as she now concedes, ultimately unjustified. I have discussed the mother’s allegations of coercive or controlling behaviour by the father elsewhere.
(k)Family violence orders are not applicable in this case.
(l)In relation to whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child, the court will attempt to make such an order.
(m)In relation to any other relevant factors circumstance, there are no other relevant factual circumstances.
The mother sought sole parental responsibility and the father sought sole parental responsibility for educational decisions about the child. Section 61DA provides that the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent of the child has engaged in family violence. I have found that the father has engaged in coercive or controlling behaviour towards the mother and this constitutes family violence according to the definition in section 4AB of the Act. Accordingly, the presumption of equal shared parental responsibility does not apply.
The father at times used his claim of equal shared parental responsibility to coerce or control the mother. An example of this was his response to the mother’s decision to have the child given a flu vaccination.
I am satisfied that there is no prospect in the foreseeable future of the father and mother being able to cooperatively parent. Further, I am satisfied that an order for equal shared parental responsibility is likely to be used by the father to improperly coerce or control the mother. I am satisfied that there ought to be an order that the mother have sole parental responsibility. I will make an order that she is to inform the father of any major long-term decisions and, unless the decision must be made urgently, give him a reasonable time to respond. She may take his response into account in making the decision.
Because there will not be an order for equal shared parental responsibility I am not required to consider the matters in s 65DAA. In any event, I am not satisfied that an order for equal time, should the father relocate to Perth, is reasonably practicable because there is no indication that the parents have the capacity to implement such an arrangement and because of their current and likely future poor communication.
Otherwise I propose to make orders that the child live with the mother and she may relocate the residence of the child to Perth at any time after November 2023 so as to be able to have the child commence primary school at the beginning of 2024. I propose to make orders for the child to spend time with the father, pending any relocation to Perth, in accordance with the recommendations of the child expert in the second family report that the child spend alternate weekends with the father from Friday afternoon to Monday morning and one night during the week. I am satisfied that such an arrangement is in the best interests of the child. I will make orders providing for the parties, if the father relocates to Perth, to attend mediation to discuss arrangements for 2024 and following years.
If the father does not relocate to Perth there will be orders for the child to spend holiday time with him.
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young. Associate:
Dated: 28 October 2022
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