FEDERAL CIRCUIT COURT OF AUSTRALIA
| ROMIJN & MCIVER | [2017] FCCA 140 |
| Catchwords: FAMILY LAW – Relocation application by the father – long equal time arrangement post separation – mother leaves the child with the father for ten months to work away – mother enters new relationship and attempts to diminish and conceal domestic violence and its extent from the father and the Court – mother shows no insight into her behaviour in continuing with a relationship with her former violent partner and exposing children to the risks associated with that violence – father moves away for almost a year and has most of the holidays in the pre-trial period. When father returns mother refuses to return to the terms of the consent order for equal time and seeks to reduce the child’s time with the father. |
| Legislation: Family Law Act 1975, ss.60CC, 61DA, 65DAA |
| Cases cited: Mazorski & Albright [2007] FamCA 520; Goode & Goode [2006] FamCA 1346; Cowley & Mendoza [2010] FamCA 597; A v A Relocation Approach (2000) FLC 93-035; B v B: Family Law Reform Act 1995 (1997) FLC 92-755; U v U (2002) FLC 93-112; Barnett v Barnett (1973) 2 ALR 19; Heidt (1976) 1 Fam LR 11576; Doyle (1992) 15 Fam LR 274; Huffman v Gorman (No.2) [2014] FamCA 1077; Lansa & Clovelly [2010] FamCA 80; Ulster & Viney [2016] FamCAFC 133. |
| Applicant: | MR ROMIJNMR ROMIJN |
| Respondent: | MS MCIVER |
| File Number: | CSC 296 of 2012 |
| Judgment of: | Judge Willis |
| Hearing dates: | 26-27 September, 10-11 October 2016 |
| Date of Last Submission: | 11 October 2016 |
| Delivered at: | (Town B) |
| Delivered on: | 10 August 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Priestly SC |
| Solicitors for the Applicant: | Crane Paskins Law |
| Counsel for the Respondent: | Ms Williams |
| Solicitors for the Respondent: | Cope Family Law |
| Counsel for the Independent Children's Lawyer: | Ms Lawrence |
| Solicitors for the Independent Children's Lawyer: | Mr Wright Murray & Lyons Solicitors |
ORDERS
That all previous orders and parenting plans be discharged.
Parental Responsibility
The Father and Mother shall have equal shared parental responsibility for the child [X] born (omitted) 2007 (“the child”) in respect of all major long term issues as defined in the Family Law Act 1975 (as amended).
That the parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility and shall make a genuine effort to come to a joint decision. They are not, however, required to consult with each other about the daily care of the child. The types of decisions about which parents are required to inform and consult include by are not limited to changing the name of the child; relocating the residence of the child so that existing parenting arrangement becomes impracticable; changing the school of a child; and significant medical intervention for a child.
Living Arrangements
That the child is to live with the Father in (Town A) in New South Wales. The timing of the departure of the child moving to live in (Town A) will be at the sole discretion of the Father.
That the child live with the Mother at all times as agreed between the parents and specifically as follows:
(a)For the duration of the New South Wales Easter and June/ July school holidays;
(b)For the second half of the September New South Wales school holidays;
(c)For one half of the New South Wales Christmas school holidays being the first half in even numbered years and the second half in odd numbered years;
(d)The weekend of Mother’s Day each year from after school Friday until Sunday (ON THE CONDITION THAT the Mother meets the entire costs of the child’s travel) and provides no less than 21 days’ written notice to the Father of her intention to spend time with the child during this period.
(e)In the event the Mother travels to (Town A), the Father shall facilitate additional time between the child and the Mother provided the Mother gives the Father no less than 7 days notice in writing.
Changeover
That the changeover’s to enable the child to travel to and from the Father’s residence and spend time with the Mother will be as follows:
(a)The parties shall arrange for the child to travel by plane from the Gold Coast or Brisbane airport (at the election of the Father) to the (Town B) airport, with the Father meeting the cost thereof of all school holiday periods as set out in Orders 5 (a) to (c) herein;
(b)The Mother will organise to meet the child at the (Town B) airport at the beginning of the time the child spends time with her in accordance with Orders 5 (a) to (c) herein;
(c)The Father will organise to meet the child at the Gold Coast or Brisbane airport (at the election of the Father) at the end of the time the child spends time with the Mother in accordance with Orders 5 (a) to (c) herein;
(d)Unless the child flies unaccompanied, the Father or his nominee shall travel with the child from the Gold Coast or Brisbane airport (at the election of the Father) to the (Town B) airport and the Mother or her nominee shall travel with the child from the (Town B) airport to the Gold Coast or Brisbane airport (at the election of the Father);
(e)Each parent is to be solely responsible for the cost of the accompanying person referred to in Orders 6 (d) herein.
Communication
That the parties are to do all acts and things necessary to ensure that the child will communicate with her parents by telephone, Facetime and/or Skype at all times as agreed between the parties but failing agreement each Sunday and Wednesday with the Mother to initiate the call between 6:00 pm and 6:30 pm (Queensland time).
(a)Each parent is to ensure the child is available to receive the call;
(b)Each parent is to arrange for the child to call the other parent on the following night if, for any unforeseen circumstances, the child misses the telephone/ Skype call from that parent;
(c)Each parent is to ensure the child has privacy during the conversation.
That the parties are to do all acts and things necessary to ensure that the child will communicate with the mother by telephone/ Facetime and/ or Skype on the following special days, with the Mother to initiate the call in the time frame specified below and the Father to facilitate same (assuming the child is not otherwise with the Mother):
(a)Mother’s Day between 9:00 am and 9:30 am;
(b)The Mother’s birthday between 5:00 pm and 5:30 pm;
(c)The child’s birthday between 7:00 am and 7:30 am;
(d)The child’s sisters’ birthday between 7:00 am 7:30 am.
Schooling
Each of the parties are to do all acts and things and sign all documents required to ensure that the child attends the (School A) in (Town A), New South Wales.
That the Mother and Father shall be permitted to attend all of the child’s school or sporting events at the child’s school, subject always to the discretion of the child’s school.
Each parent is authorised by this Order, to receive from the schools or day care centres attended by the child information that is normally provided to parents about the child’s educational progress and other related activities and supply them with copies of reports, photographs, certificates and awards obtained by the child (at that parent’s cost).
Exchange of information
That the Mother and Father shall:
(a)Keep the other parent informed at all times of their residential address and contact telephone numbers;
(b)Keep the other parent informed of the identity of any treating medical practitioner or other allied health practitioners who treat the child. These Orders authorise those medical practitioners to provide each parent with information regarding the child’s medical conditions suffered from time to time and other relevant information that they are lawfully able to provide to a parent about the child.
(c)Inform the other parent as soon as reasonably practicable of any significant medical condition or illness suffered by the child.
That during the time the child is with either parent, that parent shall:
(a)Respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b)Speak of the other parent respectfully;
(c)Not denigrate or insult the other parent in the presence or hearing of the child and remove the child from the presence or hearing of any person doing so.
BY CONSENT IT IS ORDERED:
Restraint
That the Mother is to do all acts and things to ensure that the child [X] does not spend any time with the Mother’s ex-partner, Mr McIver.
That the Mother is restrained from travelling with the child to (country omitted) or permitting the child to travel to (country omitted).
IT IS FURTHER ORDERED:
The Mother is prohibited from recording by whatever means the child’s time with the Father including all electronic communication.
Passport
That within 14 days of a written request from the other parent, each parent will do all acts and things and sign all documents necessary for the issue or renewal of the child’s Australian and (nationality omitted) passports.
In the event that either parent does not sign the respective passport application for either an Australian or (nationality omitted) passport, the passport is to issue notwithstanding that the other parent does not sign the application.
That the Father is to hold the child’s passports and provide a passport to the Mother for the purposes of overseas travel upon her giving no less than 14 days notice of the requirement of the passport.
International Travel
The parties are permitted to remove the child from the Commonwealth of Australia for the purposes of a holiday (noting however the restraint in Order 15 herein that the child is not to travel to (country omitted)) provided that it occurs during any time that the child is in their respective care as referred to in these Orders, or as agreed to in writing between the parties.
That except in circumstances of urgency, each party shall advise the other of the proposed international travel (no less than 90 days prior to such travel) and regardless of urgency, provide to the other party travel details including copies of any flight itineraries, contact details of where the child can be reached and information in relation to where the child shall be staying throughout the entire travel period.
Courses
The Mother and Father are to forthwith enrol and attend as soon as practicable the Parenting Orders Program (POP)/ to include the Focus on Kids program offered by Relationships Australia and each will file a certificate confirming his/her attendance and successful completion of such course with the Registry within 7 days of receiving it.
Dispute Resolution
That in the event that there is a dispute about the child or about the interpretation, implementation or enforcement of these orders, the parents before making any further application to a Court shall:
(a)Either attend counselling or mediation with an organisation recognised under the Family Law Act 1975 or by the Commonwealth Attorney-General; or
(b)Participate in family dispute resolution with a person authorised under s.10G of the Family Law Act 1975.
Other Orders
Prior to the child relocating to (Town A), the Independent Children’s Lawyer and the Family Consultant are to meet with the child to explain the outcome of proceedings.
The Mother and the Father are to attend at the Federal Circuit Court Registry with the child at 10:00 am on 11 August 2017. Thereafter, the Independent Children’s Lawyer is discharged.
Neither party is to discuss the outcome of these proceedings with the child until after the Orders have been explained by the Family Consultant in the presence of the Independent Children’s Lawyer.
All outstanding applications are removed from the pending cases list.
NOTATION:
A.That pursuant to section 65DA(2) of the Family Law Act 1975 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 Attachment A attached to these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Romijn & McIver is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CAIRNS |
CSC 296 of 2012
| MR ROMIJN |
Applicant
And
| MS MCIVER |
Respondent
REASONS FOR JUDGMENT
This matter involves a determination of where the child, [X], born (omitted) 2007 (“the child”) will live. Currently the child lives in (Town B) with the mother and father on an equal time basis. Mr Romijn the father seeks an Order that the child will live with him in (Town A) in New South Wales and spend time with the mother during school holidays and other special occasions.
Ms McIver the mother is opposed to the parenting Order sought by the father and seeks orders that the child remain living with her in (Town B) and spend time with the father during holidays and on special occasions.
The Father’s proposal
The father relied on his amended initiating application filed on 10 July 2015 in which he sets out the orders sought. The child will live with him in (Town A) and spend time with the mother during holidays and other occasions. He proposes an order for equal shared parental responsibility.
The father proposes as set out in his case outline that the child will spend time with the mother for the duration of the New South Wales Easter and June/ July school holidays. In addition, the child is to spend time with the mother for half of the Christmas and other school holidays. This always includes the second half of the September school holidays (in line with his position and the end of trial), so that the child would always be with him on his birthday. Also the child is to spend time with the mother on the weekend of Mother’s Day each year from after school Friday until Sunday with the mother to give no less than 21 days notice of her intention to spend time with the child; the weekend of the child’s birthday and the mother’s birthday each year. In the event the mother travels to the (omitted) area, the father is to facilitate additional time between the child and mother provided the mother gives no less than 7 days notice in writing.
The father seeks orders about the parties notifying each other of changes to their living arrangements; that the mother be permitted to attend all of the child’s schooling in New South Wales or sporting events; and that the child attend the (School A) in (Town A), New South Wales.
The father proposes Orders for communication between [X] and her mother for Skype and telephone each Sunday and Wednesday, with the father to initiate the call between 6 pm and 6.30 pm Queensland time. In addition, the father will facilitate time by telephone, FaceTime or Skype on Mother's Day, mother's birthday, the child's own birthday, and the child's sister's birthday at set times.
The father says if the child lives with him in (Town A) he will pay for the return cost of the child flying to and from the Gold Coast/ Brisbane to (Town B) for block holidays and some weekends with the mother. The father proposes that the cost of an accompanying adult is to be shared, meaning the father pays for the accompanying adult up to (Town B) and the mother pays the accompanying adult fare back.
In the event that the court does not permit the child to relocate to (Town A), the father seeks orders to spend time with the child which effectively mirror the Orders he offers the mother if the child lives with him.[1] That includes the child spending the duration of both the Easter and June/ July school holidays, for one half of the Christmas holidays, the first half of the September school holiday periods, the weekend of Father’s Day, the weekend of the child’s birthday and the father’s birthday each year. In the event the father travels to (Town B), the mother is to facilitate time with the father and child provided the father gives no less than 14 days notice in writing. The father also proposes that if the child lives in (Town B), he is permitted to attend all of the child’s schooling or sporting events and that the child be enrolled to attend at the (School B) in (Town B). Dispute resolution orders are also sought by the father.
[1] Listed out at 8 to 14 – see Order 15 of the father’s case outline.
In the event the child lives with the mother in (Town B), the father proposes that the child’s cost of travelling between the parent’s homes is shared equally (including any accompanying person) between the mother and father for all school holidays and weekends.
As to changeovers, the father proposes that will happen with the child travelling by plane between (Town B) and the Gold Coast. At this age and stage, the child will travel with an accompanying person being the parent or their nominee.
The father says either or he or his nominee will travel with the child to (Town B) (from Coolangatta or Brisbane), and the father will meet the costs of complying with that travel for the accompanying person one way, and then the mother is to pay the cost of the accompanying person for the return flight.
As to the other orders, the father largely adopted the proposed orders of the ICL[2] which includes that the parents have equal shared parental responsibility.
[2] Exhibit ICL 4.
The father relies on the ICL's orders in terms of the specifics of changeovers, essentially with either the mother or father or their agents meeting the child, either putting the child on the plane or meeting them at the other end.
Other orders about attending parenting programs and exchange of information are sought. The father agrees to the restraint that is to be made by consent that the mother will ensure that [X] has no contact whatsoever with Mr McIver, and that the mother will ensure the child does not travel to (country omitted).
The Mother’s proposal
On the morning of trial, the mother sought leave to file a second further amended response. This was to replace the “further amended response” filed on 31 August 2016. The amendments were significant. The mother abandoned her position up to that time that if the father lived in (Town B), the child would live with the mother and spend reduced time with the father in week one, being from Friday after school until Monday before school and in week 2, from Wednesday after school until Thursday before school plus half the holidays and special occasions. This was in contrast to the existing order for equal time, week on week off.
The mother proposed in her second further amended response filed on the morning of the trial, that in the event the father remains living in (Town B), the child remain living with the parties on a week about basis, albeit the mother’s case outline reads “the child live with the mother” and then “that the child live with the parties in a week-about basis with changeover to occur each Friday.”[3] As to the holidays, the child is to spend one half of all gazetted school holiday periods with the father being the first half in the odd numbered years and the second half in even-numbered.
[3] Page 7 of the case outline.
The mother also seeks orders that the child spend equal time with the mother and father each year on the child’s birthday, the child’s half-sister’s birthday, mother’s birthday and father’s birthday at times agreed between the father and mother and failing agreement from 3 pm until 7 pm on those birthdays. The outline[4] includes a provision that any other time inconsistent with this paragraph be suspended. In particular, the mother seeks an order that says if the Father’s Day 24 hour period from 6 pm Saturday to 6 pm Father’s Day conflicts with any other order, then the other order is to be suspended. Similarly an order is worded in the same fashion in relation to the child spending time with the mother on Mother’s Day.
[4] Mother’s outline, page 8 of 33.
Caution would be needed with this Order, as it would not seem to be intended but such a proviso could actually interfere with half of the holidays if Father’s day fell in the school holidays. Perhaps it is intended that the regular time the child spends with the other parent during the non-school holiday periods will cease to enable the 24 hour period to occur.
Orders are sought by the mother about passports restraining the father from applying for a (nationality omitted) passport for the child; orders that the parties do all acts and things to renew or issue an Australian passport; and orders for machinery provisions relating to that passport. I have indicated to the parties that a s.106A order is not acceptable to the Passports Office and that orders need to be made that the passport issue, notwithstanding that the other party hasn’t signed as required in the Passports Act.
By the conclusion of the trial, the mother's handed up a document setting out the final orders sought.[5] In that document the mother outlined the following Orders sought:
(b)The mother seeks orders that the [X] live with her in (Town B), and spend time with the father during holiday periods which fairly closely mirror the father's orders sought.
(c)The mother is seeking an order for equal shared parental responsibility.
(d)The mother seeks orders for the child to spend the entire Easter school holiday period with the father, and rather than July as proposed by the father, that the child spend the entire September school holidays with the father. As to the June/ July school holiday period, the mother seeks orders that the child spend one half of that holiday period on an alternating basis with the father and that the Christmas holiday period also be shared equally between the parties on an alternating basis.
(e)In addition, the mother proposes that the child spend the Father's Day weekend with the father from Friday until Sunday on the condition he meets the entire costs of the child's travel and provides no less than 21 days written notice of his intention to spend time with the child during this period.
(f)Similar orders are sought about telephone/ Skype/ FaceTime at 6 pm to 6.30 pm on Sundays and Wednesdays, and when the child is with the father on holidays, that the child communicates with the mother each Wednesday at 6 pm.
(g)As to the travel costs, the mother is proposing that she pay one half of the child's travel costs as set out in orders 13 and 14 of her orders sought. The mother proposes to pay for the child's flights back from holidays with the father from Brisbane to (Town B). The mother proposes that the father pay the costs of travel from (Town B) to Brisbane for the child to travel down for holidays. The mother has stipulated itineraries be provided 21 days before travel, and that each party is responsible for ensuring the child is delivered to the airport.
(h)Other orders are sought about school notices and residential addresses.
[5] Exhibit M4.
As to the Orders sought by the mother regarding the father remaining living in (Town B), Mr Priestly of Counsel for the father submitted that the only application before the court by the father is that the child be relocated to live in (Town A) and that his client has not sought orders for week on week off. There is currently an order in place for week on week off made in 2012.
The mother has identified that she will not be relocating from (Town B) to (Town A). The mother says that her other child, [Y], who has a mixed racial heritage being the mother’s Australian background and the (country omitted) heritage of her father (Mr McIver) she does not anticipate relocating from (Town B) given her desire to keep [Y] maintaining a cultural connection with (country omitted), which she says is easier to do in (Town B).
The Independent Children’s Lawyer’s proposal
At the conclusion of the trial, the Independent Children’s Lawyer (ICL) Mr Wright, supported orders which are largely in line with the father’s proposal and for [X] to live with the father in Northern New South Wales and spend time with the mother in (Town B).
The orders sought by the ICL are that the parents have equal shared parental responsibility; that the child live with the father in (Town A) in New South Wales, and that [X] spend time with the mother for the Easter and June/ July school holiday periods, one half of Christmas, and always the second half of September. Also, Mother's Day weekend each year at the discretion of the mother, and other time in the event that the mother travels to an area where the child is living with the father to provide additional time between the child and the mother on seven days notice.
The ICL proposes orders that the child travel by plane between either Coolangatta or Brisbane and (Town B) with either the father or his nominee accompanying the child (in the event it is required by the airline that she have a person accompanying her).
As to the cost of travel, the ICL adopts the orders sought by the father, namely that he pay the cost of himself and [X] travelling to and from either Coolangatta or Brisbane to (Town B) and return. The mother is to pay her own cost of an accompanying adult for the return trip.
The ICL supports Orders for the parties to re-enrol in Focus on Kids programs and restraints, namely those agreed which is the mother will not bring the child into contact with Mr McIver, and the mother is to ensure that the child does not travel to (country omitted).
The ICL seeks a restraint that the mother is prohibited from recording, by whatever means, the child's time with the father, including all electronic communication. The ICL also seeks restraints about the parties denigrating each other and that they not discuss this litigation.
In terms of passports, the ICL supports Orders that the mother and father are to do all acts and things to obtain a passport. The ICL does not seem to have expressed a view about the child holding a (nationality omitted) passport.
Each of the parties have indicated the material they rely upon in their case outlines as amended by me during the trial and each refer to the Family Report of Ms P filed by the Independent Children’s Lawyer (“ICL”).
The Law
This application is governed by the principles set out in Part VII of the Family Law Act Commonwealth (the Act). In making parenting orders, the best interests of the child are the paramount consideration. The Family Law Act provides for two primary considerations, previously described by Brown J in Mazorski & Albright [2007] FamCA 520 as twin pillars. Her Honour stated:
“The first is the importance to the children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in section 60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in section 60CC(1).”
However, these twin pillars are no longer to be given equal weight, with the effects of the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 making significant changes applying to matters filed on or after 7 June 2012, which this application is. As a result of those legislative changes, when applying the primary consideration under section 60CC(2), the Court is required to give greater weight to the second of those considerations; that is, protecting the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.
When I consider the best interests of [X], I will also consider the relevant additional considerations set out in section 60CC(3). When evaluating each of the parties' proposals for [X]'s future living arrangements. I will also make reference to the allocation of parental responsibility as set out in section 61DA. If I determine an order for equal parental responsibility is to be made, section 65DAA(1) of the Act is invoked.
In MRR v GR [2010] HCA 4, the High Court stated that ss.65DAA (1) (a) and (b) and 65DAA (2) (c) and (d) are expressed in imperative terms and oblige the Court to consider both the question of best interests and whether it is reasonably practicable to order equal time or significant and substantial time. A determination as a question of fact that it is in the child’s best interests and reasonably practicable that equal time (or significant and substantial) be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is only when both questions are answered in the affirmative that the Court may give consideration to making an Order for equal time, or if not equal, significant and substantial time.
This application centres upon an application by the father to relocate. The father has had regard to the authorities including Taylor & Barker [2007] FamCA 1246 and McCall & Clarke (2009) FLC 93‑405.
Mr Priestley of Counsel for the father refers me to Goode & Goode [2006] FamCA 1346, MRR v GR [2010] HCA 4, Cowley & Mendoza [2010] FamCA 597. Ms Williams of Counsel for the mother, in her case outline has referred me to A v A Relocation Approach (2000) FLC 93-035, B v B: Family Law Reform Act 1995 (1997) FLC 92-755, U v U (2002) FLC 93-112, Taylor & Barker [2007] FamCA 1246, Barnett v Barnett (1973) 2 ALR 19, Heidt (1976) 1 Fam LR 11576, Doyle (1992) 15 Fam LR 274, Huffman v Gorman (No.2) [2014] FamCA 1077. Counsel for the ICL has referred me to Lansa & Clovelly [2010] FamCA 80 and Ulster & Viney [2016] FamCAFC 133.
I am also mindful of the comments of Justice Murphy in Lansa & Clovelly [2010] FamCA80. Lansa is a very useful decision which discusses the principles emerging from Full Court decisions in particular with regard to relocation cases. His Honour cited Full Court decisions referred to by Mr Priestly and others including Sampson & Hartnett [2007] FamCA 1365, Rose and Rose [2009] FamCAFC 81 and to his Honour’s own first instance judgment in Pitkin and Hendry [2008] FamCA 186 in which his Honour also examined the statutory requirements and principles emerging from the Full Court decisions then decided. His Honour noted in Lansa that a “relocation case” is not a specific sub-category of parenting case and no principles specific to such cases apply. Such cases are simply cases in which parenting orders are sought in particular factual circumstances. Justice Murphy stated that a relocation case falls to be determined like any other parenting case: the fact-finding (or value finding) exercise required by s 60CC is directed toward ultimate findings about best interests. Those findings inform a number of different statutory requirements, including ultimate findings about parental responsibility and quantity of time.
Background
These parties commenced their relationship in 1995 and married in 1997. Their only child together [X] ([X]) was born on (omitted) 2007 and is currently 9 years old. The father is aged 40 and the mother is aged 37.
The parties separated in 2009. A divorce was granted on 30 May 2012. It seems to be agreed that the mother suffered from post-natal depression back in 2007 following the birth of the child and she obtained treatment. The mother asserts that she was the primary carer up to separation in 2009, when [X] was 2 years old. The mother returned to the workforce in February 2008 with (employer omitted), about a year prior to their separation.
The parties lived separately under the one roof for a period of time following separation. The parties co‑parented [X] whilst remaining together, but separated under one roof.
The mother explained her stresses and diagnosis of post‑natal depression which she says was compounded with other pressures in the workplace. The mother was prescribed Zoloft and says the dosage flattened her out emotionally. The mother says in 2009 she began to engage in some risk‑taking behaviour, for example, drinking to excess. However, she maintains that [X] was not exposed to her behaviour saying that she would go out drinking with her friends when [X] was in bed and Mr Romijn (the father) was home to care for her.
In February 2010, the mother was offered a position in (employer omitted) offices at (omitted) for six weeks which she took up. The six week position turned into a much longer period concluding 10 months later. During this time, [X] lived solely with the father. The mother says she returned to (Town B) every four to six weeks, and that she asked the father at one point if [X] could live with her in Darwin, but he refused to have [X] live with the mother in Darwin. The mother accepts that her time in the Northern Territory was very difficult, saying, “But I do not think it was in [X]'s best interests to live with me during that period.”
[X] did spend a period of three or four weeks in a single block period with the mother at one point during the period February 2010 to December 2010 when the mother was living in Darwin. The mother returned to (Town B) in December 2010. Upon her return to (Town B), with the father’s agreement the parties seamlessly and immediately recommenced an equal shared care arrangement, however, this time each of the parties lived in their own homes. They formalised this arrangement by entering into Consent Orders on 23 May 2012 in the Family Court. Upon her return the mother then resumed full‑time work at (employer omitted) in (Town B).
The mother remarried on (omitted) 2013, marrying Mr McIver. The relationship was marred by family violence and spanned about 4 years. The marriage was short‑lived with the parties separating in December 2014. The mother and her husband, Mr McIver, have a child together, [Y] ([Y]) who was born on (omitted) 2014. [Y] is currently two years and (omitted) months old. The mother reports in her affidavit that “Mr McIver and I remain amicable”. Mr McIver is of (nationality omitted) heritage.
The father commenced a relationship with Ms B in August 2013. He continues to be in a relationship with her. She lives in (Town A) with her four children from a previous relationship: [T], aged 20; [U] and [V], twins, aged 18; and [W] aged 15.
The father says on 1 June 2015 he relocated to (Town A) after he was made redundant from his employment in (Town B) and he sold his home. He was also required to undergo a hip operation, and decided to move to (Town A) to recover from surgery with the assistance of his partner, and to secure employment in (Town A) in order to set up a home for [X]. It is common ground that when the father then returned to (Town B) in May 2016, the mother refused to comply with the consent orders that were in place, nor did she agree to return to an equal time arrangement in accordance with the consent orders.
Essentially, since separation in 2009 up until the point of trial, [X] has lived in a shared care arrangement with the parties, save and except for:
a)Most of the year in 2010 as from February 2010 to December 2010 the child lived solely with the father whilst the mother worked in Darwin. The child saw the mother every four to six weeks and for a block period on one occasion in Darwin. The child then resumed living with each parent on a week on week off basis upon the mother’s return in December 2010 up until 30 May 2015.
b)In all about a year of the father living in (Town A) and the child living primarily with the mother and spending holiday time with the father from 30 May 2015 to around May 2016.
As I have mentioned the father returned to live in (Town B) prior to the trial, however, the mother refused to return to a week on week off arrangement. Subsequently the father filed an application to enforce the Consent Orders of 23 May 2012. That application in a case was filed on 6 June 2016 and heard, and on 19 July 2016. The Court dismissed the orders being sought by the mother. The mother sought orders in her response filed on 13 July 2016 that the child lives with the mother; the child spend time with the father each alternate weekend from Friday after school to Sunday 6:00 pm; father attend with the child at school and extracurricular activities; the child spend time with the father for the entire September 2016 school holidays; changeovers to occur on Friday from school and the father to return the child to the mother’s residence; child communicate with the father by Skype or phone if requested by the father. The Court upheld the application of the father that the Consent orders be enforced. Since that time [X] has lived in an equal time arrangement. The mother continues to work full time at (employer omitted).
The father's partner, Ms B, has travelled to (Town B) to be with him for the trial, and has spent time with him at other periods in (Town B) whilst he has been living here.
This matter proceeded over four days in total. The first two days were on Monday and Tuesday, 26 and 27 September 2016. However, the matter was not concluded and additional court time had to be found. Those dates were scheduled to occur on 10 and 11 October 2016.
In these reasons, a statement of fact represents a finding unless otherwise stated.
I have had regard to the material and evidence of each of the parties and their witnesses, the exhibits and submissions.
Best Interests
As I have explained to each of the parties, whilst relocation cases are notoriously difficult matters for Judges to determine, and inevitably the decisions leaves one parent disappointed, if the parents are not able to agree about the living arrangements of a child, the Court is left to determine the best interests of a child. I have also explained to these parents that whilst they each have a right of freedom of movement, in parenting cases, that right has to give way to the consideration of the best interests of children.
The Family Law Act 1975 (“the Act”) prescribes how the Court is to approach this task and sets out a mandatory set of considerations as seen in section 60CC. The Act commences with section 60CC(2) being the primary two primary considerations[6] and then lists additional considerations under section 60CC(3)(a) through to (l) and concluding with 60CC(3)(m) being any other fact or circumstance that the court thinks is relevant.
[6] Noting 60CC(2A).
Relevant Section 60CC (2) and (3) Factors
I will now turn to the relevant section 60CC (2) and (3) factors.
Primary Considerations
The first of the two primary considerations under section 60CC(2) is the benefit of the child having meaningful relationship with both of the child’s parents. The other primary consideration and the one which the Court is to give the greater weight to, is the need to protect children from physical and psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
S. 60CC(2)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
I will address the second primary consideration first, as not only is the Court to give this matter greater weight than the first of the primary considerations, in this matter, there are significant issues which arise from Family violence.
At the outset I observe that there are no family violence orders made in this matter between the mother and father. There is no evidence of family violence. However, the mother and father in this matter. I am satisfied that in the father's home, the child is not at any risk of abuse, neglect or family violence rather, the mother has married Mr McIver, and that relationship has proven to be a harmful and violent relationship. The mother herself has also exposed [X] to violence through her own violence within her family.
The mother’s engaging in family violence in the presence of [X] and exposing her to family violence is a primary consideration and one on which I place significant weight when determining the best interests of [X] and her long term living arrangement,
Having heard the evidence of the mother, I am satisfied that she has attempted to minimise the experience that she, [X] and [Y] have lived through in living as part of the household with Mr McIver. She has in fact positively attempted to hide the true extent of what has been happening in her relationship with Mr McIver. This occurred during her relationship with Mr McIver and after separation.
I have heard troubling evidence about the mother also seemingly encouraging a relationship between [X] and her former husband, with whom she has a child, [Y]. [Y] was born on (omitted) 2014 and was aged 2 and a half at the time of the trial.
The family violence issue between the mother and Mr McIver has only fully emerged during the course of the forensic processes of the Court. The mother has given evidence that she and Mr McIver “are separated” as of December 2014 after their marriage 12 months earlier in December 2013. It seems that they lived together for around 18 months prior to marriage.[7] The mother now says though that “Mr McIver and I remain amicable.”[8]
[7] Page 97 of ICL 1, clinical notes refer to Mr McIver.
[8] Paragraph 12 mother’s affidavit efiled 19 September 2016.
Although the mother says she and her husband are separated I am satisfied that the mother and Mr McIver maintain an ongoing involvement post separation. The mother says this centres around their joint care of [Y]. This may be so, however, there is evidence that satisfies me that the mother is content to initiate and maintain an ongoing relationship with Mr McIver beyond simply attending changeovers or making arrangements for their child [Y]. This is despite the Court, the Family Report writer, the ICL and the Father expressing significant concern about the nature of her relationship with Mr McIver and the need to protect [X] from future exposure to the unhealthy and violent relationship that the mother has with Mr McIver.
The Court has heard with great concern the evidence surrounding the mother’s domestically violent relationship with Mr McIver. Equally alarming for the Court has been the realisation that the mother has been attempting to conceal the true extent of that violence and diminish its importance.
I am satisfied having heard the mother cross examined, and having regard to her affidavit material filed, that the full extent of the family violence between the mother and Mr McIver is not included in the mother's material nor acknowledged by her. The mother’s material included one reference to an incident occurring with herself and Mr McIver which on 21 February 2015 the mother described, “This is the only incident of family violence [X] has witnessed. The next day Mr McIver texted me to apologise for his behaviour and [Y] was returned to my care the following day.”
The mother did not tell the father of the full extent of the violence, abuse and difficulties in her relationship with Mr McIver. The father only became aware of the history of abuse and family violence between the mother and Mr McIver after reading about it in the first Family Report and later hearing what emerged in the subpoenaed material and evidence at the trial.[9]
[9] Exhibit ICL 1.
The material before the Court at trial included the mother’s medical records. The mother says she separated from Mr McIver in December 2014. In her consultation with her general practitioner Dr Z the mother explained in September 2014 that she has major relationship problems with her husband[10] and that she needs ongoing support and advice. This was occurring whilst the mother had the pressure of coping with their new baby. Dr Z referred the mother on for assessment at the Women's Psychological Health. The records of that counselling, which included six sessions, indicate:
a)That the mother was in an abusive relationship with her husband indicating a history of emotional abuse, that her husband was unfaithful and somewhat preoccupied with pornography;
b)That she reported significant distress associated with this;
c)The relationship had deteriorated and she described being physically abused by her husband while they were on holidays at Christmas time;
d)The mother reported self‑harming and feeling suicidal at this time.[11]
[10] Including him ringing prostitutes , possible infidelity, and him watching a lot of pornography and living back with his parents.
[11] Exhibit ICL 1, tab G, pages 56 – 61.
The mother reported that having separated from her husband (Mr McIver), that she felt much better. However, in the GP Mental Health Care Review in March 2015,[12] the mother has reported having a couple of major arguments with her husband, Mr McIver, which in both cases has led him to leave the house for a couple of days. The notes record the mother saying he puts her down and blames her for his behaviour. The mother feels she is not coping and believes they are back where they were when he was cheating. In relation to her husband Mr McIver, Dr Z recorded, “Client identified that he is emotionally, physically and sexually abusive.”
[12] Exhibit ICL 1, tab G, pages 120 and 122.
The mother told her doctor the “husband is not engaging in counselling any more, and the mother believes she is experiencing the cycle of violence daily. The notes show that the mother's husband Mr McIver said the problems in the marriage were all her fault. The mother said she feels trapped, and issues regarding healthy and unhealthy relationships were discussed noting Client feels that things will not improve but is scared to take the next step.”
The mother reported that her husband Mr McIver was being nasty towards her, had told her he wanted a break and that “client decided to separate now rather than after Christmas.”
In the interview on 21 January 2015, the mother reported going on holidays with her husband and both daughters, [X] and [Y]. The notes record:
“She says he was very critical of her about everything; says she self‑harmed (punched self in face and used keys to dig into her arms), and felt suicidal on Christmas Eve, and also again on Christmas Day. Flew home and left baby with Mr McIver and his family on the (omitted). Flew back with [X]. Client and husband went to (omitted) - things were bad there also. Client went and stayed with her foster parents and has come home. She was once again feeling suicidal, but has since been attending church and feels much better. Client has made arrangements for separation (taken his name off lease, notified (employer omitted)). Client says she is feeling much better.”
After that consultation, on 25 February 2015, the notes record the mother reporting:
“Mr McIver has been aggressive and abusive, threatening to get custody of the baby and telling her she's not a good mum. He wants baby fifty‑fifty. Incident occurred when he had baby at his parents' house. Client said he kept calling and texting her about the baby. She went to get the baby and then he called the police. Client says that he is now in that sorry phase. Client feels she is coping well and discussed issues regarding DVO and legal advice. Provided client with DV counselling.”
However, the situation deteriorated in March 2015, when the mother is noted to have received text messages from Mr McIver, with threats to keep the baby [Y]. Mr McIver came to her house, harassing her. He would not leave. He had baby [Y] in the car and [Y] was physically taken in and out of the car by both the mother and Mr McIver during their hostile argument. The mother called the police and a temporary DVO had been made. This incident is more fully explained elsewhere in this judgment, however, literally the mother and Mr McIver were trying to keep young [Y] in their own physical possession as their argument continued and the police were called.
A Domestic Violence Order was subsequently made which included restrictions on Mr McIver not coming within 50 metres from the children, herself and the house. It is also recorded in the notes in April 2015 that the mother showed her counsellor documents which the father in this matter had filed, and she notes that he was granted Legal Aid and that this was creating anxiety for her as she knows her partner wants to move away to live with his new partner, and wants to take their child with him.
The other aspect to the DV that I am alarmed about is that the mother has suggested that [X] needed counselling, but at no stage did she tell the counsellor about [X]’s exposure to family violence. The mother was questioned about this and she was very vague about what she told the counsellor. In my view, her vagueness was alarming. When she was asked as to why she didn’t tell the counsellor, Dr Z about it, the mother simply said, “she didn’t ask.” This was a disingenuous response which again highlighted that the mother does not appreciate the risks or effects of family violence upon her children.
The mother’s interpretation in relation to the 2012 orders which had a clause providing for each parent to provide to the other the first opportunity to babysit was equally troubling. When she was quizzed as to why she did not ask the father to babysit [X] when she went out for the evening to a baby shower, the mother’s response was that she didn’t regard “placing” [X] with Mr McIver for the night or overnight as babysitting. These fine distinctions the mother wishes to draw in her own interpretation of Court orders illustrate very clearly that the mother will interpret orders so that she is enabled to do whatever she wants to do despite the clear intention of the court’s orders.
In looking at the circumstances post December 2014 (when the mother says she separated from Mr McIver) the records of the police show the nature of her relationship with Mr McIver.
Incident involving Police at Mr McIver’s home – 21 February 2015
The mother was at the centre of the incident which resulted in Police involvement, when she decided to attend Mr McIver's home late one evening in 2015 after she had separated from him.
The mother’s evidence on this whole incident was generally unsatisfactory and like much of her evidence, I had a strong impression that she was not being fully candid and truthful. The mother said she was out in town in (Town B) for the night celebrating with some girlfriends. She said she was getting text messages from Mr McIver saying that he could not settle baby [Y]. That ultimately led to the mother turning up unannounced to Mr McIver’s home. He was by agreement looking after [Y] and [X]. When the mother arrived, she requested the return of [Y]. She said Mr McIver refused to agree to hand [Y] to her. The mother agreed [Y] was supposed to be staying with her father for the night as organised and agreed to by her. The mother’s sudden arrival and demand to take [Y] all developed into a highly conflicted scene late at night. It resulted in the Police attending. The police records described it as a “dispute over the custody of their child.” The police report shed more light on this incident than the mother was initially prepared to admit. The police report states that the mother was “demanding their child go home with her.”
The child [Y] was asleep in the house when the mother arrived wanting to take [Y] away with her. Mr McIver told her to leave as he did not want to disturb the sleeping child. The record notes that then the mother became emotional and started arguing with Mr McIver at the address. Police were called and attended and sighted the child in the address safe and well. The police confirmed that the child was asleep. The police advised the mother not to disturb the child and to return in the morning when the child was awake and take her then.
The mother’s decision in turning up late at night after 10:00pm demanding to remove the sleeping [Y], when she admits she had agreed for [Y] and [X] to stay overnight, was a provocative act. It was likely to lead to further violence, directly involving [Y] and/ or [X]. This occurred after separation from her husband following his abuse and violence towards her and this was another poor parenting decision by the mother lacking in insight as to the effect of her own conduct. The police had to be called and the whole scene was unnecessary. If the mother had not been drinking (which she said she had not) she has no plausible explanation as to why she did not leave peacefully given her oral evidence she had agreed for [Y] to stay over.
The mother accepted under cross examination that she was never invited to go around and remove the child. The mother has taken a risk in this domestically violent relationship in unexpectedly turning up and trying to exert control over the arrangements changing their former arrangement and insisting that the sleeping child be removed. I was left with a strong impression that the mother has very fixed views and puts her own views and interests first and foremost. She denied she uses Mr McIver as a baby sitter however her conduct suggests this is what the mother does.
Incident involving Police at Ms McIver’s home – 15 March 2015
A further incident of domestic violence occurred on 15 March 2015 between the mother and Mr McIver a few weeks later at the mother’s home. The police describe Mr McIver and the mother as being in an intimate and personal relationship for four years, married on (omitted), and separated on 14 December, and that they have a one year old daughter, [Y]. The police note that the parties have an agreement that the daughters stay with Ms McIver, and Mr McIver has her every second weekend, picking [Y] up at 5.30 on Friday afternoons and dropping her back on Monday mornings at 6.30 am. So that is Friday, Saturday, Sunday and Monday morning.
At about 1 o’clock the police were called to a domestic disturbance and when they arrived they saw the mother standing at the end of a street with a baby in her arms, crying and upset. Police spoke with her and she said that Mr McIver was in her home and was refusing to leave. The police approached and observed Mr McIver at the residence. The police spoke to each of the parties. Mr McIver said to police that he had been “ringing and texting” the aggrieved a lot in the past week, even though he knew the mother “did not want to talk to him.” He said he had “gone to church that morning, knowing that the mother would be at that particular church.” Mr McIver said he “didn’t usually attend that church” but wanted to talk to the mother, but she had told him she did not want to talk to him or have anything to do with him. Mr McIver then has driven out to the mother’s home even though he knew the mother did not wish to see him. Mr McIver said he used “picking up some property” as an excuse for going to the mother’s home and admitted he “did not need the property” and “he could have picked it up some other time.”
The mother told police that in the week leading up to Sunday 15 March, 2015 Mr McIver had “repeatedly rung and texted her to try and arrange meetings and trying to talk with her”, even though she had made it clear she “wanted nothing to do with him.” The mother said also she goes to church every Sunday morning at the same church and that Mr McIver turned up and sat beside her. She told him to leave and that she did not wish to talk. After that, at quarter to 1, the father arrived at her home with their one year old daughter. The mother and Mr McIver had a heated argument. Mr McIver then placed their child in his car and then entered the mother’s home. The mother has yelled at the respondent repeatedly to leave her home and leave her alone. Mr McIver has then grabbed the aggrieved by placing his hands over her face and squeezing her face. When the respondent released his grip, the aggrieved mother has gone outside and grabbed the child from the car. Mr McIver stayed in the house and would not leave. She repeatedly asked him to leave the house and he remained. When it became clear that he would not leave, she rang the police. The notes conclude that the mother would like to have no contact with the father except when he picks up or drops off their daughter.
A copy of the domestic violence order is shown it at paragraph 74,[13] between the mother and Mr McIver. It includes both children and was issued 9 April 2015.
[13] Mother’s Affidavit paragraph 74.
There is a note of the mother’s counsellor two months later 24 June 2015, noting:[14]
“Client reports struggling with angst over the past few weeks, self‑doubts; feels under scrutiny; André criticising her parenting; Mr McIver [McIver] talking about "we" and getting back together and then calls her names; concerned about how [X] is coping with the issues of her dad moving away – says [X] has not been upset by it.”
[14] Exhibit ICL 1, page 127.
Given that the mother has complained of physical, emotional and sexual violence, and that has been confirmed by her counsellor, it is troubling to hear evidence that the mother has been attempting to facilitate and continue a relationship between [X] and Mr McIver after separation from Mr McIver. As will be seen, the mother’s material expressly makes reference to [X] “missing” Mr McIver.
The mother continues to facilitate time between [X] and Mr McIver, despite her history of family violence with Mr McIver and despite the Court and other parties and experts expressing serious reservations about ongoing contact between [X] and Mr McIver. The mother’s decision to ignore and overlook the family violence led to a restraint being imposed by this court in orders issued on 14 September 2015 regarding [X] not spending time with Mr McIver.
This occurred upon the release of the Family Report, and because of the contents in relation to the violence of Mr McIver. The ICL requested that an order be made that the child [X] no longer be sent by the mother to Mr McIver when [Y] spends time with Mr McIver. At that stage, the mother advised the Report Writer that she had been sending [X] regularly with [Y] to what can be otherwise described as contact or access on Monday and Tuesday afternoons. An order was made accordingly, based on the mother’s information.
The mother was in Court when the restraint was raised and discussed and subsequently issued. She was legally represented. The Court was not aware of other times that [X] spent with Mr McIver. At the conclusion of the submissions on behalf of the ICL about his concerns as to [X] spending time with Mr McIver (given his violent conduct), the mother through her lawyer agreed to the restraint. The court issued the restraint sought by consent because of the risks associated with the child spending time with the mother’s former husband, described as a violent man who is prepared to use emotional and sexual violence and intimidation. This restraint came about due to advice of the mother that [X] was spending time with Mr McIver. Significantly the Family Report also made reference that [X] recalled she had been “scared that Mr McIver was going to hit mummy.”
In terms of the time that [X] has spent with Mr McIver, the mother reported in the first family report that Mr McIver spends time with their infant daughter on a fortnightly basis. That was confirmed in a police report which referred to [Y] spending Friday to Monday morning with her father. The mother also stated that Mr McIver has, “…both the girls on Monday and Tuesday, picking them up from (omitted) daycare after school and on fortnightly weekends.”
The mother said in the first report [X] is not that keen to go.
At the time that order was made on 14 September 2015 the court also noted that the mother described Mr McIver having somewhat of an obsession with pornography, he was reluctant to be intimate with her, but would stay up late watching hours of porn and lied to her about multiple issues. It is concerning for me, as it was to the report writer, to find that the mother had organised for two afternoons each week for Mr McIver to spend unsupervised time with his own daughter and with [X], who is not his biological child.
Despite the violence that had occurred, and the domestic violence order, this court’s restraint order and the discussion that took place in the Court room prior to the Order being made with the agreement of the mother and father, the court has been deeply alarmed to hear evidence at the trial that the mother was still organising for [X] to spend time with Mr McIver.
An example of this related to the (Town B) Show in 2016. The mother said in evidence that [X] had gone to the (Town B) show in July 2016 with Mr McIver. When asked why she would have allowed that to occur, particularly in light of the orders which were essentially to stop the child spending time with Mr McIver, the mother said that [X] really, really wanted to go with him. The mother initially said he took [X] to the show. Later in her evidence she said she also went with [X]. I was not satisfied that this was true and was left with the strong impression that the mother said it to lessen the obvious breach of the orders.
The mother sought to justify her condoning this outing, by saying effectively that she thought the restraint was only about stopping contact between [X] and Mr McIver on weekday afternoons.
The mother set out in her affidavit sworn on 18 September 2016 other examples of Mr McIver continuing to have contact with [X] after the restraint was ordered. This included the actual day that the restraint was made on 14 September 2015. I have read the circumstances of Mr McIver collecting both [X] and [Y] from day care on that day. Mr McIver attended at the day care centre and collected not only [Y], but also [X]. The mother said when she called at Mr McIver’s house to collect both girls, she explained the Order to Mr McIver made in Court that afternoon.
Again on 16 February 2016, the mother said that she attended Mr McIver’s sister’s sons christening. Mr McIver was at the Christening as were about 40 other people. The mother said, “[X] was free to interact with who she wanted. She spent a lot of time hanging of [sic] Mr McIver, talking and playing with him.. and [X] appeared to have enjoyed herself and did not display any distress. I supervised [X] and Mr McIver from a distance the entire time.”[15]
[15] Paragraph 188.,
The mother has also explained that after the Orders were made issuing the restraint on 14 September 2015 that she and [X] have coincidentally met up with Mr McIver such as they did at Harvey’s Creek (25 minutes south of (Town B)) for a swim on a weekend in February 2016. The mother says that this meeting was “by chance” and that when she and [X] arrived, [X] spotted Mr McIver, her sister [Y] and the paternal grandfather. The mother explained that [X] said hello to Mr McIver and his father and gave each of them a big hug. The mother went on to explain that she and [X] remained swimming and chatting with Mr McIver and his father. She justified remaining there swimming and chatting with Mr McIver by saying that she is reluctant to take the girls swimming to other locations due to Irukandji jelly fish and that there are a limited number of waterholes within a short drive of (Town B).
The mother has given evidence that [X] has said to her at times “I miss Mr McIver (Mr McIver).” The mother says that she maintains “a functional co-parenting relationship with Mr McIver. I do not interact with him socially save for family events.” She explained that on 2 March 2016 she and Mr McIver took their daughter out for her birthday with the paternal grandfather.
The mother also explained that there are regular cross over periods at changeovers with Mr McIver that [X] also attends. The mother goes on to say that;
“My observation is that [X] is comfortable with Mr McIver presence.[sic] When Mr McIver attends my house for changeover with [Y], he does not enter the house. He stands at the front. [X] approaches Mr McIver on her own volition and gives him a hug and has a general chat about things. Sometimes [X] or [Y] ask him to go out the backyard to show off jumping on the trampoline.
[X] has said to me words to the effect of, when will Mr McIver be able to pick me up after school? My response is words to the effect of “I will pick you up after school just as I’ve been doing the last few months.”
This statement and others are very revealing about the mother's misunderstanding of the extent and nature of the risk that she places herself in, along with [X] and [Y] in continuing to associate unnecessarily with such a violent man as Mr McIver. The Court’s assessment of his violence is based on the mother’s own evidence and supporting evidence in the subpoena material which the mother has accepted as truthful.
In my view, the mother has no insight into the dangerous situation she is placing herself and the children when continuing to associate socially and unnecessarily with her husband, Mr McIver. I do not accept the mother’s position that she thought the Orders just meant that [X] was not to go to Mr McIver on weekday afternoon. The whole thrust of the concerns submitted by the ICL to support her application for a restraint on the child [X] being bought into contact with Mr McIver, was due to his unpredictable violence as described by the mother. The wording of the Orders on the day was intended to cover the situation in existence as the Court understood it to be (according to the mother’s evidence) which was that [X] went with [Y] to spend time with Mr McIver twice a week. The point of the restraint was clearly raised in the context of the violence of Mr McIver and the need to protect [X] from being exposed to spending time with Mr McIver given his unpredictable and violent behaviour. In my view, the mother’s behaviour is very troubling. The mother has chosen to be dishonest with the Court and agreed to the restraint knowing that there were plenty of other opportunities that occur for direct contact between [X] and Mr McIver. Alternatively the mother has a significant lack of insight and naïve understanding of the risks that she exposed [X] to in continuing [X]’s direct contact with Mr McIver.
I reject the mother’s evidence that she “just happened” to take [X] and herself for a swim at the same time and same day to the same swimming hole 25 minutes outside of (Town B) where Mr McIver and [Y] were also swimming. I do not accept that this was unplanned. In any event if the mother understood the point of the restraint and appreciated the risks, she would not have stayed at the swimming hole swimming and engaging with [Y] and Mr McIver for the afternoon. Had the mother acted protectively and removed herself and [X] from the situation, the Court might have been able to have some confidence that the mother has at least some insight into the possibility of [X] being exposed to conflict and family violence if Mr McIver and the mother’s contact lead to more conflict. Her narrow interpretation of the Court’s orders suited her own purposes, regardless of the risks to [X] or [Y].
The mother has on either view demonstrated poor parental decision making and capacity to parent. I am satisfied her conduct is not that of a mother who understands the risks she is placing herself and her children in. I agree and accept the Family Report Writer’s oral evidence that the mother does not show insight about domestic violence and the need to protect children from it. I agree also with the Family Report Writer that this is a significant short coming in the mother’s attitude toward parenting and capacity to parent. I place significant weight on this issue.
I am also satisfied that the mother is intent on continuing a relationship with Mr McIver and to include [X], regardless of what Orders the Court makes. At the conclusion of the trial, the mother agreed to another restraint which is broader. Given her conduct in either ignoring or not appreciating the risks relating to Mr McIver, I have significant reservations that she will comply with the Court’s restraints. This is particularly so once the proceedings have ended and the mother is no longer under the direct gaze of the court.
As to the mother’s evidence that [X] “gets on well” with Mr McIver, this is equally troubling. It is not to the point that [X] gets on well with Mr McIver or that she misses him, as is suggested in the mother’s evidence. The risks of further domestic violence occurring in a relationship which has already been described as being emotionally, physically and sexually violent is not a dynamic that [X] ought to be exposed to. Sadly, this whole concept has escaped the mother’s understanding. There is no telling when tempers will flare and violence will erupt in such relationships.
I am alarmed at the mother continuing to have Mr McIver come to her home several times a week at handovers. In my view, handovers can be occasions that can quickly deteriorate into argument and family violence. The mother has ensured that [X] has had ongoing and regular time spent with Mr McIver. I am critical of the mother for taking this approach which in light of all the evidence, I regard as irresponsible parenting.
The mother wants to have an ongoing relationship with Mr McIver whilst as the same time seeking protection from Mr McIver through a Domestic Violence order. Mr McIver is to remain 50 metres away from her and the children. The mother has sought the assistance of the State Court when she is being hurt or in fear of Mr McIver to protect herself and the children. [X] is on the domestic violence Order. The mother expressed significant levels of fear to her counsellor and obviously to the state Court in requesting the protection order but then decided to attend the [Town B] Show with Mr McIver and both [Y] and [X] and other outings. The mother is sending out mixed messages to Mr McIver, an issue which in itself can lead to serious misunderstandings and conflict. In this Court the mother has attempted to diminish or conceal the abuse and family violence in her relationship and household with Mr McIver. This combination of factors and conduct leaves the Court most concerned at the potential for further violence.
The mother confirmed under cross‑examination that there are no parenting orders in place between herself and Mr McIver about [Y]. I have already referred to the entries in the mother’s records about Mr McIver threatening to take [Y]. Under cross examination, the mother was asked whether she is actually able to tell Mr McIver that [X] is not coming to see him. The mother said she could. Having heard all of the mother’s evidence and observed her under cross examination, I am not satisfied that this is so.
The subpoenaed records show that the mother told her counsellor that Mr McIver wanted custody of [Y]. I had the impression that the mother is walking a fine line with Mr McIver and that she is prepared to compromise the safety of [X] to maintain a relationship with Mr McIver and not to rock the boat with the current arrangements with [Y]. When her arrangements with Mr McIver turn violent, the mother calls the police to intervene. Once they intervene, the mother again makes more arrangements which involve her ongoing association with Mr McIver. This cycle is dangerous. This reflects very poorly on her capacity to parent and her attitude towards parenting. I am not satisfied that the mother has finally separated from Mr McIver nor am I satisfied that the mother sufficiently understands the potentially dangerous dynamic she is exposing herself and her children to.
Violence involving mother’s sister - 23 January 2013
There is another aspect to the mother’s behaviour that is of concern to the Court. The mother herself has demonstrated that within her own family circle, she can be hostile, aggressive and violent.
The lead up to the incident in January 2013 with Ms A was when the mother heard that her sister Ms A was visiting (Town B). The mother found out that Ms A was at the home of their grandmother, Ms P, and that [X] was visiting for a celebration morning tea in the company of both her maternal aunts, their children and the grandmother. The fact that her sister Ms A and her sister Ms J were seeing [X] without the mother’s approval incensed the mother. The mother explained her difficult relationship with her sister and that due to her conflicted relationship with Ms A, the mother was adamant that [X] ought to have no time at all with Ms A. The mother’s primary complaint was that she was convinced her sister, Ms A, would be making derogatory comments about her to [X]. The mother was also very critical of Ms A’s home life. The mother does not support [X] going to Ms J’s home and says that it is a house and an atmosphere where there are risks due to alcohol consumption and not an atmosphere that she wants [X] to be in. She describes it as “undesirable” and that she did not want [X] spending time in that environment and she would not allow [X] to go to that environment.
The mother has therefore decided that [X] is not to spend any time her Aunt Ms A or Aunt Ms A’s children including her new baby, [X]’s cousin even when it was happening at her grandmother’s house. The father has however facilitated these relationships for years. There is no middle ground with the mother. Even though the sister was just visiting (Town B), the mother’s total ban on [X] spending time with her Aunt and her new 10 week old cousin was to be observed.
Ms A gave evidence by video. Ms A supports the father’s application. I accept Ms A’s testimony as being a truthful account of what occurred. Ms A does not live in (Town B). The mother’s other sister Ms J lives in (Town B). As a result of the incident the mother and her sisters are completely estranged. This is a tragedy for the mother and her sisters who have all had such a difficult and fragmented childhood being placed in foster care aged about 13. The mother has a history of childhood abuse, as do her sisters.
On hearing about the morning tea that was happening at her grandmother’s home the mother decided to intrude into the morning tea. The mother, unannounced, arrived at her grandmother’s home and entered the home angry and upset. In the midst of a peaceful morning tea, with cakes, a new baby, and young children (including [X]), aunts and her grandmother, the mother stormed in and moved directly to stand in front of Ms A who was sitting breastfeeding her new baby. The mother started shouting right in her face and abused Ms A. Ms A shouted back. Ms A maintains she was kicked by the mother. She stood up to face the mother, after first putting her baby down. The mother hit Ms A with her right hand and caused injuries to her face and nose which were later photographed by police.
The mother’s actions disrupted and shattered what had been a peaceful, warm and special family occasion. Chaos and argument followed. The grandmother was left in tears and, despite her crying and asking the girls to stop, the pushing and shoving continued. The grandmother asked the mother to leave, and finally she did removing [X] with her. Ms A was left with injuries and attended hospital for treatment of her injuries including blurry vision just after the incident. All of this occurred in the immediate presence of [X] and other children.
The account of the event by Ms A was much more graphic than the mother was prepared to say under oath. Generally the mother has not been prepared to give evidence against her own interests which is not unusual. However, in the mother’s case there has been a notable lack of her being candid when it is against her interests to do so. The mother attempted to diminish this incident in January 2013. Ms A explained that the mother was towering over her, using vulgar language. Ultimately Ms A made a complaint to the police about the mother’s conduct. Understandably the grandmother did not want to support either party and she told the police she did not see who got hit. The police could not determine the issue as between one account of events and the other. Ms A finally decided that she would not press the matter anymore.
The mother's decision to march into the house unannounced and immediately stand over and intimidate her breast feeding sister and to verbally abuse her sister was always going to end in a conflicted situation. It ended in family violence.
The police subpoenaed records state in part as to mental health concerns, the report notes:
“Yesterday’s incident and concerns stressed by the family of her mental wellbeing and her aggressive behaviour, that it seems to be escalating.”
The aggrieved attended the Smithfield police station to report the incident as per the MO. The aggrieved was to attend (Town B) to have her injuries photographed. Police observed redness of her nose and some swelling. The aggrieved states she is “still suffering from tenderness”, further stating she “did have blurry vision after the incident” but this has “since disappeared”. DV application is not sought as the aggrieved is returning to New South Wales in two weeks time. Importantly, the police records note: “Children were observed to be nervous and visibly distressed.”
The mother's view now is that had she known it would end like that, she would not have gone there. It was the mother’s entry into her grandmother’s home that triggered this whole event. The mother shows very poor judgment in various respects and this is another of them. Whilst I accept that family feuds are not uncommon and I accept that the mother and her sisters have had much hardship during their childhoods, the mother’s hostility and uncompromising attitude in refusing to allow [X] the opportunity to enjoy the love and affections offered by both her aunts and her cousins illustrate to me that the mother is not able to put [X]’s be long-term interests above her own. The mother has committed violence and exposed [X] to family violence in pursuit of having her say and taking control of [X] as if she is a possession. There is no evidence that [X] was at any risk with her aunts and her grandmother. The evidence is that it was a warm family gathering.
The mother has had a troubled history in work place with her co-workers. She says she has been accused of bullying in the workplace, though says after official complaints, she was cleared of that. I have the impression that the mother has a very prickly personality at times and that she is fairly uncompromising in terms of accepting views other than her own. The mother does not have the capacity to be able to peacefully navigate her way through these family situations.
By contrast, post separation whilst the parties lived in a week on week off arrangement in (Town B), the father has been willing to facilitate the ongoing relationship between [X] and her maternal aunts and cousins as he realises that these associations are significant and fulfilling for [X]. There is no evidence of [X] being at any risk of harm with her aunts and cousins.
In terms of the father, he has had a constant presence in [X]’s life, as either co-parenting, solo parenting or whilst he had moved to (Town A), spent holiday time with her. There is no evidence that he has caused the child any physical harm or neglect to [X], or that he has exposed her to family violence. I am satisfied that there is no violence between the father and his partner nor was there any between the father and the mother. The father enjoys fairly good health and does not have a history of any mental health problems.
The relationship with the mother however has more complexity to it, given my concerns about her capacity referred to elsewhere in these reasons and the issues of domestic violence I have referred to. The Family Report Writer raised concerns about parentification of [X] as regards to the mother. The relationship between [X] and the mother is good, However [X] is not as relaxed and animated in her mother’s company as she is with her father.
Overall, I am troubled by the evidence outlined in terms of protecting [X] from exposure to violence whilst [X] lives with her mother. In contrast, [X] is safe and secure in the home of the father. There is no exposure to these risks. This is a significant factor one which I must place significant weight.
As to the mother’s position that the child will no longer have a relationship with [M] if [X] lives with the father, I note that [M] and [X] have a significant age difference. [M] is a teenager. She is moving into her own social circle and is no longer a little girl wanting to do things like colouring in with her younger cousin [X] as Ms P noted. The irony of the mother raising this issue and relationship in support of her case that [X] should live in (Town B) is that it has been happening only through the father organising time with [M]’s mum Ms J.
The significant distance between (Town A) and (Town B), obviously precludes any mid-week regular time and precludes an equal time arrangement. The Report Writer is confident that the times nominated by each parent for [X] to spend with the other will provide [X] with sufficient opportunity to maintain an ongoing relationship with each parent subject though to the co-operation of both parents and willingness of both parents to promote [X]’s relationship with the other.
The submission was made that the separation of siblings is only done in unusual circumstances. This is not a family situation where [Y] and [X] have grown up together with the same mother and father for all of their lives and one party is proposing now for the first time separating them. The situation in this matter is that [X] has spent her life going from one parent to the other, even for the period since [Y] was born in 2014. [X] has lived in either a week on week off relationship or lived with the mother in 2015 for a period and then back to week on week off. [X] and [Y] have different fathers with different cultural backgrounds. There is a reasonable age difference in that [X] is 10 in January and [Y] was born on 2 March 2014. There are about seven years between them. Whilst [X] and [Y] are half siblings, it is not to be presumed, as seems to be the case, that [Y] will always be living with her mother. She too is spending time with her father, and so each of these girls will have some time together and some time with their father. [Y] may end up in a shared arrangement. I have considered the effects of separation with [Y]. I am satisfied that the block times proposed would accommodate (as Ms P has opined) the girls continuing their sibling relationship. I am satisfied that additional Skype or FaceTime no less than twice a week will enable their relationship to continue. I do not accept that [X] living in (Town A) will lead to an end of this sibling relationship, given the amount of time that it is proposed she would return and the electronic communication.
S.60CC(3)(e) The practical difficulty and expense of a 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
There was significant questioning about the cost of contact. The father says he will pay the airfares. I am satisfied he will earn or has the capacity to earn and will be responsible for the airfares (for [X] and himself or another adult) in the event the child lives with him in (Town A) or if the child remains living in (Town B). The father has been paying the airfares, it seems, for the year that he has been away from (Town B). The father's financial costings were on the surface deficient, with of estimates appearing to be very low, such as $50.00 a week for food. The father omitted to include in his costs that he was paying $200.00 a week to his partner towards her mortgage. The cost of contact will involve an accompanying person. The mother has been working for (employer omitted) for 12 years and earns a regular income. I am satisfied that she can afford the cost to be an accompanying person and contribute to the child’s airfares.
Each of the parties have agreed with the alternate arrangement in the event the child lives with them primarily. I am satisfied that the mother has the financial capacity to pay for one half of all of the proposed travel costs for [X]. I am also satisfied that the father has financial capacity to pay for all of [X]’s travel costs to and from (Town A) to (Town B).
S.60CC(3)(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
[X]’s father identifies as being Australian-(nationality omitted) with a (nationality omitted) heritage and culture being important to him. He stated he belonged to the (omitted) religion and [X] had been christened in (country omitted) in a (omitted) ceremony. She also identified as belonging to the (omitted) religion and attends church from time to time. The mother did not identify as having any indigenous or other background or any particular cultural issues.
[Y] is [X]’s half-sister, so these two young girls have separate fathers, each with different cultural backgrounds, the father in this matter having an Australian-(nationality omitted) background and [Y]’s father having a (nationality omitted)-Australian background (his mother is (nationality omitted) and his father is Australian). Generally, I would consider that it will be to the advantage of [Y] to be able to enjoy her (nationality omitted) heritage. This would include being able to travel at some point to spend time with her paternal grandparents. I also would consider it would be to her advantage of [X] to be able to experience the culture that her father is so proud of and which is his own heritage and part of [X]’s. I do not understand the basis of any order that [X] could not travel to (country omitted) or have a (nationality omitted) passport. I have a strong impression that the mother has just been vindictive in seeking to prevent this occurring.
S.60CC(3)(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Unfortunately, it seems to me that after these parents have had so many years of co-parenting that, as the mother has done with other people in her life (such as each of her sisters) now taken an intense dislike and dismissive attitude to the father. Her phone name for him to [X] is “the douche.” This is really most unfortunate as the father is going to be in [X]’s life and remains a very important person in her life, as is the mother. I am not sure why the mother responds this way. I was left with the strong impression that the mother also now has taken a resentful, dismissive attitude towards the father’s partner.
As for the child’s weight, it has been submitted to me on behalf of the mother that the father is obsessed with the child’s weight and that they have engaged in inappropriate behaviour in allowing the child to have a meal substitute on one occasion for breakfast, being a strawberry milkshake. There is no evidence that satisfies the court that the father is obsessed with the child’s weight. I accept that the father has raised the issue of the child’s increasing weight when he had the family interview. This was validated by the father making same observation as the Report Writer. The Report Writer attributes [X]’s weight gain to likely onset of puberty, which the mother denies. Whoever is correct is almost beside the point. However, offering the child a meal substitute of a strawberry milkshake on one occasion for breakfast, in my view, does not amount to having an obsession with her weight.
As to the suggestion that the father ought to have consulted a doctor before giving the child a breakfast milkshake apart from being an absurd suggestion, he is legally entitled under the consent orders, to make decisions on a day to day basis. It is therefore entirely his decision what the child has for breakfast.
I found the father to be an honest witness and to be fairly quiet and somewhat in awe of the process. However, I have no reason to doubt that when he says that [X] has told him, or he has been told, that [X] sometimes spends time in the library to get away from teasing from the other girls, about her weight.
Considering that the parties have consent orders in place from 2012 and before that since 2009, they have agreed to the child’s living arrangements, it is difficult to conclude that either party really had at that stage any serious concerns about the other party’s responsibility to parenthood or their attitude to the child. The father has raised that when the mother went to Darwin that she was living a life of nightclubs and drinking. The mother has conceded that this was so and that she was escaping a lot of stress from her work, and that she was heavily drinking. The father submits that there are still plenty of occasions when the mother is out drinking with her friends. The mother denies this is so. However, her evidence about coming home from an event and falling asleep on her handbag and in her clothes was like much of her evidence, less than convincing. In any event I am not satisfied that the mother, if she was in her normal routine, would generally fall asleep over a handbag or in her clothes. It suggests to me that the mother had had a night out which included drinking. The father has some basis to believe that the mother is not candid about the amount of times that she is spending out or the current level of her drinking.
Many of the father’s suspicions of the mother not being completely candid with him are unfortunately well founded. The mother’s failure to explain or admit to the father she was having serious issues in her relationship with Mr McIver over the period that [X] and [Y] were living with the mother and Mr McIver was a grave error of judgement on the mother’s part. [X] was living in a household in which, on the mother’s own words, the cycle of violence was happening every day and whilst she was subjected to physical, emotional and sexual abuse.
I do not accept that the only time that [X] saw any violence was when the mother was hit at the doorway. It is inconceivable that the level of violence she has described, the harassment that she has had from Mr McIver, the constant phone calls and texts, following her, not leaving her home when he was asked to, and the mother calling the police in distress, that [X] would not have been exposed to this the same as [Y]. In my view, the mother has been very selective about what she has chosen to explain to the father. He is a co-parent with equal shared parental responsibility. He was completely entitled to know what was happening in the household in which [X] lived. It is clear she has not shared her experiences either with her own grandmother. The mother has shown very poor judgment. I find it impacts on her capacity to parent and her attitude to parenting in a significant and negative way. This is a significant factor in my determination. It leaves the court in a position of not being satisfied that in the future the mother will again be less than honest about the family violence or interactions that she is having with Mr McIver.
I do not accept the submission of the Counsel for the mother that the mother has had an “awakening” in the witness box. In fact, my impression was quite the opposite. She did not have an awakening. She sat puzzled by the questions and did not appreciate the concerns that were being expressed as to her conduct or the naivety of her answers. Whilst she says she understands the cycle of violence, I am not satisfied that the mother does or that she has the skills to extract herself from her relationship with Mr McIver or other males like him. I accept that the mother has the capacity to protect [X] from violence that could occur in the future in that relationship.
This finding has a profound effect on the mother’s capacity to parent and her attitude towards parenting.
S.60CC(3)(j) Any family violence involving the child or a member of the child’s family; and S.60CC(3)(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following (i) the nature of the order; (ii) the circumstances in which the order was made; (iii) any evidence admitted in proceedings for the order; (iv) any findings made by the Court in, or in proceedings for, the order; (v) any other relevant matter.
I adopt what I have said elsewhere in this judgment.
S.60CC(3)(l) 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 is hopeful that the order for equal shared parental responsibility which each parent has asked for and which is supported by the ICL will not lead to any further disputes. The religion of the child is agreed. Her school is agreed as nominated by the father in his orders. I am told by Counsel there is no dispute in this regard.
As to Mr McIver, it seems to me that there is some likelihood that there could be further litigation between he and the mother, given the mother’s current active involvement with Mr McIver. If the violence continues, not only does this place [X] at risk, but it will also lead to further litigation.
S.60CC(3)(m) Any other fact or circumstance that the court thinks is relevant
I have taken account of the submission that [X] should be near her mother when she enters puberty. However, the submission is flawed by the fact that the mother doesn’t believe she is going through puberty. Accepting that she is or will be soon and having regard to each of the parents, I am satisfied that the father is very child-focused and he has a good sense of [X]’s emotions. I am satisfied that he will make any arrangement necessary for her to either talk to her mother or have information given to her about puberty including talking to [X] himself. [X] is close to Ms B and also regards her two adult daughters as her big sisters. In any event [X] will always be talking with her mother and spending time with the mother on either scenario. She does not have to live with her mother to have those discussions and such discussion will likely occur on and off for years.
Parental Responsibility
Each of the parties is now asking for equal shared parental responsibility. The mother commenced the trial by amending her application for sole parental responsibility. It seems to me that the Court would need to accept that the mother was going to be cooperative with the father, and vice versa. The evidence I have before me is that the mother says that she does not talk to the father, and she has put arrangements in place as determined by her and that they do not speak on the phone. She prefers everything to happen by text, as she says she then has got the evidence. I have concerns about there being an order for equal shared parental responsibility. I have witnessed texts where the mother has been cavalier and simply issuing directives and instructions. On other occasions the mother just refuses to answer messages in a timely fashion and then complains of harassment when the father follow up the earlier message. She does not engage in what I would regard as a communication equivalent with cooperative parenting. The mother makes a decision and that is the decision. The father is left to ask and try and implore the mother to change her mind.
This was also seen when the father returned from his time in New South Wales, to resume living in (Town B). For no valid reason, the mother determined that the child would now start spending time with the father each alternate weekend rather than week on week off pursuant to the Orders. Conversely when the mother moved away from (Town B) for 10 months, she expected and the father agreed that the child would move straight back into a week on week off arrangement upon her return. When the father went away, the mother came up with a range of reasons as to why this should not happen.
I am quite sceptical of the mother's conduct in doing so. She has tried to link it in to the phone calls, saying that she was concerned that [X] was becoming anxious, and then she heard the phone calls, and she wanted [X] to go to counselling at (omitted therapy centre) because of her anxiety. What the mother has failed to tell the father or the Court is that this is precisely the same time that the mother had been going through a very difficult relationship, and separated from her violent partner Mr McIver. Domestic Violence Orders were being put in place, and the mother had been a victim of sexual violence, emotional violence and physical violence. The mother has chosen not to volunteer to the court or the father the extent of this. The mother took the child to a counsellor. I am not satisfied that she told [X]’s counsellor about her exposure to family violence. In my view, she has tried to mask the child's anxiety and attribute it solely to the fact that the father was returning to (Town B) and suggesting the child is anxious about going back to week on week off. There is no evidence of that at all. There is evidence, though, and the mother admits, that the child was exposed to family violence in her relationship with Mr McIver.
Ms P is concerned that the communication is quite difficult between the parents at the moment, but she held the view that with some more education they could develop a more respectful relationship. These parents have had a long history of co-parenting and it is indeed unfortunate that the father’s application to relocate has been regarded by the mother as something akin to a criminal offence. It is true that Australia is a large country and as the High Court has observed, there is a lot of mobility in families within Australia.
In my view, the communication is very strained at the moment, and this is in large part due to the mother’s overt and expressed irritation, annoyance and hostility shown towards the father. In my view, over and over, the father has been painstakingly patient with the mother’s passive resistance. The father has pressed for his time with [X] despite the mother being quite obstructive. It is to be hoped that once this judgment is made that the mother and father can return to some form of cooperative relationship as they had for years. I do think there is some benefit in each of them again doing the parenting orders program in light of the events that have happened during the trial and the events that have led up to the trial.
In terms of whether or not the presumption applies, I am satisfied that it does not given the evidence of family violence. The family violence that has occurred between the mother and Mr McIver fits the category of family violence involving the child or a member of the child’s family at consideration s.60CC(j). The mother has acted out violently with her sister. There is a domestic violence order between the mother and Mr McIver and [Y] and [X] have been exposed to the domestic violence.
As to whether or not the presumption is rebutted as bit being in the child’s best interests given the history of each of these parties being jointly involved in making long term decisions for years, I consider it would be in [X]’s best interests to have an order for equal shared parental responsibility where
her long-term decisions made by each of her parents. I do not consider that either of them ought to be precluded from having ongoing decision making authority in relation to long term issues such as health, medical, educational and religious beliefs.
Each of the parties and the ICL have asked that an order for equal shared parental responsibility be made I am satisfied that it is in [X]’s best long-term interest for this order to be made.
Section 65DAA – Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
The primary proposal of each of the parties are that the child lives in (Town B) with the mother or that the child lives with the father in (Town A). The distance between (Town B) and (Town A) is over 2,000 kilometres. It is therefore impracticable for the child to live in an equal time arrangement. The father’s application to relocate from the (Town B) and the mother’s position that she is not going to relocate. The father has not proposed living in (Town B).
Whilst I have been asked by Counsel for the mother to consider dismissing the father’s application and making an order for equal time, it is to be noted that the father is not seeking an order for equal time. This submission is not in line with High Court authorities such as U & U.
Discussion – Bests Interests
Looking at the mother’s objections to the father resuming week on, week off, leaves an inescapable conclusion that the mother sought strategically to restrict the father’s time. When an application was brought by the father, at which time the mother still insisted on reducing the father’s time to each alternate weekend. Despite consent orders, the court made orders that the previous consent orders were to be complied with.
In light of all of the evidence, I consider that the mother would likely search for excuses not to comply with court orders because this is what she was prepared to do in 2016 in relation to the father resuming the terms of current orders.
At the same time the mother was putting the father through the hoops about why he should not be permitted to resume week on week off, she was encouraging a relationship between [X] and Mr McIver. There was no satisfactory explanation from the mother as to her attitude towards Mr McIver and him having either weekends of unsupervised time, two afternoons a week and other times that they saw each other at daycare centres, church and socially. This as compared to the mother’s restrictions imposed on the father and [X] which was to seek to reduce her time with the father to each alternate weekend. The mother and [X] visited an area near the father and decided, after three days of text messages of him asking to see [X] that he could spend 45 minutes in a café and berated the father for hounding her for a response. The mother really has behaved very poorly in terms of her parenting attitudes and her lack of willingness to encourage a relationship. Similarly, her referring overtly and regularly to the father when he rang as “the douche” suggests to me that while she submits that there ought be orders that no denigration occur, she shows no insight into her own conduct and is prepared herself to ridicule the father.
In terms of whether or not the father knew that he should promote a relationship, Ms P said, “his speech was that of great insight.” In terms of whether the mother was able to promote a relationship, Ms P said, “Ms McIver was not able to convey to me an understanding of how important it is that Mr Romijn be a part of [X]’s life.” This accords with my own observation.
I acknowledge that the father has been derogatory of the mother on an occasion, in the phone call to [X], on hearing that a new bag he bought for her was not being used because the cat had urinated in it three days earlier and it had not been cleaned out yet. The father said words to the effect, “Doesn’t anyone love you?” These words ought never to have been said. Perhaps they were said in frustration. However, I am satisfied that that is not in any way typical of the kind of dialogue that the father has with the child about the mother. The relationship that the child has with the mother does not indicate to me that it is being undermined by the father. As I have said the mother for her part admits to regularly referring to the father on phone calls as “the douche.” The father has shown much tolerance for a significant period in his dealings with the mother.
In terms of the competing proposals, it is clear from this judgment that I have some reservations about the mother’s capacity to parent and attitude towards parenting. This involves largely her association with Mr McIver and lack of candour about the nature and risks associated with her relationship with Mr McIver along with inability to appreciate the risks (including violence initiated by her) of exposing [Y] and [X] to family violence. Other significant issues are the mother’s desire to be obstructionist when possible and to undervalue [X]’s relationship with her father by putting up obstacles to a resumption of the equal time arrangement when she knew that [X] was spending at least two afternoons a week if not more with Mr McIver.
The mother’s inability to understand and show any insight into the risks she has placed [X] in and the risks that Mr McIver presents to her and [Y] are deeply concerning.
The mother’s overt hostility towards the father and his partner is unwarranted. I do not have the same confidence in the mother’s parenting ability and her ability to stay in tune and understand the child’s emotional needs as I do in the father’s abilities. The mother is not able to place [X]’s best interests ahead of her own.
If the child remains living with the mother, I am not satisfied that the father’s importance and involvement in [X]’s life will be properly acknowledged. I agree with the evidence of Ms P in that regard. The ICL supports orders that the child live with the father. I have heard and adopt those submissions and the submissions of Mr Priestly SC for the father. I consider that the best interest of [X] involve her living with the father in (Town A) and spending time with the mother as set out in the proposals of the father.
I am satisfied that [X] will continue to have a meaningful relationship with both parents if she lives with her father. I am satisfied that the father will continue to understand the importance of [X]’s mother in [X]’s life. I am satisfied that the time provided for in the father’s proposal will enable [X] to have a meaningful relationship with her mother and her half-sister. I am not satisfied that [X]’s relationship with her father will be promoted and supported by the mother, particularly given the tyranny of distance and the mother’s dismissive attitude of the role of the father in [X]’s life and her cavalier attitude and interpretation of the Court’s orders. The environment in (Town B) with the mother and great grandmother is that the father is regarded with some ridicule. I am deeply troubled as to the long term effect on [X] of these attitudes towards the father.
I also consider that the father has a superior capacity to provide for all of [X]’s needs, emotionally and intellectually and that she will achieve her full potential in life in his primary care.
I intend to leave the restraint (which I note is by consent) in place regarding Mr McIver, made at the trial for the reasons outlined in this judgment. [X]’s exposure to the risks with contact with Mr McIver are ameliorated with the restraint and by [X] living primarily with her father.
Passport
In terms of the passport issue, I am satisfied that the father is an honest person and that he will not attempt to remove the child surreptitiously from the Commonwealth of Australia and travel to (country omitted) and not return to Australia. I consider that it could only be an advantage to [X] to have the opportunity to have two passports. Any opportunities in the future to be able to travel and have the benefit of seeing her paternal grandparents and visiting the country which is the birthplace of the paternal grandparents, is an experience that would enrich the life of [X].
As to international travel, the father adopts orders in part that were sought by the mother, that each of the parties be permitted to remove the child from the Commonwealth of Australia for the purposes of a holiday (noting the restriction in the child travelling to (country omitted)). A party is to give 90 days written notice of international travel, and provide copies of flight itineraries and contacts where the child can be reached during the entire travel period.
Broadly, as I've said, the father by the end of the trial adopted the ICL's orders with amendments. The father initially agreed with a restraint sought by the mother that the father not apply for a (nationality omitted) passport for the child. However by the conclusion of the trial the father’s Counsel made the submission that there ought to be no restriction on obtaining that passport. It was submitted that in the fullness of time it may be to [X]'s benefit to have a (nationality omitted) passport.
Given all of the evidence and noting that there is no domestic violence by the father and that he is considered to be a fine enough parent to parent on a solo basis whenever the mother wishes him to, it is simply without foundation to now accuse the father of being someone who is going to abscond internationally abduct [X].
I note in relation to her paternal grandparents that [X] was asked “If magic happened and you could live wherever you wanted, where would you live?” [X] quickly responded, “Oh, I would love to live in (country omitted).” Ms P said [X] knows her paternal grandparents reside in (country omitted) and she knows that she went to (country omitted) as an infant.
The mother’s evidence is that the father represents a flight risk and that she has made enquiries and she does not believe that the Hague Convention would order the child back if she had a (nationality omitted) passport.
The parties lived together for 12 years and they have co-parented for all of the years since separation which is June 2009, so that is for the past seven years. The father has looked after the child, in the absence of the mother while she has been in Darwin and the mother has looked after the child in (Town B) when the father has been at (Town A) and I do not regard either of them as being a flight risk.
It is difficult to accept that the mother really has any genuine belief that the father is a flight risk. There is nothing about the father that suggested to me he was about to take [X] and go to (country omitted) and never return. I do not regard the father as a flight risk. There is no evidence for the mother to imply or suggest this. It seems to me that this issue has been agitated by the mother without any validation. If (country omitted) is in the Hague Convention then applications can be made, however, even without that security, I consider the father will always return [X] to Australia.
I accept, however, that there are reservations about [X] travelling to (country omitted). This proposed travel was raised apparently, a couple of years ago by the mother and the father was opposed to it and he remains so. Given the history of Mr McIver and the violence that has been deposed to by the mother to the police and to her counsellor, I am not at all satisfied that it would be in [X]’s best interests to travel to (country omitted). I would consider that, given the threats by Mr McIver to have the child live with him, that it would be entirely possible for arrangements to be made which could prevent the return of [X]. Given the restraint that [X] is not to come into contact with Mr McIver, I also have reservations of how that would ever be policed in (country omitted).
I intend to make an order that, regarding the passports issuing, that the passports for [X] be held by the father and made available to the mother upon her wishing to travel overseas (not to (country omitted) with [X]) with [X]. I consider in making this order now, it reduces the likelihood of further litigation.
I certify that the preceding two hundred and fifty-three (253) paragraphs are a true copy of the reasons for judgment of Judge Willis
Associate:
Date: 10 August 2017
- AGLC
- Romijn and McIver [2017] FCCA 140
- Case
- [2017] FCCA 140
- Decision Date
CaseChat Overview and Summary
The court's primary task was to establish orders that would best serve the child's interests, particularly concerning equal shared parental responsibility and the child's primary residence. Key issues included defining the scope of parental consultation for major long-term issues, specifying the child's living arrangements with each parent, and outlining communication protocols. The court also had to consider orders relating to schooling, international travel, and the exchange of information between the parents, as well as impose specific prohibitions on the Mother concerning contact with her ex-partner and travel to a particular country.
In its determination, the court ordered the discharge of all previous orders and parenting plans. It established that the Father and Mother would have equal shared parental responsibility for major long-term issues, requiring them to consult and make genuine efforts to reach joint decisions on matters such as the child's name, relocation, schooling, and significant medical interventions. The child was ordered to live with the Father in Town A, with specific provisions for the child to spend time with the Mother during school holidays and on Mother's Day, subject to certain conditions regarding travel costs and notice. The court also made detailed orders regarding changeovers, communication between the child and parents, schooling arrangements, the exchange of information, and international travel, including a prohibition on the Mother from allowing the child to travel to a specified country. Furthermore, the Mother was restrained from allowing the child to spend time with her ex-partner, Mr. McIver, and was prohibited from recording the child's time with the Father. Both parents were ordered to attend a parenting program and engage in dispute resolution before making further court applications.
Orders
Orders of the court
1.
That all previous orders and parenting plans be discharged.
Parental Responsibility
2.
The Father and Mother shall have equal shared parental responsibility for the child [X] born (omitted) 2007 (“the child”) in respect of all major long term issues as defined in the Family Law Act 1975 (as amended).
3.
That the parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility and shall make a genuine effort to come to a joint decision. They are not, however, required to consult with each other about the daily care of the child. The types of decisions about which parents are required to inform and consult include by are not limited to changing the name of the child; relocating the residence of the child so that existing parenting arrangement becomes impracticable; changing the school of a child; and significant medical intervention for a child.
Living Arrangements
4.
That the child is to live with the Father in (Town A) in New South Wales. The timing of the departure of the child moving to live in (Town A) will be at the sole discretion of the Father.
5.
That the child live with the Mother at all times as agreed between the parents and specifically as follows:
(a) For the duration of the New South Wales Easter and June/ July school holidays;
(b) For the second half of the September New South Wales school holidays;
(c) For one half of the New South Wales Christmas school holidays being the first half in even numbered years and the second half in odd numbered years;
(d) The weekend of Mother’s Day each year from after school Friday until Sunday (ON THE CONDITION THAT the Mother meets the entire costs of the child’s travel) and provides no less than 21 days’ written notice to the Father of her intention to spend time with the child during this period.
(e) In the event the Mother travels to (Town A), the Father shall facilitate additional time between the child and the Mother provided the Mother gives the Father no less than 7 days notice in writing.
Changeover
6.
That the changeover’s to enable the child to travel to and from the Father’s residence and spend time with the Mother will be as follows:
(a) The parties shall arrange for the child to travel by plane from the Gold Coast or Brisbane airport (at the election of the Father) to the (Town B) airport, with the Father meeting the cost thereof of all school holiday periods as set out in Orders 5 (a) to (c) herein;
(b) The Mother will organise to meet the child at the (Town B) airport at the beginning of the time the child spends time with her in accordance with Orders 5 (a) to (c) herein;
(c) The Father will organise to meet the child at the Gold Coast or Brisbane airport (at the election of the Father) at the end of the time the child spends time with the Mother in accordance with Orders 5 (a) to (c) herein;
(d) Unless the child flies unaccompanied, the Father or his nominee shall travel with the child from the Gold Coast or Brisbane airport (at the election of the Father) to the (Town B) airport and the Mother or her nominee shall travel with the child from the (Town B) airport to the Gold Coast or Brisbane airport (at the election of the Father);
(e) Each parent is to be solely responsible for the cost of the accompanying person referred to in Orders 6 (d) herein.
Communication
7.
That the parties are to do all acts and things necessary to ensure that the child will communicate with her parents by telephone, Facetime and/or Skype at all times as agreed between the parties but failing agreement each Sunday and Wednesday with the Mother to initiate the call between 6:00 pm and 6:30 pm (Queensland time).
(a) Each parent is to ensure the child is available to receive the call;
(b) Each parent is to arrange for the child to call the other parent on the following night if, for any unforeseen circumstances, the child misses the telephone/ Skype call from that parent;
(c) Each parent is to ensure the child has privacy during the conversation.
8.
That the parties are to do all acts and things necessary to ensure that the child will communicate with the mother by telephone/ Facetime and/ or Skype on the following special days, with the Mother to initiate the call in the time frame specified below and the Father to facilitate same (assuming the child is not otherwise with the Mother):
(a) Mother’s Day between 9:00 am and 9:30 am;
(b) The Mother’s birthday between 5:00 pm and 5:30 pm;
(c) The child’s birthday between 7:00 am and 7:30 am;
(d) The child’s sisters’ birthday between 7:00 am 7:30 am.
Schooling
9.
Each of the parties are to do all acts and things and sign all documents required to ensure that the child attends the (School A) in (Town A), New South Wales.
10.
That the Mother and Father shall be permitted to attend all of the child’s school or sporting events at the child’s school, subject always to the discretion of the child’s school.
11.
Each parent is authorised by this Order, to receive from the schools or day care centres attended by the child information that is normally provided to parents about the child’s educational progress and other related activities and supply them with copies of reports, photographs, certificates and awards obtained by the child (at that parent’s cost).
Exchange of information
12.
That the Mother and Father shall:
(a) Keep the other parent informed at all times of their residential address and contact telephone numbers;
(b) Keep the other parent informed of the identity of any treating medical practitioner or other allied health practitioners who treat the child. These Orders authorise those medical practitioners to provide each parent with information regarding the child’s medical conditions suffered from time to time and other relevant information that they are lawfully able to provide to a parent about the child.
(c) Inform the other parent as soon as reasonably practicable of any significant medical condition or illness suffered by the child.
13.
That during the time the child is with either parent, that parent shall:
(a) Respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b) Speak of the other parent respectfully;
(c) Not denigrate or insult the other parent in the presence or hearing of the child and remove the child from the presence or hearing of any person doing so.
BY CONSENT IT IS ORDERED:
Restraint
14.
That the Mother is to do all acts and things to ensure that the child [X] does not spend any time with the Mother’s ex-partner, Mr McIver.
15.
That the Mother is restrained from travelling with the child to (country omitted) or permitting the child to travel to (country omitted).
IT IS FURTHER ORDERED:
16.
The Mother is prohibited from recording by whatever means the child’s time with the Father including all electronic communication.
Passport
17.
That within 14 days of a written request from the other parent, each parent will do all acts and things and sign all documents necessary for the issue or renewal of the child’s Australian and (nationality omitted) passports.
18.
In the event that either parent does not sign the respective passport application for either an Australian or (nationality omitted) passport, the passport is to issue notwithstanding that the other parent does not sign the application.
19.
That the Father is to hold the child’s passports and provide a passport to the Mother for the purposes of overseas travel upon her giving no less than 14 days notice of the requirement of the passport.
International Travel
20.
The parties are permitted to remove the child from the Commonwealth of Australia for the purposes of a holiday (noting however the restraint in Order 15 herein that the child is not to travel to (country omitted)) provided that it occurs during any time that the child is in their respective care as referred to in these Orders, or as agreed to in writing between the parties.
21.
That except in circumstances of urgency, each party shall advise the other of the proposed international travel (no less than 90 days prior to such travel) and regardless of urgency, provide to the other party travel details including copies of any flight itineraries, contact details of where the child can be reached and information in relation to where the child shall be staying throughout the entire travel period.
Courses
22.
The Mother and Father are to forthwith enrol and attend as soon as practicable the Parenting Orders Program (POP)/ to include the Focus on Kids program offered by Relationships Australia and each will file a certificate confirming his/her attendance and successful completion of such course with the Registry within 7 days of receiving it.
Dispute Resolution
23.
That in the event that there is a dispute about the child or about the interpretation, implementation or enforcement of these orders, the parents before making any further application to a Court shall:
(a) Either attend counselling or mediation with an organisation recognised under the Family Law Act 1975 or by the Commonwealth Attorney-General; or
(b) Participate in family dispute resolution with a person authorised under s.10G of the Family Law Act 1975.
Other Orders
24.
Prior to the child relocating to (Town A), the Independent Children’s Lawyer and the Family Consultant are to meet with the child to explain the outcome of proceedings.
25.
The Mother and the Father are to attend at the Federal Circuit Court Registry with the child at 10:00 am on 11 August 2017. Thereafter, the Independent Children’s Lawyer is discharged.
26.
Neither party is to discuss the outcome of these proceedings with the child until after the Orders have been explained by the Family Consultant in the presence of the Independent Children’s Lawyer.
27.
All outstanding applications are removed from the pending cases list.
NOTATION:
A. That pursuant to section 65DA(2) of the Family Law Act 1975 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 Attachment A attached to these Orders.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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