Alden and Samms

FAMILY COURT OF AUSTRALIA

ALDEN & SAMMS

[2011] FamCA 1077

FAMILY LAW – Parenting – Relocation of child – Relocating child from New South Wales to Western Australia – Where child has been living in New South Wales since February 2010

Family Law Act 1975 (Cth)

APPLICANT:

Mr Alden

RESPONDENT:

Ms Samms

FILE NUMBER:

SYC

7428

2009

DATE DELIVERED:

17 October 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Le Poer Trench J

HEARING DATE:

10,11 and 12 October 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Falloon

SOLICITOR FOR THE APPLICANT:

Athena Touriki Solicitors

THE RESPONDENT:

In person

THE INDEPENDENT

CHILDREN'S LAWYER :

Legal Aid NSW

COUNSEL FOR THE

INDEPENDENT CHILDREN'S LAWYER :

Mr Ladapolous

Orders

The father is to have sole parental responsibility for the child B born … 2006. (“the child”).
At any time when the father is required to make a decision about the child’s future where, if the parties were required to equally share parental responsibility, the father would be required to consult with the mother and reach an agreement, then in that circumstance the father is to communicate with the mother and seek her opinion and views in relation to the particular proposal of the father. The father is then to consider those views of the mother before making a decision and once he has made a decision he is to communicate that decision to the mother.
The child is to live with the father.
The child is to spend time with the mother as follows:
(a)    If the child is a student at the C School Sydney (“C School”) or a school with similar Term dates, unless otherwise agreed between the mother and the Father in writing, the child shall spend time with the mother as follows:
i)during the school holiday periods at the end of Terms 1, 2 and 3 each year:
a.   the time which is identical to NSW State school holiday for that period.;
ii)during the school holiday period at the end of Term 4 each year:
a.   from 27 December until 25 January in years when Term 4 ends in an odd numbered year (eg. 2011); and
b.   from 10 December until 16 January in years when Term 4 ends in an even numbered year (eg. 2012);
(b)   If the child is a student at a NSW Government school or a school with similar Term dates, unless otherwise agreed between the mother and the father in writing, the child shall spend time with the mother as follows:
i)during the school holiday periods at the end of Terms 1 and 3 each year:
a.   from the first Saturday of the school holiday period until the second Tuesday of the school holiday period;
ii)during the school holiday period at the end of Terms 2 each year:
a.   from the first Saturday of the school holiday period until the third Saturday of the school holiday period;
iii)during the school holiday period at the end of Term 4 each year:
a.   from 5 January until 24 January in years when Term 4 ends in an odd numbered year (eg. 2011); and
b.   from 23 December until 16 January in years when Term 4 ends in an even numbered year (eg. 2012);
(c)    for a period of up to seven (7) consecutive nights, in Sydney, during each school term provided that the mother gives the father at least 14 days notice in writing of:
i)the dates that she intends to spend time with the child in Sydney; and
ii)the address at which she and the child will be staying while in Sydney, and
during such periods, the Mother shall ensure that the child’s attendance at school is not disrupted.
(d)   such other times as may be agreed between the Mother and the Father.
For the purpose of facilitating Order 4 above:
(a) If the child will be spending time with the mother in Perth:
i)the mother shall collect the child from the father at Sydney Airport on the first day of the the child’s time with the mother, at a time nominated by the mother, and the mother shall be responsible for the cost of the child’s travel from Sydney to Perth; and
ii)the father shall collect the child from the mother at Perth Airport on the last day of the child’s time with the mother, at a time nominated by the father, and the father shall be responsible for the cost of the child’s travel from Perth to Sydney; or
(b) If the child will be spending time with the mother in Sydney, unless otherwise agreed between the mother and the father, the mother shall:
i)collect the child from the father’s home at the beginning of the child’s time with the mother; and
ii)return the child to the father’s home at the end of the child’s time with the mother.
The mother and the father shall take all steps necessary to enable the child to:
(a) communicate with the mother via Skype at least twice a week during school terms, as agreed between the mother and the father and, failing such agreement, between 6:00 pm and 6:30 pm on each Monday and Thursday; and
(b) communicate with the father via Skype at least twice a week while the child is spending time with the mother during school holiday periods, as agreed between the mother and the father and, failing such agreement, between 6:00 pm and 6:30 pm on each Monday and Thursday.
The mother and the father shall each be at liberty to telephone the child between 6:00 pm and 6:30 pm (the child’s local time) each day that the child is in the care of the other parent and the other parent shall ensure that the child is available to receive that call and is permitted to communicate with the calling parent in private. Each parent is to encourage the child in communicating with the other parent on such occasions.
For the purposes of communicating about matters relating to the child, the mother and the father shall communicate by:
(a)    telephone where the matter is of an urgent nature;
(b)   by letter, email and/or text messages where the matter is not urgent; or
(c)    such other method as the mother and the father may agree to.
Unless the mother and the father otherwise agree in writing, the mother and the father shall use their best endeavours to ensure that the child is accepted as a student at the C School Sydney (“C School”), including the signing of any application forms and the provision of any information and documentation as may be sought by C School and the father shall pay any fee(s) associated with any such application.

10.Unless the parties otherwise agree in writing, the father shall be responsible for the payment of any school fees associated with the child’s attendance at a school.
11.Within 14 days of the child’s enrolment at any school the father shall do all acts and sign all documents necessary to authorise the child’s school to provide the mother with copies of all reports, circulars, notices and documents in relation to the child including copies of all school reports, reports on school progress and behavioural issues and notices received in relation to functions, parent teacher nights and activities to which parents are invited as well as to provide to the mother any and all information which may be sought from time to time by the mother in relation to the child.
12.The father shall inform the mother in writing as soon as practical of any specialist medical appointments including appointments with any dentist, optometrist, psychologist, psychiatrist, counsellor or therapist ("medical consultant") in relation the child.
13.The father shall ensure that the mother is provided with a copy of any report by any such medical consultant in relation to the child, within 14 days of the Father’s receipt of the report.
14.Both the father and mother shall be entitled to:
(a)    attend any appointments with any medical consultant relating to the child; and
(b)   discuss the child’s condition with such medical consultant,
however such attendance(s) shall be at the discretion of the medical consultant.
15.Each of the parents shall ensure that the other is notified as soon as practicable if:
(a)    The child is admitted to hospital;
(b)   The child in involved in a medical emergency; and
(c)    The child will be required to take medication when he spends time with the other, in which case the parent shall advise the other of the details of the medication required to be taken.
16.The mother and the father shall advise each other in writing of:
(a)    any change to their residential address, such notification to be given no later than 28 days prior to the proposed change and include the details of their new residential address; and
(b)   any change to their telephone contact number(s), such notification to be given no later than 7 days prior to the proposed change and include the details of their new telephone contact number(s).
17.The mother and the father each encourage and foster the child’s relationship with the other parent.
18.The mother and the father:
(a)    shall not make critical or derogatory remarks about the other parent, the other parent’s family members and members of the other parent’s household in the child’s presence or hearing; and
(b)   shall do all things necessary to ensure that no third party makes critical or derogatory remarks about the other parent, the other parent’s family members and members of the other parent’s household in the child’s presence or hearing.
19.The process to be used for resolving disputes about the interpretation, implementation or enforcement of these orders shall be as follows:
(a)    the mother and the father shall do all things necessary to attend counselling or mediation with an organisation recognised under the Family Law Act or by the Commonwealth Attorney General; or
(b) the Mother and the Father shall participate in family dispute resolution with a person authorised under section 10G of the Family Law Act
20.Before an application is made to a court for a variation of these orders to take account of the changing needs or circumstances of the child or of the mother or the father:
(a)    the mother and the father shall do all things necessary to attend counselling or mediation with an organisation recognised under the Family Law Act or by the Commonwealth Attorney General; or
(b) the mother and the father shall participate in family dispute resolution with a person authorised under section 10G of the Family Law Act.

21. The Court recommends that the mother obtain the assistance of a psychologist to assist her being able to change the nature of her relationship with the father to one where she is able to participate in discussion with the father about the welfare of the child.

22. I recommend that when the father attends at a changeover for the child he be accompanied by no more than one other person (preferably his wife) so as to create an environment where the mother may feel able to sit down with the father and his wife to talk about the child.

23. Pursuant to s65DA(2) and s62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

24. I note that the matter has now concluded in the Court and all outstanding applications are dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Alden & Samms is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7428 of 2009

Mr Alden

Applicant

And

Ms Samms

Respondent

REASONS FOR JUDGMENT

B, born in 2006 (now almost five), is the son of Mr Alden (the father) and Ms Samms (the mother). Each of his parents seek that he live with them and spend school holiday time with the other parent. Each parent now lives on the opposite sides of Australia. The father lives in Sydney and the mother lives in Perth. In this hearing, the mother has represented herself.

Background facts

The father is 37 years of age and the mother 30. They were married in 2007 and separated on 2 December 2009. B is their only child. Following the separation, orders were made on 8 December 2009 (by consent) which provided for the child to live with the mother and spend time with the father.
The mother was permitted to take the child to Perth for a holiday between 13 January 2010 and 30 January 2010. The mother took the child to Perth with her in January 2010. She failed to return him to Sydney by 30 January 2010. The father obtained an order for the return of the child on 3 February 2010. The father recovered the child from Perth on 6 February 2010. The mother elected not to travel back to Sydney and has lived in Perth since that time. Consequently the child has predominantly lived with his father since early 2010.
On 21 July 2010, interim orders were made by consent. Those orders provide that:
·    The parents to have equal shared parental responsibility;
·    B was to live with his father and spend time with his mother for two weeks in each two month period;
·    B was to spend time with the mother in Perth. The mother was to collect the child from Sydney and the father was to collect the child from Perth.
In addition to the arrangement, the mother was permitted to spend periods of up to seven days in Sydney with the child. There were numerous other orders made.
When the parties were seen by the family consultant in July 2010, they each made numerous and serious allegations against the other. These included:
·    allegation by the mother of family violence from the father;
·    allegation by the mother of the father’s physical abuse of the child;
·    allegation by the mother of the father’s criminal history;
·    allegation by the mother of the father’s stalking other people;
·    allegation by the mother of the father using cocaine;
·    allegation by the father that the mother had been a heroin user;
·    allegation by the father that the mother had fabricated allegations of domestic violence, in order to be able to have the child live in Perth with her.
Each party raised allegations and grave concerns about the mental health of the other party. Each raised concerns about the parenting capacity of the other parent. The father made an allegation that the mother had hindered his parenting of the child prior to the final separation. It was clear that each mistrusted the other.
Following separation in December 2009, the mother complained to the New South Wales Police of domestic violence by the father upon her. As a result, the father was charged with common assault. An interim AVO was made against the father. In August 2010, the father was charged with breaching that AVO. That charge was dismissed on 4 April 2011. On 23 November 2010, the assault charge was dismissed. A final AVO was made, without admission, to last 135 days from 23 November 2010 until 4 April 2011. There is currently no AVO order operative.
The father remarried in 2011. His wife’s name is Ms Alden. She is 26 years of age. The father and his wife have been living together and caring for the child since August 2010. The mother has a relationship with Mr D who stays with her frequently, however, the mother says their relationship is platonic. In the proceedings before me (that is, the final hearing), the mother’s evidence is that Mr D now lives full-time in her residence and their relationship continues to be platonic.
On 17 August 2010, the parties entered into final property orders. Those provided in broad terms for the father to pay the mother $85,000 and the mother to transfer her interest, if any, in property to the father. Each parent is in full-time employment. The father is employed in industrial relations. He is also a public official. His income is $1800 per week. He also receives rent of $680 per week for the property at E Street, Suburb F. The mother is employed full-time as a manager. Her wage is $1340 per fortnight. She is currently in a traineeship.
Exhibit X2 in the proceeding is a report by Dr G. In that report some early and relevant history was provided by the parties as follows.
The mother says the child has experienced behavioural problems since 10 months of age. He had experienced persistent aggressive behaviour exhibited towards her. The child had been seen by Dr H who excluded autism. He saw Ms I, a behavioural therapist. The mother considers the child is still angry.
The mother provided a history of experiencing panic attacks at 15 years of age. This persisted until she was 19. She described being frustrated and aggressive and feeling miserable during her adolescent years. She had run away from home a few times and mixed with the wrong crowd. The mother said in 2009 she attended a LANDMARK course which changed her life. The mother’s own parents separated when she was four years of age. She had no contact with her father until August 2009. The mother explained that while she lived in Sydney, she experienced persistent anxiety regarding her personal integrity and welfare. This contrasted with the way she felt living in Perth. The mother described that she experienced reactive depressive symptoms. These were transient, lasting for a day at a time. She would have catastrophic responses where she would feel the whole world had caved in. This had occurred on approximately four occasions. The mother is now 73 kilograms in weight, however, she had been 115 kilograms which Dr G described as morbidly obese. The mother is highly aware of her vulnerability to substance dependency, in particular, to alcohol. Between the ages of 15 and 22 years, she had a history of significant polysubstance abuse.
In relation to the father, Dr G reports as follows: the father raised his disquiet about the damage to his public profile by the mother’s allegations of assault and breach of AVO. He acknowledged the mother had previously been the child’s primary carer. He spoke of his perceived close bond with the child. He had some criticism for the mother’s parenting style. The child had been allowed to miss schooling by the mother and the father was concerned about the child’s diet. The father was concerned about the child having behavioural problems when with his mother. The father was motivated to see the child have a good education and planned to enrol him at the C School. The father alleged the mother had fabricated allegations about him stalking her and threatening her in order to justify her move to Western Australia. He believed the mother’s relationship with Mr D was not platonic.
The father denied the mother’s allegations he had used cocaine. He denied the child had been sexually abused. He denied the child had been tongue kissed, had a sore bottom or had slept with the paternal grandfather. He denied he had been controlling during the marriage.
The father acknowledged his experience of psychological vulnerability. After separation he had been diagnosed with panic disorder. When asked by Dr G for more history, the father provided further history which Dr G considered illustrated features of an adjustment disorder with a depressed and anxious mood. The father had seen Dr J at the time. The father’s depressive symptoms had resolved following the child’s relocation to Sydney and the father establishing a relationship with his new wife Ms Alden.
In 1992, the father was diagnosed with chronic myeloid leukaemia. The paternal grandparents are of Country K origin. The father denied there was domestic violence between his parents. The paternal grandmother works as a solicitor and the paternal grandfather is retired. The father denied any mafia links. The father denied being violent in any prior relationship. He denied he had homosexual interests. He denied that his wife was 17 or 18 years of age and pregnant.

Each of the parents filed affidavits following orders I made which specified what the affidavits were to address. The following arises from that affidavit evidence.

The affidavit evidence

The mother described her relationship with the father as neutral. The father described it as professional. The father said he communicates with the mother through his solicitor. He considered communication was possible in the future. He suggested email or SMS would be an appropriate method. The mother says her ability to communicate in relation to the child is good. The mother also proposes that email or SMS text be used for communication between the parents in the future.
In relation to future housing, the mother proposes to live at L Street, Suburb M, Western Australia. That is a three bedroom residence which the mother has now purchased. The house will be regularly occupied by Mr D, a friend of the mother’s who will be a boarder. The father proposes the child live with he and his wife and his parents at N Street, Suburb F. At some time in the next two years, the father proposes to house his family separately from his parent’s home. Neither party opposes the other’s proposed housing for the child.
In relation to schooling, the father proposes the child be schooled at the C School. He had enrolled the child at the school to commence next year. He lodged the enrolment application without the mother’s signature. The father failed to disclose some important information about the child on his enrolment application. The mother, in a phone call to the school about another matter, answered questions asked of her about the child’s past medical history. As a consequence the enrolment was cancelled or suspended. The father has now made another application providing further information. If the child is not accepted into the C School, the father has an alternative proposal.
The mother proposes the child would attend O School or another private school in the vicinity of her residence. She has filed an application for enrolment with O School. The father was not offered an opportunity to sign the application form. If she can’t have him enrolled at O College, the mother has an alternative proposal. The mother does not oppose the child attending C School. The father knows very little about the mother’s proposed school. He does have concerns about the child being raised in this particular church’s environment.
In relation to extracurricular activities, each has a number of proposals, all of which appear appropriate and supported by the other parent. Each sets out proposals for medical care for the child and no objection is raised to those proposals.
Each party has slightly differing proposals in relation to the time the child should spend with the other party. I will refer to those later. In broad terms, the father proposes that the child spend time with the mother during the New South Wales state school gazetted holiday periods. Each parent agrees the current travel arrangements should continue. Each is responsible for travel arrangements for the child as he moves to their care. Each parent proposes the child should be able to use Skype to communicate with the other parent into the future.
In relation to concerns each may harbour about the other’s capacity as a parent, the mother alleges the father has been violent to her. She is concerned about the father’s wife having come from a “violent marriage”. There is no evidence that she did, and she was not asked about that matter when she gave oral evidence. The mother said the child had told her Ms Alden makes him hang up the phone when he speaks to the mother. Ms Alden was not questioned about this when she gave her evidence.
The mother alleges that the child suffered domestic violence last year. This arose out of an incident which occurred on 18 May 2010. On that day, whilst in the mother’s care, the child injured his foot. The mother sought medical advice and the child was referred for an x-ray. The mother was unable to obtain that x-ray, however, when she returned the child to the paternal grandfather (who collected him on that occasion) she provided the referral for x-ray to him. She alleges that on that occasion the paternal grandfather threatened her, however, it was not put to him in cross‑examination.
The mother’s evidence, both written and oral, then describes an extraordinary event and adoption of a belief by her. It is common ground that the child was taken to hospital by the father on 18 May 2010 with the x‑ray referral. The child had his leg put in plaster. On 18 February 2011, exactly nine months later, when the child was just four years and three months of age, the mother alleges that the child said to her, “mummy, remember when we were at [Ms P’s] and I hurt my foot? Remember at home when Daddy punched and squashed my foot and then I went to the hospital?” In oral evidence when asked about her statements in her affidavit, the mother said she believed what the child had said to her. She believed the father had punched and squashed the child’s foot on 18 May 2010 and that is why the child required a cast on his leg.
This opinion is held in circumstances where the mother readily acknowledges a good relationship between the child and the father and assertions by the mother that she would never wish to deprive the child of a relationship with his father. Notwithstanding that, the mother firmly believes the child accurately described what the father did to him on 18 May 2010. The mother is prepared to believe that the father has it within him and within his character to be able to perpetrate such an offence upon the child. On the other hand, the mother accepts that, if accurately reported by the father, the child has told him that the mother and Mr D, her lodger, share a bed. The mother says such a statement is factually incorrect.
The inability of the mother to rationally question statements from the child which appear to be negative about the father and his family, in my view, poses a real danger to the wellbeing of the child. They have the potential to prompt action by the mother such as a failure to return the child to the father at the conclusion of his time with her. They also have the potential to cause the mother to have these allegations investigated by police and child welfare agencies.
The father, for his part, also sets out his concerns about the mother’s deficiency in parenting skills and otherwise. He raises concerns about the mother being able to keep the child at school on a regular basis. He claimed the mother had actively excluded him from parenting the child prior to the separation. The father was critical of the mother moving so far away from Sydney. He said in carrying out this relocation she did not appreciate the impact it had upon the child. He was concerned the mother may not be able to maintain employment in the future. He alleged that she had not been able to do so in the past.
The father raised a concern that the mother had made a number of trips to Sydney since the child had been in his care and had not contacted the child. The mother acknowledged that was the case, however, she said on two of those occasions her trip was funded by New South Wales Police as a witness in assault charges against the father. She said the flight schedule was tight and there was no time for her to see the child. The mother’s reason for not spending time with the child on other occasions appeared to be related to her fear that the father would cause her to be murdered. I will return to consider that fear later in these reasons.
There was a concern raised by the father as to the mother’s spending up to an hour discussing video games with the child on the telephone. In oral evidence, the father said that no longer seemed to be a significant problem. The father has concerns about the mother’s vigilance in supervising the child and preventing him from injuring himself. He refers to the occasion when the child injured his foot in May 2010 whilst spending time with the mother. There was another occasion when the child injured his head whilst spending time with the mother.
The father said the mother did not ask to spend time with the child in Sydney following her appointment to see the single expert Dr G. This was so even though the mother knew she would be seeing the child at the interview. The mother acknowledged in her oral evidence that was the case. Again her fear of coming to some harm at the behest of the father appeared to be the motivation for that circumstance.
I note with some hope for the future that during the hearing before me the parties had been able to agree that the child could travel to Perth with the mother on the evening of the last day of the trial. That arrangement is a departure from the normal arrangement. I also note the mother’s oral evidence that during the trial she had spoken to the father and told him she hoped that they could work things out between them for the sake of the child (or words to that effect).
The father complained the mother had raised for the first time an allegation that the child may be the subject of sexual abuse. Reference to this concern will be considered by me when I come to consider the evidence of Dr G. The father is concerned about the role Mr D will play in the child’s life in Western Australia. He recites information the mother is said to have provided to the father about Mr D during their cohabitation. The father is concerned about the allegations of domestic violence made by the mother against him. He recites that he was charged with assaulting the mother on or about 2 December 2009. On 23 November 2010 those charges were dismissed. An interim AVO against the father was made on 2 December 2009. That expired or was dismissed on 23 November 2010. A final AVO was made, without admission, to last 135 days from 23 November 2010 until 4 April 2011. There is currently no AVO order operative.
On 31 May 2010, the father was charged with contravening the AVO. On 4 April 2011, the charge was withdrawn. The father says all the above was at the behest of the mother. He denies all the allegations of violence made by the mother against him. The father is now employed in industrial relations. He is also a public official. The father says he will be able to pay for the child’s school fees at C School from his resources.

Other evidence: Single expert, Dr G

The single expert Dr G provided a report which examined the parties’ histories, observed their interactions with the child, recorded their plans and concerns, and provided opinions. Dr G opined that the child’s developmental needs were well met by his father. He noted the child expressed a clear wish to reside in Perth with his mother.
In relation to the father’s allegation that the mother remained in Perth to further her relationship with Mr D, Dr G said, “the mother was highly avoidant in discussions regarding that relationship.” Dr G opined that the child had been unaffected by the alleged behaviour of the father as set out in the mother’s evidence if, in fact, it did occur. There was no evidence of the child being alienated from the mother. Dr G concluded:
His ability to maintain a positive approach to all the significant adults in his life was inconsistent with current exposure to significant domestic violence or denigration, as alleged by the mother.
Dr G considered the child’s behavioural problem was consistent with possible parental conflict. It could also flow from ineffectual parenting or parental management. A psychiatric history was identified in each parent by Dr G. He said it was evident the father’s psychiatric symptoms had been fully resolved. He said the mother was seen to be vulnerable to experiences of significant anxiety. She had recurrently refused recommendations for assertive medical treatment. She was also identified to have personality and emotional vulnerabilities dating back to her disrupted childhood. Dr G noted that notwithstanding the mother’s many talents, she had not obtained employment at the time he saw her.
I note that when before me the mother did have employment with her stepfather, although the nature of the employment was vague. The mother explained she had developed an idea which she and her stepfather were developing. There were a number of employees. The mother said she could be available to spend all school holidays with the child. She may have to go to the office for a small time while he was with her, however, he could go to the office as well. Dr G advised he supported the maintenance of the status quo, namely, that the child should live with his father and spend time with his mother.
One of the matters referred to in Dr G’s report was the allegations by the mother of possible sexual abuse of the child in the father’s household. She alleged the father had homosexual tendencies. This was because he had allegedly looked at a website relating to homosexuals. She alleged the child tongue-kissed with the father and had complained of a sore bottom. She was concerned that the paternal grandfather slept in the same bed as the child. In the mother’s oral evidence she denied she had alleged sexual abuse of the child. She said she had raised the concerns she had about the child’s behaviour with Dr G as he was the expert and she wanted his opinion, which she has accepted. She also admitted, having originally denied it, that she had slept in the same bed as the child. The mother’s allegations that the father had been violent in previous relationships was denied by the father.
During the oral evidence of Dr G, he was asked to consider the minutes of order by each of the parties and the Independent Children’s Lawyer. He considered the father’s proposal which saw the child being able to spend most of his school holidays with his mother and yet have some holiday time with his father as the best arrangement.

Other Witnesses

Ms Alden gave evidence by affidavit and orally. She is 26 years of age. She has lived with the father since August 2010. She considers she has a good and close relationship with the child. She and the father hope to have children of their own. She explained in her affidavit her involvement in the child’s life. In her oral evidence she impressed as a sensitive and sensible person. She wished to be able to have a relationship with the mother. She had tried to talk to the mother at changeovers, however, the mother had ignored her. She had encouraged the child to call her “[Ms Alden]” when he had wanted to call her “mum”. The child called her “[Ms Alden]” for some time, however, he has now been insistent on calling her “mum.” She accepted this, having reinforced to him that he has his mother in Perth.
The paternal grandfather swore an affidavit. He is 61. He is retired and lives in the same house as his wife, the father, the child and Ms Alden. The father and mother had lived with him for 18 months. He describes his relationship with the mother prior to separation as warm and cooperative. He has been actively involved in the child’s life. When the paternal grandfather’s own father was sick in 2009 and in hospital the mother visited him in hospital daily. Mr Alden senior was very impressed by this and very grateful to the mother. Since February 2010 the child has lived in Mr Alden’s house with the father and his wife. Later Ms Alden joined them. He described all the involvement with the child that he has.
Ms Alden Snr swore an affidavit. She was not required for cross-examination. In her affidavit she set out historical events involving the father, the mother and the child. She described her role in caring for the child since early 2010. She set out her observations of the child and his relationship with other members of her household since early 2010.

Credit

Each of the mother and father gave oral evidence. I was impressed by both as truthful witnesses. I did have some concern about the mother’s evidence in relation to the nature of the relationship she has with Mr D and also the extent and nature of her work. I was left with an uncomfortable feeling that the mother had not disclosed all relevant facts in relation to those matters to me.
In relation to the mother’s allegation that the father had been violent to her, as she alleges, I find she has not proved those allegations on the balance of probabilities. The mother’s allegations were not accepted by the magistrate when dismissing the charges against the father for assault. However, those charges required to be proved beyond reasonable doubt. In relation to the AVO proceedings the father consented, on a without admission basis, to an AVO being continued until the hearing of the charge in relation to allegedly breaching the AVO, which charge was ultimately also dismissed.
I am concerned about the mother’s ability to consider the father as a monster. This thought process appears to me to lack a logical connect with other aspects of the father’s makeup which the mother accepts. The specific evidence which gives rise to my concern relates to the injury which occurred to the child’s foot whilst in his mother’s care in Sydney during May 2010. The mother, in her affidavit, relates a conversation with the child about the incident many months later, where the mother considers the child was alleging the necessity for a plaster cast be placed on his foot arose not from the injury which occurred in the mother’s care, but later that same day when the father “punched and squashed” his foot.
At the same time as considering that the child had told her the truth about that incident, the mother accepts the child loves his father. The mother makes no allegation that the father does not love the child. The thought process which allows the mother to consider the child is always truthful and/or accurate in reporting such matters is troubling, especially where she does not accept he is truthful when telling others that she shares a bed with Mr D.
Even more troubling is her acceptance of a proposition that the father has it in him to inflict serious bodily harm upon the child, apparently motivated by a desire to wrongly attribute blame for such injury to the mother. Additionally, it implicates the paternal grandparents in a conspiracy of silence about the truth as this injury was suggested by the child to have occurred in their home. It is to be remembered that it was the paternal grandfather to whom the mother had delivered the child on the subject day and had given the referral to the X-ray.
I do not accept the father or his parents did any harm to the child on 18 May 2010 as alleged by the mother, or at any other time. I consider this incident very troubling because in the future the child, whilst in the middle of a very conflictive relationship between his parents, is likely to make further negative statements about events which occurred in the time he spends in his father’s household. I do not consider the mother presently has the capacity to properly analyse the situation and make a rational assessment of the child’s statements. I consider it likely she will take action which has the capacity to harm the child psychologically. I have no concerns about the veracity of the other witnesses in the father’s case and the evidence of Dr G. Dr G’s credentials and opinion were not challenged. Dr G is an impressive witness and I accept his evidence.

Relevant Law

Legal principles

The principles governing this case are set out in the Family Law Act 1975 (Cth) (“the Act”). In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration (see section 60CA). In determining what is in the child's best interests, I must consider certain matters under section 60CC. Those matters are the "primary considerations" and the "additional considerations" set out in that section.

I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child's best interests being treated as paramount (see section 60CG).
I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the children and the principles underlying it.
I am required to consider matters set out under section 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.
Section 61DA(1) requires that:
… When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Subsection (4) provides as follows:
… The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 65DAA requires me to consider the children spending equal time or substantial and significant time with each parent, where the court is proposing to make an order that the child's parents are to have equal shared parental responsibility.

Section 60CC Considerations

Primary considerations

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents

In this case, the child should be able to have a meaningful relationship with each parent. Given the physical distance between the parties’ residences, there will be some challenges in ensuring continuity of contact between the child and each parent.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
I have concluded there has not been violence between the parties as alleged by the mother. I am satisfied that the child has been exposed to conflict between his parents. I accept that conflict has been damaging to him. I consider that each of the parents has learned, through the process of this hearing, some of the consequences to the child if they are unable to control their conflict. I propose to make orders which will aim to make the conflict between the parents less visible to the child.

Additional considerations

(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

Dr G reports that the child’s stated wish is to live with his mother. His age and stage of development does not allow the Court to give any meaningful weight to those wishes. The statement of the wish, in the circumstances where he has been primarily living with his father and paternal family since early 2010, does serve to point out to the Court the closeness of the relationship which the child feels he has with his mother. It probably also points out the need of the child to spend frequent time with his mother, both physically and by use of Skype and telephone.
(b)the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)
The evidence of the single expert satisfies me that the child has a good and close relationship with his father and his mother. Until separation, I accept the mother had been the primary carer for the child, and in those circumstances, the Court would expect to see a closeness in that relationship which is more evident than in the relationship between the child and his father.
I am satisfied that the relationship between the child and each member of the father’s household is good and appropriate. In relation to the relationship between the child and significant members of the mother’s household, I conclude they are probably satisfactory, although I note the mother did not present Mr D for assessment by the single expert, and I note further that he will be a full‑time member of the mother’s household.
I also note the mother did not present her mother or stepfather for assessment in circumstances where they clearly have significant contact with the child and are significant supporters for the mother.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
The mother claimed that she was not able, in her view, to have appropriate phone contact with the child. She suggested that members of the father’s household had frustrated her speaking with the child, which she sought to do frequently. I am not satisfied that the father or his family have hindered the mother’s time with the child. I think the mother has been unrealistic in expecting that the child, given his age and stage of development, will immediately stop any activity he might be participating in at the time and answer his mother’s telephone call.
Unfortunately, this occurrence, which I am satisfied has occurred in the past, has allowed the mother to believe the lack of conversation is not of the child’s doing and therefore adds to the discontent she has about the circumstances of her separation from the child. I consider the father and his family are more likely for a variety of reasons to facilitate and encourage the ongoing relationship between the mother and the child than the mother and her supporters in Western Australia may be able to do in respect of the child’s relationship with his father and the father’s family.
Some of those reasons include:
·The mother believes the father will try to have her murdered.
·The mother believes the father brutally punched and damaged the child’s leg on an occasion when the leg had been injured whilst the child spent time with his mother.
·The mother believes what the child tells her about the father and other circumstances and that he is truthful about the facts he recites.
·The mother’s ability to move to Sydney to be close to the child has diminished, in my view, due to her borrowing funds to buy property in which she will live in Perth.
·The father and his family understand and accept the important role the mother plays in the child’s life. They support the ongoing relationship. The father’s wife, Ms Alden, has endeavoured to establish a relationship with the mother. The mother rejected/ignored those attempts.
The mother has disobeyed the court orders which provided for the child to be delivered to his father on 31 January 2010. That led to a recovery order being made and a further order for the child to live with his father when the mother decided she would not return to New South Wales, but rather, would continue to reside in Perth, Western Australia. The willingness of a parent to support and promote a close relationship of the child with the other parent is, in my view, a very important circumstance in ensuring ongoing contact for a child with the other parent.
Conversely, a failure in support for the ongoing relationship can lead to the breakdown in the arrangements for the child to spend time with the other parent and consequent further litigation between the parents. Because of the mother’s view of and opinion of the father, I have a concern that the father’s time with the child may become problematic.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The child has been living with his father and his father’s family since February 2010. That is a significant period of time, given his age. That circumstance was brought about because the mother disobeyed court orders and did not return the child to the father on 31 January 2010. The single expert opines that the child’s needs are being well met in the father’s home. The single expert recommends against a change of residence to the mother if the Court is satisfied the mother’s allegations about her being the victim of violence and threats from the father are not established.
The assessment of the single expert illustrates the importance of the relationship the child shares with the grandparents and the father’s wife. Those relationships would be expected to change to some degree if the child was to reside with his mother in Perth. The single expert was not given the opportunity to assess the relationship between the child and the mother’s family or her lodger, Mr D. I accept in favour of the mother that there is nothing abhorrent in the relationship between the child and the members of her family. The same, I accept, is the situation with Mr D.
(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
This is a very real consideration in this case. The mother lives in Perth and the father in Sydney. There is a lengthy plane trip between the cities. I accept that travel between the two households will impose a significant impost on the finances of each of the parties. the child has to be accompanied by an adult on his trip each way. Each occasion that the child spends with the other parent, each parent has to fund a return airfare for themselves and a one‑way flight for the child. Likewise, phone and Skype connection will have some cost attached. If the parents lived in close proximity to each other, the child could expect to spend time with each parent frequently. That will not be possible with the child commencing school next year and therefore only available to travel to or from Perth during school holidays.
(f)the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs
The single expert has assessed that the father and his household members do have the capacity to provide for the child’s needs in this respect and have done so since February 2010. I have no doubt that each parent has the capacity to attend to the child’s physical and educational needs appropriately. In this case, I have a concern about the mother’s ability to provide for the child’s emotional needs. I am concerned that she will not have the capacity to consider that any words which she might perceive as negative of the father or his family emanating from the child are not factually true.
As referred to earlier, the mother absolutely believes that the father punched and damaged the child’s leg on one occasion. I consider it is most unlikely that that occurred. There is no indication from the mother that she might take a different view of such facts in the future. That then leads to potential emotional and possible physical abuse of the child. If, for example, the child was to say something to his mother that suggested he may have been dealt with inappropriately by any member of the father’s household, I consider it probable that the mother would not speak with the father about any such concern.
I think it probable that the mother would subject the child to a series of interviews and investigations with the possibility of physical investigation immediately. I have no confidence that there is any member of the mother’s family who might be able to look objectively at the circumstances the child finds himself in and thereby urge caution and a rethink upon the mother before she takes any action which may have long‑term implications for the child.
(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
The child is almost five years of age and is a male child. The father’s family have a Country K background. I believe the mother’s family are of Country Q heritage.
(h)if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right
This additional consideration is not applicable to this case.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
I am satisfied that each of the parents loves and cherishes the child. I am satisfied that the father’s wife, Ms Alden, and the paternal grandparents equally love the child.
The responsibilities of parenthood include ensuring the ability of the child to grow up in a conflict‑free environment. Each of the parents has a responsibility to work towards being able to meet and discuss appropriately the child’s needs and arrangements. The mother told me that she would like to be able to do this in the future. She told me that she had spoken to the father during the trial and said to him that she hoped things could change in the future.
In my view, the mother has a considerable way to go to be able to implement such an environment for the child. I consider she will need the assistance of a psychologist to help her develop such a relationship with the father. This should be in the nature of therapy for her. I propose to make a recommendation that she obtain therapy to assist her develop a working relationship with the father in relation to the care of the child.
(j)any family violence involving the child or a member of the child’s family
The mother alleged violence by the father to her. I find she has failed to establish such violence occurred as she alleged. The mother alleged the father had been violent to the child. I find he has not been violent to the child as alleged by the mother.
(k)any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person

I have set out earlier in these reasons the history of the father being charged with assault upon the mother. I have set out the circumstances in which an AVO was made against the father. There are no such orders operating at this time.
(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

A final order should be made in this case. No party contends to the contrary.
(m)any other fact or circumstance that the court thinks is relevant

As this is a relocation case, I need to consider the capacity of the father to relocate to Perth. During the cohabitation, the parties lived in Sydney. The father holds public office. He has now remarried and his wife lives with him in Sydney. He has his family in Sydney and he has a close relationship with them. They are important people in the child’s life. The paternal grandmother is a solicitor conducting her own practice.
I need to also consider the capacity of the mother to relocate to Sydney. The mother will not consider a move to Sydney because she believes the father will have her murdered. Such belief, in my view, is quite irrational. Her opinion is that the father has the capacity to engage another person to have her murdered. Her thought is that this will only happen in Sydney. She has no explanation for why, if that were true, he could not have his agent murder the mother anywhere else in Australia, including Perth. There is no evidence from the mother that she has ever been stalked or interfered with in any way by a person who could possibly be an agent of the father’s trying to harm her.
It appears that neither party really has the capacity to relocate in the current circumstances.

Section 60CC(4) & (4A)

I have already touched on a number of matters which fall for consideration under this heading and I will not repeat those matters.
A consideration of the evidence shows that the mother has failed to take advantage of spending time with the child when she has been in Sydney on at least one occasion and possibly more. The mother was in Sydney for the purpose of meeting with the single expert. It was an ideal opportunity to spend time with the child. She failed to take advantage of that. The mother was in Sydney on three occasions associated with giving evidence in the assault proceedings against the father and the proceedings where he was charged with breaching an AVO. She failed to have any contact with the child on those occasions. She said she had no time because the flights, which had been paid for by police, did not allow her to spend time with the child. She claimed she could not have afforded to stay in Sydney in order to see the child.
I do not accept that the mother could not have arranged funds to stay in Sydney. She claims to have a strong family support in Perth. I am sure she could have asked for financial assistance should that have been required. There is no evidence that she asked the police if she could stay in Sydney for even one day in order to see her son. That might have been possible. Again, the mother may have been wanting to remove herself from Sydney as soon as possible because of her belief the father would have her murdered.

Balancing of all considerations under Section 60CC and the defined issues

Balancing the matters which are set out in section 60CC and the evidence recited in these reasons, I conclude that the orders I propose will operate to foster the best interests of the child for the reasons specified above. I consider the evidence thus significantly points to the best interests of the child being fulfilled if he continues to live with his father and spend time with his mother.

Section 61DA

This section recites a presumption which is required to be applied by the Court unless one of the excluding factors applies. The section requires the Court to presume that it is in the children’s best interests for their parents to have equal shared parental responsibility for the children.
The presumption does not apply where there has been family violence. In this case there has been family violence as has been set out earlier.
Notwithstanding that there may have been family violence it would still be open to the Court to make an order for equal shared parental responsibility if it was determined to be in the best interests of the children.
The section further provides in sub section (4) that the presumption may be rebutted if it is determined to be not in the children’s best interests.
In this case, there is reason for the presumption not to apply. The reason is a practical one. In this case, the ability of the parties to be able to conduct a sensible and child-focused conversation is severely hampered by the mother’s belief that the father intends to have her killed.
Further, the opportunities for the parents to have any conversation in a public place only arise at airports when the parties are handing over the child. The mother has refused to engage in any conversations on those occasions. She has also refused to engage in conversations by telephone. Some of that is because she feels overwhelmed by the number of people who have accompanied the father to the airport. He usually brings his parents and his wife on such occasions. On the other hand, the father has suffered the humiliation of having details of alleged assault charges spread out in a daily tabloid in Sydney and in which that tabloid circulates in his electorate.

The ability of the parties to communicate may improve, however, as time passes but currently there is no certainty that will occur, especially if the mother shuns the recommendation of the Court that she engages a therapist to assist her re-establishing a relationship with the father and his wife for the sake of the child. I propose to recommend that when the father attends to collect or hand over the child to the mother at an airport, he have no more than one person accompany him. This may encourage the mother to be able to sit down with the father and his accompanying person (preferably his wife) to open a dialogue in relation to the child.
During submissions I raised my concerns about this aspect of the orders. The mother informed me that she would be content with an arrangement which saw the father being required to seek the mother’s views in relation to any decision which the parties would be required to agree upon, were there an equal shared parental responsibility order. She did not press for equal shared parental responsibility in her submissions.
I consider the only workable order in this case, if the child is to live with his father, is for the father to have sole parental responsibility, however, before exercising that responsibility he should be required to seek the mother’s input and to consider her views before making a decision. The decision which is looming immediately is schooling for the child in Sydney if he is living with his father. As it now transpires, the mother does not oppose the father’s plan for the child’s enrolment at the C School.

Section 65DAA

This section requires me to consider making an order for equal shared time for the children with each parent, where it is proposed to make an order for equal shared parental responsibility.
I will not be making an order for equal shared parental responsibility. I will make orders for the child to spend time with his mother as recommended by the single expert and adopted by both the Independent Children’s Lawyer and the father.

Conclusion

In conclusion, I am of the opinion that the child’s best interests dictate that he continue to live principally in the care of his father. His mother has the ability to offer him a great deal. He clearly loves her and his stated wish, as previously referred to, is that he live with her. She also, unfortunately, has the potential to do him great psychological harm in the manner I have referred to earlier. The child should be permitted to spend extended periods of time with his mother. Each of the parties have provided very detailed proposals.

ORDERS DELIVERED

I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 17 October 2011.

Associate:

Date:

[2011] FamCA 1077

17 October 2011

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Remedies

Procedural Fairness