ALLARD & ALLARD
[2021] FCCA 665
•6 April 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALLARD & ALLARD | [2021] FCCA 665 |
| Catchwords: FAMILY LAW – Parenting – allegations of family violence – parental responsibility – best interests of the child – the paramount consideration – views of the child – intractable conflict between the parents. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 60CD, 61DA, 65DAA Evidence Act 1995 (Cth), s.140 |
| Cases cited: Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1 Boensch (as trustee of the Boensch Trust) v Pascoe (2019) 375 ALR 15 Bondelmonte and Bondelmonte & Anor (2017) 259 CLR 662 Briginshaw v Briginshaw (1938) 60 CLR 336 Browne v Dunn (1894) 6 R 67 Collu & Rinaldo [2010] FamCAFC 53 (25 March 2010) In the Marriage of LC & TC (1998) 23 Fam LR 75 Mazorski v Albright (2007) 37 Fam LR 518 Qantas Airways Ltd v Gama (2008) 167 FCR 537 |
| Applicant: | MS ALLARD |
| Respondent: | MR ALLARD |
| File Number: | BRC 1064 of 2018 |
| Judgment of: | Judge Howard |
| Hearing dates: | 2, 3, 4 & 5 November 2020 |
| Date of Last Submission: | 11 January 2021 |
| Delivered at: | Brisbane |
| Delivered on: | 6 April 2021 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kennedy of Counsel |
| Solicitors for the Applicant: | Robyn McKenzie Solicitor |
| Counsel for the Respondent: | Mr Morris of Queens Counsel |
| Counsel for the Independent Children's Lawyer: | Mr Dodd of Counsel |
| Solicitors for the Independent Children's Lawyer: | ELR Law |
ORDERS
That all previous parenting orders be discharged.
Parental Responsibility
That the mother have sole parental responsibility for long term decisions concerning X born in 2006 (“X”).
Live with
That X live with the mother.
Time
That X to spend time and communicate with her father at all times she expresses a wish to do so and the mother shall facilitate that time and in addition:
(a)For 4 visits, once each calendar month, being the first Sunday of each month with the first visit to take place on the first Sunday of the month after the making of these orders, from 11am to 2pm, with the father to collect and return X from the "Brisbane" sign at the Location B, outside the Suburb C.
(b)After those 4 visits, X shall spend time and communicate with her father at all times she expresses a wish to do so and the mother shall facilitate that time.
That the mother is to:
(a)encourage and assist X to send to her father a card or letter or gift on Father's day and Christmas and her father's birthday; and
(b)encourage and assist X to invite her father to school and extracurricular events where parents are invited to attend; and
(c)schooling and extra-curricular activities.
That the father is at liberty to:
(a)Text the child, not more often than once per week, each Tuesday between 3pm and 6pm;
(b)Send either email, letter or card to X not more often than once per week.
Provided however the above orders shall not limit the capacity of the father to respond to email or text communication by X.
That during the time that X is with either parent, that parent shall:
(a)Respect the privacy of the other parent and not question X about the personal life of the other parent;
(b)Shall ensure that X is not exposed to any matters relating to these proceedings;
(c)Speak. of the other parent respectfully; and
(d)Not denigrate or insult the other parent in the presence or hearing of X and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of X.
Authority to Obtain Information
That the parents hereby authorise and this order shall act as sufficient authority for any school, doctor or other health care provider attended by X, to provide each parent information about X's educational progress and other related activities and supply them with copies of reports, photographs, certificates and awards obtained by the child at the requesting parent’s cost.
Sharing Information
That the mother and father shall communicate by email regarding the following:
(a)Keep the other parent informed at all times of their residential address, email address and contact telephone number and notify the other parent of any change to email and telephone number and if changing residence notify the other at least seven (7) days prior to their intended relocating their residence beyond a radius of twenty (20) kilometres from where they currently reside;
(b)Keep the other parent informed of the names and addresses of any treating medical or other allied health practitioners who treat the child and authorise those practitioners to provide the other parent with information they are lawfully able to provide about the child; and
(c)Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the child.
Specific Issues
That the father is at liberty to attend any school or extra-curricular activity upon being invited to do so by X.
That the Independent Children's Lawyer be discharged.
IT IS NOTED:
(A)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 “Parenting Orders – obligations, consequences and who can help” and these particulars are included in these Orders.
(B)That these Reasons for Judgment and Orders were delivered and made at 9:30am on 6 April, 2021.
IT IS NOTED that publication of this judgment under the pseudonym Allard & Allard is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 1064 of 2018
| MS ALLARD |
Applicant
And
| MR ALLARD |
Respondent
REASONS FOR JUDGMENT
Background
The applicant mother is Ms Allard. The mother was born in 1968.
The respondent father is Mr Allard. The father was born in 1966.
The parties began living together in Perth in 2004. The party’s only child, X, was born in Perth in 2006.
The mother and father were married in Perth in 2010 and in October of that same year the family moved to Brisbane.
The parents separated on a final basis on 9 April 2013. They were divorced by order dated 5 October 2016.
The father had been working as a professional in Perth and, it seems, that the move to the East Coast was (at least partly) to assist the father in looking for further employment.
Both parents agree that their relationship was in decline after they arrived in Brisbane. The father thought that the relationship was “slowly deteriorating”. He nonetheless thought that the parties were still “amicable”. (Note paragraph 8 of the father’s trial affidavit filed 27 October 2020).
The mother states that the relationship “deteriorated gradually and Mr Allard was becoming more and more physically violent towards me.” (note paragraph 13 of the mothers' trial affidavit filed 6 October 2020). The mother goes on to say that, as far as she is aware, X did not witness any of the father’s violent outbursts.
The father’s view is that in the period of time leading up to what he describes as “the abduction” the mother “had begun to behave strangely and in ways that lead themselves to manufacturing domestic abuse narratives…(Including) her striking me with the kitchen utensils and doing other things to create problems and arguments.” (Paragraph 11 of the father’s trial affidavit).
I note paragraphs 14 – 17 of the mothers' trial affidavit in which she states:-
“14. We separated on 9 April, 2013 after a night when Mr Allard kept me awake demanding I sign a letter he had printed saying I agree to “an unconditional divorce”. This went on for many hours into the night and ended with Mr Allard throwing a jug of iced water over my head while I lay in bed.”
15. I telephoned the Relationships Help Line and they suggested I go to the police, which I did.
16. The police recommended that I go to a women's shelter. I packed my car with a few essential items and left with X, who was seven years old at the time. DV Connect assisted X and me with temporary accommodation until we were placed in a women's shelter, where we remained for about four weeks.
17. On 9 April 2013 the Police applied for a Protection Order on my behalf and on 10 April, 2013 a Protection Order was made. X was never told of this order and was not named on it.”
There was no specific evidence from the father in relation to these issues. The father was on notice about this evidence because the mother’s trial affidavit was filed 21 days before he filed his trial affidavit. There was no cross examination of the mother about these issues. There is no specific reason for these particular matters to have been "put" to the father (by counsel for the mother). In this regard I note the decision of the Full Court of the Family Court In the marriage of LC & TC (1998) 23 Fam LR 75 from paragraph 31 (page 81). In that decision the Full Court highlighted the exception (in some circumstances) to the well-known rule enunciated by the House of Lords in Browne v Dunn (1894) 6 R 67
This view of the exception to the rule in Browne v Dunn was also noted by Hunt J in Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1. This is one of those instances where the exception applies. The father was on notice as to the evidence. He has not responded.
In the circumstances, I accept the mother’s evidence that on 9 April 2013 the father had tipped a jug of iced water over her head while she lay in bed and that the mother contacted the “Relationships Helpline”. I also accept that the mother contacted the police and that the mother packed her car with a few essential items and left that evening with X to temporary domestic violence accommodation, where she lived with the child for about four weeks. I also note that a Protection Order was made on 10 April 2013 – which included the mother as the aggrieved. That evidence is contained in paragraph 17 of the mother’s trial affidavit and there is no evidence suggesting anything to the contrary.
I accept the mother’s evidence that on 9 May 2013, while she was at the women’s refuge in Queensland, she received a call from her sister in Perth to say that the sister had been served with the Federal Circuit Court of Australia documents. The father had commenced proceedings. I also accept the mother’s evidence that before she became aware of the proceedings she had booked flights for herself and X to return to Perth. The mother had intended commencing proceedings once in Perth seeking parenting orders that she and X be allowed to stay in Perth. I accept that Perth had been that the mother’s home for more than 40 years and that her family and friends lived in Perth.
There was some cross examination of the mother by Mr Morris QC on behalf of the father as to the mother’s state of knowledge at the time that she boarded the flight bound for Perth. In her trial affidavit the mother concedes that she was aware of the proceedings at the time that she got on the aircraft heading for Perth. Not much turns on this point. It was obviously a very difficult time for the mother as well as the parties’ seven year old child (X) being in a domestic violence shelter for four weeks.
In any event the matter did come on for Interim Hearing in the Federal Circuit Court of Australia. An order was made requiring the mother to return the child to Queensland. The mother complied with the orders. The mother and X returned to Brisbane in May 2013.
I note the following evidence from the mother in her trial affidavit:-
“21. X and I returned to Brisbane later in May of 2013. We had nowhere to live, and no household or personal items. Mr Allard never offered to provide me with any of our belongings. In June of 2013 X said to me, "Dad is using your clothes as door mats and he threw some of your things into a mini skip bin".
22. X and I stayed with a friend until I rented a property. The Salvos provided us with beds, linen and a washing machine, and some toys for X. Friends helped out with some other necessary items and I was fortunate enough to return to my old job with Employer D.”
This evidence was not contested by the father. I accept this evidence from the mother.
The matter proceeded through the Court and a Final Hearing was listed for 18 November 2014. Fortunately, the parents were able to reach a final agreement without the necessity of a trial. On 18 November 2014 Judge Jarrett made an order (with the consent of the parties) that X would live with the mother and spend six days each fortnight with the father. The parties also agreed that the mother would have sole parental responsibility for the child except in relation to matters concerning “the child's medical and physical health needs, which shall be shared equally between the parties”. (Note paragraph 1 of the order dated 18 November 2014 – as amended 28 January 2015).
I accept the mother’s evidence that the child was beginning to become reluctant to go to spend six nights with her father. At least that is what the child was telling the mother. But nonetheless, during 2015, 2016 and 2017 the child was spending six nights per fortnight with her father.
Rice v Asplund
I accept the mother’s evidence that the orders that had been made by consent on 18 November 2014 were (by and large) adhered to by the parties until after the Suburb E Shopping Centre incident (February 2018) – which will be referred to later in these reasons.
By the time this final hearing commenced on 2 November 2020, I consider that there is no doubt that there had been a significant or substantial change in circumstances – sufficient for the Court to revisit the earlier final parenting order (Rice v Asplund (1979) FLC 90-725).
Amongst the various significant changes in circumstances are the following:-
a)At the time of the making of the original orders the child was eight years old. The child is now 14 years old and, importantly, is expressing a very clear wish not to spend time with the father; and
b)The conflict between the parents highlighted by:-
i)The April 2016 Location F incident;
ii)The dispute surrounding the 2016/2017 Christmas holidays;
iii)The dispute relating to the school camp in October 2017 and the child’s involvement and awareness of the dispute;
iv)The evidence of the continual involvement by the parents of the child in the dispute, including in relation to the December 2017 “discussion” referred to later in these reasons; and
v)The Suburb E Shopping Centre incident of 27 February 2018.
It seems to me, though that the primary change in circumstances is the child’s age and her unwillingness to spend time with the father. In any event, in the circumstances of this case the rule in Rice v Asplund has been considered by the Court and applied after a full hearing. Of particular note are the comments of Warnick J's sitting on appeal in the case of SPS v PLS (2008) 217 FLR 164. His Honour stated paragraph 42:-
“As later discussed, when the rule in Rice and Asplund is applied after a full hearing, its weight is likely to be less and correspondingly, factors that commonly point to what is in a child's best interests (such as the wishes of thirteen and nine year old children) will likely deserve greater attention.”
Warnick J went on to provide a helpful summary at paragraph 74 of the decision in SPS v PLS. At that paragraph, His Honour stated:
“In summary:
• The rule in Rice and Asplund is generally expressed — as a rule to be applied as a preliminary matter;
• If applied as a preliminary matter it may achieve all its purposes; and
• If applied at the end of a full hearing of parenting issues, the rule cannot achieve all its ends, but can achieve some and ought still receive consideration. However, its force may be diminished.”
(iii) At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”; (iv) Discussion in terms that the rule may be applied as a “preliminary matter” or the application be first heard “on the merits” may be unhelpful, particularly because of the implication that, if the rule is applied as a preliminary matter, the parenting application is not then dealt with on the merits.”
Of particular note in the context of the present case are those words from paragraph 42 in SPS v PLS where Warnick J stated that after a full hearing – the weight to be given to the rule in Rice v Asplund will be less, and – “correspondingly, factors that commonly point to what is in a child's best interests (such as the wishes of thirteen and nine year old children) will likely deserve greater attention.”
Section 60B
I am mindful of the objects of Part VII of the Act which are contained in section 60B. That section states, inter-alia:-
“60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii) to develop a positive appreciation of that culture.
(4) An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.” (Emphasis added).
Of particular note is the first stated object of Part VII of the Act requiring this Court to ensure that the best interests of the child are met by…”(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;”. That of course is the first stated object of Part VII.
Of further important note is section 60B(2) where the principles underlying the objects (from section 60B(1) have been stated by the Legislature as follows:
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”
Emphasis added
In considering the evidence and the submissions in this case I have kept in mind the objects and the principles underlying Part VII of the Act. I am also mindful of section 43 of the Act – which has been referred to by counsel for the father in written submissions. The principles outlined in section 43 are more general principles relating to the Court's exercise of jurisdiction under the Act. Those principles are well known to the Court – but it seems to me that the more specific objects and principles outlined in section 60B will attract greater attention from the Court in the context of a parenting trial. This is not in any way to diminish in any way the importance of the principles referred to in section 43. In a judgment provided by this Court exercising jurisdiction in family law – in a parenting case – there will necessarily be a greater emphasis or focus upon Part VII of the Act and the objects and principles that underlie Part VII.
Section 60CA
Section 60CA of the Act mandates how a Court is to decide whether or not to make a particular parenting order in relation to a child. The section states:-
“60CA Child’s best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
(Emphasis added)
The best interests of the child is not the sole consideration – but it remains the paramount consideration: note AMS v AIF (1999) 199 CLR 160 at 193 per Kirby J. The concept of "the paramount consideration" has been considered at appellate level on numerous occasions. In B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676 at paragraph 9.51 the Full Court provided the following helpful summary in relation to determinations under Part VII of the Act. The relevant parts of the Act remain, to all intents and purposes, identical. At paragraph 9.51 the Full Court stated:-
“9.51. In our view, the essential inquiry is clear. The best interests of the particular children in the particular circumstances of that case remain the paramount consideration. A court which is determining issues under Pt VII of the type to which we have referred, starts from that essential premise and it remains the final determinant.”
The principles outlined by the Full Court of the Family Court in B and B were recently confirmed and supported by the Family Court of Australia in Murgatroyd and Murgatroyd (No 2) [2019] FamCA 617, especially at paragraph 18 (per Forrest J) .
Section 60CC
Section 60CC is entitled “how a court determines what is in a child’s best interests”
The Full Court stated Slater v Light (2011) 45 Fam LR 41 at paragraph 45:-
“The Act does not mandate the discussion of considerations under s 60CC in any particular order, and it is well-recognised that additional considerations may outweigh primary considerations despite the nomenclature of s 60CC(2) and (3): see Aldridge v Keaton (2009) 42 Fam LR 369 ; (2009) FLC 93-421 ; [2009] FamCAFC 229 at [74] ; Mulvany v Lane (2009) 41 Fam LR 418 ; (2009) FLC 93-404 ; [2009] FamCAFC 76 at [84] ; Champness v Hanson (2009) FLC 93-407 ; [2009] FamCAFC 96 at [101]–[103] ; Marsden v Winch (No 3) [2007] FamCA 1364 at [76]–[78] .”
In the context of this case and having regard to the age of the child and the strength of the views expressed by the child, the additional consideration (section 60CC(3)(a)) does, in my view, outweigh the other considerations in section 60CC. This will become apparent upon a complete reading of these reasons for judgment.
The 2016 Location F incident
2016 was the father’s 50th birthday. The father’s evidence is that the mother had agreed with him in writing that X could spend extra time with him on his birthday. The father’s contention is supported by exhibit 3. Exhibit 3 indicates that on 16 March 2016 the mother sent an email to the father in relation to the account for the child’s hobby lessons. The text of that email is as follows:-
“Hi Mr Allard,
Attached is X’s hobby account. I just paid another $60, can you pay the balance of $65 the BPay details are at the bottom of account.
Next account we will split cost 50/50.
Thanks
Ms Allard”
On 17 March 2016 the father responded by email to the mother in relation to the hobby account and then the father mentions X spending time with him on his birthday. In that email the father states:-
“OK-thanks.
A few questions ….
1) Are we still OK – as per our previous discussions/agreement – for X to spend additional time with me over the weekend prior to my Birthday and the day itself, coming back to you the following day? You can have any additional time back at an agreed mutually convenient time?
2) Are you guys planning to go away with X for the holidays?
Regards,
Mr Allard”
The mother responded by email on 24 March 2016. That email contained the same reference line where the subject was stated to be, “term one statement”. The body of the email states:-
"Hi Mr Allard,
Yes, that's fine so long as the extra time is reciprocated.
As of now we don’t have any plans to travel away
Thanks
Ms Allard”
It was suggested to the father that this document had been fabricated. In essence, the suggestion by the mother is that the father has fraudulently created this piece of correspondence in order to mislead the Court. This is a very serious allegation.
The mother has tendered evidence (exhibit 4) of text messages between the parents at or around this time. The text messages are not inconsistent with the father’s version. Although it does transpire that by 1 April 2016 the parents had disagreed in relation to the interpretation of the Court orders and the mother sent a text message on 1 April 2016 as follows:-
“Unfortunately, the interpretation of our orders appears different. Clause 2 refers to major decisions where I exercise sole parental responsibility, not what X and I are doing in her time with me, like having a fun holiday. It’s a good idea to adhere completely to the orders so no more misunderstanding take place. Please confirm that we meet at handover location Coles Suburb E at 3pm tomorrow 2/4/16.”
That text message from the mother to the father indicates to the Court that the mother and the father could not agree on the interpretation of the Court orders and so the mother, on 1 April 2016, wanted to “adhere completely to the orders”. That does indicate that the mother probably had recently agreed to a variation of the orders. Such a variation included the email that she sent to the father about X spending time with him on his birthday. The father’s version does (to my mind) seem to be supported by the text message he sent to the mother on 2 April 2016:-
"I have already stated that handover will be after my birthday and as previously agreed."
The mother did write back immediately and say, "no, that was never agreed bring X here now please".
It seems to me that the mother had forgotten the email that she had sent the father on 24 March 2016.
The suggestion that the father had fraudulently manufactured exhibit 3 is not accepted by the Court. Such a serious allegation requires a consideration of section 140 of the Evidence Act 1995 (Cth). That section states:-
“(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.”
Having regard to the gravity of the matters alleged against the father (fraudulent manufacture of a document) I am not satisfied that this has been proved by the mother to the requisite standard. In this regard, I am keeping in mind the words of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336. In Qantas Airways Ltd v Gama (2008) 167 FCR 537 Branson J (sitting as part of the Full Court of the Federal Court of Australia) stated at paragraph 128 that section 140(2) of the Evidence Act “was intended to reflect the common law position as to the strength of evidence necessary to establish satisfaction on the balance of probabilities.” Branson J’s reference to “the common law position” is a reference to Dixon J’s explanation of the law in Briginshaw. At pages 361–362 in Briginshaw, Dixon J (as His Honour then was) stated:-
“Except upon criminal issue to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction " should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.”
An examination of Exhibit 3 indicates a trail of emails between the parents. There is nothing on the face of the document that would indicate to the Court that the email from the mother to the father, dated 24 March 2016 was fabricated. Apart from the mother's mere assertion – the mother has produced no other evidence to support her contention that the email in question was fabricated by the father. It is for that reason that I have concluded that the mother has not proven her allegation to the requisite standard.
More likely than not these parents (as appears to have occurred very often) were in conflict as to the interpretation of the orders and their inability to communicate in a productive manner (for the benefit of the child) led to a situation where – the father was working on the basis that the mother had agreed for the child to spend his birthday with him and the mother proceeded on the basis that the child would return to her care two days beforehand.
What happened next also requires the Court's consideration. In 2016 the father was celebrating his 50th birthday at Location B in Suburb G and X was present. It is apparent from the evidence that the mother and her partner (Mr H) were attempting to locate the father and the child. Mr H, who gave evidence that he has some experience in military intelligence, told the Court that he went to the Location B and he saw the father and the child and then went home and got the mother and both the mother and Mr H then attended at Location B.
This was not a sensible decision by the mother. The mother knew that 2016 was the father’s 50th birthday. A more sensible approach in that situation would have been to agree to leave the child with her father on his 50th birthday. The child clearly enjoyed the activity at Location B. What harm would there have been in the mother organising a holiday to commence the day after the father’s 50th birthday? It was unnecessarily inflammatory of the mother to even plan a holiday that included a day such as the father’s birthday. This is especially so having regard to my conclusion that the mother had previously agreed (in her email dated 24 March 2016) that the child could spend the day with the father.
The mother and Mr H together compounded the problem by presenting themselves at the Suburb G venue. This would have placed unnecessary stress upon the child. The child would surely have been wondering – “why are mum and Mr H here?”
I had regard to the witnesses giving evidence concerning this issue. I accept the father’s version of what occurred. It would have been upsetting for the father (and, more importantly for the child) for the mother and Mr H to present themselves at the Location B during the father’s birthday celebration. It would have been a tense situation. It was completely unnecessary. It should never have reached that situation because (as I have already said) a prudent parent in the position of the mother would not have organised a holiday where she intended to take the child away when it was the father’s birthday. This is especially so considering it was a milestone birthday namely his 50th birthday.
In any event, the view that I have formed is that the father actually defused the situation by agreeing to allow the child to go with her mother after the Location B party concluded. The child then left with the mother and Mr H and went to Town J.
End of 2016/2017 Christmas holidays
Further conflict arose between the parents at the end of 2016. The mother maintains that the child was supposed be returned to the mother's care in late 2016. That was in fact X's 10th birthday. The mother maintains that a return to her care was as provided for in the Court orders.
The relevant orders were dated 18 November 2014. By order 5(a) the child was to spend the first half of those gazetted school holidays (2016 being an even-numbered year) with the father. The changeover date (the halfway point) was as defined in paragraph 6(c) of those orders. Paragraph 8 of the orders was also relevant because it related specifically to the child’s birthday and stated:-
“8. On the child’s birthday noting that the child’s birthday will fall during the December/January school holidays, the parent who has care of the child shall retain her on her birthday and the other parent shall be at liberty to telephone her and to send cards and gifts. In the event that the child is in Brisbane on her birthday, the parent who does not have care of the child shall spend time with or communicate with her from midday until 5:30pm.”
The mother's trial affidavit (at paragraphs 56 and 57) indicates that the halfway point in the holidays (and hence the changeover date) was 2016. The father does not dispute that 2016 was supposed be the changeover date. The father took it upon himself to take the child to Sydney. He seeks to justify this in his affidavit on the basis that he had never taken her to Sydney before. There was no agreement between the parents to change the changeover date. The father was perfectly entitled to take the child to Sydney for Christmas 2016 – but the child should have been back in Brisbane for the changeover in 2016.
Earlier in these Reasons for Judgment I was critical of the mother for organising a holiday at Town J during 2016 on a day that included the father’s 50th birthday. In this situation I am critical of the father for having insensitively and contrary to the Court orders held the child beyond 2016. Surely it would have been better if the father had travelled to Sydney for Christmas in 2016 (so that he could have spent that time with the child and his extended family) then brought the child back to Queensland so that the child could have spent time with both him and the mother on the child's 10th birthday, namely 2016. That was the changeover date.
The two examples to which I have already referred – namely the 2016 Location B incident and the late 2016 changeover issue clearly demonstrate the inability of these parents to sensibly coordinate arrangements for their child. Both parents are at fault. The approach taken by the parents in those two different sets of circumstances (in particular, the mother's conduct in relation to 2016 and the father's conduct in relation to Christmas/New Year 2016/2017) achieved nothing other than the placing of extra pressure and stress upon the child X. I do not accept the father’s explanation in paragraph 35 of his trial affidavit in relation to the 2016/2017 Christmas holidays. The father maintains that there was some sort of formal agreement between the parents. However the father has not provided a copy of an email or text message to confirm such agreement. Given the poor state of cooperation between these parents a text message or an email would be the least that this Court would expect to support the father’s contention. Indeed, the father’s own affidavit (in paragraph 30) appears to contradict the father's evidence in paragraph 35 concerning the alleged existence of an agreement having been reached between the parents for the child to spend some extra time with the mother prior to the child’s departure for Sydney in the 2016/2017 Christmas holidays. Paragraph 30 indicates that the mother “rejected outright my absolutely reasonable offer” in relation to this particular issue. If I am wrong in relation to that view of the evidence – it will make no difference to my preceding comments in this paragraph.
Clearly, the child was having some difficulties during that period of time (2016/2017). I accept that evidence of the mother. The mother had organised some counselling for the child with an organisation known as “Act4Kids”. I note that counselling ceased in June 2017.
I also accept the mother's evidence in the following paragraphs:-
“63. Despite X's behaviour and difficulties, I continue to positively encourage her time with her father. I truly believed, and continue to believe, that she has a good relationship with both of her parents.
64. When X became anxious I would say such thing as, “Why don’t you think about the fun things you do together and focus on those?” I would explain that “it’s important to spend time with both Dad and Mum. We both love you very much and want the best for you”.
The mother’s evidence in paragraph 63 confirms that the mother does not consider the father to be a risk to the child. The current impasse sees X insisting that she does not want to spend any time with her father. This has been the case for some time. The child has been exposed to significant conflict between the parents. The child was very much involved in the Location B incident of 2016 and the conflict between the parents concerning the Christmas/New Year holidays in 2016/2017.
I accept the mother’s evidence that during 2017 and especially towards the end of that year the child indicated to her mother that she was more and more reluctant to spend six nights per fortnight with the father.
I note the mother’s evidence from paragraphs 68 – 71 of the mother's affidavit. In those paragraphs, the mother states:-
“68. In about October of 2017 X began to open up more about why she was reluctant to go to Mr Allard. I recall she said, "Dad said I have to make either a good or a bad decision and the bad one would not be good for me. He said the bad decision is to spend less time with him." She was crying and said, ‘I feel so bad because Dad made me write notes and texts like he did when I was little, saying you are putting pressure on me and I want to live with Dad, which I don't’. She said, ‘Dad is going to use them in court if it goes back there.’
69. X said words to the effect of. ‘I feel forced to do what Dad says because he won't leave me alone for hours and hours. I get scared of him so I end up doing what he asks, so he will stop’.
70. I did not prompt X to make any of these statements, and when she did so, comforted her and tried to reassure her, saying that she should not worry about what had happened, to try and focus on the good things, and leave those discussions for me and her father.
71. Without any prompting from me, at the end of 2017 X of her own initiative spoke to her father and me, asking if the six nights per fortnight could be reduced to every second weekend. She told me she felt neglected and uncomfortable in his care and he was always on his computer and angry with her.”
I accept the mother’s evidence in this regard. It is accepted by the Court that the child was telling the mother that she wanted to reduce the six nights per fortnight with the father to every second weekend with her father.
The father’s view on what was occurring is contained in his trial affidavit in paragraphs 47, 48 and 49. I have had close regard to the father’s evidence concerning this issue. The father indicates that his view was that the mother was placing significant pressure upon the child to spend less time with the father.
I consider that the more likely explanation is as stated by Ms K (the family report writer) when she was explaining to the Court in evidence that shared care arrangements often work quite well when children are younger but as they grow older and into teenage years they often seem to prefer to live primarily in one household. In addition to that – I note that the child has been exposed to significant conflict between her parents and has likely gravitated towards one parent (in this case the mother) in order to help the child cope and to reduce the child’s exposure to conflict. These comments are broadly in accordance with the expert opinion of Ms K.
School Camp – October 2017
I note the evidence from the parents concerning X's year five school camp in October 2017.
Irrespective of who said what to whom concerning that incident – it was yet another example of the intractable conflict between the mother and the father in this case. Worse still, X was in the middle of that conflict and aware of its existence.
December 2017
I note the mother's evidence from paragraphs 73 – 76 of her affidavit where she stated:-
“73. Shortly after this, on Friday 1 December 2017 I took X to her concert and watched her. The following morning she was due to go to her father and she was highly anxious about going. I kept insisting that she go and encouraging her to be positive. She was crying in the car on the way to his house.
74. When we arrived at Mr Allard’s house he came to the car and saw how upset she was, and said to me, "Why don't you come and sit on the veranda with X and me and we can talk about why she is so upset." When we were sitting on the veranda, Mr Allard said, "I understand that she is getting older. I knew this was going to happen some time soon. Of course being a girl she is bound to gravitate towards her mum during these pre-teen years."
75. X calmed down somewhat and I reassured her that she would be fine and dad would take good care of her.
76. X stayed with her father in accordance with the orders.”
I accept this evidence of the mother. To the extent that the father’s version of the conversation on the veranda is different to the mother’s – I accept the mother’s evidence.
Conflict continued between the parents at the end of 2017 and early in to 2018 leading to the incident that occurred at the Suburb E Shopping Centre.
Suburb E Shopping Centre incident – 27 February 2018
I accept the mother’s evidence that the child had been refusing to go to her father’s house and that on the day in question the child had refused to go to school.
The view that I have formed is that the parents should never have put the child in that situation. It is clear from the mother’s evidence that at least through the latter part of 2017 and early 2018 the child was indicating to the mother that she wanted to reduce her time with the father. It is also apparent from the evidence that the mother had decided to commence this current Court proceeding and had in fact filed proceedings in February 2018.
The dispute between the parents in relation to the child’s time with the father should have been brought to the Court for determination. It was altogether the wrong thing to do for the mother to take the child to the Suburb E Shopping Centre and seek to have the child (who was then 11 years old) communicate to the father the child’s wishes. I do not accept the father’s interpretation that the mother persuaded him to conduct the changeover at the Suburb E Shopping Centre in some sort of an attempt by the mother to obtain a domestic violence order against the father to be used to stop the father seeing X.
It seems unlikely to me that a person (in this case the mother) would attempt to “obtain a domestic violence order” against another person (in this case the father) and request that this occur in a public place with CCTV available.
The mother should not have taken the child to Suburb E Shopping Centre on the day in question. However, having got to the shopping centre I do accept the mother’s version that the child said to the father "no, dad, can I please stay with Mum?" (Note paragraph 92 of the mother’s affidavit). At that point the father should have merely agreed to let the child leave with her mother. The matter then could have come to the Court for determination. Even though the father was not aware at that point in time that an application had been filed – he could have filed an application. I have no doubt that the incident at the shopping centre was traumatic for the child. I accept the mother’s evidence that the father became agitated and that the father had become aggressive in the tone of his voice.
I note page 8 of exhibit 1 (the tender bundle provided to the Court by the Independent Children’s Lawyer). Page 8 forms part of the subpoenaed material from the Queensland Police Service. I note the following from the police notes following a section 93A interview conducted on 3 March 2018. The police notes state:-
“On the 3/3/2018 DSC L & DSC M conducted a 93A interview with the subject child X. The child stated that she had been with her mother on the 27/02/2018 and was taken to the Suburb E Mall, Suburb E for a handover to her father as per family law court orders. Once at the mall, her father arrived and the child stated to him she did not want to go with him and wanted to talk to him about why she didn't want to go.
Subsequently the father told the child that as per the court orders, the child was in his custody and she was to come with him. The child stated that the father then held her arm and tried to escort her away from her mother but she started to cry and told him she didn't want to go. The mother also started to talk loudly and it turned into a loud disturbance with members of the public becoming concerned for the child. Security arrived and tried to separate the parties. Police were called and attended a short time later.
The father was taken to the security office and the mother and child went into a nearby shop to wait for police. Police attended and spoke to both parties. Checks in a shop show that a street check was entered by attending police however no further action was taken. ADV private application was put in by the mother and subsequently the father soon after the incident. This is believed to be before the courts next W/B 12/03/2018.
An assessment by DSC L as to whether any criminal offences had taken place was conducted. The subject child stated that her father grabbed her arm but it did not hurt. The father said to her words to (the effect of, "you have to come with me, it's the law" and then tried to hold the child's arm however she resisted and started crying and broke away.”
The mother and father placed significant stress upon the child on 27 February 2018. As I said earlier, it was a traumatic event for the child. It would have been terribly embarrassing for the child to be in a public place with both of her parents talking loudly and the matter turning “into a loud disturbance with members of the public becoming concerned for the child”. Both of these parents should be utterly ashamed of themselves for putting X in that situation.
On page 9 of exhibit 1 the police themselves have stated:-
"the child new(sic) a lot about the family law court matters and custody issues between the mother and father. It seemed like either the mother or the father have talked openly to the child about the issues and it seems the child does not want to live with her father as she like (sic) her mother better…"
The conclusion that I have reached is that both the mother and the father have talked openly to the child about the family law issues.
I accept that the security guard was not assaulted by the father. This is confirmed in the police evidence. Apparently the manager of the shopping centre confirmed as much. As to whether the mother was “fake” screaming is, frankly, irrelevant. Both of the parents were talking loudly. That much was stated by the 11 year old child to the police in the section 93A interview.
After the incident occurred at the Suburb E Shopping Centre the mother states that she no longer continued to attempt to comply with the Court orders.
Following the Suburb E Shopping Centre incident it seems that both parents obtained Domestic Violence Orders against each other.
Dr N
Dr N is the child’s General Practitioner. The mother took the child to see Dr N on 1 March 2018. The doctor noted certain points and they are included on pages 97 and 98 of exhibit 1. It's not clear in relation to the consultation on 1 March 2018 as to whether or not the mother was present. Indeed the doctor’s notes are very difficult to read at times. The Court has provided its best interpretation of the notes. If some of the Court’s interpretations of the notes are inaccurate such inaccuracies are likely to be minor and will make no difference to the outcome of these proceedings.
In any event, the doctor’s notes of 1 March 2018 state (including spelling and grammatical errors) as follows:-
“Surgery consultation recorded by Dr N on 01/03/2018
Doesn’t want to go see the father
Spanking by father – light bruising on hip
Yanked chair from under her
Had her head lock
XX is addicted to codine/oxycontin
cuts her off from the outside world
transfer he grabbe by the arm drag her way
everyone screaming
securiaty reak that up
XX assualts the security guard.
Police
Security guard going to press charges
have temporary DVO order until 14th of March
Federal circuit Judge hearing 27 march
aiming for full custody”
The doctor’s notes indicate a further relevant consultation with Dr N on 19 March 2018. Again, it is not clear precisely whether or not Dr N has written down the child’s words or the mother’s words. The doctor’s notes for 19 March 2018 state as follows. Page 99 of exhibit 1 is where this particular note commences. The notes state:-
“Surgery consultation recorded by Dr N on 19/03/2018
gives further history that she did not feel confident giving last time
Dad says not to tell any body
Gets in the shower when she is there, asks her to wash my back
Gets into bed with her, does “cuddle bugs”
Family order says not to do that
Not listening when she says doesn’t want him to do that
also referral to psychology not accepted as need both parents
ALSO – prev note, pt had mentioned suidial ideation in the past, pt does not feel that way anymore
called child protection services who were very upset not reported what was disclosed March 1.3.2018 earlier – seems reasonable for them to be upset however pt was not to be in Fathers care between that visit and todays, no adverse outcome
called pt Mum, this has all been reported to CPS already (1/3/2018), not sure about todays history however
Reason for visit:
Sexual abuse victim
Action:
Letter written re. O Hospital referral.”
There then is recorded in the doctor’s notes on 3 April 2018 a telephone discussion that the doctor appears to have had with somebody at the O Hospital. This is referred to in the notes as O Hospital (O Hospital). For completeness, I will include this note as well:-
“Surgery Consultation recorded by Dr N on 03/04/2018
Chat from O Hospital
Adv can refer sexual abuse to the police adn they can do a physical examination, would only be if X discloses further action than current level of grooming
Complain to O Hospital that no one will be psycyological support as need 2 parent consent, they suggest CYMH Suburb G
Spoke with Ms P at CYMH who said hands are tied – will have a think and get back to me”
On 6 April 2018, there is a further surgery consultation recorded with Dr N. Again, the reason for visit is stated as “sexual abuse victim”. The notes indicate that the mother asked the child to leave the room. The notes state:-
“Surgery Consultation recorded by Dr N on 06/04/2018
Haven’t had to do anythign about the nail – no time
ask about update with custody
Mum asks X to leave the room as not allowed to talk abotu this kidn of stuff infront of X
going to family consultant 18th april each parent and X
then go back on the 20th –
DVO ongoing – set for hearing in June
temorary order in place
the Judge in the Federal circuit court
will submit a new affordavitt
investigatinos with CPS ongoing
X seeing a pschyologist through Q Families, does not require both parents support
Will do affordavit for the court
Will book a long appointment
Reason for visit
Sexual abuse victim”
It is apparent then that on 6 April 2018 what was stated to Dr N was stated by the mother and not by the child. This is obvious because the mother asked the child to leave the room. The only certain surgery consultation conducted between Dr N and the child in the absence of the mother is the consultation on 16 April 2018. I will include the notes of that consultation in full. Again, I have had reference to the subpoenaed material as necessary in order to read what has been “cut off” by the photocopying. I have also included the spelling and grammatical errors which appear in the doctor’s notes. The notes for 16 April 2018 commence at page 101 of exhibit 1. Those notes state as follows:-
“Surgery consultation recorded by Dr N on 16/04/2018
Notes from chat X
Mum waited outside whilst we had this chat
Will turn this into affordavit for court
X
Living mainly with Mum – like that
Once started to feel didn’t want to be around your Dad, didn’t like going there.
Why didn’t she want to be around the Dad
Sometimes he took pills “would stack up on them”
If he didn’t have them would get really angry
Had to have operation on the back – once time she told – once time he sued black/dark web, one time he got them and downloaded movies from – he said getting movies but worried getting drugs
Also started to get more aggressive
He got more aggressive
He started being menipulatiev so that she wouldn’t want to be around her Mum
One time she said she didn’t want to be around the Dad and would try and maker her practice saying things like “I want thingns to stay the same” even though you didn’t want to
This was in preparation for this court date – hasn’t happened yet
Sometimes he would try and get into the shower – he tries to wash her, she says I can do it myself, and he says “I want to do it”, washes everywhere – at 9 he stopped washing her private parts, but stays in the shower, nowadays dries herself
He does sometimes gether to wash the back, doesnt’ worry her
Sleep in his bed – “no, I want to sleep in my bed” he would grab her – spoon/cuddle
He is only wearing underwear
wears lot around herediaryhe talks about suicdie also
It really uncomfortable once = when she wanted ot change channel dad got really angry, went to her room and messaged mum saying I don’t feel safe, he asked what were you doing, she advised was texting mum, I don’t feel safe here, then he forced her to say “I over reacted” even though she didn’t feel that way.
Head lock – tighter and tighter
smaked allot of times – has gotten a bruise on side, back, head and buttocks – Mum did take photos once
Once used spatula, otherwise open hand
Once with headlock and struggling to breath
Started to realise this warnt’ normal around 9 years old – he started to tell her about stuff, about taking drugs, has kept seeing felt more and more like something was wrong
decided that didnt’ want to see him at all –
had a feeling that didnt’ want to see him at all for about 3 years, find it very hard to tell him
when finally was able to tell him - was last, and he tried to cover it up
Did discuss this with Mum
When you realised that going to court again – realised need to tell mum anything. Dad told her no too tell her anything. He made out like X wanted to stay in his bed but she didn’t. She things he knew that what she was doing was wrong.
Has now told Mum everything
Never gotten her to take medications
He did get her to take some vitamin tablets once – got some diarrhoea
does drink etoh, she never has
doesn’t smoke
none of his friends come around
he has a girlfriend – no one else is around
doesn’t feel like Mum has ever pressured her, Mum has always said that if she ever changes her mind she can spend moer time with her Dad
he feels like Dad puts her down allot
closes all curtains and doors
is only allowed to go inside the house
has watched some scary movies with him, didn’t really like
watched a few
nothing too
Did steal $230 in over a few visits from her purse
what kind of relationship do you want now?
‘I don’t really know, even if he’s good. Because of however he reacted at Suburb E shopping mall. I dont’ know how he is going to react. I’m scared to see him, even if he acts nice’
at the moment doesn’t want to see him at all, it could change but doens’t think it will change any time soon because scared of him
Mum didn’t coach
Reasons for visit:
Sexual abuse victim”
By the time of the consultation on 16 April 2018, the child was aged approximately 11 years and 4 months. The doctor has made notes from what the child has told him. I have no reason to doubt the veracity of the notes. I do not accept the assertion that the mother has coached the child in relation to these issues. I note page 102 of Exhibit 1 in the fifth paragraph, the following words appear:-
“Has now told mum everything.”
This sounds like the child was likely beginning to progress from childhood to puberty and was concerned about certain conduct by the father. The child had wanted to maintain confidences in respect of the time she spent with each parent. What I mean by this is – whatever occurred at mum’s house would remain confidential and whatever occurred at the father’s house would remain confidential. This type of situation arises very often. The child would have been well aware that her parents were in significant conflict. In any event, the view that I have formed is that what the child has told Dr N on 16 April 2018 is very likely to be accurate. Some of the matters referred to by the child on 16 April 2018 are as follows:-
a)The child is mainly with the mother and the child likes that;
b)The child was concerned about the father accessing the dark web;
c)The father was pressuring the child to practice saying things like “I want things to stay the same”;
d)The child did not want things to say the same. In this respect, I infer that the child meant she did not want to continue in the six night per fortnight arrangement that was then occurring;
e)The notes indicate that the father would get into the shower with the child. The precise dates of when this occurred and not clear. What is clear from the notes is that the father stopped washing the child’s private parts in the shower when the child was aged nine. This was at the insistence of the child – (I infer from the notes);
f)The child also was uncomfortable with the father wanting the child to sleep in the same bed as him;
g)The child was upset at a headlock that the father had her in at one stage;
h)The child was not happy with what happened at the Suburb E Shopping Mall. She referred to the way that her father had “reacted” at the Suburb E Shopping Mall.";
i)It seems that the doctor asked the child directly a question in relation to “coaching”. The child answered that “mum didn't coach”;
j)The reason for the visit is stated again as “sexual abuse victim”.
In the doctor’s notes where he has used the words “sexual abuse victim”, the conclusion that I have reached is that it is more likely than not that it is the doctor who used those words. I do not accept that a General Practitioner is going to accept the word of a member of the public in relation to such an issue. The General Practitioner was told certain things by the child on 16 April 2018. This is certain. On the earlier dates, at the very least, the mother told certain things to Dr N. The view that I have formed is that the mother has passed on to the doctor what she (the mother) had been told by the child. I do not consider that the mother has invented or embellished any of the information that she passed on to Dr N. The child told the doctor about the father trying to get into the shower with her. The child told the doctor about the father washing her private parts up to the age of nine. The child seems to have told the doctor that she “nowadays dries herself”. The child told the doctor that the father wanted her to sleep in his bed. Having been told this information, the General Practitioner, I infer from the available evidence, has deemed it appropriate to use the words “Sexual abuse victim” in his notes.
In relation to some parts of the respondent father’s written submissions (including the submissions contained in Part II – “The Principle That Litigants May Not Profit From Their Own Wrongs”. I am mindful of the warning issued by the Full Court of the Family Court in Dylan & Dylan [2008] FamCAFC 109. At paragraph 2 of that decision, the Full Court stated:-
“A trial judge's primary function is to decide the case before the court and explain the result, but from time to time a trial judge too might go beyond that task and do so to the great benefit of the law. However, a trial judge embarking upon discussion superfluous to the discharge of the primary role may provoke an appeal, based on the proposition that the irrelevant considerations may have influenced the final result.”
This particular issue was recently taken up again by the Full Court in Wei & Wei And Anor [2020] FamCAFC 224 where the Full Court, after referring to Dylan & Dylan went on to mention the “discipline of judicial economy” – which had been referred to by the High Court in Boensch v Pascoe (2019) 375 ALR 15 (especially at paragraph 7 per Kiefel CJ, Gageler and Keane JJ). In Wei & Wei, the Full Court stated – in reference to paragraph 2 from Dylan & Dylan (quoted above):-
“As well as that particular risk which straying from the discipline of judicial economy … may generate, there is also the risk that a trial judge may be distracted from their central function, which is to make the necessary findings of fact thrown up by the immediate case, and apply the settled law to them.”
For that reason I do not consider it necessary to embark upon a consideration in these Reasons for Judgment of the father’s written submissions contained in Part II of counsel's submissions forwarded to the Court on 22 December 2020.
The majority of the balance of the written submissions on behalf the father have referred to the relevant provisions of the legislation. The Court has already made reference to those provisions, including section 60B, section 60CA, 60CC, 61DA and 65DAA. I do note the reference in paragraph 20 by Mr Morris QC to the question of the "constitutional validity" of section 60CA. I note this issue has been previously addressed by the Full Court of the Family Court of Australia in Duarte v Morse [2019] FamCAFC 93, especially from paragraph 320.
I do not consider it necessary to specifically refer to any of the other written submissions provided by counsel for the father. These reasons for judgement have canvassed the necessary statutory requirements set out in Part VII of the Act. Findings of fact have been made and the Court has applied those findings to the settled law.
The written submissions on behalf of the mother
Mr Jack Kennedy of counsel (on behalf of the mother) forwarded written submissions to the Court on 11 January 2021. I consider that it is only necessary to make reference to one aspect of those written submissions. It has been argued on behalf of the mother that the Court should not make any order for the child to spend time with the father. The submission on behalf the mother is that not even the very limited orders proposed by the Independent Children’s Lawyer should be made. It will be apparent from these reasons for judgment that I disagree with that submission. It will be further apparent from these reasons that I have come to the conclusion that it is in the best interests of the child to make the orders sought by the Independent Children’s Lawyer.
Conclusion
For the reasons stated – the Orders submitted by the Independent Children’s Lawyer are in the best interests of X. Orders will issue accordingly.
I certify that the preceding one hundred and eighty-one (181) paragraphs are a true copy of the reasons for judgment of Judge Howard
Date: 6 April 2021
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