Atkinson and Atkinson (No.3)
[2016] FCCA 2284
•2 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ATKINSON & ATKINSON (No.3) | [2016] FCCA 2284 |
| Catchwords: FAMILY LAW – Final parenting – future care arrangements – determination of parental responsibility – significant history of coercive and controlling family violence perpetrated by the father upon the mother – allegation by the father that the mother, his former wife and various others have conspired with each other to manufacture allegations – where the child is exposed to family violence – substantial issues of credit – parties’ evidence irreconcilable –inability of the father to support the child’s relationship with the mother – where communication between the parents is unworkable and unsafe – need to protect child’s right to a relationship with the mother – need to protect the mother and child from harassment and violence – father’s actions regarding delaying access to subpoenaed material – use of video evidence. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 60CC(2A), 60I, 61C, 61DA, 65DAA, 65DAA(5), 65DAC, 68B, 69ZW, 91B, 69ZT, 69ZV Mental Health Act 2007, s.22 |
| Cases cited: Tate & Tate(No.3) (2003) FLC 93-138 Dasreef Pty Ltd v Hawchar (2011) 277 ALR 611 Amador & Amador (2009) 43 Fam LR 268 Other Articles Cited: Evidence (Business Records), NSWLRC 17, July 1973 |
| Applicant: | MS ATKINSON |
| Respondent: | MR ATKINSON |
| File Number: | PAC 4343 of 2013 |
| Judgment of: | Judge Harman |
| Hearing dates: | 29, 30, 31 March 2016, 1 April 2016, 10, 11 August 2016 |
| Date of Last Submission: | 11 August 2016 |
| Delivered at: | Parramatta |
| Delivered on: | 2 September 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hill |
| Solicitors for the Applicant: | Fay Rose Legal |
| Counsel for the Respondent: | Ms Snelling |
| Solicitors for the Respondent: | Suzanne Wyman & Associates |
| Solicitors for the Independent Children’s Lawyer: | Ms Reynolds |
ORDERS
That all prior parenting Orders with respect to the child, X born (omitted) 2013, shall be and are hereby discharged.
That X’s mother, Ms Atkinson, shall have sole parental responsibility for all major issues decisions for X.
That X shall live with his mother, Ms Atkinson.
That X shall spend time with his father, Mr Atkinson, as follows:
(a)Until X commences primary school the following shall apply:
(i)Each party shall forthwith do all things, sign all documents and give all consents, authorities and instructions as may be necessary to arrange and attend the first available and offered intake appointment at the (omitted) Contact Service to permit an assessment to be undertaken as to suitability for the parties to utilise that service for supervised changeovers;
(ii)Upon assessment of suitability by the (omitted) Contact Service each party shall then attend at such times, dates and places, follow all instructions and rules as are applicable with respect to the provision of supervised changeovers, pay all fees as are required and provide all consents, authorities and instructions as are necessary to permit changeovers to occur through the (omitted) Contact Service;
(iii)Upon the (omitted) Contact Service being able to facilitate X’s transition from the care of the mother to the father at the commencement of each period of time and from the father to the mother at the conclusion of each period of time, X shall then spend time with his father for a period not exceeding two consecutive days and nights per fortnight and, if possible, from 5pm Friday until 5pm Sunday each alternate weekend and provided that if the above period cannot be facilitated by the (omitted) Contact Service, then time shall be for such period not exceeding two consecutive days and nights per fortnight as can be accommodated and such period shall commence and conclude at such times and on such days as the (omitted) Contact Service can facilitate;
(b)Upon X commencing primary school, X shall spend time with his father each alternate weekend during school terms from the conclusion of school Friday until the commencement of school the following Monday (extending to Tuesday in the event of a long weekend or pupil free day) and for such period not exceeding two consecutive days and nights per fortnight as can be accommodated by the (omitted) Contact Service during school holidays and Mr Atkinson shall be responsible for collecting X from and returning X to school at the commencement and conclusion of each school term period and school holiday changeovers shall occur through and in accordance with the availability and rules of the (omitted) Contact Service.
Pursuant to section 68B of the Family Law Act 1975, Mr Atkinson shall be and is hereby restrained and injuncted from presenting X to any counsellor, psychologist or medical practitioner, save with the mother’s consent first had and obtained and provided that this restraint shall not preclude a medical practitioner providing medical treatment to X in an emergency situation as defined by section 174 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (being treatment that is required urgently to save life or prevent serious damage to the health of X).
Notwithstanding any Order to the contrary, each parent shall do all things, sign all documents and give all consents, authorities and instructions as may be necessary to enable the details of each parent to be recorded as both a parent and emergency contact person upon any school enrolment for X and so as to enable each parent to obtain directly from X’s school any reports or information they desire and provided, further, that each parent shall provide to the school a copy of this Order and shall make a request of the school (in writing) that the details of each parent be recorded in such a fashion as to ensure that each parent’s details are not accessible by the other and are not provided to the other.
Each parent shall forthwith and contemporaneous with the event cause any medical practitioner engaged with X and providing emergency medical treatment to him to contact the other parent and advise them of that fact and so as to otherwise allow and permit each parent to be advised as to X’s treatment and diagnosis and to visit X if hospitalised.
Discharge the Independent Children’s Lawyer with the Court’s thanks.
Pursuant to S.65DA(2) and S.62B, 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.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same or securely destroyed.
IT IS NOTED that publication of this judgment under the pseudonym Atkinson & Atkinson (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
Table of Contents
The parties and relevant children
Future proposals
The central issues
History of proceedings
Material considered
Chronology of events and evidence
General evidential issues
Inspection of material produced on subpoena
Admission of business records and reliance thereupon
Video material
Browne & Dunn
Jones & Dunkel
Mr Atkinson’s actions during the adjournment
Makita & Sprowles
Credit & findings
The relationship between the parties
Ms Atkinson’s mental health
Family violence
Best Practice Principles in cases of family violence
Effects of family violence
Relevant considerations with respect to family violence
Effect of family violence on X
The effect of family violence on Ms Atkinson
Insight or motivation to change demonstrated by Mr Atkinson
When a parent has been found to have exposed a child to family violence their degree of acknowledgement and acceptance of responsibility
The nature of the relationship between the child and the parent found to have been the perpetrator of family violence.
Legislative pathway
Objects & principles
Allocation of parental responsibility
Primary considerations
Additional considerations
Views expressed by X
The nature of X’s relationship with each parent and others
The extent to which each parent has taken or failed to take the opportunity to participate in decision-making and spending time with X
The ability of each parent to promote, encourage and facilitate X’s relationship with the other
The extent to which each parent has fulfilled or failed to fulfil their obligation to maintain X
The likely effect of change in X circumstances
Practical difficulty and expense
Capacity of each parent
Maturity, sex, life style and background of X
Aboriginality
The attitude towards the responsibilities of parenthood demonstrated by each parent
Family violence
Avoidance of future proceedings
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 4343 of 2013
| MS ATKINSON |
Applicant
And
| MR ATKINSON |
Respondent
REASONS FOR JUDGMENT
The parties and relevant children
These proceedings involve a determination of future care arrangements for a young child, X born (omitted) 2013.
X has recently turned 3 years of age. That birthday, like each of his birthdays since birth, has occurred whilst proceedings have been on foot between his parents.
X is presently (and has been for approximately 2 years) living in a shared care arrangement between the homes of his parents.
X is in the care of his father from Monday morning until Friday morning and in the care of his mother from Friday morning until the following Monday morning.
The parties to the proceedings are X’s parents, Ms Atkinson – X’s mother and the Applicant in these proceedings, and Mr Atkinson – X’s father and the Respondent in these proceedings.
Both of the parties are legally represented. X’s interests are capably represented by an Independent Children’s Lawyer.
Each of the parties have children from a previous relationship.
In the case of Ms Atkinson there are three children of relevance, namely:
a)W born (omitted) 1999 (now aged 17 years);
b)Y born (omitted) 2002 (now aged 14 years); and
c)Z born (omitted) 2006 (now aged 10 years).
W, Y and Z are the children of Ms Atkinson’s previous marriage to Mr H. These three children live with Ms Atkinson and spend time with their father with whom Ms Atkinson enjoys an amicable and co-operative relationship.
At the time that the relationship between Mr and Ms Atkinson commenced the children were living with Ms Atkinson. Shortly after the relationship between Mr and Ms Atkinson commenced the children passed to live with their father. After the separation of Mr and Ms Atkinson the children have returned to their mother’s care.
In the case of Mr Atkinson there are three children of relevance, namely:
a)A born (omitted) 1998 (now aged 18 years);
b)B born (omitted) 2001 (now aged 15 years); and
c)C born (omitted) 2008 (now aged eight years).
A, B and C are the children of Mr Atkinson’s previous marriage to Ms L.
These three children live with Ms L. I am satisfied that these three children presently spend no time with their father Mr Atkinson and that they have not done so since August 2012.
Mr Atkinson asserts in his evidence that he does, in fact, maintain a relationship with these three children and that he continues to see them on a regular basis, albeit secretively and surreptitiously, without the knowledge or involvement of Ms L with whom Mr Atkinson has a volatile and acrimonious relationship.
For reasons that will be discussed at some length in a consideration of the evidence in these proceedings, I do not accept the evidence of Mr Atkinson on this issue and find, by reference to the available evidence, that A, B and C do not, in fact, practice any form of relationship with their father, Mr Atkinson.
I will now set out the proposals of each party followed by a discussion of the history of proceedings between these parties. I will then identify the issues central to the conduct of the litigation before setting out the material that is considered by me in determining these proceedings followed by a discussion of that evidence.
I will also endeavour to be clear as to the substantial evidential issues which have impacted upon the determination of this dispute and a determination of the central issues and my findings with respect to those issues. Finally, I will consider the evidence by reference to the legislative pathway and determine and conclude the proceedings.
Future proposals
By her further Amended Application filed 18 December 2015, Ms Atkinson seeks Orders as follows:
a)That the mother have sole parental responsibility for X;
b)That X live with his mother;
c)That X spend time with his father each weekend from 5pm Friday until 5pm Saturday (together with other periods for what might be described as special events, including Father’s Day, (omitted) and birthdays);
d)That once X starts school (realistically this would occur in 2019) that X spend one half of each school holiday period with each parent;
e)That changeovers occur at (omitted) Police Station (as has occurred for the last two years).
Ms Atkinson also seeks a number of ancillary Orders regarding the provision of information by and to each party and so as to facilitate information being obtained by each parent from Doctors, schools and the like.
By close of submissions the position advanced by Ms Atkinson had changed somewhat. Ms Atkinson adopted and joined in the submissions of the Independent Children’s Lawyer that X’s time with his father should occur each alternate weekend rather than each weekend and for a period from Friday to Sunday.
Ms Atkinson also joined with the position advanced by the Independent Children’s Lawyer that changeovers should occur through the (omitted) Contact Service so as to avoid both direct communication between the parties and the ongoing difficulties which have arisen with changeovers at the (omitted) Police Station (and perhaps also acknowledging that, as X becomes older and more cognizant of his circumstances, such changeovers would become even more onerous than the evidence would suggest they are at present).
One of the difficulties that arises from the above proposals is a lack of certainty as to the time period that X might spend with his father bearing in mind that the (omitted) Contact Service is not available to facilitate changeovers on a Sunday. This issue will be addressed in due course.
At the time that these proceedings were commenced Ms Atkinson had sought, by her Initiating Application filed 26 May 2014, Orders in similar terms to the above, save and except that the mother had proposed that X spend time with his father “as agreed with the mother”. Such an Application was never capable of success, noting that one of the few things that these parents are able to agree upon is their manifest inability to communicate with each other.
The same position was advanced by Ms Atkinson by her Amended Initiating Application filed 17 April 2015. That Amended Application had sought to join a plea for financial relief. However, that Application was withdrawn when it became apparent that the parties had, at some point, entered into a Binding Financial Agreement.
One might well expect that upon conclusion of these proceedings (especially noting that Mr Atkinson is involved in ongoing financial proceedings with his former wife Ms L)[1] that some further Application, by way of Application to intervene in the above proceedings, an Application to set aside the Binding Financial Agreement or a declaration as to the invalidity of the agreement, might well occur.
[1] The financial proceedings between Mr Atkinson and Ms L are listed for hearing before the Family Court of Australia commencing 29 August 2016.
By his Amended Response filed 24 March 2016, Mr Atkinson seeks Orders as follows:
a)That the father have sole parental responsibility for X;
b)That X live with his father;
c)That X spend time with his mother each alternate weekend from 5pm Friday until 6pm Sunday.
Mr Atkinson does not, by his Amended Response, seek any further Orders. Mr Atkinson's Amended Response is absent any proposal regarding changeovers, provision of information and such other matters as are addressed by Ms Atkinson's Application.
By the close of submissions Mr Atkinson’s position had changed somewhat such that whilst Mr Atkinson still proposed that he would have sole parental responsibility for X and that X would live with his father, Mr Atkinson proposed that X would spend time with his mother for a period from Thursday afternoon until Tuesday morning each alternate week (five nights per fortnight). Mr Atkinson proposed that changeovers occur at X’s pre-school being a centre owned and operated by Mr Atkinson.
The Response initially filed by Mr Atkinson (4 June 2014) had sought that these parents would have and would practice equal shared parental responsibility and that X would live with his father and spend time with his mother “as agreed between the parties”. Having now considered the evidence it is clear that the pleas for relief, as regards equal shared parental responsibility and X’s time being subject to ongoing agreement between the parties, were never capable of success.
By an Amended Response filed 21 January 2016 Mr Atkinson had sought to continue the current parenting Orders on a Final basis (being the Interim Orders made 9 July 2014 and which provided for shared care) and subject to X’s time with his mother being supervised (although no specific supervisor nor mechanism for supervision was proposed).
That plea for relief would appear, from the evidence now considered, to have been incapable of successful prosecution and entirely impracticable (noting that the present Interim Order provides that X is to spend time with his mother for three days and three nights per week in a continuous block during which supervision would be entirely impractical let alone inappropriate).
The Independent Children’s Lawyer, as would be apparent from a discussion of the mother’s proposals, supports Orders for X to live with his mother Ms Atkinson, for Ms Atkinson to have sole parental responsibility and for X to spend time with his father, Mr Atkinson, each alternate weekend for a period of two nights and with changeovers to occur through the (omitted) Contact Service.
The central issues
As parenting proceedings X’s best interests are the paramount consideration.[2] However, the proceedings have been conducted with a centrality of focus upon issues of risk. Whilst these issues have, through the conduct by the parties of their litigation, become the central focus in this determination, X’s best interests shall remain the paramount consideration.
[2] Family Law Act 1975, section 60CA.
The focus of the parties on issues of risk is, perhaps, influenced if not dictated by that which fell from the Family Report Writer, Ms G. Ms G prefaced her recommendations to the Court upon the determination by the Court of two significant issues, namely:
a)Whether the Court finds that Mr Atkinson has been violent towards Ms Atkinson; and
b)Whether the Court finds that Ms Atkinson suffered from any mental illness or disorder which “significantly negatively affects her parenting”.
Appropriately, the Family Report Writer, Ms G, did not seek to place herself in the position of a finder of fact. Thus, the caveats attached by Ms G to her recommendations are not a criticism. These caveats have, however, caused the parties to significantly focus upon the proof and disproof of allegations within these domains.
In truth the determination of each of these two issues is fundamentally connected. The issues are connected both as to a common substratum of fact relating to each issue (and the allegations suggested to speak to those issues) as well as findings of credit with respect to each party (credit being an issue of some real significance in this case).
As these two issues have assumed such significance for these parties, I propose to deal with each of those allegations as separate and distinct areas of evidence in due course.
History of proceedings
I have no confidence that this Judgment will conclude litigation between these parties. They would appear to have developed a taste for litigation.
Young X has, during the course of this tranche of litigation, celebrated his third birthday. The litigation between X’s parents commenced when X was three months of age.
The first tranche of litigation between these parties was commenced by an Application Initiating Proceedings filed by Ms Atkinson 10 October 2013. That Application was the subject of an Application for abridgement of time determined by a Registrar in Chambers which saw the matter listed before the Court on an urgent basis.
The proceedings came before the Court for the first time on 16 October 2013. On that occasion the matter was dealt with in a busy duty list. Both parties appeared and were legally represented. The parties were directed to attend a Child Dispute Conference which they did during that day.
Mr Atkinson had not filed material prior to the first Court event and, notwithstanding that the proceedings came before the Court in a busy duty list, time was made available so that each party could give oral evidence and be briefly cross-examined. X’s age and the issues involved compelled urgency.
The witness sheets for that occasion suggested that the evidence of the parties was taken over some three hours concluding shortly before 6pm. At the conclusion of that evidence a brief Ex Tempore Judgment was delivered and a number of Orders made including:
a)An Order for joint and several parental responsibility pursuant to section 61C of the Family Law Act 1975;
b)An Order for X to live with his mother;
c)Orders for X to spend time with his father under the supervision of a nominated person;
d)Orders pursuant to section 69ZW of the Family Law Act 1975 and section 248 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) for the provision of information by the Police and Department of Family and Community Services NSW respectively;
e)A request pursuant to section 91B of the Family Law Act 1975 for the Department of Family and Community Services to intervene in the proceedings. That request was made on the basis that if that alleged by each party was ultimately accepted neither parent appeared an appropriate carer for X.
Ultimately, an Order was made requiring that Mr Atkinson return X to the mother’s care in the foyer of (omitted) Police Station at 9am 17 October 2013. There is no issue raised to suggest that the child was not delivered into the mother’s care at or about that time.
Following the above Interim Hearing and the Orders made that day the father continued to make contact with the mother on a regular basis and including by text, telephone and, on at least one occasion (22 October 2013), by attending at the mother’s home at around midnight.
The father suggests that this attendance was due to concerns which he held with respect to the child’s health. The mother suggests that this was a continuation of the father’s pattern of behaviour towards her of a coercive and controlling nature and that the father’s behaviour constituted family violence. I accept that it did.
Correspondence was received by the Court on 24 October 2013 advising that the Department declined to intervene on the basis that “… while concerns regarding the child’s welfare and wellbeing have been raised with the Director General those concerns have not met the threshold for investigation”.
The concerns which had been reported to the Department at that time and which had not “met the threshold for investigation”, were complaints by medical practitioners suggesting that the mother was a victim of physical assaults during her pregnancy. Why such concerns were not fully investigated is not made clear. The circumstances which were reported fell squarely within the category of allegations that the Wood Commission had recommended must be investigated and should not be passed over due to lack of resources.
The Department’s correspondence also indicated that:
The Director General has received seven risk of significant harm reports in past two and half weeks. These reports all contain allegations about the mother perpetrating domestic violence against the father. It is our understanding that NSW Police have investigated these allegations but have been unable to determine who the victim is.
On the basis that the above correspondence was generated 24 October 2013 it would appear that the reports made to the Department (referred to as having been “in past two and half weeks”) had occurred contemporaneous with and following the commencement of proceedings before this Court rather than preceding the proceedings.
The correspondence from the Department also suggested that:
The reports also contain allegations that the mother has behaved in a manner which is inconsistent with her having care (sic) the 3 month old infant. These aspects have not been allocated for intensive casework follow-up.
There is also prior reported history of alleged domestic violence perpetrated by the father against the mother. (omitted) Domestic Violence Team investigated these claims but in the course of those investigations the mother retracted her allegations.
The latter of the above statements is entirely consistent with the evidence in this case. Reports were made to the Department of “alleged domestic violence perpetrated by the father against the mother”. The (omitted) Domestic Violence Team did contact the mother and the mother refused any assistance. The mother did not retract her allegations.
The mother’s disclosures to Hospital staff (the basis of reports to the Department) were made in the absence of the father. When the mother was contacted by the (omitted) Domestic Violence Team she had resumed her relationship with the father. These circumstances do not appear to be acknowledged and do not appear to have been taken into account by those who “investigated” the claims. Indeed, the claims were never investigated. The Department received a report from the Hospital and spoke with the mother who refused service. That is hardly an “investigation” and especially so given the extensive and coercive investigative powers of the Department.
The ante natal reports by the Hospital fall under section 25 of the Children and Young Persons (Care and Protection) Act 1998 (NSW). That section provides:
25 Pre-natal reports
A person who has reasonable grounds to suspect, before the birth of a child, that the child may be at risk of significant harm after his or her birth may make a report to the Secretary.
The intentions of this section are:
(a) to allow assistance and support to be provided to an expectant parent to reduce the likelihood that the parent’s child, when born, will need to be placed in out-of-home care, and
(b) to provide early information that a child who is not yet born may be at risk of significant harm subsequent to his or her birth, and
(c) …to provide for mandatory reporting if there are reasonable grounds to believe that the child is at risk of significant harm subsequent to his or her birth.
In light of the source and nature of the report received by the Department, one would think that the Department might not have taken “no” for an answer especially given that one would expect Case Workers to have some rudimentary knowledge of the “Cycle of Violence” and relevant research literature regarding the dynamics of family violence, such as might have created a reasonable expectation that a victim of family violence who has disclosed in the absence of their partner is unlikely to repeat those allegations in the presence of their partner.
One might expect that the mother’s disclosures to Hospital staff might have been treated as a “cry for help” and some thorough, let alone nuanced approach, taken than to visit the mother at her home (shared with her partner, the alleged perpetrator), and simply ask her if she wanted help.
Ultimately, the mother experienced a miscarriage. Whilst the evidence presented at Hearing does not suggest that any finding could safely be made (nor is it necessary to do so) connecting the allegations of family violence with Ms Atkinson’s miscarriage, that circumstance of itself might have warranted a more vigorous investigation (or in reality an investigation). Ms Atkinson is reported in the Hospital notes (Exhibit A1) as having “…disclosed DV [with] her current partner in the last month. Partner has a current AVO in place…”.
It is, perhaps, all the more curious that no investigation occurred in those circumstances and especially as the parents were residing together at that time. One would think that Departmental Officers, even if time pressed, might more vigorously investigate a report made by Hospital staff that a pregnant woman in their care had observable injuries and was alleging violence by her partner.
The Department’s investigation and assessment powers are set out in section 30 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) and as follows:
30 Secretary’s investigations and assessment
On receipt of a report that a child or young person is suspected of being at risk of significant harm:
(a) the Secretary is to make such investigations and assessment as the Secretary considers necessary to determine whether the child or young person is at risk of significant harm, or
(b) the Secretary may decide to take no further action if, on the basis of the information provided, the Secretary considers that there is insufficient reason to believe that the child or young person is at risk of significant harm.
By reference to the above powers it would appear that the “necessary” investigation and assessment of the report made by Hospital staff was comprised of asking the mother, who had by that point returned to the relationship, whether she wanted assistance and accepting her refusal. Perhaps on the basis that the mother’s pregnancy had, by that time, miscarried and thus there was no “young person” whose welfare might be considered a significant risk, nothing further was done.
I have laboured upon the above matters as the suggestions within the Department’s correspondence that the reports had been investigated and that the mother had retracted her allegations are inaccurate. Further, the absence of investigation or appropriate investigation (taking into account the nature and context of the allegations and that which is well known and understood regarding “victimology” and reporting) is concerning and would appear to have been a “systemic failure” of the type discussed by the Wood Commission and by Judge Gray in each of the Batty and Freeman Coronial Enquires. Vigilance and response were lacking and an opportunity for protective intervention of assistance to Ms Atkinson was thus missed.
The above correspondence has been considered purely to give context to the decision by the Director General (as they then were) to decline the invitation to intervene. That which is referred to and summarised within the correspondence, being the specific reports made to the Department, is otherwise before the Court through the material that has been tendered.
The matter next came before the Court, by way of video link between the Albury and Parramatta Registries, on 1 November 2013. The appointment of an Independent Children’s Lawyer had been facilitated with expedition by the Legal Aid Commission. Both parties appeared and were legally represented.
At the conclusion of a near full day Interim Hearing a substantial Ex Tempore Judgment was delivered and Orders made in the following terms:
a)That X live with the mother;
b)That X spend time with the father each Tuesday, Wednesday, Thursday and Sunday between 9:30am and 2:30pm.
Various restraints were imposed upon the parties pursuant to section 68B of the Family Law Act 1975, including a restraint upon the father to not be at the changeover point (the Orders providing for a third person to attend to changeover on the father’s behalf) for 15 minutes before and after each scheduled changeover as well as a restraint upon both parents “… from contacting or communicating with each other save to strictly relate to the welfare of X and comprising matters of his health and not otherwise”.
The proceedings were otherwise adjourned to a further mention date.
Prior to the further mention date fixed for the proceedings and on 2 December 2013 each party filed a Notice of Discontinuance withdrawing their respective Application and Response.
Notwithstanding that each party had filed a Notice of Discontinuance, the matter remained listed 6 February 2014. On that date the Independent Children’s Lawyer alone appeared. An Order for costs was made in favour of the Independent Children’s Lawyer and requiring that the father pay to the Legal Aid Commission a sum of $1903 as a contribution towards the costs of the Independent Children’s Lawyer. It is unclear whether this amount has been paid by the father in compliance with that Order but the issue need not be further considered as it is not relevant to this determination.
The mother’s evidence is that the discontinuance of proceedings had occurred as a consequence of a reconciliation having been affected between the parties. The mother asserts that the parties jointly attended at the Registry for the purpose of filing their Notices of Discontinuance. The father denies this.
The father asserts that prior to the parties each filing a Notice of Discontinuance that the mother had delivered X into his care and “abandoned him”. The father suggests that it is a mere coincidence that the parties each filed Notices of Discontinuance on the same date.
The father’s evidence (paragraph 52 of his Affidavit) suggests that the mother had telephoned the father shortly after Orders were made 1 November 2013 (Orders which the father erroneously suggests included a Recovery Order) and said “Come and pick up X. I don’t want him any more”. The father then goes on to suggest “Ms Atkinson gave me the baby and withdrew the Court proceedings”. The father does not refer to his withdrawal of “the Court proceedings”.
The second tranche of proceedings was commenced by an Application Initiating Proceedings filed by the mother 26 May 2014. That Application was, again, the subject of an Application for abridgement of time positively determined by a Registrar in Chambers.
The proceedings came before the Court 4 June 2014 (the matter being listed before a different Judicial Officer on that occasion). Both parties were represented by Counsel. In circumstances whereby the matter was not reached the parties entered into a number of Orders by consent. Those Orders had the effect of appointing an Independent Children’s Lawyer (a different Independent Children’s Lawyer was appointed on this occasion) and provided that X would live with the father and spend time with the mother for periods of between 2 – 3 ¼ hours on three occasions per week with that time to be supervised by nominated persons.
The mother asserts that the fresh proceedings had been commenced by her following a further separation of the parties, they having reconciled their relationship on Ms Atkinson’s evidence, from late 2013 (prior to or about the time of the filing of Notices of Discontinuance) until shortly before the fresh Application was filed. The father asserts that no such reconciliation had occurred and that the mother had simply lied to the Court in an attempt to generate “urgency” and obtain advantage.
Arrangements for the mother’s time with X pursuant to the above Orders quickly broke down and following, as the mother alleges, the father’s harassment of the nominated supervisors.
The matter returned before the Court 9 July 2014. On that date an Interim Hearing proceeded and, as a consequence, Orders were made including the following:
a)An Order for joint and several parental responsibility pursuant to section 61C of the Family Law Act 1975;
b)X was to spend time with his mother from 10am Friday until 10am Monday in each week and with his father from 10am Monday until 10am Friday in each week;
c)Changeovers were to occur in the foyer of the (omitted) Police Station;
d)Restraints were imposed pursuant to section 68B of the Family Law Act 1975 that neither party contact the other or come into physical contact with the other, save for the purpose of changeover and for the purpose of communicating by text to convey information directly relevant to X’s health, care and well-being.
In addition to the above Orders, the Department of Family and Community Services were, again, invited to intervene. The Department did not intervene, although no correspondence from the Department acknowledging receipt of the invitation or giving a response to it can be located upon the Court file.
The above Interim Orders were intended to last for a relatively brief period. To that end the proceedings were adjourned for a short period (to 1 September 2014) with the intention that a Minute of Consent Orders would be filed providing for the appointment of a Part 15 Expert and Orders would be made in Chambers per that Minute and listing the matter for Trial. Regrettably, that did not occur.
When the matter next came before the Court 1 September 2014 an Order was made for the preparation of a Family Report. That Report was prepared relatively expeditiously and was released to the parties by Order 24 February 2015. However, by that time the judicial resources of the Registry had been depleted by 40% and Hearing time was then not available for allocation.
The proceedings were adjourned for call over to 6 July 2015 and in expectation that the 2016 judicial calendar would then be available and hearing time would then be allocated as expeditiously as possible, albeit in 2016.
At call over Hearing dates were fixed for the matter, estimated to be a four day fixture. The matter was listed for Trial commencing 29 March 2016.
Prior to the scheduled Hearing, arrangements were made by the Independent Children’s Lawyer for the appointment of a Part 15 Expert to meet with the parties and assess their mental health (that being an issue of controversy between the parties and especially allegations regarding Ms Atkinson’s mental health). That Report was prepared with the participation of the mother only. The Report was released to the parties by an Order made in Chambers 15 February2016.
Prior to the Hearing, and of the Court’s own motion, the proceedings were relisted for mention and directions. This occurred as it became apparent that neither party had filed Affidavit material in accordance with Trial directions. Regrettably, this would appear to have become a common practice, almost a matter of course, at least in proceedings before the Parramatta Registry. I am conscious of that which fell from the Full Court in Tate & Tate(No.3) (2003) FLC 93-138, that any Order of the Court, including such trifling matters as directions for the filing of material in anticipation of hearing, are Orders of the Court compliance with which the Court expects.
Notwithstanding that neither party had filed material as directed and, more germanely, that there was then a limited period remaining prior to the scheduled Hearing, the Hearing dates were confirmed. This occurred on the basis that X deserved and required a determination of his future care arrangements as expeditiously as could be achieved in the circumstances. Fresh Trial directions were made and the parties clearly advised that the Hearing would proceed.
The Trial proceeded for the four days allocated. The Trial did not conclude in that time. The Trial was adjourned for a further two days to complete the evidence and submissions.
Regrettably, the resumption of Hearing was delayed by illness, although the matter eventually proceeded to finality on 10 and 11 August 2016.
The delay which has arisen in the final determination of these proceedings, a period of some two years from the date of filing, is highly regrettable although unavoidable in light of the resources available to the Court. It has resulted in young X practising an arrangement of time between the household of each of his parents which was intended to last for some few months rather than in excess of two years.
This matter should have been heard in a matter of months from its commencement and if the child’s best interests were genuinely to be treated as paramount that would have occurred and resources would have been available to have permitted it to be so.
It is noteworthy that during the course of the proceedings a number of Orders have been made requiring the parties to participate in Family Counselling Services. Those Orders were made with a view to the parties receiving real support, assistance, guidance and education especially as X is so young and these parties will have so many years of co-parenting before X reaches his majority.
The mother’s evidence satisfies me that she has, albeit with some delay, engaged with Family Counselling Services.
The father’s engagement with Family Counselling Services was also somewhat delayed and significantly so to the extent that the father did not, in fact, engage with any service until the weeks immediately preceding the Final Hearing of the matter. The father did not make any attempt to fulsomely engage with Family Counselling Services until the completion of the first four days of hearing and during the period that the matter was adjourned part-heard, being 2 years after the matter was commenced and Orders were made directing such engagement.
The father’s delay in engaging with services, intended for the father’s benefit but also intended to benefit X, was the subject of substantial criticism of the father during his cross-examination in the first stanza of proceedings. The father’s cross-examination had concluded at the point that the proceedings were adjourned part-heard (although his re-examination had not yet occurred).
The father’s cross-examination had revealed that Mr Atkinson was or had been engaged in significant litigation in other Courts. That litigation had not, by and large, been disclosed previously. This included litigation with Mr Atkinson’s former wife, Ms L, pending before Justice Watts of the Family Court of Australia, Sydney.
Had these other proceedings been revealed by the father at an early point in the proceedings, consistent with the obligation for full and frank disclosure applicable to all litigants, these proceedings would probably have been transferred to the Family Court of Australia. Indeed, transfer had been raised with the parties on a number of occasions. The transfer of the proceedings had been resisted by the parties, without the disclosure by Mr Atkinson of his other proceedings, and the parties warranted that the matter would be contained to 4 days of Hearing.
During his cross-examination the father also revealed that he had been involved in a number of family violence proceedings before various Local Courts. Only one of those proceedings had been disclosed previously by the father.
As a consequence of the above disclosures requests were made of each of the Family Court of Australia and the Bankstown, Burwood and Downing Centre Local Courts for the production of files held by them involving Mr Atkinson.
Those files were produced and leave granted to the parties (without objection) to inspect those files. Portions of those files (and in the case of two of the Local Court files, the entirety of the file) have been tendered.
Material considered
The written material before the Court comprises well over 1000 pages of evidence.
In the case of the mother I have read and considered each of the following documents:
a)A further Amended Initiating Application filed 18 December 2015;
b)The Affidavit of Ms Atkinson sworn or affirmed 29 February 2016 and filed 1 March 2016;
c)A Notice of Risk filed 26 May 2014.
Ms Atkinson was required for cross-examination. During her cross-examination Ms Atkinson was taken to a number of parts of an earlier Affidavit sworn by her 30 October 2013. I have, accordingly, also had regard to that Affidavit.
In the case of the father I have read and considered each of the following documents:
a)An Amended Response filed 24 March 2016;
b)A Notice of Risk filed 4 June 2014;
c)The Affidavit of Mr Atkinson sworn or affirmed 22 March 2016 and filed 24 March 2016;
d)A further Affidavit of Mr Atkinson sworn or affirmed 10 August 2016 and filed in Court that day;
e)An Affidavit of Ms M sworn or affirmed 4 March 2016 and filed 24 March 2016;
f)An Affidavit of Ms N sworn or affirmed 19 February 2016 and filed 24 March 2016;
g)An Affidavit of Ms B sworn or affirmed 13 March 2016 and filed 24 March 2016;
h)An Affidavit of Ms O sworn or affirmed 8 March 2016 and filed 24 March 2016;
i)An Affidavit of Mr A sworn or affirmed 19 February 2016 and filed 24 March 2016.
All witnesses in Mr Atkinson’s case were required for cross-examination. Mr Atkinson, Ms M, Ms N and Ms B attended for cross-examination and were cross-examined. Ms O and Mr A did not attend for cross-examination. Their evidence is, accordingly, admitted subject to weight.
During his cross-examination Mr Atkinson was also taken to certain parts of an earlier Affidavit sworn by him in these proceedings, being an Affidavit sworn or affirmed 28 October 2013. That Affidavit is, accordingly, also considered.
In addition to the material filed by the parties a significant number of documents have been tendered and admitted. These comprise:
a)Exhibit A – The Family Report prepared by Ms G and dated 23 February 2015. The Report was released to the parties by an Order made 24 February 2015;
b)Exhibit B – A Part 15 Report prepared by Dr R and dated 6 February 2016;
c)Exhibit A1 – Midwifery notes from the (omitted) Hospital dated 9 August 2012;
d)Exhibit A2 – Notes from (omitted) Hospital dated 13 February 2013;
e)Exhibit A3 – Ex Tempore Judgment of Justice Watts 13 July 2015;
f)Exhibit A4 – Orders made by Justice Watts 13 July 2015;
g)Exhibit A5 – A Child Dispute Conference Memo produced in these proceedings;
h)Exhibit A6 - COPS event entries 2 November 2015;
i)Exhibit A7 - Tagged medical records from Dr C;
j)Exhibit A8 - Tagged medical records from Dr M;
k)Exhibit A9 - Tagged medical records from (omitted) Medical Practice;
l)Exhibit A10 - Four payslips relating to the father;
m)Exhibit A11 - A letter from Catholic Care, (omitted) 24 March 2016 confirming the father’s attendance at appointments 10 and 24 March 2016;
n)Exhibit A12 - A number of academic certificates relating to the father, albeit in the name Mr T;
o)Exhibit A13 - A letter from the Department of Family and Community Services addressed to the father dated 16 March 2016;
p)Exhibit A14 - Police material as tagged;
q)Exhibit A15 - Material from the Department of Family and Community Services as tagged;
r)Exhibit A16 - Further material from the Department of Family and Community Services as tagged;
s)Exhibit A17 - A number of text messages between the parties;
t)Exhibit A18 - Correspondence from (omitted) Medical Centre dated 11 November 2015 (relating to the “forgery” of a document by the father’s brother and used by the father knowing of the difficulty);
u)Exhibit A19 - An Amended Response filed by the father in proceedings between himself and his former wife Ms L (proceedings (omitted)) filed 14 February 2014;
v)Exhibit R1 – Material from Dr D 11 April 2014;
w)Exhibit R2 - Records of Ms D psychologist;
x)Exhibit R3 - Material from (omitted) Women's Health Centre;
y)Exhibit R4 - A text message from the father’s phone dated 30 January 2015;
z)Exhibit R5 – A letter from the mother’s attorneys to the father’s attorneys dated 17 June 2016;
aa)Exhibit R6 - COPS event entry produced by New South Wales Police dated 10 June 2016;
bb)Exhibit R7 - Video footage from (omitted) Police Station 10 June 2016;
cc)Exhibit R8 - A letter from the Department of Family and Community Services addressed to the father by email 16 May 2016;
dd)Exhibit R9 - 2 certificates evidencing completion by Mr Atkinson of two specific courses;
ee)Exhibit R10 - Material produced by Dr S, (omitted) Medical Centre;
ff)Exhibit R11 - Court event outcomes produced by New South Wales Police with respect to Mr Atkinson;
gg)Exhibit R12 - Material produced by New South Wales Police with respect to an attendance by Police 23 September 2012;
hh)Exhibit R13 - COPS event entry 17 November 2005;
ii)Exhibit ICL1 – Material from (omitted) Family Medical Practice as tagged;
jj)Exhibit ICL2 – A Child Responsive Program Memo relating to the proceedings between the father and his former partner, Ms L, and involving the children of that relationship, being a Memo dated 8 May 2014;
kk)Exhibit ICL3 – A file produced by Burwood Local Court;
ll)Exhibit ICL4 – A file produced by the Downing Centre Local Court;
mm)Exhibit ICL 5 - A file produced by Bankstown Local Court with respect to Apprehended Domestic Violence proceedings between the Police (on behalf of Ms L and, at the time that the proceedings were commenced, the three children of the relationship between Ms L and Mr Atkinson) and Mr Atkinson as the defendant.
In addition to the above Exhibits, I have also had regard to a Judgment delivered by me (one of three delivered in these proceedings to date) following an Interim Hearing in an earlier tranche of proceedings. The parties were advised during the proceedings that the Judgment would be considered. That Judgment is dated 1 November 2013.
The Judgment enumerates (commencing on page 3 and concluding page 5) the material that was before the Court and considered on that occasion and each of the Exhibits identified within those reasons (12 in total) are also considered for the purpose of these proceedings. It should be noted that there is an extensive overlap between the material tendered on that occasion and that set out in the above list of Exhibits.
Chronology of events and evidence
Before proceeding to a discussion of evidence I propose to adopt and set out below, as representative of the findings made by the Court, the chronology of events provided by Counsel for Ms Atkinson. I do so on the following bases:
a)As will become apparent in a discussion of the evidence, I prefer the evidence of Ms Atkinson to that of Mr Atkinson. Whenever there is dispute on the evidence between these parents, I prefer and accept the evidence of Ms Atkinson in preference to that of Mr Atkinson;
b)Whilst I have been greatly assisted by the submissions of the Independent Children’s Lawyer, including through the provision of a mutualised and balanced chronology, the chronology provided by Counsel for Ms Atkinson is preferred in light of the above credit findings;
c)The chronology provided by Counsel for Ms Atkinson more fundamentally addresses Ms Atkinson’s evidence regarding family violence. As family violence is identified by Ms G, and accepted by the parties and the Independent Children’s Lawyer, as a fundamental and central issue to the determination of this case, the clear specification of Ms Atkinson’s allegations and the Court’s findings regarding such evidence is warranted and required.
Date Event Reference November 2010 M and former partner (“B”) separate. M at para. 8. 2011 M and B divorce. M at para. 8. December 2011 M and F commence relationship. M at para. 4. April 2012 (omitted) property and (business omitted) sold to F. M at para. 10. April 2012 M’s children from former marriage move in with B at B’s mother’s home. M at para. 11. (omitted) 2012 M and F marry. M at para. 4. After (omitted) 2012 and before 24 September 2013 M and F marriage registered in (country omitted). M at para. 4. May 2012 M and F move in together at (omitted) property granny flat. M at para. 23. May 2012 to November 2012 M spends time with children from former marriage every Sunday. M at para. 12. June 2012 F begins to be abusive and controlling towards M. M at para. 34. (omitted) 2012 M and F find out they are pregnant. M at paras. 24-27. June 2012 M told by medical specialists that she should rest for the sake of the pregnancy. M at paras. 25-26. 24 June 2012 M tells F that she needs to take rest for pregnancy. M at para. 27. June 2012 M and F argue about payment of deposit for door purchase, F yells, spits and hits M. M at para. 35. August 2012 M and F argue about M’s children from former relationship. M at paras. 38-40. August 2012 F kicks M in and around leg and stomach area during argument. F also sits on top of M and attempts to put cigarette out on her mouth. M at para. 40. August 2012 M’s brother is summoned to hear F’s grievances about M. M at paras. 43-45. August 2012 F threatens to burn B’s truck if M leaves. M stays with F. M at para. 45. (omitted) 2012 M finds out she has lost baby. M at paras. 28, 46-47. August 2012 M and F argue, F physically abuses M. M at para. 48. August 2012 M is told B’s truck has been burnt. M at para. 51. August 2012 M and F separate for 2 weeks. M at paras. 28, 63. August 2012 M and F resume relationship, move in together. M at para. 28. August 2012 M makes a statement to police about F’s abuse. M at para. 60. Mid-August 2012 M and F AVO matter listed for hearing 13 September 2012 M at para. 62. Late august/early September 2012 M and F resume relationship. M at para. 67. Early to mid-September 2012 F asks M to tell Court that she made everything up (referring to statement given to police) and to get a psychologist’s report to corroborate. M at para. 69. M visits psychologist with F posing as brother. M at para. 70. 13 September 2012 AVO matter dismissed and withdrawn. M at para. 71. September 2012 Police bring AVO against F for F’s former partner and their children. M at para. 17. October 2012 M and F separate for 1 week. M at paras. 29, 73-77. (omitted) 2012 M finds out she is pregnant. M at paras. 29, 78. Late 2012 to 6 September 2013 F argues with M, not approving of M’s visitation of her children from former marriage. M at paras. 13, 37. Arguments about visitations occur between M and F, sometimes physical. M at para. 13. M stops frequent time spending with children from former marriage. M at para. 13. February 2013 M visits midwife at (omitted), midwife discusses abuse and contact social work department. M at para. 83. February 2013 M speaks with social work officer. M at paras. 83-84. April 2013 M and F have argument, F attempts to choke M. M at para. 85. April 2013 M prepares to move out. M at paras. 87-89. April 2013 M and F talk, M decides to stay as she fears F would damage relationship with friends and family. M at para. 90. August 2013 M and F separate for 2 weeks. M at para. 29. July 2013 F asks M to support him in dismissing AVO against him. M at para. 18. 8 July 2013 M attends F’s solicitor’s office and prepares statement for F for AVO proceedings. M at para. 19. (omitted) 2013 M and F’s child born. M at para. 5. (omitted) 2013 FACS caseworker visits M and discuss child. M at para. 92. (omitted) 2013 M and child come home from hospital. M at para. 93. 16 July 2013 M and F have argument, F stabs M with car key. M at para. 93. 6 September 2013 Family Dispute Resolution with B. M at paras. 14, 94. September 2013 F takes M to solicitor’s office in (omitted) to sign a Binding Financial Agreement to assist F in FL proceedings with his former wife. F remains in the room with M while she consults with the solicitor M paras. 231-234 23 September 2013 M and F argue about M spending time with children from former marriage. M at para. 98. F drags M to the floor and beats M. M at para. 98. 24 September 2013 M and F separate for 2 weeks. M at paras. 6, 33. Between 26 September 2013 and 17 October 2013 F allows M to see their child only 6 times. M at para. 109. 28 September 2013 M asks F is she could spend time with their child. M at para. 102. 4 October 2013 M contacts F to arrange for removal of her furniture. M at para. 103. 12 October 2013 M finds that her furniture has been ruined by F. M at paras. 107-108. 16 October 2013 Interim orders made by FCC. M at para. 110. 22 October 2013 F texts M asking for address details in order to visit their child, in contravention of orders. M at para. 111. 1 November 2013 Further interim orders made by FCC. M at para. 112. After 1 November 2013 F would always contravene FCC orders. M at para. 113. November 2013 M and F consult (omitted) to resolve baby’s shared care. M at para. 118. Mid-December 2013 F comes to M’s house when child present. M at paras. 120-121. Mid-December 2013 M and F argue, F refuses to leave, F abuses M physically. M at para. 121. Mid-December 2013 M calls police, F leaves when police arrive. M at para. 122. January 2014 M and F resume relationship. M at para. 125. January 2014 M and F file Notice of Discontinuance at FCC. M at para. 125. January 2014 F approaches M and asks F to call Centrelink and change care to his custody. M does this. M at para. 127. February 2014 F approaches M and tells M that he does not want M’s children from previous marriage visiting. M at para. 130. February 2014 At their home, F refuses to let M see their child and punches M in the face. M at para. 132. February 2014 M calls police. M at para. 133. February 2014 Police arrive, call ambulance, M goes to (omitted) Hospital. M at para. 133. Mid-February 2014 F’s father visits, M cares for him and buys him clothes. M at para. 136. Mid-February 2014 M and F argue about M’s children from previous marriage, F becomes upset and takes M’s house keys. F locks all the doors and windows. M at para. 137. Mid-February 2014 M takes children from previous marriage to B’s home, is locked out of home. M at paras. 138-139. Mid-February 2014 F and his cousin come to M’s friends house to ask that M return home. M refuses. M at para. 140.
Mid-February 2014 M calls Domestic Violence Helpline, stays at (omitted) Women's Refuge. M at para. 141.
Mid-February 2014 After intervention by F’s family, M returns to matrimonial home. M at para. 142. End of February/early March 2014 F forces M to sign court form regarding their child’s custody and visitation. F drags M by hair, M signs out of fear. M at para. 143. Mid-March 2014 M , F, and their child move to 11 (omitted). M at para. 146. 12 April 2014 F humiliates M in front of childcare centre staff by making her feel like a slave. M at para. 149 14 April 2014 M and F argue about F’s treatment of M, F takes their child and leaves home. M at para. 151. 14 April 2014 M informed that F was making allegations against her. M at para. 153. (April?) 2014 F goes to (omitted) Police Station and makes complaint against M. M at para. 154. 15 April 2014 to 6 June 2014 M stops being able to see X. M at para. 155. 6 June 2014 F picks up child from supervisor Ms E’s home, argues with them and tells them he would not bring the child there any longer. M at paras. 161-162. 6 June 2014 M’s solicitors (“MS”) receive letter from F’s solicitors (“FS”) refusing to have child spend time with M unless M suggests an alternate supervisor or contact centre. M at para. 164, annex. “A”. 10 June 2014 M arrested while with daughter at (omitted) Police Station, for breach AVO in relation to F’s allegations. M at para. 165. 12 June 2014 F and F’s brother repeatedly bring child into presence of M while she is out having dinner. M leaves as she finds this difficult to bear. M at para. 166. 13 June 2014 MS letter to FS proposing F remain in car during changeover. M at para. 167, annex. “B”. FS letter to MS requesting supervisor nomination M at para. 168, annex. “D”. 13 June 2014 M offers nominations. M at para. 170. 14 June 2014 M’s nominated supervisor tells her that F has contacted her and she no longer wishes to be involved. M at para. 172. 16 June 2014 Remaining nominee tells M that F continuously calls her and tries to dissuade her from supervising. M at para. 174. 17 June 2014 MS letter to FS complaining about F’s communications and representations to nominee supervisors. M at para. 175, annex. “E”. 19 June 2014 F’s nominated supervisor (omitted) accepted. M at para. 177. 26 June 2014 MS letter to FS regarding concerns about (omitted). M at para. 179, annex. “I”. July 2014 Mother commences counselling with a Domestic Violence Counsellor at (omitted) Women's Health. M at para 237 9 July 2014 F arrives at changeover with unknown lady who offers anti-immunisation information to M. M at para. 183. 13 July 2014 Child runs fever while with M. At changeover M provides F with detailed list of how M had cared for child (medication dosage and timing, etc.). Later M finds out child went to hospital (F failed to inform M). M at paras. 185-186. 23 July 2014 M completes Parenting after Separation Course M at para. 236, annex “AG”. 1 August 2014 Upon going home from changeover, M discovers child has nappy rash, tells F. M at para. 192, annex. “L”. August 2014 M self refers to Brighter Futures Program M at para. 238 Mid-August 2014 to January 2015 F brings and sends different women to changeover. Attempts to pass on messages through these women. M at para. 188. September 2014 M is discharged from Brighter Futures Program M at para. 238 29 September 2014 M tells F that child was not feeling well, provides doctor’s letter stating opinion that viral infection the cause, and linked to childcare centre. M at para. 194, annex. “M”. 2 December 2014 FS letter to MS complaining about M’s care of child. M at para. 195, annex. “N”. 5 December 2014 M notices needle mark on child’s arm, discusses with F, and claims F took child for blood testing without M’s knowledge or input. F claims he told M about tests. M at para. 197, annex. “P”. 30 January 2015 M notices child has rash and oral thrush, neither present when she handed over child into F’s care. M at para. 198. 30 January 2015 F yells at M’s daughter during changeover. M at para. 199. 27 March 2015 Child is returned to M with three quarters of head shaved. M at para. 200. 12 April 2015 Child bruised while playing. M at para. 201. 13 April 2015 M and F exchange texts about child’s bruising. M at para. 201, annex. “R”. 13 April 2015 Police arrive at M’s house, F having made allegations that M had intentionally harmed child. M at para. 202. 24 April 2015 Child returned to M with scratches, M never informed of them by F. M at para. 203. June 2015 M ceases engagement with Domestic Violence Counsellor M at para. 237 3 July 2015 Child returned to M with large scratches on nose. M at para. 205. 13 July 2015 Orders made in Family Court at Sydney dismissing F’s parenting application in relation to the three children of his previous marriage. Watts J make orders that those child live with their mother and that she have sole PR for them. M at para. 235, annex “AC”. 8 September 2015 FS letter to MS making allegations about M’s care of child. M at para. 206, annex. “W”. 25 September 2015 M notices severe nappy rash when picked up from F, exchanges texts suggesting potty training, F does not respond on point. M at para. 207, annex. “X”. 12 October 2015 FS letter to MS making allegations of neglect and injury to child. M at para. 208, annex. “Y”. 16 October 2015 F at changeover yells and intimidates M’s son from car. M’s son claims to have seen F was taking photos of them. M at para. 209. October 2015 M places child on waiting list for speech therapy M at para. 222. 25 November 2015 Mr B, F’s cousin, approached M to settle matter out of Court M at para. 218. 30 November 2015 F brings Ms V to changeover. F clutches the child and refuses to let the child go with M. once the M takes the child F follows her out of the police station yelling abuse M at para. 217, annex. “AA”. 7 December 2015 F and M exchange texts over marks on child’s foot. F says he must report to police. M at para. 211. 25 January 2016 F tells M that the child has been seeing a speech pathologist M at para. 222. 29 January 2016 M attends on the child’s speech pathologist. Discovers that F has given an incorrect history of the child’s care to the practitioner M at para. 223. 11 February 2016 M receives call from Kids Clinic informing her F has appointment for child on 12 February 2016 and that changeover will take place at the Clinic. M declines to changeover at Kids Clinic M at para. 225. 12 February 2016 F spits in the direction of M as he is driving away from changeover M at para. 227
Also set out below is the chronology provided by the Independent Children’s Lawyer. As indicated above it is not suggested that there is any difficulty with or inferiority of this chronology. It is an entirely appropriate, mutualised discussion of the evidence prior to the testing of evidence. However, following the testing of evidence I make clear that Ms Atkinson’s evidence is preferred.
The chronology provided by the Independent Children’s Lawyer is included as it contains various further events, particularly the complaints by Mr Atkinson to medical practitioners, Police and the Department of Family and Community Services, regarding Ms Atkinson. Those complaints, I am satisfied from the totality of evidence, are groundless, baseless and suggestive of ulterior motive (including, but not necessarily limited to, evidence gathering or attempted forensic advantage) of Mr Atkinson.
(omitted) 1969
Date of birth of the father (presently aged 46 years).
(omitted) 1978
Date of birth of the mother (presently aged 37 years).
1998
Mother marries Mr H
(omitted) 1998
Father’s child A born
(omitted) 1999
Mother’s child W born
2001
FACS notified of ongoing domestic violence by father to his ex wife Ms L. (FACS records)
(omitted) 2001
Father’s child B born
(omitted) 2002
Mother’s child Y born
4.11.03
FACS advised father assaulted his ex wife Ms L (FACS records)
22.5.04
Police are called to domestic incident between mother and Mr B.
(omitted) 2006
Mother’s child Z born
06-11
Mother alleges she is employed by (omitted)
(omitted) 2008
Father’s child A born
Nov 2010
Mother alleges she separates from Mr H, children live with her at family home at (omitted) (Mo par 8.)
Nov/Dec11
Date of commencement of relationship between the parties.
11.12.11
Police are called to domestic incident at (omitted) between mother and Mr B, say they are living together. (Police records)
Apr 2012
(omitted) sold to Father, mother and father move to granny flat, mother’s children move to their paternal grandmother’s home, mother sees her children one day per week. (Mo par 10.)
2012
Parties marry in (country omitted),
May 12
Mother returns to Australia,
(omitted) 2012
Mother advised she is pregnant, may be miscarrying, father returns from (country omitted), mother alleges assault by father (Mo par 35)
Jun 12
Father alleges mother upends table, threatens to kill herself, hits herself with her fists, breaks mirror and holds glass to her wrist saying she wants to kill herself. (Fa par. 19)
Aug 12
Mother alleges assault by father, (par 38) mother miscarries parties separate for 2 weeks, police apply for AVO for mother’s protection.
Aug 12
Father alleges ultrasound finds no heartbeat, mother verbally abuses him and throws things around the house (Fa par 22.)
Aug 12
Father alleges that after termination mother says she is going to kill herself and slaps her face and pulls her hair, takes tablets and he puts his hand in her mouth and pulls them out. (Fa par 24.)
16.8.12
Father alleges parties reconcile.
23.8.12
Father’s ex wife Ms L alleges father punches her to head at childcare centre (FACS records)
Sep 12
AVO made against father for his ex wife Ms L and their children
Sep 12
Mother attends on Ms D psychologist, says her allegations of assault by father are false, her report is used by father in defence of the AVO application for protection of mother.
Sep 12
Father alleges mother asks her GP for referral to Ms D (Fa par 31.)
13.9.12
Father alleges AVO application against father for protection of mother is withdrawn and dismissed (Fa par 33)
Oct 12
Parties separate for 1 week, mother goes to refuge and stays at motel.
Dec12-Sep 13
Mother sees her children infrequently
Jan 13
Father alleges mother slapped his face when he told her to stop working at the (employer omitted) and then punched her stomach saying “I hope I die, I hope this baby dies.” (Fa par 35.)
13.2.13
Mother goes to antenatal appointment and tells social worker she is abused by the father. ((omitted) Hospital records)
Apr 13
Mother alleges father assaults her, parties separate for 2 weeks, mother signs lease on unit.
Apr 13
Father alleges mother slapped her own face and tore at her blouse and swore at him after an argument about her working, and she then left him for 5 days. (Fa par 36.)
May 13
Father alleges mother hit herself on her stomach and slapped her face after an argument and said “I am going to stab myself and kill the baby.” (Fa par 38.)
8.7.13
Mother makes statement to police, which she now alleges is false, to assist father to defend AVO application by his ex wife.
(omitted) 2013
Parties’ child X born
16.7.13
Mother alleges father assaults her (Mo Par 93.)
10.8.13
Father alleges mother takes X to Childcare centre and says “I am going, here is X and you can have him, as I am not coming back. I hate you and I hate him.” Mother then spent most of the next 6 weeks away from the (omitted) property. (Fa par 45).
23.9.13
Mother alleges father assaults her after they argue about her going to see her children. (Par 102)
23.9.13
Father alleges mother assaults him in presence of Ms M, throws remote at him, punches him on chest and face and scratches his arm and then leaves the property. (Fa par 47.).
24.9.13
Parties separate, mother leaves X with Mr Atkinson. (Mo Par 99)
Sep 13
Mother agrees with Mr H that mother sees children 3 days per week, daytime only.
8.10.13
Father alleges physical altercation between them when mother comes to visit X, and he makes report to police afterwards. (Fa par 48.)
13.10.13
Father alleges mother rings him and threatens to get someone to “chop his dick off” (Fa par 49.)
16.10.13
Interim orders, X to live with mother and spend time with father as agreed.
1.11.13
Interim orders for X to spend time with father for 5 hours 4 days per week.
Dec 13
Mother alleges father assaults her at her unit, police attend. (Mo Par 120)
23.12.13
Incident at father’s home, father refuses mother entry, police called, mother behaving irrationally, police schedule her, ambulance called and mother taken for psychiatric assessment. (FACS and police records)
Jan 14
Mother alleges parties reconcile and discontinue Federal Circuit Court proceedings. (Par 125.)
Feb 14
Mother alleges father assaults her and police and ambulance attend (par 132), parties then reconcile days later. (Par 134)
Feb 14
Mother alleges father tells her to leave the house and she goes to refuge at (omitted). (Par 139) Mother returns after a few days. (Par 142)
Mar 14
Mother alleges Parties move to new house at (omitted).
11.4.14
Parties attend Dr E together, mother swears at and is abusive to Dr. (Subpoenaed records of Dr E.)
14.4.14
Mother alleges she moves out of the home after the father sends a message saying he won’t return to the home unless she leaves. (Mo Par 153.)
26.5.14
Mother commences proceedings, does not see child from 15 April to 4 June. (Par 155.)
May 14
Mother commences part time work with (employer omitted). (Par 242.)
4.6.14
Consent interim orders for the mother to spend supervised daytime with X.
6.6.14
First spend time period pursuant to 4 June orders. Supervisors refuse to supervise again after father abuses them. (Mo par 160.) Parties cannot agree on new supervisor.
9.6.14
Mother’s child W moves to live with her. (Mo Par 163)
10.6.14
Mother arrested for breach of AVO on 6 June. (Mo Par 165.)
9.7.14
Interim orders for X to live with father Monday to Friday, and mother rest of week.
Aug 2014
Father commences taking X to his GP to be checked, on many occasions both before and after spending time with his mother. (Subpoenaed records of Dr T)
4.8.14
Parties argue at changeover at police station, father wants mother charged for breach of AVO because of text messages. Police read messages and refuse to take any action. X crying. (Police records)
11.8.14
Father makes report to police of scratch on X’s nose and above his lip. (Police records)
13.8.14
Father takes X to see Dr V paediatrician. (records of Dr T)
Sep-Dec14
Mother alleges she is engaged with Brighter Futures. (Mo Par 238.)
Oct 14
Mother moves from unit to house in (omitted).
2.10.14
Father takes X to Dr M (Subpoenaed records of Dr M)
Dec 14
Father takes X to specialist appointment without mother’s knowledge. (Mo par 197)
Dec 14
Mother’s children Z and Y return to live with her. (Mo par 163)
13.4.15
Father notifies police of bruise to X’s forehead, says it is intentional and asks police to charge mother for contravening AVO by messaging him. Police attend mother’s home, she says X jumped off the couch and hit the floor. (Police records)
12.4.15
Mo alleges X hits head on play equipment, causing a bruise and she advises father the next day when he enquires.
13.4.15
Police attend mother’s home to investigate complaint by father that she caused intentional harm to X. (Mo par 201 and 202)
14.4.15
Father takes X to paediatrician Dr M (records of Dr M)
13.7.15
Father’s application for parenting orders regarding his 3 elder children is dismissed. (Page 213 Annexures to mother’s affidavit.)
7.9.15
FACS notified of X having swollen nose and bruising under eyes when returned from mother’s care.
28.9.15
Father makes report to police of X having nappy rash and being allowed to play on slides. Police take no action. (Police records)
5.10.15
Father notifies police of bruises, bite mark and scratch on X when returned from mothers care. Police speak to mother and take no action(Police records)
16.10.15
Father makes report to police of X being carried across the road by his “12 year old” brother. Police take no action. (Police records)
2.11.15
Father notifies police re nappy rash and grazed knee and seeks AVO for his protection re mother due to her text messages. Police take no action. (Police records)
20.11.15
Mother is interviewed by Dr R.
2.12.15
Father attends Dr U for psychological assessment.
Dec 15
Father takes X to counsellor, paediatrician Dr N, and speech pathologist without notifying mother until late January.
29.1.16
Father arranges handover at Kids Clinic and psychologist notes that X is unsettled for 20 minutes after being handed to mother. (Page 104 of annexures to father’s affidavit.) Mother alleges X has high temperature and diarrhoea shortly after.
6.2.16
Dr R assesses that the mother is not suffering any mental illness, personality disorder or psychiatric disturbance.
I do not propose to discuss the evidence in great detail at least not so as to discuss the evidence of each witness serially or through a recitation of the totality of their evidence.
Whilst there are significant factual controversies between the parties the majority of these can be appropriately addressed by reference to aspects of the evidence rather than in its totality. I make clear that the totality of evidence identified above has been read and considered by me and the totality of evidence has exercised my mind in arriving at the findings of fact partially outlined above and which will be set out in far more detail below.
The majority of evidence of significance relates to that which is identified as the “central issues” and I will shortly engage in a more deliberate discourse regarding the evidence by reference to those issues.
General evidential issues
A number of significant evidential issues arise in these proceedings. I propose to deal briefly with a number of these issues and will touch upon further issues during a discussion of the evidence of the parties.
Inspection of material produced on subpoena
An issue arose on the fifth day of Hearing regarding the granting of access to electronic (video) records that had been produced by New South Wales Police.
On 15 June 2016 Mr Atkinson caused his solicitors to file a subpoena for the production of documents addressed to the Commissioner of the Police NSW. The subpoena sought the production of the following:
(omitted) Police station CCTV/video footage dated 10 June, 2016 and 13 June, 2016 from 10am until 10.30am depicting changeover of X (DOB (omitted) 2013) from his father, Mr Atkinson to his mother, Ms Atkinson (sic) from outside (front) of (omitted) Police station and from inside foyer.
The last date for production of documents in response to the subpoena was specified as 1 July 2016.
Notice was given to the mother’s attorneys and the Independent Children’s Lawyer of the issue of this subpoena by a facsimile transmission 29 June 2016, being one working day prior to the date for production of material. No issue is taken by the mother’s attorneys and the Independent Children’s Lawyer that they were, in fact, made aware of the issue of the subpoena and the production of material by New South Wales Police in response to the subpoena.
Material would appear to have been produced by New South Wales Police in the form of a DVD containing the video footage requested on or before the date fixed for production.
The subpoena to New South Wales Police issued 15 June 2016 was the only subpoena filed by Mr Atkinson’s attorneys on that date. On subsequent dates, namely 20 July 2016, further subpoena were filed by the father’s attorneys. By the time that those subpoena had been filed the material from New South Wales Police had been held in the Registry for over three weeks.
On 8 August 2016 a Notice of Request to Inspect the material produced by New South Wales Police was filed by the father’s attorneys, that being some five – six weeks after material had, in fact, been produced to the Court by the recipient of the subpoena, New South Wales Police. On the same date (8 August 2016) requests to inspect that which had been produced by the recipients of subpoena issued 20 July 2016 were also filed. That material was required to be produced to the Court by 3 August 2016 and had been so produced.
As a consequence of the delay in a Notice of Request to Inspect being filed by the father’s attorneys it had not been possible, prior to the resumption of the Hearing, for those representing the mother and the Independent Children’s Lawyer to inspect the material produced by any of the recipients of subpoenae. This is all the more concerning in the case of material produced by New South Wales Police given that this material had been produced some six weeks earlier and had laid in the Registry unable to be inspected for the entirety of that period.
When the matter was called on to resume the part-heard Hearing of the matter (day five) Counsel for the mother raised the inability to have previously accessed and inspected the Police material. It then became apparent that the material had been inspected by both the father and his attorneys on the preceding day (9 August 2016).
When explanation was sought as to the delay in filing a Notice of Request to Inspect it was submitted that the father’s attorneys had desired, presumably to save cost, to lodge, one consolidated Notice of Request to Inspect relating to all material produced on subpoena and that this desire had generated the delay in filing a Notice of Request to Inspect.
Significant difficulty arises with the above submission as a separate Notice of Request to Inspect was filed with respect to each subpoena. Thus, if there had been a desire to “economise” by filing only one Notice of Request to Inspect then this desire would appear to have been frustrated by the father’s attorneys and their actions.
As a consequence of the delay by the father’s attorneys in filing a Notice of Request to Inspect the mother’s attorneys and the Independent Children’s Lawyer had not been able to inspect material which the father had caused to be produced to the Court and which the father, through his Counsel, suggested was of the “utmost importance” to the proceedings and, in particular, the mother’s credit. It was necessary for the matter to be adjourned for more than an hour so that the parties might inspect this fresh material and determine what use was to be made of it.
Further, as no notice had been given that video footage was to be tendered (in a format incompatible with the Court’s AV system no less) it was necessary for assistance to be obtained from staff of the Sydney Registry so that tender could proceed and the material viewed in open Court (the Parramatta Registry having no such dedicated staff). This caused further delay and disruption to both Registries.
The above matters raise a number of concerns.
Rule 15A.06(2) of the Federal Circuit Court Rules 2001 provides that:
the issuing party [of a subpoena] must serve by ordinary service a copy of the subpoena on each other party, any interested person and any independent children’s lawyer in the proceeding.
It is immediately apparent that the above Rule does not provide a time period in which notice is to be given. A time period is, however, provided by rule 15A.13(1)(b) of the Rules being “… at least 10 days before the day stated in the subpoena for production”. On this basis notice was to have been given no later than 19 June 2016. Notice was not, in fact, given until the business day prior to the production date, namely, 29 June 2016.
One might well infer that the intent of the Rule is that notice would be given in a timely fashion and sufficiently prior to the date for production of material so as to give adequate notice to permit all concerned to consider their position, provide appropriate instructions to their attorneys and give due consideration to whether any objection might be raised. The purpose of notice in a timely fashion so as to permit any valid objection to be raised is reaffirmed by rule 15A.13(2) of the Federal Circuit Court Rules 2001.
Ultimately, notice was given prior to the date for production of material, albeit only one working day and thus frustrating the purpose and intent of the Rule.
Rule 15A.13 of the Federal Circuit Court Rules 2001 deals with the right to inspect material produced on subpoena. An entirely administrative process is adopted whereby the “issuing party” of the subpoena must, subject to certifying as to notice having been given to all other parties in accordance with the Rules, file a Notice of Request to Inspect. No time period is provided within which the Notice must be filed. Only the “issuing party” can file a Notice of Request to Inspect. Thus, whilst it is not the purpose or intent of the Rules, the “issuing party” can control access to the material that they have caused the production of.
The above “control” of access to material produced on subpoena, and as exercised by the father and his attorneys in this case, is analogous to a lock forward at the rear of the scrum choosing to keep the ball in front of his feet and in the scrum as the scrum pushes forward and with the intent of keeping the ball out of play whilst the ball is advanced forward and obtaining advantage.
Whether purposively or otherwise that is what has occurred in this instance with the father and his attorneys, some six weeks after material has been produced to the Court, material suggested to be highly relevant to the case, precluding access to that material to the mother, her attorneys and the Independent Children’s Lawyer. If purposive it smells of “Trial by ambush”. If not purposive it is unprofessional and contrary to the general obligation of frank and candid disclosure which binds all litigants.
Certainly, it was open to the mother’s attorneys and the Independent Children’s Lawyer to file an Application in a Case seeking to obtain an Order for access to the material produced by New South Wales Police. Such an action would have incurred further cost and should have been entirely unnecessary. The cost incurred would, in all probability, have been borne by the father and/or his attorneys.
Section 61DA of the Act provides the presumption of equal shared parental responsibility in the following terms:
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) 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.
As would be clear from the above provision, the presumption of equal shared parental responsibility does not apply when the Court is satisfied that a party has engaged in family violence or abuse.
No submission is put to the Court regarding “abuse”. Certainly, the findings that are made by me with respect to family violence would suggest that X has been present and has potentially been affected by family violence perpetrated by his father, Mr Atkinson, towards at least his mother, Ms Atkinson.
It may have been open to the parties or the Independent Children’s Lawyer (and no criticism is made for the absence of the submission) to submit that abuse might also be found. This would require, however, evidence to establish that X had suffered “serious psychological harm” as a consequence of exposure to family violence.
As no submission is made with respect to this issue it need not be pursued further other than to observe that for a child of X’s age, just turned three years of age, that any psychological harm might well be considered “serious”.
As would be apparent from the above discussion of evidence, a finding is made by the Court that Mr Atkinson has perpetrated family violence towards and upon Ms Atkinson. Thus, the presumption of equal shared parental responsibility does not apply.
Non-application of the presumption obviates the mandatory requirement imposed by section 65DAA of the Act to consider equal or substantial and significant time before other time arrangements. Non-application of the presumption does not preclude those time arrangements being considered, however, and I propose to consider all time arrangements at large.
Lest I am wrong in my finding that the presumption of equal shared parental responsibility does not apply, then I make clear that I would be satisfied, in any event, that the presumption is rebutted as being contrary to X’s best interests.
Whilst a more detailed consideration of X’s best interests, by reference to section 60CC of the Act shall be undertaken shortly, it is trite to observe that reasonable practicality (as set out in section 60CC(3)(e) of the Act and incorporating therein section 65DAA(5) of the Act) is a relevant and important part of considering and determining a child’s best interests (see for example MRR & GR [2010] HCA 4).
One of the few areas of factual commonality between these parties is with respect to their communication and its moribund nature. These parties have not demonstrated any capacity to co-operate, co-parent or make joint and consensual decisions with each other. The evidence overwhelmingly demonstrates that these parties cannot productively communicate. The evidence satisfies me that it would be unsafe for the parties to communicate and that any order requiring or permitting communication would afford to Mr Atkinson an opportunity to harass, cajole and intimidate Ms Atkinson.
If the parents are unable to agree and co-operate in any fashion then the obligations that would arise upon the making of an Order for equal shared parental responsibility and as prescribed by section 65DAC of the Act would be unattainable and nonsensical.
The complete absence of parental alliance, parental trust and demonstrated capacity to communicate, resolve difficulties and make decisions in X’s best interests, would suggest substantial and insurmountable impracticality in any arrangement which required the parties to so co-operate.
In light of the findings that have been made by the Court regarding the perpetration of family violence by Mr Atkinson upon Ms Atkinson, it would be entirely unreasonable and onerous to impose upon Ms Atkinson a burden to consult and endeavour to make joint and consensual decisions with Mr Atkinson. To that end and whilst it is submitted on behalf of Mr Atkinson that the Court should find that these parents have “differing parenting styles rather than family violence”, I make clear that this submission is rejected. What has occurred in the relationship between Mr and Ms Atkinson is, I am satisfied, family violence.
It is entirely disingenuous, if not offensive to suggest that differing parenting styles might be “mistaken” for family violence. Differences in parenting style do not involve one parent physically striking the other or engaging in behaviour towards them that is coercive and controlling and which generates fear in the other.
I am satisfied that Mr Atkinson’s behaviour towards Ms Atkinson has generated fear in Ms Atkinson and that the generation of that fear by Mr Atkinson has been deliberate and purposive of coercion and control. That is not a difference in parenting style. That is violence.
Those factors, individually and in combination, satisfy me that the presumption of equal shared parental responsibility cannot apply or, that if it applies, it is rebutted.
Primary considerations
I must commence with the primary considerations being:
a)The benefit to the children of having a meaningful relationship with both parents; and
b)The need to protect the children from physical or psychological harm.
The latter consideration is prioritised over the former by section 60CC(2A) of the Act. However, as would be apparent from the findings of fact made above, I am not satisfied that there is any need to protect this child from physical or psychological harm at least at this time. It is a real possibility in the future.
As is discussed above, there is some complexity in this case, in a consideration of the means by which X would best benefit from having a meaningful relationship with both parents.
Firstly, there are the concerns expressed above and particularly addressed by Ms G in her evidence as to Mr Atkinson’s parenting of X and the impact that Mr Atkinson’s parenting will have in the future upon X. That evidence would suggest that some caution would be exercised in approaching the practice of X’s relationship with his father and that this caution would urge towards far more limited time than is proposed by Mr Atkinson (albeit, that Mr Atkinson’s case proposes the predominance of care being provided by Mr Atkinson).
Secondly, there is the complex issue of how X might practice and best derive benefit from his relationship with each parent. It is clear from the evidence and the findings that are made that direct interaction between the parents generates fear and anxiety in Ms Atkinson and possibly X. That fear and anxiety would potentially impact upon Ms Atkinson’s capacity to cope, to parent and, ultimately, to maintain the meaningful relationship with X which I am satisfied and find that she presently has. This consideration would obviate against either substantial and significant time spent by X in his father’s care or the parties’ direct communication and contact with each other.
Whilst I am satisfied that Ms Atkinson has developed a meaningful relationship with X (to the extent that such language is valid with respect to a three year old child) I am less satisfied that X presently enjoys a meaningful relationship with his father.
The observations of Ms G suggest that X is far more comfortable and relaxed in the care of his mother than in the care of his father. The observations of Ms G suggests that Ms Atkinson is far better at soothing X when he is distressed and engaging with him in a manner that permits X to be calm.
Mr Atkinson’s evidence (one aspect of Mr Atkinson’s evidence that is corroborated by other sources) is that there are significant concerns with respect to X’s behaviour and general development in the care of his father. It is, after all, the behaviours that Mr Atkinson experiences in his parenting of X that has led to X engaging with a psychologist (albeit, a practitioner who would appear significantly partisan with the father by that which is offered through their Reports).
Mr Atkinson has been, until the matter was adjourned on a part-heard basis, less than diligent and attentive to X’s developmental needs, including a lack of regularity and frequency of attendance at speech pathology. It is probable that Ms Atkinson will be more diligent in addressing those matters having expressed herself clearly through her evidence that she holds those matters and issues of the child’s development and education generally, to be of significance and importance to her.
All of these matters cause me some concern as to how X might best and most safely continue and develop and practice a meaningful relationship with both parents.
By reference to the totality of evidence, I am satisfied that the proposals of the Independent Children’s Lawyer, as supported and adopted by Ms Atkinson, will best support, encourage and permit X to develop and practice a meaningful relationship with both parents. Such an arrangement will minimise the stresses brought to bear upon Ms Atkinson through her engagement with Mr Atkinson. Such arrangements will maximise calm and consistent care for X, which care is more likely to be provided by Ms Atkinson than Mr Atkinson.
In relation to X’s protection from physical or psychological harm I am satisfied, again, that this would support both relatively restricted time spent by X with his father and arrangements for changeover that will not require these parties to come into contact with each other but which will move changeovers away from the Police Station where they have occurred now for over two years. The need for such a change is another of the few areas of commonality between these parties.
I am conscious, as has been ascertained and advised to the Court by Ms Atkinson’s attorneys, that the Contact changeover Centre is not available on Sundays. This leaves the Court in a position whereby it must balance the possible further restriction upon X’s time with Mr Atkinson (to accommodate the non-availability of the Contact Centre on Sundays being when changeover would occur in accordance with the Independent Children’s Lawyer’s proposal) and the very real need for the protection of both Ms Atkinson and X from the conflict which has occurred at changeovers and which would likely occur whenever the parents are required to engage directly with each other.
I am satisfied that the above conflict should be resolved, as the prioritisation of section 60CC(2A) of the Act requires, by favouring protection. Thus, whilst I propose to accede to the proposals of the Independent Children’s Lawyer that time occur each alternate weekend, I will express that Order to provide for time to occur for a period not exceeding two days and nights per fortnight to occur, if at all possible on an alternate weekend basis but otherwise to commence and conclude at such times as the Contact Centre can accommodate for the purpose of supervised and facilitating a changeover.
In doing so, I make clear that if the Contact Centre can only accommodate, for example, a period each alternate weekend from Friday to Saturday, then time shall be for that period, as I am satisfied that X’s protection from conflict at changeovers and from direct engagement of his parents with each other, is of a greater priority than the quantity of time that might be spent with Mr Atkinson. Indeed, further exposure to conflict would potentially impact upon and undermine the meaningful relationship that X enjoys or is intended to develop with one or other of his parents.
Additional considerations
Views expressed by X
There is no evidence of any view expressed by X. At X’s age any evidence as to his views would be far from dispositive.
I do not accept, as is urged by Mr Atkinson, that X’s behaviours, troubling as they are and all the more troubling following the evidence of Ms N and particularly X’s difficulties in separating from his father and his distress when such separation is anticipated, is demonstrative of any view, wish or desire by X to remain in or to live in the predominant care of Mr Atkinson.
Whilst it is not directly related to any view of X, I am conscious of the evidence discussed above wherein it would appear that Ms Atkinson is far better able to soothe X and alleviate his distress than Mr Atkinson. That would suggest, contrary to Mr Atkinson’s suggestion, that X’s relationship with his mother is more secure, more meaningful and more beneficial to his future care and development.
This factor supports the relief proposed by the Independent Children’s Lawyer and supported by Ms Atkinson.
The nature of X’s relationship with each parent and others
The nature of X’s relationship with each parent is addressed above.
I am satisfied that X presently enjoys a superior relationship with Ms Atkinson than with Mr Atkinson. Ms Atkinson is better able to calm and soothe the child when he is distressed. Ms Atkinson is able to parent the child without the “hysteria” surrounding the child as generated by Mr Atkinson and as demonstrated by the child’s regular presentation to Doctors, regular reports to Police and other agencies and severe distress, such as the child is suggested to demonstrate and as observed by several witnesses, in the father’s care.
X also has important, developing relationships with his three elder maternal siblings. Those children are available to X within the mother’s home.
X does not have any relationship with his elder, paternal siblings. Mr Atkinson is not practicing a relationship with those children and those children (one of whom is now an adult) have expressed clearly, in the evidence before this Court, their desire to have no relationship (and on a reasoned basis) with their father. Accordingly, there is no reasonable likelihood that X will develop a relationship with those children, his siblings.
This factor supports the relief proposed by the Independent Children’s Lawyer and supported by Ms Atkinson.
The extent to which each parent has taken or failed to take the opportunity to participate in decision-making and spending time with X
Prior to the 2012 amendments to the Family Law Act 1975 this consideration was contained within section 60CC(4). That provision directed the Court to consider not only the extent to which each parent had failed to participate but the extent to which each parent had impeded the capacity of the other to do so. I propose to consider both propositions.
Ms Atkinson is criticised by Mr Atkinson for failing to participate in appointments that have been arranged by him relating to X’s care. This has included speech pathology and psychologist appointments.
On one occasion Ms Atkinson did attend a joint session (as is dealt with in the evidence above). Whilst it would appear that Ms Atkinson has been invited by Mr Atkinson or those practitioners to attend on other occasions (Ms Atkinson is criticised not only by Mr Atkinson but by those practitioners for declining to do so) I am not critical of Ms Atkinson.
In light of the findings of family violence that have been made by me it would be entirely unreasonable to expect Ms Atkinson to attend joint appointments with Mr Atkinson, to sit together and present a calm, united front in addressing matters relating to X. Indeed, the invitation, in those circumstances and in light of the findings that have been made, would appear inappropriate.
I am not satisfied that Ms Atkinson could validly be criticised for failing to participate in decision-making.
On other occasions Mr Atkinson has made arrangements for X and particularly appointments with paediatricians and other medical practitioners, of which Ms Atkinson has been entirely unaware. Mr Atkinson has either failed to give any notice to Ms Atkinson or has advised that appointments would proceed but without providing the details of the relevant practitioner or appointment.
There is no suggestion that Ms Atkinson has failed to comply with Orders made by this Court and so as to do other than ensure and facilitate X’s time with Mr Atkinson. In contradistinction, the evidence suggests that there have been occasions when Mr Atkinson has failed to comply with Orders, if not as to their terms then certainly their spirit.
Mr Atkinson has sought, unreasonably in light of the findings that have been made by the Court, to impose severe restrictions upon Ms Atkinson’s time with X, including the erroneous requirement for supervision. Even when such an Order was made by consent (when the parties were faced with the matter being not reached and Ms Atkinson was left with acceptance of Mr Atkinson’s proposal for supervised time or no time) Mr Atkinson has undermined the operation of those Orders through conflict with the supervisors nominated by him and so as to cause the withdrawal of them and leading to X spending no time with his mother.
Overall and having regard to the totality of evidence, I could not be satisfied that either parent has failed to participate in decision-making or spending time with X when that has been available and facilitated.
Overall and having regard to the totality of evidence, I am satisfied that Mr Atkinson has impeded the ability of Ms Atkinson to participate in decision-making and spending time with X on some occasions.
This factor supports the relief proposed by the Independent Children’s Lawyer and supported by Ms Atkinson.
The ability of each parent to promote, encourage and facilitate X’s relationship with the other
Prior to the 2012 amendments to the Family Law Act 1975 this consideration resided within section 60CC(3)(c) of the Act. I am satisfied that it remains relevant to consider the provision, not as it is a mandated consideration but because as would be apparent from the above discussion, I am not satisfied that any valid criticism has been raised or could be sustained as against Ms Atkinson. Some criticism is validly raised with respect to Mr Atkinson.
This factor supports the relief proposed by the Independent Children’s Lawyer and supported by Ms Atkinson.
The extent to which each parent has fulfilled or failed to fulfil their obligation to maintain X
The evidence does not permit any positive finding with respect to this factor.
Neither party presently provides financial support, by way of Child Support or otherwise, to the other parent.
Each parent provides for X’s needs whilst he is in their care.
This factor is somewhat neutral in the determination.
The likely effect of change in X’s circumstances
I am satisfied that a change in present arrangements is not only indicated as being in X’s best interests but is compelled. Both parents agree that it should be so. Both parents agree that the present arrangement is not meeting X’s needs.
The difficulties which arise for X in the present shared care arrangement will be continued or largely continued by Mr Atkinson’s proposals. True it is, as is submitted on behalf of Mr Atkinson, that a change to a nine day/five day per fortnight arrangement, by which shared care might be practised, will halve the number of changeovers or transitions in X’s care. That is a positive. Mr Atkinson’s proposal will not, however, affect any other positive change for X.
X would still be exposed to conflict between his parents at changeover. Indeed, this would likely increase substantially as Mr Atkinson’s proposal is for changeovers to occur at X’s day care centre, being the very centre owned and operated by (omitted). It is clear that staff at that centre, several of whom had been witnesses in Mr Atkinson’s case, have a less than positive opinion and attitude towards Ms Atkinson. Conflict would be significantly heightened.
Mr Atkinson’s proposals will not address the concerns that are discussed above as to deficits in Mr Atkinson’s parenting and the potential deleterious impact of those deficiencies upon X both short and long term. Indeed, Mr Atkinson’s proposals will accentuate those potentially deleterious effects.
It is important that X move away from the shared care arrangement that has applied for the last two years. Again, both parents agree, to differing degrees, that it is so. Ms G certainly suggests that the arrangement is failing X.
Again, it is regrettable that such an arrangement, intended to have operated for months rather than years, has continued with such disadvantage. This matter was simply “caught in the logjam” created by the judicial resources of this Registry reducing from 5 Judges to 3 Judges in a short and unanticipated space of time.
The arrangements proposed by Ms Atkinson and the Independent Children’s Lawyer will be a positive change for X. It will see X move to a predominance of care provided by Ms Atkinson who is, I am satisfied, the more competent parent. Ms Atkinson is better able to provide calm, consistent parenting to X, better able to soothe him when distressed and more insightful into his needs and more child focused in her parenting.
This factor supports the relief proposed by the Independent Children’s Lawyer and supported by Ms Atkinson.
Practical difficulty and expense
I incorporate herein the provisions of section 65DAA(5) of the Act, namely:
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
As is discussed above, these parents live in relatively close geographical proximity. That is, however, where the “closeness” of these parents ends.
Whilst I have rejected the submission put on behalf of Mr Atkinson that the differing parenting styles between these parents have been confused with or mistaken for family violence, it is readily apparent that these parents do, in fact, have different parenting styles.
Ms Atkinson is a far calmer parent and better able to soothe young X when he is distressed.
Ms Atkinson is better able to prioritise X’s needs above her own.
Ms Atkinson is far better able to demonstrate insight into X’s needs and the impact of external stimuli and behaviour upon X’s development than Mr Atkinson.
These parents have no capacity to communicate. No Family Counselling or other therapeutic assistance provided during the period that this matter has been before the Court, has assisted in addressing that reality. That is, perhaps, unsurprising given the findings of family violence that have been made by this Court. In light of those findings, being that Mr Atkinson has perpetrated coercive and controlling family violence upon and towards Ms Atkinson, it would be unreasonable to expect that the situation would be any different. In those circumstances, it would be unreasonable and onerous to expect that Ms Atkinson would engage with Mr Atkinson or that any such engagement would be safe, productive or beneficial to X.
The impact of the present arrangement and the advantageous impact of future arrangements as proposed by the Independent Children’s Lawyer and Ms Atkinson is already addressed above.
This factor supports the relief proposed by the Independent Children’s Lawyer and supported by Ms Atkinson as to X’s future living arrangements and the allocation of parental responsibility.
Capacity of each parent
As should be apparent from the above discussion of evidence, I am satisfied that Ms Atkinson is the more capable and competent parent. On that basis Ms Atkinson should forthwith assume a predominance of care for X.
The predominant care that has been provided for X by Mr Atkinson has failed to fully and properly meet X’s needs and would not, I am satisfied, meet X’s needs in the future as well or to the same standard as Ms Atkinson’s care of X would.
This factor supports the relief proposed by the Independent Children’s Lawyer and supported by Ms Atkinson.
Maturity, sex, life style and background of X
X is a little boy who has, during the course of this tranche of proceedings, turned three years of age. Litigation between his parents first commenced when X was three months of age.
Conflict has been circumjacent to X’s life. X was born into conflict and conflict has continued unabated since his birth. That conflict must end or at least diminish if X is to have any reasonable prospect of achieving his full potential in life.
X, at his age, is entirely dependent upon others for the identification and address of his needs. X cannot bathe, clothe or feed himself. X cannot and should not be responsible for identifying risks to his welfare and being protected from those risks.
One of the difficulties that has arisen in this case, as I am satisfied the totality of evidence demonstrates, is the perception or manufacture of risk and concern of risk by Mr Atkinson. Mr Atkinson has seen risks to X which have not existed and has created disadvantage for X as a consequence. This has included X’s unnecessary presentation to Doctors for regular, weekly checks prior to spending time with his mother and upon returning from his mother. This has included reports to Police, the Department of Family and Community Services and other agencies about trivial and “usual” childhood injuries experienced by X.
I have, in these reasons, referred to a degree of “hysteria” surrounding X when in the care of his father. Whilst that term is not used by the Family Report Writer Ms G, similar and perhaps more substantial concerns are raised by Ms G should X continue to be parented by Mr Atkinson in the fashion that the evidence demonstrates that he has been and which Ms G directly observed. No such concerns exist regarding Ms Atkinson’s care of X.
Both parents are from (country omitted) or a (nationality omitted) background. Neither has raised any issue of cultural practice as a relevant consideration in these proceedings nor have they led any evidence regarding their proposals for future cultural practice. That factor, accordingly, cannot be addressed.
This factor, overall, supports the relief proposed by the Independent Children’s Lawyer and supported by Ms Atkinson.
Aboriginality
Aboriginality is not a relevant consideration in this case as neither parent nor X identifies as Aboriginal.
The attitude towards the responsibilities of parenthood demonstrated by each parent
I do not propose to re-canvas or repeat that discussed above. My comments with respect to this factor permeate these reasons.
The only additional comment that I would add, by reference to authorities such as Merryman (1993) 116 FLR 87, is the concern that I hold as to Mr Atkinson as a “role model” to X in light of his perpetration of substantial family violence, including in X’s presence, and the real possibility that X might be exposed to such behaviour in his father’s care balanced against the probability that X will not be exposed to that behaviour in the mother’s care.
This factor supports the relief proposed by the Independent Children’s Lawyer and supported by Ms Atkinson.
Family violence
I do not propose to further canvass issues of family violence at this time. I have canvassed them as a separate consideration in the above reasons.
This factor overwhelmingly supports the relief proposed by the Independent Children’s Lawyer and supported by Ms Atkinson.
Avoidance of future proceedings
I have no confidence that any Order which could be made by this Court at this time will avoid future proceedings. That said, however, I am conscious that the arrangements proposed by Mr Atkinson will not meet young X’s needs and certainly will not meet them as well as the proposals of the Independent Children’s Lawyer and Ms Atkinson. On that basis alone the making of Orders as sought by Mr Atkinson is contraindicated.
The making of Orders, which the Court has no confidence would meet the child’s needs, would also likely and far more inevitably lead to future proceedings as the failure of those arrangements to meet the child’s needs can be readily predicted.
The best Orders that can be made to avoid future proceedings are clear, certain and specific Orders and Orders which obviate against the need for these parents to engage with each other or engage in joint and consensual decision-making.
This factor lends further support to the making of an Order allocating sole parental responsibility for major issues decisions to Ms Atkinson. This factor also lends support, as regards X’s future living arrangements, to the relief proposed by the Independent Children’s Lawyer and Ms Atkinson.
I propose to accede to the proposals advanced by the Independent Children’s Lawyer and Ms Atkinson.
Accordingly, and for the above reasons I make Orders as follows (see Orders).
I certify that the preceding five hundred and fifty-six (556) paragraphs are a true copy of the reasons for judgment of Judge Harman
Date: 2 September 2016
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