AUBREY & ELLERBY
[2011] FMCAfam 535
•15 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AUBREY & ELLERBY | [2011] FMCAfam 535 |
| FAMILY LAW – Parenting dispute – significant cultural issues arising from mother’s abandoning more conservative Muslim lifestyle – mother primary carer of child – father seeking child to live with him and spend limited time with the mother – orders made as proposed by Independent Children’s Lawyer. |
| Family Law Act 1975, ss.60B, 60CC, 60CC(2), 60CC(3), 60CC(3)(a), 60CC(3)(b), 60CC(3)(c), 60CC(3)(d), 60CC(3)(e), 60CC(3)(f), 60CC(3)(g), 60CC(3)(i), 60CC(3)(k), 60CC(3)(l) Evidence Act 1995, s.140 |
| Goode v Goode [2006] FamCA 1346 |
| Applicant: | MR AUBREY |
| Respondent: | MS ELLERBY |
| File Number: | MLC 3294 of 2010 |
| Judgment of: | Burchardt FM |
| Hearing dates: | 2 & 6 May 2011 |
| Date of Last Submission: | 6 May 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 15 June 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr R.N. Hoult |
| Solicitors for the Applicant: | Lewenberg & Lewenberg |
| Counsel for the Respondent: | Ms R.S. Sleeth |
| Solicitors for the Respondent: | Thexton Lawyers |
| Counsel for the Independent Children’s Lawyer: | Mr N.M. Eidelson |
| Solicitor for the Independent Children’s Lawyer: | Peter Lynch |
ORDERS
The child of the marriage [X] born in 2007 (“the child”) live with the mother.
The mother have sole parental responsibility for the child.
The father spend time and communicate with the child as follows:
(a)On each alternate weekend from 10:00 am Saturday until 4:00 pm Sunday;
(b)from 10:00 am until 4:00 pm on each alternate Thursday; and
(c)on Father’s Day from 10:00 am until 4:00 pm.
The father and mother be restrained as follows:
(a)From denigrating the other to or within the hearing of the child; and
(b)from discussing these proceedings with the child or within her hearing.
The father attend a post-separation parenting course and notify the mother upon completion of same.
The mother be at liberty to make decisions in relation to the child’s education and she shall inform the father of the kindergarten, pre-school or school she has decided to enrol the child in.
Each of the father and the mother notify the other without delay of any medical injury suffered or attention received by the child from a medical practitioner during their period of care for the child.
The Oder appointing the Independent Children’s Lawyer be discharged.
AND THE COURT NOTES THAT:
Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Aubrey & Ellerby is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 3294 of 2010
| MR AUBREY |
Applicant
And
| MS ELLERBY |
Respondent
REASONS FOR JUDGMENT
This case is all about the best interests of a little girl, [X], born in 2007. There are significant disputes about parental responsibility and with whom the child should predominantly live.
The Independent Children’s Lawyer seeks orders consistent with the family report, a position which the mother has, in the ultimate, also adopted. Those orders would see the child live with the mother and spend time with her father each alternate weekend from
10:00 am Saturday until 4:00 pm Sunday, and for a day during the alternate week. The family consultant also recommended that both parents attend a post-separation parenting course and that the mother be given sole parental responsibility.
The father, by way of contrast, says that the child should live with him all the time, save for one overnight visit per week, such night to be chosen by the mother.
For the reasons that follow, I propose to make orders as sought by the Independent Children’s Lawyer.
The facts that are either agreed or not controversial
The father was born in 1972 in a village in north Lebanon. He did not come to Australia until November 2006 (see father’s application for divorce filed 18 June 2010). That arrival was in contemplation of what was to be an arranged marriage with the respondent. The marriage took place, it would appear, in 2006. Notwithstanding this, the mother’s position was that the marriage rites had not been fully completed. The marriage was consummated in 2007, and it is the mother’s case that this was by rape, which the father denies. Whichever’s version of events is true, [X] was plainly conceived either on that occasion or very shortly thereafter, given her date of birth.
The mother was born in Australia to what I would describe as an Australian-Lebanese family in 1989, according to documents filed by the husband such as the initiating application and the application for divorce. I note that while her date of birth does not appear to be readily ascertainable from the materials, the family consultant described the mother in early 2011 as being 24 years old.
Assuming that, contrary to the assertion by the father, Ms Ellerby was in fact born in 1987, she would have been about 19 at the date of the marriage to the father.
Notwithstanding her youthful age, the mother had been in a previous arranged marriage at a date not ascertainable from the materials. The mother’s affidavit filed 18 May 2010 asserts that the relationship was physically abusive, and that she had given birth to a son on 20 March 2005, who tragically died on 21 July 2006.
During the marriage, the parties appear to have lived what might be described as a relatively conservative Muslim lifestyle, and by this I refer in particular to the fact that the mother wore the hijab throughout.
Following separation in April 2009, and at around that time, the mother decided no longer to wear the hijab. Although not stated in terms in the evidence, it seems clear from all the material taken as a whole that the mother also took a decision to dress in a less conservative fashion more generally, and decided, at least to an extent, to adopt a lifestyle in which a more conservative Muslim approach would not obtain.
The matters of controversy
It is the father’s case, asserted since the beginning and maintained through to trial, that the mother’s health is a serious problem. The father maintains that the mother has serious mental health issues and has heart problems. He says that these make it unsafe for her to be the primary carer of the child.
The father also says that following separation, he in effect remained on good terms with Ms Ellerby, whom he saw regularly and whom he said in evidence spent regular nights with him throughout almost the entirety of the post-separation period. According to him, this even included the immediate post-separation period when the mother and [X] were living in a women’s refuge. He said that the mother told him where she was, and that they met daily. Under cross-examination by counsel for the Independent Children’s Lawyer, the father went so far as to assert that the parties had never in truth been separated for any prolonged periods.
This was vividly denied by the mother, who maintained that such contact as there had been between them had been much more limited. The mother was driven to concede that she had spent the night of New Year’s Eve with the father at a hotel in [suburb omitted] but asserted that they did not sleep together, rather she slept in a double bed with [X].
The mother asserted that the relationship was characterised by abuse, both physical and more particularly, verbal. She asserted that the father had, and indeed continued to an extent to do so, called her such things as a slut, a bitch and/or a prostitute.
All of this was vividly denied by the father.
I do not propose to set out at length the various counter-allegations the parties made against each other, because in the ultimate my conclusions are clear. It is fair, however, to characterise the father’s assertions as being as follows:
a)the mother’s health problems make her an inappropriate primary carer for the child;
b)he was always very much a hands-on father and is able to continue to be so by virtue of his work circumstances;
c)in any event, if [X] were to live primarily with him, she would also be able to be cared for by his new fiancée, Ms M.
The mother’s position, by way of counterpoint, is that:
a)she has no mental health or physical problems;
b)she was always been the primary carer of the child;
c)the father is not in any way a hands-on father and would struggle to in any way properly care for the child.
It should be noted that there was a significant incident on 22 February 2011 at handover at a police station. It is the mother’s case that on this occasion the father became abusive and screamed at her, uttered the traditional Muslim words of divorce three times and attempted to prevent her from leaving in her car by placing the child in front of him, under the car’s front right wheel.
The father denied any of this, save that he admitted that he divorced her (although they were already divorced pursuant to the application to this Court).
The father said he had been outraged because they had been discussing reconciliation, and he even advanced her $2,000 shortly beforehand to assist in gaining alternative accommodation. He says that he heard her on the telephone to someone he assumed was her boyfriend, from whom she had previously, according to him, said she had separated. This was what provoked him to utter the Muslim words of divorce.
The mother denied that there had been any discussion of reconciliation or any payment of $2,000. She denied having another partner (a denial I accept) and asserted that the father did indeed act as she alleged.
It should be noted that, following this event on 22 February 2011, the father met his fiancée, Ms M, only a short time thereafter. In his evidence in Court, he said they had met five or six weeks previously, and this was almost immediately after his final (as he would put it) separation from the mother.
The issues as to the father’s and mother’s attitude towards the Muslim religion
This issue occupied a lot of time at the hearing. It should be stated at the outset, as I did in Court, that it is not the Court’s task to make any kind of comparative analysis as to what might be said to be the mutual worth or validity of any religion, including the Muslim one. The question in this case is the best interests of the child.
Nonetheless, it is not possible to avoid some measure of comment about these issues which, it must be said, were central to the parties’ cases and the way they were run.
It was the father’s case that while he was himself a devout Muslim, he did not come from a part of Lebanon in which everyone was so conservative. He asserted that in the village in which he grew up most marriages were not arranged. He said that he had no objection to the mother wearing whatever sort of clothes she wanted, and that whether or not people wore the hijab was a matter for them. He said that while he would like his daughter to go to an Arabic school so that she could speak his language, nonetheless in the ultimate it would be a matter for the daughter to choose, in time when she was old enough, what sort of education she herself wanted. He denied that he would force his daughter into an arranged marriage and stated, correctly enough, that it is early days to be considering such a matter.
The father denied insulting the mother, either in her presence or in front of [X] when the mother is not there. He denied discouraging his child from playing with non-Muslim children.
The mother asserted that the father did indeed insult her, as I have said, calling her variously a whore, a bitch and/or a prostitute. She said that the conduct of the child shows beyond doubt that [X] has been told that it is forbidden or, at the very least, bad to play with non-Muslim children. She says that the husband despises her for not wearing the hijab and for wearing clothing that is less modest than was formerly the case.
What the parties told the family counsellor
Ms G, the family counsellor, produced a family report, and gave evidence and was cross-examined. It is sufficient to say, as a general proposition, that Ms G was an excellent witness who was clearly telling the truth, and equally clearly making observations well within the area of her professional expertise.
Ms G’s position, both articulated in the report and in her oral evidence, was that she had seen the parties three times and that on each occasion she had been given different accounts of the events by the parties. She rightly observed that there were issues as to the credit of both the parents and that this made producing recommendations difficult, albeit that in the end she came to clear views.
At paragraph 21, Ms G recorded that at the third interview in April, the father was supported by his fiancée, Ms M. “They indicated at this time that they were introduced approximately 6 weeks ago and plan to be married in a few weeks time.” Mr Aubrey told
Ms G “he now believes that Ms M will be able to assist him with [X]’s care in the future.”
At paragraph 22, Ms G recorded that during each interview with Mr Aubrey, he was asked to share his understanding of [X]’s developmental needs, and on each occasion he was unable to answer this question. At paragraph 38 (as amended during the hearing),
Ms G recorded that:
“During the second child observation session, when it was time to leave the playroom Mr Aubrey was reluctant to end the session and indicated that [X] did not wish to leave him. Despite assistance and encouragement from the Family Consultant and the child carer Mr Aubrey was reluctant to place [X] back on the ground and leave the child care room as requested. [X] became more and more distressed as time progressed. At one point the child carer assisted the situation by distracting [X] with toys. While [X] was observed to lean out of her father’s arms to enable her to engage with the activities presented by the child carer, Mr Aubrey continued to hold on to [X] stating that [X] did not wish to leave him. At the end of the session, [X] needed to be physically pried off her father while Mr Aubrey did not assist in handing [X] to either the Family Consultant or the child carer. This situation was observably extremely distressing for [X].”
At paragraph 41 and following, Ms G reported an incident during the third series of interviews in April 2011. [X] refused to play with a young, blonde, four-year-old little girl who wanted to play with her, and stated spontaneously, “baba says it is Haram.” [X] then explained to her mother that she was not allowed to play with non-Muslim children.
During oral evidence, it became apparent that Ms G had written that phrase down verbatim at the time and had looked up the words “baba” and “haram” on the internet, receiving translations of “father” and “forbidden” respectively. At paragraph 54, Ms G recorded:
“Upon the parents’ separation, Ms Ellerby’s ‘defiant’ behaviours in particularly (sic) her removing her ‘Hijab’, continues to bring tremendous shame upon her husband and family. As a result Mr Aubrey is concerned that Ms Ellerby is “unfit” to raise [X] according to what he believes to be acceptable fashion. In response, Mr Aubrey is currently focused on instilling upon [X] that she is Muslim (and her mother is not) and teaching her important tenets of her religion and culture.”
During her interviews with Ms G, the mother told her that she was completely well, and that her heart palpitations and chest pain in October 2009 arose from stress as a result of the abuse she was subject to by Mr Aubrey and various other family members for removing her hijab. Ms G noted that during the interviews from July 2010 to
6 April 2011, Ms Ellerby “did not present with any symptoms of depression/anxiety”.
In his oral evidence, the father, as I have already said, denied a number of the things that Ms G had reported him to have communicated to her, including most particularly his assertions that he was concerned by the mother’s style of dress, her decision to remove the hijab, her fitness as a mother and so on. It is not necessary to set them out in full because in effect, the father denied having any such views.
The difficulty with this assertion is, of course, that Ms G confirmed, entirely credibly, that the father did indeed say to her what her report recorded.
Findings as to the credit of the parties
As may perhaps already be obvious, I am not able to avoid the conclusion that the father’s evidence was untrue. Whether he knew it to be untrue or whether his mind underwent some process that enabled him to say things that are utterly inconsistent, only he will know. I pay full regard to the fact that the father was giving evidence through an interpreter and that he would naturally be, to an extent, defensive and confused in a Court proceeding conducted in a language he does not speak and in a legal system entirely alien to him. Nonetheless, a number of objective indicia make it quite clear that he was not being truthful:
a)He maintained in his oral evidence that the parties had never really been separated. He was quite unable to explain why, on the divorce application, he gave the date of separation at paragraph 14 as 23/04/2009 and at 15(a), confirmed that at the date of separation, both parties regarded the marriage as over, and at 17(a), that the parties had not lived together as husband and wife since the date of separation.
The divorce application is, of course, sworn or affirmed, and the father appears to have affirmed it before a police officer. There is no attestation that the document was translated to him, but the fact is that he signed it and he intended to and did obtain a divorce as a result of it.
b)The father was strongly critical of the mother for having another boyfriend when he saw Ms G, but denied being concerned about this in Court.
c)The father expressed strong concern about the mother’s style of dress to Ms G, but denied it in Court. It is telling that when describing her dress in his oral evidence, he referred to her dress at the time after which she had taken off the hijab as being “even worse” than what she was wearing now.
d)The father denied being in the business of telling his child that it was forbidden or otherwise bad to play with non-Muslims, but the evidence of Ms G makes it plain that he does.
e)The father expressed to Ms G that the mother had brought great shame on her family by ceasing to wear the hijab, but denied having any such concerns in Court.
The above are only illustrative. Given that I have no doubt
Ms G’s observations are entirely correct, the conclusion that the father changed his story and told the Court things that were untrue in his oral evidence in a bid to improve his position in the case is utterly inescapable.
The mother’s evidence, while in part more credible than the father, also had its difficulties. Her professed fear of the father simply cannot sit with the photographs annexed to the father’s affidavit filed 12 April 2011 as KLA11, and more particularly, KLA12. These show the mother having a fine old time with the father. They are, I am afraid, utterly inconsistent with her assertions of ongoing fear.
Furthermore, a number of the mother’s answers, particularly in relation to her experience as a child educated at a Muslim school, were self-serving and evasive, and in my view unsatisfactory.
Nonetheless, I should make it clear that in the main, while the mother probably had more to do with the father than she will now admit after separation, I accept the mother’s evidence. I also note, to the mother’s credit, that she was delighted when Ms G informed her that the father had re-partnered with Ms M. Her response in this regard is entirely creditable.
Added yet further to the various difficulties with the father’s evidence is that he denied calling the mother a whore, a bitch and/or a prostitute but went on to add gratuitously, “Maybe she’s describing herself.”
However much he might seek to deny it, it is obvious that the father regards the mother in this way, and his denials are dishonest.
Putting the matter in the round, the father abhors the mother for no longer adhering to the style of life that he would wish her to. I have no doubt that he denigrates her to the child, and I accept the mother’s evidence that when [X] returns from her father, she makes a number of derogatory remarks to her mother, and indeed, to her grandmother, which are entirely inculcated by the father.
Findings on the more important disputed facts
Ms G has offered the opinion that the mother’s health is no cause for concern, and I accept that. The father’s continuing assertions of the mother’s ill health are misguided. While the mother was clearly depressed following the tragic ill health and death of her child in 2005 to 2006, the thesis that this makes her some sort of danger to [X] now is fanciful.
Furthermore, I have no doubt that [X] has been in the primary care of her mother all her life and has a primary attachment to her. The father was unable to see how inappropriate his behaviour at the assessment was, and he was unable to articulate, despite being asked to do so, anything as to what [X]’s developmental needs are. Putting it shortly, as Ms G says and I accept, the mother shows insight and the father does not.
The mother does not wish to lead a more conservative Muslim lifestyle and she is perfectly entitled to do so, just as the father conversely is also entitled to lead a conservative Muslim lifestyle should he so desire. The tension, however, between their two positions is plainly a difficult one, and is one in which [X]’s needs need to be placed at the forefront.
The legislative scheme
The approach the Court should adopt to the relevant provisions of the Family Law Act 1975 (“the Act”) is helpfully summarised at paragraph 65 of the decision of the Full Court of the Family Court in
Goode v Goode[2006] FamCA 1346. I adopt the methodology therein indicated.
The first question the Court has to consider is whether the statutory presumption of equal shared parental responsibility applies. It must be applied unless there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child or family violence. Nonetheless, the presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s.61DA(4)).
In this case, it is the position of the Independent Children’s Lawyer that the mother should have sole parental responsibility. This submission derives from paragraph 62 of Ms G’s report, which is in these terms:
“Given the diverse views of the parents their high conflict and their lack of communication it is unlikely that the parents will have the capacity to make joint decisions for [X] in the future. If the Court finds that the parents are unable to make joint decisions regarding [X] it is recommended that parental responsibility of [X] rest with the mother.”
I have no doubt that the parents will not be able to cooperate in any sensible way over [X]’s best interests. Their communication is terrible. It is to be hoped, as the mother does, that if the father marries Ms M, she may act as a more helpful conduit, but that is wholly speculative at this stage.
Ms G’s report says, paragraph 60:
“[X]’s current parenting arrangements are presently disrupting her essential primary attachment relationship with her mother and it is strongly recommended that [X] is returned to her mother as her primary carer with provision for her to spend regular time with her father. There is currently significant research indicating that shared care arrangements for young children do not meet children’s developmental needs particularly in situations of high conflict and low communication. Given these factors, a shared care arrangement is clearly not in the best interests of [X] as it is envisaged there will continue to be significant conflict between the parents in the future.”
In these circumstances and given Ms G’s findings of the father’s lack of insight and that I find his lack of insight is further instanced by his obsession with the mother’s alleged health difficulties and with her re-partnering (even though she has not done so), it is clearly in [X]’s best interests that the mother have sole parental responsibility.
The presumption being rebutted, the Court does not necessarily have to consider the issues of equal time or substantial and significant time within the meaning of the Act.
Nonetheless, I think it is appropriate to make observations about both these alternatives. First, equal time is plainly not in [X]’s best interests for the reasons described by Ms G.
Substantial and significant time is not recommended by Ms G because she feels, as I have set out above, that [X] needs to spend a lot more time with her mother to re-establish and maintain her primary attachment in her best interests. It is Ms G’s recommendation that time start at one weekend, including an overnight, each alternate weekend, and one other day during the week. That is not substantial and significant time within the meaning of the Act as it does not involve weekday overnights.
Accordingly, where “neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests,” then the issue is at large and to be determined by the Court in accordance with the child’s best interests.
Those best interests are ascertained by a consideration of the objects and principles in s.60B, and the primary and additional considerations in s.60CC of the Act.
That does not require, in the circumstances of this case, any detailed further consideration of the objects in s.60B. It will be apparent, I trust, that I have had appropriate regard to them from the tenor of these reasons for decision, and I confirm that it is desirable for the child to have the benefit of both parents having a meaningful involvement in her life, but also that it is necessary in the context of the disputes between the parties, and the risks to [X] arising from them, to seek a spend-time regime that is going to protect her from such difficulties.
The above remarks also, in my view, sufficiently traverse the primary considerations set out in s.60CC(2). I turn now to s.60CC(3).
The child has not expressed any views but clearly has a very good relationship and primary attachment to her mother, and also clearly loves her father (s.60CC(3)(a)).
The child has a primary attachment to her mother and loves her father, and although no direct evidence was given of this, it seems clear that she has a very good relationship with her maternal grandmother. She would appear to have at least an incipient relationship with
Ms M (s.60CC(3)(b)).
I cannot have any enormous degree of confidence that either parent will be particularly fulsome in encouraging the continuing relationship between the child and the other. I am, however, heartened by the enthusiasm of the mother’s response to the father’s re-partnering and also, as counsel for the Independent Children’s Lawyer correctly submitted, the father’s proper and appropriate conduct in Court. Nonetheless, it must be said that there must be a question mark against the mother to an extent, given her view of the nature of her relationship with the father. Even more so, I retain a very considerable concern that the father will denigrate the mother to the child for the mother’s alleged inappropriate failure to comply with more conservative Muslim beliefs. I should say quite clearly at this stage that while of course the father is entitled to his own view of the world, including his religious beliefs, any denigration by him of the mother, whether because of religious issues or otherwise, is categorically not in [X]’s best interests. (s.60CC(3)(c)).
The child will not, in my view, be anything other than benefited by the orders that the Independent Children’s Lawyer seeks. It will promote a regime giving the child a secure relationship with her primary carer, and an appropriate amount of time with her father (s.60CC(3)(d)).
There is no significant practical difficulty or expense for [X] to spend time with both parents (s.60CC(3)(e)), other than the distrust and dislike between them.
The mother is well capable of providing for the needs of the child.
I accept Ms G’s submission that the father is deficient in this regard, most particularly indicated by his behaviour when he was actually with Ms G herself (s.60CC(3)(f)).
The lifestyle and background of the two parents are not the same. They used to be, but are not now. This is an ongoing issue of conflict between them, and one of the reasons why it has been necessary to grant sole parental responsibility to one of them, rather than to have it shared. It is to be hoped that this decision will draw a line in the sand so far as the parties’ differences are concerned, but I fear that it may not (s.60CC(3)(g)).
Section 60CC(3)(h) is not relevant.
The mother is a loving mother and has a good attitude towards the responsibilities of parenthood. The father’s attitude must be approached with more caution. He is plainly a very loving parent but, perhaps understandably enough given that he has never been the primary carer, does not appear to have an appropriate understanding of his child’s developmental needs. Furthermore, his conduct in seeking to alienate [X] both from the non-Muslim component of the Australian community and from her mother and grandmother is very disturbing (s.60CC(3)(i)).
Given that the father has undoubtedly abused the mother verbally and, I suspect, been the subject of a certain amount of return of serve on occasion, there has been an element of family violence.
I should perhaps at this stage deal with the incident in the police station car park. I have looked again at the DVD and there is no doubt in my mind that although the DVD does not show unequivocally the father deliberately placing the child in the way of the mother’s car, he was nonetheless actively seeking to prevent her leaving when she wished to do so. The car can be seen moving small distances and stopping. The father’s evidence is that the mother’s window was wound up. He was trying to talk to her in the context of a failed reconciliation. He had, of course, apparently uttered the Muslim words of divorce. The difficulty with the father’s position is that at almost all material times he is standing, not beside the window of the car, which is where you would expect him to be if he was talking to the mother, but at a point slightly to the front of the driver’s side front of the car. Given the way the mother’s car was placed, and given that she was plainly trying to leave, I am quite satisfied that the father was indeed seeking to prevent her leaving for whatever reason. The evidence is not, as I have said however, sufficiently clear to make a finding that the child was exposed deliberately to risk, as the mother asserts. She may well have been, but I cannot make that finding.
Insofar as other family violence is historically alleged, the evidence is, in my view, insufficiently clear to found a finding either way. I note that this aspect of the evidence was not traversed in any great detail.
I further note that whatever may have happened in the past, the photographs taken in [suburb omitted] at New Year would require me to approach the assertions of any domestic violence between the parties with considerable caution. Likewise, the father’s assertions that the mother assaulted him, while purportedly supported by medical evidence, seem unbelievable. She is small and petite and he is big and strong.
There is an intervention order extant, but it does not appear to me, in the context of this case, to take the matter further. The intervention order preceded the photographs to which I have referred (s.60CC(3)(k)).
The orders I will make will, I hope, do the best one can to avoid further litigation. If the parties continue to seek, however, to conduct any interpersonal disputation through the medium of [X], then regrettably, further litigation will be almost inevitable (s.60CC(3)(l)).
I have dealt with all other relevant facts, save for one particularly outlandish assertion. The maternal grandmother has asserted in a recent affidavit that [X] disclosed to her after a visit with her father and Ms M that each had had sex with the other in the front seat of the car while [X] was in the back seat. As I indicated during the currency of the proceeding, one has to apply s.140 of the Evidence Act 1995 and ask how likely this really might be. While such things are not unknown, one can assert with some confidence that they cannot be all that frequent. The idea that the father would have permitted his fiancée to have oral sex with him while driving the car with his daughter observing is outlandish. The further assertion, were this to be the case, that the child sitting behind the fiancée would have been able to see the father touch Ms M’s vagina seems to me to be physically impossible. I have given this assertion no weight whatsoever.
Conclusion
Taking all these matters together, it is in a sense all too obvious where [X]’s best interests lie. Counsel for the Independent Children’s Lawyer correctly submits, the evidence of Ms G is the only objective evidence. It is evidence I accept. The recitation of all the matters set out above, and considering the objects of the Act and the matters in s.60CC of the Act, leads inexorably to the conclusion that the orders proposed by Ms G and the Independent Children’s Lawyer are in [X]’s best interests. There are of course a number of concerns, which I have detailed, as to both parties but these orders do the best one can in these unfortunate circumstances. There will be orders as proposed by the Independent Children’s Lawyer.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Date: 15 June 2011
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