BANGI & BELOV
[2015] FamCA 206
•27 March 2015
THE FAMILY COURT OF AUSTRALIA
| BANGI & BELOV | [2015] FamCA 206 |
| FAMILY LAW – CHILDREN – What time should the child spend with the father – Parental responsibility – Where the mother’s willingness to promote a relationship with the father is in issue – Attempted alienation – improvements in relationship at time of hearing |
| Family Law Act 1975 (Cth) ss 60B, 60CC, 61C, 61DA, 65DAA, 65DAC. |
| G & C [2006] FamCA 994 Goode & Goode (2006) FLC 93-286 Johnson & Page [2007] FamCA 1235 Mazorski & Albright (2007) Fam LR 518 McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92 |
| APPLICANT: | Mr Bangi |
| RESPONDENT: | Ms Belov |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Sydney Central |
| FILE NUMBER: | SYC | 850 | of | 2012 |
| DATE DELIVERED: | 27 March 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 14 – 18 July, 22 September, 27 October, 28 November and 9 December 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Givney |
| SOLICITOR FOR THE APPLICANT: | Adams & Partners Lawyers |
| RESPONDENT: | Self‑represented Litigant |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Berry |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Sydney Central |
Orders
All previous Orders in respect of C born … 2006 (“the child”) are discharged.
The father and the mother have equal shared parental responsibility for the child.
This order is to operate as authority for any educational, medical or other professional care provider for the child (whether a school, doctor, hospital or otherwise) to release any information, including school, medical or any other professional or development reports concerning the child to both the father and the mother.
C shall live with the mother.
C is to spend time with his father:
(a)During school terms in a fortnightly cycle as follows:-
(i)Week 1: from after school Thursday to before school Monday each alternate week, commencing on the first week of each new school term.
(ii)Week 2: from after school Thursday to before school Friday each alternate week.
The fortnightly cycle is to continue in the same pattern as established under the interim orders dated 10 December 2014.
(b)For half of each school holiday period at times as agreed between the parents and if agreement is not reached:
(i)For the first half of each school holiday period in even numbered years commencing after school on the last day of the school term
(ii)For the second half of each school holiday period in odd numbered years commencing at 10:00am on the middle Saturday of each school holiday period and concluding at 4.00 pm on the evening before the first day of the new school term.
Notwithstanding any other order, the child is to spend time with his parents on the following special occasions:
(a)On the weekend which includes Mother’s Day, the child is to spend time with the mother from 4.45 pm on Saturday until the commencement of school on Monday.
(b)On the weekend which includes Father’s Day, the child is to spend time with the father from 4.45 pm on Saturday until the commencement of school on Monday.
(c)If the child’s birthday falls on a weekend when the child is in the mother’s care, the child is to spend time with the father from 10.00 am until 2.00 pm on his birthday.
(d)If the child’s birthday falls on a weekend when the child is in the father’s care, the child is to spend time with the mother from 10.00 am until 2.00 pm on his birthday.
To give effect to these Orders, the following shall apply:-
(a)The father shall collect the child from and return the child to school if changeovers are to occur during school days.
(b)Otherwise, changeovers shall occur at McDonalds Family Restaurant, , Suburb U.
The mother and the father are each restrained from physically punishing or disciplining the child, or allowing any other person to physically punish or discipline the child.
The mother and the father are each restrained:
(a)From making any critical, disparaging or derogatory remarks about the other parent or any member of the other parent’s family or household to the child or in the child’s presence or hearing, such order to include verbal, written or electronic means including email, text message, facebook and other forms of social media.
(b)Causing or permitting any other person or persons from making any critical, disparaging or derogatory remarks about the other parent or any member of the other parent’s family or household to the child or in the child’s presence or hearing, such order to include verbal, written or electronic means including email, text message, facebook and other forms of social media.
(c)From harassing, molesting, intimidating or stalking the other parent or any member of the other parent's family or causing any other person so to do;
The mother and the father are each to notify the other as soon as practicable (but in any event within 2 hours) by telephone in the event of the child being hospitalised or receiving emergency medical attention while in their care.
Each parent is to inform the other parent of any change to their address, email or contact telephone numbers (including both landline and mobile phone number if applicable) within 7 days of such change occurring.
The father is to facilitate the child continuing to engage in therapeutic counselling with Dr V of the W Org until 31 December 2015 at a frequency of not less than three monthly intervals on a day and at a time convenient to the father.
The father is liable for the costs of the therapy sessions with Dr V referred to in order (11).
All outstanding parenting applications are dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bangi & Belov has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 850 of 2012
| Mr Bangi |
Applicant
And
| Ms Belov |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
This matter concerns the long-term parenting arrangements for the child C, who is eight years old, the only child of Mr Bangi (“the father”) and Ms Belov (“the mother”).
The parents were married in 2005 and separated on a final basis in August 2011 when the child was five.
In February 2012, at a time when the parents were separated but both still caring for the child, the mother removed the child from school and did not disclose her whereabouts to the father for some months. the child did not see his father for a period of two years until orders were made for the child to receive therapy to redevelop his relationship with his father.
At the commencement of the hearing the child had spent eight one hour sessions of time with his father, on each occasion with the assistance of a therapist. At that hearing, the therapist recommended that there be an immediate increase in the time the child spends with his father, that this should move to overnight time in the near future, and that there was no requirement for the child’s time with his father to be supervised.
On 18 July 2014, following five hearing days, I made interim orders for the child to live with his mother and spend time for seven hours each Saturday with his father. Subsequently, this was increased to include overnight time. The proceedings then continued with further evidence being given in the father’s case. Despite being given numerous opportunities to participate in the further hearing, the mother has not attended on any of the four occasions that the parenting proceedings have continued and did not make submissions in relation to final orders.
I am now required to determine which of the parenting orders proposed are in the child’s best interest.
Background
The parents’ relationship
The father, who is currently 50 years old, was born in 1963 in Country X. He came to Australia in around February 1996 to complete his university education and became an Australian citizen in about 2002.
The mother, who is 30 years old, was born in Country D in 1984.
The parents met online through a website known as “Country D Bride” in around 2002 and developed a relationship between 2002 and 2005. During this period the father travelled to Country D on about six occasions to spend time with the mother.
In about May 2005, the father sponsored the mother to come to Australia on a partner visa. When she arrived a short time later, the parents lived together. The parents were married in 2005 and initially lived on the Y Town in Queensland. The child was born in 2006.
A few months after the child’s birth the family moved to Sydney and rented a home in Suburb Z.
When the child was an infant he was cared for on a day-to-day basis by the mother whose parenting capacity at that time, it is agreed, was appropriate. The father, who worked full-time, assisted in the care of the child when he was at home.
Between March and September 2008, the parents and the child lived in the Country AA where the father had obtained work. When they returned to Australia they moved into an apartment in Sydney.
In around late 2008 or 2009, the mother was diagnosed with hepatitis B, which affected her liver and her alcohol consumption. The mother was advised not to drink alcohol.
The family moved two more times, eventually settling in Suburb Z in around mid-2009. At this time, the mother started working at a shoe shop in Suburb Z two to three days per week.
The family moved to a new house that they had purchased in Suburb S in around 2010. the child was at this time attending day-care and both parents were involved in his care.
In July 2010, the mother travelled to Country D alone for about three weeks and the father cared for the child during the mother’s absence.
At the beginning of 2011, the child started kindergarten at Suburb S Primary School and attended before and after school care at the school. At this stage, the mother was still working two to three days per week in Suburb Z.
In around February 2011, the mother began studying finance at the Australian Institute of Finance.
In August 2011, the mother went to Country D for a period of around three weeks on her own and the father looked after the child full-time.
On around 26 August 2011, the parents separated after the mother told the father that she had been having a relationship with a man named “Mr F”. The parents remained living separately in the Suburb S home. The parents reached an agreement in October 2011 that the child would live with and be “supervised” by the father from Sunday night to Friday afternoon and for further days if required, and that the mother would “accommodate and supervise” the child during the remaining days, that is the weekends. The proposal at this stage was that the mother would be moving to live with Mr F but this did not eventuate.
In about November 2011, the father and the child travelled to Country X for two and a half weeks to attend a family wedding. The mother did not accompany them on this trip. Following their return from Country X the father and the child went to the Y Town together for about five days.
Commencing around November 2011, the father employed two nannies to assist in the child’s care. The first lasted for three weeks and then a second nanny was hired.
On around 11 December 2011, the father’s brother arrived to stay with the family and remained living with them at the Suburb S home for around three months.
In early January 2012, the father put the Suburb S home on the market. The home was registered in the father’s name only and the mother put a caveat on the title to prevent it being sold.
On about 6 February 2012, the father moved himself, his brother and the child to a new rented house in Suburb S.
On 6 February 2012, the mother sought legal advice and told her lawyer that the father had vacated the house.
The father dropped the child to before-school care at around 7.30 am on 7 February 2012 and sent the mother a text message letting her know that he had done this. Throughout the day the father sent a number of text messages asking the mother to confirm that she would be collecting the child from school that day, but did not receive any response. The mother collected the child from school at 10.45 am and told the school that she was taking him to a doctor’s appointment but did not return him to school. At around 3.00 pm the school telephoned the father to let him know that the child had not been returned to school.
At the time the mother removed the child from the father, the father had been playing a significant role in the child’s care and there was an important attachment relationship formed between them.
Events following separation
On 7 February 2012, the mother contacted a Domestic Violence Helpline and went to a refuge at Suburb BB. The mother enrolled the child in a nearby public school.
The father reported the child as missing to Suburb I police on 8 February 2012. On 9 February he was informed that the child had been located with his mother at a women’s refuge in Sydney but the father was not told of the location of the refuge.
The father filed an application for location and recovery orders on 16 February 2012. On the first day in Court, 28 February, orders were made for the child to be placed on the airport watch list and an information order was made to locate the mother through Centrelink.
On 11 March 2012, whilst attending a festival in Suburb BB, the mother believed she had seen the father in a car which she reported to a Case Worker at the refuge. As a result, the mother and the child were relocated to a refuge in Suburb CC and the child was enrolled in another local school in that area from mid-March 2012.
The mother was served with the father’s application in around March 2012 and attended the next court date on 15 March.
The mother and the child then resided at a Service known as the DD Community from May 2012.
On around 15 May 2012, the father was charged with a number of counts of common assault against the mother, which were said to have been committed between 2006 and 2011, and an application for an apprehended domestic violence order (“ADVO”) was made to protect the mother against the father. The father also brought an application for an ADVO against the mother.
In June 2012, the child was enrolled in EE School and attended that school for about four weeks. The mother then enrolled the child in FF School.
The charges against the father for the alleged offences against the mother were heard in July 2012, but the decision was reserved.
On 18 June 2012 the parties participated in a Child Dispute Conference with a Family Consultant in the Federal Magistrate’s Court, as it was then known. At that stage each of the parents alleged that the other was violent towards the other and towards the child. The Family Consultant recommended a further assessment by way of a Family Report.
A further Child Inclusive Conference was held with a Family Consultant on 6 August 2012 and on this occasion the child was also observed. At this stage the mother was opposed to the child having any contact (even supervised) with his father. When interviewed, the child presented an extremely negative view about his father.
The parents were noted by the Family Consultant as giving diametrically opposed accounts of their relationship and each other’s relationship with the child. The mother told the Family Consultant that the child tells her that he does not want to see his father, he hates him, wants him to go to jail and fears him. The mother linked the child’s attitude to the father’s alleged violent behaviour towards him and to being exposed to the father’s violence towards her. The father told the Family Consultant that he thought the child’s expressed views reflected him having been manipulated by the mother over the past six months.
Following this conference it was recommended that the father should complete some parenting courses and the child should commence therapeutic counselling with a psychologist, Dr V, to re-establish his relationship with the father. Orders were made on 22 August 2012 to this effect and therapy commenced in September 2012.
The Court also ordered on 22 August 2012 that the child spend time with the father at a contact centre for two hours each fortnight.
Initial Therapy with Dr V
Dr V initially began providing therapy to the child on 24 September 2012.
The father was charged in the same month with assaulting the child and was unable to participate in the sessions with Dr V from 29 September 2012 as a result of the charges, even though Dr V supported joint sessions. Although the father was unable to participate in the therapy sessions, the child continued to attend those sessions with Dr V from September 2012.
The father saw the child very briefly on a single occasion at a contact centre on 27 October 2012 only.
On 6 November 2012 the charges against the father in relation to alleged assaults upon the mother were dismissed and the application for final ADVO was also dismissed.
In April 2013, the parties were divorced. In the same month the mother met Mr GG (Mr GG) on a Country D social website and they commenced a relationship in about June.
On 13 June 2013, Dr V advised the Independent Children’s Lawyer that the mother:
Is extremely reluctant to accept my advice, proposals and recommendations … and has not accepted my proposed therapeutic goal of assisting the child in building a relationship with his father.
Dr V also advised the Independent Children’s Lawyer in that letter that the mother had on occasions failed to attend sessions without prior notice and was repeatedly arriving extremely late to sessions. Dr V informed the Independent Children’s Lawyer that she had formed the view “that the mother is not genuinely committed to the process and it is unlikely that any assistance can be provided to the child unless the mother alters her current behaviour and attitude”.
The mother unilaterally withdrew the child from sessions with Dr V from about June 2013.
The father’s charges of assault against the child (in relation to offences which were said to have been committed between March 2009 and December 2011) were heard in March 2013 and July 2013. the child, who was seven, gave evidence via videolink in the proceedings. Each of the charges against the father was dismissed on 18 July 2013 and the application for ADVO against him was dismissed.
At the end of September 2013 the mother and the child started to live with Mr GG at Suburb HH. On 28 October 2013, the child commenced at a new school in the Suburb HH area.
Family Consultant’s Initial Report
On 30 October 2013 Mr II, a Child and Family Consultant, interviewed the parents and the child. He also viewed a wide range of documents from various sources. Mr II was asked by the Independent Children’s Lawyer to initially see the parties and the child separately and make a determination as to whether it was appropriate for the child to see his father in interviews with him. Mr II interviewed the mother and the child first and then interviewed the father when the mother and the child were not on the premises. At the completion of the interview with the father, Mr II telephoned the mother and requested that she return after lunch with the child so that the Family Consultant could interview the child with a view to assessing whether he should meet with his father later in the afternoon. The mother advised the Family Consultant that she would not return to his practice rooms and would contact her solicitor.
In her interview with the Family Consultant, the mother said that the father had no parenting skills and no emotional attachment to his son and that for these reasons and because the father had been violent towards her and the child, she did not want them to have a relationship.
At the time of the assessment the mother said the child was now “very good…. since he has not seen [Dr V]”.
When the child, who was seven, was interviewed, he told the Family Consultant that he “would not like to see his father again” but was not sure why he did not want to and knew that his mother “does not like him”.
It was the Family Consultant’s strong recommendation that irrespective of the outcome of the proceedings, the parents should be obliged to recommence the child’s therapy with Dr V.
The Family Consultant’s report dated 15 November 2013 was released on 21 November 2013, and the matter was relisted for further directions on 28 January 2014.
Events and Communications between the parents in December 2013 to January 2014
On 16 December 2013, the mother sent a text message to the father, which read:
Hello [Mr Bangi], please call me [number]. Without involving any lowers. (sic). I want to talk to about what we can do. [Ms Belov].
The father wrote in response
[Ms Belov] I received your text message today. I am willing to communicate with you, but at present I think its best it be by email. My email address: (email address) [Mr Bangi].
The mother then wrote:
[Mr Bangi], thank you for writing to me back. I ask you and request to meet me and talk about everything without lowers. the child can make contacts with you faster, then making an expensive trips to psychologists and courts. Let’s speak as parents not as enemies. You better help the child and give him a nice present...make peasfull conversation with you, I will let the child to spend time with you every weekends and soon. We can meet this week any time, better when the child in the school. I hope this msg will make sense to you for the child and my sake and we will make better parenting agreement. I know my lower, yours will be angry at this text doing because I destroy their business and they will not be able to suck you money any more. You are will be more then welcome at my house and pick the child, when we all agree with you after cancelling trips to court. Please lets meet and talk as parents. I am sick and tiered. But I love the child and wanted him to have both parents, who are happy and healthy. After all, stresses with courts, I have received stomach ulcers and Dr told me to avoid stress. I am not going to bother you any more. If you want good, fast solvation of the problem, you call me. I don’t need your money. Only pease and normal life style for my son. Court is a wast of your life, my and the child’s. Please call me, and meet, you will not regret. Be human and remember we were family. I am sorry, I hurt you. Not going to repeat again. Waiting for you to call. (sic)
On 22 December 2013 at 11.45 pm the mother sent a text message to the father, as follows:
[Mr Bangi], I need your help. I need to find a place to around [Suburb HH] for me and the child to live. I cannot stay here any more. Please respond. Alternatively, I will come to [Suburb S]. We need a home to live and place to live. I am worried about us right now. (sic)
On 23 December 2013 the father wrote to the Independent Children’s Lawyer and told her about the message he had received on the previous night. The father said that he was not in a position to be able to offer the mother accommodation given the history of the case, but was concerned about the welfare of the child and was prepared to take over his care at any time and immediately if necessary. The father asked the Independent Children’s Lawyer to make her own enquiries concerning the child’s welfare and safety.
The Independent Children’s Lawyer wrote to the mother’s lawyer by email seeking her urgent instructions regarding this issue. The mother’s lawyer advised the Independent Children’s Lawyer that the mother and child were presently safe and well and said:
Our client being an emotional person admits that during some slight arguments with her present partner yesterday she sent the SMS provided by the respondent. She greatly regrets sending the above and says she is presently in loving relationship with [Mr GG] and they happily reconciled the same evening.
The lawyer also advised that neither the child nor the mother needed any help or assistance from the father.
On 13 January 2014, police attended the mother’s home at her request following a complaint that Mr GG had become intoxicated and then agitated and angry towards her as she had locked him out of their home. The mother complained that Mr GG had hit a door at the home causing it to crack. When the police arrived in the early hours of the morning the mother told police that she was not fearful of Mr GG and did not wish any further police involvement.
Further Therapy with Dr V
On 28 January 2014, orders were made for the parents to do all things necessary to facilitate the child engaging in the therapeutic counselling with Dr V and the father was to engage in joint sessions with the child as directed by Dr V.
The therapeutic counselling then recommended with the child and the father joined the sessions.
Update report from Family Consultant
On 23 May 2014, the Family Consultant again briefly interviewed the parents and the child and also observed the father in play interactions with the child. At this stage the child had been involved in the therapeutic sessions with Dr V and the father on a number of occasions.
At this interview, the mother told the Family Consultant that she was happy and quite impressed with the father and said that the child “leaves quite happily to attend the sessions with [Dr V] and returned quite happy from them”. She said that she would be willing for the child to begin immediately spending some time with his father which could build over time as long as “from [Dr V’s] point of view he is not afraid and it is safe”.
When interviewed, the child said that he did not feel afraid of his father when they are seen together in sessions with Dr V and does not have worrying or fearful thoughts about his father at other times. When he was observed with the father, the child was described by the Family Consultant as having maintained “a rather polite and emotionally contained demeanour” but showed no signs of fearfulness or anxiety in the observation. The Family Consultant said that the child sat quite close to his father and that the father interacted with the child calmly and quietly.
Circumstances at the time of the hearing
At the time of the first phase of the hearing in July 2014 the father had spent time with the child in therapeutic sessions on eight occasions, though the mother had regularly arrived late with the child and the sessions often lasted only about 40 minutes rather than the full hour.
At the hearing Dr V described the child’s joint sessions with his father during this period as “going exceptionally well”. Dr V recommended that the child spend time with his father outside the sessions with her, that this time should initially occur during the day and that it did not need to be supervised. She also said the time together could be extended to overnight after a few weeks and that she had no concerns about the child’s relationship with his father or the father’s capacity to parent the child. Dr V said that she would like to continue to monitor the time together especially in helping the child in his family environment, to make sure that he was not exposed to conflict. Dr V recommended that the child should spend time with his father weekly, that time on a second day each week should be then added and that a consideration of three to four consecutive days and building up to half of school holidays should “absolutely” start that year.
The father was residing at the former family home at the time of the July 2014 proceedings. At that stage, a boarder also resided at the home but the father proposed that the boarder would immediately move out if orders were made for the child to live with him. The father worked 9.00am to 5.00pm each weekday as a professional in the Sydney CBD. He lived a short distance from the child’s current school and would not propose changing schools if the child were to live with him. The father said he would be in a position to take the child to and from school and has quite flexible working hours and can often work from home.
The mother at the time of the hearing was living with the child and her 30 year old defacto partner, Mr GG, in Suburb HH. Although the father and the Court were unaware of the full details of the mother’s living arrangements at the time of the July 2014 hearing, it subsequently came to light that a boarder named Mr JJ lived at the mother’s premises between early April and the end of July 2014. Mr JJ’s evidence dealing with events during this period is dealt with later in these Reasons. The mother began full-time work at the beginning of June 2014.
On 18 July, when the proceedings were adjourned, the mother consented to interim orders being made for the father to spend time with the child one full day each weekend, though she did not consent to this occurring on a Saturday, preferring a Sunday. For reasons given at the time, orders were made for the father to spend time with the child each Saturday. The proceedings were adjourned to late September 2014.
Events following the July hearing
On 21 July 2014, after the initial phase of hearing had been completed, police were called to a domestic incident at the home of the mother and Mr GG.
On 22 September 2014, the next Court event following the adjournment, the mother failed to attend even though the matter had been listed for final submissions. The father on that occasion foreshadowed that he may make application to vary the interim orders and was directed to file and serve any such application on the mother. The father had also made application to adduce further evidence from Mr JJ (the boarder in the mother’s home between April and July 2014) and directions were made for this application and Mr JJ’s affidavit to be served on the mother.
The mother also failed to appear on 27 October 2014 although she had been notified of the father’s application to adduce further evidence and to vary the interim orders. Leave was given for the father to adduce further evidence. The interim orders were further amended on 27 October 2014 so that the father’s time with the child was increased to include overnight time from after school each Friday until 4.45pm each Saturday.
On 28 November 2014, Mr JJ gave further evidence concerning the circumstances at the mother’s home from April to late July 2014. The mother did not appear at this court event although she was aware of it and submissions were also made on this occasion by the father and the Independent Children’s Lawyer concerning final orders and interim orders pending final orders.
On 28 November an updated report from Dr V was also admitted into evidence. Although Dr V had only seen the child on one occasion following the July hearing, on 7 November, she reported the following:
[C] engaged in spontaneous speech about his father and was eager to provide an umprompted summary about school, time with his father and his excitement about the upcoming school holidays. [The child] informed me that he had his first “sleep over” at his father’s house and he was keen to report that he was going to have his second overnight with his father post-session. He was smiling, laughing and interacting well, and it was observed that he showed no signs of anxiety at any time during the session or when observed in the waiting room with his father. In fact he was more than happy to show affection towards his father.
Dr V also reported that she had spoken to the child’s class teacher who reported that the child was doing fine at school. Dr V was of the opinion that it seemed that the child had adjusted well to his father being back in his life and she saw no impediment to the child spending more time with his father. The doctor made recommendations about a graduated increase in the child’s time with his father including a recommendation of an additional weekday overnight occasion and if all appeared to progress well then a substantial increase to up to five consecutive nights each alternate week during school term.
The matter was adjourned for one final occasion on 9 December 2014 when further submissions were heard in relation to final orders and interim orders pending judgment. The mother again failed to appear despite having been notified of the court event. On 10 December 2014 further interim orders which were not opposed by the father or the Independent Children’s Lawyer were made. These orders provided for the child to spend time with his father each alternate week for four nights (from after school Thursday to before school Monday) and overnight on a Thursday in each alternate week as well as block periods of time of varying lengths up to eight consecutive nights in the Christmas school holidays.
The Areas of Dispute
Does the mother use alcohol in a manner that impairs her parenting capacity or gives rise to a risk of harm to the child?
It is the father’s case that the mother drank alcohol to excess from the time the child was a few months old, initially, to assist her with a sleeping difficulty. He says that the mother misused alcohol up until the time of separation and that she became violent and aggressive towards him and behaved erratically and was neglectful of the child when intoxicated. The father contends that there is concern that the mother continues to be erratic and neglectful and places the child at risk of harm. The mother denies ever drinking to excess or suffering from a sleeping difficulty. Her position in relation to current concerns is unknown as she has not participated in the proceedings since the initial hearing in July 2014.
The first incident given in the father’s affidavit in relation to this issue allegedly occurred in around 10 August 2007 (when the child was 18 months old). The father says the mother had been drinking heavily, and was quite drunk and became angry and aggressive towards him when he was driving. He said that the mother reached across and hit him in the face and on the left arm and that one of her punches hit him above the left eye causing a cut over his eye. The father said that he received medical attention from his general practitioner the following day.
Both parents refer to an incident in around October 2007 when the child had tonsillitis and the mother took him to Suburb Z Hospital. The father says that he met the mother at the hospital and that at about 6.00 pm the mother left, but the father remained there. The father telephoned the home, but could not reach the mother and arranged for a friend to stay with the child at the hospital while he went home to see what was happening with the mother. The father went home, but was unable to locate her. He then returned home a second time at around 11.00 pm and says he found the mother extremely intoxicated. He said when he asked her where she had been she began screaming “it’s none of your business” at him.
The father says that after the mother was diagnosed with hepatitis B in late 2008 or early 2009 she was advised to cease drinking alcohol, but chose to reduce drinking instead. He sets out in his affidavit other instances after this time, where the mother was aggressive when heavily intoxicated. He says that on around 15 November 2009, the mother was heavily intoxicated and started an argument with him and in the course of the argument punched him to the chest, causing significant pain. The father says that on the following day he sought medical attention from his doctor.
The father says that throughout 2009 and 2010, the mother’s drinking escalated and she was drinking quite heavily on at least four to five nights per week and neglecting the child. He says that she would drink a bottle of wine by herself over a night which was enough to make her very drunk.
The father alleges that when the family moved to their new home in Suburb S in around 2010, the mother would drink by herself on a table on the balcony. The father also alleges that around this time when the mother worked in a shoe shop two to three days a week, she still had problems sleeping, and on the days she was not working, she would sleep until around midday or later, which impacted on their relationship and her capacity to care for the child.
The father alleges that there were a number of occasions when the mother physically assaulted the child which is dealt with later in these Reasons. The father says that the mother was intoxicated at the time of some of these assaults such as the first instance when he alleges she hit the child with a belt as he was not eating as she requested. The father says this occurred in around December 2011 when the child was five. The father described the mother as “almost always drunk” when he came home from work during 2011. He relates another occasion in around December 2011 when he says that the mother was intoxicated and verbally abused him saying things such as “I don’t want to stay in this shitty house, I am going to leave you, you’re fucking useless, why should I have to cook” in the presence of the child.
The father also says in his affidavit that on around 4 February 2012, (three days before the mother left the home with the child) when his brother was visiting there was an incident when the mother was highly intoxicated. He says that they became involved in an argument and that he and his brother Mr KK went into the spare bedroom where his brother was staying, closed the door and locked it. The father says the mother followed, started banging on the door and screamed and verbally abused him and only stopped when he threatened to call the police.
The father’s brother Mr KK who lived with the parents for around three months prior to and at the time of separation makes no reference in his affidavit to the mother’s alcohol use. He was also not cross-examined about this issue.
The father’s nephew who also spent some time at the house described a volatile relationship between the parents which included the mother being verbally abusive. However, he did not refer to the mother’s alcohol use nor was he cross-examined about it.
The only other evidence about the mother’s alcohol use during the marriage came from Mr LL, a friend of the family when they were living in Queensland in 2006. Mr LL and his wife met the mother in March 2006 and the families spent time socially after that date. Mr LL said that a short time after meeting (the mother) he observed her drinking alcohol excessively and began to withdraw from the relationship because of that but maintained communication with the father. He said that on a few occasions he saw the mother drunk and out of control, abusing the father and the child. Under cross-examination he maintained his general position that the mother drank to excess every time they were together but could only specifically relate two occasions when he personally observed the mother to be intoxicated. On the first occasion he described the mother as drinking more than the others while out at a restaurant and on a second occasion he described the mother as becoming verbally abusive towards the father and “very snappy with the child” whilst having dinner.
Although the mother denies drinking to excess, she gives no evidence of her pattern of alcohol usage during the marriage or currently in her affidavit and was not cross-examined concerning this issue.
The only evidence of the mother’s current drinking habits is from Mr JJ who describes her drinking two to three times per week but does not make any criticisms of the mother’s behaviour as a result of intoxication.
I am not satisfied on the balance of probabilities that the mother misuses alcohol to a significant degree or that her alcohol use has a negative impact upon her parenting. Whilst it may have been the case that the mother was drinking excessively in the early years of the parents’ relationship, there is no dispute that the mother was diagnosed with Hepatitis B from about early 2009 and reduced her alcohol consumption from this time. There is no evidence other than the father’s assertion that throughout 2009 to the date of separation in February 2012 the mother was regularly intoxicated. In my view, it is of significance that the father’s brother who stayed with the family for three months during this period and generally gives very negative evidence about the mother does not refer to her alcohol use.
Similarly, currently Mr JJ, who was concerned about various aspects of the mother’s care of the child when he was living at her home in the first half of 2014, does not refer to the mother ever being intoxicated.
I am satisfied that there was significant conflict between the parents when they were living together and some of the incidents between them (which will be dealt with later in these Reasons) may have involved the mother being intoxicated. However, I am not satisfied that she has been regularly intoxicated since her diagnosis of Hepatitis B or that her parenting of the child has been adversely affected by her alcohol misuse.
Family Violence
It is the mother’s contention that the father was violent towards her throughout the relationship and was also violent towards the child. This is denied by the father. The father alleges that on occasions, the mother was violent towards him and the child was exposed to that violence and that the mother also made numerous threats to harm herself and go to police and blame the father. The father also alleges that there is a risk that the child is currently being exposed to violence between the mother and Mr GG.
In her affidavit, the mother makes a general allegation that from the time of the child’s birth, the father “became physically violent towards [her], pushing [her] and hitting [her] on a regular basis.”
When the family moved to Suburb Z (in late 2006) the mother says “the physical abuse from [Mr Bangi] continued”. The mother says that on one occasion on 14 December 2006, the father became upset at her and yelled and insulted her and she telephoned the police. Under cross-examination, the father said that police were called at this time as a result of an argument but that nothing further happened. No police records in relation to this or any other alleged incident between the parents were tendered in the proceedings.
The mother says, without specifying any time period, that the father “used to hit me on the side of my had [sic]”. She says that in approximately July 2007 the father grabbed her by the hair as he was jealous and tried to look at her phone. Under cross-examination, the father specifically denied that this event had occurred.
The mother says that in August 2007 there was “another attack”, because the father thought she was meeting with another man, but no details are given about the alleged “attack”.
The mother alleges that (in around October 2007) when she took the child to Suburb Z Hospital during the day because of acute tonsillitis she contacted a women’s social service at the hospital known as “MM Org” and reported that the father had been violent towards her. She does not specify the details of this violence. Elsewhere in her affidavit the mother says that during “an attack” she went to Suburb Z Hospital with bruises and told the doctor what had happened and the doctor gave her information about a domestic violence helpline which she did not utilise. It is not entirely clear whether the mother attended Suburb Z Hospital on more than one occasion or whether she is describing the same incident in different parts of her affidavit.
Records produced by Suburb Z Hospital indicate that on one occasion, on 11 August 2007 the mother presented herself at the hospital reporting that she had had an argument with her husband the day before and that he had grabbed and pushed her causing her to have multiple bruises to her body. The mother informed the doctor that this was the first time that “a situation like this has happened” but reported that the father was prone to aggression. She presented to the hospital for the purposes of having a record made of bruises to her thigh and each of her arms and was generally described as well and not complaining of any pain.
On the same day the father attended his general practitioner and complained that the mother had hit him to the eye on the previous day when she was under the influence of alcohol and they were driving in the car (the father’s version of this incident is also referred to in paragraph 83 of these Reasons). The doctor’s records indicate that the father complained that the mother had hit him a few times in the past when affected by alcohol. According to the doctor’s records, he found bruising, prominent swelling, “slight skin split” and tenderness to the father’s left eye.
The mother also makes a general allegation that when she and the father returned from Country AA and lived again in Suburb Z in early 2009, that the father “remained physically abusive towards [her]”.
It is the father’s case that the mother from time to time threatened to make false allegations against him, to the effect that he had harmed her. In his affidavit, he says that on one occasion in 2009, when he was home with the mother and her friend Ms NN came to visit, the mother hit herself on the inside of her wrists with an object that looked like a butter knife. When he asked her what she was doing the mother said “we are going to the police station. I am going to report that you hit me.”
The mother alleges that in around July 2010 at their home in Suburb S there was an occasion where she was washing the floor and the father hit her head with the back of his hand and kicked over the bucket full of water which made her very upset.
On 15 May 2012, three months after the mother left with the child and began living in a refuge, the father was charged with assaulting the mother between 2006 to 2011 and an application for an ADVO was sought for the protection of the mother. The father pleaded not guilty and the charges were heard in July 2012. In a judgement handed down on 6 November 2012 all charges against the father were dismissed as was the application for the ADVO.
Violence towards the child
Each of the parents alleges that the other punished the child physically, hitting him with hands or a belt. Interestingly, each makes the identical allegation against the other that the child was struck with a belt when he did not eat dinner.
The father alleges that almost all of the mother’s use of the belt related to the child not eating food she had cooked. He said that there were a number of occasions where the mother cooked late at night and tried to feed the child a second dinner and was almost always intoxicated on these occasions.
The father refers in his affidavit to an incident in around December 2011 (when the child was five) when the child had eaten dinner at 7.00 pm and at around 9.00 pm the mother tried to make him eat another dinner. The father said that the mother, who was quite intoxicated, picked up one of the father’s belts, hung it over the back of the chair and yelled at the child to eat the meal. The father says that when the child began to cry the mother picked him up from his chair, grabbed the back of his left arm, pulled his pants down and began smacking his backside with the belt. The father says that the mother had told him that it is a tradition in Country D to hit with a belt.
Under cross-examination by the Independent Children’s Lawyer in relation to this issue, the father said that he alleged that the mother had assaulted the child by using a belt prior to her making that allegation against him. He said that he was unable to take the belt from the mother and said although he thought this conduct was shocking it took him three months to separate from the mother. When asked why it took him so long to do so, the father said he was under a lot of tension over the separation and needed to obtain legal advice.
The father also said that on numerous occasions he had seen the mother slap the child in the face when she was getting frustrated with him.
The mother says in her affidavit that from about early 2009 when they moved to Suburb Z after having returned from the Country AA that the father began to “transfer his anger onto our son the child”. At this stage, the child was about three and a half and the mother claims that he had difficulties with “learning and development”, did not speak and was under-weight. The mother says that in approximately March 2009 the father hit the child with a belt when he came home and said “I am going to treat him how he should be treated”. The mother says that the father used the belt on the child’s back twice which made the child scared and cry. The father was subsequently acquitted of an assault charge in relation to this alleged incident.
The mother also says that in January 2010 the father removed the child’s pants and hit him several times on his bottom with a belt leaving red marks. The father was subsequently charged with assault and acquitted in relation to this incident also. The mother gives no other details of the circumstances surrounding the three occasions where she alleges the father hit the child with a belt.
The mother also alleges that in March just before moving to Suburb S (agreed as 2010) the father grabbed the child’s right ear and twisted it for several seconds when the child did not respond to him, causing the child to cry in pain and receive a red ear. This allegation was also the subject of an assault charge against the father, of which he was acquitted.
The mother alleges in her affidavit that in September 2010 the father punched the child to the head and yelled abuse at him. The father was subsequently charged with assault and acquitted in relation to this incident. He was also charged in relation to another incident in which the mother said she saw the father punch the child to the head with a closed fist in July 2010, but this latter incident is not referred to in the mother’s affidavit.
The mother says that at around September 2010 the child had very bad appetite and the father began to threaten the child that he would be hit with the belt if he did not eat the food that was served to him. She says that at the time when the child started school in February 2011, the father began hanging the belt on the back of his chair when the child was eating to scare him into eating food.
In her affidavit the mother makes a general allegation that between September and November 2011 she could not stop the father “controlling and abusing” the child. She relates an incident in September 2011 when she says the father was teaching the child the alphabet. She says the father threatened the child that if he could not remember the ABC he would teach him with a belt, and took the belt out of the cupboard and hit the child “across the bum” several times. She says that she observed welts when she bathed him. This allegation was also the subject of a charge against the father which was dismissed.
The mother alleges that in December 2011 after the father and the child returned from Country X, there was an occasion when the child and the father became involved in an argument and she saw the father use an open palm and hit the child across the head “with all force” causing the child to cry for about 15 minutes. She gives no other details about the circumstances surrounding this incident including her own reaction. The mother claims that this incident was also observed by the nanny who left her position with the family as a result. The father was charged and acquitted in relation to this offence subsequently.
In mid-January 2012 the mother says that when she was changing the child’s clothes she saw a “huge lump on his stomach just under his ribs” and a bruise on his arm. She says that she asked the child what happened but he did not want to talk and put his head down. The mother said that the child had attended an Country X festival with the father on that day and she believed the father had hit him. No other details are given in relation to this incident.
The mother also alleges that the father has improperly sexually interfered with the child. In her affidavit she says that from the time the family moved to Suburb S (agreed as 2010) the father insisted on having the child sleep in his bed every night even though the child had his own bedroom and bed. She says that she was very worried about the child’s wellbeing and safety while he was sleeping with the father. She also says that when she began living at the refuge in Suburb BB from 7 February 2012 she received a number of “warnings” from the school about the child’s behaviour which she also observed at the refuge. The mother describes the child as constantly going to people and hugging them and whilst hugging them he would “feel all over their bodies and he would touch their private areas”. She says the school was worried about this and spoke to her about counselling for the child. She says that she then came to realise that “maybe” the father had been abusing the child when they slept in the same bed. Under cross-examination as to this issue the mother confirmed she is of the view that the father molested the child when he was asleep and said that the father should not have overnight time with the child as she is worried the father would molest him again.
Discussion and findings concerning allegations of family violence
In these proceedings the mother raises serious allegations of physical abuse by the father towards her throughout the course of their relationship and makes serious allegations that he physically and sexually abused the child. The father also alleges that the mother physically abused the child, seemingly by imposing excessive discipline and to a lesser extent alleges that she was violent towards him. The issue for me to determine in relation to the allegations of abuse of the child are concerned, is whether there is an unacceptable risk of harm to the child if any of the orders proposed are made. In my view, having regard to the authorities concerning the inter-relationship between being satisfied that alleged harmful acts occurred and a finding of unacceptable risk[1], it is appropriate to approach the matter by first determining whether the abuse alleged by each parent did occur.
[1] See for example the cases reviewed at paragraphs 64-67 in Johnson & Page [2007] FamCA 1235.
In considering whether these allegations are proved on the balance of probabilities having regard to the matters set out in s 140(2)(a) to (c) of the Evidence Act 1995 a number of observations can be made.
First, I have a number of concerns about the mother’s credibility generally. The mother in my view was not honest about her lack of proficiency in the English language and her insistence upon being assisted by an interpreter in the proceedings was in an effort to convey that she was in some way disadvantaged due to her lack of English. In the course of the proceedings there were numerous occasions where the mother was able to formulate questions or give quite complex and detailed answers herself directly without the aid of an interpreter. In her own case, or in concessions made under cross-examination, it is clear that she has held various positions in which she proficiently uses English in the course of her work and has attended various courses conducted in English.
There is an internal inconsistency in the mother’s evidence as to a critical issue. In the email to the father on 16 December 2013 the mother said she would allow the child to spend time with the father “every weekenz [sic] and soon” and she told the Family Consultant in May 2014 that she would be willing for the child to begin immediately spending time with his father which could build up over time. At the hearing, however, she maintained that she currently had a fear that the father would molest the child if the child spent time with him overnight.
The mother’s failure to participate in the proceedings on the four occasions on which the matter has been heard since July 2014 without explanation and, in particular, her failure to give any evidence about her current domestic circumstances does not reflect well upon her.
The timing of the various complaints of abuse made by the mother also in my view reflects adversely upon her credit. The mother first became aware of the father’s application some time prior to 15 March 2012, when she first attended Court. Between that date and the parties’ participation in a Child Dispute Conference the mother complained to police for the first time about assaults against her which were said to have been committed between 2006 and 2011. The charges against the father were heard in July 2012 and a decision in relation to them was still pending when the parents participated in a Child Inclusive Conference on 6 August 2012. As a result of this conference the Family Consultant recommended that the child should commence therapeutic counselling with Dr V to re-establish his relationship with the father. Orders were made on 22 August 2012 for this therapy to commence and for the child to spend time with his father at a contact centre. It is not entirely clear exactly when the mother first reported the allegations that the father assaulted the child to police, though according to the police statement of facts the child was first spoken to on 9 September 2012 in relation to the matter and the father was charged on 18 September 2012. Police also applied for an ADVO for the protection of the child and an interim order to this effect was made. The charging and making of an ADVO had the effect of preventing the father from participating in joint sessions with the child in his therapy with Dr V until those charges were resolved.
In my view, it can be inferred from the timing of these events that the mother has strategically complained to police in an effort to thwart the development of a relationship between the child and his father.
The mother was also initially reluctant to support the child in his therapy with Dr V by failing to present him to a number of sessions, repeatedly arriving extremely late and then unilaterally withdrawing him from the sessions from June 2013. The mother also refused to attend with the child and the Family Consultant on 30 October 2013.
I also make the following observations about the violence allegedly perpetrated by the father against the mother.
The mother’s allegations are generally extremely broad and non-specific and in most cases it is not clear exactly what she alleges. Although she describes the father being “physically violent … pushing and hitting on a regular basis” and describes him as “attacking” or “abusing” her, at times she uses these words interchangeably with the father “insulting” or “upsetting” her.
It is clear from the mother’s evidence that she did not contact police in relation to any of the incidents in which she says she was harmed. While the failure to make a complaint to police does not of itself indicate that the assaults did not occur, in this case the mother on her own version of events was aware of an ability to make complaints to the police about family violence and on occasions she did so. For example, she says that on 14 December 2006 when the husband became upset at her and yelled and insulted her she telephoned the police and police later attended the parties’ home.
The mother was also aware according to her own evidence that she could attend a hospital and report the abuse. She describes a particular occasion where she went to the hospital “with bruises” and told the doctor what happened (even though she does not specify in her affidavit what happened) and that the doctor gave her the number for a domestic violence helpline which she decided not to utilise. In the hospital notes, which relate to an attendance in August 2007 where the mother wanted a record made of bruising, the mother told the doctor that it was the first time the husband had assaulted her. This is inconsistent with her assertion that from the time of the child’s birth the husband pushed and hit her on a regular basis. It is also of note, in my view, that this is the only occasion when the mother made a complaint to a medical practitioner and it occurred on the same date the father also reported an assault upon him. The doctor’s notes of his observations of the father are consistent with the father’s allegation.
Further, on the day that the mother left the father she called the domestic violence helpline and moved into a refuge. In my view, the mother was well aware of her capacity to complain to police and other agencies in relation to domestic violence. The fact that she did so in relation to minor issues such as her husband insulting her but did not report the more serious physical assaults she alleges lends some weight to the father’s position that these assaults did not occur.
The mother appears to rely upon evidence of complaints made to Mr F (“Mr F”) with whom she started a relationship in about August 2011, and Mr F’s observations, to support her claims that she was bruised as a result of assaults perpetrated by the father upon her. The mother says that in August 2011 Mr F was shocked when he saw bruises on her legs and she told Mr F that the father had caused them. Mr F’s version differs in that he said he saw bruises on the mother’s legs every time he saw her from around August 2011 and that on a number of occasions when he asked her about them the mother said that she had bumped herself at work or home. Mr F says that in September 2011 he saw that the mother had a bruise on the back of her right arm which he says resembled the first bruise he saw on the mother’s leg and that there were clearly four long finger shaped bruises running parallel on the back of the arm. He said that when he asked whether the father was hurting her and causing these bruises, the mother agreed.
In my view, the evidence relating to bruising in around August and September 2011 is not consistent with the mother’s allegations. There are inconsistencies between both versions in relation to where the bruises were located and the conversations concerning them but most significantly the mother does not allege anywhere in her evidence that the father assaulted her at around this time and as a result of the assaults she suffered bruising.
So far as the violence allegedly perpetrated by the father against the child is concerned, it is also in my view of significance that the mother made no complaint to police or any child welfare agency at the time of any of the alleged incidents. The first time police interviewed the child about these complaints was at a time after the Court had ordered therapeutic support for the child and his father but before the therapy had commenced.
Further, although the mother alleges that on some occasions the child was physically injured, such as receiving the welts on his bottom as a result of the beating in September 2011 and the lump on his stomach under his ribs and bruise on his arm in mid-January 2012, there is no evidence that the mother sought medical attention for the child in respect of these alleged injuries. The medical records of the Medical Practice attended by the family indicate that the mother and father attended the Practice fairly regularly throughout 2011 and on three occasions the child attended with his father. There is no record of the mother taking the child to the doctor in respect of any injuries.
The mother also alleges that the father’s abusive conduct towards the child began when the child was about three and a half and caused him difficulties with his development, that he did not speak and was underweight. There is no evidence to support these matters which, in my view, if it were present would have been of significant concern and would lend weight to the mother’s claims.
In relation to the allegations of suspected sexual harm, the mother also claims that observations were made about concerning behaviour exhibited by the child at the refuge where they were living and at the school the child was attending. No records from either of these agencies have been produced to support this contention. the child’s school report from the school he was attending shortly prior to the parties’ separation when the mother alleges that he was showing concerning behaviour does not address this issue.
It is not in dispute that the mother left the child in the care of the father on a number of occasions after he had been on her version violent against him. In particular, at a time when the mother says she “could not stop her husband controlling and abusing” the child, the father and the child travelled to Country X and the Y Town for at least three weeks unaccompanied by the mother. The mother says that she was confused and did not feel that her son would be safe travelling with the father and that she signed an agreement permitting the father to take the child under marital duress. For the reasons given relating to the mother’s credibility, I do not accept this assertion by the mother. There were also two occasions subsequent to when the mother says the father had assaulted the child (of around three weeks each) when the mother travelled to Country D and left the child in the care of his father. She gives no explanation as to why she left the child in his father’s care during these periods, when on her version of events the father was regularly committing serious assaults against the child.
Finally, at a time when she needed the father’s assistance, the mother expressed regret for her behaviour in the past. In the message the mother sent to the father on 16 December 2013 (set out at paragraph 61 of these Reasons) at a time when she and Mr GG were experiencing some difficulties she says “Be human and remember we were family. I am sorry, I hurt you, not going to repeat again. …”.
In summary, the mother makes particularly serious allegations of violence said to have been perpetrated by the father against herself and the child. In my view, having regard to the matters relating to the mother’s credibility set out above, the timing of the complaints, the absence of corroboration where it may be expected and the mother’s behaviour which is inconsistent with genuine concerns that would arise if the complaints were true, I am not satisfied to the requisite standard that the father assaulted the mother or the child as alleged.
So far as the father’s allegations against the mother are concerned, I am satisfied that the mother was aggressive towards him as alleged and assaulted him on two occasions, in August 2007 and in November 2009. On both occasions the father sought medical advice and in general he was in my view a more credible witness. Further, there is some corroboration from other witnesses such as Mr LL and the father’s brother concerning the mother’s aggressive behaviour. I am also satisfied that there was one occasion where the mother inappropriately physically punished the child by hitting him with a belt as alleged by the father in December 2011.
Is the child at risk of harm under his current living arrangements?
The father contends that the child has been exposed to harm since at least the time that he has been living with his mother and Mr GG, which according to the mother commenced at the end of September 2013.
First, the father relies upon the text messages sent by the mother in December 2013. As previously indicated, it is not in dispute that the mother sent a text message on 22 December 2013 at 11.45 pm requesting the father’s help to find a place for her and the child to live as they could not stay at Mr GG’s home any more. It is also not in dispute that the mother’s lawyer advised the Independent Children’s Lawyer that the mother admitted to some “slight arguments with her present partner” but regrets sending the text message and is in a loving relationship with Mr GG and that they happily reconciled the same evening.
The mother does not refer in her affidavit to any incident in December 2013 or the circumstances in which she sent the email in her affidavit. I do not accept the explanation that she had a “slight argument” with Mr GG, as the clear inference from the email is that she was looking for somewhere to live. Although under cross-examination the mother said that this incident involved police, there is no record of police involvement in police documents produced under subpoena, which indicates that her evidence on this issue is inaccurate.
Under cross-examination Mr GG said there was only one incident in which police attended his home. Police records indicate that there were two, the first occurring on 13 January 2014 at the mother’s request when Mr GG became intoxicated and damaged a door when the mother locked him out. When police attended the mother had no concern and did not need assistance.
In addition to the incident in December 2013, the father also relies upon the evidence of Mr JJ about the circumstances at the mother’s home between April and July 2014, which has not been challenged by the mother.
Mr JJ gave evidence that he resided at the mother’s home during this period and about circumstances which began when the mother started her full time employment in the first week of June 2014.
Mr JJ said that from this time the mother started asking him to take the child to school in the morning. He said that the mother left the home to go to work at 7.30 am each week day and that Mr GG left for work at 6.00 am. Mr JJ also said that on occasions when he was unavailable, the mother asked him to ask one of the tradesmen doing work on the property at the time to take the child to school. Mr JJ also said he observed the child making his own breakfast most mornings which included the child climbing up on a revolving stool and heating his breakfast cereal in the microwave. Mr JJ on occasions assisted the child in preparing breakfast as he was concerned that the child may hurt and fall himself. He also observed the child preparing himself for school including packing his schoolbag.
Mr JJ also said that Mr GG drank every night after work and that he observed Mr GG and the mother arguing and fighting on numerous occasions. He said that two occasions were particularly serious.
In May 2014 Mr JJ said the following occurred:
[Mr GG] and [Ms Belov] were fighting and I observed [Mr GG] running behind [Ms Belov]. [Mr GG] appeared to be drunk as I could smell the alcohol on his breath when he spoke. I tried to calm the situation and [Mr GG] screamed at me: “Get the fuck out”. [Ms Belov] said to me: “Punch him he is an animal”. I said to [Mr GG]: “Go away or I will call the police”. [Mr GG] ran upstairs. That evening [Ms Belov] stayed in my bedroom downstairs and said to me “[Ms GG] was trying to kill me with scissors”. She also said “I am scared to go upstairs to bed”.
On the second occasion of concern, on 21 July 2014 Mr JJ said the following occurred:
I came home from work and [Ms Belov] said to me: “He is trying to choke me”. I observed [Ms Belov] was running and [Mr GG] was running after her. As they ran past me [sic] room [Mr GG] screamed: “Get out of my house”. I observed [Ms Belov] to knock over a paint tin and splash white paint on the newly painted wall in the living room. [Ms Belov] then picked up a paintbrush and wrote the word: “Fuck” on the glass sliding door. [Ms Belov] said to me: “Save me he is trying to kill me”. I then called the police. When I told them I had called the police, [Mr GG] calmed down. When the police arrived I explained to them what I observed and I understand they spoke to both [Mr GG] and [Ms Belov]. After this incident [Ms Belov] advised me to move out without notice.
Although the mother was notified, she did not attend the resumed proceedings in which the further evidence was given and, therefore, did not challenge Mr JJ’s version. Mr JJ remained firm as to his evidence under cross-examination by the Independent Children’s Lawyer.
In the circumstances, I have no reason not to accept the evidence of Mr JJ. Police records indicate that they attended on 21 July 2014 and their observations of the glass sliding door were consistent with Mr JJ’s evidence. Although police records indicate that the mother, Mr GG and the child were all asleep when they attended and that the mother told them there had been no argument, the mother has not given any version of the event in the proceedings and Mr GG, according to the records, was observed by police to have smelt of alcohol.
Text messages exchanged between Mr JJ and the mother, annexed to his affidavit, are also consistent with some aspects of Mr JJ’s evidence. For example, his involvement at some level in the care of the child at the mother’s request is consistent with the mother’s text message as follows on an unknown date:
Hi [Mr JJ] could you please tell the child that he shall go to [OOs] house after school. I am allowed him. He doesn’t need to go after school care. Thank you.
According to the mother’s affidavit, one of the child’s school friends is OO.
Mr JJ wrote in a return text message “I already dropped him”.
In another text message the mother wrote to Mr JJ “Hi [Mr JJ], uts [sic] all good! I am more grateful for help with the child” and on another (undated) occasion she wrote to Mr JJ “Did you dropped [sic] the child to school”? In another undated text message the mother wrote:
[Mr JJ], JUST IN CASE, if they will refuse to take the child. Then, go home, give the child X-Box, switch off hiter [sic] I spoke with [Mr GG] he will get home after 1 hour. I prefer the child to be in vocational [sic] care today.
In relation to Mr GG’s drinking, violent behaviour and the nature of the relationship between the mother and Mr GG there is also some corroboration of Mr JJ’s version in text message exchanges. For example, in an undated text message the mother wrote:
Yes, if he will make a prob. I don’t hesitate to call cops. Another thing is he drove drunk. I called cops, but they didn’t catch him. He is trying for us to get ennoyd and leave house. It’s won’t happen. Let him do what he wants just hold on and be strong. [sic]
On another occasion she wrote:
I cannot torelate an alchogolics and I have through the situation, how bad it is. Its awful. [sic]
There is no other evidence of events which caused the mother to send these text messages.
Mr JJ’s evidence concerning Mr GG’s drinking is also corroborated by Mr GG’s criminal record which includes a conviction for a high-range drink driving charge for which Mr GG received a suspended sentence. Mr GG also has a conviction for a domestic violence offence, which is not related to the mother.
In her affidavit, the mother described herself as a full-time housewife and that she takes care of all of the child’s needs including washing, ironing, bathing, cooking and reading to him, assisting with his homework and meeting his social needs. The mother describes the child as well settled in the home. She also says that the child and Mr GG are “very friendly” and that the child is very happy around Mr GG.
On the basis of the uncontradicted evidence of Mr JJ I am satisfied that from time to time Mr JJ, a tenant in the mother’s house, provided some assistance to the mother, especially in taking the child to and from school at the mother’s request. I am satisfied that on occasions the child was not adequately supervised given his age and that strangers, such as tradesmen, also assisted in taking the child to school. I am also satisfied that Mr GG drinks excessively on occasions and has caused the mother to feel frightened and that she has called police from time to time.
The Parties’ Proposals
At the completion of the hearing the final proposal of the father is that he have sole parental responsibility for the child, that the child live with him and that the mother spend defined time with the child. the child’s time with his mother under the father’s proposal during school terms is to be each alternate week from after school Thursday to before school Monday and for half of the school holidays in block periods as well as time on particular special days. The father also proposes that the Court order that the mother be restrained from bringing the child into contact with Mr GG. In other words, it is the father’s proposal that the mother change her own living arrangements and it is envisaged that in order to comply with such an order the mother would effectively cease residing with Mr GG.
The Independent Children’s Lawyer’s final proposed orders are that the mother and father have equal shared parental responsibility for the child and that the child live with his mother when the orders are first made, but spend increasing time with his father up until the end of term 1 in 2015. Following the April 2015 school holiday period it is proposed that the child live with each of the parents on an alternating “week about” equal shared care arrangement. It is also proposed under the Independent Children’s Lawyer’s arrangement that the child live with his parents during school holidays equally for block periods. The Independent Children’s Lawyer also seeks certain restraints on the parents such as making disparaging or derogatory remarks.
From the time the proceedings were adjourned on 10 December 2014 for judgment to be delivered, the child has been living with his mother but spending substantial and significant time with his father. Overnight time with the father, for a single night, was first introduced on 27 October 2014 and interim orders each incrementally increasing the time the child spends with his father have been made on each subsequent Court date. A regime amounting to substantial and significant time was foreshadowed in Dr V’s recommendations which came before the Court on 28 November 2014 when submissions were made about final orders. In my view, it can be inferred from the mother’s failure to participate in any of the Court events following the July hearing and particularly since 28 November 2014, that the mother has acquiesced to and has no objection to an arrangement whereby the child lives with her and spends substantial and significant time with the father.
The Law & Discussion
The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.
The objects as applied to the child are to ensure that his best interests are met by:-
a)ensuring that he has the benefit of both of his parents having a meaningful involvement in his life, to the maximum extent consistent with his best interests; and
b)protecting him from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
c)ensuring that he receives adequate and proper parenting to help him achieve his full potential; and
d)ensuring that the parents fulfil their duties, and meet their responsibilities, concerning his care, welfare and development.
The principles underlying these objects as applied to the child are that (except when it is or would be contrary to the child’s best interests):
a)C has the right to know and be cared for by both his parents; and
b)C has a right to spend time on a regular basis with, and communicate on a regular basis with, both his parents and other people significant to his care, welfare and development; and
c)C’s parents jointly share duties and responsibilities concerning the child’s care, welfare and development; and
d)the parents should agree about the future parenting of the child; and
e)C has a right to enjoy his culture (including the right to enjoy that culture with other people who share that culture).
According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, I must regard the best interests of a child as the paramount consideration.
Section 60CC sets out the primary considerations and additional considerations I am to consider in determining what is in the child’s best interests.
Primary considerations
The primary considerations (under s 60CC(2)) are:-
a)The benefit to the child of having a meaningful relationship with both of his parents; and
b)The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
As these matters were commenced before the June 2012 amendments to the Act, the primary considerations are to be equally balanced.
Will the child have the benefit of having a meaningful relationship with both of his parents under the proposed orders?
Although the meaning of the phrase “meaningful relationship” is not defined in the Act, the Full Court in McCall & Clark[2] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[3] and has also agreed with the reasoning of Bennett J in G & C[4].
[2] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
[3] (2007) Fam LR 518
[4] [2006] FamCA 994
Brown J in Mazorski & Albright said at [26], after setting out the definition of “meaningful” and “meaning”:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.
Bennett J discussed the terminology in G & C and said “the enquiry was a ‘prospective’ one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).”
I am of the view, particularly having regard to the evidence of the Family Consultant and Dr V, that it will be of advantage to the child to enjoy a meaningful or significant relationship with both of his parents. Each of the proposed suite of orders would provide for the child to enjoy a meaningful relationship with each of his parents.
Will the child be protected from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence under the proposed orders
I am not satisfied that the father poses any risk of physical harm to the child or psychological harm as envisaged under this section of the Act.
At the time these proceedings were commenced “abuse” was defined as:
a)An assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, enforced in the State or Territory in which the act constituting the assault occurs; or
b)A person involving the child in a sexual activity with that person or another person in which the child is used directly or indirectly as a sexual object by the first-mentioned person or the other person and where there is an unequal power in the relationship between the child and the first-mentioned person.[5]
[5] Family Law Act 1975(Cth) s 4.
I am not satisfied that there is an unacceptable risk that the child will be subjected to abuse in the father’s home and there is no suggestion that he has been neglected by the father. So far as family violence is concerned, for the reasons given, I am of the view that the parents had a volatile relationship while they were together and it is likely that the child was exposed to at least verbal abuse between the parents. However, there is no evidence to suggest that the father is otherwise involved in relationships characterised by family violence or that the verbal abuse between the parties has continued after separation.
So far as the circumstances in the mother’s home are concerned, for the reasons given, I am satisfied that on one occasion the mother did physically punish the child by striking him with a belt. In my view, it is appropriate to include in the final orders an order prohibiting physical punishment to protect him from this form of potential harm.
There is also some evidence concerning the mother’s current domestic circumstances which the father submits indicate that the child is being neglected and exposed to family violence. I do have some concern about the lack of supervision in the mother’s home given the child’s age and the arrangements made by the mother for a tenant or tradesmen working at the house to take the child to school and for him to prepare his own breakfast. However, it is not contended by either the father or the Independent Children’s Lawyer that these circumstances amount to an unacceptable risk of harm as each proposes that the mother be responsible for a substantial share of the child’s care.
It is also submitted by the father that the child is currently exposed to family violence within the mother’s home and orders ensuring that the child not come into contact with Mr GG are proposed to mitigate this harm.
I have some concerns on the basis of the limited evidence before me that the relationship between the mother and Mr GG is also volatile and there is some risk that the child may be exposed to this volatility. However, there is insufficient evidence for me to form the view that the level of risk is unacceptable and necessitates the order sought by the father that the mother be restrained from bringing the child into contact with Mr GG.
Additional considerations
Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.
Views expressed by the child
In my opinion, the views expressed by the child when he was interviewed by a Family Consultant in June 2012, August 2012 and October 2013 should be given no weight. At that stage, the child was 5 and 6 years old respectively and had had virtually no contact with his father since the mother removed him from the family home in February 2012. the child had also not received the benefit of therapy with Dr V and appeared from the answers given to the Family Consultants to be heavily influenced by his mother’s views.
I attach some weight to the views expressed by the child to Dr V contained in her report dated 13 November 2014 that he was excited about spending overnight time with his father. However, having regard to the child’s age, his views are not a matter to which I attach significant weight.
The nature of the child’s relationship with parents and others
Although it is some time since the Family Consultant made his assessment, he was not shaken in his opinion that the child’s primary attachment is with his mother. The Family Consultant described the relationship between the child and his mother as close and said that it would be traumatic and confusing for him if there were a change in living arrangements and he were to primarily live with his father. The Family Consultant was of the view given this relationship, that there would be no advantages to the child under this arrangement and that he could only see potential disadvantages.
In the initial Family Report the Family Consultant considered that if the Court accepted the father’s account that the mother had wilfully and malevolently fabricated allegations against him, this would suggest that the mother had “embarked on a systematic and ruthless attempt to alienate the child from his father”. At the time the Family Consultant prepared his second report and the child had started to re-establish a relationship with his father with the assistance of Dr V, the Family Consultant was of the opinion that the mother did not appear to be alienating the child from the father.
Although there were some legitimate concerns when the child was first assessed that a process of alienation from the father had commenced, at the conclusion of the proceedings, the uncontested evidence of Dr V was that the child had adjusted well to his father being back in his life and was more than happy to show affection towards his father.
The Family Consultant did not assess the relationship between Mr GG and the child. I do not attach much weight to the mother’s assessment of their relationship but there is no particular evidence to suggest that it is poor.
The Family Consultant’s evidence, to which I attach significant weight having regard to his expertise and consistency with Dr V’s evidence, favours final orders along similar lines to the current interim orders, that is, the child living with his mother and spending substantial and significant time with his father.
The willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the child and the other parent
As these proceedings were commenced prior to 7 June 2012 the Court must consider this matter. Prior to the reintroduction of the child to his father from February 2014, this was a significant issue. As indicated, it appeared that the mother had engaged in a process of alienating the child from his father. However, after the orders were made for the second time for therapeutic intervention to assist the child, it became apparent that the mother either desisted from the alienation process or the relationship between the child and his father flourished despite her actions.
Essentially, the father submits that the mother cannot be trusted not to embark upon alienating the child from his father again in the future on the basis of her past actions. He is concerned that there are still some relatively recent indications of the mother’s unsupportive attitude to the child’s relationship with his father. In particular, the father relies upon the mother’s actions in withdrawing the child from the therapeutic sessions with Dr V in June 2013 and regularly missing appointments or arriving late prior to that date. Further, there was some evidence that even after the therapy recommenced the mother was once again failing to present the child on all occasions as required.
In my view, there is a low risk that the mother will either attempt or be successful in alienating the child from his father after final orders have been made. As has previously been noted, it appears that the mother has acquiesced in accepting the incremental changes in the time the child has spent with his father since the completion of the first phase of the hearing. Dr V’s report in November 2014 which indicates that the mother had on at least one occasion presented the child to therapeutic sessions for the purpose of Dr V monitoring the reintroduction of the child to his father augers well for the future. Also, the child’s enthusiasm about increased time with his father indicates that even if the mother attempts to once again alienate him from the father, a strong relationship has already been established and is unlikely to be affected by any further efforts at alienation. the child spending substantial and significant time with his father is likely, in my view, to sustain that relationship and act as a buffer against any attempted future further alienation. I am not of the view that it is necessary to change the child’s current arrangements to preserve the relationship with the father against further attempts by the mother at alienation.
Despite the understandable deep sense of grievance that the father feels about the serious allegations that the mother made against him concerning his behaviour towards her and the child, cruelly withholding the child from him and attempting to alienate the child from him, the father has not attempted to disrupt the relationship between the child and his mother. In my view, he has demonstrated significant forbearance in doing so and understanding of the importance of the child’s relationship with his mother. On this basis I am of the view that regardless of the orders made in this matter, the father will continue to promote the child’s relationship with his mother.
The likely effect of any change in the child’s circumstances under the proposed Orders
This is a significant consideration in this matter. Each of the suite of orders proposed by the Independent Children’s Lawyer and the father involve a change in circumstances for the child. Under the father’s proposed orders, the child would reside primarily with him and spend time with the mother in a new home, where he will not come into contact with Mr GG.
Despite extensive cross-examination, the Family Consultant remained of the view that the mother’s actions in attempting to alienate the child from his father and concerns about her unlikelihood to promote that relationship in the future (if that were to be found) would not be sufficient to justify moving the child primarily from the care of the mother to his father. He remained firm that such a move would be traumatic for the child given the strength of his relationship with his mother.
The Family Consultant was not specifically cross-examined about the impact upon the child of changing to an equal shared care arrangement, though he did remain firmly of the view that the child should remain living primarily with his mother.
In my view, there would certainly be less impact upon the child if he were to reside with his father now than at the time of the hearing, given the increased amount of time the child has spent with his father in recent months and the strength of the relationship which has developed over that time. However, the child has experienced significant disruption in his life particularly since separation. In those three years the child has resided in three refuges and with his mother and her partner. He attended six schools in a 20 month period. He had no contact with his father for two years and now spends time with him regularly. Fortunately, the father lives near the mother and whatever living arrangement occurs under the final orders the child will continue to attend the same school. In my view, it is important for the child to maintain stability in his living arrangements and there is some risk that this stability will be compromised if he is to live with each of his parents equally rather than have a primary home and spend time at the other parent’s home, especially where there has been a history of mistrust between the parents.
It appears from Dr V’s most recent report and the mother’s acquiescence to the current arrangement, that this arrangement is working well for the child.
Accordingly, in my view, subject to any concerns about each parent’s capacity and risks of harm, the likely effect of any change in the child’s circumstances favours maintaining the current orders on a final basis.
The practical difficulty or expense in spending time with or communicating with the other parent
No practical difficulties or expense arise in this matter as both parents live near one another, and there are no indications that either intends moving.
The capacity of the child’s parents and others to provide for his needs
Although there may have been some concerns about the father’s parenting some time ago, there is no evidence to suggest that he is not a capable parent. Dr V, who has spent significant time facilitating the relationship between the child and his father, is of the opinion that there are no concerns about the father’s capacity to parent the child. The Independent Children’s Lawyer also does not raise any concerns about the father’s capacity and proposes an equal shared arrangement.
The father has maintained at all times that there are concerns about the mother’s capacity to meet the child’s physical needs in the past and at present. So far as the circumstances during the relationship are concerned, I am not satisfied that the mother lacked capacity to meet the child’s needs except in relation to inappropriate and excessive physical discipline. So far as the current circumstances are concerned I have found that there are some concerns about inadequate supervision by the mother.
Particular weight is attached by the father to the mother’s incapacity to meet the child’s emotional needs, particularly as it is submitted she has been involved with two violent partners since separating from the father and that Mr GG with whom she lives, is said to drink to excess and behave violently towards her, to which the child may be exposed.
Despite the broad assertions about mother’s lack of capacity in this regard the evidence indicates that police have been called to the mother’s premises only on two occasions, and in my view neither of these incidents give rise to serious concerns. Although inadequate supervision and exposure to Mr GG’s behaviour are less than ideal, these factors alone would not be sufficient to justify a change in primary residence or to require the mother to completely change her living arrangements.
Maturity, sex, lifestyle and background
C is of Country X heritage on his paternal side and Country D heritage on his maternal side. Although there may have been some concerns earlier that part of the mother’s attempts to alienate the child from his father included some racial vilification of the Country X culture, there is no evidence to suggest that this is still occurring. the child participates in festivals and other activities related to his Country X heritage whilst spending time with his father and he has also travelled to Country X with his father on at least one occasion.
The mother has also enrolled the child in Country D school and appears to participate in faith activities with the child associated with the Country D Orthodox Church. Under the proposed orders the child can participate in traditions associated with each of his parents’ cultures whilst living or spending time with each of them.
The attitude to the child and the responsibilities of parenthood
In my view, removing the child from his father’s care for a period of two years, making false allegations against the father for her own strategic purposes, attempting to alienate the child from his father and resisting attempts to rebuild the relationship between the child and his father indicate that the mother had a poor sense of the responsibilities of parenthood.
However, since January 2014 when orders were made for the reintroduction of the child to his father in a therapeutic environment, the mother’s actions have significantly changed. Although there have been a couple of occasions where she failed to make the child available for time with his father, in general her attitude towards her responsibility as a parent has improved and as noted she seems to have accepted that the current arrangement is in the child’s best interests.
The father has at all times shown that he is a responsible parent.
Any family violence involving the child or a member of the child’s family
For the reasons given previously, I am not satisfied that the father engaged in physical violence during the relationship. I am of the view that the relationship was volatile and that the mother was on occasions physically aggressive towards the father. There is no suggestion that the parents have engaged in violence towards one another since separation and there have been no difficulties associated with occasions such as the child’s changeover from the care of one parent to another.
Whether it would be preferable to make an order that would least likely lead to the institution of further proceedings in relation to the child
As previously indicated, in my view, the mother has acquiesced to the current interim arrangements as demonstrated by her failure to participate in the resumed proceedings. A continuation of this arrangement on a final basis is the order that would least likely lead to the institution of further proceedings by the mother.
It has been submitted on behalf of the father, that a significant issue in relation to his proposals is the current unacceptable risk of harm to the child while living with his mother and Mr GG, as he is exposed to conflict or violence and is being neglected or inadequately supervised. I am currently not satisfied that an unacceptable risk arises in relation to these matters though if more substantial evidence comes to light it may be that the father will institute proceedings for a change of orders.
Parental responsibility
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
In Goode & Goode[6] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.
In this matter, the mother initially sought that she have sole parental responsibility for the child though her current position is unknown. The father seeks sole parental responsibility and the Independent Children’s Lawyer seeks that parental responsibility be jointly shared.
[6] (2006) FLC 93-286
Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
It can be assumed through the orders proposed, that the Independent Children’s Lawyer is of the view that the presumption that it is in the child’s best interests for his parents to have equal shared parental responsibility has not been rebutted. It is submitted by the Independent Children’s Lawyer that it is a major step to exclude a parent from the decision-making process in relation to a child.
No specific submissions were put on behalf of the father in relation to his proposal for sole parental responsibility, though I understand his case to be that it would not be in the child’s best interests for the parents to have equal shared parental responsibility on the basis of all of the submissions made concerning the best interests considerations.
One of the principals underlying the objects of the parenting provisions is that except where it would be contrary to a child’s best interests, a child’s parents jointly share duties and responsibilities concerning the child’s care, welfare and development. It would be a big step to eliminate one parent from decision-making in relation to a child. While this may have been justified at an earlier stage in this matter, such as at the time when the mother was taking calculated steps to alienate the child from his father and eliminate the father’s presence in the child’s life, there is evidence of a greater degree of cooperation and communication between the parents in recent times.
While the mother at times took a contradictory position in the conduct of the proceedings in relation to the role she envisaged the father playing in the child’s life, she has recently been generally cooperative in taking the child to therapy and complying with the Court’s orders in relation to the child’s time with his father. Although the father’s past level of mistrust towards the mother is understandable given the history of the matter, there seems to be no current basis for that level of mistrust.
The exercise of equal shared parental responsibility does not, in my view, require the same high degree of cooperation and flexibility required for an effective equal time shared care arrangement. The shared exercise of parental responsibility only relates to major long-term issues in relation to the child and requires the parents to consult one another and make a genuine effort to come to a joint decision about these issues. In my view, once final orders are made and the child’s living arrangements are settled, the parents will have the capacity to make such joint decisions regarding major long-term issues.
Accordingly, I am not satisfied that it would not be in the child’s best interests for the parents to have equal shared parental responsibility, and the presumption applies.
As I have indicated that an order will be made for the parents to have equal shared parental responsibility for the child, under s 65DAA(1) of the Act I must consider whether the child spending equal time with each of the parents would be in the child’s best interests, and whether such an order is reasonably practicable. If it is considered that an order providing that the child spend equal time with each of the parents would either not be in his best interests or not be reasonably practicable, I must then consider under s 65DAA(2) whether the child spending substantial and significant time with each of the parents would be in his best interests and be reasonably practicable.
In my view it would not be in the child’s best interests for him to spend equal time with each of his parents. While the Independent Children’s Lawyer advocated for an order to this effect, there was no cross-examination of either the Family Consultant or Dr V about this proposal. Specific submissions were not made as to why such an order would be in the child’s best interests. Rather, submissions were directed towards the inappropriateness of making orders as proposed by the father, that is, for the child to reside with him.
While I am of the view that there is a sufficient level of cooperation for the parents to consult and make joint decisions concerning major long-term matters, I am not satisfied that the parents have the capacity to be sufficiently flexible, cooperative and communicate well enough as would be required under an equal shared care regime. Further, due to the instability that the child has experienced over the past three years in his living arrangements, in my view, it would be more beneficial for him to have one primary established home rather than move between two households where there is a significantly different pattern of care.
I am, however, of the view, having regard to the nature of the child’s relationship with each of his parents, the evidence that the current arrangements are working well and the opinions of the Family Consultant and Dr V, that it is in the child’s best interests that he spend substantial and significant time with each of his parents. There is no evidence to suggest that such an arrangement would not be reasonably practicable.
Conclusion
In my view there is significant weight to the submissions made on behalf of the father that the mother’s behaviour in removing the child from his father’s care and ensuring that there was no contact between them for two years, attempting to alienate the child from his father and making serious unfounded claims about the father’s conduct reflect very poorly upon her. These actions were also not in the child’s best interests. Up until January last year when supportive therapy was put in place to reintroduce the child to his father, it may well have been that the orders the father now seeks would have been those that would have met the child’s best interests.
However, it has not been contradicted that the child’s primary attachment is to his mother and that she has demonstrated a capacity to meet his day-to-day and physical needs. Although there was a very real concern that she did not previously have the capacity to meet his emotional need to have a meaningful relationship with his father, it appears that she has changed her position in this regard since around January 2014 when the therapeutic intervention commenced. The success of that intervention in re‑establishing the relationship between the child and his father and the quality of that relationship indicates that it is extremely important for the child to continue to receive the benefit of that relationship in a meaningful way.
Although there are some concerns about the mother’s poor supervision of the child and her current relationship with Mr GG and the risk of the child being exposed to conflict between them, it is not sufficient in light of all of the other evidence to make the orders as proposed by the father. For the reasons given I am also of the view that it is not in the child’s best interests to make orders for an equal shared care arrangement in accordance with the proposal of the Independent Children’s Lawyer.
For these reasons I make orders that the current parenting arrangement continue, that is, that the child live with his mother and spend substantial and significant time with his father and that the parents jointly share parental responsibility for the child.
The orders that I make are as set out at the forefront of these reasons for Judgment.
I certify that the preceding two hundred and thirty four (234) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 27 March 2015.
Associate:
Date: 20 March 2015.
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