BANGI & BEZRUKOVA
[2019] FamCA 42
•6 February 2019
FAMILY COURT OF AUSTRALIA
| BANGI & BEZRUKOVA | [2019] FamCA 42 |
| FAMILY LAW – CHILDREN – Where there is one child aged almost 13 years – Where the matter was remitted by the Full Court for consideration of a discrete issue – Where the dispute relates to the proportion of time the child will spend with each parent during school terms – Where the police have attended the mother’s residence on multiple occasions due to reported violence and conflict between the mother and her partner – Where more time in the father’s household and less time in the mother’s household will reduce the child’s risk of exposure to violence, conflict and alcohol use – Where orders are made that the child lives with the father and spends substantial and significant time with the mother. FAMILY LAW – PARENTAL RESPONSIBILITY – Where an order has been made for the parents to have equal shared parental responsibility – Where the parents are unable to agree about which school their child will attend – Consideration of the proposed schools and the circumstances of the child – Where an order is made specifying which school the child will attend. FAMILY LAW – PRACTICE AND PROCEDURE – Where the matter has been remitted by the Full Court – Where the father seeks to rely on findings made by an earlier Court in the same proceedings – Consideration of case law and s 69ZX of the Family Law Act 1975 (Cth) – Where the Court is able, but not required, to adopt unchallenged findings made by the trial judge in earlier proceedings. |
| Family Law Act 1975 (Cth) ss 4, 60CA, 60CC, 65DAA, 69ZX, 79A Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 |
| Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96 Ferro & Kopel(No 2) [2016] FamCA 1124 Hartnett & Sampson (Scope of Rehearing) (2009) FLC 93-391; [2009] FamCAFC 1 Holgar & Stott and Anor [2017] FamCA 772 McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92 |
| APPLICANT: | Mr Bangi |
| RESPONDENT: | Ms Belov |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | SYC | 850 | of | 2012 |
| ORDERS MADE: | 23 January 2019 |
| JUDGMENT DELIVERED: | 6 February 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Loughnan J |
| HEARING DATE: | 8, 9, 10 and 11 January 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Givney |
| SOLICITOR FOR THE APPLICANT: | Corish & Co Specialist Family Lawyers |
RESPONDENT MOTHER: | In Person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Berry |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
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).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC850 of 2012
| Mr Bangi |
Applicant
And
| Ms Belov |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings about the living arrangements for C (“the child”) who, at the time of the hearing, was almost thirteen years of age.
Final parenting orders were made on 22 January 2019. There were two errors in the orders and corrected orders were made on 23 January 2019. What follows is the reasons for those orders.
Parenting orders were made in these proceedings by the Honourable Justice Hannam on 27 March 2015. The father appealed against those orders but only insofar as they provided that during school term the child live with the mother and spend five nights per fortnight with the father. On 3 February 2017 the Full Court of this Court allowed the appeal, set aside those specific orders and remitted the parenting proceedings for rehearing. The father sought orders whereby the child live with the mother on alternate weekends and for one night in each intervening week during school term and otherwise with him. The mother sought that the child live with the father from after school each Thursday to before school on Friday in one week of each fortnight and from after school on Thursday to before school on the following Monday in the second week. Although the parents have equal shared parental responsibility, there was also a dispute between them about the school that the child will attend from 2019.
The decision in relation to the child’s schooling was very urgent and in order not to embarrass or inconvenience him or his parents, it was needed as soon as possible before the commencement of the 2019 school year. For that reason I made the parenting orders in advance of publishing these reasons. The property settlement proceedings, which do not have the same urgency, continue to be reserved and will be determined at a later date. During the trial I indicated to the parties that such an arrangement might be necessary.
Applications
The father sought the following parenting orders set out in a proposed minute handed up in Court on 11 January 2019[1]:
[1] Exhibit 26.
…
PARENTING
5.[The child] shall live with the Father.
6.[The child] is to spend time with the Mother:-
6.1.During school terms in a fortnightly cycle as follows:-
6.1.1.Week 1: From after school Friday to before school Monday each alternate week, commencing on the first week of each new school term.
6.1.2.Week 2: From after school Thursday to before school Friday each alternate week.
6.2.For half of each school holiday period at times agreed between the parties and if agreement is not reached: -
6.2.1.For the first half of each school holiday periods in even numbered years commencing after school on the last day of the school term.
6.2.2.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 4:00pm on the evening before the first day of the new school term.
Order 6.2 of the father’s proposal is a provision of the current orders and does not need to be further addressed.
The mother sought the orders set out in her Response to Initiating Application filed 12 December 2018, as follows:
ANNEXURE ‘C’ – FINAL ORDERS
1.All previous Orders in respect of [C] born … 2006 (“the child”) are discharged.
2.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.
3.[The child] shall live with the mother.
4.[The child] 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.
5.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.
6.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].
7.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.
8.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;
9.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.
10.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.
11.All outstanding parenting applications are dismissed.
The dispute is about the living arrangements for the child. Although the mother included a number of other parenting orders in her Response filed 12 December 2018, there is no mention of the detail of those orders in her submissions and most of them seem to repeat the orders already in force.
The Independent Children’s Lawyer (“ICL”) set out his proposals in a draft document submitted during final submissions on 11 January 2019.[2] The ICL sought:
[2] Exhibit 22.
1.THAT all previous parenting orders in relation to the child [C] born … 2006 the child of the marriage be discharged.
2.THAT the said child live with the mother.
3.THAT the parties have equal joint parental responsibility for the said child.
4.THAT for the purpose of communication relative to parental responsibility:
i.The requesting party shall consult with the other party with regard to any such issue in writing and the responding party shall reply to the requesting party in writing;
ii.Each party will make a genuine effort to come to a joint decision about any such issue and neither party shall unreasonably withhold their consent;
iii.If no agreement is reached between the parties or if no reply is received within 14 days after the initial request is made by the requesting party, or such longer time as may be agreed between the parties, then both parties shall take such steps and do all things necessary to attend upon a qualified family law dispute resolution practitioner to mediate the issue in dispute.
iv.In the event that either party fails or refuses to attend the said mediation then the other party shall be able to make the decision on the issue in dispute.
5.THAT the said child spend time with the father:
a.During school term 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 Wednesday to before school Friday each alternate week.
b.During school holiday time:
i.For one half of each school holiday period at times to be agreed between the parents and if agreement is not reached:
(1)For the first half of each school holiday period in even numbered years commencing after school on the last day of the school term;
(2)For the second half of each school holiday period in odd numbered years commencing at 10.00 am on the middle Saturday of each school holiday period and concluding on the evening before the first day of the new school term.
c.Notwithstanding any other order, the child is to spend time with his parents on the following special occasions:
i.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.
ii.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.
iii.If the child’s birthday falls on a weekend when he is in the mother’s care the child is to spend time with the father from 10.00 am to 2.00 pm on his birthday
iv.If the child’s birthday falls on a weekend when he is in the father’s care the child is to spend time with the mother from 10.00 am to 2.00 pm on his birthday
d.Such other periods as the parties may agree.
6.THAT to give effect to these orders the following shall apply:-
a.The father or his nominee 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 or as otherwise agreed.
7.THAT the mother:
a.sign all documents and do all things necessary to:
i.authorise the school at which the child may from time to time attend:
(1)to furnish the father with copies of all school reports, notices and advices concerning:
(a)the said child; and
(b)any activity involving the said child;
and
(2)to make available to the father copies of any school photographs of the said child at his expense.
b.THAT each party notify the other party immediately of:
i.any major illness suffered by the said child whilst in that party’s care;
ii.any hospitalisation of the said child whilst in that party’s care.
c.THAT each party make available to the other party copies of any medical report or reports that may be sent to that party in connection with such illness or hospitalisation;
d.THAT each party authorise:
i.any hospital in which the said child may be admitted; and
ii.any medical practitioner or mental health practitioner under whose care the said child may be
to give such information to the each of the parties as that party may request.
8.THAT the mother and the father are each restrained:
i.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 orders to include verbal, written or electronic means including email, text message, facebook and other forms of social media.
ii.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 hearing, such orders to include verbal, written or electronic means including email, text message, facebook and other forms of social media.
iii.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.
iv. 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.
9.THAT the father is to facilitate the child continuing to engage in therapeutic counselling with [Dr V] as recommended by her.
10.THAT the father is liable for the costs of the therapy sessions with [Dr V] referred to in order 9.
11.THAT each parent is to inform the other parent of any change to their address, email or contact telephone numbers (including both landline and mobile number if applicable) within 7 days of such change occurring.
The ICL also sought orders for costs, seeking that each of the parents pay $6,183.93, being one half of the total costs of the ICL which were $12,367.86.[3] It was submitted by the mother on 11 January 2019 that if the parties were ordered to pay this sum, it should be taken from the sales proceeds of the former matrimonial home.
[3] Exhibit 12.
Written evidence
The father relied on:
(a)Further Amended Initiating Application filed 9 November 2017;
(b)the father’s affidavit sworn 24 December 2018;
(c)affidavit of Mr KK Bangi sworn 6 August 2012;
(d)affidavit of Mr JJ affirmed 7 November 2014; and
(e)affidavit of Ms PP Bangi sworn 28 November 2018.
Although in her written submissions the mother objected to all of the affidavits in the father’s case, the only objection she pressed at the commencement of the hearing was in respect of the affidavit of Mr JJ. The father’s counsel said that the deponent would not be available for cross-examination. In the normal course, an affidavit would be excluded where the deponent is not made available for cross-examination, without a justifying circumstance. However, as with other aspects of the proceedings, the affidavit in question was part of the evidence before Hannam J in the earlier hearing. The evidence of Mr JJ was not challenged in those earlier proceedings. That is because the mother failed to attend the parts of the hearing which occurred after that affidavit was sworn and filed. However, there was no appeal by the mother in relation to the orders of Hannam J and although she attended a procedural hearing (about expedition) she failed to attend at the hearing of the father’s appeal. As a result there was no challenge on appeal to the findings of Hannam J in respect of Mr JJ’s evidence. Hannam J relied on the evidence of Mr JJ and that evidence influenced the findings and the orders in the earlier proceedings. I indicated to the parties that the affidavit would be admitted subject to weight.
As I have said, by way of her written submissions, in addition to the affidavit of Mr JJ, the mother also objected to the father’s trial affidavit because it was late and to the affidavit of the father’s brother, because it was old. On 14 August 2018 I made trial directions in respect of a trial to commence on a date to be allocated by the registry. The directions included a direction that the evidence of lay witnesses be included in one consolidated affidavit from each deponent, to be filed and served not later than six weeks prior to the first date of the trial, unless the parties otherwise agreed in writing. I also ordered:
…
7.In the event that any party becomes aware of any matter that would prevent the hearing commencing on the first day allocated or continuing to conclusion at the last day allocated that party is to forthwith restore the proceedings to the list on short notice to the other parties.
The parties did not file and serve their affidavits six weeks before the trial. The mother filed her trial affidavit on 17 December 2018 and that of Mr GG on 20 December 2018. Suffice it to say, the main affidavits were filed and served late. I do not recall any explanation being provided for that circumstance. Importantly, however, there was no application by either of the parties prior to the first date of trial (or indeed at any time) to vacate the dates or to otherwise adjourn the trial. I do not understand the mother’s complaint about the affidavit of the father’s brother. In any event the father’s brother was briefly cross‑examined by telephone from Country X. The mother did not press her objections about the affidavits of the father, his wife and brother but there is no merit in those objections in any event.
The mother relied on:
(a)Response to Initiating Application sworn 12 December 2018;
(b)the mother’s affidavit sworn 17 December 2018; and
(c)the affidavit of Mr GG filed 20 December 2018.
Expert evidence
The following expert evidence was relied on:
(a)Family Consultant Memorandum to Court dated 18 June 2012;
(b)Family Consultant Memorandum to Court dated 6 August 2012;
(c)Expert Report prepared by Mr II dated 15 November 2013;
(d)Expert Report prepared by Mr II dated 11 June 2014;
(e)Single Expert Report of Dr QQ dated 13 March 2018; and
(f)Report of Dr V dated 13 November 2014.[4]
[4] Exhibit 3.
Relevance of findings of Hannam J in earlier proceedings and the evidence in those proceedings
At the commencement of the hearing learned counsel for the father said that the father would rely on findings made in the earlier parenting proceedings which were determined by Hannam J by orders made on 27 March 2015. In particular, counsel referred to findings on credit and about violence and alcohol abuse. There was no demur to that course on behalf of the ICL. The mother did not oppose that course. The mother did not have legal representation at the hearing and I was reluctant to rely on the mother’s tacit concession about this question.
On the morning of 10 January 2019 I told the parties that I was confident in adopting the course proposed on behalf of the father. In particular I referred to comments made in the judgment of the Full Court in Hartnett & Sampson (Scope of Rehearing) (2009) FLC 93-391. The unanimous decision of the Full Court in that case was that it would have been an error of law for the judge hearing the case remitted from the Full Court to adopt the earlier findings, take further updating evidence and then determine the matters referred, unless the parties consented to that course. However, in a separate judgment, Warnick J observed that those proceedings had commenced before the 2006 amendments to the Family Law Act 1975 (Cth) (“the Act”) which introduced Division 12A to Part VII of the Act. His Honour went on to opine that if s 69ZX(3) had applied to those proceedings then “[t]he position might arguably have been different”.
Section 69ZX of the Act relevantly provides:
69ZX Court’s general duties and powers relating to evidence
(3) The court may, in child‑related proceedings:
(a) receive into evidence the transcript of evidence in any other proceedings before:
(i) the court; or
(ii) another court; or
(iii) a tribunal;
and draw any conclusions of fact from that transcript that it thinks proper; and
(b) adopt any recommendation, finding, decision or judgment of any court, person or body of a kind mentioned in any of subparagraphs (a)(i) to (iii).
Note: This subsection may be particularly relevant for Aboriginal or Torres Strait Islander children.
That provision has been judicially interpreted[5] to apply to transcript, recommendations, findings, decisions and judgments by an earlier Court in the same proceedings. I respectfully agree. I am satisfied that, independent of the consent of the parties, I am able (but am not required) to adopt unchallenged findings made by Hannam J in the earlier proceedings in this case and to rely on evidence given in those proceedings.
[5] Cronin J in Ferro & Kopel(No 2) [2016] FamCA 1124; Tree J in Holgar & Stott and Anor [2017] FamCA 772.
The hearing
The hearing commenced on 8 January 2019. The father and the ICL were represented by counsel. The mother did not have legal representation in the courtroom and was therefore at a considerable disadvantage. That said, she produced invoices for legal work done for her in these proceedings and I apprehend that she had legal assistance, for example, with the submissions she made. The submissions were in writing and the mother read them, word for word, by way of her submissions at the end of the trial.
I should acknowledge the cooperation of the mother and of the advocates for the father and the ICL. The mother embarked on a difficult enough task for a lay person and it was more difficult for her as English is not her first language. The mother was cooperative with the trial process and accepted rulings made from the bench. In some instances she said something to the effect that she would not object to something or that she would rely on the Court to deal with something appropriately. As to counsel, they were faced with the difficulties of dealing with a litigant in person but they were helpful, did not take unnecessary points and, as with the mother, cooperated with the restrictions on their time imposed in aid of completing the trial within the time available.
On 11 January 2019 judgment was reserved. As I have referred to above, I flagged with the parties the possibility that the case would be determined in sections because of the need to provide an answer on the child’s school as soon as possible prior to the commencement of the 2019 school year.
Short history
The father was born in 1963. As at the date of the hearing he was 55 years of age. The mother was born in 1984. As at the date of the hearing she was 34 years of age. The parents met in 2002, commenced living together in May 2005 and were married in 2005. The child was born in 2006. The parents separated on around 26 August 2011. The parents were divorced in May 2013.
Credibility
The Full Court found that many of the findings of the trial judge in the earlier proceedings were made contrary to the assertions and allegations of the mother. On the other hand the appeal judgment recorded that that the father was “in general” found by the trial judge to be a more credible witness. Those observations accord with my own.
The range of dispute in the parenting proceedings is a narrow one. It relates only to the proportion of time the child will spend with each of his parents during the school term as part of a shared care arrangement. The competing proposals were about his primary residence, with an agreed position that he have overnight and unsupervised time with the other parent and that the school holidays be equally shared. There were problems with the reliability of the evidence of some witnesses but I will refer to them as the issues are discussed below.
Background facts
In around February 1996 the father moved to Australia to study. He had previously obtained qualifications in Country X.
In 2002 the father became an Australian citizen.
In October 2002 the parties met through an online platform. At this time the father was in Australia and the mother was living in Country D. They were 38 and 18 years of age, respectively.
In November 2002 the father travelled to Country D, the parties met for the first time and the father proposed marriage.
In June 2004 the father commenced working at Company RR.
The parties commenced living together in Queensland in May 2005.
In 2005 the parties were married.
In 2006 the child was born. Soon after the child was born the parties relocated to Sydney.
At the time the child was born the father was working full-time with Company RR earning about $70,000 per annum.
In April 2006 the father ceased working with Company RR and commenced working with the RS Council.
In October 2006 the mother commenced working in Suburb SS.
In February 2007 the father ceased working with the Council and commenced work at Company TT. He ceased this employment in September 2007.
From October 2007 to March 2008 the father worked at Company UU.
In around 2008 the child began attending daycare two or three days per week.
From March 2008 to September 2008 the family lived in Country AA. During this time the mother worked earning at the rate of £16,000 per annum. During this time the father worked at Company VV.
In November 2008 the father commenced working at Company WW.
In late 2008 or 2009 the mother was diagnosed with Hepatitis B.
In 2009 the mother commenced working in Suburb SS earning $22,000 per annum.
In June 2010 the parties purchased a property at R Street, Suburb S (“the Suburb S property”) for $420,000 and commenced occupying that property. The father paid the deposit of $40,000. The child commenced attending XX Prep five days per week.
In June 2010 the father ceased employment with Company WW and commenced working at Company YY. He ceased working in this role in July 2011.
On around 26 August 2011 the parties separated under the same roof.
From August 2011 until May 2012 the father worked at ZZ Ltd.
On 13 October 2011 the parties signed a Parenting Agreement.[6] Among other terms, the agreement provided for the child to live with the father for five nights of each week (Sunday night to Friday) and otherwise with the mother. The agreement was signed at a pharmacy.
[6] Exhibit 11 to the father's affidavit.
In October 2011 the mother commenced working earning about $10,000 per year.
In 2011 the father hired an au pair to look after the child.
In November 2011 the father and the child went to Country X for about two and a half weeks for a relative’s wedding.
On 11 December 2011 the father’s brother, Mr KK Bangi, came from Country X to help the father with the child and stayed for two months.
In February 2012 the mother ceased working in Suburb SS.
On 6 February 2012 the parties ceased to live together. The father moved into a rental property at Suburb S and the mother moved to a refuge.
On 7 February 2012 the mother collected the child from school during the day. There followed a two year interruption in the father’s time with the child. Apart from a brief supervised visit on 29 September 2012, the father next saw the child in February 2014.[7] The father also referred[8] to an earlier resumption of his time with the child but I assume that was a typographical error.
[7] Paragraph 38 of the father’s affidavit.
[8] Paragraph 34 of the father’s affidavit.
On 8 February 2012 the father went to Suburb I Police Station to report that the mother had taken the child from school.
On 9 February 2012 the father received a telephone call from a police officer who informed him that they had located the child at a women’s refuge in Sydney. They had conducted a welfare check and said that the child was safe.
On 16 February 2012 the father commenced proceedings in the Federal Magistrates Court (as it then was).
On 28 February 2012, an order was made for the child’s name to be placed on an Airport Watch List.
On around 15 May 2012 the father was charged at Suburb I Police Station with several counts of common assault against the mother. An application was also made for an apprehended domestic violence order (“AVO”). The father subsequently also sought an AVO against the mother.
On 24 May 2012 an order was made for the appointment of an ICL.
On 4 June 2012 the child commenced attending school at Suburb EE, NSW.
From June 2012 until January 2013 the father worked for Company TT.
On 19 June 2012 an order was made restraining the parties from taking or causing the child to be taken to any counsellor, child psychologist or health professional for counselling in relation to allegations of family violence or child abuse without prior written consent of the ICL and the other party.
On 4 July 2012 the allegations of assault were heard at Suburb I Local Court.
On 22 August 2012 interim orders were made by Federal Magistrate Monahan (as his Honour then was) that the child live with his mother and spend time with his father at AB Children’s Contact Service (“the Service”) each fortnight. The father was to pay the fees for the use of the Service. An order was made for the child to see Dr V for therapeutic counselling to address issues relating to the exposure of the child to family violence. It was also ordered that the mother be restrained from changing the child’s school.
In September 2012 the father was charged with seven counts of assault against the child. The matter was later heard and unfortunately the child was required to give evidence at the Local Court.
On 7 September 2012 an order was made by Federal Magistrate Monahan for the father to pay the mother $616 each week by way of urgent spousal maintenance.
On 6 November 2012 judgment was handed down at Suburb I Local Court. The charges of assault of the mother made against the father were dismissed.
On 11 December 2012 the family law proceedings were transferred to this Court.
From January 2013 until September 2013 the father worked at Country BC.
In early 2013 Mr GG purchased the property at CD Street, Suburb HH.
In March 2013 the mother ceased working in administration.
In April 2013 the mother met Mr GG on a Country D social website.
On 23 April 2013 orders were made by the Honourable Justice Watts that the father was to continue to make regular repayments, including all repayments in relation to arrears in relation to the Suburb S property and the father was restrained from further encumbering or disposing of that property until this matter was heard.
In May 2013 the parties’ divorce took effect.
In June 2013 the mother and Mr GG began dating.
The property proceedings were heard by Justice Watts on 7 June 2013.
In 2013 judgment was delivered in relation to charges made against the father of assaulting the child. The charges were all dismissed.
In September 2013 the mother and Mr GG moved to the property at CD Street, Suburb HH. They continue to reside at that property.
From September 2013 until January 2014 the father worked at ZZ Ltd.
On 9 September 2013 Justice Watts made various notations including that the mother informed the Court that the therapy sessions with Dr V were terminated by her after the child had incidents of soiling his pants at after school care.
In October 2013 the child commenced year 1 at EF School.
On 15 January 2014 the following final property orders were made by Justice Watts:
(a)that the father forthwith do all necessary acts and things to ensure that he becomes the registered proprietor of Lot 4 R Street, Suburb S and in return he relinquishes the title to Lot 1 R Street, Suburb S which should not have been registered in his name;
(b)that the father do all necessary things to cause the mother to be appointed trustee of the sale of Lot 4 R Street, Suburb S;
(c)following the payment of fees and liabilities, the mother receive 100 per cent of the proceeds of sale if Lot 4 R Street, Suburb S, sells for less than $475,000 and 70 per cent of any amount the house price exceeds this amount, the wife is to receive $21,300 in spousal maintenance arrears and any arrears of child support, and the balance is to be paid to the father;
(d)for a period of one year the father shall pay spousal maintenance to the mother in the sum of $400 per week; and
(e)the father is to pay child support to the mother of $6,500 per year with this amount to be increased each year in accordance with the Consumer Price Index.
In March 2014 the mother and Mr GG separated for a period.
In April 2014 Mr JJ became a tenant at the property of the mother and Mr GG for a few months. It is the mother’s evidence that shortly after he moved into the property, Mr JJ disclosed to her that he knew the father. Mr JJ disputes this. It is the mother’s evidence that after a month of moving in, Mr JJ asked her out on a date. There was a verbal altercation between Mr GG and Mr JJ and Mr JJ called the police. No action was taken by the police.
From 10 April 2014 until 17 October 2014 the father worked at Company FG.
In June 2014 the mother commenced working at GH Pty Ltd earning $39,000 per annum.
The final parenting hearing was initially fixed for five days commencing on 14 July 2014. It was adjourned, part-heard on a number of occasions. The trial extended over the following dates, 14 – 18 July, 22 September, 27 October, 28 November and 9 December 2014, with judgment being delivered on 27 March 2015. The mother did not attend on any of those dates after 18 July 2014 and she has provided no satisfactory explanation for her absence.
On 18 July 2014 interim orders were made by Justice Hannam for the child to live with the mother and spend time with the father each Saturday from 9.15 am to 4.45 pm. Orders were made that the mother be restrained from changing the child’s school, that the mother continue to facilitate the child engaging in counselling with Dr V and the hearing was adjourned.
On 27 October 2014 orders were made by Justice Hannam that the interim orders made on 18 July 2014 be varied so that the child spends time with the father from after school each Friday until 4.45 pm each Saturday. It was ordered that the mother was to immediately recommence taking the child to see Dr V.
On 1 December 2014 the father commenced work for Company HI.
On 10 December 2014 interim orders were made by Justice Hannam. It was noted that there had been no appearance by the mother on 9 December 2014 and the father and ICL did not oppose the orders proposed by the Court. It was ordered that the child spend time with his father during school terms on a fortnightly cycle from after school Thursday until before school Monday and from after school on the following Thursday to before school Friday. It was ordered that during the Christmas school holidays the child was to spend time with his father from 19 December to 25 December, from 2 January to 10 January and from 17 January to 24 January.
On 27 March 2015 reasons for judgment were published and final orders were made by Justice Hannam. All previous orders in respect of the child were discharged and the parents were to have equal shared parental responsibility for the child. It was ordered that the child would live with the mother and would continue spending time with his father as outlined in the interim orders of 10 December 2014. Orders were also made that the child would spend half the school holidays with each of his parents and orders were made in relation to special occasions. The father was to facilitate the child continuing to engage in counselling with Dr V. All outstanding parenting applications were dismissed.
On 24 April 2015 the father filed a Notice of Appeal in respect of some of the orders of 27 March 2015.
It is the mother’s evidence that in August 2015 she commenced working at IJ Pty Ltd earning $51,000 per annum with her salary increasing to $55,000 in 2017. It is the father’s evidence that the mother commenced this position at an earlier date. Nothing turns on this issue.
In September 2015 the mother resumed her relationship with Mr GG.
On 13 September 2016 the father’s appeal was heard by the Full Court of this Family Court of Australia.
In 2017, the father married Ms PP Bangi. She moved to Australia from Country X in May 2017 to live permanently with the father.
On 3 February 2017 the Full Court delivered judgment on the father’s appeal. The appeal was upheld and the parenting proceedings were remitted for rehearing by a judge other than Justice Hannam.
On 3 June 2017 an incident occurred between the mother and Mr GG where the police were called. There had been an argument and the mother left the house. She was later arrested by police. No further action was taken.
On 13 November 2017 orders were made by the Honourable Justice Le Poer Trench that the father be restrained from further extending the mortgage debt in relation to the mortgage registered to the property at Lot Number 1 in Strata Plan … in Suburb S. It was directed that the matter be referred to the docket judge to allocate a hearing date or make directions in relation to the mother’s application for enforcement of property orders made by the Court on 15 January 2014 and the father’s application under s 79A of the Act to set aside property orders made on 15 January 2014.
From 2 January 2018 to 12 March 2018 the father worked at JK group.
In March 2018 the mother ceased working for IJ Pty Ltd.
In March 2018 the father ceased working for Company HI and commenced working at KL Corp. He remained in this role until 7 June 2018.
In April 2018 the mother worked full-time in the LM Pty Ltd earning $60,000 per annum. She ceased working from September 2018.
From 21 May 2018 until 5 October 2018 the father worked for the MN Bank.
From 6 August 2018 until 16 December 2018 the father worked for Company NO.
On 14 August 2018 orders were made for the matter to be listed for hearing over four days, commencing on a date to be allocated by the registry. It was noted that one issue in the proceedings was the commencement of high school for the child in 2019. It was ordered that the parties join in instructing a real estate valuer to value the subject real estate which is a property at Suburb S and to facilitate the provision of an expert report at their shared cost. An order was made that the parties do all things to facilitate the child’s enrolment in such schools as each of them proposed.
In October 2018 the mother took the child for an interview at OP School. The mother received an acceptance letter from the principal at OP School, paid for the school uniform and paid the acceptance fee.
The father applied to enrol the child at Suburb I School. The child was out of area but nevertheless has been accepted by the school.
On 25 October 2018 the father commenced his current job at Bangi Enterprises. I gather from the name of the business that the father is to some extent, self-employed. That would account for him employing his wife in the business.
The parenting proceedings
The expert evidence
The single expert for the earlier proceedings was Mr II. Mr II has worked as a social worker in the United Kingdom and Australia. He was a Director of Social Work from 1977 to 1980 and was a Senior Family Consultant with this Court. He now works in private practice and is an accredited mental health worker. He prepares family reports under reg 7 of the Family Law Regulations 1984 (Cth) (“the Regulations”). His qualifications include undergraduate degrees in arts and philosophy (social work) and post graduate studies in conflict resolution.
Mr II’s reports are dated 15 November 2013 and 11 June 2014.
In November 2017 a report was ordered from Dr QQ. Dr QQ worked with this Court for many years. Thereafter he worked with children in out of home care and with children with learning disabilities. He has been a visiting lecturer and a consultant. Dr QQ works in private practice He prepares family reports under reg 7 of the Regulations and has been retained as an Authorised Clinician with the NSW Children’s Court Clinic. His qualifications include an undergraduate degree in social work (psychology).
Dr QQ’s report is dated 13 March 2018.
The legislation
The law to be applied in parenting proceedings is found in Part VII of the Act.
Section 60CA provides that parenting proceedings are determined on the basis that the best interests of the child are the paramount consideration. Section 60CC identifies the matters that are relevant to the determination of what is in a child’s best interests. Subsection 60CC(1) requires the Court to consider the “primary considerations” and “additional considerations” articulated in ss 60CC(2) and 60CC(3) respectively.
The sequence of decision making for identifying appropriate parenting orders under Part VII of the Act starts with parental responsibility. If an order is made for equal shared parental responsibility, s 65DAA requires that the Court consider making an order for equal time and, if that is not ordered, for the child to have substantial and significant time with each parent. Findings are made by reference to what is in the child’s best interests.
For the purposes of the determination of these proceedings, I will adopt the following approach:
a.set out the current arrangements;
b.set out the proposals, including any options not advanced by a party that the parties addressed or could have addressed;
c.where possible and relevant, consider and make findings about matters set out in s 60CC;
d.apply s 65DAA if relevant and assess the proposals in light of that provision;
e.consider and make findings about living arrangements; and
f.make orders.
The Current Arrangements
It is agreed that leading up to and following the judgment made on 27 March 2015, the parties applied the living arrangement for the child that was in place under interim orders and was expressed in that judgment. The child lives with the father during school terms on a fortnightly cycle from after school Thursday until before school Monday and from after school on the following Thursday to before school Friday. At all other times the child lives with the mother.
The Parties’ Proposals
The proposals are set out earlier in these reasons. It is agreed that the parents will retain equal shared parental responsibility.
The disputes are whether the child lives for most of the time during school term with the father or the mother and which high school he will attend.
Section 60CC Considerations
As with some other provisions of Act, s 60CC was amended with effect from 7 June 2012 but only for new proceedings.[9] As the legislation related to these proceedings the section specified the following considerations:
[9] Family Law Legislation Amendment (Family Violence and Other Measures) Act2011 - Act No. 189 of 2011. Section 45 provides: “The amendments made by items 1 to 8, 11, 13, 17 to 21, 30 to 34, 37, 38 and 40 to 43 of this Schedule apply in relation to proceedings instituted on or after commencement.”
Primary considerations:
(2)(a) the benefit to the child of having a meaningful relationship with both of the child's parents
A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.[10] That enquiry is “prospective” which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child.
[10]McCall & Clark (2009) FLC 93-405
The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. The expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’.[11]
[11]Champness & Hanson (2009) FLC 93-407
I am satisfied that the relationships between the child and each of his parents are important, significant and valuable. The narrow range of dispute in relation to his living arrangements and the uncontested position of equal shared parental responsibility reveal the parents’ views about this issue.
(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
‘Abuse’ and ‘family violence’ are defined terms. The definitions were changed as of 7 June 2012 but only for new proceedings. As the legislation related to these proceedings s 4 of the Act included the following definitions:
abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force 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 unequal power in the relationship between the child and the first‑mentioned person.
…
family violence means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
Note: A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.
Each of the parents alleges that the other has been responsible for family violence and abuse of the child.
The parties’ allegations:
Allegations against the father
It is the mother’s case that the father commenced being violent and abusive towards her following the child’s birth.
The specific allegations in the mother’s affidavit are that:
·on 14 December 2006 the father became upset and yelled at her and insulted her.
·in July 2007 the father grabbed her by the hair and tried to look at her phone. It is her evidence that something similar occurred in August 2007;
·in or around March 2009 the mother observed the father hit the child with a belt; and
·since 2009 the mother witnessed the father assaulting and punching the child and twisting his ears on multiple occasions.
In February 2012 the mother took the child and went to a refuge. She gave information to refuge workers and to the police. The mother first made her complaints to police in April 2012 and gave a statement to police in May 2012. On about 15 May 2012 the father was charged with several counts of common assault of the mother. An AVO was also sought against him. The father’s affidavit refers to the charges at paragraph 27 and the statement of facts is said to be exhibited to the affidavit, marked 12. I could not find that statement of facts but at Exhibit 13 there are the reasons given in the Local Court on 6 November 2012 when the charges were dismissed. The allegations are not detailed in the reasons but the first alleged assault was in 2006. A witness gave evidence of observing bruises, including bruises on the mother’s arm in 2011. The Court found that neither the mother nor the father were shaken in their testimony but two of the mother’s witnesses were discounted because there was an issue about one being partisan and the other was not able to give significant first hand evidence. The prosecutor was unable to establish the assaults.
On 6 November 2012 all charges against the father in respect of alleged assaults on the mother together with the AVO proceedings were dismissed.
In September 2012 the mother gave information to the police in the form of allegations that the father had assaulted the child. The father was charged. The father’s affidavit refers to the seven charges at paragraph 31 and the statement of facts is exhibited to the affidavit, marked 14. The allegations were to the following effect:
Offence 1:
In March 2009 the mother, father and child were at home. The father became angry at the child and said: “I am going to treat him how he should be treated.” The father went to his bedroom, changed clothes and returned with his belt in his hand. The mother observed that the father struck the child twice on his back. The child was very frightened and became upset and began to cry.
Offence 2:
In January 2010 the father became angry with the child. The father retrieved his belt and removed the child’s pants. The mother saw the father strike the child several times on the buttocks with his belt. The child began to cry and the father pulled the child into his bedroom while his pants were off and locked him inside. The mother later noticed red marks across the child’s buttocks. The child did not receive medical treatment.
Offence 3:
In March 2010 the mother, father and child were at home. The father asked the child a question. The child did not respond as the father wanted and, as a result, the father grabbed the boy by his right ear and twisted it harshly for several seconds. The child cried out in pain and his ear became red. The mother witnessed the assault.
Offence 4:
In August 2010 the father became angry with the child and punched him in the head with a closed fist. As a result the child stumbled backwards, became distressed and cried. The mother witnessed the assault and picked the child up and took him to his bedroom. The mother did not observe any injuries to the boy as a result of the assault and he received no medical attention.
Offence 5:
In September 2010 the child was sitting on the lounge watching television with the father. The boy did something that the father did not like. The father used a closed fist to punch the child in the head. The child began to cry and rubbed his head as though in pain. The mother witnessed the assault and noticed that the child’s hair was ruffled by the assault.
Offence 6:
In September 2011 the father was teaching the child the alphabet in his bedroom. The child could not remember the letters and the father said to him: “If you cannot remember the ABC after the tenth time I will take to you with the belt.” The mother tried to help the boy but he continued to make mistakes. The father retrieved his belt and hit the child several times across his backside, until he began to cry. During the assault the father was yelling at the child and calling him stupid. Soon after the assault the mother bathed the child and observed red marks on his backside.
Offence 7:
In early December 2011 the child was sitting on the lounge speaking with the father. They began to argue and the father used his open palm to hit the child across the head with a great amount of force. The child cried for about 15 minutes after the assault, which the mother witnessed. The child did not receive any medical assistance.
On 18 July 2013 the Local Court dismissed those charges and the related AVO application. Among other reasons, the Court found that the child did not corroborate the mother’s allegations. The Court also found that some of the mother’s conduct was inconsistent with her allegations, including the fact that she left the child, unsupervised, in the care of the father. That happened when the mother travelled to Country D for long trips in 2010 and 2011; when she allowed the father to take the child to Country X and the Y Town with him in 2011; while the mother participated in the community through a range of activities, being work, study and friendships; and while she pursued what became an intimate relationship with a MR F in late 2011. The Local Court noted inconsistencies in the mother’s explanations for not reporting her allegations earlier. The father was accepted in his evidence about being a loving father who had provided the bulk of parental care for the child. The Court found that the evidence tended to demonstrate that the father mostly took the child to medical appointments; he initiated the child care and vacation care routines; he arranged speech therapy and coaching sessions; he supervised the child’s homework; he exclusively cared for the child during the mother’s absences; and with the mother he juggled the routine of drop-offs and pick-ups from the child care centre and school. It was noted that the parties’ parenting plan had the child with the father for five out of seven days a week.
In those Local Court proceedings, the mother was found to be a less satisfactory witness than the father.
In the course of reasons for judgment published on 27 March 2015, Hannam J addressed the allegations made by the mother against the father and came to the following conclusion:
145. 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.
There was no challenge to those findings in the appeal instituted by the father. The mother did not cross-appeal or participate in the substantive hearing of the appeal.
Allegations of sexual abuse made by the mother against the father in the first proceedings were not established and have not been repeated or renewed before me.
Allegations against the mother
Among other allegations, it is the father’s case that the mother was violent to him and to the child. The specific allegations of the father about the mother are that:
·on or about 10 August 2007 the mother physically assaulted him while he was driving and the child was in the car. She screamed at the father, thumped the steering wheel, reached across and began hitting the father in the face and on his left arm. One of the punches hit him in the face above his left eye. He recalls that it was extremely painful and when he returned home he noticed that there was blood seeping from a cut above his eye. The father saw his general practitioner at Suburb SS on 11 August 2007;
·in around October 2007 the parents took the child to Suburb SS Hospital because of acute tonsillitis. The mother left the hospital at about 6.00 pm. The father arranged for a friend to come to the hospital and he went home to look for the mother. The mother was not at home and he returned to the hospital. The father returned home again at around 11.30 pm and found the mother there intoxicated. When he asked her where she had been, she began screaming at him words to the effect “it’s none of your business”;
·on or around 15 November 2009 the mother became heavily intoxicated and started an argument with the father. During the argument she punched him in the left side of his chest and he recalls that he was in terrible pain. The following day he saw a doctor because he continued to feel pain. A CT scan revealed that there was no internal damage, just muscle pain;
·during 2009 the mother arrived home with her friend Ms NN. The mother had what looked like a butter knife in her hand. She was hitting herself on the inside of her wrists, smacking the object into her wrists quite hard. The mother said to the father words to the effect “We are going to the police station. I am going to report that you hit me.” The mother and her friend both left;
·on 11 May 2011 the mother sent the father a text message “U fucking brain damager. Mother fuck.”;[12]
·in or around September 2011 the mother told the father that she was going to move in with a person called Mr F. After a conversation the mother kicked her heel into a wall;[13]
·in or around December 2011 the mother was intoxicated and she was slurring her words. She yelled at the child who began to cry. The mother said to the father words to the effect of: “you are fucking useless, you should make him eat my dinner”. The mother then picked the child up from his chair, grabbed the back of his left arm, pulled his pants down and began smacking his backside with a black belt;
·the mother has said to the father words to the effect “it is the tradition in Country D to hit with the belt”;
·in or around December 2011 the mother was intoxicated and screamed (in the presence of the child) words to the effect: “I don’t want to cook. I am not a fucking maid, I don’t want to cook, I don’t want to stay in this shitty house, I’m going to leave you, you’re fucking useless, why should I have to cook!”; and
·on or around 4 February 2012 the father was at home with the child, his brother, KK, and an au pair called Ms PQ. The mother was intoxicated and banged on the door screaming words to the effect of “I know what you want to do with the child! You want to leave me and take him with you. I may do a crime mother fucker! Asshole!” The father threatened to call the police and the mother desisted.
[12] Exhibit 9 to the father's affidavit.
[13] Exhibit 10 to the father's affidavit.
I understand that the mother substantially denies those allegations. The mother deposed that she never hit the child and that her method of punishment was to put the child in a naughty corner for a short period of time.
In the course of reasons for judgment published on 27 March 2015, Hannam J addressed the allegations made by the father against the mother and came to the following conclusion:
146. 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.
One of the concerns of the Full Court in dealing with the appeal against the orders made by the trial judge was that the Court acted on the recommendations of the single expert in circumstances where the single expert had not been informed about all of the evidence. In particular, the evidence of Mr JJ, who had lived as a boarder in the home of the mother and Mr GG and who corroborated many of the concerns about conflict and the abuse of alcohol in that household. The Full Court placed considerable importance on the independence of Mr JJ and the critical nature of his evidence. For example it was said:
79. The evidence of [Mr JJ] is entirely consistent with the allegations of the father about what had occurred in their relationship when alcohol was involved and the mother’s consequential violence. There was no suggestion that [Mr JJ] knew the father or had any prior relationship with him.
In the proceedings before me the mother disputed the evidence of Mr JJ and did assert that there was a prior relationship between him and the father. The relevant passage of her affidavit is as follows:
44.Sometime in April 2014, I and my partner [Mr GG] had a tenant at our property by the name of [Mr JJ], who was a paying tenant and resided for a few months in a separate room with the private access to the property.
45.Shortly after [Mr JJ moved in, he revealed to me that he knew [Mr Bangi]. He did not disclose how well he knew my ex-husband, but I started to have concerns about him.
46.[Mr JJ] also said that before he moved to our place, he lived somewhere in [Suburb S]. This also was a concern for me as I started to suspect that [Mr JJ] was asked by [Mr Bangi to let him know about my life.
47.[Mr JJ] was expressing a lot of interest towards my and [Mr GG’s] personal lives. I started to feel uncomfortable about it and told [Mr GG] about it. [Mr GG] did not like it either.
48.Roughly after 1 month, [Mr JJ] offered me presents and asked me out on a date. I’ve said I am not interested, and I am happy with my partner.
49.I told [Mr GG] about what [Mr JJ] said to me and [Mr GG] got quite angry.
50.Not long after that, my partner asked [Mr JJ] to leave our house for the reasons explained above. But [Mr GG] expressed it quite in a rude form. [Mr JJ] called the Police.
51.[Mr JJ] waited for Police to arrive outside the house. [Mr GG] came outside the house after the Police arrived. They were speaking with officers. No one got arrested, [Mr JJ] did not provide any statement. I stayed upstairs and the child was sleeping in his room upstairs. At that night [Mr JJ] did not stay in our house. He came back next day late afternoon. I’ve provided him with request to vacate a property note and returned his bond.
52.We requested that [Mr JJ] leaves our house at his earliest convenience.
53.Later on, the child told me that [Mr JJ] moved in with [Mr Bangi]. I believe [Mr JJ] and [Mr Bangi] were actually friends.
54.The child wasn’t exposed to any incident.
55.[Mr JJ] contributed to a deterioration of our [sic] relationship with [Mr GG]. Even after he left, he kept texting [Mr GG] and telling him that he had some sort of relationship with me, which was not true.
56.I left [Mr GG] for a few months on 1 March 2014.
The evidence of the father and of Mr JJ is that although Mr JJ sent an SMS message to the father on 14 July 2014, their first conversation was on or after 1 August 2014 and, therefore, after the first five days of the parenting hearing before Hannam J. During her cross-examination of the father in the hearing before me the mother did not challenge him about his connection with Mr JJ. Mr JJ was not made available for cross-examination in these proceedings and therefore the mother was unable to challenge his evidence directly. Of course, had she not absented herself from the hearing before Hannam J after 18 July 2014, the mother could have challenged his evidence in those earlier proceedings. The mother was not challenged in cross-examination in the proceedings before me in respect of her evidence at paragraphs 44 to 56 inclusive of her affidavit.
Although Mr JJ could not be made available for cross-examination in the hearing before me, his evidence has some weight. It was accepted in the first parenting proceedings and the resultant findings were not challenged by an appeal.
The father could have been challenged about having a pre-existing relationship with Mr JJ and he was not.
It is the father’s case that the relationship between the mother and Mr GG has been unstable and that a feature of that relationship has been the abuse of alcohol and incidents of violence. I will deal with the evidence about that relationship and the impact on the child here, although it is also relevant to other criteria.
The relevant findings by Hannam J referred to in the judgment of the Full Court are as follows:
165. 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.
…
183. 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 tradesman 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.
…
185.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].
...
206.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.
…
208.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.
(Emphasis added by the Full Court)
In cross-examination before me, the mother was asked about various incidents in the household that she continues to share with Mr GG. The mother conceded that the police had attended at their home on six occasions. She later said four or five times. There were some occasions when Mr GG called the police and it may be that the mother meant to say that she called the police on four occasions but the total number of attendances was six. The effect of the evidence, including evidence from the records of NSW Police and of the mother and Mr GG, is as follows:
21 July 2014
This was a few days after the first five days of the trial before Hannam J and it was the last of the incidents between the mother and Mr GG about which Hannam J was informed. In her reasons for judgment Hannam J wrote:
156. 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 Beloz] 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.
157. 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.
158. 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.
In fact, the police recorded that each of the mother and Mr GG told them that the child had painted the word. That was put to Mr GG in cross‑examination and he responded: “I don’t recall exactly what I told police that day but potentially it was possible.” In evidence before me, the mother and Mr GG said that the word “Fock” was painted on a wall (not on a glass sliding door) and they do not know who painted it. Neither Mr GG nor the mother gave any indication that “Fock” had a particular meaning. Mr GG and the mother opined in cross-examination that the word may have been painted by an apprentice tradesperson who was at the property doing renovations. The mother said that Mr GG was not happy about the word being painted. Mr JJ was living at the property at the time and the police also spoke to him.
31 August 2014
The police recorded[14]:
VIC 1 (who will now be referred to as to [Ms Belov]) and VIC 2 (who will now be referred to as [Mr GG]) have conflicting versions of events that cannot be clarified. Both [Ms Belov] and [Mr GG] were unwilling to supply police with a statement about their version of events. [Ms Belov] and [Mr GG] are currently in the process of a separation and [Ms Belov] is looking for a place to move out into. SHe [sic] has been living at the house with her son the child for about one year. [Ms Belov] alleges: She left the house about 11:45am with her son to have coffee with a friend. [Mr GG] was mad as he believes she is having an affair. They had a short verbal argument before [Ms Belov] left. She returned about 4:00pm that afternoon and saw that there was a smashed drinking glass lying in the corner of the lounge room. She went to ask [Mr GG] what had happened and he was in the garage drinking alcohol and intoxicated. A verbal argument again began and [Mr GG] told her he had smashed the glass after she left as he was mad. [Ms Belov] returned to the house and cleaned up the glass as she did not want her son to step in it. She alleges that her son was upstairs when they were arguing. [Mr GG] alleges: About 4:00 pm, [Ms Belov] returned home with her son after being out all day. They had a verbal argument about where she had been and [Mr GG] accused her of ‘stealing’ some of his money (even though they are in a domestic relationship). [Ms Belov] became mad about the accusations and threw a glass into the corner of the lounge room against the wall, smashing it. [Mr GG] went to the garage as [Ms Belov] began to clean it up. He also states that [Ms Belov]’s son was upstairs during the incident. Police cannot verify which story is correct. Minor damage to property and neither party alleging that the glass was thrown directly at them. Neither party willing for police action.
[14] Page 12 of 24 of Exhibit 13.
If either of the versions of those events is accurate, the mother did not ensure that the child was in an appropriate environment on that day.
6 January 2015
The mother called the police on 6 January 2015 and told them that Mr GG began hitting her in the face using his left hand, causing a level of pain and swelling to her left cheek and that as a result of this physical confrontation the mother screamed “let me go”. The mother was asked in cross-examination:
[Mr Givney]: Do you remember that he was drunk on 6 January 2015 when he hit you in the face?
[Mother]: He had a bit of beer but he wasn’t that drunk.
During the cross-examination of Mr GG there was the following passage:
[Mr Givney]: The police record that you pulled on [Ms Belov’s] ponytail and caused her pain.
[Mr GG]:Right.
[Mr Givney]: Does that help your memory about the allegations the police put to you?
[Mr GG]:Yes it does.
[Mr Givney]: Can you remember any other allegation the police put to you on that day?
[Mr GG]:Possibly slap in the face.
[Mr Givney]: Slap in the face. What about a punch to the cheek? Do you remember that? Do you remember someone saying that to you?
[Mr GG]:That’s allegations.
[Mr Givney]: Do you remember saying more than once you punched her in the face?
[Mr GG]:Allegations.
[Mr Givney]: Do you remember that being said to you?
[Mr GG]:Yes I do.
[Mr Givney]: Right, and do you remember that she had bruising to her face? Do you remember that happening?
[Mr GG]:Yes I do.
[Mr Givney]: Right, now, she called the police then didn’t she?
[Mr GG]:That’s correct
[Mr Givney]: She dialled 000?
[Mr GG]:That’s correct.
Mr GG was later asked if he was affected by alcohol on that date.
[Mr Givney]: Is it the case that you were affected by alcohol on 6 January 2015?
[Mr GG]:No recollection on it.
[Mr Givney]: Right. Are you aware that the police indicate that there was an allegation that you had drunk half a case of beer on 6 January 2015?
[Mr GG]:Possibly.
[Mr Givney]: Well had you drunk half a case of beer on 6 January 2015?
[Mr GG]:I do think so because it was still holidays, yes.
…
[Mr Givney]: On 6 January 2015 when you were falsely accused of pulling on her ponytail and punching her in the face did you tell the police that she had threatened you with a baseball bat?
[Mr GG]:Yes I did.
[Mr Givney]: Right, and did the police in…You think that’s funny?
[Mr GG]:Well it is because…
[Mr Givney]: In any event, notwithstanding the humour, do you know that the police went and searched for a baseball bat at your home?
[Mr GG]:Clarification, it’s a case of misunderstanding of…
[Mr Givney]: Are you aware…
[Judge]:No the witness is trying to answer.
[Mr GG]:There was a misunderstanding between me and the police in regards to baseball bat. It’s embarrassing but fair few days before we were intimate with [Ms Belov] and she had a baseball spanker as a sex toy. Not a baseball bat, we do not possess any weapons in our house.
The police record[15] is as follows:
About 18.00 on the 6th January 2014 [sic] the VIC, [Ms Belov] was standing in the backyard of …. , of which she and the POI, [Mr GG] both reside. The POI is the primary owner of the property. Her nine year old son was not present as he was staying with his biological father for the evening. The VIC was attending to the pool maintenance and trying to add chlorine to the pool. The POI was standing on the balcony at the rear of the house, watching the VIC. The POI said to the VIC, “Bring it to me, ill do it.” The VIC said “No its to heavy.” and continued to try and open the lid to the chlorine. The POI then ran from the balcony down to the pool area. The POI began running at the PINOP. The VIC tried to move out of his path however the POI became aggressive and grabbed the VIC by her pony tail using his right hand. This caused the VIC a significant level of pain as he pulled her into himself so that she could not move. The POI then began hitting the VIC in the face, using his left hand approximately 3 times, hitting her nose, mouth and left cheek. This caused the VIC a significant level of pain and a small level of swelling to her left cheek. As a result of this physical confrontation, the VIC screamed “Let me go”. The POI subsequently released the VIC’s hair where she ran from the pool area into her car located at the front of the dwelling. The VIC then left the location. About 9:50pm on Tuesday 6th January 2015, Police attended …. in relation to a domestic matter, involving the POI, [Mr GG] GG, as the informant. Police observed the POI to be mildly affected by intoxicating liquor however Police continued with their enquiries. The POI stated he had consumed approximately half a case of beers during the coure [sic] of the day. The POI, did not wish to speak to Police and stated he wished to retract his claims which were made to Police over the phone. Police attempted to obtain some level of information regarding what had occurred, however the POI remained uncooperative, unwilling to supply details of any party involved. Police subsequently had the POI sign Official Police…, stating that he did not wish to assist Police in their enquiries, supply a Police with a statement, or attend court in relation to the matter. Police looked over the house to try and find the baseball bat was unable to locate the item. Police Police [sic] left the location as they received a phone call advising that the POI wife was at [Suburb HH] Police Station. Police attended the station immediately and did not find it prudent at the time to canvass neighbours as the victims safety and well-being was priority. The VIC had significant fears for her safety and as a result, attended [Suburb HH] Police Station to report the matter. A short time later, attending Police, became aware of the VIC, who had attended [Suburb HH] Police Station. Police subsequently met with the VIC and obtained a 3 page statement outlining the incident which occurred on the 6th of January 2015. The VIC did not have any visible injuries to her face however appeared quite distressed and fearful for her safety. Police advised the VIC that they were previously at her residence as her husband made allegations she struck him with a baseball bat. The VIC appeared shocked by this and denied this allegation. About 11:30pm on Tuesday 6th January 2015, Police returned to… Police were met by the POI, where he was arrested, cautioned and searched. The POI was conveyed to Suburb U Police Station, where he was introduced to the custody manager and entered into the custody management system. The POI was read his right under Part 9 of the Law Enforcement (Powers and Responsibilities) Act. The POI was offered the opportunity to participate in an electronically recorded interview to which he accepted. Whilst in the interview, the POI made no admissions to the allegations and stated he was in fact assaulted and has fears for his life. Police enquired with further questions however the POI stated he did not wish to speak further as to not incriminate the VIC. During the interview, the POI further stated that he had consumed approximately 3 or 4 beers prior to the alleged incident. INJURIES/MEDICAL TREATMENT/DAMAGE TO PROPERTY: The VIC has pain to her nose, lips and cheeks. There is no visible bruising however the VIC advised police she feels her face is swollen. The VIC has not seen any medical practitioner to attend to her injuries. Whilst with the VIC police offered her medical assistance which she declined. EVIDENCE AND EFFECTS OF ALCOHOL & DRUGS: Upon arrival to the POI house police could smell intoxicating liquor on the POI. Police asked the POI if he had been drinking. The POI told police he had drunk “Half a case of beer.” MENTAL HEALTH & OTHER HEALTH ISSUES: NIL FIREARMS/DANGEROUS WEAPONS: NIL FEARS HELD BY VICTIM: The VIC has fears that the POI will assault her again. The VIC fears that he willhurt [sic] her as he has done so in the past and she has not reported the incidents. FEARS HELD BY POLICE: Police have reviewed the POI history and can see that there is a history of domestic violence between the POI and the VIC. Police fear that he may assault the VIC again if an order is not enforced to protect her.
(Emphasis added)
[15] Page 11 of 24 of Exhibit 13.
The father’s application is inconsistent with the child’s expressed wishes. The father proposes that he have extra time with the child. Under the father’s proposals, the child would have fewer days away from his father but more days away from his mother.
This issue will not be determined solely by the child’s views. The primary considerations and, particularly, s60CC(2)(b), must be significantly influential. The high level of conflict that previously existed between his parents, the long period of unnecessary separation he had from his father and the violent and conflictive atmosphere that applies, at least from time to time, in his mother’s household are factors that are likely to have influenced the child’s expressed wishes and would justify them being given less weight.
(3)(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
The child attended from time to time on Dr V, a clinical psychologist. Dr V communicated with the parents by email on 20 November 2018[20] and among other things said:
[The child] is a lovely young boy and I have had the privilege of seeing him grow up. [The child] enjoys school, is adjusting to the difficulties of two different homes, and likes having a relationship with both his parents. I hope the child continues to have a healthy relationship with you both.
[20] Exhibit 10.
Dr QQ reported:
66.He said he loves his parents “the same”, perceiving both as being equally concerned with his day to day welfare and future happiness. [The child] mentioned he loves his mother because she “cooks good meals for me, lets me swim in the pool, play with friends and walk the dog”. He said he loves his father because he “takes me places, has given me a PlayStation, ipad and mobile phone”.
…
68.[The child] declined to say much about the other adults, apart from stating he likes them similarly. He thought his parents are happy with their respective partners and claimed they don’t fight.
…
74. Nature and relationship between parties and child
[The child], emotionally attached to both, was clearly reluctant to discuss feelings towards his parents in much personal depth, seeming careful about maintaining loyalty to each person. This is probably understandable in light of the long standing conflict and ongoing litigation. An only child, the child appears to have adapted to the situation by accommodating the views and wishes of the parent he is with at the time.
I have no doubt that the child loves each of his parents and that he is loved by each of them. At times his relationship with his mother has exposed him to a household significantly affected by violence and abuse.
(3)(c) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
The mother collected the child from school on 7 February 2012. As a result of the mother’s conduct, including allegations she made to the police, there followed a two year interruption in the father’s time with the child. Apart from a brief supervised visit on 29 September 2012, the father next saw the child in February 2014. The mother’s allegations were never established on a criminal or civil standard and it is highly likely that the mother knew them to be false. Since then the mother has not acted in such a determined way to exclude the father from the child’s life.
The mother did not cooperate with family therapy sessions conducted by Dr V. Dr V wrote to the ICL on 13 June 2013 about her concerns about therapy aimed at restoring the child’s time with his father, including the following:
As outlined in my previous letter, a critical component of the therapy I am conducting involves consistent, ongoing, weekly contact between myself and the child. As you would well understand my ability to assist the child is significantly dependent on his parents’ willingness to engage in family therapy. Unfortunately in this matter I formed the view that his mother is extremely reluctant to accept my advice, proposals and recommendations. For example, the mother, to my knowledge has not attended the above courses and programmes I have recommended she attend, and she has not accepted my proposed “therapeutic goal” of assisting the child in building a relationship with his father. Finally, on occasion the mother’s behaviour reflected her attitude to therapy; including failure to attend sessions without prior notice and repeatedly arriving extremely late to sessions.
[Ms Belov] has advised my receptionist that she will not be bringing [the child] to therapy until September. Consequently, and regrettably, I have now 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.
There are no examples of the father acting in a similar way to exclude or interfere with the mother’s relationship with the child.
Hannam J found that there was a low risk of the mother attempting, let alone being successful, in alienating the child from the father. The thrust of the findings in the first proceedings was that the mother had initially acted to damage the relationship of father and son, but there was a low risk of that occurring again.
Hannam J found that “…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.” I agree.
(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
In the earlier proceedings Hannam J accepted the views of the single expert, Mr II. Hannam J found:
189.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.
Dr QQ reported:
75.The likely effect of any change in circumstances including the likely effect on the child of any separation from either parent, household.
the child appears to have adapted to his current living arrangements.
During interview, he did not express desire to radically alter the present situation, and one predicts he could find it difficult to re‑establish routines. Further, [the child] indicated that he would miss the ‘absent’ parent, should the time between visits to that person be extended. He was opposed to week about shared living arrangements for that reason.
Dr QQ was asked about that issue in cross-examination by counsel for the ICL. The cross-examination was to the following effect:
[Mr Berry]:Having thought about it, having read, particularly, the material from 3 June [2017], have you changed, is there any change in your views in that view?
[Dr QQ]:Well what I’d say is that based on what he told me, and this is no more than 12 months back and he’s a year older obviously, but based on that I still believe that was his expressed view so I haven’t changed my opinion of that however I would be perhaps less determined in putting forward that proposal given the incident that happened prior to me seeing the parties involving the police. So I’d need to perhaps put not a caveat on it but certainly take that into consideration. Soften it somewhat. Because, you know, I mean, it’s not up to me to make those decisions obviously it’s for his Honour, but I think that I would need to soften that approach a little bit now.
[Mr Berry]:In softening that view can we look at say perhaps the child going to live with his dad but having time with his mum. Would you form the view that that would need to be a very significant and substantial time with his mum if that change was to be made?
[Dr QQ]:Yes look I believe that because he’s been living with his mother consistently throughout the proceedings which started a number of years ago and he’s in my view adjusted to the situation, to his living arrangements, I saw nothing to suggest that he hadn’t, because of that he’s become accustomed to it and he’s been used to it. I would have the view that any radical change one way or the other could create some emotional disturbance for the boy so I would suggest that if there is going to be a major change in living circumstances that be kept in mind.
[Mr Berry]:So, if the Court were minded to do something along those lines, is it your view that the child should receive some sort of assistance in adjusting to that therapeutically?
[Dr QQ]: I think that would be most helpful.
[Mr Berry]:And, I think, in fairness, we discussed with you outside whether you’d be involved in doing that but I think you’ve got an alternative view, have you on that?
[Dr QQ]:Well I do and I put the view forward, I mean, I would be prepared to do that obviously, but he doesn’t really know me. He hasn’t developed any trust in me. I didn’t see him as a therapist, I just saw him as an assessor and saw him briefly. My understanding is that he has a long term therapeutic relationship with [Dr V] and that she may be the appropriate one if the Court felt that way inclined she might be the appropriate one. More appropriate than sending him along to see me.
[Mr Berry]:Can I bring you back now to perhaps assistance with what short term effect there might be on the child if there was such a change?
[Dr QQ]:Given his statements to me I think he would feel, when you say such a change, are you putting to me….
[Mr Berry]:Change of arrangements, living with dad and spending time with his mum.
[Dr QQ]:Look I think he would probably feel some confusion about that. Look, that hasn’t been the situation for him ever so that would be a major change for the boy so that would be one issue. The other issue could quite possibly be missing his mother and missing his present environment and the home where he returns to most days. That could, I’m not sure, but I would imagine he’s sort of got more friends around the area where his mum lives so it could also mean a disturbance to his, you know, peer associations after school, if you like. I understand he’d probably still go to the same school so there’d be no disruption that way?
[Judge]:Well, no. He’s about to go to high school and the parties can’t agree about that so he’ll be at a different school win, lose or draw. I have to decide whether it’s the school that the mother proposes that happens to be nearer her or the school that the father proposes that happens to be a bit nearer to him. Although neither of them says that the proximity is relevant.
[Dr QQ]:Well look, I would think that’s another issue. That if the boy is starting high school we all know that the transition from primary to high school brings with it its issues. So, I would think that’s another good reason why any change of living arrangements should be handled sensitively.
[Judge]:Would it be a reason for not making a significant change of living arrangements?
[Dr QQ]:It could well be…but I’m not going to….
[Judge]:Well we’ve got you to softening your recommendations, is that right?
[Dr QQ]:Yeah.
[Judge]:So are you still so far in your evidence at the point where you would recommend not changing the residential arrangements?
[Dr QQ]:I would stick by the initial recommendations in the report unless the Court held the view that the situation between the mother and the fiancé was such that it would have a negative impact on the child if he continued to spend most of the time with them.
[Mr Berry]:In your interviews and observations of the child did you see any evidence of a bad influence in relation to where the boy was living? And I appreciate it’s some time since you’ve seen him.
[Dr QQ]:No, look, again, he spoke calmly and positively of the two households. He didn’t really mention any negatives, I mean, he raised a number of positives if you like. I suppose he was quite careful to balance his account between them.
[Mr Berry]:I think you expressed the view in paragraph 79 that the boy does not appear afraid of or apprehensive of either parent?
[Dr QQ]:No, that’s certainly the impression I got during the assessment. Yeah.
[Mr Berry]:And I gather then you still maintain your final conclusion where you said the child seems to be coping with his current living arrangement and does not express a desire for substantial change?
[Dr QQ]:At that stage no he wasn’t.
[Mr Berry]:And that hasn’t changed your view on that has it?
[Dr QQ]:No it hasn’t.
In cross-examination on behalf of the father, Dr QQ was taken to the earlier reports of Mr II and conceded that the child was significantly older now and already in a shared care arrangement. The cross-examination went on to the following effect:
[Mr Givney]: We’re now three years down the track, at least three years, where he’s been seeing his father five nights a fortnight and half school holidays. So it’s likely that he is well adjusted to the routines of his father’s household and the mother’s household?
[Dr QQ]:Undoubtedly.
[Mr Givney]: And provided, I respectfully suggest, that he is exposed to his mother on a regular basis that would make it easier for him in the event that the Court moved his primary care from his mother’s to his father’s?
[Dr QQ]:Yeah I stand by what I said previously there that without radical alteration in not so much the amount of time but the frequency of seeing the parent. I mean I get back to the fact that when I did ask him about shared care, week about, for the very good reason because I wanted to test whether he would well because you put to me shared care a few extra nights actually makes it 50/50 shared care. But he seemed to be adamantly opposed to that on the basis that he’d miss either of his parents. So given that, it seems to me that by restricting any contact he has with one or either of the parents just to weekends is going to create the situation that he said he didn’t want.
[Mr Givney]: The complication with his wishes is, isn’t it, is the rider that I asked you about before of his experience may well dictate to him that…
[Dr QQ]:Well it may but it’s still his wish.
[Mr Givney]: The other issue is as a teenage boy should he live in a house where he could be exposed to dysfunctional behaviour and even violence?
[Dr QQ]:Well I think the answer begs the answer no he shouldn’t be. That’s not in his interests at all if that’s continuing there.
[Mr Givney]: You would see it as important would you not that he see both of the parties on a weekly basis on some…
[Dr QQ]:I would. Look I think he’s 13 this year so I would be more comfortable with that happening. Because, look, in 12-18 months’ time the boy is likely to be more confident in expressing views and wishes to his parents anyway. And as we know children as they get older, I mean we’re looking at perhaps two or three years maximum when he’s probably going to be able to decide this case rather than the Court. That’s what happens, that’s the situation.
This criterion is an important consideration in the context of this case. It was one of the influential criteria in the earlier proceedings and was a matter specifically raised by the single expert in these proceedings. The child is significantly older now than he was when seen by Mr II. Dr QQ saw him about 12 months ago and, as with Mr II, he was concerned about the impact of a significant change of living arrangements for the child. That said, when cross-examined Dr QQ did not hesitate in allocating priority to safety over this criterion albeit that he was not aware of the evidence of the conflict and violence in the mother’s household.
Neither of the parties proposes that the child be isolated from one parent. The child will be 13 this year and although he has the transition to high school to deal with, in my view there is a priority for change that should outweigh the advantages of leaving the pattern of residence as it is.
(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
There are no significant practical issues.
(3)(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
This issue was taken up in the cross-examination of Dr QQ on behalf of the father to the following effect:
[Mr Givney]: Now, when you looked at the earlier history of this relationship the father made allegations that included [the child] being whipped by his mother with a belt when he wouldn’t eat his food and a judge of this court found that that was a fact. If it was the case that that happened, and we have that evidence of that incident, if that happened being attacking her partner with a pole, it indicates doesn’t it a personality that doesn’t like being challenged?
[Dr QQ]:Well the pole incident may indicate a personality that’s greatly affected under the influence of alcohol.
[Mr Givney]: Yes. It was in a situation where the police say they were told that she was accusing [Mr GG] of being with a prostitute that day.
[Dr QQ]:Hmmm yep.
[Mr Givney]: So she would regard that as a challenge, would she not?
[Dr QQ]:Hmmm
[Mr Givney]: I might throw in the mix this. You’re aware aren’t you by reading material relating to the marriage that the mother makes serious allegations against the father as to violence towards her and violence towards [the child]?
[Dr QQ]:Yes I am.
….
[Mr Givney]: On 7 February 2012 the mother took [the child] from the school and the father didn’t see the child for two years apart from short occasions….
[Dr QQ]:Yes, I’m aware of that.
[Mr Givney]: So that takes us up to 2014. By the time Justice Hannam started hearing the case in July 2014 there had been seven therapeutic sessions with [the child] and [Dr V] involving [Mr Bangi]. So that takes us up to July 2014. Since then the mother has not raised one suggestion, any suggestion at all, that the father has behaved physically or in any way abusive towards the child. So there’s a complete contrast between the mother, what she said she observed of the father during the time of the marriage and now.
[Dr QQ]:Yes.
[Mr Givney]: If we are looking at a personality that I’ve spoken about with the pole incident and whipping [the child] and the question of challenges, we now have a child who’s about to enter his teens and obviously none of us know how he is going to develop as a teenager but he might be a person who’s stubborn, who challenges the mother and it would seem, would it not, if the matters I’ve put to you about the mother’s behaviour are correct, that she might not be up to the challenges of properly dealing with and raising a teenage child?
[Dr QQ]:If one accepts those assertions and if they are proven correct I would agree that she might find particular challenges along those lines. She could, I’d say she could.
[Mr Givney]: Yes she could and she would have difficulty meeting them, I would suggest?
[Dr QQ]:She could.
[Mr Givney]: If it is the case that the incident of 3 June 2017 actually happened and the mother denies it happening does that indicate to you that she’s not sorry that she carried out that behaviour?
[Dr QQ]:It would suggest that, but I’d probably throw something in as well and say that if it did occur as reported, and if she had been greatly intoxicated at the time, lack of memory could be associated with the intoxication as well.
Each of the parents are capable of feeding and clothing the child. The parents each blame the other for the child’s weight. The child has been living in a shared care arrangement for some time now and it is not possible for me to make a finding as to the reason for his weight gain. It does not automatically follow that the child’s weight results from a poor diet, let alone that the problem can be sheeted home to one household.
Each of the parents is critical of the other about the support provided to the child with school work. I detect from the evidence of the father and his wife that they are more motivated than the child in relation to his homework and tutoring. That is not to say that the mother does want him to achieve well in his studies.
(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
The parents are from very different backgrounds. Hannam J recorded the following:
209. [The child] 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.
210. 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 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.
There was no additional evidence about cultural matters in the mother’s evidence before me. The father mentioned that when his time was restored in 2014 the child attended Country X festivities and joined with friends over that festival. There was another celebration in October 2014. This is not a criterion of critical importance in the context of the disputes between the parents.
(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This does not apply.
(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
In addition to the other matters dealt with under different criteria, I should refer to the evidence about the mother’s consumption of alcohol. It is the father’s evidence that the mother consumed alcohol to excess during their relationship. He says that through 2009 and 2010 the mother’s drinking escalated and she was drinking heavily at least four to five days a week. She drank a bottle of wine a night and was observed by the father to be intoxicated each night. It is the father’s evidence that this was matched with a reduction in the mother’s care of the child.
Hannam J found:
14.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.
There is a reference to the mother’s evidence about her attitude to the consumption of alcohol in a passage of cross-examination of the mother quoted by the Full Court in the context of the appeal as follows:
69.In giving her evidence, contrary to the father’s asserted concern about the mother’s consumption of alcohol and consequent violence, she portrayed a picture of domestic bliss with Mr GG as mentioned below. During cross‑examination of the mother, the father’s accusations of alcohol abuse were put to her. One such incident concerned her being affected by alcohol in December 2011:
[THE MOTHER]: No. It’s never happened, that – this.
MR GIVNEY: That you were drunk?
[THE MOTHER]: Never.
MR GIVNEY: Never?
[THE MOTHER]: Never
MR GIVNEY: Never drunk, is that your evidence, Madam?
[THE MOTHER]: Yes, yes, I never – I don’t drink.
MR GIVNEY: Right. You don’t drink.
[THE MOTHER]: No.
(Transcript of proceedings 17 July 2014, page 117, lines 3-19)
70.To the extent that it might be thought that, as English is not the mother’s first language (she having been born in Country D), she may not have understood what was being suggested, we consider that the finding of the trial judge about her credibility unequivocally answers that. The mother’s denial about consuming alcohol was made on 17 July 2014. On the following day, the trial adjourned part-heard for several weeks.
In the proceedings before me there is evidence from the mother, Mr GG and the NSW police about the mother consuming alcohol since the earlier trial.
The evidence reveals that at times Mr GG consumes alcohol to excess. However, the evidence referred to above does not establish that the mother consistently consumes alcohol nor that she does so to excess.
(3)(j) any family violence involving the child or a member of the child's family;
I have referred to the evidence about this earlier in these reasons.
(3)(k) any family violence order that applies to the child or a member of the child's family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
There is no relevant family violence order.
(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
I am not aware of such an alternative order.
(3)(m) any other fact or circumstance that the court thinks is relevant.
The definitions of family violence have changed since the law was as it applies to these proceedings. That does not mean that the behaviours in the extended definitions are in a child’s best interests. It simply means that the impact on a child of those behaviours is not a primary consideration.
Of course, it could be in the circumstances of a particular case that an additional consideration is more influential in proceedings than a primary consideration.
Living Arrangements
In that there is an order that the parties have equal shared parental responsibility, it is necessary to consider ordering equal time. Neither of the parties seeks that order and it was not raised during final submissions. The Court is then to consider, with a view to ordering, substantial and significant time with each parent. The proposals under consideration meet that description.
I will make the orders proposed on behalf of the father. More time in the father’s household and less time in the mother’s household will reduce the child’s risk of exposure to violence, conflict and the excessive use of alcohol. There will be some adjustment for the child but he will see his mother on an overnight basis, each week.
Dr QQ recommended that a significant change be implemented with sensitivity and agreed that some professional support could be useful. I am confident that the father will be able to put that support in place.
I have expressed the orders as the father has sought but provided for the parents to re-list the matter if there are any changes needed to the detail of the orders.
High School from 2019
Although not an issue specifically remitted from the Full Court, the parties have been unable to agree about the high school to be attended by the child from the start of the 2019 school year. The parties have equal shared parental responsibility under the order made by Hannam J on 27 March 2015 and that order was not the subject of the father’s appeal. It is the mother’s proposal that the child attend at OP School, a parochial school at Suburb QR. It is the father’s proposal that he attend at Suburb I School. Each of the schools offers classes from year 7 to year 12 inclusive.
Each of the parents has caused the child to meet the enrolment formalities for the school they propose and the child has been accepted into both schools. In October 2018 the mother took the child for an interview at OP School. The mother received an acceptance letter from the principal at OP School and has paid for the school uniform and the acceptance fee. The father contacted Suburb I School in late 2018 and attended the school to sign an enrolment form based on the current addresses of the child.
Suburb I School is not a selective school as such but it has a selective class in each of years 7, 8, 9 and 10. There is no evidence that the child has been accepted into the selective class in Year 7 but the father asserts that the child is otherwise out of area for the school and that the school has been referred to the child’s results in the selective school test administered in 2018. Suburb I School is about 13 kilometres from the mother’s home and 3 or 4 kilometres from the father’s home. There are buses that will take him to school from the father’s home. The father contends that the child could travel to school from the mother’s home on one of two buses from a bus stop near the mother’s home to a bus stop 200 metres from the school.
OP School is at Suburb QR. It was the mother’s evidence during cross‑examination that there is a train every 30 minutes from Suburb S Station to Suburb RS. That the train takes 19 minutes and from Suburb RS there is a bus trip to the school which takes 10 minutes. The mother said that if the child leaves home at 7.20 am he would be at OP School at about 8.00 am. I asked the mother, if the father did not contribute to the school fees would she pay the fees from year 7 to 12 and she said she would. She said that she would not need to rely on Mr GG for those funds. She referred to her access to her funds in a joint account she shared with Mr GG. Mr GG was also asked about the school fees. He said that they are about $6,000 (per year) and that if they came from nowhere else, he would pay them.
The cases presented by the parents do not rely on the comparative educational offerings of the schools. I gather from the cross-examination of the mother that the father would contend that, at some point at least, the parties’ negotiations were conducted on the basis that the child would attend a public school. I accept that evidence but that does not provide any assistance with the decision to be made.
OP School is not a public school. There are already tensions between the parties about the timeliness of child support payments. I did not hear the father concede that he would contribute to the additional fees that would be involved in the child attending OP School. One would want to avoid placing a child in the disruptive and embarrassing position of having to leave a school during his time there, only because the fees could not be secured. However, the fact that substantial fees are payable there is not of critical importance, given the assurances made by the mother.
The obvious fact is that OP School is closer to the mother’s home and that Suburb I School is more convenient to the father’s home. Albeit in a report made in March 2018, and at a time when the topic was the child’s travel to primary school, Dr QQ recorded that the child walked to and from school from his mother’s home and that his father’s new wife accompanies him on the train from his father’s home. The father stressed to Dr QQ a preference for accompanying the child to school, whereas the mother believed that the child was old enough to walk to school unsupervised.
On the evidence given by each of the parents, albeit with little practical opportunity for testing that evidence, there is public transport access to the respective institutions.
As a general proposition there are obvious advantages to the child attending a school close to his home. In this case, close to his primary residence. I have ordered that he mainly live with his father. Largely for that reason I ordered that the child attend Suburb I School, commencing in the 2019 school year. That will also exclude the risk that the child could ever be embarrassed as a result of a failure to pay or a dispute between the parents about the payment of school fees.
Conclusion
The orders made provide for the child to commence at Suburb I School from the start of the 2019 school year.
Leave was granted to the parties to bring the matter back before me within 28 days, or at such further time on which the parties may agree, in relation to the wording of the orders.
As to the proceedings in relation to property settlement, judgment continues to be reserved.
I certify that the preceding two-hundred and fifty-one paragraphs (251) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 6 February 2019.
Associate:
Date: 6 February 2019
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