Bedford and Cusack
[2011] FamCA 899
•22 November 2011
FAMILY COURT OF AUSTRALIA
| BEDFORD & CUSACK | [2011] FamCA 899 |
| FAMILY LAW – CHILDREN – competing applications for parenting orders – where the primary dispute became how much time the child should spend with the father and under what conditions – where the father’s case was almost entirely founded on allegations against the mother and her partner based on what the child had told him – where the statements of the child were unreliable given the pressure the child was under from both parents but particularly the father – where the father had no appreciation of the impact the dispute is having on the child or the harm that his conduct is causing – where the father has subjected the child to unnecessary and unjustified consultations with health professionals, interviews by police and by social workers and attendances at the Women’s and Children’s Hospital and the Child Protection Service - where the mother and her partner deny the allegations made by the father – where the mother and her partner allege that the father has verbally abused them in the presence of the child and has frustrated their time with her- where the expert evidence does not support the father’s case – where the counsel for the Independent Children’s Lawyer supports the orders sought by the mother - where the child enjoys a close and loving relationship with both parents despite the father’s attitude and conduct – where there is no doubt that the child would benefit from having a meaningful relationship with both parents – where there needs to be a significant change in the father’s attitude and conduct before the child can find any peace – where there is no need to protect the child from being subjected to physical harm or abuse by the mother or her partner – where there is a need to protect the child from the behaviour and attitude of the father – all previous orders discharged – mother to have sole parental responsibility - child to live with the mother and spend time with the father on alternate weekends and during one half of all school holidays. |
| Family Law Act 1975 (Cth) – s 60B(1) & (2), s 60CA, s 60CC(2)(a) & (b), (3)(a), (3)(b)(i) & (ii), (3)(c), (3)(d), (3)(e), (3)(f)(i) & (ii), (3)(g), (3)(h), (3)(i), (3)(j), (3)(k), (3)(l) & 3(m), s 60CC(3) & (4), s 61C, s 61DA(1) & (4), s 65DAA(1) & (2) |
| McCall & Clark (2009) FLC 93-405 |
| APPLICANT: | Mr Bedford |
| RESPONDENT: | Ms Cusack |
| INDEPENDENT CHILDREN’S LAWYER: | Ashley Kent |
| FILE NUMBER: | ADC | 1688 | of | 2007 |
| DATE DELIVERED: | 22 November 2011 |
| PLACE DELIVERED: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 8-18 December 2009 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Cocks |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of South Australia |
ORDERS
All previous orders be and the same are hereby discharged.
MR N is hereby released from his undertakings given in the Federal Magistrates Court on 24 April 2007.
The child H BEDFORD born … October 1998 live with the mother.
The mother have sole parental responsibility for the said child.
The said child spend time with the father as follows:
a.during school term, commencing on the second weekend of each term, each alternate weekend from the conclusion of school in the school week until the commencement of school in the following week;
b.for the second half of each short school holiday period, from 6:00pm on the middle Saturday of the period until the commencement of school on the first day of term;
c.for half of each Christmas school holiday period as follows:
i.for the first half of the Christmas school holiday period which commences in 2011, from the conclusion of school on the final day of the fourth term until 6:00pm on the middle Saturday of the holiday period, and during the same period in each alternate year thereafter;
ii.for the second half of the Christmas school holiday period which commences in 2012, from 6:00pm on the middle Saturday of the period until the commencement of school on the first day of term, and during the same period in each alternate year thereafter;
d.at such other times as may be agreed in writing, and evidenced by the signature of both parties.
To celebrate special occasions, and regardless of any other order made herein, the said child is to spend time with each of the parties as follows:
a.at Christmas 2011 and each alternate year thereafter:
i.with the father, from 6:00pm on 24 December until 3:00pm on
25 December;ii.with the mother, from 3:00pm on 25 December until 6:00pm on 26 December;
b.at Christmas 2012 and each alternate year thereafter:
i.with the mother, from 6:00pm on 24 December until 3:00pm on 25 December;
ii.with the father, from 3:00pm on 25 December until 6:00pm on
26 December;c.at Easter:
i.during 2012 and each alternate year thereafter, with the mother, from the conclusion of school (or 6:00pm if not a school day) on Maundy Thursday until 6:00pm on Saturday and with the father from 6:00pm Saturday until 6:00pm Easter Monday;
ii.during 2013 and each alternate year thereafter, with the father, from the conclusion of school (or 6:00pm if not a school day) on Maundy Thursday until 6:00pm on Saturday and with the mother from 6:00pm Saturday until 6:00pm Easter Monday;
d.on Mother’s Day each year, with the mother from 10:00am Mother’s Day until the commencement of the next school day;
e.on Father’s Day each year, with the father from 10:00am on Father’s Day until the commencement of the next school day.
To effect the arrangements set out in paragraphs (5) and (6) herein:
a.all handovers which occur on days when the child’s school is open be effected by the father collecting the child from her school at the commencement of periods, and returning the child to her school at the conclusion of periods provided that in lieu of the father collecting the child, the child be at liberty to travel by bus if there is an appropriate service available and the father is able to collect the child from the bus stop nearest to his home;
b.all other handovers occur inside the W Police Station upon condition that:
i.the mother is restrained, and an injunction is hereby granted restraining her from causing or permitting the said Mr N to enter the Police Station whilst handover is being effected; and
ii.the parent delivering the child is to leave the Police Station forthwith after ensuring the presence of the other parent inside the Police Station.
The said child communicate by telephone with her parents as follows:
a.with the father, each Wednesday at 6:30pm, with the communication to be initiated by the father calling the said child’s mobile telephone;
b.with the mother, each Wednesday of school holiday periods when the said child is spending time with the father pursuant to these orders, at 6:30pm with the communication to be initiated by the mother calling the said child’s mobile telephone;
c.with the parent who will not otherwise spend any time with the said child on her birthday, at 6:30pm on the said child’s birthday, with the communication to be initiated by that parent that day calling the said child’s mobile telephone.
The father be restrained, and injunctions are hereby granted restraining him from:
a.causing the said child to consult any counsellor, psychologist or psychiatrist without either:
i.the prior written permission of the mother; or
ii.at the request of Families SA;
b.causing the said child to consult a medical practitioner except in the event the said child suffers from a physical illness or injury whilst in his care, in which case he must:
i.in the event the physical illness or injury requires hospitalisation, or is a diagnosis of an ongoing serious medical condition, notify the mother of the physical illness, diagnosis, and the identity of the medial practitioner and his/her contact details as soon as is possible (and in any event within one hour);
ii.in all other circumstances, notify the mother in writing of the illness or injury, any treatment prescribed, and the identity of the medical practitioner and his/her contact details with such notification to be by SMS text and by note placed in the said child’s school bag;
c.causing the said child to attend upon Police officers for the purposes of the said child being interviewed save and except if such interview is:
i.arranged by Families SA; or
ii.at the initiation of the Police without prior contact from the father; or
iii.with the consent of the mother.
In the event that the mother takes the said child to play sport on the weekend when the said child is living with her, the father be restrained and an injunction is hereby granted restraining him from attending at the venue for that sports game whilst the same is being played.
The parties be restrained, and injunctions are hereby granted restraining each of them from:
a.using physical discipline upon the said child;
b.causing or permitting any other person to use physical discipline upon the said child;
c.abusing, threatening or harassing the other party at handovers;
d.causing or permitting any other person to abuse, threaten or harass the other party at handovers;
e.abusing or harassing any other person accompanying any other parent, at handovers;
f.changing the child’s permanent place of residence from a radius of 75 kilometres from the Adelaide General Post Office without the prior written consent of the other party;
g.arranging extra-curricula activities for the said child which require the said child’s attendance during periods when the said child is not in that party’s care.
The mother:
a.is restrained, and an injunction is hereby granted restraining her from changing the said child’s name;
b.provide the father with at least twenty-one (21) days written notice of any intention to change the child’s school, noting however:
i.that the mother is not required to provide such notice if the only change is for the said child to commence attending T School at G when the said child commences High School;
ii.that any alternative school to T School must be situated within a 75 kilometre radius from the Adelaide General Post Office;
iii.that the father is also at liberty to enrol the said child at T School.
c.authorise each school at which the said child attends to release to the father:
i.copies of the said child’s school reports;
ii.copies of school newsletters;
iii.notice of when school photographs are to be taken upon the basis that the father is at liberty to purchase copies of school photographs at his own expense;
d.authorise each school at which the said child attends to permit the father to attend parent/teacher interviews separately from the mother subject to the school itself being able and willing to facilitate the father’s attendance at a separate interview;
e.authorise each school at which the said child attends to permit the father to attend events to which parents are generally invited including school sports days and school concerts;
f.notify the father as soon as is possible (and in any event, within one hour) in the event of the child suffering a physical illness or injury which requires hospitalisation, or the said child being diagnosed with an ongoing serious medical condition, and at the same time the mother do advise the father of the diagnosis, the identity of the treating medical practitioner and his/her contact details;
g.authorise the medical practitioner referred to in paragraph (12)(f) herein to discuss the said child’s medical condition with the father to the extent of explaining the diagnosis and the treatment prescribed;
h.notify the father by SMS text and by note placed in the said child’s school bag in the event of the said child suffering an illness or injury which will require the administration of medication or other treatment whilst in the father’s care, and, at the same time, provide the father with details necessary to enable the father to administer the medication or other treatment, the diagnosis, the identity of the treating medical practitioner and his/her contact details;
i.authorise the medical practitioner referred to in paragraph (12)(h) herein to discuss the said child’s medical condition with the father to the extent of explaining the diagnosis and the treatment prescribed.
The parties be at liberty to provide each school at which the said child attends with a copy of this order.
The parties:
a.keep each other informed of their mobile telephone numbers, and of any changes thereto;
b.ensure the said child’s mobile telephone is charged, has credit and is available to the said child, to facilitate the telephone communications referred to herein;
c.equally share the cost of the said child’s mobile telephone.
The Independent Children’s Lawyer arrange for Ms S or Dr Q to explain these orders to the said child, but if neither is available then the Independent Children’s Lawyer arrange for a Family Consultant of this Court to explain the orders to the said child.
Subject to paragraph (15) hereof the order appointing the Independent children’s Lawyer be and the same is hereby discharged.
That all applications and responses be and are hereby removed from the active pending cases list.
IT IS NOTED that publication of this judgment under the pseudonym Bedford & Cusack is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 1688 of 2007
| Mr Bedford |
Applicant
And
| Ms Cusack |
Respondent
REASONS FOR JUDGMENT
Introduction
I have before me for determination competing applications for parenting orders with respect to the child H BEDFORD (“the child”) born in October 1998 and now aged 13 years.
The father filed an Initiating Application on 29 March 2007. At the commencement of the trial though the father sought the following orders:
1.That all previous Orders with reference to residence and contact be and hereby discharged.
2.That the mother and father be jointly responsible for the welfare and development of the child [H Bedford].
3.That the child [H] shall reside with the father and spend time with the mother on alternate weekends from the conclusion of school on Friday until Sunday 6pm SAVE AND EXCEPT:
a. for half of all school holidays for the first half of all school holiday periods in 2009 and the second half in 2010, alternating yearly;
b. the child reside with the father on the child’s birthday, father’s birthday, and father’s day at 10.00am on the day unless otherwise agreed between the parties;
c. in the event that mother’s day falls on a residence weekend the child shall be returned to the mother at 10.00am on that day unless otherwise agreed in writing between the parties;
d. the father have unrestricted telephone contact with the child and the mother will not restrict, harass, impede or control the child when in conversation when (sic) her father;
e. Easter shall be shared equally between the parties, times of residence with the mother alternating yearly from the conclusion of school Thursday until 6.00pm Saturday in 2010 and from 6.00pm Saturday until 6.00pm Monday in 2011 alternating yearly unless otherwise agreed in writing;
f. From 6.00pm on the 24 December 2009 until 3.00pm on the
25 December 2009 and each alternate year thereafter unless otherwise agreed in writing between the parties;g. From 6.00pm on the 23 December 2010 until 6.00pm on the
24 December 2010 and from 3.00pm on Christmas day 2010 until 6.00pm on 26 December 2010 and each alternate year thereafter unless agreed between (sic) in writing between the parties;4.The mother ensure that [H] is not brought into contact with [Mr N].
5.The mother ensure that Mr [N] does not reside in the family home whilst [H] is in her care.
6.The mother is restrained from physically disciplining [H].
7.Each parent is restrained from discussing these proceedings with or in the presence of [H] and from allowing any other member of their household to do so.
8.The mother is restrained from abusing, threatening or harassing the father or any other person accompanying them to handovers or at any other time.
9.That each party shall be responsible for the child’s welfare and development whilst in their respective care.
10.That for the purposes for (sic) weekend residence the mother shall collect the child from school and the father shall collect the child from the [K] Police Station in the State of South Australia, all other handovers shall take place at the [W] Street Police Station in the State of South Australia.
11.That neither party shall change the child’s permeant (sic) place of residence from a radius of 50 kilometres from the Adelaide GPO without consent of the other party.
12.That each party shall keep the other advised and consulted at all times in relation to health, education and the welfare of the child and the parents do all things necessary to enable the other parent to be provided with school notices, reports and the like.
13.That each party keep the other advised and consulted at all times as to any interest the child may have in relation to extra-curricular activities.
14.That the father be given the option the (sic) care for the child in the event of sickness or health reasons or in the event that the mother is unable to personally care for the child.
15.Pursuant to S65DA(2) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
The mother filed a Response on 10 June 2008. At the commencement of the trial the mother sought the following orders:
That all existing orders be dismissed.
1.I seek orders for the future to read – the mother to have [H] during the school week and alternating weekends (for the whole weekend) to (sic) commencing Friday 5th February 2010.
2.For the Father to collect [H] from school at the close of school on the alternating weekend with changeover to occur at 6pm Sunday with changeover to take place at the [W] St Police Station (as is currently).
3.School holidays to be shared equally with the 1st half with the Mother and 2nd half with the Father. Commencing at completion of school until 6pm Saturday in the middle weekend of the holidays.
4.Excepting Christmas Holidays which would alternate commencing with the mother having the 2nd half this year (2009) with the mother. Commencing at 6pm Saturday in the middle weekend of the holidays.
Christmas Day 2009 to be spent with the mother from 3pm Christmas day until 6pm Boxing Day and each alternate year.
Easter to alternate. Commencing from 6pm Maundy Thursday until 7pm Easter Monday.
5.That [H] continues to attend [O] Primary School at which she is doing extremely well.
6.For High School we would like to send her to [T School] or [X School], as they are both private [Schools] in close proximity to our home.
7.That both parties are restrained from physically punishing [H].
8.That each party is restrained from abusing or harassing the other parent or any other person accompanying them to handovers.
9.That the father is restrained from taking [H] to medical or counselling appointments SAVE AND EXCEPT as may be required by child protection services of Families SA.
10.If the child is to leave the state for any reason that the mother be notified in writing stating the destination and dates of departure and return no less than 2 weeks before.
For the Independent Children’s Lawyer’s part, the final orders sought by him at the commencement of the trial were as follows:
1.That all previous orders be, and are hereby, discharged.
2.That Mr [N] is hereby released from his undertakings given in the Federal Magistrates Court on 24 April 2007.
3.That the child [H BEDFORD] born … October 1998 live with the mother.
4.That the mother have sole parental responsibility for making decisions concerning major long term issues in relation to the child.
5.That the child spend time with the father:-
a. during school terms, each alternate weekend from the conclusion of school Friday (or 3.30pm if not a school day) until the commencement of school Monday (or Tuesday, in the event that the Monday is a public holiday or non-school day) commencing on the second Friday of each school term;
b. for the second half of each short school holiday period, from 6pm on the middle Saturday of the holiday period until the commencement of school on the first day of term;
c. for half of each Christmas school holiday period as follows:-
i.for the first half of the Christmas school holiday period which commences in 2009, from the conclusion of school on the final day of fourth term until 6pm on the middle Saturday of the holiday period, and during the same period in each alternate year thereafter;
ii.the second half of the Christmas school holiday period which commences in 2010, from 6pm on the middle Saturday of the holiday period until the commencement of the school on the first day of term, and during the same period each alternate year thereafter;
d. at such other times as may be agreed in writing, and evidenced by the signature of both parties.
6.That to celebrate special occasions, and regardless of any other order, the child is to spend time with each of the parties as follows:-
a. At Christmas 2009 and each alternate year thereafter:-
i.with the father, from 6pm on 24 December until 3pm on
25 December;ii.with the mother, from 3pm on 25 December until 6pm on
26 December;b. at Christmas 2010 and each alternate year thereafter:-
i.with the mother, from 6pm on 24 December until 3pm on
25 December;ii.with the father, from 3pm on 25 December until 6pm on
26 December;c. at Easter:-
i.during 2010 and each alternate year thereafter, with the mother, from the conclusion of school (or 6pm if not a school day) on Maundy Thursday until 6pm Easter Monday;
ii.during 2011 and each alternate year thereafter, with the father, from the conclusion of school (or 6pm if not a school day) on Maundy Thursday until 6pm Easter Monday;
d. on Mother’s Day each year, with the mother from 10am Mother’s Day until the commencement of the next school day;
e. on Father’s Day each year, with the father from 10am Father’s Day until the commencement of the next school day.
7.That to effect the arrangements set out in paragraphs 5 and 6 herein:-
a. all handovers which occur on days when the child’s school is open be effected by the father collecting the child from her school at the commencement of periods, and returning the child to her school at the conclusion of periods;
b. all other handovers occur inside the [W] Street Police Station UPON CONDITIONS that:
i.the mother is restrained, and an injunction is hereby granted restraining her, from causing or permitting the said
Mr [N] to enter the police station whilst handover is being effected;ii.the parent delivering the child is to leave the police station forthwith after ensuring the presence of the other parent inside the police station.
8.That the child communicate by telephone with her parents as follows:-
a. with the father, each Wednesday at 6.30pm, with the communication to be initiated by the father calling the child’s mobile telephone;
b. with the mother, each Wednesday of school holiday periods when the child is spending time with the father pursuant to these orders, at 6.30pm, with the communication to be initiated by the mother calling the child’s mobile telephone;
c. with the parent who would not otherwise spend any time with the child on her birthday, at 6.30pm on the child’s birthday, with the communication to be initiated by the parent who would not otherwise spend time with the child that day calling the child’s mobile telephone.
9.That the father be restrained, and injunctions are hereby granted restraining him, from:-
a. causing the child to consult any counsellor, psychologist or psychiatrist without either:-
i.the prior written permission of the mother; or
ii.at the request of Families SA;
b. causing the said child to consult a medical practitioner EXCEPT in the event the said child suffers from a physical illness or injury whilst in his care, in which case he must:-
i.in the event the physical illness or injury requires hospitalisation, or is a diagnosis of an ongoing serious medical condition, notify the mother of the physical illness, diagnosis, and the identity of the medical practitioner and his/her contact details as soon as is possible (and in any event, within an hour);
ii.in all other circumstances, notify the mother in writing of the illness or injury, any treatment prescribed, and the identity of the medical practitioner and his/her contact details, with such notification to be by SMS text and by note placed in the child’s school bag;
c. causing the said child to attend upon police officers for the purposes of the said child being interviewed SAVE AND EXCEPT if such interview is:-
i.arranged by Families SA; or
ii.at the initiation of the police without prior contact from the father; or
iii.with the consent of the mother.
10.That the parties be restrained, and injunctions are hereby granted restraining each of them, from:-
a. using physical discipline upon the said child;
b. causing or permitting any other person to use physical discipline upon the said child;
c. abusing, threatening or harassing the other party at handovers;
d. causing or permitting any other person to abuse, threaten or harass the other party at handovers;
e. abusing or harassing any other person accompanying the other parent, at handovers;
f. changing the child’s permanent place of residence from a radius of 75 kilometres from the Adelaide General Post Office without the prior written consent of the other party;
g. arranging extra-curricular activities for the child which require the child’s attendance during periods when the child is not in that party’s care.
11.That the mother:-
a. is restrained, and an injunction is hereby granted restraining her, from changing the child’s name;
b. provide the father with at least twenty one days written notice of any intention to change the child’s school NOTING HOWEVER that the mother is not required to provide such notice if the only change is for the child to commence attending [T School] at [G] when the child commences high school;
c. authorise each school at which the child attends to release to the father:-
i.copies of the child’s school reports;
ii.copies of school newsletters;
iii.notice of when school photographs are to be taken UPON THE BASIS that the father is at liberty to purchase copies of school photographs (at his own expense);
d. authorise each school at which the child attends to permit the father to attend parent/teacher interviews (separately from the mother) SUBJECT to the school itself being able and willing to facilitate the father’s attendance at a separate interview;
e. authorise each school at which the child attends to permit the father to attend events to which parents are generally invited (including Sports Days and school concerts);
f. notify the father as soon as is possible (and in any event, within an hour) in the event of the child suffering a physical illness or injury which requires hospitalisation, or the child being diagnosed with an ongoing serious medical condition, and at the same time the mother do advise the father of the diagnosis, the identity of the treating medical practitioner and his/her contact details;
g. authorise the medical practitioner referred to in paragraph 11(f) herein to discuss the child’s medical condition with the father to the extent of explaining the diagnosis and the treatment prescribed;
h. notify the father by SMS text and by note placed in the child’s school bag in the event of the child suffering an illness or injury which will require the administration of medication or other treatment whilst in the father’s care, and at the same time, provide the father with details necessary to enable the father to administer the medication or other treatment, the diagnosis, the identity of the treating medical practitioner and his/her contact details;
i. authorise the medical practitioner referred to in paragraph 11(h) herein to discuss the child’s medical condition with the father to the extent of explaining the diagnosis and treatment prescribed.
12.The parties be at liberty to provide each school which the child attends with a copy of this order.
13.That the parties:-
a. keep each other informed of their mobile telephone numbers, and of any changes thereto;
b. ensure the child’s mobile telephone is charged, has credit and is available to the child, to facilitate the telephone communication referred to herein.
14.That the appointment of the Independent Children’s Lawyer be, and the same is hereby, discharged.
15.That all applications otherwise be dismissed.
The orders sought by the parties (but not the Independent Children’s Lawyer) changed on numerous occasions during the hearing. The most significant change was that the father no longer pursued an order that the child live with him. He indicated that he would accept an order that the child live primarily with the mother and spend time with him. The primary dispute then became how much time and under what conditions the child would spend time with the father. I will address the detail of this dispute later in these reasons.
The decision by the father to no longer pursue an order that the child live with him was an obvious and necessary change to make in this case, but unfortunately that did not alter the father’s approach to the issues then in dispute. The father’s case was entirely based on allegations against the mother and her partner Mr N which were all without foundation and which meant that he was never going to succeed. The hearing though became the ultimate battlefield for the bitter and acrimonious conflict between the father and the mother fuelled almost entirely by the father. The sad and unfortunate result of this was that the child was caught in the middle but the father simply could not understand or appreciate that this was the case. To the very end he refused to accept that.
Factual background
The mother was born in 1968 and is now aged 43 years.
The father was born in 1968 and is now aged 43 years.
There is a dispute between the parties as to when cohabitation commenced. The mother asserts cohabitation commenced in September 1996 and the father asserts cohabitation commenced in September 1997. However, nothing turns on this.
In October 1998 the parties’ child [H] was born and is now aged 13 years.
In November 2000 the mother alleges the father assaulted her in the presence of the child.
The parties separated between August and December 2001.
On 16 January 2002 the mother commenced proceedings in the Family Court seeking final and interim parenting orders for the said child.
On 21 March 2005 Dawe J made Final Orders by consent save and except for paragraph 3(b) as follows:
IT IS ORDERED BY CONSENT
1. That all previous orders with reference to residence and contact be and hereby are discharged.
2. That the mother and father be jointly responsible for the long term care, welfare and development of the child [H].
3. That the child [H] reside with the father every weekend during the school terms, from the conclusion of school on Friday until Sunday 6.00 pm SAVE AND EXCEPT:
(a)on the second weekend of the calendar month during school terms, the child shall be returned to the mother on Sunday at 8.00 am;
AND IT IS FURTHER ORDERED:
(b)on the fourth weekend of the calendar month during school terms the child [H] is to be returned to the mother on Saturday within half an hour of the conclusion of the sporting commitment of the child or 11.00 am whichever is the later PROVIDED THAT if the child’s sporting commitment is anticipated to conclude later than 11.00 am then the father is to notify the mother of the anticipated time and place of the sporting commitment in writing or by e-mail at least two weeks prior to the period of contact AND PROVIDED FURTHER if the anticipated conclusion of the sporting commitment is changed then the father is to notify the mother of the changed time and place no later than 7.00 pm on the Thursday immediately preceding that period of contact AND IT IS NOTED the father is to endeavour to obtain as soon as possible a complete list of the sporting engagements for the season;
AND IT IS FURTHER ORDERED BY CONSENT:
(c)that in the event of public holidays, the parties shall share such times equally;
(d)for half of all school holidays at dates to be agreed in writing no less than four weeks prior to the commencement of each school holiday period;
(e)on the child’s birthday, father’s birthday and at times to be agreed between the parties and in default of agreement as ordered by the Court;
(f)the father have telephone contact with the child on one occasion each week on Wednesdays at approximately
6.30 pm;(g)Easter shall be shared equally between the parties, times of contact during the period alternating yearly from the conclusion of school Thursday until 6.00 pm Saturday or from 6.00 pm Saturday until 6.00 pm Monday unless otherwise agreed in writing;
(h)from 6.00 pm on the 24 December 2005 until 3.00 pm on the 25 December 2005 and each alternate year thereafter unless otherwise agreed in writing between the parties;
(i)from 6.00 pm on the 23 December 2006 until 6.00 pm on the 24 December 2006 and from 3.00 pm on Christmas Day 2006 until 6.00 pm on the 26 December 2006 and each alternate year thereafter unless agreed in writing between the parties;
(j)in the event that Mother’s Day falls on a contact weekend the child shall be returned to the mother at 10.00 am upon the basis that in the event Father’s Day falls on a non contact occasion the child shall be in the care of the father from
10.00 am Father’s Day;4. That the child shall reside with the mother at all other times.
5. That each party shall be responsible for the child’s day to day care welfare and development whilst in their respective care.
6. That for the purposes of weekend contact the father shall collect the child from school and the mother to collect the child from the father at the Mobil Service Station, … in the State of South Australia at the conclusion of each contact period and all other handovers shall take place at the abovementioned Mobil Service Station.
7. That neither party shall change the child’s permanent place of residence from a radius of 50 kilometers [sic] from the Adelaide GPO without the consent of the other party.
8. That each party shall keep the other advised and consulted at all times in relation to major issues affecting the health, education and welfare of the child and the mother shall do all things necessary to enable the father to be provided with school notices, reports and the like.
9. That each party shall keep the other advised and consulted at all times as to any interest the child may have in relation to extra-curricular activities.
10. That each party shall be given the option of caring for the child in the event that the parent is unable to do so due to health reasons or in the event that one parent is going away.
11. That the appointment of the Child Representative ordered in paragraph 1 of the orders of the 8 August 2003 is discharged.
12. That all matters be removed from the pending list.
13. Pursuant to S65DA (2) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
In approximately March 2006 the mother commenced a relationship with Mr N.
On 15 December 2006 the father alleges that he witnessed Mr N “…hit each of his three sons with an open hand to the head of the boys and slap them three or four times about the torso and upper legs.” The mother says this allegation is fabricated.
On 5 January 2007, as a result of the child allegedly being “upset” over certain actions by the school principal, Ms C, the father initially took her to his general practitioner, Dr A and then to Dr L, General Paediatrician, who examined the child and prepared a report.
The father says that on 18 March 2007 a verbal altercation occurred between him and Mr N because the father alleged that the child told him that Mr N had punched her on the right shoulder. The mother though says the altercation was as a result of Mr N collecting the child from school on Friday 9 March 2007 and the father alleging that he did not have permission to do so. Mr N denies punching the child.
On 23 March 2007 the father alleges that when he collected the child from school he touched her shoulder and she “flinched”. He alleges that the child indicated that Mr N had hit her on the shoulder and she showed him bruises on her shoulder and neck. The mother says that on the morning of this allegation being made she noticed a small bruise on the child’s stomach which had occurred as a result of a bicycle accident, and that she had no other bruising. The father subsequently took the child to the Women’s and Children’s Hospital where she was examined by a Doctor and the bruising was recorded.
When the father arrived home he noticed some further bruising on the child’s legs and on 24 March 2007 he returned to the Women’s and Children’s Hospital with the child where she was further examined. The father then took the child to the K Police Station where the child gave a statement to police. The father sent a text message to the mother stating that he was not returning the child the following day.
On 25 March 2007 the father took the child to the K Police Station to give a further statement.
On 25 March 2007 the father also took the child to the Women’s & Children’s Hospital for an appointment with Child Protection Services (“CPS”). The child was examined by Dr E and also was seen by Ms M, Psychologist, who prepared a short report.
In the afternoon of 25 March 2007 the mother received a telephone call from Crisis Care advising that the child would not be returned to her. The mother was told that the child was “covered in bruises – in particular on her arms and shoulders…”.
On 26 March 2007 the father took the child to Dr J, Psychiatrist, and in the evening to Dr A.
On that same day the father was advised by Families SA to return the child to the mother, but he refused and kept the child.
On 26 March and 27 March 2007 the child did not attend school and the father prevented any communication between the child and the mother.
On 28 March 2007 the mother alleges that she tried to contact the child by telephone on three occasions without success.
On 29 March 2007 the father filed an Initiating Application in the Federal Magistrates Court seeking final and interim parenting orders, including that the orders of 21 March 2005 be discharged, that the child live with him and communicate with the mother, that the child be separately represented, and that a Family Assessment Report be undertaken.
On 3 April 2007 Kelly FM made the following orders during the period of the adjournment:
1. Pursuant to Section 68L of the Family Law Act 1975 THAT an independent children’s lawyer be appointed to represent the interests of the child [H BEDFORD] born on … October 1998 and to facilitate such appointment the parties respective solicitors do forward all relevant documents to Mr … of the Legal Services Commission of South Australia as a matter of urgency and that the independent child/children’s lawyer use his or her best endeavours to be in a position to make submissions to the court on the adjourned date (NOTING Ms Brown was previously appointed).
2. The Order of 21 March 2005 continues subject to the following conditions:
(a) the mother ensure that [H] is not brought into contact with Mr [N];
(b) the mother ensure Mr [N] does not reside in the family home whilst [H] is in her care; and
(c) the mother is restrained from physically disciplining [H].
3. Each parent is restrained from discussing these proceedings with or in the presence of [H] and from allowing any other member of their household to do so.
4. Each parent is restrained from taking [H] to medical or counselling appointments relating to the allegations raised in these proceedings SAVE AND EXCEPT as may be requested by Child Protection Services or Families SA.
5. The father deliver up [H] to the mother’s care at 5.00pm today at the … Police Station.
6. For the purpose of paragraph 3(g) of the Order of 21 March 2005, [H] spend time in the father’s care from the conclusion of school Thursday 4 April until 6.00pm Saturday 6 April 2007.
7. For the purpose of paragraph 3(d) of the Order of 21 March 2005, [H] spend time in the father’s care commence [sic] at 6.00pm Saturday 21 April until 6.00pm Sunday 29 April 2007.
8. Any further affidavits to be relied upon by either party be filed on or before 20 April 2007.
9. Further consideration is adjourned to 24 April 2007 at 9.30am.
The child was subsequently delivered up to the mother.
On 5 April 2007 the father alleges that when he collected the child from school she complained that the mother had pressured her to change the story that she gave to CPS and the police. The mother denies this.
The father alleges that after the child was returned to live with the mother she reported to him that the mother and Mr N were “extremely” angry with her and that they threatened her and punished her physically. The mother denies this.
On 12 April 2007 the child was interviewed at school by two social workers from Families SA, and as a result they recorded an outcome of abuse not confirmed.
On 24 April 2007 Mr N gave an undertaking that he would not physically discipline the child; and in any way assault or abuse the child. Kelly FM also made the following orders:
1. Leave is granted to all parties, their legal representatives and the independent children’s lawyer to inspect and copy the documents produced in answer to subpoena to SAPOL, Families SA and Womens [sic] and Childrens [sic] Hospital, pursuant to subpoena filed 20 April 2007 and 23 April 2007, subject to any privilege claimed. Information cannot be disclosed to persons not a party to these proceedings, save and except for expert witnesses. Leave is granted on the condition that all copies are destroyed at the conclusion of the matter.
2. The subpoena hearing listed on 7 May 2007 is vacated.
3. The mother is restrained from:
(a)allowing the child [H BEDFORD] born 5 October 1998 to be in the presence of Mr [N] without another adult person also present; and
(b)from physically disciplining [H].
4. Each party is restrained from abusing or harassing the other party or any other person accompanying them to handovers.
5. The parties make enquiries as to an update [sic] family assessment by Ms [S] or another appropriate psychologist as agreed between the parties.
6. The matter is listed for trial on 22/23 October 2007 at 10.00am (allowing two days).
7. Further consideration is adjourned to 23 May 2007 at 9.30am for trial directions and to hear from the independent children’s lawyer.
On 23 May 2007 Kelly FM made the following orders:
1. Each parent is restrained from taking the child [H BEDFORD] born on … October 1998 to medical or counselling appointments relating to the allegations raised in these proceedings SAVE AND EXCEPT as may be requested by Child Protection Services, Families SA or the independent children’s lawyer.
2. The parties do all things necessary to arrange a family assessment and report by Ms [S] directed to parenting issues regarding the child [H], such report to:
(a)include observed interaction between [H] and her parents;
(b)include interviews and observed interaction between [H] and Mr [N]; and
(c)address/consider issues relevant under ss 60CC, 61DA and 65DAA of the Family Law Act.
3. The parties share equally in the costs associated with the family assessment and report.
4. Upon receipt of Ms [S’s] report and prior to the adjourned date, both parties forward correspondence to the other party identifying the evidentiary issues they seek to produce at trial NOTING that such correspondence to be on a “without prejudice” basis.
5. Each party participate (sic) enrol and participate (sic) in the Kids are First programme through Anglicare and attend such appointments for sessions as may be nominated by that programme.
6. Further consideration is adjourned to 23 August 2007 at 10.00am for trial directions (allowing one hour).
7. Liberty to apply to relist on 14 days notice.
From May 2007 through to March 2008 the father alleges there were ongoing difficulties between the parties. He says that the mother was continually late for handovers and that she and Mr N were abusive towards him in front of the child. The mother denies this. She says that on one occasion she was unable to get to a handover on time due to the father changing handover time.
On 15 August 2007 Ms S completed her Family Assessment Report. She recommended as follows:
36.1.That [H] lives with her mother, Ms [Cusack], and spends regular time with her father, Mr [Bedford].
36.2.That [H] spends time with her father on alternate weekends from after school on a Friday until the commencement of school on Monday.
36.3.That handover continues to take place at a neutral location.
36.4.That both [the mother] and [the father] attend for a psychiatric/psychological assessment and that reports from these assessments be made available to the court.
36.5.That [H] receives counselling from an appropriate psychiatrist/psychologist to assist with the development of appropriate means of expression of emotional and social concerns.
36.6.That [the mother] and [the father] refrain from actively involving [H] in the court process.
36.7.That [the mother] and [the father] and Mr [N] refrain from making derogatory comments about each other in the presence of [H].
On 7 November 2007 Kelly FM transferred the proceedings to the Family Court of Australia.
On 17 March 2008 the father alleges that he received a telephone call from the child during the early hours of the morning stating that she had run away from the mother’s home and wanted him to pick her up. The father subsequently alerted police to search for the child. The father alleges that he then left his home and located the child at about 1.40am, but she refused to go back to the mother’s home. He then contacted police and took the child to the Z Police Station as directed by police. The father later sent the mother a text message advising her that the child was safe and that he was taking her home with him and would return her the following day. The father alleges that the mother telephoned him shortly thereafter and was aggressive and yelled abuse at him. The mother denies this. She alleges that the father set this up and encouraged the child to run away and meet him.
On 18 March 2008 the father took the child to Dr A. He also alleges that he spoke to Ms R from Families SA who advised him to obtain legal advice. He says that he attempted to contact the mother by telephone to make arrangements to return the child but could not immediately contact her. When he did eventually contact the mother he arranged for the mother to collect the child at 4:30pm from the Z Police Station.
At the police station an incident occurred which the father says was as a result of the child not wanting to go back to the mother. The father alleges that the mother was agitated and angry, that she did not say hello to the child and yelled “come on lets go”. The father alleges that the mother told the child that she would take the father back to court and make sure that he was in big trouble if she did not go with her.
The mother says that when she entered the police station the child was sitting very close to the father “hugging him, looking very solemn”. The father had his arms around the child whispering in her ear. She said “Hi [H], are you ready to go?”, but the child did not respond. The mother alleges that she told the child that she was not going to be punished but that after 10 minutes of trying to negotiate with the child she went outside to the car to wait for the child to come out.
At some stage the father alleges that the child telephoned the Kids Helpline from inside the police station and spoke to “Steph” who told her that she did not have to go back to her mother. He says that he then spoke to this person who confirmed what she had told the child and told him to call Crisis Care. The father alleges that while he was waiting to speak to someone at Crisis Care the mother started yelling abuse at him and complained that she was made to wait for two hours for the child to go back to her. He alleges that he then turned away from the mother and that she approached him from behind and started hitting him about the hands and the head. He says that she then “grappled” with him trying to take his phone from him and during this incident the back cover of his mobile phone came off and the battery came loose. He alleges that the mother then clenched her fist and started throwing punches at him telling him to “come on, come on”, and that she swore at him. He alleges that the mother attempted to “drag” the child to her car, and continued to swear and threaten him. He then went back into the police station to report the alleged assault on him by the mother. He alleges that the police officers then spoke to the parties and told them to stop arguing and told the mother to keep the noise down. The mother denies that she tried to grab the child. The mother denies at any stage yelling or raising her voice, or swearing or threatening the father.
The mother alleges that she asked the father to consider the child and just let her go home, and that he needed to think about being a responsible father instead of encouraging his already distressed daughter to not go home. She says that she went back to the car for a further 10 minutes but “still no [H]”. The mother alleges that on several occasions the father demanded that she sign a letter stating that she would not interrogate or question the child over the events of the previous days, punish the child in any way, or confiscate the child’s mobile phone.
The mother returned inside the police station and as a result of the father’s demands that she sign an undertaking, she “wrote on a piece of paper” and gave it to the father. She says that the child then exited the police station talking on the father’s mobile telephone and that she waited for 15 minutes until the child handed the telephone back to the father. The mother alleges that because the child’s bag was in the father’s car and he was talking on his mobile telephone that she waited a further 50 minutes. She alleges that in the child’s presence the father said “fuck off you stupid whore!” She says that she then grabbed his phone and it fell to the ground, and that when he picked it up he stood over her with a clenched fist as if he was going to hit her.
The mother then left without the child. The father says that he telephoned the mother and told her to come back to the police station to collect the child but that she told him she was shopping and that she would be another twenty or thirty minutes. The mother says that when she returned to collect the child she was not crying inconsolably as the father alleges. The mother states that at no time during handover did she abuse or handle the child in an inappropriate way.
On 4 May 2008 the father alleges that when he returned the child late to the mother following time spent with him Mr N threatened to kill him and abused him. He says that he was late returning the child because she had been involved in a motor vehicle accident and he had taken her to a doctor who advised that she should not attend school for two days, and that he had telephoned the mother to advise her of the expected lateness. The father alleges that the child was reluctant to return to the mother, locked the car door and refused to get out. He alleges that the mother said he was “full of shit” and a “dickhead”, and that Mr N screamed at him and called him a “dickhead”, a “loser” and a “fucking cunt” in front of the child. The father alleges that Mr N then said words to the effect “why don’t you be a parent for once” and “I am not afraid of you I am going to have you hit”, and that he knew people who would take care of him. He alleges that the chid was crying and that Mr N also said words to the effect “youre [sic] going to be dead”. The mother and Mr N deny this.
The mother’s version of events is that she received a text message from the father advising that the child had been in a car accident and that she was at the doctors. She telephoned the father and when she asked him what had happened to the child he terminated the call. She alleges that she telephoned the father a further three times and that he answered the telephone and terminated the call on each occasion. She says that she received another text message from the father informing her that handover would be at 7.30pm, and that he insisted that she sign a “piece of paper” stating that she would stay at home and care for the child. When the mother and Mr N arrived at the handover, the father was in a parked vehicle with the child. The mother alleges that she tried to speak to the child through the window and that the father insisted that she sign a piece of paper stating that she would stay at home with the child or he would not return the child to her. She alleges that the father told the child to stay in the car until she signed the paper.
The mother alleges that Mr N approached the father and said that the father was a “tosser”, that he obviously didn’t care about how the child is feeling, and queried why doesn’t he be a parent for once and do the right thing by his daughter. She says that Mr N did not raise his voice or use the obscenities as alleged by the father, although it is conceded that he did verbally abuse the father and that was inappropriate in the presence of the child. She says though that the child was not crying and that after she “wrote a note” and handed it to the father the child left with her, and that they drove off with Mr N.
The father alleges that in May 2008 the child told him that the mother had read the entire contents of his affidavit filed on 14 May 2008 to the child. The mother denies that she has ever read any affidavits to the child.
The father alleges that the child complained to him that she had to share the caravan with Mr N. The mother says that the child has never slept in the caravan alone or with Mr N.
The father complains that the mother is continually late for handovers or does not make the child available, and that the child is often not at school. He alleges that the mother refuses to negotiate school holiday time and that in July 2008 he notified the mother in writing that he would like to have the child in the first half of the holidays but that the mother refused. The mother disagrees and says that the father sends letters of demand every school holidays.
On 17 July 2008 Burr J made the following orders:
1. Further consideration of the proceedings be adjourned before Registrar Paxton at 10.00am on Wednesday 22 October 2008, or such other proximate date and time in late October 2008 as is advised by the Court to the parties and the Independent Children’s Lawyer.
2. A 1ST Day Hearing date and time be fixed by the Court in or about November 2008 (if possible) and advised to the parties and the Independent Children’s Lawyer.
3. Pursuant to Section 62G(2) of the Family Law Act 1975 as amended a family consultant provide to the Court a report on such matters as are relevant to these proceedings in respect of the care, welfare and development of the child [H BEDFORD] (“[H]”) born … October 1998 and to include recommendations as to whether or not it is appropriate that one or both of the parties undertake a psychological or psychiatric assessment in advance of the trial of these proceedings and any other matters deemed appropriate for exploration by the family consultant and that such report be released to the parties and to the Independent Children’s Lawyer on or before 4.00 pm on Tuesday 14 October 2008 UPON NOTING:-
(a)that on the same date but just prior to the time of their appointment with the family consultant each of the parties do individually view the DVD entitled “Consider the Children”;
(b)the family consultant not view or consider any of the reports prepared in these proceedings by Ms [S] or any reference in any Court Orders made in these proceedings to the reports by Ms [S];
(c)prior to the delivery of the file to the family consultant tasked with the preparation of the family report Registrar Paxton do arrange for the removal of Ms [S’s] reports and any Court Orders making reference to those reports from the Court file and do retain them separately until such time as the preparation of the family report is concluded.
4. Any handovers at the commencement and conclusion of the father’s time with [H] which are not conducted at [H’s] school do take place inside the [W] Street Police Station UPON NOTING that Mr [N] is restrained and an injunction is hereby granted restraining him from attending inside the [W] Street Police Station during handovers.
5. Pursuant to Section 65DA(2) and Section 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.
Dr Q prepared the family report and on 26 September 2008 an order was made releasing that report. Dr Q made the following recommendations:
75. That in the absence of any agreement between the parties that accords with [the child’s] best interests, that both [the father] and [the mother] undergo a psychiatric assessment. Such assessment should focus on the capacity of each parent to empathically nurture and parent [the child]. The assessment should take into account each parent’s ability and willingness to focus on [the child’s] unique needs, feelings and best interests without continuously engaging in conflict with the other parent and without placing the child wittingly or unwittingly in a position of divided loyalties.
76. That a request be made of Dr. Prue Mc Evoy at the Department of Psychological Medicine at the Adelaide Women’s and Children’s Hospital with regard to the psychiatric parenting assessment.
Dr. Mc Evoy is presently consulting with other consultant psychiatrists in the Department of Psychological Medicine as to whether or not this service might be provided to [the mother] and [the father] by the Hospital.77. That if Dr. Mc Evoy is unable to assist with the assessment then that a request be made of Dr. Anne Sved Williams at Helen Mayo House for such and (sic) assessment.
78. That a copy of this assessment be made available to either psychiatrist if either practitioner deems that a copy would be useful to further the assessment.
79. That until such assessment is received by the Court that [the child’s] views are given privilege at this time to spend alternate weekends with her father and to spend every alternate Friday evening with her father and half of the school holidays and other times as previously agreed.
80. That each parent is restrained from denigrating the other or allowing any other person to do so wherein [the child] might become aware of such denigration.
81. That each parent attends a KidsAreFirst program through Anglicare and subsequently, an Incredible Years program provided jointly by Uniting Care Wesley at …, the Child Adolescent Mental Health Program and the … Children’s Centre and provide evidence of completed attendance to the Court.
On 17 November 2008 this matter was listed for a first day of trial before me, and I adjourned it part-heard to 2 December 2008.
On 2 December 2008 I made orders for the filing of affidavits, and the issuing of subpoenas. I also made an order pursuant to s 69ZT(3) of the Family Law Act, and further adjourned the proceedings to 20 January 2009.
On 8 January 2009 the father alleges that he received an SMS message from somebody that he knew stating that the child had been punched in the stomach by Mr N using a large torch whilst at the beach. He alleges that the child subsequently told him that on 29 December 2008 she was at the beach with the mother, Mr N and his three sons, that there was a disagreement and that Mr N grabbed her by the shoulders and pushed her back towards the edge of the jetty which had no safety rails. He alleges that the child told him that she struggled with Mr N trying to break free and that Mr N asked her if she wanted to go into the water, and that she was crying and scared. He alleges that the child told him that the mother told Mr N to stop and that the mother told Mr N that his behaviour was “the last straw”, and that Mr N told the mother that the child was being smart.
The father further alleges that the child told him that the following morning Mr N was playing around with a dolphin torch and that the child switched off the torch. As a result of this Mr N picked up the torch and with a back hand motion punched the child with force in the left hand side of her abdomen. He alleges that the child told him that the mother then took the child home but returned to the beach the following morning. The father alleges that when the child was getting ready for bed he observed a red mark on her stomach which disappeared in a few days but a small brown bruise remained in the area which the child described as tender. The mother does not agree with this.
The mother’s version of events is that she, Mr N, his three sons and the child spent a week of the school holidays at the beachside Caravan Park. She alleges that whilst on the jetty the child and Mr N were playing around near a bucket of crabs and that Mr N had “held [H] and turned her towards the water pretending that he would throw her in”. She says that she told them to stop and Mr N let the child go and that the child was fine. The mother alleges that later that afternoon Mr N picked up a dolphin torch and was shining it in her eyes and that when the child leant over to grab the torch she knocked over Mr N’s drink. She alleges that Mr N pulled his arm back as the drink tipped and accidentally hit the child in the stomach with the torch. The mother says that she checked the child’s “tummy” and that she had a faint red mark for a few days but that there was no bruising. The mother says that the incident was purely accidental and that at no time did the father contact her regarding this incident.
The father says that he reported this incident to the Child Abuse Hotline.
On 9 January 2009 the father took the child to the K Police Station to make a statement regarding the incident at the beach. The police investigation resulted in no charges being laid against Mr N.
On 22 January 2009 the father filed a Notice of Child Abuse.
On 19 February 2009 I made the following orders:
1. That the Notice of Child Abuse filed on 22 January 2009 be uplifted from the file and returned to the father.
2. That the Application in a Case and the Application Alleging Contravention filed by the mother on 27 January 2009 be dismissed and removed from the active pending cases list.
3. That the Response to an Application in a Case filed by the father on 16 February 2009 be adjourned to 2:15pm on 25 February 2009.
4. That the oral application foreshadowed by the Independent Children’s Lawyer seeking various injunctions in relation to the child be listed for hearing at 2:15pm on 25 February 2009 PROVIDED THAT the Independent Children’s Lawyer prior thereto advise both parties in writing of the specific terms of the orders sought and identify the paragraphs of the affidavits on which the Independent Children’s Lawyer intends to rely.
On 25 February 2009 I made orders by consent as follows:
1. That during the period of the adjournment, the parties be restrained, and injunctions are hereby granted restraining both of them, from:
(a)causing the child, [H BEDFORD] born … October 1998 to consult any counsellor, psychologist or psychiatrist without either:
(i)leave of this Honourable Court; or
(ii)the prior written permission of both parents and the Independent Children’s Lawyer; or
(iii)at the request of Families SA.
(b)causing the said child to consult a medical practitioner EXCEPT in the event the said child suffers from a physical illness or injury whilst in that party’s care, in which case that party must:
(i)in the event the physical illness or injury requires hospitalisation, or is a diagnosis of an ongoing serious medical condition, notify the other party of the physical illness, diagnosis, and the identity of the medical practitioner and his/ her contact details as soon as is possible (and in any event, within an hour);
(ii)in all other circumstances, notify the other party in writing of the illness or injury, any treatment prescribed, and the identity of the medical practitioner and his/ her contact details, with such notification either to be by SMS text or by note placed in the child’s school bag;
(c)causing the said child to attend upon police officers for the purpose of the said child being interviewed SAVE AND EXCEPT if such interview is:
(i)arranged by Families SA;
(ii)at the initiation of the police without prior contact from either party; or
(iii)with the consent of both parties and the Independent Children’s Lawyer; or
(iv)with leave of this Honourable Court.
2. That further consideration of the issue of injunctions be adjourned to 9:30am on 25 March 2009.
3. That the Response filed by the father on 16 February 2009 be further adjourned for mention at 9:30am on 25 March 2009.
4. That paragraphs 4 and 5 of the order made on 20 January 2009 be varied to provide that the time for the filing and serving of all affidavits referred to therein be 4:00pm on 18 March 2009.
5. That pursuant to Section 62B and Section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the attached Fact Sheet.
On 28 February 2009 the father alleges that the mother did not attend handover and claimed that she forgot, and that the handover occurred at 1:10pm at the K Police Station. The mother does not agree with this version of events. The mother alleges that she advised the father that she could not make handover on time and that she would be at the W Street Police Station at 12:30pm. The father refused to meet her at W Police Station.
On 25 March 2009 I made the following orders:
1. That the Response filed by the father on 16 February 2009 be dismissed.
2. That the affidavit of Dr [B] filed on 18 March 2009 by the father be uplifted forthwith and returned to the father.
3. That the mother’s affidavit filed on 18 March 2009 and the affidavit of Mr [N] filed on 18 March 2009 by the mother be uplifted forthwith and returned to the mother.
4. That the time for the husband to file and serve his affidavit of evidence in chief and the affidavit of evidence in chief of Dr [B] be extended to 4:00pm on 23 April 2009.
5. That the time for the mother to file and serve her affidavit of evidence in chief and the affidavit of evidence in chief of Mr [N] be extended to 4:00pm on 23 April 2009.
6. That the Application in a Case filed by the father on 17 March 2009 be dismissed and removed from the active pending cases list.
7. That until further order paragraph 1 of the order made on 25 February 2009 do continue.
8. That further consideration of this matter be adjourned to 3:00pm on 30 April 2009.
On 27 March 2009 the father alleges that the handover was due to occur at the W Police Station but that the mother refused to attend and that handover occurred outside the child’s school. The mother says that the orders provided for handover to take place at the O Primary School.
On 30 April 2009 I made the following orders:
1. That the time for the father to file and serve his affidavit of evidence in chief and the affidavit of evidence in chief of his sister Dr [B] be extended to 4:00pm on 29 May 2009.
2. That the time for the mother to file and serve her affidavit of evidence in chief and the affidavit of evidence in chief of her partner Mr [N] be extended to 4:00pm on 29 May 2009.
3. That further consideration of this case be adjourned to 9:30am on 9 June 2009.
4. That the Application in a Case filed by the mother on 27 April 2009, the Application in a Case filed by the father on 22 April 2009, and the Response filed by the mother on 27 April 2009 be dismissed and removed from the active pending cases list.
On 10 May 2009 (Mother’s Day) the father alleges that he took the child to the W Police Station for a handover but that the mother did not attend. He alleges that when he contacted the mother she advised him that she had forgotten. As a result the father returned home and arranged for the mother to collect the child from the K Police Station at 12:10pm. He alleges that the mother was yelling at the child which made the child cry.
The mother says that Mother’s Day fell on the second Sunday of the month and that the orders stipulated that handover is to occur at 8:00am. The mother alleges that she texted the father the evening before to confirm that he was handing over the child at 8:00am because on the previous Mother’s Day the father had handed over the child at 10:00am. As the mother did not receive a reply from the father, she assumed that the handover time would be 10:00am. The mother confirms that the father contacted her and that she told him that she would be 20 minutes. She alleges that the father then told her that handover would occur at K Police Station. The mother says that she did not yell at the child.
On 18 December 2009 at the conclusion of the trial I made the following order by consent:
1. That pending delivery of reasons for judgment by Justice Strickland the parties be restrained and an injunction is hereby granted restraining each of them from discussing these proceedings with or in the presence of the child [H BEDFORD] born … October 1998 or from allowing any other person to discuss these proceedings with or in the presence of the said child.
The current circumstances of the parties
The father
At the time of the hearing the father was living in his own home in the Adelaide Hills. That home had three bedrooms and the usual facilities, and the child had her own room.
The house is close to all essential services and is a 30 minute drive from Adelaide.
The father was not working and he was in receipt of workers compensation payments. He injured his back and knee working in the food industry. He last worked in May 2003.
Again, at the time of the hearing, the father was a full-time student studying Certificate IV … at TAFE.
During the course of these proceedings the father completed the Kids are First Programme, but I find that that was a complete waste of time for him. It did not cause him to change his attitude to the child in any way.
The mother
At the time of the hearing the mother lived with Mr N on a large allotment at O, north of Adelaide.
The mother and Mr N were engaged to be married. No date had been set for their marriage, but it was anticipated that it would occur in late 2010 or early 2011.
The child has her own room at the premises on the property.
The mother was working full-time as an Administrator and Mr N worked full-time as an Account Manager. In addition, they used the property to breed and show livestock.
Mr N has three sons from a prior relationship who stay with him and the mother on Thursday night in one week and then from Thursday after school until Monday morning when they are returned to school in the next week. In addition they stay with Mr N and the mother for half of the school holidays.
Again, at the time of the hearing, the child was attending O Primary School and had just completed Year 5.
The mother and Mr N had two caravans on the property. One was used for storage and the other to sleep in occasionally when Mr N’s three boys were there. The mother and Mr N planned to enclose this caravan so that it could be accessed from inside the house.
The issues in dispute
As identified above the primary issue became how much time the child should spend with the father and under what conditions. That though did not change the father’s case. He maintained his allegations of lack of care of the child by the mother to the point of neglect, and physical and verbal abuse of the child by the mother and by Mr N. For example, the father says:
83.1.The mother prevented the child from bathing regularly, and required her to do her own shopping and prepare her own meals. The child also did not have a bed to sleep on and slept on the lounge room floor.
83.2.The mother does not clothe the child adequately.
83.3.The mother and her partner regularly threatened the child with physical abuse and with not being able to see the father or talk to him. They also threatened to sell her pets as punishment.
83.4.The mother has frustrated the child’s time with the father by preventing the child attending handovers and from speaking with him on the telephone.
83.5.The mother has left the child with the father to pursue her social activities.
83.6.Mr N has physically assaulted the child on a number of occasions causing bruising.
83.7.The mother physically abuses the child (see Exhibit M1).
83.8.The mother has involved the child in the Court proceedings by discussing them with her and by reading affidavits to her.
83.9.The mother has forced the child to retract statements she has made to the Police and to health professionals.
83.10.The mother and her partner denigrate the father to and in the presence of the child.
The mother and Mr N deny these and other similar allegations. They in turn make their own allegations though such as that the father has verbally abused them in the presence of the child, and that he has often frustrated their time with her.
Significantly, the allegations by the father are based almost entirely on what he claims the child has told him. When analysed and tested though what the child has allegedly said to him has proven unreliable and often plainly wrong. This is perfectly understandable though given how the child has been caught in the middle of the bitter conflict between the parents. This raises an important issue in itself. The father has failed to accept, perhaps because he has not wanted to, that given the conflict the child is exposed to the child has divided loyalties and wants to please both of her parents, each of whom she loves dearly.
The father also puts in issue the expert evidence of Ms S, Psychologist, and Dr Q, Family Consultant. He challenges the accuracy and the reliability of the report of Ms S and he claims that Ms Q, in breach of an order of the Court, read and referred to the report of Ms S before she prepared her own report. These allegations are respectively denied by each expert.
There was a dispute as to what school the child should attend, but that was very much dependent upon with whom the child would be living. The mother proposed that the child continue at O Primary School and then either attend T School if she could get a place there, or X School if she could not. The father has no objection to the child attending T School, and at the end of the day, he did not express any relevant opposition to X School.
Finally, it is apparent that the father has no time for Mr N, and very much in issue here was the father wanting to continue the restrictions on
Mr N’s involvement with the child that were put in place on an interim basis in effect pending the outcome of the father’s allegations. To repeat,
Mr N denies the allegations and opposes the orders sought by the father as they relate to him.
The applicable legislation
In exercising its jurisdiction in relation to children the Family Court is bound by the provisions of the Family Law Act 1975. The objects of those provisions of the Act relating to children are:
(a)to ensure that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the children; and
(b)to protect the children from physical or psychological harm; and
(c)to ensure that children receive adequate and proper parenting to help them achieve their full potential; and
(d)to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children. (Section 60B(1))
The basic principles underlying those objects are that except where it would be contrary to a child’s best interests:
(a)children have the right to know and be cared for by both parents; and
(b)children have the right to spend time on a regular basis with and communicate on a regular basis with both their parents and other people significant to their care, welfare and development; and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture. (Section 60B(2))
Should parties be unable to agree about matters touching upon the welfare of a child and seek orders from the court in relation to that child, the court must in determining whether to make orders regard the best interests of the child as the paramount consideration. (Section 60CA)
Under the provisions of s 60CC, in determining what is in the best interests of the child, the court must consider the following matters so far as they might be relevant in each particular case, that is:
Primary considerations
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. (Section 60CC(2))
Additional considerations
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(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);
(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;
(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;
(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;
(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;
(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;
(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;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(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;
(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;
(m)any other fact or circumstance that the court thinks is relevant. (Section 60CC(3))
In the circumstances, I find that there is no need to protect the child from physical harm from being subjected to or exposed to abuse or family violence by the mother or by Mr N. The evidence does not establish that they have abused the child or that the child is at risk of abuse from them or either of them.
As I will elaborate on later in these reasons, I also reject the claim by the father that the mother neglects the child. Thus there is also no requirement for the child to be protected in that regard.
However, standing out like a beacon in this case is the need to protect the child from the behaviour and attitude of the father. There is no issue of physical harm, or neglect, but there is every reason to be concerned about psychological harm. I will have more to say about this later in these reasons.
There is also the significant matter of the affect on the child of the conflict between the parties. That is clearly part and parcel of the issue that I have just highlighted, given that it is the father who invariably fuels that conflict. The child needs to be protected from this conflict, but the question is how. As I have already indicated it is all very well to make parenting orders, but unless the parties themselves take responsibility for ensuring that the child is not exposed to conflict then the child will continue to suffer. Thus, ultimately it is in the hands of the parties, and in this instance, more so the father than the mother.
Additional considerations
(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
At the time of the trial the child was 11 years of age and one would expect to accord significant weight to any views expressed by her as to the time to be spent with her parents. However, this is a child who has been exposed to a bitter conflict between her parents, who has been the subject of direct influence by the father against her mother and Mr N, and who has exhibited divided loyalties as a result.
When interviewed by Ms S in July 2007 (at the age of almost nine years) she favoured living with her father, but Ms S was concerned that she was under pressure and having difficulty in “allowing her true emotions to surface”. It was also apparent that in criticising her mother and Mr N as the basis for wanting to be with her father she was reflecting “her father’s views”. As a result, Ms S recommended that the child continued to live with her mother and spend time with her father.
When interviewed by Dr Q in July 2008 (at almost 10 years of age) although she only talked about spending alternate weekends with her father instead of every weekend, it was still apparent that she was deeply affected by her exposure to the continuing conflict between her parents.
In the end result it is difficult to be certain of her views and particularly to know what weight should be given to them. However, the father’s necessary capitulation on the issue of with whom the child should live only leaves the question of how much time the child is to spend with the father, and this, relatively speaking, is a less difficult issue when attempting to take into account the child’s views.
(3)(b) the nature of the relationship of the child with:
(i) each of the child’s parents;
(ii) other persons (including any grandparent or other relative of the child);
I have addressed some aspects of this topic when considering s 60CC(2)(a) above, and I refer to paragraphs 159 to 165.
Plainly, the child has a close and loving relationship with her father, and this, the fact that she genuinely wants to spend time with him, and the mother’s desire that that should occur is his saviour in determining whether there should be any time spent between them at all.
Equally, both Ms S and Dr Q conclude that the child has a close bond with her mother and with Mr N.
Although the relationship between the child and her father is close, for how long that will remain the case is a serious issue if the father persists in his attempts to influence the child against her mother and Mr N. That provides another imperative for the father to dramatically alter his behaviour and attitude.
The other persons to consider under this topic are the three children of
Mr N. Not much was said about the child’s relationship with them, but the mother’s evidence was that they have a very close and caring relationship, and in her own way the child confirmed that in her discussions with Ms S and Dr Q.
(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;
Once again the father is the problem here. Whether he has the ability to facilitate and encourage any sort of relationship between the child and her mother is untested because he has not been willing to do so. Indeed, he has done everything he can to destroy and undermine the relationship between the child and the mother. Fortunately, to date he has been unsuccessful. It would be a disaster for the child if he was able to achieve this, but as I indicated above, the more pressing question is whether in this process he will instead turn the child against him.
For the mother’s part she has stoically persisted in promoting a continuation of the relationship between the child and her father. This, in the face of, and despite the appalling behaviour and attitude of the father towards her,
Mr N, and even towards the child in ignoring her needs and wellbeing.
To repeat, the father is indeed fortunate that the child loves him dearly and wants to spend time with him, and this is supported by the expert evidence, by the Independent Children’s Lawyer, and importantly by the mother.
(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 the parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom she has been living;
Given that the dispute crystallised into one about when the child should spend time with the father, the significance of this factor lessened greatly. Perhaps the only aspect is the proposed change from the child spending almost every weekend with the father to spending each alternate weekend with him. The mother sought this change and the Independent Children’s Lawyer supports it.
Instructively I observe that the father, in the orders that he sought at the commencement of the trial, sought that the child spend alternate weekends with the mother if the child was to live with him.
In any event, it is apparent from the evidence, and particularly from the evidence of the experts that such a change would benefit the child. It will enable the child to spend frequent and regular leisure time with the mother as opposed to the necessarily rigid and restrictive time during the week when the mother is at work and the child is at school. It is also necessary to introduce much needed balance in the child’s life. With the child spending almost each weekend with the father the child has a distorted view of time with her parents. In other words, she experiences the “fun times” on weekends with her father compared with the ordered time with her mother during the week.
This change will of course entail less time spent with her father, but apart from the positive benefits for the child already identified, such a change may also relieve the child of some of the pressure that she is under from her father.
(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 is an issue here given the considerable distance between the Adelaide Hills where the father lives and the north of Adelaide where the mother lives. That clearly impacts on the possibility of mid-week time but the parties have usually been able to accommodate weekend time albeit with handovers at a Police Station.
A change to alternate weekends will assist in lessening the requirements for travel, and of course the opportunity for conflict at handover.
There is still one particular difficulty though and that is the fact that at the time of the hearing the child was playing a sport on Fridays near to where the father lives. Thus if there is a change to alternate weekends, the child could only play the sport each week if the mother was able to take her on the weekend when she is with her. Fortunately, the mother’s evidence is that she would do that whenever possible with the only condition being that the father not be present. I accept her evidence in that regard and in particular the need for the condition.
(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 meet the needs of the child, including emotional and intellectual needs;
The mother raises no issue about the capacity of the father to meet the child’s physical needs, but the father alleges that the mother neglects the child and fails to care for her adequately. For example, he claims that she does not feed or clothe the child properly, that the child has to feed herself, that she has left the child with him whenever she wants to socialise, and that the child has to sleep on a mattress on the floor. However, I reject these claims. The mother denies them and I accept her evidence.
It is apparent that the only basis the father has for making these allegations are what he says the child has told him. The difficulty with that though is my finding that what the child tells the father and others about the mother is completely unreliable because of the conflict she is exposed to, the pressure and influence applied by the father and the child’s divided loyalties such that she perceives it as necessary to say things to the father about her mother which he wants to hear.
The father also alleges that the mother has not only taken illegal drugs but exposed the child to that. Again, the mother denies this and I accept her evidence in this regard.
As to the child’s emotional needs, the major concern is the effect on her of the ongoing bitter conflict between the parties. Both Ms S and Dr Q address this in their respective reports, and I refer to paragraphs 153 and 157 above. I agree entirely with their conclusions and there is very little which I can usefully add, save and except to put in a plea to both parents, but particularly to the father, to attempt to put aside their differences and consider what they are doing to their child. The mother’s actions are of course reactive to the appalling behaviour of the father, and I have little doubt that if the father changes his attitude that will end the conflict. Otherwise, the dire warnings of the child suffering “detriment emotionally, socially, psychologically, and, perhaps, physically” will prove to be accurate.
Finally, there are the child’s intellectual needs. The evidence from both parties is that the child is progressing well at school, and her school reports attest to that (Exhibit M2). Both parents can take credit for that. Thus, it is apparent that they can both meet the child’s intellectual needs.
(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;
There is nothing further to be said under this heading.
(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 would have on that right;
This factor does not apply here.
(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
There is a wealth of evidence about this, and already in considering the relevant factors arising under s 60CC to this point I have recorded facts and circumstances which bear upon the respective attitudes of the parties. Thus I propose to only highlight the following matters.
The mother
The mother has chosen on at least two occasions to step back and not insist on the child being handed over in an attempt to avoid the child being any further exposed to the father’s behaviour. This occurred on 18 March 2008 (see paragraphs 41 to 45 above) and also on 26 January 2009 at the conclusion of a period of school holiday time.
On the other side of the coin, it is apparent that in response to the father’s behaviour the mother has made comments to the child about him. For example, she conceded in cross-examination that she has told the child that the father is behind the allegations and that she cannot do anything to help her. In other words, it is out of her control. She also conceded that at times she has spoken to the child about the things that the father alleges she tells him. She did this to warn the child of what the father was doing. She conceded that she told the child that the father tells lies and that she is caught in the middle.
The mother readily agreed in cross-examination that it was inappropriate for her to say these things, but understandably they arose out of her frustration at the father’s behaviour.
Finally, before the child was interviewed by a social worker from Families SA on 12 April 2007 the mother said to the child that “this was her chance to say what happened”. Again, the mother readily agreed that that was inappropriate, but like her other comments it is difficult to criticise her in the face of what the father has said to the child, including trying to directly influence her against the mother and Mr N.
The father
A particular concern with the father’s attitude is his involvement of the child in his relentless pursuit of the mother and her partner Mr N. Plainly he continually questions the child to the point where she tells him what she perceives he wants to hear. Then, when she makes a complaint against the mother or Mr N the father whisks her off to Police, doctors, hospitals and/or Families SA depending on the nature of the complaint, but always without telling the mother. He also takes the law into his own hands and refuses to return the child to the mother until he has no other choice. Even then he engineers a confrontation at the handover and causes the child more distress. He prolongs the handover and requires the mother to sign a document before he will let the child go with her, and all this without one iota of thought or consideration for the effect on the child of his conduct. He clearly has no appreciation or insight into the child’s needs.
Whenever he has taken the child to see a health professional in these circumstances it has almost always been to document the complaint rather than for a medical reason. He has also taken the child unnecessarily to see
Dr A for example, to provide an excuse not to return the child to the mother. That occurred on 26 March 2007 when after being told by Families SA to return the child the father instead took the child to see Dr A.
The father has always been present with the child when he has taken her to a health professional, and she has been present when he has told the practitioner the reasons for the consultation.
The father also has no regard for the presence of the child when he has abused and threatened the mother and Mr N at handovers.
The father has failed to alter his behaviour or attitude when inevitably the complaint against the mother and/or Mr N has been found wanting. He has also taken absolutely no notice of comments by workers from Families SA as to their concern for the child being exposed to the conflict between her parents. For example, I find that he did nothing in response to the letter from Families SA of 12 April 2007 (Exhibit C6). He just continued on his not so merry way.
The father also took no notice whatsoever of the insightful reports of Ms S and Dr Q.
There was also the father’s appalling lack of judgment in arranging for the child to run away from her mother’s home in the early hours of 17 March 2008. There is no doubt that the father put the child up to this, yet he did not consider for one moment the dangerous position he put her in. She left the home in the middle of the night, she was walking along one of the busiest roads in South Australia, and she had to wait for the father to come to pick her up.
The father, in his blinkered pursuit of the mother uncritically accepts whatever the child tells him. He refuses to recognise that the child is telling him what she perceives he wants to hear, and he acts peremptorily including not checking at all with the mother. The high point (or perhaps the low point) of this attitude was how he dealt with the child’s story about the school principal. During 2006 the child told the father that the school principal Ms C took her aside on a number of occasions and told her that her father was a “bad man”, that he “will leave her”, that he will “hurt her”, and that the police will take him away for the bad things that he has done to her. However, instead of either treating this allegation as clearly baseless, or at the very least contacting the mother and/or the principal and checking the story with them he ultimately took the child off to see Dr A and then Dr L.
This episode is also concerning in that if it was true the father initially did nothing in response and left the child to deal with the principal herself, and further, it is not apparent what became so urgent in early January 2007 for the father to then take the child off to Dr A.
I observe that in cross-examination the father claimed that he spoke to the G office of the Education Department who said they would look into the complaint, but they did not. However, I find that the father fabricated this evidence and he made no contact with the Education Department.
I again note that it was the father whose access to the school was restricted by the school principal following a physical altercation between the school counsellor, the class teacher and the father outside the child’s classroom on
29 June 2006 (Exhibit F2). Plainly, this was disruptive to the school and inappropriate in front of the students including the child. The father of course chose to call the Police to attend at the school although again it was his conduct which caused the altercation.
This analysis demonstrates the yawning gulf between the respective attitudes of the parents to the child and to the responsibilities of parenthood. It again demonstrates the lack of insight that the father has to the needs of the child. He has everything to do, whereas the mother has clearly been reactive to the appalling conduct of the father. Nevertheless, the conflict remains, and unless the father comes to his senses it will inevitably harm the child even more than it already has.
I observe that it is also not a matter of putting in place some counselling or education for the father. He has undertaken at least one well regarded program, and it has made no difference whatsoever to the father’s attitude. That is not to say that I do not welcome the father undertaking counselling or some such but he is the one who has to recognise the value of the same and put it into practice.
(3)(j) any family violence involving the child or a member of the child’s family;
I do not propose to say anything more on this topic beyond what I have set out in paragraphs 166 to 168 above.
(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;
I am not aware of any such orders being in place here thus this is not relevant for the Court to consider.
(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;
It is always preferable to make such an order, but I am concerned that without a significant shift in the attitude of the father no order will prevent further proceedings between these parties.
(3)(m) any other fact or circumstance that the court thinks is relevant;
Neither party has raised any issue for consideration under this heading.
Section 60CC(4)
As referred to above, pursuant to s 60CC(4) of the Act the Court must consider the extent to which each party has fulfilled or failed to fulfil his or her responsibility as a parent. I considered this important issue when addressing s 60CC(3)(c) and (i) of the Act, and there is very little else that I can say. To repeat, I have found that the mother has facilitated and encouraged the child spending time with the father, but the father has done the opposite and attempted to prevent the child spending time with the mother.
As to the major long-term decisions, because of the acrimonious conflict that has persisted between the parents there has been no communication about these issues. There is no trust between the parties and, for example, the father has refused to accept what the mother has conveyed to him about any health issue. He has immediately taken the child off to his own doctor once she is in his care.
There was of course a dispute about the child’s secondary education, but that has now been effectively resolved by the father no longer pursuing his application for the child to live with him.
As to the support of the child there was almost no evidence presented by either party, but it seems that each party supports the child when the child is with them.
Parental responsibility
By the conclusion of the trial the father was seeking an order that the parties have equal shared responsibility, or at the very least the parental responsibility for education and health be shared equally. The mother ultimately sought an order that she have sole parental responsibility, and the Independent Children’s Lawyer strongly supported that outcome.
However, regardless of what each of the parties want, pursuant to s 61DA of the Act, when making a parenting order, the Court is required to apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility for that child.
The presumption does not apply where a parent has engaged in family violence (s 61DA(2)). Here the father has certainly engaged in conduct within the definition of family violence in s 4(1) of the Act, and thus there is no doubt that the presumption does not apply. I observe though that to the end the father persisted in claiming that he had done nothing wrong and it was the mother who had engaged in family violence towards him and the child. Thus, he queried why he should lose the benefit of equal shared parental responsibility because of the mother’s conduct. The answer is apparent from my findings and I am not sympathetic to this plea.
In any event, I agree with the submission of the Independent Children’s Lawyer that the evidence plainly indicates that equal shared parental responsibility, even limited to health and education, is not in the best interests of the child. Given the conflict engendered by the father it is simply impossible for the parties to discuss and negotiate major long-term issues. There is no trust, and no commonality of views about their child and her needs. They cannot sensibly agree on day to day issues, and to expect them to consult and reach a joint decision is not realistic. The mother should have sole parental responsibility for the child. The conduct and attitude of the father effectively disqualifies him from being given this role.
Conclusion
Having regard to the evidence, the submissions of the parties and the counsel for the Independent Children’s Lawyer, and to the objects and principles set out in s 60B of the Act I find that it is in the best interests of the child for all previous orders to be discharged, for the mother to have sole parental responsibility for the child, for the child to live with the mother, for the child to spend time with the father on alternate weekends and during one half of all school holidays, and to communicate with the father by telephone each Wednesday. Those will be the primary orders, but there will also need to be a number of other orders put in place, and I will detail those shortly in these reasons.
This is plainly a sad case which should never have reached trial. The sadness arises from the circumstance that this child has been exposed to the ongoing conflict between her parents, undoubtedly engendered and fuelled by the behaviour and attitude of the father. The father has used the child as a pawn in his pursuit of the mother and Mr N. He has no appreciation of the harm that he is causing his child by his conduct. He lacks any insight into her needs. He has subjected her to unnecessary and unjustified consultations with health professionals, interviews by Police and by Social Workers from Families SA, and attendance at the Women’s and Children’s Hospital and the Child Protection Service. He has also attempted to influence the child against her mother and Mr N. He does not see that the child is experiencing divided loyalties and says things to him which she perceives he wants to hear.
The child dearly loves both of her parents but her exasperation and her frustration with the conflict which rages around her is obvious from her comments to Dr Q recorded in her report as follows:
44.[The child] … presented as a quietly spoken, attractive and gentle child who described in a pessimistic but accepting way that the Court process and the conflict have “been going on for eight and a half years”.
45.[The child] said that “my Mum and Dad are having another fight – it’s ridiculous – if I’m 15 minutes late they fight, I’m nearly 10 and I’m sick of it”. [The child] said, “Nothing will stop them, before I used to worry but now I don’t care”.
And again, in paragraph 46 of her report Dr Q records the child as saying in a “somewhat exasperated tone of voice”, “It’s been going on since I’ve been two and a half”.
It is also plain that all the child wants is a peaceful life. She poignantly commented to Ms S, “that she would like to have a normal life and to have fun”.
However in the circumstances of this case I have little expectation that any order that I make will provide that outcome for the child. As I have said already in these reasons, what is required is a “seismic shift” in the behaviour and attitude of the father to achieve a normal, happy, untroubled life for the child. Nevertheless, I am satisfied that the orders that I propose are in the best interests of the child and provide a framework for the best possible outcome for her.
Turning then to the proposed orders. I was assisted greatly by the extensive and well thought out Minutes of Order provided by the counsel for the Independent Children’s Lawyer. These Minutes were used as a template by the parties to indicate areas of agreement and disagreement. I will not dwell on what was agreed, but I need to address the issues in dispute as follows:
233.1The first issue is whether there should be alternate weekends as the mother and the Independent Children’s Lawyer want or whether the child should spend three out of the four weekends with the father as he wants. I have already explored this issue somewhat, but in short the evidence points to alternate weekends being the preferred option. It will ensure the child has frequent and regular leisure time with the mother away from the ordered and more formal time during the week. It is necessary to provide the child with balance in her life vis a vis her parents, and it will have an important flow-on effect of relieving the child from some of the pressure and influence that she is subjected to when she is with her father. Thus, it will be alternate weekends.
233.2The next issue is the time of commencement of each alternate weekend contact during school terms. There is no issue when the child is at school, because the father will collect the child from school at the conclusion of school on the Friday, but there is an issue about this when the child is not at school. The Independent Children’s Lawyer and the father proposed that the collection be at 3:30pm inside the W Police Station. The mother suggested 6:00pm because of her work commitments. However, the solution to this dispute is to always commence the contact on the last day of the school week be it Thursday or Friday. The child should be able to spend any extended weekend time with the father.
233.3In relation to each “short school holiday period”, the mother and the Independent Children’s Lawyer propose that the father always have the second half of that period, but the father wants the first half. There is no compelling reason per se for either proposal to prevail, but I note that the mother requests that the child be with her on the first weekend of each school term. Apparently that will then ensure the child will spend the same weekend with her and Mr N as Mr N’s three children do. That is a reasonable request, but it would limit the child’s time with her father if the father was to have the child for the first half of the preceding school period. Thus, it would be appropriate for the father to have the second half of the period to avoid that outcome.
233.4The next issue is what is to occur at Easter. The father seeks a continuation of the current arrangement which is that the time is shared equally between the parties, although the period that each party has alternates each year. The mother and the Independent Children’s Lawyer seek that the whole period alternate each year between the parties. For my part I can see no difficulty with the current arrangement continuing and I will so order.
233.5It is unclear whether there was a dispute about this ultimately, but the father proposes that at the conclusion of the school week where appropriate the child should be permitted to travel to his home by bus rather than be always collected from the school. The father suggests that the child has already experienced travel by bus from school, and counsel for the Independent Children’s Lawyer had no particular difficulty with it once the child commences secondary school. Thus I will provide for this in the final orders.
233.6With telephone communication the father seeks an order that the child be at liberty to telephone him at any time over and above the agreed arrangement that he telephone her each Wednesday. The mother opposes this as does the counsel for the Independent Children’s Lawyer. For my part I do not accept that it would be in the child’s best interest for her to be able to do this. Given the behaviour and attitude of the father referred to above, I would be concerned that the father would pressure the child into telephoning him unnecessarily. As I have found, this child needs some peace in her life, and she needs to be relieved from the pressure and influence that the father invariably applies without regard for her welfare. Thus I will not make the order sought by the father.
233.7The mother seeks that when the child does speak on the telephone to the other parent, the parent that she is with be at liberty to listen to the conversation on a speaker phone. Neither the father nor the counsel for the Independent Children’s Lawyer specifically addressed this issue, but I do not consider that it is necessary or appropriate. Although I do have concerns about what the father says to the child, they should be able to enjoy telephone communication once per week without the presence of the mother looking over their shoulders.
233.8The father agrees with the continuation of injunctive orders restraining him from causing the child, inter alia, to consult health professionals and to attend upon Police Officers, but he seeks that that injunction be mutual. Neither the mother nor the counsel for the Independent Children’s Lawyer agree with this, and nor do I. The injunction needs to be in place because of the conduct of the father, not the conduct of the mother. On the evidence there is no basis whatsoever to impose such an injunction on the mother.
233.9
The father sought that the agreed mutual restraint against using physical discipline upon the child be extended to verbally abusing and threatening the child. The counsel for the Independent Children’s Lawyer opposed this given that there was no evidence to justify this extension. I agree with Ms Cocks and observe that this smacks of the father pursuing his unfounded claims that the mother and
Mr N have verbally abused and threatened the child.
233.10The father also sought that there be no injunction restraining a party from arranging extra-curricula activities for the child when in the care of the other party. Although, as the father says, extra-curricula activities are important for the child, I agree with the submission of counsel for the Independent Children’s Lawyer that one of the aims here is to reduce the conflict between the parties, and such a provision has the potential to fuel the conflict.
233.11Although the primary dispute about the future schooling of the child resolved once the father no longer sought an order that the child live with him, an issue arose as to when the child should attend T School, and who should be able to enrol her there. Both parties want the child to attend at that School, but the evidence of the mother was that there was currently no position for her there. The mother undertook though to enrol her there as soon as she was able to. The father also wanted the ability to enrol her at that school if he could, and the mother ultimately did not oppose this.
There was also a dispute about what should happen if the child could not in fact be enrolled at T School. The mother of course would have to choose another school, but the father sought that that school be not further than 50 kilometres from the Adelaide GPO. The counsel for the Independent Children’s Lawyer suggested that the radius be extended to 75 kilometres to provide more options. For my part I find the submission of the Independent Children’s Lawyer a sensible one.
233.12There was another issue as to distance and that related to any change to the child’s permanent place of residence. The current order provided a limitation of 50 kilometres but the counsel for the Independent Children’s Lawyer proposed a radius of 75 kilometres. The mother sought an extension to 100 kilometres, but I consider that 75 kilometres is a reasonable distance, and thus I prefer the position put by counsel for the Independent Children’s Lawyer.
233.13The father sought that on the child’s birthday, and on his birthday, the child spend time with him from 10:00am on that day until 10:00am on the next day, or until the commencement of school on that day. The mother opposed this order as did the counsel for the Independent Children’s Lawyer. For my part I consider that it is unnecessary. The preferred position is as initially put by the Independent Children’s Lawyer, namely that the party who does not have the care of the child at the relevant time be able to telephone the child on that special occasion. There is always the opportunity to properly celebrate the occasion the next time the child is in the care of the other party.
233.14
Disappointingly the father sought a number of orders which demonstrate that he still has a distorted view of the mother and
Mr N. He sought an order that the mother ensure that
Mr N does not communicate with him by any medium whatsoever, and not come within 50 kilometres of him. As I said at the time when the father raised this issue, I am not prepared to make such an order. There is no basis for it on the evidence.
Similarly, the father sought a continuation of the undertakings given by Mr N in the Federal Magistrates Court on 24 April 2007. The mother and the counsel for the Independent Children’s Lawyer want Mr N released from these undertakings; they were given voluntarily by Mr N at a time when concerns had been raised about whether he had physically abused the child. Those concerns have proven to be groundless, and thus there is no basis to continue the undertakings, and I will make the appropriate order.
Finally, and perhaps most disappointingly, the father sought an order that the mother be restrained from contacting him unless it directly relates to the child’s care, welfare and development.
The problem is that this does not fill me with any hope that the bitter conflict between the parents will end any time soon. In any event, I will not make such an order; again there is no evidence that would justify or require it.
233.15Another issue that was not resolved by agreement was whether an injunction should be put in place restraining the father from attending any sporting event in which the child is playing when the child is with the mother. The mother had indicated that she would be prepared to take the child to these games as long as the father was not present. Unfortunate as it may be, and again, it does not auger well for the ending of the conflict, given the history between the parties at handover and at similar occasions, reluctantly I will make such an injunction.
233.16Finally, the parties and the counsel for the Independent Children’s Lawyer agreed that the orders that this Court makes should be explained to the child, but the parties could not agree by whom. The mother and the Independent Children’s Lawyer propose Ms S or Dr Q but the father opposes that. He suggested Dr A.
If it is still appropriate for this to occur, ideally it should be either
Ms S or Dr Q, and if it can be arranged through the Independent Children’s Lawyer then that is what should occur. If not, it should be done by a Family Consultant, and again I will leave it to the Independent Children’s Lawyer to arrange that.
I certify that the preceding two hundred and thirty three (233) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 22 November 2011.
Associate:
Date: 22 November 2011
Key Legal Topics
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Family Law
Legal Concepts
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Injunction
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