BEHN & ZIOMEK
[2019] FamCA 298
•10 May 2019
FAMILY COURT OF AUSTRALIA
| BEHN & ZIOMEK | [2019] FamCA 298 |
| FAMILY LAW – CHILDREN – Best interests – With whom the child lives – With whom the child spends time – Where the mother seeks orders that the child live with her and spend no time with the father – Where the mother seeks orders that she be permitted to relocate the child’s residence to Germany – Where the father seeks orders that the child live with him and spend time with the mother – Where the Independent Children’s Lawyer seeks orders that the child live with the mother and spend time with the father – Where the father has been found guilty of assaulting the child on two occasions – Where the father has not spent time with the child since January 2018 – Court finds that the father has perpetrated acts of family violence as against the mother and the child – Court finds that the father poses an unacceptable risk to the child if their time together is not professionally supervised – Court finds that the mother has made appropriate preparations for the potential relocation of the child to Germany – Court finds that the child’s best interests favour the mother being permitted to relocate the child to Germany – Orders made for the mother to have sole parental responsibility for the child – Orders made for the child to live with the mother in Germany – Orders made for the child to spend supervised time with the father. |
| Evidence Act 1995 (Cth) s. 140(2) Family Law Act 1975 (Cth) ss. 4AB, 43(1)ca), 60CC, 61DA, 65DAA, 65DAC |
| AMS v AIF (1999) 199 CLR 160 Keating & Keating (2019) FLC 93-894 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 Pruchnik & Pruchnik (No. 2) (2018) 58 Fam LR 458 R v Rogerson; R v McNamara (No 57) [2016] NSWSC 1207 SAMM Property Holdings Pty Ltd v Shaye Properties Pty Ltd (2017) 345 ALR 633 Sayer & Radcliffe and Anor (2012) 48 Fam LR 298 |
| APPLICANT: | Mr Behn |
| RESPONDENT: | Ms Ziomek |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | NCC | 5 | of | 2014 |
| DATE DELIVERED: | 10 May 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland DCJ |
| HEARING DATE: | 24 - 27 September 2018, 31 January 2019 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Self-represented |
| COUNSEL FOR THE RESPONDENT: | Ms Carr |
| SOLICITOR FOR THE RESPONDENT: | David H Cohen & Co |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Eldershaw |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
THE COURT ORDERS THAT:
All previous orders be discharged.
The mother shall have sole parental responsibility for the child, L, born … 2012 (“the child”).
The child live with the mother.
The child spend supervised time with the father as agreed between the parties in writing and in the absence of agreement, as follows:
(a)At a professional contact service selected by the father from a list of three (3) potential service providers provided by the mother;
(b)On four (4) occasions in any 14 day cycle as agreed between the parties in writing and in the absence of agreement, on days and at times determined by the mother;
(c)With each occasion being for a period of not less than three (3) hours or as can be accommodated by the contact service provider; and
(d)With the father to meet the cost of the professional contact service.
The child shall be known as and only as “L”.
The father be at liberty to send cards and gifts to the child and the mother is to ensure that the child receives them, and the mother shall provide the details of her postal address (which may be a post office box) to the father by email, within seven (7) days. Should the mother’s postal address change, she shall provide the updated details to the father, by email, within seven (7) days of that change.
The child, L, born in 2012, be forthwith removed from the Airport Watchlist.
The mother be permitted to relocate the child’s residence to Germany and for that purpose, pursuant to s 65Y of the Family Law Act 1975 (Cth), the mother is permitted to cause the child to travel outside the jurisdiction of the Commonwealth of Australia and the child may do so on either an Australian or German passport.
The parents be restrained from denigrating the other parent and members of that parent's family and/or household and from discussing Court proceedings in the presence or hearing of the child or permitting any other person to do so.
The parents be restrained from physically disciplining the child or causing or permitting any other person to do so.
After appropriate redaction of any information identifying the location the child and herself, the mother cause to be sent to the father all school reports and notice of significant achievements of the child, at least every six (6) months.
The mother shall be authorised do all acts and things necessary to apply to the Australian Government and/or the German Government for renewal of the child’s Australian and/or German passport/s. To avoid doubt, the mother is permitted to make such application/s without the consent of the father.
THE COURT NOTES THAT:
(a)The father is the Respondent to a Final Apprehended Domestic Violence Order (“ADVO”), which is in place for the child, and such order shall expire on 22 July 2020;
(b)These orders are not inconsistent with the ADVO in that such order permits the father to find, approach and contact the child as ordered by a Court; and
(c)However, for abundant clarity in relation to the interpretation of the ADVO in the context of these orders, these orders do not permit the father to find, approach and/or contact the child other than at times specified herein or as agreed between the parties in writing.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Behn & Ziomek has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: NCC 5 of 2014
| Mr Behn |
Applicant
And
| Ms Ziomek |
Respondent
Most
REASONS FOR JUDGMENT
Introduction
These Reasons for Judgment concern competing parenting applications between Mr Behn (“the father”) and Ms Ziomek (“the mother”) regarding the child L, born in 2012 (“the child”). The most significant issue in the proceedings is the mother’s application for an order permitting her to relocate the child’s residence to her home country of Germany. That application is opposed by the father, who seeks orders for the child to live with him and spend time with the mother on alternate weekends.
The child currently lives with the mother. As a result of incidents that occurred in January 2018, which resulted in the father being found to have committed common assault against the child, the child has not spent time with the father since 26 January 2018. Prior to that time, the child was spending regular time with the father.
In considering what orders are in the best interests of the child, the task before the Court, in this case, includes balancing the primary considerations under s 60CC(2) of the Family Law Act 1975 (Cth) (“the Act”), being the benefit of the child having a meaningful relationship with each of his parents, as against the issue of potential risk to the child in spending time with either or both of them. Each of the parties has asserted that the other poses a risk to the child, in that regard. I have found that such a risk is posed to the child if he is to spend time with the father, but that that risk can be ameliorated by orders for the child’s time with the father to be supervised.
The nature of the child’s relationship with the father, together with other considerations to which I refer in this decision, have led me to conclude that it is in the best interests of the child for orders to be made permitting the mother to relocate the child’s residence to Germany.
Background facts
In the following paragraphs, I have set out the agreed facts relevant to this matter and, where the parties disagree on certain matters, I have identified their respective contentions. In this judgment, I have not made findings in respect to each and every factual contention, given the sheer volume of the same and the fact that the parties’ evidence is diametrically opposed on the majority of those issues. Where it has been necessary to do so, I identify the finding that I have made and my reasons for making that finding.
A relevant consideration in this matter is the extent and nature of the litigation between the parties and, in those circumstances, I have taken some time to set out that history.
In1978, the father was born. He is currently aged 40 years.
In 1988, the mother was born in Germany. She is currently aged 30 years.
In or around July 2007, the mother completed her high school education in Germany and travelled to Australia for a one-year working holiday.
In or around August 2007, the parties met in Australia.
In or around October 2007, the father began his basic training with the Australian Defence Force. During that period, the mother travelled around Australia and remained in contact with the father. After completing his training, the father was stationed at Suburb KK.
In 2008, the mother began working at a store in Suburb LL.
In 2008, the parties married. The father moved into the “granny flat” where the mother was living.
In or around May 2009, the mother travelled to Germany to attend her brother’s wedding.
In 2009, the father sustained a back injury and was diagnosed with depression shortly thereafter.
In 2010, the parties moved into a two-bedroom villa in Suburb MM.
In 2011, the parties moved into a three-bedroom house in Suburb NN.
In 2012, the child was born. He is currently aged six years. The mother has been the child’s primary carer since his birth. Shortly after the child’s birth, he was diagnosed with a medical condition. He has subsequently been found to have learning difficulties and behavioural issues.
From July to late 2012, the mother took maternity leave. The father also took two weeks parental leave after the birth of the child.
In November 2012, the mother asserts that the parties had the first of four major discussions about separating. She attests that that initial discussion was followed by further discussions in December 2012, February 2013 and June 2013.
In or around December 2012, the father took sick leave from his employment. Around that time, the mother returned to her employment for approximately 12 hours each week. During the period that the father was on sick leave, he cared for the child while the mother was at work.
On 27 February 2013, the father was medically discharged from the Australian Defence Force. He has since received a periodic incapacity pension, which, for 28 weeks following that date was the equivalent of his salary at the time, being $58,000. Thereafter, the pension has been calculated at 75 per cent of the father’s salary, and increased in accordance with the consumer price index.
In or around February 2013, the parties relocated to the Central Coast.
On 18 June 2013, the mother and the child travelled to Germany for a three-week holiday. During that period, they mainly stayed with the maternal grandfather.
On or around 4 July 2013, the mother informed the father that she intended to take the child on a day trip to Switzerland the following day. The mother asserts that the father did not approve of her making that decision and threatened to divorce her, saying: “You will have 4 weeks to move out and then you will be deported. You will never see [the child] again”. The father denies that he made any such comment.
On or about 5 July 2013, the mother took the child on a day trip to Switzerland. The mother annexes to her Affidavit copies of text messages, received from the father, wherein he states that he has reported her as missing to the Australian Police, as he had not heard from her in 24 hours. Later that day, the mother also received Divorce Kit documents attached to a one-line email from the father, which read: “I thought this would give you a chance to read and fill in to speed the process up”. During cross-examination, the father asserted that he sent the mother the Divorce Kit because they had had an argument “about finances”.
On the same day, the mother checked her bank account, and found that a few days earlier, the father had transferred her savings, in the sum of $1,390, from her personal account, to their joint account, and then into his personal account, leaving $97 in her personal account. The father also used the mother’s credit card to spend approximately $4,000 for his own benefit.
On 8 July 2013, the parties separated when the mother emailed the father, informing him of her decision to separate from him and to remain in Germany with the child. The mother asserts that, from that date, while she was in Germany, she organised Skype communication between the father and child, initially on a daily basis and later, reduced to three times per week.
On 9 July 2013, the mother received an email from her employer Area Manager, asking whether she would be returning to work as the father had attended the store and informed the manager that she planned to remain in Germany.
On 17 July 2013, the mother asserts that, during a Skype conversation, the father said to her: “I’ll have [the child] by the end of the year, legal or illegal, and you’ll never see him again”. That is denied by the father.
On in 2013, the father asserts that he received an email from the mother, which included statements that she had not intend to return to Australia and that the father would never be able to hold the child again. The mother denies sending that email and states the following:
I deny that I wrote this email. At this time I did not use the email "…". I had extreme difficulty accessing this account with my password and attempted to change the password a number of times without success. All correspondence between [Mr Behn] and me during this time was from my email address "…".
I understand that in or about 2013 [Mr Behn] had access to my email account "…". Annexed and marked "M" is a copy of an email [Mr Behn] sent to me annexing an email that he received on 12 October 2013 from the account security team at Microsoft which indicated his email address was listed as the security contact email.
In August and September 2013, the mother asserts that, during Skype conversations, the father informed her that he had had her dogs euthanised, as they refused to eat, because they missed her. The mother’s brother, [Mr PP], asserts that in September 2013, he witnessed the mother crying while speaking to the father over Skype and that the mother advised him that she was upset because the father told her that the second dog had been euthanised. In February 2014, the mother discovered that the dogs had, in fact, not been euthanised and were still alive. The father denies that he told the mother the dogs had been euthanised.
On 20 September 2013, the father commenced proceedings under the Hague Convention in Germany, to have the child returned to Australia.
On or around 20 October 2013, the child spent time with the father in Germany.
On 5 November 2013, the German District Court (Family Law Section) made an order for the mother to return the child to Australia, pursuant to the Hague Convention.
On or around 18 December 2013, the child spent time with the father in Germany.
On 19 December 2013, the mother filed an Appeal against the orders made on 5 November 2013. Subsequently, the parties reached interim consent orders for the child to be returned to Australia and to spend time with the father, commencing on 27 January 2014. A copy of those consent orders forms Annexure “A” to this decision. The mother asserts that she agreed to those contact orders because the father threatened to have her charged with kidnapping if she did not agree to an equal time arrangement. The father denies that assertion.
On 7 January 2014, the father filed an Initiating Application in the Family Court of Australia, seeking, inter alia, an equal time arrangement for the child and that the parties live no further than 50 kilometres from one another.
On or around 9 January 2014, the mother and the child arrived in Australia. They initially lived at a women’s refuge in Sydney and have since moved to private accommodation. The mother asserts that, within two hours of arriving in Australia, the father telephoned her to notify her that he was going to serve her with documents and arrived at her accommodation four hours later to do so.
On or around 14 January 2014, the mother told the father that she would not agree to the child spending time with him “for an extended period of time” and that she intended to seek legal advice. The mother asserts that the father responded: “You are back in my country now. You play by my rules or I’m going to wipe you off the face of the earth”. The father denies making that statement.
In February 2014, the child commenced attending daycare. The child attended that same daycare until April 2016.
On 19 February 2014, the mother filed a Response, in which she sought orders for the child to live with her and spend time with the father on a supervised basis. A copy of those proposed orders forms Annexure “B” to this decision.
On 25 February 2014, orders were made by Cleary J which included that the child live with the mother and spend time with the father on Tuesday, Thursday and Saturday each week. That time was initially for two hours, and increased to seven hours after two weeks. Her Honour ordered that changeover occur at the B Contact Centre, Suburb C (“the Contact Centre”). A full copy of her Honour’s orders forms Annexure “C” to this decision.
On 1 March 2014, the father spent time with the child for the first time since the child’s return from Germany. He contends that this delay was a breach of the interim consent orders made in the German District Court. On 28 January 2014, the father had sought to bring a Contravention Application in respect of the mother’s alleged breach of those orders. The Court refused to file that application on the basis that there were no Australian orders in place which it could be said had been contravened. The mother agrees that she did not comply with the relevant consent orders. She contends that this was because she did not consider them to be in the child’s best interests, but “felt a great amount of pressure to agree to [the orders], due to [the father’s] threat [that] he would pursue criminal charges against [her]”.
On 3 March 2014, the mother commenced attending regular counselling sessions at the RR Health Centre. She continues to attend those sessions.
On 29 March 2014, the father asserts that the mother and the child did not attend changeover.
On or around 22 April 2014, the mother asserts that, at changeover, the father verbally threatened her. The mother reported that incident to Police Officers at Suburb SS Police Station and the Police applied for an Apprehended Violence Order (“AVO”) to be made against the father, on behalf of the mother, for her protection. On 25 July 2014, the mother asserts that there was a hearing of that AVO application, but gives no further evidence relevant to that matter. The father asserts that, if an AVO was made against him, in that regard, it was subsequently dismissed.
On 18 June 2014, the father filed a Notice of Risk, in which the following was stated:
1. I expressed my concerns to the mother on numerous occasions in late February and March 2014 as [the child] constantly had a runny nose, a chesty cough and breathing difficulties. The mother’s response was I have seen 2 doctors which said he was fine. I asked her for these doctors certificate but she declined. [The child] constantly got worse and on the 20 march 2014, i took [the child] to the doctors and he was diagnosed with a severe chest infection with fluid on his lungs. The doctor than requested a chest xray showing a bronchitis and gave 2 repeats of antibiotics to be taken over 3 weeks. [The child] started to improve and by the end of the antibiotics was well. (Annex A)
2. On the l April 2014 our son [the child] missed an ordered visitation as he was infected by hand, foot and mouth disease, which is highly contagious due to poor hygiene. In the doctors opinion our son most likely contracted the disease as the mother lives in shared housing in a Womens refuge and her hygiene views of single showering once a day.
3. The mother in the last 2 years decided to be vegetarian and has the views and beliefs that our son [the child] should be the same. When [the child] is in my care i offer a wide variety of food and he refuses to eat most foods and says "Mummy said No". I believe the mother is forcing her vegetarian beliefs on our son by not allowing him to experience an extensive variety of foods and allowing him to decide for him self.
4. In the last 3 weeks our son [the child] has had a runny nose and a chesty cough again similar to para 1, i expressed my concerns of his cold to the mother as it was getting progressively worse. The mother said once again that she had taken our son to 2 doctors and that he was fine. Saturday the 14 June i took my son to the doctor and he prescribed our son a strong course of antibiotics. Due to time restraints i gave the prescription for the mother to fill the script, On the l 7 Jun 2014 when i collected our son for an ordered visitation i asked the mother for the antibiotics. The mother responded "I have not filled the script as there is nothing wrong with him".
5. Since the return of my son from Germany and the mother has lived in a women's refuge he has on numerous occasions turned up with bruising on the face, upper and lower back and bite makes, clearly show signs that he has been hit and bitten. I have asked the mother on multiple occasions and she has denied all knowledge of the marks on his body, this is extremely alarming as she is the one that baths, dresses and cares for him when he is not in my care.
6. On every occasion our son is in my care I have had the attendance of [the child’s] grandmother ([Ms TT] and her partner [Mr UU] (ex police detective)) in the presence to witness the marks on his body and have taken photos.
7. On the 21 April I called DOC's and reported my concerns that I believed my son was receiving family abuse ref: ….U. DOC's suggested that I report the matter to police.
8. On The 26 April due to the constant bruising on our son's body and DOC's suggesting I report the matter to police, I went into Suburb VV police station and reported my concerns of the abuse. Event Number#...
9. I believe our son is in risk of serious harm, neglect and abuse. I believe that the situation of being in the mothers care is not in the best interest of our son and request that parenting matters be short listed and brought forward as soon as possible to remove the risk of harm away from our son as I believe this to be in our son's best interest. [As per original].
On 19 June 2014, the father filed an Application in a Case. The orders sought by the father, in that regard, form Annexure “D” to this decision. Relevantly, those orders included that:
a)The mother to relocate to the Central Coast;
b)The child to spend overnight time with the father on an increasing basis;
c)The parents provide any medical reports and certificates regarding the child to the other parent within 24 hours;
d)The parents give 48 hours’ notice of any proposed medical appointment to the other parent so that they have “an option to attend”; and
e)The mother be restrained from “talking/speaking German or using any toys or devices that use the German language, when the father is present either in person, on Skype and phone calls”.
On 18 July 2014, the Child Responsive Program Memorandum of Ms I (“Ms I”), Family Consultant, was released.
On or around 14 August 2014, an incident occurred at the Contact Centre during changeover, which resulted in the staff of the centre calling for Police to attend the scene. Following that incident, the Contact Centre advised the mother that, having regard to the conduct of the father, in order to ensure the safety of their staff and clients, they were no longer able to facilitate the parties’ changeovers.
On 19 August 2014, the mother filed an Amended Response, in which it was sought that she be permitted to relocate with the child to Germany. The orders sought by the mother, in that regard, form Annexure “E” to this decision.
On 8 September 2014, the father filed an Amended Application in a Case. The orders sought by the father, in that regard, form Annexure “F” to this decision.
On 10 September 2014, an Independent Children’s Lawyer (“ICL”) was appointed in the proceedings.
In 2014, a divorce order was made.
In November 2014, the child commenced attending speech therapy.
On 12 November 2014, orders were made by Senior Registrar Campbell for, inter alia, changeover to occur at Suburb F Police Station and for the mother to provide the father with a list of medical practitioners attended upon by the child.
On 1 December 2014, the father filed an Application in a Case, seeking the following orders:
1. That the time for the making of an application to review the orders of Registrar Cameron of 12 November 2014 be extended
2. I request leave and permission to lodge a review.
3. I request leave to lodge further affidavits, supporting material and subpeonas
4. I seek the following orders: refer to attached pages [the attached orders replicate those sought in the Amended Application in a Case filed on 8 September 2014].
In or around March 2015, the mother asserts that she was contacted by one of the father’s former partners, who communicated information to her concerning the father’s conduct during the course of their relationship.
On 5 March 2015, the father filed a Contravention Application alleging that the mother had not provided him with the details of the medical practitioners treating the child.
On 9 March 2015, Rees J made orders increasing the time spent between the child and the father, as follows:
... That [the child] spend time and communicate with the father on a fortnightly basis as follows:-
(a) in week one:-
(i) From 9.30 am to 4.30 pm Tuesday.
(ii) From 9.30 am Thursday to 4.30 pm Friday.
(iii)Skype communication on Monday and Wednesday at 6 pm for up to 10 minutes.
(b) in week two:-
(i) From 9.30 am to 4.30 pm Tuesday
(ii) From 9.30 am Saturday to 4.30 pm Sunday.
(iii)Skype communication on Monday and Wednesday at 6 pm for up to 10 minutes.
(c) such other times as agreed between the parties. …
On 3 July 2015, the father commenced a relationship with Ms Z, who he subsequently married. In this decision, to avoid confusion, the father’s current wife will be referred to as “[Ms Z]”.
In September 2015, the mother asserts that the father unilaterally enrolled the child in a preschool on the Central Coast. I accept that to be the case.
On 29 January 2016, the mother received a text message from the father stating: “[The child] might be late [to changeover] as he finished pre-school at 15.15”.
On 7 December 2015, the father’s Contravention Application filed on 5 March 2015 was dismissed. The father was ordered to pay the mother’s costs of that application.
On 18 April 2016, the mother attended Suburb F Police Station to report, what she considered to be, inappropriate communications by the father to the child over Skype that day. As a result of that incident, the child spent no time with the father from that date until July 2016. Following that incident, a provisional AVO was made against the father for the protection of the mother and the child. That AVO was made final on 19 September 2016 in respect to the protection of the mother, and applied for a period of a further 12 months. That incident is further addressed below.
Between 19 April 2016 and 10 May 2016, at the request of the father, the Police attended the mother’s home on seven occasions to conduct welfare checks on the child.
In May 2016, the mother changed the daycare attended by the child to a smaller daycare centre. The child attended that new daycare centre until December 2017.
On 9 June 2016, the father filed a further Application in a Case. The orders sought by the father, in that regard, form Annexure “G” to this decision. Relevantly, those orders included that the child be permitted to relocate to the Central Coast to live with the father and commence attending a Church Primary School at Suburb WW from Term One, 2017.
On 16 June 2016, the father filed a further Contravention Application, which was subsequently withdrawn. That application alleged that:
a)The mother failed to facilitate the child’s time with the father, pursuant to orders made on 9 March 2015, on several occasions between 19 April and 24 May 2016; and
b)The mother failed to facilitate the child’s Skype communication with the father, pursuant to orders made on 9 March 2015, on several occasions between 20 April and 30 May 2016.
On 20 July 2016, the mother asserts that Ms M, Speech Pathologist, recommended that the child should not commence school in 2017, as he was continuing to display immature behaviour in recent therapy sessions.
On 27 July 2016, the mother filed a Notice of Risk, in which the following was alleged:
1. The Father consistently denigrates the Mother to the child … and the child reports to the Mother that the Father said to him as follows:
a. "Your mother is a slut, she is a bitch, you have to learn what bitch is."
b. "I am going to get rid of her (your mother)."
c. "You are not to have your stupid mother anymore."
2. In or about March/April 2016, the Father said to [the child] "You are not going to see your mother anymore."
3. On or about 18 April 2016, the Father said to [the child] on Skype words to the effect "Bye, [the child], enjoy your last night with your mummy." [The child] was visibly distressed and upset hearing his father saying this to him.
On 29 July 2016, Senior Registrar Campbell made, inter alia, the following interim orders by consent:
BY CONSENT AND PENDING FURTHER ORDER:
2. That [the child] spend additional time with the father from 9:30 am Saturday 30 July 2016 to 4:30 pm Sunday 31 July 2016.
3. The Court notes the agreements of the parties as follows:
…
3.2 The mother agrees to reinstate her facilitation of the current interim spend time with orders, forthwith.
3.3 The mother does not agree to reinstate the current interim orders for Skype Communication between the child and the parents. The father, without prejudice, agrees that the Skype Communication in the current interim orders will not take place between this date and the first day of the LAT unless agreed between the parties in writing. …
4. It is noted that the current interim orders made 25 February 2014 and varied on 12 November 2014 and 9 March 2015 will otherwise continue pending further order. …
On 15 September 2016, the matter was listed for final hearing on a date to be advised.
On 19 September 2016, a 12-month Apprehended Domestic Violence Order (“ADVO”) was made, by consent and on a “without admissions” basis, against the father for the protection of the mother. That ADVO required that the father not approach or contact the mother by any means, except through their legal representatives or in accordance with the parenting orders.
On 30 September 2016, the father filed a further Application in a Case. The orders sought by the father, in that regard, form Annexure “H” to this decision. Relevantly, those orders included that:
a)The child live with the parties on a “week about” basis;
b)The child attend a Primary School at either Suburb XX, Suburb YY or Suburb F from Term One, 2017
c)The parent notify one another seven days prior to proposing that the child attend a medical appointments so that they can discuss the need for the appointment; and
d)Within 48 hours of the child attending a medical appointment, the other party and the ICL shall be notified.
On 9 October 2016, at the request of the ICL, the report of Single Expert Mr G (“Mr G”), Psychologist, regarding the child’s readiness to commence school in 2017, was released. Mr G found that the child was not ready to attend school in 2017, given his underdeveloped self-regulation skills and the risk of him developing Oppositional Defiant Disorder.
On 28 October 2016, I made interim orders for the child to spend time with the father, as follows:
a. In week one (being the week commencing on Monday 31 October 2016) and each alternate week thereafter, from 9.30 am Friday to 4.30 pm Sunday.
b. In week two (being the week commencing on Monday 7 November 2016) and each alternate week thereafter, from 9.30 am Thursday to 4.30 pm Friday.
c. During January 2017 the time in week one is extended to conclude at 4.30 pm Monday.
d. During the April school holidays in 2017 the time in week one is extended to conclude at 4.30 pm Tuesday.
e. From 12 noon on 24 December 2016 until 12 noon on 25 December 2016.
f. At such other times as agreed between the parties in writing.
In February 2017, the child commenced attending upon Ms ZZ (“[Ms ZZ]”), Social Worker, for counselling. The mother says that she arranged for the child to see Ms ZZ based on the observations in Mr G’s report and her own experience of the child.
From November 2017, Ms Z attended changeover, in lieu of the father.
On 24 January 2017, the mother’s solicitors received a letter from the father’s solicitors requesting that the child attend the father’s wedding to Ms Z in State BE from 10 to 19 September 2017. The mother did not consent to the child attending the wedding. The father instructed his solicitors to send a further four letters requesting the child’s attendance.
In or around February 2017, the mother arranged for the child to begin attending upon a Counsellor.
On 3 May 2017, the report of Mr HH, Psychologist, was released to the parties.
In 2017, the father and Ms Z’s child, AA, was born.
In June 2017, the child was referred by his Paediatrcian, Dr FF, to Ms DD (“Ms DD”), Psychologist, for a psychometric assessment. On 18 September 2017, Ms DD’s report was released. That report found that:
a)The child’s overall intelligence, fluid reasoning ability and quantitative reasoning ability were in the “low average” range’;
b)The child’s ability to use skills and knowledge acquired by formal/informal education and the child’s working memory were in the “borderline impaired or delayed” range;
c)The child’s visual-spatial ability was in the “average” range;
d)The child’s adaptive, academic and living skills were in he “below average” range; and
e)The Child’s interpersonal skills were in the “average” range.
That report further noted that the child’s “parent and teachers” (which appears to be a reference to the mother, rather than both parents, as the father was not involved in the assessment) agreed that the child is significantly impaired in respect of his:
• Emotionally Reactive: [the child] tends to have rapid mood changes. He may react to changes in routine or personnel, may become agitated over small things, and whine, worry or panic more than most children.
• Mood Problems: [the child] is observed to have a low mood. He may cry often, look unhappy or sad, show little interest in enjoyable activities, and have sleep difficulties, appear underactive or lethargic.
• Somatic Complaints: [the child] is reported to complain of various physical ailments, such as headaches and stomach aches, which may not always have an organic cause.
On 3 August 2017, the father filed a further Application in a Case. The orders sought by the father, in that regard, form Annexure “I” to this decision. Relevantly, those orders included that:
a)The child attend a church Primary School at Suburb WW from 2018;
b)The mother relocate with the child to the Central Coast;
c)If the mother does not relocate to the Central Coast, the child live with the father; and
d)Changeover occur at the child's school or a combination of McDonalds Suburb S and Suburb F Shopping Centre.
In September 2017, the father’s wedding celebrations took place in State BE. The child was not present.
On 13 September 2017, the Family Report of Ms O (“[Ms O]”), Family Consultant, was released to the parties. That Report recommended that the mother have sole parental responsibility for the child, that the child live with the mother and that the child spend time with the father.
On 4 October 2017, the final hearing of the matter was listed to commence on 19 March 2018.
On 25 October 2017, I made the following interim parenting orders:
1. Order 2 of the orders made on 28 October 2016 be discharged.
2. The father is to spend time with the child … as follows:
Until the commencement of school term in 2018:
(a) In week one (being the week commencing on Monday, 30 October 2017) and each alternative week thereafter, from 9.30am Friday to 4.30pm Sunday;
(b) In week two (being the week commencing on Monday, 6 November 2017) and each alternate week thereafter, from 9.30am Thursday to 4.30pm Friday;
(c) During January 2018 the time in week one is extended to conclude at 5.00pm Tuesday;
(d) From 12 noon on 24 December 2017 until 12 noon on 25 December 2017;
From the commencement of school in 2018:
(e) In week one and each alternate week thereafter, from 5.00pm Friday to 5.00pm Sunday;
(f) In week two and each alternate week thereafter, from 5.00pm Friday to 5.00pm Saturday;
(g) During the school holidays in 2018, the time in week one is extended to conclude at 5.00pm Tuesday; and
(h) At such other times as agreed between the parties in writing.
On 3 November 2017, the mother asserts that the child said to her: “I said to Daddy yesterday I miss my Mummy. Daddy was angry and yelled at me and then he took my [portable] DVD Player and threw it out the window cause he said to me I had hurt his feelings”. The father denies having thrown the child’s DVD player from the car as he was driving and, throughout the hearing, gave evidence that he could bring the device to Court. The father did not do so. However, based on the nature of the evidence before the Court, I am not able to make a finding in respect to that issue.
On or around 12 January 2018, the mother asserts that the child disclosed to her that the father had “flicked” him on his forehead. As set out below, the father denies that allegation.
On 25 January 2018, the father contends that an incident occurred between the child and AA. Ms Z asserts that she found the child holding a pillow over AA’s face and that the child reported that he was told to do so by the mother. In his Affidavit, the father states that the child disclosed to him that the mother “had told him to hurt AA as he didn't have a real sister”. The father did not mention the incident to the mother at changeover the next morning, despite his suggestion that she had told the child to smother AA.
On 26 January 2018, the mother asserts that the child disclosed to her that the father had slapped his right cheek with an open palm after he reported that he wanted to return to the care of the mother. The father denies that he did so. The child has not spent time with the father or his paternal family since that date.
In January 2018, the child commenced attending a primary school close to the mother’s residence.
On 1 February 2018, a provisional ADVO was made against the father, for the protection of the child. The father was also charged with common assault. It was alleged that he had flicked the child on his forehead on 12 January 2018 and slapped him across his face on 26 January 2018.
On 8 February 2018, the final hearing listed to commence on 19 March 2018, was vacated, pending the outcome of the father’s criminal proceedings.
On 14 May 2018, the child was cross-examined in the Local Court at Suburb F, at the father’s insistence, in relation to the common assault charge laid against the father.
On 23 July 2018, an ADVO was made against the father for two years for the protection of the child. The father was found guilty of having committed common assault against the child and entered into a good behaviour bond pursuant to s 10(1)(b) of the Crimes (Sentencing and Procedure) Act 1999 (NSW).
In August 2018, the child commenced attending occupational therapy and physiotherapy.
In 2018, the father and Ms Z’s second child, CC, was born.
On 24 September 2018, the final hearing of this matter commenced.
On 27 September 2018, the final hearing was adjourned to 31 January 2019, so as to allow for the mother’s solicitor to obtain a copy of the transcript of the Local Court proceedings for the purpose of its admittance into evidence. The final hearing concluded on 31 January 2018 and judgment was reserved.
Competing applications
The father’s application
The father seeks final orders in accordance with his Amended Initiating Application filed 14 September 2018. The orders sought by the father, in that regard, form Annexure “J” to this decision. Relevantly, those orders include that the child live with the father and attend school on the Central Coast. The father also proposed alternative parenting orders in the event of the Court permitting the mother to relocate the child’s residence to Germany.
The mother’s application
The mother seeks final orders as set out in her case outline document. The orders sought by the mother, in that regard, form Annexure “K” to this decision. Relevantly, those orders include that the mother have sole parental responsibility for the child, that the child live with her in Germany and that the father spend no time with the child, but be permitted to send him cards and gifts.
The Independent Children’s Lawyer’s proposed orders
The ICL seeks orders as set out in her document titled “Independent Children’s Lawyer’s Proposal”. The orders sought by the ICL, in that regard, form Annexure “L” to this decision. Relevantly, those orders include that the mother have sole parental responsibility for the child, the child live with the mother, the child spend substantial and significant time with the father, the parties be permitted to travel overseas with the child and that the child live within a 15 kilometre radius of Suburb F Railway Station. That last order was not, however, pressed by the ICL in her final submissions.
Evidence
At the hearing, the father relied upon the following documents:
a)His Affidavit filed 14 September 2018;
b)Affidavit of Ms Z filed on 14 September 2018; and
c)Affidavit of Mr EE filed on 14 September 2018.
The mother relied upon the following documents:
d)Her Affidavit filed on 6 February 2018;
e)Affidavit of Mr PP filed on 14 September 2018;
f)Affidavit of Ms DD filed on 18 January 2018; and
g)Notice of Risk filed on 27 July 2016.
The ICL relied the Family Report of Ms O.
Credit
As has already been partly set out, the parties’ written and oral evidence was at odds in a number of significant respects. While the Court is reluctant to make adverse findings in respect to a party’s credit in parenting proceedings (see Adamson & Adamson (2014) FLC 93-622 at 79,703), it has been necessary to do so in this matter. In particular, in exercising my jurisdiction under the Act, s 43(1)(ca) requires me to have regard to “the need to ensure protection from family violence”. In this matter, I cannot discharge that obligation without making findings in respect to the parties’ credit and the differing accounts they give in respect to allegations of family violence between them and between the father and the child.
In Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361, the plurality said at [62]:
Witnesses are supposed to answer questions put by counsel responsively: they are supposed to give a full answer, but no more. It is one thing to say that a witness was not asked the right questions. It is another thing to say that a witness did not answer the questions that were asked. And it is an even more serious thing to say that a witness was “reluctant” to answer. The duty of a witness is to tell the truth, the whole truth, and nothing but the truth so far as the questions asked seek it. The duty of a witness to answer questions responsively involves not only a negative duty (not to volunteer material for which the question does not call), but also a positive duty (to proffer all material within the witness’s knowledge for which the question does call).
In that case, the High Court acknowledged that it was a serious matter to reach the conclusion that a party witness has failed to comply with the duty to tell the whole truth to the Court. Regrettably, as I will discuss, I arrive at that conclusion in respect to the evidence of the father.
Comparatively, the mother was an impressive witness. She did not attempt to embellish her answers, made concessions where relevant and gave responses that were relevant to the questions asked. Her written and oral evidence was internally consistent, and consistent with what was shown by other, objective evidence to have occurred.
In Glen-McLeod v Galloway [2012] NSWCA 368, Tobias AJA, with whom Allsop P and Campbell JA agreed, referred with approval to the test for assessing the truth of a witness's evidence as being stated by Gosnell J in GH v The Catholic Child Welfare Society (Diocese of Middlesbrough) [2016] EWHC 3337 (QB), where his Honour said:
In his instructive article entitled The Judge as Juror: The Judicial Determination of Factual Issues, published in Current Legal Problems 38, Mr Justice Bingham (as he then was) made this observation:
"The main tests needed to determine whether a witness is lying or not are, I think, the following, although their relative importance will vary widely from case to case:
(1) the consistency of the witness's evidence with what is agreed, or clearly shown by other evidence, to have occurred;
(2) the internal consistency of the witness's evidence;
(3) consistency with what the witness has said or deposed on other occasions;
(4) the credit of the witness in relation to matters not germane to the litigation;
(5) the demeanour of the witness."
I will now address those tests adumbrated in Glen-McLeod which I consider to the relevant to the credit of the father in this matter, in reverse order.
Demeanour
In terms of the fifth test, being the father’s demeanour, I note that on a number of occasions, the father gave answers that were non-responsive and evasive. One particular example of this was when he was asked by Counsel for the mother about a situation in July 2015 when the mother sought a second opinion on the treatment of the child’s nose bleeds. The following exchange took place:
Ms Carr: Now, the mother says that a few weeks later, [the child] started having nose bleeds again, so she said – she told you, in about July of 2015, that she was considering getting a second opinion about the nose bleeds, didn’t she?
The father: No. The mother stopped taking the child to [X] Hospital, hence which started the whole problem with - - - the ENT, with Dr [GG] and Dr [J]. That’s what brought the issue up. She moved him out of [X] Hospital without talking to myself.
Ms Carr: Well, despite you having said she didn’t tell you, it’s the case that you send an email to the mother’s solicitor and to Ms Smith, the ICL, in relation to this? This is dated 13 July 2015, wherein you say: “Your client has implied that she intends to take [the child] to another ENT specialist”.
The father: That’s correct. Because she stated - - -
Ms Carr: Continuing: “I find your client is doctor and specialist shopping”.
The father: That’s correct.
Ms Carr: Continuing: “I do not consent to [the child] attending these appointments”.
The father: That’s right?---Hence why the recommendation for Dr [J] - - -
Ms Carr: So – that’s all right. Thank you. You just have to answer the question and that’s it. So, in fact, she had informed you that she intended to go to another doctor, hadn’t she?
The father: The day or day prior.
Ms Carr: But did you want to withdraw your previous answer? She did let you know, didn’t she?
The father: Informing and telling are two different things.
Credit in matters not germane to this litigation
In terms of the fourth test, being the credit of the father in matters not germane to this litigation, it is to be noted that he has fabricated accounts of significant events including, of most concern, falsely claiming that one of his daughters and her mother had been killed in a motor vehicle accident. While those events are not germane to these proceedings, it is of relevance that, in giving evidence in these proceedings, the father persisted with giving false accounts of those events.
In that respect, in her Affidavit, the mother states:
In the first few days of meeting [the father] in or about August 2007, I asked [the father] who [AC] was, as he has her name tattooed on his arm. He told me that [AC] was his daughter. She was born … 1997 when he was 19 and passed away when she was 4 years old.
A couple of weeks later I asked [the father] how she passed away. [The father] was annoyed with me, saying words to the effect "I have already told you". [The father] then said it was a car accident which occurred in 2002. [AC] was driving with her mother [Ms AB] in a car and [Ms AB] stopped at a red traffic light behind a truck. A second truck was not able to break in time and squashed [Ms AB] and [AC] in the middle and both passed away. [The father’s] words to the effect were: "Truck at the red traffic light. She stopped behind it. A second truck stopped too late and ... " Mr [Behn] underlined the crash by strongly clapping his hands together. I was taken back by how graphic he described the accident and how annoyed he seemed. I put it down to it being very difficult to talk about and that it brings back a lot of painful memories.
I believed the story. It never crossed my mind that someone could lie about their child being alive. [The father] always spoke about [AC] as being dead and would even go to the full extent of lighting a candle on the anniversary of her death.
It was only through the conversation with [the father’s ex-partner] in or about 2015 that I found out that [AC] and her mother [Ms AB] are actually still alive.
The mother further states that:
[The father] told me that in or about early 2007 he was in [Country AE] with some friends of his. According to [the father] a man made a comment which upset him and [the father] punched him in the face, breaking his jaw in two places. [The father] told me that in this situation his uncle [Mr AD] the former prime minister of [Country AE] intervened. [Mr AD] according to [the father] gave him the option to leave [Country AE] and to return to Australia to avoid criminal charges. This was the reason he gave to me as to why [Mr Behn] returned to Australia in or about April 2007.
In these proceedings, the father denied ever having told the mother, or any other person, that AC or her mother had been killed in a car accident or that he was Mr AD’s nephew. However, during cross examination, Counsel for the mother referred the father to a Defence Force “Psychological Assessment Record” dated 30 November 2010 (Exhibit “W-14”), produced pursuant to subpoena, in which the following was recorded in respect of him:
Conflicting accounts of family … has stated on a number of occasions that he’s the nephew of [Mr AD]
… recently told his CM that both his daughter and ex-partner died in a car accident that they had not died …
The father’s response to that evidence was:
Answer: I was suffering post-traumatic stress disorder and I was on medication at the time.
Question: So you’re blaming your condition for you telling lies?
Answer: As I stated, I was suffering post-traumatic stress disorder from my service career, which caused my military discharge, and I was on medication at the time.
Question: Do you have any document to say that that, in fact, was what you were suffering from?
Answer: It’s irrelevant.
Question: Do you have any document that says you were, in fact, suffering from post-traumatic stress disorder?
Answer: It’s in the file which has been made - - -
Question: Do you have it in your possession, if that’s what you say was the reason for your discharge?
Answer: I don’t have it in my possession.
The father similarly reported to Ms O that he had been diagnosed with Post Traumatic Stress Disorder (“PTSD”), which was related to his medical discharge from the Australian Defence Force. No such evidence was presented to support the father’s assertion to that effect despite requests made of the father by Counsel for the mother. Comparatively, in subsequent cross-examination, the father gave the following evidence:
Question: Isn’t it the case, though, just in a nutshell, that you were medically discharged because you hurt your back on a training run?
Answer: I was discharged for a variety of injuries.
Evidence of the father having been discharged as a result of having hurt his back and suffering a concurrent depressive disorder is recorded in the report of Dr AF dated 30 October 2015 (Exhibit “ICL-11”), in which it is stated:
In my opinion, [the father] suffers from a chronic depressive disorder that seems secondary to his chronic low back pain. The depressive disorder is in a fair, partial remission and is probably stable and unlikely to improve any further above his current level of impairment. …
[The father] said he had not seen either a psychiatrist or psychologist in the preceding 18 months. He is currently taking an adequate dose of an antidepressant resulting in a fair, stable remission.
Based on that evidence, I find that it is likely that the father did tell the mother that he was the nephew of Mr AD and that AC and her mother had died in a car accident. I similarly find that the father has been misleading in repeatedly stating that he was discharged from the Australian Defence Force as a result of a PTSD diagnosis.
While these untruths ultimately have no relevance to the findings that I have made in respect of the child’s best interests, as noted, it is of concern that the father was prepared to continue to maintain his position in respect to those untruths, despite the fact that he was under oath.
Inconsistency with evidence previously given
In terms of the third test, being the internal consistency in the father’s evidence, I note that at the Local Court hearing, the father gave an account of an incident that he contends occurred on 25 January 2018, when, he says, the child was found holding a pillow over AA’s face and was subsequently punished by way of having his electronic devices removed. The father explicitly stated that he did not physically discipline the child on that occasion.
However, during the hearing in these proceedings, the father made the following statement:
And it was an AVO. Common assault because of the evidence that was provided. [The child] attempted to suffocate his little sister, and he – with an open hand, I smacked him on the bottom and that was the reason why I got convicted.
Internal inconsistency in the father’s evidence
In terms of the second test, the Local Court proceedings related to events that occurred on 12 January 2018 and 26 January 2018. The Local Court found the father to have assaulted the child on those dates. My findings in respect to the events and the internal inconsistency in the father’s evidence are set out in greater detail below.
Inconsistency of the father’s evidence with what is agreed, or clearly shown by other evidence, to have occurred
In terms of the first test, on several occasions the father gave evidence that was inconsistent with what is clearly shown to have occurred by other, objective evidence. I note that, when he was questioned regarding the Local Court proceedings, the father repeatedly asserted that he had not been found to have assaulted the child, as he had entered into a “section 10 good behaviour bond”. While it is true that the father entered into that bond, in lieu of a conviction being recorded against him, he was, in fact, found guilty of having assaulted the child in the Local Court proceedings (Exhibit “W-15”).
I will subsequently explain why the father’s failure to recognise and show remorse for events those events that occurred in January 2018 raises concerns regarding his future parenting of the child.
Similarly, in cross examination the father denied the accuracy of a complaint, made to Police, by the partner of his former partner, Ms E, that the father had “slapped” Ms E’s children with a tea towel and that he “locked them in their bedrooms and wrote the letter 'L' (an abbreviation of ' loser') across their forehead in permanent marker”. In that regard, the following cross-examination occurred:
Question: And the family consultant writes that the father of those two children allege that the children told him that you slapped them with a tea towel. What do you say about that?
Answer: That’s hearsay and unsupported.
Question: But did it occur?
Answer: No.
Question: That you locked them in their bedrooms?
Answer: No.
Question: And that you wrote the letter “L” across their forehead in a permanent marker?
Answer: These are all allegations brought up from the father when they – he found out that we were living together.
Question: Do you deny that you wrote the letter L across the forehead?
Answer: That’s correct.
Question: And yet it seems that you said to the family consultant that you conceded to the New South Wales Police that you wrote the letter L across the forehead of one child?
Answer: What it was, it wasn’t in the context you’ve actually twisted it to. It was a game that we were playing. There’s a difference.
Question: And “L” was for “loser”, wasn’t it?
Answer: No.
Question: What was “L” for, then, do you say?
Answer: We were just playing a game. So you put the actual letter on there and they were to guess the – what letter it was.
It is concerning that it was not until the father’s attention was drawn to the fact that he had previously admitted having written “L” on the forehead of one of Ms E’s children that he admitted that he had done so. Having been caught out for telling that untruth, his explanation that he did so, in the context of “playing a game” with the child when he did so, is implausible and disingenuous.
The father’s lack of candour, in that respect, casts doubt on his denials of having “slapped” Ms E’s children with a tea towel. In the circumstances, I find that that there is a real possibility that the father slapped those children with a tea towel. This is significant because, as I will set out in greater detail, during the course of his submissions, the father contended that a parent has a “right” to discipline a child, including by “smacking” which he contended was different from “slapping”. I will subsequently explain why I have concerns regarding the father’s views, in that respect.
29. However, for abundant clarity in relation to the interpretation of the ADVO with these Orders, these Orders do not permit the father to find, approach and/or contact [the child] other than at times specified herein or as agreed between the father and mother in writing.
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Remedies
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Procedural Fairness
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