Beringer and Yue

[2019] FamCA 290

FAMILY COURT OF AUSTRALIA

BERINGER & YUE [2019] FamCA 290

FAMILY LAW – CHILDREN – With whom a child spends time – Where the father seeks to extend the time he presently sends with the child to include overnight time – Where the mother opposes the father spending any time with the father – Where the mother asserts that the father has sexually abused the child – Where there is no evidence to support that contention – Where the child’s relationship with the father has been observed by the family consultant to improve – Where the family consultant considers any overnight time should be the subject of the child’s wishes – Orders made.

Family Law Act 1975 (Cth) 60B, 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(3), 61DA

Baglio & Baglio [2013] FamCA 105
Mazorski & Albright [2007] FamCA 520
N & S & The Separate Representative (1996) FLC 92-655

APPLICANT: Mr Beringer

RESPONDENT: Ms Yue

INDEPENDENT CHILDREN’S LAWYER: Silkwoods

FILE NUMBER: ADC 2878 of 2013

DATE DELIVERED: 8 May 2019

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 11 April 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Litigant in person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Litigant in person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Olsson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Silkwoods

Orders

1. That the parties have equal share parental responsibility for Y born … 2009 (“the child”).

2. That the child live with the mother.

3. That the child spend time with the father as follows:-

   (a)From 10.00 am to 6.00 pm Saturday and each alternate weekend thereafter;

   (b)From 10.00 am to 6.00 pm on Easter Saturday;

   (c)From 12 noon to 5.00 pm on 25 December;

   (d)Such further and other times as the parties may agree.

4. That each party be entitled to attend all events involving the child including:-

   (a)       Sporting events;

   (b)       Extra-curricular activities that allow for parental attendance;

   (c)School functions and events which allow for parental attendance including but not limited to concerts, school assemblies, school days, parent/teacher interviews and social functions; and

   (d)Medical appointments, specialist appointments and allied health appointments.

5. That each party shall immediately notify the other party should the child be hospitalised, suffer serious medical or life incident and further, each party shall notify the other of any medical treatment the child receives and the identity of the treating doctor as soon as practicable after the child has received such treatment.

6. That each party shall keep the other informed of their residential address, postal address, landline telephone number, mobile telephone number and email address at all times.

7. That the mother shall forthwith authorise the child’s school and medical practitioners to provide the father upon his request and expense the following:-

   (a)Copies of school reports, school newsletters, school photo application forms, parent/teacher interview notices regarding the educational needs of the child; and

   (b)Copies of medical reports including any referrals, information regarding any medical treatment suffered by the child including treatment and any other information or material concerning the health and wellbeing of the child.

8. That the father be permitted to speak to the child via telephone each Monday and Thursday between the hours of 6.00 pm and 7.00 pm and that each of the parties will facilitate any request made by the child to telephone and/or make communication with the other party.

9. UPON NOTING that the Court continues to hold the child’s passport, the Registrar of this Court shall only release the child’s passport to the mother upon the joint written consent of the parties.

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 Beringer & Yue 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 ADELAIDE

FILE NUMBER: ADC 2878 of 2013

Mr Beringer

Applicant

And

Ms Yue

Respondent

REASONS FOR JUDGMENT

Introduction

1. By Initiating Application filed 30 June 2015, Mr Beringer (“the father”) seeks parenting orders in respect of Y born in 2009 (“the child”).

2. The father sought that the parties “do share responsibility for the long term welfare and development of the child…”, that the child lives with the mother and spend time with him on each alternate weekend, school holidays and special occasions including Easter, Christmas and the child’s birthday.

3. The father now seeks orders as set out in his Trial Affidavit filed 23 October 2018. The proposed orders restrict the time that the father spends with the child on alternate weekends to 10.00 am on Saturday to 7.00 pm on Saturday.

4. By her Response filed 1 February 2019, Ms Yue (“the mother”) consents to orders that the child continue to live with her and that in the event of a medical emergency affecting the child she will inform the father as soon as possible. She does not propose that the father should spend any time with the child and by reference to the final orders that she seeks, the following appears:-

   ·I plea the court to charge The Father’s criminal action which he sexually assaulted his own daughter.

   ·Please consider the contravention he did, to respect the court law, for he used that lady first, then she was added to the supervisor list.

   ·Please release my daughter’s passport, The Father’s said that he is not worry any more.

5. The parties have been self-represented litigants since mid-2015.

6. The Court was assisted by the appointment of an Independent Children’s Lawyer (“ICL”).

7. The ICL seeks the following orders:-

   (1)That the parties have shared parental responsibility for the child.

   (2)That the child live with the mother and spend time with the father each alternate Saturday between 10.00 am and 4.00 pm.

   (3)That the child’s passport which was surrendered to the Court pursuant to an interim order on 14 December 2015 be released from the Court Registry to the mother.

Significant issues in the proceedings

1. The mother filed a Notice of Child Abuse, Family Violence or Risk of Family Violence on 1 February 2019. The particulars of the alleged abuse by the father are contained in a long disjointed narrative.

2. The mother alleges the following:-

   ·That the father assaulted the mother in the presence of the child and took no notice of the child’s resultant distress.

   ·The child said to the mother that “my bum is dry, my bum is dry”.

   ·That the child referred to dry and wet kisses.

   ·Placed a pencil, a necklace and other miscellaneous items on or near her genitals.

   ·When taking the child to a playground she appeared fearful of a boy who was running and playing.

   ·At some point the father allegedly asked the mother the meaning of the word “urethra”. The mother called it a “whee whole” (sic). Later the child repeated the word “whee whole” to the mother.

   ·The child is scared to attend a doctor and the mother considers that somebody must have pretended to be a doctor and harmed her.

3. The mother alleges that the father poses a “life threatening and sexual assault” risk to the child.

4. The mother considers that the father is manipulative and irrespective of any risk does not show any real interest in the child’s health and education. The mother considers the father to be a “criminal” and her concern is that the child has repressed memory of the father’s alleged sexual assault when she was a baby. The mother has apparently obtained some advice that the child may need to have her memory woken up, but that this should not happen until she is at least 16 years of age.

5. Continued contact and interaction with the father may prematurely wake up the child’s repressed memory which could be harmful.

6. The mother summarises her position as follows:-

   Now, for me my daughter’s most of the abnormal behaviours gone, however, my one thing she still abnormal, she could not realise that for a girl should always keep under wear covered. Please stop [the father’s] visitation to save a little girl’s life because this visitation is a life-threatening visitation.

7. The mother also alleges that the father has been the perpetrator of family violence. At some point she contends that he poured a bowl of vegetable soup on her head and in a display of anger, threw a pillow at the mother.

8. On the day of the alleged assault, the mother says that:-

   He drank 4 or 4 bottle’s beer on the day he assaulted me. On the day he assaulted me, we did not argue, our conversation only was I offered some food for him to eat. I had a dream, in my dream, [the father] put shit on white wall, when I woke up immediately appear in my mind was “[the father] give me shit”.

9. The mother now considers that the father was trying to have her leave the home by spilling soup over her. She does not consider it was an accident but rather that his plan was to somehow involve the police, have the mother removed and then he would have the “freedom to do the criminal thing”. The mother considers that the father suffers from schizophrenia and alcohol abuse.

10. The father strongly denies the mother’s allegations.

11. The preparation by each of the parties could only be described as chaotic. The affidavits filed in support of the proposals of the parties make little sense and but for the provisions of div 12A of the Family Law Act 1975 (Cth) (“the Act”) and in particular ss 69ZN and 69ZT there would be little that could be considered admissible in the parties’ affidavits.

12. The proceedings have been before the Court since 2013. The majority of the child’s life to date has been under the spectre of litigation.

13. Whilst much of the mother’s affidavit material could be considered as prejudicial rather than probative, I determined that the involvement of the ICL and the assistance provided by a timely family report, strongly supported the Court determining the orders that would best support the child’s interests.

14. Whilst acknowledging that the mother strongly believes that the father has sexually abused the child, given that no evidence was led by her which would support such an allegation, I determined that the provisions of s 69ZT should apply, albeit that the Court needs to consider the weight to be given to the evidence.

Documents relied upon

1. The father relies upon the following documents:-

   (1)     Initiating Application filed 30 June 2018.

   (2)     Father’s Affidavit filed 23 October 2018.

2. The mother relies upon the following documents:-

   (1)     Response to Initiating Application filed 1 February 2019.

   (2)     Mother’s Affidavit filed 1 February 2019.

   (3)     Mother’s further Affidavit filed 13 March 2019.

3. The family consultant relies upon the following documents:-

   (1)    Reports of Ms B 3 March 2017 (“first report”) and 25 January 2019 (“second report”).

   (2)    Outline of Case document filed on behalf of the ICL.

Background

1. The father was born in 1959. He came to Australia in 1963. He has a child from a previous relationship who is now 28 years of age. The mother was born in 1968. She came to Australia in 2007 with her son who is now aged 21 years.

2. The parties married in 2008. The child was born in 2009. The parties separated in 2012 after an incident occurred where the father is alleged to have poured a bowl of vegetable soup onto the mother.

3. In September 2012 the father was charged with aggravated assault and an intervention order was filed listing the mother and two children as protected persons. The order was varied so that the subject child was removed.

4. Proceedings were commenced on 13 August 2013 and the parties settled their property dispute on 13 February 2015.

The evidence

The father

1. The father gave evidence and relies upon his Trial Affidavit filed 23 October 2018. The affidavit sets out a short history and contains clear denials by the father that he intended to assault the mother by pouring soup over her in 2012.

2. The father was aware of the mother’s allegation that he was schizophrenic and accordingly he cooperated with an earlier Court Order that he undergo a psychiatric assessment.

3. Annexure “B” to his affidavit is a report from Dr C dated 25 February 2016.

4. The history given by the father was that age 25 “he developed religiose delusions with accompanying auditory hallucinations”. He was admitted to a closed ward at a psychiatric hospital and was diagnosed with Paranoid Schizophrenia. He responded well to medication. There were however further relapses over the next three years.

5. The father considered that at present that he was coping well with life, was in employment and had resolved his property issues with the mother.

6. The opinion of Dr C was that the father’s religious delusions should be considered against a background of him holding “a strong view point in regard religious matters, in particular the presence of good and evil”. Dr C did not consider that these were delusional and accepted that the father’s belief was fundamentalist in nature.

7. On examination, Dr C did not see any sign of active psychosis.

8. The absence of illness after a period of 14 years was sufficient to enable Dr C to opine that the likelihood of a relapse was now small.

9. Of importance was the father’s evidence that he had attended anger management counselling in 2015 and was punctual and consistently engaged throughout the sessions. He has also completed a parenting course.

10. There was no effective cross examination by the mother.

11. The ICL did not elicit any evidence from the father which would either corroborate the mother’s allegations or support a finding that the father presented as an unacceptable risk.

The mother

1. As discussed, I was not able to gain any real assistance from the mother’s trial affidavit.

2. She repeated the allegations as contained in the Notice of Child Abuse and contends that despite her best endeavours she was not able to gain support for her belief that the father had sexually abused the child.

3. The mother annexes a letter to her Affidavit of 13 March 2018 which is a proposal by the father to provide $5,000 to bring the proceedings to an end rather than for the parties to incur legal fees.

4. The mother considered this to be a bribe.

5. The mother complains as to the attitude and conduct of her own solicitor referring to the mediation and what she considered to be a change in her lawyer’s attitude from “very kind to harsh”.

6. The mother also makes a similar complaint in respect of a barrister that represented her who she considers did not take her allegations seriously.

7. In her affidavit filed 1 February 2019 she states in the following paragraph:-

   23.They did not mention child assault at all during the court time. I prayed to God for help. I believe that God put this idea into my heart that do not use legal aid lawyer and myself present in the court.

8. The police were apparently reluctant to proceed with any investigation and following prayer, the mother considered that God wanted her to sue the police and her lawyer. She forwarded a complaint to the Legal Professional Conduct Board and the Police Ombudsman.

9. She sought assistance from friends and during a prayer meeting she states that the following occurred:-

   29.…God gave me words through a prophet. God said that God take care of this case. Please see annexure G is God’s word. God said: “This soul is seeking and asking for my help. Let her put her whole heart, faith and trust into my hands. This, what she is asking of, let her know to completely surrender to my mercy and believe and she will see my hand with her problem as I will help her. Let her be careful with her words and know at times she relies on herself, but I say to put her trust in me and she will see my hand in in this situation”.

10. The mother believes that Satan is real and that Satan disturbs the father in his sleep.

11. Apparently God told the mother that the father had sexually assaulted the child. The mother communicates with God via different prophets and in particular she communicated with a prophet from Country D. She says that the evidence that God talks to her can be understood by interpreting a dream which God gave to her in 2010. In the dream the mother was:-

    [V]ery happy, on my back I was caring (sic) a red shining miracle rock flying over the highest mountains and highest buildings. I told this dream to [the father]. Now I believe that is spiritual mountains and spiritual buildings. I will be very joyous and happy for sure.

12. Whilst the affidavits relied on by the mother are notable for the extent of their religious zeal, they contain no evidence to support any allegation that the father represents a risk to the child.

13. The father declined to cross examine the mother.

14. Under cross examination by the ICL, it became apparent that the mother’s allegations are without substance.

The family assessment report

1. Ms B (“the family consultant”) had the advantage of reviewing the family and in particular the father’s interaction with the child in early 2017.

2. In the first report, the family consultant identified the issues in dispute and noted that the parenting arrangements in respect of the child’s time with the father was :-

   underpinned by the serious allegations by the mother in regard to the father having sexually abused [the child] prior to the parties’ separation, as well as the mother’s ongoing concerns as to the absence of any meaningful bond between [the child] and her father; the father’s lack of parenting ability and the father’s poor role modelling and the likely negative impact of all these factors on [the child’s] overall development and wellbeing.

3. The family consultant noted at [28] of the first report that:-

   A confounding aspect of this matter is the parties’ respective fundamentalist Christian beliefs which characterised their language and narratives by way of frequent references to visions, Spirits, the devil, angels, good and evil and God and Satan during their respective interviews and in the mother’s Affidavit material, filed on 18 August 2016, and as referred to in Dr C’s psychiatric report on the father.

4. The family consultant was also concerned as to the child’s presentation both during the assessment but also in the observed interaction with the father at the Children’s Contact Service. The family consultant considered at [30]:-

   These anomalies include her unresponsiveness, her intermittent hyperactivity or silliness and the repetitive inexplicable sounds made by [the child] when she is with her father, specifically the high pitched or snorting or buzzing or ‘peck peck’ noises, along with the baby talk (“goo goo gaa gaa”) the latter observed by children’s Contact Service staff in April 2015.

5. The father did admit that he had a “problem” with pornography when he was young, but that with the assistance of his church he had been able to resist pornographic temptation.

6. He did not want to have access to a computer because of the temptation to consider pornography and it is likely that he may have viewed pornography at times when the child was in his care.

7. He spoke of spirits both evil and otherwise and that because he is a Christian, “it’s par for the course”. He made consistent denials to the family consultant of any abuse sexual or otherwise of the child and did not understand why the mother had formed an adverse view of him and was not supportive of his time with the child.

8. The observed interaction with the child did not suggest confidence in the father’s parenting capacity. He was not able to control the child’s defiant behaviour and when the father asked her to stop flicking paint from her brush onto the carpeted floor, the child ignored him.

1. Of more concern was the propensity of the child to make “strange buzzing noises” when engaged with the father and her half-sibling.

2. The buzzing noises were replaced with a loud repetitive “peck…peck…peck.” The child was then seen to descend into frenetic scribbling on a whiteboard and appeared to resist all attempts by the father to reduce her manic behaviour.

3. Such was the dysfunctional nature of the observation that the family consultant formed the following view:-

   59.The overwhelming impression from this observation was that [the child] does not feel at ease with her father, nor with [Mr F], notwithstanding her initial excitable glee when [Mr F] joined the observation. Nor were [Mr F\ and his father able to successfully engage [the child] in conversation or set limits on her sometimes defiant behaviours, all of which would seem to give credence to the mother’s claim that [the child] never bonded with her father prior to the parties’ separation.

4. The mother’s presentation to the family consultant was equally as confounding. She referred to her fundamentalist Christian beliefs and considered that her visions were a support and a guide, but the child’s behaviour post-separation was the confirmation that she had been sexually abused by the father prior to separation.

5. The mother considered that the child was in a “dangerous situation”. She was concerned that the father may do something which would trigger or wake up her repressed memory. She believed that this held an inherent and real danger for the child.

6. It was surprising that the information from the child’s school was not suggestive of any oppositional or defiant behaviour. The child was considered to be a very bright student, although subject to distraction.

7. The odd behaviour of the child was therefore considered to be something peculiar to her interaction with the father.

8. The recommendations of the family consultant was that the current orders which had the child spending time with the father for four hours each alternate Saturday should continue and that the father should complete a Circle of Security Course before supervision is removed.

9. The family consultant noted that in the second report the mother presented in an identical fashion.

10. The mother was not prepared to concede that there was any real merit in the child spending time with the father and certainly that there should be no increase in time.

11. The mother considered that the child needs to be kept safe and “for the rest of the time she doesn’t even think of him…She’s surprised when Saturday comes and it’s time to see him again”.

12. The mother considered that the father was grooming the child by buying her gifts. The mother described the father to the family consultant in the following terms:-

    [The Father] is not a simple or innocent guy…Ever since she was little he knew what she liked and didn’t like…he doesn’t do obvious things…not in an obvious way…he groom her…make my daughter believe in him…make her attracted to him.

13. She acknowledged that she was not able to prove the father’s criminality in sexually abusing the child.

14. The child was 10 years old as at the date of the second assessment. She was not adverse to spending time with the father and whilst she did not want to spend overnight time, she considered that a modest extension would be acceptable. It was important that the child impressed the family consultant “as settled and happy with her life, including the 4-hourly fortnightly visits with her father, which appear to have become established (and unchanging) part of her familiar routines”.

15. The observation of interaction between the child and the father was qualitatively different to that observed in the first assessment.

16. The family consultant described her observations at [44] as follows:-

    Despite these parenting anomalies, [the child] and her father had clearly developed a rapport since the last assessment, with spontaneous and reciprocated joking, and laughter. The father chatted naturally to [the child] about his son, [Mr F’s] children as well as asking [the child] if she was “going to the Christmas Carols with [Z]”. [The child] was responsive to her father at all times, with no evidence of any of the avoidant or nervous behaviours that were features of her presentation at the last assessment. After the food was put away, [the child] initiated games such as quoits and building a wooden tower from blocks, then taking it in turns to take out pieces strategically so that the tower does not collapse. Both father and daughter seemed happily engrossed in such activities of the remainder of the session.

17. The family consultant considered that the parties should have equal shared parental responsibility, that the child should live with the mother but spend unsupervised time with the father each alternate weekend for four to six hours.

18. Specifically, the family consultant considered that the introduction of overnight time should not be considered unless instigated by the child.

19. The family consultant asked the child whether she had given overnight time with the father any thought. The child’s response was one of incredulity at the idea.

20. Whilst the father may seek overnight time, the family consultant considered that there was a fragility to the relationship between the father and the child and that if he pressed her on the issue of overnight time, that may well have an adverse impact on the improvements in their relationship.

Principles relevant to parenting orders

1. The child resides with the mother and spends limited but unsupervised time with the father each alternate weekend.

2. The father seeks equal shared parental responsibility. The mother does not set out the orders that she seeks other than that the father should spend no time with the child.

3. Section 60CA of the Act requires that I have the best interests of the child as the paramount consideration. This test is to be considered by the application of the objects and principles of pt VII pursuant to s 60B.

4. I bring to account the primary and additional considers of matters as set out in s 60CC(2) and s 60CC(3) of the Act.

5. I propose to adopt the following approach:-

   (a)To give consideration to the separate proposals put by each of the parties as they were identified and presented to the Court;

   (b)To have regard to the objects expressed in s 60B(1) and underlying principles in s 60B(2);

   (c)To have regard to the provisions of s 60CC in order to determine in each case what is in the child’s best interests;

   (d)To have regard to the primary considerations under s 60CC(2) namely, the benefit of the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm;

   (e)To have regard to the additional considers under s 60CC(3);

   (f)The evidence adduced by each of the parties in respect of the particular considerations pursuant to s 60CC(2) and s 60CC(3) are to be considered and if more weight is to be given to one or more of the matters raised then it must be the subject of delineation and comment.

6. Section 61DA of the Act requires the Court to consider whether to apply the presumption of equal shared parental responsibility by having regard to whether the matters as set out in s 61DA (if relevant) would rebut the presumption.

Parenting considerations

1. The position of the mother is that the father presents as an unacceptable risk to the child and that he should not spend any time with her other than under strict supervision and then limited to certain special occasions when the mother would be present.

2. The ICL does not support the mother’s proposal and gives qualified support to the orders the father seeks in that the ICL does not support overnight time at this stage.

3. The family consultant considered that there was a relationship that had developed between the father and the child, although it was tentative. In particular, the family consultant had the advantage of being able to compare and consider the child’s presentation in 2017 to her preparedness to engage with the father in 2019. The observed interaction was seen to be qualitatively improved.

4. Left to the parties, it is unlikely that they would be able to agree any ongoing parenting arrangements.

5. The parties are strongly guided by their faith and beliefs and in particular the mother has a zealotry about her presentation which is not conducive to a mediated or consensus based resolution.

6. As far as the mother is concerned, it is only by the father repenting and admitting his sins to God that there could be any basis for future agreement.

7. The consideration of what is intended by a “meaningful relationship” or “meaning involvement” is one which is “important, significant and valuable to the child”.[1]

   [1]Mazorski & Albright [2007] FamCA 520 [26].

8. The Court is entitled to assume that there is benefit to a child in having a meaningful relationship with both of the parents, but it must always be seen from the perspective of the child rather than what outcome will promote a relationship with a parent.

9. The father seeks an ongoing relationship with the child. The mother is not supportive of a relationship.

Unacceptable risk

1. The mother’s allegations are without evidential foundation. She presents no context for her belief that the father has sexually abused the child. The issues raised by her are illogical and without basis in fact.

2. The mother implicitly accepts that she has not been able to persuade the police, child protection authorities or any other agency to support her belief that the father has sexually abused the child. The mother is disparaging of her own legal advice. She considered that God would ensure a just outcome.

3. In the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655 at 82,713-4 Fogarty J said:-

   Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.

4. There is no credible evidence presented by the mother that could support a finding on the balance of probabilities that the father committed an act of sexual assault on the child, or that he presents as an unacceptable risk.

5. The family consultant did not make any observation of conduct on behalf of the child which would be consistent with the child being fearful of the father, or that he was a sexual predator.

6. The mother’s contention that the father is “grooming” the child is a baseless allegation.

The child’s wishes

1. The child presents as a conundrum. She is reported to be highly intelligent and has good academic achievement.

2. Her odd behaviour observed by the family consultant in the first report and still evident in the second report is difficult to explain.

3. The family consultant observed a developing relationship between the father and the child and was somewhat surprised at the child’s reaction to the concept of overnight time with the father.

4. The weight that should be attached to the child’s wishes is difficult to assess.

5. Doing the best that I can, I consider that the child is enthusiastic to continue to see the father on a regular basis, but any overnight time should be undertaken only on the child’s request.

The likely effect in any change in the child’s circumstances

1. The child currently spends unsupervised time with the father each alternate weekend. The father seeks a modest increase. I do not consider that the father’s proposal would represent a dramatic change for the child, other than if the Court should order overnight time.

2. The underlying aspect of the father’s proposal is that there be a modest extension of time to enable the child and the father to undertake a wider range of activities.

The practical difficulties and expense of the child having contact with a parent

1. No issue arises in respect of the practical difficulties. The father undertakes the pickup and return of the child. There are no financial issues raised by the father in respect of the modest time that the child will spend with him.

The capacity of each parent to provide for the needs of the child including emotional and intellectual needs

1. There is no challenge to the child residing in the primary care of the mother. The father seeks a modest increase in his time with the child. The mother is not supportive of the child’s relationship with the father.

2. I have no concerns as to the father’s ability to provide for the needs of the child when in his care. The mother is clearly able to provide for the child’s day to day needs, but her lack of support for the child’s relationship with the father is adverse to the child’s needs and may well have a detrimental impact upon her psychological wellbeing.

The attitude to the child to the responsibility of parenting demonstrated by each of the parties

1. The area of greatest concern is the apparent inability of the mother to support the child having an ongoing relationship with the father. Even in circumstances where there is no evidence to support the mother’s belief that the father presents as a risk, her views are nonetheless firmly entrenched.

2. Orders that continue for the child to spend time with the father are important in that they are a counterfoil to the mother’s opposition.

3. In Baglio & Baglio [2013] FamCA 105 at [111] Murphy J said “a chance of a meaningful relationship…which is beneficial to the child” is likely to be to the child’s advantage and that the absence of such a relationship “has the potential to cause [the child] harm in the long term”.

4. I consider that it is both desirable and important for the child’s proper development that she maintain a meaningful relationship with the father.

Parental responsibility

1. The parties have an unusual inter-personal relationship. Their religion and fundamentalist belief structure both binds them together at times, but also presents as a chasm that is difficult to cross.

2. The mother’s evidence is that at an earlier stage in the proceedings, she took the child to various health professionals, but in particular a psychologist who allegedly gave her advice about repressed memory and the possibility that “events may wake the child up”.

3. Given that the parties are able to communicate at least by email, I can see no good reason why they should not share the parental responsibility for the child. Each of them has something to offer and they both hold their daughter’s interests as their highest priority.

4. The child has now developed a relationship with the father which is likely to be enhanced by the parties sharing parental responsibility. It may well be an important catalyst for the child’s development that she sees her parents engaged and focused on her care and welfare.

5. I suspect that if the parties restrict their interaction to the basic activities of life as they pertain to the child, their religious beliefs may be diminished in their potential to adversely impact the child.

Child’s passport

1. The mother seeks the return of the child’s passport which was surrendered to the Court pursuant to an interim order on 14 December 2015.

2. The mother provides no basis for the return of the passport other than her belief that the father is no longer concerned that the mother may not return the child to the jurisdiction if permitted to travel overseas.

3. The father does not give his consent to the release of the passport and at this stage is concerned that the mother’s continued opposition to the child spending time with him raises the distinct possibility as opposed to merely a lingering concern that if permitted to leave the jurisdiction the child may not be returned.

4. The mother presents no evidence either in affidavit or orally as to the basis upon which she would seek to travel overseas with the child.

5. The mother’s country of birth is not a signatory to the Hague Child Protection Conventions[2] and given the limited resources of the parties, it is unlikely that the father would be able to pursue the child’s return.

   [2] Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of parental Responsibility and Measures for the Protection of Children, opened for signature 19 October 1996, 2204 UNTS 95 (entered into force 1 January 2002); Convention on the Civil Aspects of International Child Abduction, opened for signature 25 October 1980, 1343 UNTS 89 (entered into force 1 December 1983).

6. The child is 10 years of age and appears settled both domestically and in her school. Given those circumstances, it might be assumed that the child’s stability would be a paramount consideration for the mother and any overseas travel would be likely for a holiday rather than a permanent intention to change the child’s residence.

7. The mother’s presentation in the proceedings suggest that those considerations may not be in the forefront of her mind. The mother remains opposed to the child spending time with the father and considers that he has sexually abused the child and will continue to do so in the future. Her decision making process is significantly influenced by her strong religious faith and a belief that the father’s actions are a manifestation of Satan.

8. It is a matter for the parties as to whether agreement can be reached in the future that would enable the child to have her passport released to her, or to apply for a new passport.

9. In the absence of any evidence to support the mother’s application, I am not prepared to make orders as sought by the mother and supported by the ICL.

10. If the circumstances change and the parties reach agreement, then it is a straightforward process to seek the release of the passport, or for the parties to apply for a new passport if appropriate to do so.

Conclusion

1. The father’s time with the child should remain and be the subject of modest extension. It is unlikely that overnight time would be in the child’s best interests at this stage and I am mindful of the recommendation of the family consultant that overnight time should be largely at the behest of the child.

2. It is hoped that the mother will see the benefit of the proceedings being concluded and far from any divine intervention or assistance, the application of the relevant sections of the Family Law Act 1975 (Cth) produced an outcome that is in the child’s best interests.

3. I make orders as appear at the commencement of these reasons.

I certify that the preceding one hundred and thirty-four (134) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 6 May 2019.

Associate:

Date: 8 May 2019